Did the Board of Visitors and Governors in its May 5 and 6 “special” meeting in New York City violate the letter and spirit of the St. John’s Polity in the adoption of its proposed amendments to the Polity — amendments that will transform the governance of the College?
It appears that in fact it did. It failed to provide notice of the business it intended to conduct at the Special Meeting, in violation of the Polity.
The BVG meeting in New York that took place on May 5 and 6 was what’s known and specified as a “special” meeting. This is in contradistinction to a regular board meeting, which the BVG schedules annually. But there was no announcement on the agenda for the meeting that the question of reordering the structure of governance for the College would be taken up.
Instead, the agenda that BVG members were given consisted only of a discussion of financial reports that had been prepared since the previous board meeting. See for yourself: I have published the text of the official agendas for the two days of meetings.
Article II (11)(c) of the Polity regarding “special” meetings reads as follows:
Any business may be conducted at a regular meeting without specific notice of such business (except that which is required by law or as provided herein as to elections and amendments), but no business shall be conducted at any special meeting unless notice of such business has been given, or has been waived as above provided.
[Ed. Such waivers require unanimous written consent by all members of the Board, which was not obtained in this instance.]
Therefore, the Board cannot lawfully use a special meeting to deliberate upon matters that have not been announced in advance and placed on the agenda of that meeting. And, to repeat, none of the proposed sweeping changes in College governance were announced or placed on the agenda in this case. Again, see below.
These are not small, nit-picking, lawyerly matters.
The reason that the Polity, or any constitutional document, contains a provision such as Article II (11)(c) is to prevent a board from doing precisely what the BVG did in this instance — using a special meeting called for one ostensible purpose to implement another, undisclosed, purpose. Board members were not informed in advance of the very subject that they would be discussing, and so did not have time to prepare thoughtful or informed responses.
It seems to me that the thoughtful email response of Bill McClay to his colleagues on the board was met with shouting down of the very notion that such a proposal might need a thoughtful and informed response.
It seems clear that the Board has deliberately bypassed important procedural safeguards built into the Polity. It is hard not to conclude, therefore, that its members are in serious violation of their fiduciary responsibilities as board members.
Those responsibilities are not obscure or difficult to understand, and they are spelled out with clarity at the website of the Association of Governing Boards of Universities and Colleges (www.agb.org), and in a particularly insightful way by AGB senior fellow Tom Hyatt, in a very brief talk that can be found at a http://agb.org/agbu/video/video-the-duties-of-a-fiduciary. Virtually every word of Hyatt’s talk has bearing upon this matter, but especially the central importance of acting “in good faith” and showing “obedience to the law.”
Perry Lerner, Chairman of the Board of Visitors and Governors, has been notably silent about the St. John’s community’s sharply negative reaction to the actions of his Board. I invite him to respond publicly to the items above, and address the questions that have been raised about them.
I would open the discussion with two questions:
Why such secrecy?
And why such haste?