Tuesday, April 23, 2024

Findings of misconduct warrant MSU trustees’ removal by governor, legal experts say

March 18, 2024
Governor Gretchen Whitmer during her second inauguration ceremony on Sunday, Jan. 1, 2023 at the Michigan State Capitol.
Governor Gretchen Whitmer during her second inauguration ceremony on Sunday, Jan. 1, 2023 at the Michigan State Capitol. —
Photo by Chloe Trofatter | The State News

Months of tension within Michigan State University’s administration came to a head on March 3, when an embattled Board of Trustees voted to refer two of its own members to the governor for removal. 

It’s now up to Gov. Gretchen Whitmer to decide whether the findings of trustee misconduct that prompted the vote meet the bar set by article five, section ten of the state constitution — a provision that gives her broad power to remove publicly elected officials from office for "gross neglect of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein."

Legal experts told The State News that the findings — that trustee Rema Vassar and Dennis Denno breached board bylaws and code of ethics by interfering in university affairs and using student groups to retaliate against colleagues, among other things — do warrant removal under the constitution.

But they said it's important for the board members to be able to counter the findings before Whitmer makes a decision, and warned of their potential removal being used as political fodder — something Vassar claimed is already happening. 

The board's unprecedented, late-night vote came months after trustee Brianna Scott wrote a letter to the board in October 2023, calling for then-board chair Vassar’s removal. Her claims — that Vassar bullied colleagues and overstepped her role as chair — became the basis of an outside investigation into board impropriety which started weeks later.

The investigation, conducted by law firm Miller & Chevalier, concluded in late February. Investigators recommended MSU refer the board members to the governor for potential removal.

Days later, the board voted 6-2 to do just that, moving the contentious situation from the university’s hands to the governor's. 

Whitmer’s press secretary last said her office will "carefully review" the request.

But there’s very little precedent to guide her decision. Officers usually resign or are convicted of a crime before governors can see their removal to completion.

But legal experts say Whitmer has enough reason to make history by removing Vassar and Denno.

Robert Sedler, a retired constitutional law expert, said that if the report’s findings of misconduct are true, they "make a strong case for the removal of the two trustees."

Sedler represented the city of Detroit when the city council tried to fire then-mayor Kwame Kilpatrick. Former governor Jennifer Granholm later initiated removal proceedings against Kilpatrick, but he resigned before she could utilize her constitutional power.

"You are an elected trustee of MSU and you have certain responsibilities," Sedler said. “And the allegations are that you violated the regulations under which the trustees are supposed to operate."

The report’s findings that Vassar and Denno interfered in university affairs and legal disputes is a clear example of "breach of duty," Sedler said. That counts as "gross neglect of duty," which the constitution says warrants removal.

Paul Finkelman, a visiting law professor at Marquette University Law School and an editor of a book on the history of Michigan law, agreed that the trustees’ reported actions — in particular that Vassar accepted private jet flights and basketball tickets from a donor — give the appearance of impropriety, which could warrant removal.

"Board members should never be in a position where the board member is profiting from being on the board," said Finkelman, who served as president of Gratz College from 2017-2022.

But Sedler and Finkelman said that legally, the findings only present one side of the story.

"You have to look at the context," Finkelman said. 

For example, Vassar’s unsuccessful attempt to release the thousands of long-withheld documents relating to the university’s handling of disgraced ex-MSU doctor Larry Nassar — a move that investigators said violated board policies — could be interpreted as an attempt at transparency rather than interference, he said.

Vassar previously defended the move, saying it was necessary for MSU to be held fully accountable for one of the nation’s largest sexual abuse scandals, while the outside investigators portrayed her actions as an unhelpful intervention in discussions between the university and the Attorney General’s office. The board later voted to release the documents in December 2023. 

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All the more reason for Whitmer to wait for Vassar and Denno to present their side of the story before making a decision, according to Finkelman and Sedler.

"We just have to hear what their defense is," Sedler said.

But Martin Hershock, a law historian and professor at the University of Michigan-Dearborn, said Whitmer isn’t necessarily required to consider the board members' side of the story before initiating removal proceedings.

That’s because they’d likely have an opportunity to respond to the alleged violations during a hearing.

While not outlined in the constitution, it’s common for a hearing to take place if the governor determines the behavior warrants removal or suspension. The governor conducts the hearing and weighs the evidence presented.

Could removal be used to support a political agenda? Vassar says so

Hershock, too, said "it would not be unexpected if the governor removed these individuals."

But he cautioned against officials using the situation to increase government involvement in the operations of public universities.

As universities face increased scrutiny from the government, "it's really incumbent upon universities to be squeaky clean and to not provide additional fodder for those who are already intent upon scrutinizing everything and anything that happens on the university campus," Hershock said.

Calls for Vassar and Denno’s removal might be used to support the idea that the governor should have the ability to appoint officials to university boards, Hershock said. 

MSU, Wayne State University and the University of Michigan utilize a state-wide partisan election to choose who serves on their boards. Other public universities in the state have a board that is appointed by the governor. 

While he worries that the situation might get political, Hershock said he doesn’t think Whitmer is personally "looking to disrupt the current system of having elected (board members) at those three universities."

Vassar, on the other hand, has said Whitmer used personal connections on the board to spur the push for her removal — one piece of an "agenda" to broaden Whitmer's power in Michigan education, she said.

In a podcast appearance in October 2023, Vassar said Scott "didn’t even write" the letter of allegations that prompted the investigation into board impropriety.

The true author, Vassar said, was "the governor’s best friend," trustee Renee Knake-Jefferson.

Vassar did not respond to questions from The State News about her assertions.

Jefferson was appointed by Whitmer to the board in December 2019 to fill a vacancy. The governor is friends with both Jefferson and her husband, and they lived across the street from each other when Jefferson first moved to Michigan in 2005, according to The New York Times. Whitmer also officiated Jefferson’s wedding.

When the letter calling for Vassar’s removal came out in October, the governor was quick to respond, saying she was "alarmed" by Scott’s allegations and promised she’d "continue to monitor this situation closely."

At the time, Whitmer also said that her office discussed making trustee positions appointment-only.

Vassar, in a now-deleted episode of the "Black Money Matters" podcast, claimed the letter was an attempt to spur that plan into action. 

"The mayhem (within the MSU board), the mass confusion that happened, was her entree into saying 'this is why. This is why they need to be appointed,'" Vassar said. "There’s all these other agendas about (Whitmer) having a broader overreach over education."

Vassar claimed that Jefferson helped Whitmer in the scheme by writing Scott’s letter, thanks to their friendship and Jefferson's resentment that Vassar beat her in the race for board chair. 

Vassar raised similar concerns to the firm investigating the allegations, according to the report. But Miller & Chevalier did not find evidence that Jefferson had a role in writing the letter. 

Jefferson denied she had a role in the supposed scheme.

"The former Chair’s assertions that I promoted a so-called ‘political agenda’ are false," she wrote in a statement provided by a university spokesperson to The State News. "Our fiduciary duty requires that all Trustees uphold the University’s mission, which has guided my service above all else.”

Jefferson told investigators that she provided feedback on Scott’s letter, but that Scott "didn’t write anything or take anything out because I told her to." Jefferson also said she disagreed with the route Scott took and that she "wouldn’t have written a statement like that."

Scott told investigators that she previewed the contents of the letter to all trustees except Vassar and Denno on a Zoom call before publishing it, but didn’t provide them with a copy.

Whitmer's office did not respond to requests for comment on whether the letter was politically motivated.

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