“Such statements are actually referring to a group: a group that at a minimum includes; the administration, MSU police, the President, the Title IX investigators, the internal/outside lawyers and, currently, the Board,” Kelly wrote to a communications director. “If we want the public to believe the Board is ‘independent,’ the Board must be separated from the group.”

Kelly’s desire was shared by other board members who wished to separate themselves from the administration, which was under intense scrutiny for letting Nassar’s abuse go unchecked for so long. The trustees' sentiments were revealed within thousands of long-secret MSU documents released by the attorney general's office last week. 

Documents show several board members feeling public pressure intensely, as they seemed to fear the political ramifications if their actions were perceived as weak or protecting the administration.

They also give insight into how Michigan’s unique higher education system — wherein the three largest public universities’ boards are elected in statewide partisan races — impacted the decisions and thought processes of MSU trustees throughout the scandal. 

Kelly, currently the board’s chair and most senior member, defended his record of “supporting survivors” in an interview with The State News. However, he suggested his mere presence on the board could have contributed to his party’s decision not to renominate him for a board seat in the upcoming November election. 

Board members were anxious to emphasize the board’s independence during the Nassar scandal, documents show. But, they were often counteracted by MSU lawyers who wanted control over the board’s messaging, and who believed the university’s legal defense was best protected if the board appeared publicly to trust the administration.  

Documents also reveal occasional discord between board members, one trustee’s particular preoccupation with preserving his email and phone communications in advance of a state investigation, and suspicions among administrators that a former trustee was moving behind the scenes for an independent investigation of MSU.

Taken in full, they show the beginnings of a contentious, often-dysfunctional relationship between the board and administration — one that has persisted, and mired MSU in controversy ever since. 

Kelly said the role of MSU’s board has been complicated by consistent crises throughout his term, which began in 2017 shortly after Nassar was jailed. However, he said that with the appointment of President Kevin Guskiewicz last December, the board is now in a “much better place.”

“Whenever possible, the university should be united and moving in the same direction,” Kelly said. “...But when you go through a matter like Nassar, or even some of the other issues we’ve been through in the last seven-and-a-half years, there is a role to step out and act independently and exercise their oversight.”

“That’s not to get into the weeds and make the day-to-day decisions, but when there’s suspicions that we’re headed in the wrong direction…then it is our job to be that oversight.”

Tension with administration

Some board members’ desire to appear independent of the university throughout the Nassar scandal was neutralized by MSU administrators and lawyers, who saw potential liabilities if its own oversight body were to publicly express distrust. 

To mitigate that risk, lawyers and PR professionals painstakingly pored over statements to ensure they didn’t imply distrust by the board toward the administration, documents show. 

One statement subject to that rigorous editing process was the board’s 2018 letter to the attorney general’s office, requesting it investigate MSU’s handling of the Nassar scandal.

A version of the draft “with legal team changes” tried to qualify why the board thought the investigation necessary. 

“Although we have confidence in the integrity of the various reviews already conducted by law enforcement, subject matter experts, and outside counsel to the university, we are making this request because we believe your review may be needed to answer the public’s questions concerning MSU’s handling of the Nassar situation,” the legal team's draft said. 

PR professionals and other lawyers pushed for a different, more to-the-point statement — one that cut out the clause emphasizing the board’s trust in the veracity of previous investigations. 

Their draft simply said, “We are making this request because we believe your review is needed to answer the public's questions concerning MSU's handling of the Nassar situation.”

But one lawyer was concerned that, without the clause reinforcing the board’s confidence in previous probes, the statement “opens space between the administration and the board,” wrote Communications Director Heather Swain in an email. 

The PR team’s proposed statement also flatly asserted that the AG’s investigation “is needed” to answer the public’s questions, while the legal team only said it “may be needed."

Frustration over trustees' talking

But administrators — to their chagrin — had less control over personal statements from trustees, documents show. 

“How do we get them to stop talking.”

Such was then-President Lou Anna Simon’s response to a communications director who informed her that two trustees had spoken to a local reporter for a story on the Nassar scandal.

In that story, then-Trustee Joel Ferguson denied the university’s culpability in allowing Nassar’s abuse to go unchecked for as long as it did, and referred to plaintiffs' attorneys as “ambulance chasers.”

Responding to Simon’s question, then-secretary to the board Bill Beekman said “I scolded Joel a bit this morning and he conceded that agreeing to talk was an ‘unforced error.’”

“Hopefully he will say the same thing in front of his colleagues and discourage them from making his mistake,” Beekman said.

Administrators were also unhappy to learn that then-Trustee Brian Mosallam had responded to an email from a concerned parent of a Nassar survivor. The parent said she was “appalled at the inaction of your board” and urged Mosallam to call for several high-ranking MSU administrators’ resignation. 

The parent also said that, as the father of a daughter, Mosallam should be especially responsive to the concerns of survivors and their parents, and vowed to “make it (her) life’s mission to make sure no one on the board gets re-elected.”

Mosallam responded to that email, “Yes I have a daughter and your email hurts and is painful for me to read.” He added, “Please know that with all my heart. As much as I want to, I can’t say much more than that at this time. I am also more concerned with the truth then (sic) getting re-elected so do as you wish.”

Then-General Counsel Robert Noto tipped off others in MSU’s legal team about Mosallam’s exchange with the parent, saying “Mosallam responded on his own, without consulting me. I doubt he consulted (the communications department) either.”

“I pass this along as an indication of the concern many Trustees have that they are being perceived as cold and uncaring, even as they understand constraints on what they say due to the legal process," Noto wrote. 

Debate over independent investigation

Throughout the Nassar saga, the board faced continued pressure from survivors to order an independent investigation into who at MSU might have known about Nassar’s abuse and for how long. 

Kelly’s January 2018 email to the communications director suggested he was particularly feeling that pressure.

“I'm looking at this not as a Board member, but as a lawyer trying to figure out how we explain why we haven't done an independent investigation (like Penn State and the others),” Kelly wrote. “I know the current answer is that we are embroiled in litigation, but that hasn't quelled the criticism.”

Kelly wrote that he didn’t support an independent investigation, but added that if “we don’t protect and promote the board’s independence,” it might order an independent investigation out of “frustration.”

“(After all, we are elected officials),” Kelly wrote. 

“I am sure, like me, many board members are already being questioned as to why this hasn’t been done.”

But once MSU had reached a $500 million settlement with survivors in 2019, Kelly was swayed to order an independent investigation. 

He told The State News his background as a lawyer was the reason for his initial hesitation. 

“I’ve been a lawyer for 35 years. I can’t undo being a lawyer, and there’s good and there’s bad to that,” Kelly said. When he initially objected to the investigation, MSU "had not yet reached a settlement in underlying litigation."

"In my mind, it would have been a lack of a fiduciary duty to not follow the advice of the litigation attorneys and not see the litigation through," he said. 

Kelly, along with three other trustees (including current Trustee Kelly Tebay) and a group of survivors, identified the law firm McDermott, Will and Emery to conduct the investigation in the summer of 2019. Then, the board announced its intention to hire the law firm at a public meeting. 

But the plan would be thwarted soon after by four other trustees. 

That group of trustees, which included current trustees Dianne Byrum and Brianna Scott, was against waiving attorney-client privilege on documents to be used in the investigators’ review. When the solution was suggested that MSU hire a third party to parse out which documents should be included in the investigation, and which should be withheld under attorney-client privilege, the group of trustees opposed that, too. 

Kelly said he stands by his commitment to the independent investigation. 

“There were not the votes to move that forward,” he said. 

Despite his “record with regard to the independent investigation as well as supporting the survivors,” he didn’t earn his party’s nomination in the upcoming election, meaning his time on the board is drawing to a close. 

When asked if he believed merely being on the board during the Nassar saga caused his party not to renominate him, Kelly said “it certainly was not the sole reason.”

“So, could it have played a part? You’d have to ask every delegate that voted,” he said. “It’s speculation one way or another, but I stand by my record with regard to supporting the independent investigation, as well as the survivors and what they’ve asked for.”

“I want to reemphasize, when I came on the board, Nassar was in jail, he had been long-since fired, I had no oversight of Nassar. Unfortunately, I walked into the Nassar litigation, and I did the best job I could.”

A former trustee gets involved

In a January 2018 email, general counsel Noto informed administrators of a conversation he'd had with an attorney at the law firm Latham & Watkins. In that conversation, the attorney told Noto that former MSU Trustee Dave Porteous had recently called Latham & Watkins to see if the firm would be interested in conducting an independent investigation into MSU, according to the email. 

“He has, I imagine, been calling other firms as well,” added Noto. 

Noto said Porteous’ call was “supposedly in preparation” for a meeting with “Brian Breslin and maybe other trustees, presumably to suggest to them that they hire a firm” to conduct an independent investigation. 

Kelly said he doesn’t believe he was in the meeting referenced in Noto's email, but he does recall having conversations with Porteous “regarding who he believed would be a good law firm to assist the board.”

Noto wrote that, although Porteous had been “saying he was trying to protect” former president Simon by pushing for the independent investigation, he suspected Porteous' loyalties lie elsewhere. 

“I think the person he’s really trying to protect is Mr. Schuette,” Noto wrote, referencing then-Attorney General Bill Schuette who launched an investigation into MSU’s handling of Nassar at the end of that month. 

Schuette had been “working hard at finding a way to get the hot potato out of his lap,” Noto added. 

“Unless (Porteous) has been clear that he's reaching out to the Trustees on Mr. Schuette's behalf, this is way out of line and, even then, I think he owed one of us a call based, at least, on his past relationships with each of us.”

Porteous could not be reached for comment. 

Disagreement over retaining a law firm

Documents show trustees also disagreed on whether to retain a law firm to counsel the board on how to best provide independent oversight of the administration. 

In a January 2018 email, trustee Mosallam emailed the rest of the board informing them that he and Kelly had met with attorneys at a law firm who they were “impressed with” and wanted to retain. He recommended the board “move now,” and attached a draft of a press release announcing the hire. 

Trustee Dianne Byrum halted the move.  

“Colleagues, I want to caution you not to sign onto a law firm and issue a press release,” she wrote in an email. “I think this is a big mistake and I do not want my name included. We should discuss this next week.”

Kelly responded, “Then it won’t happen until we all discuss.”

Two months later, the board announced that it had retained the firm, Akin Gump Strauss Hauer & Feld. 

In a statement to The State News, Byrum did not provide any details on the reason for her initial opposition. 

“The Board unanimously agreed to hire outside law firm Aiken (sic) Gump to represent the Board and I supported announcing this publicly only after the board had fully deliberated on this matter, thorough due diligence was conducted and the decision was finalized, according to my recollection of events at that time.”

Kelly said he stands by the decision to retain the firm, which he believed assisted the board in providing independent oversight of the administration. 

Mosallam’s indemnification dilemma

Trustee Mosallam appeared to be particularly concerned with his obligations to preserve any Nassar-related communications in advance of the attorney general’s review. 

Documents show he hired a personal attorney to counsel him in connection to his document preservation obligations. Then, he asked MSU to pay for the attorney’s fees under the university’s indemnification policy. 

But the university’s legal counsel shot that request down. 

In an email regarding Mosallam’s request, Noto said the indemnification policy wouldn’t apply in that situation, as the university traditionally only covers attorney’s fees for personnel who are engaged in “adversarial” legal proceedings. 

“The AG’s investigation wouldn’t fall under that category, not least because of the board’s request that the AG undertake such an investigation,” Noto wrote. 

An attorney representing MSU, Robert Young, said “unless Mosallam has liability for his independent actions, it would be hard to justify the additional expense of hiring personal counsel for him.”

It’s unclear if other trustees retained personal attorneys in connection to document preservation obligations, or sought indemnification. 

Days prior to his request for indemnification, documents show Mosallam seeking “clarity” from a member of MSU’s general counsel on if communication channels he used for personal reasons would be included in the AG’s investigation. 

“My personal email and phone are used for University business so it’s all jumbled together,” Mosallam wrote in an email. 

“I don’t wanna violate any of the AG’s rules.” (Mosallam did not respond to a request for comment). 

Senior Reporter Alex Walters and Administration Reporter Theo Scheer contributed reporting.