A candidate’s take on the trustee power structure

Published January 10, 2012

If you haven’t already seen Ben Novak’s take on the Penn State trustees’ power structure, I suggest you give it a read. The former trustee, who’s seeking to return to the board, definitely has some worthwhile insight into how most members are bullied into keeping their mouths shut.

But some of the reasons he gives for board members’ silence in the wake of the Sandusky scandal are simply cop-outs. Consider these rules that Novak mentioned in his piece.

“Maintain confidentiality without exception.”

I don’t even know what that means. It seems to indicate that board members can’t talk about anything at any time, but that’s a completely unreasonable interpretation. It’s simply ridiculous to expect members, especially those who are elected, not to speak out ever. Sure, some board matters, like personnel issues, should be kept confidential. But in the absence of declaring a matter “confidential” for valid reasons,  trustees’ First Amendment rights would prevail. It’s an overly broad rule that courts would likely consider “void for vagueness.” In others words, it doesn’t mean jack.

“Speak openly within the Board and publicly support decisions reached by the Board.”

Ok, this one’s pretty clear, but it’s still unreasonable, and easy to get around. Just say something like this “We’re required to publicly support the board’s decisions, so officially I support this one, but I voted against it because …” And then you’re not breaking the rule. Problem solved. It’s not a reason to keep quiet.

“Official faculty communication to the Board of Trustees shall be made through the president.”

But what about unofficial communication? It’s the same game that news reporters play all the time. You want to write about the off-the-record version of what’s going on because that’s usually closest to the truth. Then you write about the official version, which everybody knows is sanitized, if not an outright lie. This rule doesn’t prevent anyone from calling up any faculty member at any time and asking them some questions about what’s going on.

“Respect established channels to acquire information.”

“re·spect: to show regard or consideration for.”  I can consider an information channel. I can give it my regards. But after said consideration and offering my regards, I can ultimately determine that it’s unhelpful and not worth abiding by. If this rule were meant to have any teeth, it would say something like “Board members at all times shall respect established channels to acquire information.” But it doesn’t. Don’t worry about this one.

Consequences? What consequences?

Forget about analyzing individual rules for a moment, and remember this one point: there are no established consequences to violating a bylaw. Sure, I guess a majority of the entire 32-member board could vote a trustee out, but the bylaws don’t provide a mechanism for doing that, and I have a hard time seeing how a judge would allow politically-motived trustees to kick out someone who was lawfully elected. That’s also not a precedent any trustee would want to set. Remember: what goes around, comes around.

Just change it for cryin’ out loud

The most obvious question I have is this: if the power structure is as messed up as Ben Novak says, then why hasn’t any board member made a motion to change it? Why hasn’t anyone made motions to change the rules? Maybe there’s a legitimate procedural mechanism that prevented board members from taking such action without the leaders’ consent. Maybe. But board meeting decorum is supposed to be governed by Roberts Rules of Order, the authoritative source for meeting procedures that is used by nearly all deliberative bodies in the U.S. And those rules provide many opportunities for making motions to vote on initiatives.

Don’t worry, I get it.

I understand why most people who aren’t lawyers and aren’t interested in making waves wouldn’t try to break them. So I (mostly) don’t blame the current board. Most people just don’t think like  I do. But rules are meant to be broken. You just have to use your adult brain and figure out when it’s OK, like we do 100 times a day. As a reporter, I always had to break the artificial rules that PR people would constantly try to establish. That’s how you hold people accountable. And I’m happy to do it as a trustee.

The ultimate problem isn’t the board’s composition or its rules. Instead, it’s the culture of appointing people who are too willing to defend the status quo. The only solution is elect and appoint strong, independent leaders with new perspectives and a willingness to push for change at all costs.

Final note

I’m not a lawyer. I’ve read Penn State’s charter, board bylaws and standing orders, but I’m by no means and expert in every rule. So I’m ready to admit that I could be wrong on some of my points, and I look forward to someone making a credible argument as to why I’m wrong. But these are the positions that I will start with, which is far better than the positions that have made today’s trustees impotent.