appendix to zywicki amicus curiae statement 0910

8/8/2019 Appendix to Zywicki Amicus Curiae Statement 0910

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THE STATE OF NEW HAMPSHIRESUPREME COURT

Docket No. 2010-0179B.V. BnooKS, KENNETH F. CLARK, JR., MRruse DeeNcer-rs KANE,JouN H. PLwrerr, Doucles R. RrcHle, RoneRt G. Repo III, eNo JoHN Srpel III

Appellants

TRusrees o D.Rrvouru Cot-t EceAppellee

APPENDIX TO TODD J. ZYWTCKI AMICUS CURIAE STATEMENTHarvey A. Silverglate, Esq.Of CounselZalkind, Rodriguez, Lunt & Duncan LLP654 Atlantic AvenueBoston, MA 02110hsilverglate @zrldrcomDirect dial: 617 .661.9 1 56(Counsel to Argue)Ruth O'Meara-Costello, Esq.Zalkind, Rodriguez, Lunt & Duncan LLP654 Atlantic AvenueBoston, MA 021106n.742.6020Andru FI. Volinsky, Esq. (# 2634)Bemstein, Shur, Sawyer & Nelson, P.A.670 N. Commercial Street, Ste, 108P.O. Box 1120Manchester, NH 03 105-1 120603.623.8700Attorneys r Amicus Professor Todd J. Zywicki


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Demo c cy at D artrnouththen

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/t a J /' l t' +.2-7 . 'r.I(t, ,,, ,,o 'now www.VoteDartmouth.oroFellow Dartmouth Graduates:

Like you, we recently received a letter from the Dartmouth Association of Alumni (AoA), the 68,000-member organization representing all alumni, warning of an effort to dismantle the 116-year-old democraticstructure of Dartmouth'i Board. We believe this threat is real , Daftmouth needs your help. Please write tothe trustees and President Wright to convince them not to make this terrible mistake. You must act now, aswe expect the Board to act at its September 7-8 meeting.By now you know that the administration, with the approval of President Jim Wright and Chairman EdHaldeman, attempted to prevent the mailing of a letter from The executive Committee of the AoA to you onthis topic, The aministiation balked at letting our Association of Alumni use Dartmouth's alumni mailinglist to communicate with its own members, The opposing view of the AoA was simply censored in anoutright attack on free speech.THB VERY BEST UNDERGRADUATE COLLEGE IN THE WONI-ISince 2004, alumni have exercised their right to become more active in Dartmouth's govetnance' Theirmessage has been clear: To preserve and enhance the quality of education at Darlmouth.To us, Dartmouth is the definition of academic perfection-ledicated professors teaching small classes ofsmart, motivated students in a magnifcent setting. Darlmouth's academic model creates a better environmentfor undergraduate education than, for example, the Harvard model in which graduate students are allowed toteach undrgraduates, often in large classes. This advantage over a great institution is one reason we believe,in the words-of Angus King '66, i two-term Governor of Maine, "that Dartmouth's proper mission is to be thevery best undergraduate college in the world"-a belief that sometimes puts us in conflict with theadministration;or "*uttrple, over the current situation in which students now endure waiting lists for manyclasses at the very same time the College is setting consecutive annual spending records.Students at Dartmouth still come first because half the Board has always been elected by its formerstudents-that is, by you. Alumni have made this priority clear in six elections since 2004. However, ratherthan internalizing thii message, the administration now wants to do away with elections---+ither directly orby re-organization. After alumni voted to reject the new AoA constitution, President Wright said, "lt is timet give the efforts at alumni governance reorganization a rest. Let us work with the existing structure'"We agree, So, why are we right back at it? After losing another trustee election in May, the administrationappears ready to take by fiat what it cannot win by the ballot box'THE FOUNDATIONS OT.OUN DEMOCRACYIn I 89 l, the alumni and Board of Trustees struck a revolutionary bargain to share governance. Thispartnership is the foundation of modern Dartmouth. Below are excerpts of the minutes of the June 24, l89lmeeting of the AoA, which you can find in full at www,VoteDattmouth,org, ln that meeting, ourAssocition of Alumni, of which we are all members, adopted a new constitution to enact the right it hadjust won to share in the govemance of the College'

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Alumni Letter August 5,2007

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Page 2 of 5

The meeting was held in theOld Chapel on June 24, 1891.

Items 3-13 following thisexcerpt mention the words"Alumni Trustee" or"Alumni TrusteeshiP" fivetimes to define thenomination process and tospecify terms of office forAlumni Trustees "soqrranged thal one vqcancYlherein will regularlY occuron the Monday followingeach Comuencemenl."

In the same meeting, analumni associationcommittee reported that ithad been engaged withDartmouth's Board with thegoal of placing AlumniTruslees on it.

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Alumni l,etter August 5,2007 Page 3 of5

Although ChairmanHaldeman assefts that the1891 Agreement "onlyprovided for the alumni tonominate the next fivetrustees," you can see thewords "may so nominate forIhe election of hissuccessors in suchTrusteeship " in thefollowing excerpt from theactual resolution.

Chairman Haldeman says that the alumni ae in a state of "confusion" about the l89l ,,agreement,,,aword that he puts in quotation marks to suggest that no agreement for permanent governance sharingever existed.We respectfully disagree. There s an I891 Agreement to elect half the Board perpetually, It s vatidtoday' And alumni are no! confused about it. lrustee and Law Professo Todi Zywicki'has studied thei 891 Agreement, His enclosed editorial from The Dartmouth explains clearly tht the Board promisedalumni to the right nominate half the Board of Trustees in perpetuity.

TheBoardofTrusteesitselfhasvalidatedthelsgl Agreementtwiceinrecenthistorybyincreasingthesize of the board, each, time adding equal numbers of harter and Alumni Trustees. nO ust last year,alumni themselves endorsed Dartmouh's democratic system for electing trustees by voting down aproposal to weaken it.Putting the legal analysis aside, professor Zywicki makes a more profound point:

"The Board should honor the spirit and wisdom of this partnership and appreciate thebenefits it has produced, rather than treating alumni as dversaria partiei o an arms-lengthcontractual negotiation governed by only the minimum of what may be legally mandated.To change this tradition wpuld be to change Dartmouth itself."8,4.D PRACTICESAnd now, President 'Wright, Chairman Haldeman and the other members of the Board,s GovernanceCommiltee are, in their words, "moving forward with a governance review," which they promise to do"with open minds." The Governance Committee is chariered to study and propose cnanges to the structurer governing bodies. Ittends to keep its deliberaiiot'rr .r.t untilit i..r.nt, unonly days before a yes-or-no vote. For exarnple, after the May Trustee election,I Neukom said that the Governance Committe had been studying trustee selectionoptions for sjx months. His public pronouncelnent was the first we heard of such rt,iy. The Governancecommittee is also far from an impartiat body. V/e petition trustees now compose hdf of Alumni Trustees,yet our request for a seat on the Governance Committee is in abeyance and will not even be considered untilSeptember, conveniently after the issue at hand is behind us, Membes of the Committee have also showedprejudice by publishing disparaging remarks about rhe Arumni Trustee process,

Pl/e ay not at all "open minded" aboul the loss of democracy ar Durtmouth, LVe wllJght to preserveour democratic system-

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lumni l-etter August 5, 2007 Page 4 ol'5

J'he Governance committee has significant problems of its own that it should fix before it opines on thefate of our alumni democracy, In addition to the problems of transparency and hurried deliberationclescribed above, Dartmouth;s tsoarcl does not have bylaws, a first rder oibusiness for any governancel.'jt:1..l:-t:ntly, the Americatr Council of Trustes and Alunni (ACTA) reporred thar by sitring onnls own Liovernance Committee, President Wright has a conflict of interest: Fle helps select the ver/Trustees who review his performance, ACTA siated that the "role currently afforded Dartmouth'sPresident in governance does not colnport with best practices in the non-profit or for-profit sectors.,.,,When our Governance committee has eliminated its own bad practices, t will better qualify to discussbest practices for Dartmouth,ONB I By LANI, Two Ir By SrA less obviou-s, but equally damagi ni ri el onDartmouth, Harvard has a two-tier ed oelected by alumni, and the Harvard ch o 'decisions. The Crforation is srnal bers Ti*terms-and model"ExecutiveBoard seats ' Alumas it saw nr. i i;To summarize, the attack to be announced in September may be to end Alumni Trustee electionsaltogether' or it may be to declare the Board "oly provide for the alumni lo nominate the next fveTrustees," as chairman Haldeman has asserted. ltrnuy be camouflaged in the form of a new l1arvard-like Executve Committee thattakes power and relegates utt urt a few of our current Trustees to,,overseer,,status' In the best case, thre would be no attack beause you would have succeeded in helping usconvince the board to keep Dartmuth the way it is,we prefer the l)artmouth modeL It has servetr us weilfor over a centu),PRoGRESS AND CHALLENGEsSince 2004, when meaningfuJ trustee elections began, there has been significant progress t Dartmouth,yet there is more work to be done.

We have accelerated faculty hiring since 2004, Llowever, that recent hiring spurt ls not enough.ln.the enclosed reprint lrom The Dartmouth, Freshnan Jacob Baron '10 concluded his editorialthis way, "on'top prio_rities,'small gains are just not good enough. To brag aboutsluggishimprovernent is the definition of meJiocrity. l'hat's nt Dartmou-1h.',has adopted Dartmouth one of only nineto receive t poundation for Indiviual(F'IRE), an on campus. Unfoftunately,choice to c lected lumni leadersviolates its own policy.

Daftmouth alumni have become tnore involved irr record numbers, with a3Syoturnout for therecent constitutional referendum that reaffirmed our alumni democracy, as is,Finaly, since 2004, the decade-plus downward trend in the percentage of alumni giving to theDartmouth Fund has beell reversed. However, even at the current 5 i% participatin raie, we still

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Alumni Lctter August 5, 2007 Page 5 of 5

lag the phenomenal 65%-10% rate that Dartmouth once enjoyed consistently. Alumni can vote-or not-in other than elections.You, the alumni, have honored your end of the I891 Agreement with generous support and legendaryloyalty. Your active engagement has influenced the Board to focus on Dartmouth's quality of education,Now it is up to you to make sure that the Board lives up to its end of the bargain.How To HELP'l'he College needs your hetp-again. The surprise governance changes announced by former ChairmanBill Neukom in May probably would have been enacted in the June meeting if the AoA ExecutiveCommittee had not written a warning letter to the Board no| to "violate, restrict, abridge or dilute" yourcurrent alumni rights.Express your concerns over alumni disenfranchisement in writing to President V/right and the Trustees.'Warn President Wright of the unfortunate mark this move would put on his 3 8-year record at Dartmouth.Remind the Alumni Trustees that you voted into office (Christine Bucklin, Michael Chu, John Donahoe,Jose Femand ez) that they should respect your rights. Finally, ask the Charter Trustees (Leon Black, RussellCarson, Brad Evans, Karen Francis, Pam Joyner, Stephen Mandel, Al Mulley)-all alumni, just like us-ifthey really want to be demoted to "overseer" status. Please, this very day:. Send all of your letters to President Wright and the Trustees to P.O. Box 1891 in Hanover, NH03755, where volunteers will count and hand-deliver them to Parkhurst daily.. Send vour emails to the President and Trustees to the www.VoteDartmouth,org website, wherethey will be automatically counted and forwarded. There is more information on the website.. Call Five Friends. Despite being trustees, we are not allowed to use the official mailing listbecause of our opposing view, Our mailing list is incomplete. This letter will also be available atthe website listed above.We apologize for disturbing you again. We were elected to help govern the College, but we findourselves again distracted from that task by another political stratagem too serious to ignore,Dafimouth is the World's Best College in large part due to its alumni. Since 1891, the sons and daughtersof Dartmouth have supported the College not only with donations, but with a sense of history that holdssacred Dartmouth's educational excellence. We oppose any form of a Harvard model, either one with theadministration in control of a new super-committee or one with graduate students teaching undergraduates.Dartmouth's governance has defined a best practice for 1 16 years, one lhat is even more ffictive in theage of instant communication Don't let them take away your right to vote.

S*Q/**T,J, Rodgers '70 Peter Robinson '79 Todd Zywicki '88

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MnnuNG oF TIIE DanrvouTlJ AssoclATIoN or AIUMNIJ.rrr. 2 4 k}gl-Minutes r Adoptecl Docruuents

The Association was called to order in the Otd Chapelat2-45 p,m. by the President, Hon. G, A'Marden'61.. Prayer was offered by the Rev, Dr, Davis Foster'49.Records of the last meeting were read and approved.

dkre- om;mi, - tt e, .e i gple d, "a{do e,,ihffi a.ni4,e=.d::.$e;tg1-qt-'es;,a44 Jso.:th9,f:1,g1'consfl9lr-io=n:,ws, dli={(i.p}qa: a,ttP-'r

Rnponror CovvnrerTo the Association of Alumni of Dartmouth College:

ri'T"detivre:?_ - i. - ,- .,,.. i!.egei' beg leave toreport the results of their work.The Committee appointed by the Board of Trustees to confer with your,C_om-mittee consisted fpt, Alonzo H, Iuint, Hon. Isaac H, Smith, and Hon. Wil-liarn M, Chase: Mr. Chase's place on the Committee was subsequently tlktlby Prof. William J. Tucker. Vour Committee during the autunur of 1890, hads with the said Committee of the Board

manyyethatawafmefinterestandclgserrelatjon,goar'd,,f arlIie Alum+i ipqla'sfueigthen the col-'{ege;e+}4pi.o,4r.o-te',ry-,-lf,age;a;dru.$Sess'The work of the Committee was devoted to devising the way in which this

should be accomplished, At these conferences your Comrnittee were met bythe Committee of the Trustees in a friendly spiritl many different plans werebrought forward and discussed; but no plan was suggested or view expressedwhic was not inspired by the desire to promote the best interests of the col-iege,It does not appear to be necessary here to descri' '' YourIt does not appear to be necessary here to descri rouc ;lv-reta=f,'ih .e, li ctlway ,q,,eate,,rnd'prese,'the:liv, coflStaIit; a.tve iteieSt of the'Alumni in

Gentlemen, -The

th'college and theiir co-operation in its af.alls, Was to:confer'uBon'thegt 'a feal 000006


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=t.."G contingent and remove atig}tt. to excite andkeep up that clear, constant, active interest of the Alumni, which is needed,and which it was the duty of your Committee to secure if possible.We believed thal J-ihe=plan,i:*1d.'do.liid=tl l'ailrni should ui'rderstand.d -l,ihat,ilieyrwete,tO,tvrg:aosflrrit,BeJsonal-responsibility for tl're col-1:e. :o:ligAtiOn:tq;d e'h'ar$e.for.hr w-hich thel'c.oudi: that everyman from the college, as well as the men in it, should still be deemed to be apart of the college, Th"y

but not to interfere withthe present power of the charter members of the board in the election and per-for in the charter,etuation of the twelve Trustees provided

Very soon thereafter yourwhich accordi to its i;;il-; |:1! a- i! t=:+ :5,isions it could not become operative,

al was v*lJenauie;:an at itslaSg's r.q4i5 .18;189f , This act provided for five additional Trust-ees to be chosr, by the Alumni for a term of five yeas. TJig:.tr.' itfmq,to ibeE:llag#tFat,a.. 5h:0'.1d.l-qrthY-e- o bP:fl11e'4.,1 4'19ffi:

without having taken any action in the premises, the Board through tsPresident on the lgth instant invited your Committee to meet that body on the23rd instant at Hanover, which invitation they accepted,

tjYour Committee deem it just and proper to add that the Board of Trusteeshave given this subject their earnest and courteous consideration and by sup-

plementing our efforts by wise suggestions have done much to bring about aharmonious result,The result of these conferences has been the formulating of the plan embod-ied in the li1fi ii3 : -t'ii'iidrb tle r Q,s - and which your Committee under all thecircumstances now recommend for adoption on the part of the Alumni as thebest and most feasible.

ResolurtoNl Apoprp BY rHE Bon or TnuslsEs or DeRtvourH Cot lec

without

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"1. Resolued; Thton the Bord of Trusteesof the College (excepting those held by the Gouernor nd President)r_l:4,r"fl! in7,U'eIr:,.:ti'-e.s,2,- AncIResolaed; ThtutP:,tii.'rr,:'a!.,qu.:, Ilt,oryrinsah.Tnii:ee-.hf'rir,fke.,stlceision tlie[o,,th-Trufees luill'tkz:no acfiptt fo fill tl same wttil theexpirtion of three nronths after notice to the Secretry of the Aluntni of tlrc occunenceof such acnncy unless nomination therefore shall be sooner presented by the Alumnito snid Trustees,3, And Resolaed; Tht this pln of nontintion slnll be tctln nd held to sr'tpersedethe plan heretore dopted in 1876."

=--ti=i;:+eri?:z:.F:iFjr.:g::t:=three vacancies in the Board will be provicled atonce, and two more before the next cofitmencement in 1,892. All to be filledas above provided and that't-jl.S.F:. 4 vflliei,t fii o-:,,S' , and that the term of service of suchTrustees shall be so arranged that ultimately there shall be an anrual electionof a Trustee at each cotilnencemen such annual elections to be secured bysuitable provisions, under which the term of service fixed at five years shall beended by the resignation of the incumbent.Your Committee in reconunending the adoption of this

-::.i a:' ,i;:t-l=: -F=Sr-i-:- =:;rln s mufr as the existing Constitution does not provde methods neededfor the nomination of Trustees pursuant to this plan and agreement. The Com-mittee herewith submit a new Constifution, and recommend the abrogation ofthe existing Constitution and the adoption of the one herewith presented.

Committee:James B. Richardson'57Gilman H. Tucker'6LWilder S. BurnaP'63Frank S. Streeter'74Justin H, Smith'77CosrnuuoN oF THE Dnrvourn Cot-lecn AluvlNt

1. This Association shall be called "The Association of Alumni of DartmouthCollege."2. All graduates of the College, the Thayer School of Civil Engineering, uldthe Chndter School of Science and the Arts, shall be members, Others who re-ceive from the College an Flonorary Degree or ate elected at an annual meetingshall be honorary members but without the right of voting.3. The annual meeting shall be held at the college on the day proceeding Com-mencement Day.

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4, The officers of the Association shall be a President, lwo Vice Presidents,Secretary, Statistical Secretary, Treasurer, and an Executive Cornmittee of fivemembers, all to be elected at each annual meeting upon the nomination of acommittee of three members to be known as the Committee on Nominationsand appointed by the President.5, The President or in his absence, the Senior Vice President present, shallpreside at each annual rneeting, shall appoint committees as herein provided,and shall in the name of the Association receive its guests and particularly therepresentafives present of the class graduated fifty years theretofore.6, The Executive Committee shall have charge of the general interests of theAssociation, including the raising and expending of money to meet currentexpenses, shall appoint a presiding officer in the absence of the president andvice-presidents, and a secretary pro term, In the absence of the secretary, shallnorninate all candidates for honorary membersldp, shall at its discretion securean orator to address the Association at any annual meeting, shall act as a boardof final decisions upon all questions arising in relation to the votes cast for theAlumni Trustee, and shall fill all vacancies in officers of the Association exceptthat in case of a vacancy in the Presidency. The Senior Vice-President shallsucceed to that position,7. The Secretary shall keep all records and attend to the correspondence of theAssociation, He shall, at least lwo months prior to the annual meeting, mailto each graduate of the College, the Thayer School, and the Chandler School,eligible to vote at his last known address, a notice of the coming regular nomi-nation of an Alumni Trustee, containing the name, class, and residence of eachcandidate with an envelope addressed to himself, within which, sealed eachvote shall be forwarded; no alurnnus of less than five years standing, however,shall be eligible to vote for the nomination of any Trustee. The Secretary shalloper count, ad record all votes.8, Candidates for Alumni Trusteeshps shall be nominated for a term of fiveyears from the first Monday following Commencement and at the end ofsuch term the incumbent will be expected to resign his Trusteeship, exceptthat vacancies occurring within such term only, and that until the entire fiveAlumni Trusteeships shall have been filled and the terms of the incumbents soarranged that one vacancy therein will regularly occur on the Monday follow-ing each Commencement. The length of such terms may be so arranged by theExecutive Committee as to produce such regularity at the earliest practicableday. The name of no candidate shall be sent to the Alumni until he shall haveindicated in writing to the Secretary of this Association his acceptance of theprovisions of this constitution including that part thereof relating to his term ofoffice if elected and resignation at the conclusion thereof.

In case the candidate or candidates receiving the highest number of votesshall decline or be ineligible for any reason to serve the person or persons re-ceiving the next highest number of votes shall be considered as nominated,

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9, At each annual meeting a Committee of five members to be known as theCommittee on Alumni Trustees shall be appointed by the President with theapproval of the meeting, This Committee shall nominate five candidates forthe vacancy in the office of Alumni Trustee which will regularly occur on theMonclay after Commencement in the ensuing year. For the term of five yearssuch candidates to be voted for in the manner hereinbefore prescribed; iheyshall make their report on candidates at the Alumni dinner when the Secreiaryshall also announce the result of the previous election. If any candidate shallfail or decline to signify his acceptance of this Constitution within thirty d.aysafter request of the Commttee , ot if or any other teason a vacarcy shall occurin the list of candidates, the Comrnittee shall have power to substitute a narneor names in place of such original candidate or candidates,No voting by proxy shall be allowed in the nomination of Alumni Trustees,a plurality of votes shall nominate, and in regular elections the voting shallclose at six o'clock p.m. of the day of the annual meeting.10. ln case of a vacancy or vacancies occurring in any Alumni rrusteeshipotherwise than by the expiration of a stated term of five years, the Commit-tee on Alumni Trustees shall be forthwith informed thereof by the Secretaryof the Association and shall thereupon meet upon the call of its Chairman,within twenty days thereafter and name five candidates if one vacancy is tobe filled, ten if two are to be fillecl, and so on, which names shall be as soon aspracticable transmitted to said Secretary who shall theteupon at once proceedto take a vote of the said Alumni of five years standing upon the candidatesfor such vacancy or vacancies in the same manner as upon nominations to fill aregularly occurring vacancy: Except that he shall upon his notice designate theday on which the vohing will close, which shall not be more than seventy fivedays after notice to him frorn the Board of Trustees of the occurrence of suchvacancy or vacancies; and upon the day following such closing he shall countthe ballots.

L1. Should the votes of the Alumni be requested at the same time upon nomi-nations to fill more than one vacancy in such Alumni Trusteeships, the severalcandidates (equal in number to such vacancies) receiving the highest numberof votes shall be consiclered as nominated for said vacancies - the peson re-ceiving the highest nurnber for the next longest term ancL so on,1,2, Upon evidence of a due nomination for any vacancy the Secretary of thisAssociation shall at once transmit and certify the name of such nominee to theBoard of Trustees.

All ballots shall be preserved by the Secretary and delivered by him to theExecutive Committee for such disposition as they shall see fit to make: he shallin no case communicate the state of the ballot to any person before its final an-nouncement and shall refer to the Executive Committee all matters respectingvotes of doubtful validity.13. Order of business at the annual meeting,1, Prayer.2, Secretary's Minutes.3, Remarks by the President,

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4. Appointment by the President of the Regular Committees,5, Treasurer's report and any matter of business from the Executive Com-mittee,6, Communications, any, fom the President or Trustees of the College,7. Election of Honorary Members,B. Reception of the semi Centennial Class,9, Report of the Committee on Nominations and Reports of Special Commit-tees.10. Miscellaneous Business,

14, This Constitution may be amended at any amual meeting by a three-fourths vote of the Alumni present and voting,Voted that the old Constitution be annulled and abrogates, and that the new Constitution of-fered by the Committee be adopted,The President then named as a Committee on nornination of officers for the ensuing year -

Thornas H, Procter Esq.'79, H. S, Sherman Esq, '66, and A. F. Andrews Esq,'78'The Treasurer, Prof, E, J, Bartlett'79 then made his annual report which was accepted and puton file.The Committee on nominations of officers then made their report as followed:For President: Hon. George A, Marden'61For Vice Presidents: Hon. Redfield Proctor'51. and Hon. Asa W. Tenny'59For Secretary: Prof. C, F. Ernerson'68For Statistical Secretary: J. M, Comstock, Esq.'77For Treasurer: Charles Q. Tirrell'66For Executive Committee: A, S, Batchelder Esq, '72,W, S, Burnap Esq.'63,I, F, PauIEsq.'63, W. S. Barrett Esq.'80, and E. N. Pearson Esq.'8LThe report of the Committee was accepted and the above list of Officers was duly elected forthe ensuing year.The President then made his nominations of the Committee on Alumni Trustees as follows:Hon. George Fred WilTiants'72Hon. Jonathan Ross'51Charles F. Mathewson Esq. '82Rev. Luther Farnham'37Henry M. Putney Esq.'61The above Committee was approved and accepted by the Association,The following resolution, offered by Eben Bruer Esq.'71,. "That the Secretary be authorized toemploy an assistant to aid in sending out ballots for Trustees, and in receiving and counting the vote,uttd thut the expense of the said work when approved by the Ex, Com. Shall be paid by the Treasur-er," 'was laid on the table by vote, after considerate discussion.The necrology for the year, printed by the Statistical Secretary, was distributed and read by

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chilrb F, Etttson, Sttx*ary


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School of LawApril1.3,2009

A Letter to the Men and \/omen of DartrnoutlrLast week, a.majoriry of the Board of'li'usrees of Dartmouth College denied re a second rerm as anAlumni Trttstee. Needless to saf I am disappointed by their decision. But what is at stake here are mftersof principle: the independence ofTrustees and freedom of speech at I)arrmouth.Jhe T.ustees providecl no explanation for their decisjon, Urrder rules adoptecl by the Board rna.iorit theeelection of Ti.ustees-even fl'ustees initially elected by the ALurnnj in open, democratic elections-isdecided behind closed doors. I have been given no explanation for the Board's decision, no opportunity torespond to charges made against me, or eve to know rvhat that those charges were.But more important tha.n my personai fate is the principle. From 1891 o 1990, Dartmouth's .lumni heldthe right to eelect thei Tmstees based on their perfornrance during thcir first term, A Fair process, But in1,990 a srnall gronp of alumni jnsiders transferred that poi.ver fi'om the alurnni to the Boarcl itself. The clateis not a coinciclence: the tenure of Dr,Johr-r Steel'54, the frrst petitior-r trustee elected to the Boarcl, expireclthat year, Jhe nerv regime-that the Boarcl sits in .ir,rdgment of itsel-rvas adopted precisely so that anyfuture petition Tmstees could be emoved after one term.Since then, the prospect of removal at the end of tlre i elected term is helcl over Tiustee s'heacls frorn theirfrrst day on the Boarcl, Even those electecl by the alumni specificzrlLy to provicle an inclepenclent voice areaware that drey rnust toe the prry line or risk expr-rlsion at the end of their first tern.The threat, previously hypothetic.al, is norv real.This dreat elcourages an unhealthy grouithink and a "go along to get along" boardroom mentality-thesame mentality largely responsibLe for the Wall Street rnalfeasance that we read about every day. Cul-minating in the board-packing plan fwo years ago that relegated ahrmni-electecl Tmstees to permarlentminority statLrs) the Board's mounting disdain for reasonecl student ancl alumni input has finalty realizecl itsend-point: although the alumni still retain the right to elect a fraction of the bou'd, Alumni tustees-anclespccially inclependent petition Tmstees-serve at the pleasrrre of the majority of the Board, not the largercommunityI can only gr-ress why the Borrd refused to reelect me. One factor might have been the remarks I rnade atan academic confereuce two years ago, Speaking


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in the academic arena. fhe Boarcl's larger rnessage is clearjl'rustees should shrink from leaclership in thefield of higher eclucirtion wl-ren cloing so would require arldressing controversial issues. Dartrnouth is ill-served-by this parochial attinrcle. It destines the Colleee to be a mele follower.-Ihere you have it: ] rvrs der-rierl reelection either because of the content of my speech or for some uunarneclteason for which l received no notice or opportlrniry to respond,Legall I)artrnouth's boald l. l)artmouth, It must uphold the College's highest icleals, including its pro-fessed comrntment to fieedom of speech and inquiry. It took one petition trustee for the College to aban-clon its restrictions on campus speeclr. I suppose it'r.ookfoar petition trustees in a row for it to regret lhatdecjsion. Dartrnouth shoulcl nc)t fear free and open debate-even controversy on occasion-as a means forseeking the truth.As we prepare to welcome Eleazer \Mheelocks sixteenth successor, a man r.vho will flrrn l)arttnouth out-ward to engage the world, a majority of Dartmoutlis Trustees insist on turning inward to consolidate Powern a small cotere of insrclers. Does the Board majority really think now is the time to reopen the contro-r,,:ersies of recent)'ears) to revist the recriminations and hyperbole, jusr to settle cid scores Or is it time fora fresh startlAcross the nation, a new wave of openness is throwing open the doors of rnusty cotporate boardrooms fogreat transparency, accountabiliry and director independence. I urge our incoming president, Dr, JirnIGm, to algn the College with these new norms, seeking more openness in the governance of the Col-lege, not less. l)r. IGm,I believe, should insist on the restoration of Board pariry,alumni control of Alumnif'rustee electons, and the right of the alumni to reelectAlumniTrustees in democratic elections, Heshould rnal


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Trustees of Dartmouth CollegeStatement on Governance and Trustee ResponsibliticsOver. the past three years, the Board of Trustees, particularly thlough the work of its Govelance Committee, hasconsiclered how best to strenglhen Boad members' pet'formance as stewaL'ds of the College. Having corrsultedknowledgeable advisers on best practices for non-profit or:ganizations ol1 governnce and having consideredgou"rnunc" policies of other coll,eges and universities, the Board concluded tht it would be useful to develop astatemeut for.Dartmouth on gon"rnun." and tlustee responsibilities, 'We intend the statement to inform plospectivetrustees of what is expected s a Board member, provide guidance concet-ning Trustee conduct, and selve as a basisfor self-evaluation and evaluation of Trustees in the course of Boarcl service. Accordingly, the Board adopts thisStatement on Governance and Trustee Responsibilities.

TheBoar.clolTrusteesdevelopsandadvancesDartmouth'snrissionandgoals. Itensut'estheinstitutioniswell managed, provides for adequate r*nu...., and maintains goodrelations with all consl'iluencies' ott campus andacross the gtoU.. tt appoints and evaluates the President, approves and monitols the inrplementation of insttutionalstrategy and policies, provides accountability and preset'ves l-he autonomy of the institution.The Board assLlres that the Boalcl a,s a whole has the requisite skills and expericnce to steward theinstitution ancl ensures Lhat each Trustee canies out his or her responsibilities as specif,ied herein,The Dartmoth Board of Trustees is a small, working board that makes substantial demands of itsmembers. E,ach Trustee assigns a high priority to a stewadship role with a commitment to the strengths, traditionsand values of the institution and pledges to fulfill the following responsibilities:

Act as a responsible fiduciary' Act in the best overall interesl of Daltmouth'. Make service to l)artrnouth a high personal priority: participate cons!ructively and consistently in the workof the Boar-d ard its committ""r - working groups; accept and discharge leadership positions and otherassignments; work on behalf of Dartmouth between Boad meetings; and altend as many Dartmouthfunctions a^s feasibe.. Prepare for meeiings by reading the agenda and suppolting material and by keeping informed aboutDartmouth and trends and issues in higher educatron.' Participare in rational, informed deliberations by considering reliable information, thinking critically,asking good questions and respecting diverse points ofview, in order to reach decisions on the merits thatare in the best interests of the institution.' use your own judgment in voting versus folowing the lead of others.. Participate in self-evalutions and evaluations of Tl'ustee performance.

Advance the mLrsion of Dartmouthr RepresentDartmouth positively in words and deeds, parlicularly and proactively to Dartmouth constituents'r Serve Dartmouth as a whole, rathel' than the interests of any constituency.' Help Dartmouth secure the financial, human and othel'resources necessary for the institution to achieve itsmission.. Contribute financially to the annual fund and to capital campaigns, within one's means, at a level thatdemonstrtes Dartmouth is a high philanthropic interest.Uphold the integrity ttf the Board. Maintain strict confidentiality oi Board and committee meetings and of all information propriel'afy toDartmouth.. Speak for the Board on)y when authorized to do so by the Board Chair ol Plesident'. Refrain from directing tLe President or staff and from requesting special considerations or favors' ThePr:esident reports to the Boal.d as a whole, and the staff to the President.. Avoid conflicts of interest of the appearance lhereof, in accordance with the Boald's Conflict of InterestPolicy.. Adher.e to the highest stand'ds of personal and plofessional behavior so as to reflect favorably onDartmouth.

Adopted by the Board ofTrustees, June 8,2007

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ITheDatmouth.com l Hang One, Warn a'l'housand

I H E DARTM O UTH,{. (--) I'"iOPINIONHang One, Warn a ThousandBY T. J. RODGERS, GUEST COLUMNIST AND A TRUSTEE OF THE COLLEGEPUBLISHED ON WEDNESDAY, APRIL 22,2009"Hang otle, warn a thousand" says the ancient Chinese proverb, In its Apri meeting, the Dartmouth Boarcl ofTmstees hanged Toctd Zywicki '88, thr-rs walning the petition trttstees -- and zrny others tempted to expres.sindependenl views -- not to cross the party line. The Board's action was cotdly cleliberate' The legal machinery bywrich it was achieved took tlvo years to construct.Every zo yeas or so, when a majority of the ahrmni body decides that the College is ignoring a critical problem, itelects petition lrustees to promote change. That tradition, a healthy method of governance that sets Dartmouthapart, goes back to r89t, when alurnni were formally granted one-half of Dartmouth's Boarcl seats in return forfinancing the College."Swim team" was the raing cry behind rny election in zoo4, The alumni were angry because we all knew ofaciministrative programs that .shoud have been cut before the swim team (which has not won a single Ivy Leaguemeet since being devastated by the Board in zooz).After my election, I found that Dartmouth's teaching was alsosuffering from unclerfuntling. A group of faculty members told me in a private meeting that Datmouth relied toomuch on temporary teachers, and that there were so many cosed-out classes that it dislupted tlre education plansof majors in popular departments like economics arrd government,Subsequent the alumni electectr thee more petition trustees with views similar to mine: Peter Robinson '79, ToddZywicki 'BB and Stephen Smith '88. It was no accdent that each of them was a nniversity professor or scholar, TheBoard Majority, predomnantly composed of investment bankers, could have benefitted greatly from the newtnrstees' eclucation-first viewpoint, but instead, rve were treated as if we were attacking the College. We wereactually called a "radical cabal" trying to "hijack" the Colege by the Board member whose seat I had taken' Thepetition trustees had successfuliy overcome the penny-ante counterattacks, such as denying us the abilily to mailour petitions to alumni to request signatures, and raising the required number of petition signatures, so it cametime for the Boarcl Majorty to fix the petition trustee "problem" permanenty,First, the Majority Board members simply declared the right to clouble their number from eight to 16 withoutadding an equiva.ent nunber of alumni trustees, despite an Association of Aumni poll of 4,ooo aulnni, lvhoresponded in favor of alumni trstee parity, 9r percent to eight percent, Then, the Majority threw its weight andCollege funds into a campaign to remove the Association leaclers who had sueci the College for breaking the t89rAgreement.

Page I of2

WEDNESDAY, APRIL 22, 2OO9

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TheDartmouth.com I Hang One, Warn a ThousandIn the boarclroom, the lVlajorify rewrote the 5o year-old Trnstee Oath into an oath of loya, which was clesignecl,in part, to imit trustees' abilily to express dissenting vieroints witirout tre direct threat of being ejected from theSoarcl, And finally - fataly for Toccl Zywtcki -- the Majority installecl a folmal review process that juclgecl trusteesagainst the new oath on a lne-by-line basis.On the day of his trial, Zywicki was asked if he wanted to make a statement. He apologized again for his PopeCenter speech and exited. In order to maintain the confidentiality of board proceedings, I cannot give details.Howevet, I can say fronr persona knowledge that many of the statemenls made in that meeting about ToddZywicki wele factually incorrect, but Todd was not there to respond, In my opinon, al of the issues, includ.ing hisspeech, did not rse to the level of negating the votes of the alumni who elected Tod


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REDACTED FOR PUBLIC RELEASE

Dearl andlThis letter is a response to the question you raised with me over a beer after our last board meeting.First, let me thank you for bringing your concerns to me in a respectful manner. I am getting tired-damn tired-of the self-righteo-uslrmonettes delivered by the iit


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Page 2 of 5

recent board when C Pelzel was asked-three times, consecutively-ifshe she declined to deliver thesougnl-ar After three years of public controversy, the latest class at Dartmouth boasts thelowest acceptance rate from the biggest application pool ever.. Alumni participation in the last election was also up significantly to 387o from 25% inprior elections. The trustee controversy has actually stimulated alumni interest, eventhough the balance of views seems not to have changed much.. Alumni parlicipation in the Dartmouth Alumni Fund is up from 47A% when ljoinedthe board and supposedly started the petition trustee controversy in 2004 to 50.8% in2006. The alumni giving doldrums occurred from 1988 through 2002, whenparticipation dropped by 20 percentage points, despite the fact that there were nopetition trustees.

The data do not support the theory of damage to the College-quite the opposite.The administration shoutd address fhe issues, not attack those who raise them. The "petitiontrustees make my job harder" complaint from the administration not only does.not square with themeasurable indices above, it really is nothing more than an ad hominem attack used to question themotivesofthepetitiontrusiees,threbydeflctingdiscussionoftheissuestheybringfontard' Hereare two exampi""' First, we either are or are not managi hat's what shouldbe debated, not whether the trustee oath needs to be t es like me fromcausing problems. Second, we either do or do not have judicial system atthe Coiege-that's what should be debated, not whether Stephen Smith, a man of character, is a liar'think you-both know that organizations that operate on data and logic outperform organizations basedon politics,To be fair, the board shoutd examine all sources of bad PR for the College' When Josey Harperfoolishly criticized the mascot of a h team that the College had invited to a tournament, it was aPR disaster tha I did not bring t up because I try to stayto Dartmouth's image than all ofout of political issues,Stephn Smith's writings, which are unknown to most alumni. As detailed in the graph below, theschool lost a catastropic 20 percentage points in alumni participation in the Darlmouth fund-at a timewhen princeton gaind contributors-utng a period when the administration was "ending the fraternitysystem as we knw it" and driving other idelogical objective-s. ln the interest of common fairness, thebard should stop picking only o the petition tiust res and discuss all negative PR for the College,regardless of its source-lut inut wouid mean we would sometimes criticize the administration, an actthe majority of the board is currently unwilling to do.

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DARTMOUTH A LUMNI G IVING(% oF ALUMNI)

DARTMOUTHPLEDGES

DISASTER PERIOO FORPOINT DROP IN ALUMNI

)%'l-.---_-r'rffi.d," ,.9 ^d,t Sr" C fr Clffi

The College needs indePendenon what I felt was a cursory discu

served uanmoutn wepassed unanimously.9MILLIONS

DARTMOUTH TOTAL EXPENSE1,200

1,000

800EXTRAPOLATE WITH ONLY 7.9% CAGR'/

_ / .--i-.Yr 200,1 S628M600

400

200-+**+'Yt"?Yr 1976 60M

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The trustees sould worry molg aboutactual sa/aries of teachers.rII 'Othei Dartmouth Expenses (College Only)2003 2004 2005 2006002Faculty Salaries ($K)Other Exempt Salaries ($K)Total Expenses ($K)FacultyffotalFaculty Salaries @7,05% ($K)cAGl_5.48%6,14%7.05%

7.05%I have tried for two years to find out what the figure for faculty salarywas before the Friedman administration, but I cannot get the inthat we at least lock in tiref expenditure for teachers as a minimum requirement of future budgets,that motion *r*If *itt"'I joining the petition trustees.We may think that because David Spalding generates PR that touts our faculty-student ratio, the alumnisimply believe there is no problem with clalJ availability. But just read the scathing article (atlached) bya student recently printed in The Dartmouth. There are more like it. Everybody knows that we have aclass availability ioblem, except the administration, which appears to most students to be in a state ofdenial, tne peiiton trustees aren't "causing frouble," they are simply trying to solve a well-knownproblem. ln ihis case, it appears that it really willtake external public pressure to overcome theadministration's intransigence and solve an important problem that hurts the College's image a lot morethan the petition trustees.I feel that the trustees should examine the merits of our budgets more critically and take anindependent view of how we spend several hundred million dollars per year. This is another reason forbringing independent petition trustees onto the board'Having independent petition rustees on the board makes i a less hostile place for me. When atrusteJgoesihrougn te humiliating gauntlet created by the administration and alumni association, heor she ses the scool in a differeni light. The personal attacks that Stephen Smith is enduring rightnow were also carried out against the other petition trustees, including me. We therefore tend torespect each other and do not accept at face value the personal and negative things that are said aboutus n public by members of the administration, such as David Spalding-and even members of theBoard of Trustees, such as Michael Chu.The day afier lwalked out of the Sun Valley meeting because I had reached my limit of personal insult,Peter Robinson told me that he stayed in his room that evening because, as he said, "l could no longertolerate the hate." I feelthe same way-literally hated-in many of our meetings, I support qualified,independent trustees partly to make my tenure on the board more bearable,

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Pags 5 of 5

I'll make two final points to avoid any misunderstanding, First, I feel that you two have treated meprofessionally anO respectfully. Second, although thisletter contains criticisms of the administration's'actions, you 'know thai I have'neen a steadfast fublic suppoiler of Jim Wright-and I will continue to be,as long as he continues to work with me on the issues.Sincerely,

T.J, RodgersPresident & CEOCypress Semiconductor CorP.No ccTJR/flmI doc

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Dartmouth Assocation of AlumniP.O. Box 525 | I-Ianover, New Hampshire 03755 | 603-727'[email protected] I http://www.dartmouthalum.org

Lecl.r AcrIoN ro MnrNrnrN P,Rrrv oN THE Bonno or TRustEnsR'pont ro AruuNtDear eUow Dartmouth alumnus o alumna,

Some very good news: following a court order handed down last month, the Board ofThustees has delayed itsboard-packing plan indefi nirely.

\e wrire as otHcers of your Association of Alumni. Established ln 1854, the Association is the only bodyconsisring of alt 70,000 Dartmourh alumni, and its Execurive Committee represents your inrerescs. lJpon ourelecrion lasr spring, we confronted an efforr ro eliminate parity on the Board ofTiustees berween self-perpetuating"charcer" tru.scees and democratically elected "alumni" trustees-e pariry that has existed for well over a century'\e wanc to tell you about the acrions we felt forced to take, where matters no'w stand, and what rhe Future mighthold.

THn no,n-pACKING pLAN AND ouR LA\)suIT

Le rt put this in perspecrive: In 1891, after years of negotiations, the Association and the Tiustees concludede compecr awarding the Colleget alumni-you-a voice in its governance, Half of all non-er fficio trustee seatswere ro be 6lled through elecrion, conducted by the Association. This system of free ancl open elections, unlike aself-propagadng and insular governance structure such as exists at Harvard, has ushered our College through itsmosr prosperous period. More imporranr, ir has kept Dartmouth true to its purpose: world-class undergraduareeducation. Our College could neve r slip from chis mission when its own graduaces we re enfrachised to elect itstrustees.

\)7e 6rsr wrote ro you last summer, as yorl may recall, asking your opinion on an urgent metter' Unhappy withthe resulrs oFrecent trusree elecrions, a small committee withn Datmouth's Board of Trustees was proposing,unilare rall to change rhe scrucrure of the Board, leaving unchanged the number of elected trustees while doublingthe number of unelected trustees-in other words, reducing your representation on the Board from a sate ofbalance, or parit to one of permanent minoriry.

Like che proposed consrirurion cwo years ago, which alumni rejected, this Board-packing plan reflected theAdministration's rendency ro change the rules when the debate isn't going its way-indeed wheneuer the College'ssubstantive issues were being discussed honestly and openl \e could not imagine an atritude less suited to acollege that considers itself Ameica's fi.nest.

Immed.iare ly re cogn izing how damaging this plan, if enacted, would prove for Dartmouth, your newly e lectedAssociarion leaders acred. Ten of the eleven members sent a letter to the Board steting chat the Association would

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use "all appropriare means" ro prorecr the 1891 Agreement establishing equaliry between elected and unelectedtrustees. But we coupled rmness on that issue with an invitation to meec, ro discuss eny governence issues aboutwhich fhe Board was concerned, and to resolve ou differences. \7e were rebuffed,

More than 4,000 of you responded ro our poll. Of those, an overwhelmingg2o/o opposed any alteration orvitiation of pariry. \7e therefore told tl're rrusrees rhat, whatever changes they niight enacc, parirywas the oneprinciple on which we could nor compromise. Then as now, we believed we simply cannot give up our place atthe rable-or allow our role to be marginallzed. Before and after the Board voted on its enlargemenr plan, weoffered mediation; bur ro our dismay these invications elicired no interest. On a split vote, the Board insteadissued its plan fufat, in violation of a clear undersranding observed for more than a century, To defend the rightsof the alumni we lvere elected to rpreserrt, we concluded, afte exrended deliberation, that we had no choice butto seek legal remedy. '\)l'e therefore pe titioned the Grafton County Superior Courr to hea our case.

7he Court bas now issued ix frst ruling-infauor of the Association ofAlumni,On February l, the Court denied the Trustees' motion co dismiss the Association's case , reje cting the Tiusrees'

ergumenr chat the 1891Agreemenr is nor legally enforceable, In its order, the Court wrote thar the "Associationhas.,.established suficient evidence to go forward with its claim of breach of contract" and rhat "the Courtconsiders rhe Associarion to have set forth sufficienr evidence ro avoid finding the contract invalid as a matrer oflaw," The Courr also rejected the Tiusrees' argument that the Association of Alumni lacked the legal capaciry toenter into the 1891 Agreement.In other words: The Tiusrees and the Administration attempted to argue that you, the alumni, lacked thelegal capacity ro conrract with the College for the election of Tiustees. But the College has already reaped thefruirs of rhe l891 .Agreement-your dollars, your votes, and your reasoned input, How could cheTiustees nowargue rhar the Agreement rhey abided by for over a century simply never existed?

The Court wrore : "The College, having agreed wich che Association such that the Association underrook toraise funds for the College, modified its consticution, lifted an embargo on alumni donations, and forbore to 6lesuir, ought nor ro reap che benefir of its bargain and then deny rhat the Association has the capacity ro make suclran agreement. Such a norion offends rhe obligarion of good faith and fair dealing implicit in any contract"'An ffinse gainst the obligation of goodfaith andfair dealing. The 1891 Agreement was genuine' Ad whatis more , as rhe Courc wrore, "ir has been radfied by the ections of both Parties for 116 years thereafte r'" Forwell over a cenrury, ancl continuing profitably rcday, rhe "Associarion [of A]umni] and its members have soughtour, verred, and nominated rrusrees ro fill one-half of the seats on rhe Board; the Board has seated every suchnominee ,"

The Courr, we want ro e mphasize, has yet ro render its final judgment' 'We are con6dent, howeve, chat theAssociarion of Alumni can establish the facts pleaded in its petition with evidence gleaned from the College's richhiscorical archives. \fle fervenrly hope char dris preliminary ruling by che Court will encourage the Board to oPena genuine dialogue with the Associarion about maintaining the alumni democracy that has sust'ined Dartmouthfor 1 1/ years.

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Dartmouth Diminished - 'WSJ,com Page 1 of2

Jobs. Research, carer fts$t$.

REVIEW& OUTLOOK I SEPTEIVBR 11,2OO7Dartmouth DiminishedGiven the bad habits of contemporary academia, it was probably an historical accident that the r89r agreementallowing Dartmouth College alumni to elect half of the school's g overning boaril of trustees lasted as long as itdid, The decision this weekend by Dartmouth's board to bulldoze that arrangement is nonetheless breathtakingfor its audacity,Elections at Dartmouth were tolerated for u6 years, so long as the alumni were electing rubber stamps astrustees. In recent years, however, reform-minded canilidates began to use a petition provision to get on theballot. They bucked the status quo by focusing on issues like academic standards and free speech, and they wereforthright in their views, Since zoo4, there have been four open and fair trustee elections, and independentcandidates won a] of them, year ago the colege tried to rig the process to make it more difficult for petitiontrustees to be elected, and alumni rejected that effort in a referendum too.And so, unable to convince through argument and persuasion, Dartmouth President James Wright and a band oftrustee loyaists forced through a governance plan that will allow them to run the place as they please. T.J.Rodgers, the CEO of Cypress Semiconductor and one of the alumnus trustee dissenters, had predicted as much onthese pages ro days ago. The exercise went ahead as he had guessed - behind closed doors, with minimal publicdebate or alumni consultation. It's safe to say the vote wasn't unanimous, but the college is even barring trusteesfrom disclosing that detail. Your average banana republic is more transparent.The plan will pack the r8-member board with eight more trustees selected by the board itself, With the influenceof elected trustees thus diluted, power will be further consolidated in a small executive commttee that willcontrol the agenda. For good measure, the college also declared that it will run future trustee elections on its ownterms,The architects at least had the courtesy to acknowledge the rea motivations behind this putsch, "We do notbelieve that having more elections is in the best interests of the Colege," they wlote, because of "divisiveness," Inother words, the independent trustees were willing to dissent from the insular uniformity of modern highereducation, so they had to be neutered before they might actually make a difference.Elite academia loathes oversight or accountability, Presiclent Wright, a product and wholly owned subsidiary ofthe Dartmouth faculty, rlay have made himself the new mascot for this attitude. But we doubt Charles Haldeman,the chairman of the Dartmouth board and CEO of Putnam Investments, could ever run his own company thisway, even if he wanted to.At least this fracas strips bare the pretense that alumni have any college role beyond writing checks. Dartmouth'sreigning lords no doubt believe they can ride out any lawsuits or alumni anger that arise from theil porver play,and they may be right, There are always rich alumni donors who cre more about getting their natne on a buildingor getting their kid admitted than they care about budget accountability or stud ent access to tenured professors'

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Dartmouth Diminished - WSJ.com Page2 ofZIt's nonetheless a sad sign ofthe times that ansther institution of allegedly higher learning has exhibited suchhostility to critical inquiry and debate.

Prinled in The Wall Street Journal, page A1B

lnc. All Rghts ReservedThis copy fs for your p6tson1, non-co this material are govrned by our Sutscrber Agr6ement and by' -copy{nt taw. For non-perso contact Dow Jones Reprints at 1-800-843'0008 or vlsitfeprints.corn

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ACT,\z\uluntr:.+x Oo u*cltt o''.'nusmls Ar.jD A.r.,u[.rNJAnne D. NealPrailen NATjoNAr, CouN(;il-Jacqucs BarzunVilliam J. BennetrGcorgic nnc GcyerJudidr llichards HopeMax M, Kampelmanlrvirrg KristolHans MarkMartin PcrerzVilliam K. Telt, Jr.Currin Winsor, Jr.Jerry 1., MarrinC'hinnanIynne V CheneyCl a rzn a n F,m e ti tI{icharcl l). l,anrnrVic Chimn

MEMORANDUIVIDATE;FROM:TO:RE:

invollectin who

high-profile venues.

July 30,2007Anne D, Neai, PresidentAmerican Council of Trustees and AlumniExecutive Committee, Datmouth Association of Alumnic/o Dr, Frank Gado, Second Vice PresidentDartmouthts Governance and Best Practices

f ourda n hissible hisrole currently afforded Dartmouth's President in governance does notcomport with best practices in the non-profit or for-proft sectors,.espe;ially in the wke of Sarbanes-Oxley, and it also raises questionsunder Dartmouth's oI /n conflict of interest policies.

Ptovortxc Acnrttc Fne-oolvt Nt F'xcrll"'t'cE1726 M Strcc, N\7, Suice 802 rVashington, DC 20036T (202) 467-6787; (888) AIIIMNI-8 F (202) 467-6784 [email protected] w\/w.Eoact'org

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BackeroundThe Governance Committee of the Dartmouth Board of Trustees is currently reviewingthe process by which Trustes are selected-a process in place with only minor changessince the 1890s. Currently, eight members of Dartmouth's 18-member Board are AlumniTrustees, nominated by the Alumni Council's Nominating and Trustee Search Committeeor by petition and votd on by all Dartmouth alumni; eight are Charter Trustees, selectedby tire Governance Committee and ratified by the Board; and tr,vo are ex fficio members:the President of Dartmouth and the Governor of New Hampshire, The members of theGovernance Committee consist of one Charter Trustee (the Chairman of the Board), threeAlumni Trustees (none of whom ran by petition) and the President.On May 30, your Committee wrote the Board seeking assuranoe that "the agreementalumni have with the Board, established in 1891 and historically evolved since then,whereby alumni effectively elect half of th e non-ex-fficb members of the Board" wouldremain lntact. Wlile the Board has not responded formally, a "Q and A" documentposted on the Dartmouth website regarding the Governance Review takes great pains toispute the concept of "alumni parity" and argues, "If you read the [1891] resolution, youwon't even find the word or concept of parity in it. It only provided for the alumni tonominate the next five trustees for the Board to then elect," To our knowledge, theCommittee has given no indication that it has ruled out the possibility of changing theprocedures so that petition candidates-who, in Dartmouth's receut past, have been thosemost critical of the current administration-cannot be elected, or of eliminating alumnivoting altogethcr,Both Charter and Alumni Trustees are eligible to serve two consecutive four-year telms'Since 1990, the decision as to whether u Chart.t or Alumni Trustee will serve a secondfour-year term has been determined at the discretion of the Board. (Alumni Trustees hadformrly faced all-alumni votes before both terms') We undCommittee performs an assessment of the Trustee's performBoard during his or her first term, after which a confidentialu.."o*ln.nation by the Governance Committee to the entire Board for action.DiscussionThe President's involvement in a govemance committee is not uncommon at privatecolleges. Princeton, Cornell, Caltch, MIT, the University of Chicago, Johns Hopkins,and Vanderbilt all permit the president to serve on committees that oversee the selection- -,- - ^ ---^ ^+: ^ ^^ ^foftrustees. Howeverrc unlverslmembers, It also does not comport well with Dartmouth's own policies, or with bestp.*ti..r in both the corporate world and the non-proft sectof writ large'

policies

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make clear that "[i]f an individual's personal interests might lead an independentobserver reasonably to question whether the individual's actions or decisions on behalf ofthe College are influenced by those personal interests, the individual should recusehimself or herself from the decision making pt'ocess," The President has a clearprofessional and personal interest in the manner by which Trustees are selected since theyare the ones who ultimately hire, fire and evaluate him. A memorandum outliningexisting ethics standards is attached.Relevant guidelines and best practices-in both the corporate and nonprofrt worlds-would lead to the same conclusion, In the corporate world, CEOs are usually barred frombeing on governance committees. In fact, the New York Stock Exchange requires thatcompanies traded on its floor "have a nominating/corporate governance committeecomposed entirely of independent directors" so the president is not nominating andseleting directors who will end up evaluating hirn, NASDAQ likewise mandates thatdirectors are nominated by either "a majority of the independent directors" or "anomnations committee comprised solely of independent directors." These requirements,adopted in the wake of Sarbanes-oxley, ensure more ethical governance.

onl fornonprofits and hieher education institutions are evident, In 2005-at the urging of theSenate Finance Cotnmitt".-Independent Sector, a coalition of leading nonprofts andfoundations, released a report recommending best practices for nonprofit organizations.The report advocated for itrong governance, audit, conflict ofinterest, travel, andwhistlblower policies. According to the report, "[f]ailures by boards of directors infulfilling their irduciary responsibilities may arise when a board leaves governingr.rponribility to a smail number of people, some of whom may have conflicts of interestthat mar their judgment."A just-released study by the Urban Institute on nonprofit govemance, NonprofitGvernance in the United States, found that "having the CEO/executive director serve asa voting board member v/as negatively related to board activity level in financialoversig-ht, setting policy, community relations, and trying to influence public po[icy, and[not] positively ieiatedto fany roles]." Similarly, an independent panel (including.formerarvard presiilent Derek Bok) advising the Nature Conservancy after adverse publicityregarding governance practices, recommended that the presiden/CEo not serve on thego-u"rnui. or any othr committee. The Conservancy adopted the recommendation andits website notes that major strategic issues are now managed not by committees but bythe full board,Finally, the problems inherent in Dartmouth's Governance Committee, as currentlycompsed, d-o not simply affect the current Governance Review. They relate to the entirepro.r, of Trustee s"lciion, given that (as discussed above) the Governance Committees largely responsible for choosing all Charter Trustees and determining which Trusteesserve a second term.

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As noted, the President sits on the Governance Committee, and there is no evidence thathe is anything other than a full participant in its votes, and those of the full Board, on theselection of Trustees. This process turns good governance on its head: Rather than thePresident owing his continued employment to the Trustees, they owe their continuedservice in large part to his vote. Such a practice is certain to affect the independence ofBoard members and to interfere with the performance of their duties,

ConclusionThe stated purpose of the Dartmouth Governance Review s to examine best practices inthe feld. Ho*"u.r, the Dartmouth governance structure-and, particularly, the conductof the review itself-would appear to constitute a case study in "worst practices."

The direction of the current Governance Committee "study" raises serious concerns'Already exerting de facto control over the appointment of Charter Trustees and thereappointment of alitrustees to a second term, the Governance Committee may now beconsidering eliminating the one source of independent oversight of the Board: thelongstandig ability of the alumni to vote on half its membership. And far from beingdisinterested, the dovernance Review is being sustained by the one person who stands togain the most-the President-who will potentially hold the pov/er to pick and chooseevery Trustee to whom he ostensibly reports.Far-from modeling best practices, Dartmouth's possible interest in creating a self-perpetuating board runs counter to growing federal and regulatory calls for transparencynA ina.p"ndence-not to mention the desires of the thousands of alumni who havevoted for independent oversight in the last four elections.Rather than focusing on how to select Trustees, the Board should initiate an extended andhonest examination of its own governance practices, The following reforms would be inorder-and can be undertaken, since Dartmouth recently gained the ability to amend itsCharter without the permission of New Hampshire's legislature:

. Removal of the President from the Governance Committee;. Changing the President's role on the Board to that of a non-voting member, as isthe case at American UniversitY; an

. lssuance of a pubtic statement that the historic role of alumni in selecting theBoard will be preserved.4

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universities. Moreover, the President's substantial involvement in the Committee appearsto be in clear violation of Dartmouth's own conflict of interest policies.


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We note that many other non-profrt otganizations-including American University butalso the American Red Cross and the Smithsonian Institution-have made headlines inrecent years due to poor governanoe practices, Dartmouth's curent governance modelregrettably bears nrore resemblance to these cases than to the best practices to which itclaims to aspire. Persisting in maintaining such a flawed governanoe structure will invitescrutiny and criticism of the board and risk doing damage to Dartmouth's reputation,

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f)ear Dartmouth alunr,

On Tuesday, rprilZl,tlie ttached letter was c,irculated throughout the Dar"tmouth undergraduate community inprotest of the Board-packing plau. lt quickly garnered htndreds of signatures, tiom frateinity and soror"ity presi'donts, class presidents, athletic captains. and academic leaders on cantpus,With current Assocaton of Alumni e lections enrling on June 5, we felt it irnperative 1o emphasize the wide'spread befief that parit-y on the Board of Trustees,is a unique f'eature tlrat is cmeial to the continued suecess oftlle Drtntouth governance sysfril, and indeed the College irsel,fWe implore yqu te considsr1he voice of te.uldergraduafs i makingyour deeision as- a vo{ing mernber of t}reDartmouth community. 'We want'to thank the Dartrlouth Parity slate for aiding us in ntailing this lettei, but wewanl to rnake clesr that this hitatvs has boen ontirciy student dtiven from beginnng to end.

'+"'a{k /r ;. i -L {- i: ;t;t'D'iane E. Elliselass of'2008 Class of 2008

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Tadc;y's urtrrcouttl Sd entsSpserc uT Fcn PaRITY"I think that the admnistrationrs ef[orts to silence DarhnoLrth alumni is both shameful and desp9rate' 'lheywoulcl rather sweep dissent under the rug than cleal with the underlying problems, Please add my name to thelist of signatusc." - Georgc Pqnos '09 "l would like to be adcled, [Being supportive ofJ Board-paeking? That's just li'ke pr.rblically stating that youwould enjoy livng in a $rranny.,, Mayhe I'm unusualin that I always thought accountablity was a' goodthing." - Nstrnth lleddy' l l

"Don't pack the Board, please'" - Scatt Newbry '08

"My greal-great- great gran dfath er, D artnlou thPresdent Asa Dodge Smith (1863-1,877, andClass of l830) castthe tie-break'ingvote in 1871to allow the alumni to elect some o1'the Trust-ees to the Board,,.you need those people on theoutside who ean be innovatve and suggest newideas, '['hat's whal the petition candidates havedone, and that is what needs t be rrotectd."- Brook H. S,irh '08t,Dartmouth belongs nrole to students and alumni than whoever happens to be working fbr it." - Haley Boln '08

',Please do add uty iame. When f first heard about this, J renlenrbet being quite disappointed. Obviously theboard packing its;lf is bad, but I ,rvas reaily dsappoirrted that at this supposediy high level of acadenria' the ad-rinistiation couldn't o1e rlp with u subtle pln for their strong-armed dealngs." - ,4n '09"'\Me, ttte students, define the current stafe of Dartnouth andwe will embody tle future of Dartmouth. tsy- not recogriiz- "The Administration contjnues to shouting out voice and our impact as derocrati. "iii""or, [hey'r.] vague sgcllsations abouL how the lawsuitdisnrissing the futul.e generaton of globat leaclet:s," -.f7's71s, 'harms tho College' and how the'oleo'Vernon ,l0 tiols and issues ofpetition candidstes are'clivisive'."l would like for rny .,lt is dis,nanre to be odded in of oUr sh s an unfortunate lesSQt'l in democracysupport of this leL- a"re bein eadership wlren they'can ncithertei, i{opefully it helps Bet gnar tont the issues (adrninistrative bloat,remindboth he admin- om of speeclt' direclion and soul ofollg) nor resolve tbem fairly' Thet decisive action that I've seen tlrusonl the Administration has becn tonocratically quell resistance; and un-nately, not to solve the problems thattlre College," -Ar1 '11,,s a crurent studentwho will be an alunrna in only trattr of weeks, I anr extromely disheartened by theadministraton's attempts to di:ninish the.sphere of influence rightlirly held by the altulnj of the college' In myopinion, given the Court,s initial fnding that 'the Assoeiton lras..,establshed suf0cient eviderce to go foru'ard*it it, clanr of breach of contract,' ii would seem that the Board should voluntadly gve tlp the Board-packingplan now. If no one does anything to halt this plan, upon gradualion my fellow students and I will lose ottr stakein what over te past four yarr tras not onty b..n our investment^ but our hotre." - l/svs1i de Zayas '08

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Yss: We We+r rt IrnnsERvEDear alumni,We are cunent Daftmouth students tiorn divel'se cathletes; olhers presidents of Greek liouses; stland circulatecl this short letter in the hope of expat Dartlnou+h is goocl, and that the recent attemptimpot'tance of democracy at Dartmouth is vrt:on$'

ed tnrstees.Now that the Board is being tbrced ro rationalize its plan to a judge, it 'is finding that it simply cannot'As the eulrent generation of Darlmouth students, 1ile ale disappointed that our administration andtrustees would embark upon any course of aetion that "offends ihe obligation of good f'aith and fairdealing,,, let alone urr. *iri"h sutstantially involves disenfrnohisqg us,So while our views on the issues ibcirrg Dartmoutts leversal, BecauseCi'asses of 2008. 20st insulting to us: itgive gener,ously to the Col'lege evely year in thecount for something'

'We therefore respectfrilly ask tha, sincethe lass of 2008 to be the first in 11trustees. Please oppose the Board'packlng plan'elections, the Darlmouth Community can come toPleq,e ltn'n overfor a lst of'sgnalwvs

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Adam Lovnc, Olass ot'2008lcxandcr tjcl, CliSs 0f2008Alexandr Lipprran, Ctss of2008^lexrdra Mesa, Clqss of2008Anderv ll.L. Bcr4., Class of 2008Andrew Blanccro, Class of 2008Angcla Libby, Cfass ol200EArjrm L'hanrJrasckaran, Class o12008Brennar\ O'Neill, Classof 2008Brctll,olve, Class 0f 2008Brn Lloyd, Class 01200Ilrooks Srrritl!, Closs of2()08Culcb [) Bo]or, Clas of20Q8CJ Ryarr. (luss of2008Cullcn Robcls, Class 0f2008Duniol [, fiirru Clss 0f2008l)uvrd l,indcnbour, Clss o12008Diqne Ellis, Clnss of 2008flominik Kolodzjcjc,ryk Class o1'2008Drcw I'Ienzel, (-lass uf2008F,lijat Rosen, Cls of2008Elisc li Krrcgcr. Class of200llE,ic Crarvfbrd, C'loss of 2008(coflcy B Colman, Clnss of200SCrogory Hainer, Clqss 0f2008Holey Ilofir, Classof2008Hrrison Sonntag, Class of2008lfissa Sanllin, Clss of208Jack.D'Angclo, Ciass o1: 2008Jennifbr A Hcnen, Cluss of20(ltiJoh Mnnnirig, Class of 2008John Mitchell, Class of 2008Jordanu Kier, Claas of2008Joscph G. Irauru+uthcr III, Clms of 2008Joscph Malchow, Clasi of 2108Johra Ger, L'lsri ol'2008Ksthefin Gormn. Cls of 208Kn Wells, Clus of 2008Kflsten Crqff. Clsss oi'2008l,aura fleycs, Ciass of.2008l,urcn Orr, Clss ol'2008l.i-O GonB, Class o:f 2008Marc Lajoie, Glo.s of 2008Mak Hcllur, Class of 200$Mary Befh Wcsteruan, CInss'of 2(llJdMory E Vougltun, Clss df'2008Megor Crapslcr, Clss of2008Micrela Corwell, Class of 2008Miclldel F. Knapp, Closs of200fNierolss M, Ware, el,ss of ?008Rcn Chcn, Class 0f2008Rben Ktsel, CI-ss 0f2008Robcrt l,irn, Clgss 0f2008Robrt Shame$, Giass 0f2008Somul F. Fisher, Clss 0f2008Srflb Brorn, Cless oC?008Surah'Rothnant, Clas.s of 20C18Sarh Wilson. Clss of ?008ScoK Y Wong, Clnss of2008Scart Newbry, Class of 2008Scn F. Niuiolson, Clns,s ol'2008Sophie Quinone'2, Clsss of 2008'f'aylor l-nyman, Clss of 2008ludy llung. Clsss 0f2008'f! Moddeluog. Closs of 200,1Vcronicu dc Zuyo,s, CIss 0f2008Wil Ryan. Class of 2008Ala:r Flcss, Class 0f2009Alex ^bglc, Class 0f2009lex Nonrilch, Class of 2009Amanda I)urtvilc, Cts of 2009lndrerv Ballun(inc. Class d'2009drerv Bountford, loss 0F2009Anlrcrv l) Kamnski, Cln-ss, o12009nn C E RiiGcs, Class 0f2009

Anne Megivgel, Clas of 2009Arron C, Forbdr, Clss of200tsalt Suzuki. Clas,s of2009Boris Vabson, CIass of2ii09Brunilun.\ndcrson, Class o[?009Brcnnr JenoS', Clss o2009Bron (]hqo. Clnss of2009Brin E MgGinty, Class of 2009Carol Szurkowskt, Class of 2009Case J latharvay-Zupcda. Clqss 012009Casey Dichl, Cluss of209Chri$lian Kiey, Clsss of2009Chrisrophcr Blankenship, Cjass of 2009Christqher Brou*cr, Closs of2009Chrislphor Johnuot, Clljss o1'2009Colin Sinronds' Class of2009Dvid I-lllenberg, Class ol'2009David Short, Class 0f2009Derek Weiss, ([ass ol'209Elcnnor Ii. Sruitlt, Class of 2009inily ifahrini;Sntith. Clss of 2009Ernly Trcntacoste, Cass 0f2009Gcorgc Panos, Cluss of2009Grcgory Boguslavs, Clss o12009Jonrol Salrky, Closs 0f2009JffWillsey, Clss of 2009Jennifcr Bandy, Class 0f2009Jescs N,lartc. Clns of?009John P, Srnith. Cltss of2009Joseph Fricdntan, Clnss of2009Justiue Modicu, Clss of2009Kihrin ol'2009Ka4clin 2009Kevin lKevin Fjbclior, Closs 0f2009Krsril Bdello. Chiss of2009Kyle L-awhuugl, Cloxs ol'20(19Lau.ra Christfu Sylr, Cls.rs 0f 2009Lur'err Creciola, Clss oll2009Lscf A. Murdoch Closs oi:2009Lynan:Woo, Clnss of 2009Mlcrjhn S. {:hcrg, C'l.ss o1'2009Mariu [. Castillu. Class of 2009lvlaxwell l. Copullo, Cluss ofJ009fvleghan E. Luwrie, Cluss of209Miuhaol C Russoll, Clss of2009Nlhn.J. Nparko, Class oi2009Nslhan'S. Einpsll, Closs'of 2()09Nellioriel Btlls, Class 0f2009Richard Cumnrings, Class 012009Sanc Dunc'an. Clss of209Shon C. ,.)uson, Class of2009Stcphcn M Ubnoskt, Closs l'2009Turu K Wohlgemuth, CIss of 2009Taylor Holi, Class ol'2009Tina Horfison, Cts 0f2009\\rudell Sn ith, Clss of2009Williarn ,HanSon, Clus of 200Yiran Ou, Clrs of 2009Yur,iy Novodvorskiy, Class 0f2009ZaciaryJ lvfooLc, Class of2009Akosuo S. Ossi-Bbie, Class ot'2010\nfrn S, Iiickson. Clms of20l0Benjamin J, Meigs, Cass of 2010'tsreuton N. Rrtynr, Class of 20 l0rarr.F. Dunnc, Cls-ssof 20 t 0Christah Sicuatt, Clss f2010Ghristopher Marlin, Cli3 ol'2010Dvid CuJslla, Clss of20l0David lcimbuchl Lllsss of 2010crkka K. Mcrblcy, CIass of 20)0Dmtri,v Cutkovich. Clss of 2010Doug N0lson. Class'of 20 10Doug Zorbock, Class of 2010Eriy B Bcng,tson- Cldss of 2010

Frances'Vernon, Clss of 20 0Fancs Frrnin-llotrlo, Clo.sr ol20 I l)Horsh Gupra, Class ol'20 I 0Jcob Daron, Claqs oll20loJanrcs J. Kordirhl, Cluss.of20l0Jon l,uo, Clnss of20l0Jcluy Srnth, Clsof 2010Jennil'cr Montminy, Clas of 2010Jessca Whcclcr, Clss of 2010locelt Krouss, Clss tif.20l0Kaitln Curcy, Cls of 2010Kari Br:itcl, Clus of 2010Kassie Arclrant bauh, Clsss of20 I 0Kathcrinc B. Cro*. Class oI20l0Kn(hryn l,indquis(, (lass ol'201 0Kcvir Mitlcr: Clnss of Z0l0Krrstgn Toes"Lockba11, Class of 20 I 0l,artra Dul.ottzo, Clss of 2010Luurcn lpeyrie, Class rif 20 l 0Lil' om, Crss ol'200Louisa f'ollnrd, Cluss of20l0Lucrctia A Wrtle. ('lass of 20 I 0Margnrct Bell, Class of 2010Mallhcrv [Jroccolo, Class of 2010MichociAdolmon, Cluss of 20J0Michell Liu, C'luss ol'2010Nathan Ilnrschi, Closs of20l0Nathan lvlcNqnrarE. Class of20 I 0Ncd Kcnrrcy, Cass of20l0I'bihp ^bin, Clss of 2010Rsmi L. Gd(ilrcl, Class of 2010Rbbefl P. Higdon, Clrss 0f2010Robcrt Z;bodai class of 201.0Stefani Roper-, Crl*s qf 20 I 0Sunrirut Das, Clss of 20I0\hru Cho. Cfs3 of20I IAluiundra Hcvoad, fos ot'20! |Angclo Grino Jr,, Clqss of20l'1Brondon Aiono, Clss,of20l lBrucc Jobse, Class of20l IChistixe,Miles, (iless of 20J IDaien L. Chcrg" Class f201 IDoid Nrchnlan. Class of20 I I.Derek S. Class of 201I'Illeanor Killiar, Class of 201|hll izbeth l, l{owand, Cluss,f 201 IEvctyn Fisher, CI.is o201 I(iole n U i2amro, Clss of 20l1Grcy .urrack, Class of20l Ilsaiah J. Bcrg. Class tri20l lJennlier Robinson, ek,ss.of 20 I IJlln Trtirick, Clss of20llJnhee K O[ Class ol?0l

John Borvntun. Clas of201 IJohn Burdcn, Clnss of20llKevin Estrada, Class of20l ILsrs \\,aldo,,Clqss of20 IMaduline Stuin+, Clss o1'201IMark nta, Closs of 20'l IMryukn Kowaguchi. (lh- of20llMichae I Browr, Clss of 20llMichacl G. Mruso, Ct.iss of 201IMinhac Shim, Class of 201 1MorlalhA. T{eddaya, Ciss of 20llNiha Mqla Bergnton, Clns of 2011Nrsanth Ruddy, Class ci20t IPrcstor McIJddc, Cliss of 20l lRcbecca l.lar ringlon" Closs of 201 IReit I). Duke, Class ofl201 lSrh Spngcrtbrg, Cluss of20l IStcphunrc Riedlcr, Clqss of20l I'lylcr Brncc, Clss,of20l IWaheed Zaril. Clss ol20l IZachary Lirn, Cioss of 201,1Zoe J Willrarn-s. Clsr of20l I

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appendix to zywicki amicus curiae statement 0910

Documents