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September 14, 1999

OBSERVATIONS

Kangaroo Farce, Tin Horns, and Kitchen Sinks: The Battle of the Boards

by Tom Brennan

In this article, I report and comment on two meetings, the USA Faculty Senate meeting held on July 21, 1999 and the meeting of the Board of Directors of the USA Foundation held on August 12, 1999.


At the meeting of the USA Faculty Senate, I was surprised by the way in which that body positioned itself with regard to contentious legal issues -- soon to be disputed in court -- between the USA Board of Trustees and the USA Foundation. Since all real knowledge of those issues has been rendered entirely problematic and opaque by accusatory claims and complex counterclaims, and by the biased reporting of the Mobile Register, which has done everything in its power to make a dark farce of the issues by demonizing Dr. Whiddon and other members of the Foundation, it seems to me that the fair and reasonable stance for the USA Faculty Senate ought to be to take no position at all. The Senate, in urging both parties to negotiate, has done as much as it can reasonably do and should have acknowledged, given the imponderables, the lack of evidence, and the high dudgeon of both parties, that the courts must settle the matter.

However, the USA Faculty Senate, for reasons that appear to be largely self-serving, has entered the fray in a way that clearly indicates it has concluded that the USA Foundation is the egregious culprit and that the USA Board of Trustees is the poor pitiful victim. With its predisposition to favor the administration and the Board of Trustees as the aggrieved party, the USA Faculty Senate permitted its meeting to begin with an indictment of the Foundation by President Gordon Moulton. There was nothing new in the charges and Mr. Moulton offered nothing solid to substantiate his main claim, namely that the Foundation is guilty of “fiduciary irresponsibility and negligence.” Those charges will, of course, have to be proven in court before, as Mr. Moulton hopes, the Foundation can be dissolved and reconstituted. Our uncritical senators raised nary an objection to any of Mr. Moulton’s unsubstantiated charges, speculations, and contentions, and with no representative from the Foundation present, he tacked breezily from point to point without having to worry that the opposing party might take the wind out of his sails.

Immediately following Mr. Moulton’s justifications and recriminations, which set the tone and mood of the meeting, Senator John Strange presented a complex prefabricated resolution demanding that Dr. Whiddon resign as Managing Director of the Foundation. All would be well with relations between the university and the foundation if only Dr. Whiddon were immediately removed. Strange’s zealotry was amply seconded by many senators eager to show their support for Mr. Moulton. Their zeal is summed in remarks made by two senators. Senator Steven Kayes, a professor of biology, proposed that the resolution on the table be amended to include a statement demanding not only that Dr. Whiddon be removed from office but also that his statue be removed from the lobby of the administration building and that his name be erased from the building too. Kayes’s Red-Guard denunciations were, however, trumped by the remarks of another senator. Senator Michael Spector, a professor of biomedical sciences, queried Mr. Moulton about the possibility of mounting a criminal investigation against Dr. Whiddon.

But even before the afternoon kangaroo-court proceedings began, the stormy climate of the Senate meeting was rendered predictable given that the Deans had sent that morning to the faculty at large a copy of a letter addressed to Jack Burnson, the Chair pro tempore of the USA Board of Trustees. The letter reported the Deans’ vote of no confidence in Dr. Whiddon and Aubrey Green. The letter offered nothing substantial in support of its position. It merely rehearsed the litany of charges repeated ad nauseam by some members of the Board of Trustees and disseminated over and over again in the Mobile Register. The Deans did aver they have been told privately by Foundation Board members that “vital information about developments within the Foundation is often not forthcoming from the Foundation paid staff.” Well, if that’s the best the Deans can do, why should any sensible person pay attention to them or take them seriously?

However, Faculty senators, especially untenured ones, are apt students, quickly learning how to take their cues from the Deans. Untenured senators are not likely to vote against what they know to be the wishes of their Deans, and the Deans’ letter made those wishes amply clear.

Spinmeister Ronnie Clark, in her Mob. Reg. story on Thursday said not a word about Mr. Moulton’s presence at the Senate meeting nor a word about his speech to the Senate, but she did say most of the senators “worked many years for President Whiddon.” (7/22/99) Assertions like that are typical of her reporting. I don’t know what she means by “many years,” but I do know that only four of the really long-term faculty were present as senators: Bryce Evans (1967); Suzanne Dewitt (1975); Mary Swint (1976); and Calvin Jones (1979). I suppose “many years” could apply to Senators hired in the 80's. Of those only ten were present. The largest number of senators present were from the crop hired in the 90's. The USA Bulletin for 1999-2000 confirms that at least 29 of the total 61 on the Senate were hired from 1990 to 1997. However, this figure is not accurate because in addition to these 29 there are 11 senators for whom no hiring dates are given in the Bulletin. I assume they arrived after 1997. Also, I assume that senators arriving after 1993 would not have tenure. Given that only 14 senators from 70's and 80's were present that means 25 of the 39 present hired in the 90's, most of whom do not have tenure. I don’t call that working “many years for President Whiddon,” and it doesn’t take a marsupial scientist to figure out where most of the kangaroos are coming from. And the number of untenured faculty will increase as more and more senior faculty retire over the next few years and are replaced mostly by adjuncts and part-timers, making fertile conditions for unilateral control of the university by the administration.

Given the set up -- Mr. Moulton beating the drum for the Trustees, the Deans’ letter, and approximately 25 senators hired in the 90's with a sizable portion of them untenured -- the situation was ripe for the prosecutorial zeal of John Strange. In my 30 years here, I have never witnessed such a vehement display of antipathy toward Dr. Whiddon. Perhaps Strange has been saving it up and now that Dr. Whiddon is gone, he has found his misplaced courage. But how quickly we forget! Strange and his fellow senators are apparently suffering from amnesia, having forgotten that last year’s senate voted no confidence in the USA Board of Trustees when they totally discarded due process in the matter of Mr. Moulton’s appointment. Does the current crop of Senators believe that the reprobates on the Board of Trustees have suddenly found religion? Why is the senate so willing now to believe unsubstantiated assertions from the trustees when some members of the Board so obviously and flagrantly lied about their intentions to conduct a national search for a President? Further, why does the clamor for football go hand in hand with blustery announcements of legal actions by trustees Brunson and Langham? Every time it appears the Board thinks it has finally gotten the scent of Dr. Whiddon’s blood in its nostrils, a host of voices in the media and in the athletic department proclaim the day of football is at hand and that the university and the business community will profit immensely from the advent of the football messiah.

While there was little reason from Mr. Moulton, the man who says he wants to bring things back to “rational form,” and little reason from Senators on Wednesday, there was plenty of ridicule and disrespect for the man largely responsible for building this university. Why was John Strange leading the vigilante charge against Whiddon anyway. Who elected him Chair of the Senate? In one of his mini- tirades, Strange boasted that he had what it takes to fire people when it comes time to fire them, and he boasted that like Harry Truman, whom he learned about when he was a social-science professor, he knows where the buck stops. Yes, maybe so, but does he know where the kangaroo court begins? And as far as bucks are concerned, Strange had nothing at all to say about the bucks it would take to bring on football at USA. He completely ignored the obvious coincidence of rising expectations for football with rising expectations of victory in the courtroom. Mr. Moulton kept his words about football brief too, saying only he would not be for it if it in anyway threatened to jeopardized the academic side of the institution. If Mr. Moulton is really serious about protecting the academic side of the institution, he will do all he can to strengthen the hand of those trustees on the USA board who have reservations about football. The football trustees are barely in a majority now and that could change since Larry Striplin has yet to be officially confirmed as a trustee by the state legislature. When push comes to shove, if Mr. Moulton has no strong support from a majority of the trustees, he will prudently do what the CABAL of Football Trustees wants no matter how irrational it may be. He’ll have to if he wants to keep his job.

But first, since there’s no other ready source of large quantities of cash -- we’re talking at least $5 million for starters only -- The CABAL will have to gain control of the Foundation. Assuming they’re successful in dissolving and reconstituting the Foundation, they will do what Tulane did for football. Raid the Foundation. Control, however, continues to elude the CABAL and with it, the holy grail of football. The CABAL’s latest tactic to divert attention from their designs on the Foundation is to suggest that money for football will be forthcoming from various local sources. Mike Dow, Mayer’s Mayor, is making loud noise in the media about support for football coming from the city, but so far he hasn’t said what that support will be other than to say the city will fix a few mud puddles in the parking lot at Ladd-Peebles stadium. It’s not likely the Mayor will offer the use of the stadium free of charge since the city needs to recoup some of the money it spent on refurbishing the Ladd-Peebles albatross.

This entire situation would be the stuff of high comedy if it weren’t for the dire consequences which make it a dark farce and which we are already experiencing. With some members of the USA Board of Trustees bent on having a quixotic courtroom battle with the USA Foundation for the sake of flexing their muscles and for the sake of football no matter the cost to the academic side of the institution, how, to take just one example, will the College of Arts and Sciences be able to attract well- qualified candidates for the Dean’s position now available. All of what Jerry E. Brown said in his article in Mob.Reg. about the leadership at Auburn lacking in class, courage, and character applies equally well to the football trustees and other members of the USA administration pushing for football. Both institutions are beset by peckerwood Machiavells. Brown ought to know; he just retired after 20 years on the faculty at Auburn and is now the Dean of Montana’s School of Journalism. In comparing the old Auburn with the current version of it, Brown says that what he doesn’t remember “is the divisiveness that now besets Auburn.” And he doesn’t “buy...the scheme to remake the university as a business-tech school.” “Much of that drumming,” he says he takes “to be the political vindictiveness and a vendetta against the liberal arts,” and he sees “the bureaucratic marching and countermarching over funding and priorities as a way of showing the faculty who’s boss.” (7/18/99) Brown says the fundamental problem at Auburn “is not money. It’s the obsession for control. If one-third of the political energy spent to preserve power on the board of trustees were turned toward finding sufficient funds for Auburn, there would be no financial pinch at this institution. And there would be a whole lot more trust and harmony.” (Ibid.)

When I asked some of the A&S senators why they voted for the senate resolution, they offered no reasons that made any sense. The best they could muster was that they were going with the flow.” Yeah right, they were the tin horns through which the flow of Mr. Moulton’s and John Strange’s excremental rhetoric found its too easy passage. Well, I suppose you can’t have a Kangaroo Court without a lot of crap flowing through tin horns.

THE MONTGOMERY MEETING: the Kitchen-Sink suit

The Board of Directors of the USA foundation met on August 12 at the Capitol City Club in Montgomery. It was from all reports a noisy, rambunctious affair. There were 4 faculty persons and 14 administrators from USA present at the meeting. The presence of so many administrators was highly unusual; obviously they came with the intention of making a show of strength and support for Mr. Moulton.

The meeting began with a motion from Director Langan to amend the charter and bylaws of the Foundation to provide that the President of USA, Gordon Moulton, be a member of the Board of Directors of the USA Foundation. The motion was stopped cold in its tracks when Director Steven Stokes raised the issue of litigation. USA Trustees Brunson and Langham are currently suing the USA Foundation to have its charter revoked and its bylaws thrown out. Their allegations charge that the Board of Directors are mismanaging the Foundation in a wasteful and fraudulent way. Vince Kilborn, the attorney representing the Foundation, gave his opinion that because the two plaintiffs, Brunson and Langham, had elected the Courthouse as their forum and were present at the meeting with their attorney, former Judge Braxton Kittrell, it was his recommendation not to amend the charter and bylaws to provide a place for Mr. Moulton on the Board of Directors because changing the charter and bylaws is under litigation and a matter to be decided in court.

It should be noted that the USA Faculty Senate had no compunctions about demanding changes in the make up of the Foundation board, and Strange even insisted several times that the resolution to remove Dr. Whiddon from the Foundation should be done in a way that would indicate the Senate’s intention to join the Brunson-Langham suit as friends of the plaintiffs. Kilborn labeled that suit as a “kitchen-sink type of lawsuit” to characterize its nebulous, all-inclusive nature, and quoted the “blitzkrieg- attack” headline the Mob.Reg. burbled about because it believed the Brunson-Langham suit would be the death knell for the Foundation. But as it turns out, the lawsuit is proving to be a major fly in the schemes of the trustees who want to bring down the Foundation. Langham is getting worried, maybe because he can read the handwriting on the wall and maybe because the USA Board of Trustees has yet to join the Brunson-Langham suit, though they said they would. Langham asked Kilborn if, as members of the Foundation Board, he and Brunson had equal protection as far as fees are concerned. Apparently he envisions a huge bill from judge Kittrell if the suit is lost. The Mob.Reg. reported the answer to the question “who pays for the lawsuit”? It enthused that the Foundation and not the university would have to pay, as if the huge fees for the suit wouldn’t have an affect on the university. Director McMillan, realizing that Langan’s motion to get Moulton on the board was going nowhere, motioned to table it, which it promptly was by a vote of 12 to 5. That effectively ends Moulton’s quest for a seat on the Foundation Board until the lawsuit has been decided in court. And as Langham said, “that may take forever.”

With the tabling of Moulton’s bid for a seat, faculty and administrators present at the meeting were not happy campers and showed their displeasure with a good many loud interjections over the course of the meeting. Their displeasure increased when Director Stokes motioned to change the order in which items on the agenda would be dealt with. Stokes’ motion moved the complex and contentious issues -- the Ernst & Young fiasco, the Primeheath problem, and matters of litigation -- toward the end of the meeting so that matters that could be discussed without going into executive session would come first. Stokes’s motion passed unanimously. Dr. Whiddon then motioned that the Board of Directors name a faculty member to the Foundation Board. But again the litigation issue reared its ugly head. Stokes amended Dr. Whiddon’s motion to read that the Foundation table all motions until after litigation is resolved and then move within thirty days to “seek out one or two active, not retirees, but active faculty members to serve on this Foundation Board.” Trustee Langham averred that the motion to seek out faculty to serve on the Foundation Board was “to usurp the academics or the Faculty Senate by trying to get involved in their business.” (As if the trustees hadn’t already thoroughly involved themselves in the business of the faculty with the appointment of Moulton.) Stokes rejoined by pointing out that since litigation “has stopped dialogue right now except between the various attorneys,” faculty input was needed. He added that he “would want someone from the faculty who has tenure, someone who is senior, who is highly respected in their field by their peers because untenured faculty can be subjected to intense pressure, political pressure, to vote certain ways.” Moulton then introduced Dr. Susan LeDoux from the College of Medicine. Dr. LeDoux said, “we very much appreciate that there should be a member on the Board, but we have much stronger feelings and that is that the President of the University should be on the Board and that if it is not appropriate for the President of the University to be on the Board, it’s not probably appropriate for the faculty member either [inaudible remarks]. It’s hard for us on the faculty to see the difference between the President of our University and faculty member, if it can’t be the President, and says we’ll accept a faculty person, I don’t think that’s acceptable to the Faculty Senate. The thing the Faculty Senate wants is for the President of the University to be on the Board, and secondly, we think there should be faculty representation also.”

And with those eat-humble-pie remarks, the Faculty Senate capitulated utterly to the USA administration. The faculty should be represented on the Foundation Board and whether or not Moulton is on it is irrelevant to faculty concerns.

Mayer Mitchell, in attendance, delivered a speech in which he indicated that if the Foundation didn’t agree to match his $8 million donation with a $1 million grant to refurbish the Business building and update the technological capability of the College of Business, he would rescind his gift. He didn’t say so outright but he hinted at it. Mitchell said, “I’m not here with a hat in hand begging . . . I’m going to ask you to approve $1M to $8M.” Stokes asked Mitchell: “Why are you opposed to letting the Foundation put more funds in the scholarships for students and faculty chairs, and let more of your funds go for bricks and mortar”? It looks to me like it’s the same pot of money....” Stokes added that the Foundation had never given money for bricks and mortar. Mitchell retorted that it had when it provided funds to refurbish the administration lobby. Stokes rejoined that Mitchell was wrong and that the money had come from Bill Hearin. Mitchell then said, “I want our money to go for student, faculty, and programs -- that’s what I want our money to go for,” and concluded by saying that that was all he had to say about it. In other words, Mitchell flatly refused to have his money go for anything but “programs” and, in effect, challenged the Foundation to come up with $1M for renovation. But Mitchell is a cunning old fox and he then brought Carl Moore, the Dean of the College of Business, on stage to testify that the technological refurbishment of the Business building was really not bricks and mortar but a way of enhancing an on-line MBA program begun this Fall. Moore said, “We have to improve instructional resources, research, and electronic journals.... This is the wave of the future and we view this not as embellishment of the structure but absolute necessity.”

Dr. Whiddon, ironically enough found the way around this impasse. While reiterating the Foundation’s position on bricks and mortar, he added, nonetheless, that he thought renovating the business school is defensible use of the funds, and recommended that the $1 million be given over three or four years. Langan amended the motion to make the money available over the next two years. The amended motion passed with 13 ayes and 1 nay. Aubrey Green then declared the meeting would now go into “executive session.” Brunson objected and stated it in a motion, but the motion died for lack of a second. Moulton wanted to know “who’s entitled to be here.” He said he wanted to know because he saw a number of people who were not members of the Foundation Board present. Green said they were consultants and attorneys. Langan said he thought the President of the University ought to be allowed to sit in on the executive session so he’d be available for comments and information if we need it. Kilborn responded saying, “As you know the University Board of Trustees voted to join one of the two lawsuits that we will be discussing in executive session.” Moulton said he hadn’t sued anybody, and Langan said the trustees had never joined the lawsuit. Kilborn replied, “The vote [to join the suit] was made and as far as I know it has never been rescinded, so I would not want to discuss that litigation with somebody who is a potential joiner with the plaintiff in that case. It would be totally inappropriate.” Langan lamely responded that he didn’t know what the litigation committee was up to and what powers it had or how it was appointed. Kilborn said he’d be glad to discuss that in executive session. Mitchell asked to remain in the room and was refused by Green. Moulton then stated: “So, Mr. Chairman, you’re going on the record that -- for the investment of the foundation resources and the critical nature of that, for the university that that material is so confidential even the university president that serves as the direct liaison for communication for faculty and our programs, has no right to the information.” Green said, “At this time, yes.” Considerably disgruntled, Moulton left with this parting shot: “Well, we will remember that Mr. Green!”

Clark in the Mob.Reg. made a big deal out of the fact that the Foundation meeting went into executive session, but I’ve never noticed in her stories about USA Board meetings any objections to the executive sessions held by that body. At every meeting of the USA board I attended, I and other guests were shooed out of the room. I don’t recall one meeting that did not have a portion of it devoted to executive session. It seems to me that the Brunson-Langham lawsuit has had the unintended consequences of making matters simpler for the USA Foundation. The shame of it is that it is wasting more Foundation money since I don’t believe Vince Kilborn is representing the Foundation on a pro bono basis.


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