Kreis: In defense of UVM’s legislator-trustees

Editor’s note: This op-ed is by Donald M. Kreis, associate director and assistant professor of law at the Institute for Energy and the Environment at Vermont Law School. He is the former general counsel of the New Hampshire Public Utilities Commission and a member of the board of trustees of the Vermont Journalism Trust, publisher of VTDigger.org.

Here in Vermont, where everybody seems to know everybody else, our public life is too evolved and congenial to include the glib “gotcha” gridlock politics of our national government. Or is it?

The nine legislators who serve on the University of Vermont Board of Trustees deserve the same thing every Vermonter expects from her neighbors: the presumption of good faith, in the absence of concrete evidence to the contrary. Instead, these elected officials have been unfairly criticized by fellow politicians and others because the lawmakers approved the severance package that induced UVM President Dan Fogel to step down this month.

As scandals go, the one that drove Fogel from office is tepid at best. Fogel’s wife, Rachel Kahn-Fogel, engaged in a longterm but largely epistolary romance with a high-ranking UVM development officer. A formal investigation found no violation of either the law or of university policies. When he announced his resignation, Fogel said his wife faces some significant mental health issues — a contention that is both unrebutted and, obviously, a reason to feel sympathy rather than scorn for the Fogels.

These facts are important here because they suggest that, unlike other executives of prominent institutions whose tenure ended suddenly, Fogel deserved something better than simply being booted out the door. And, of course, he got something better.

What Fogel got is 17 months of paid leave — at roughly $35,000 a month — followed by a job in the university’s English department that will pay an annual salary of $195,000. That’s a lot of money.

But the state lawmakers who, along with their colleagues on UVM’s board, voted to approve this package are hardly venal cigar-chomping politicians. Some examples: Rep. Kesha Ram (D-Burlington) is an advocate for battered women and, at age 24, the youngest person in the Legislature. Rep. Donna Sweaney (D-Windsor) is a retired school counselor who is the Legislature’s avatar of government transparency and accountability. Rep. Bill Botzow (D-Bennington) is a visual artist and the affable new chair of the House Commerce and Economic Development Committee.

While it is possible that Ram, Sweaney and Botzow are drunk on power and prestige, oblivious to the plight of working people, and thus eager to advance the cause of plutocracy by lining Dan Fogel’s velvet pockets, there are other possible explanations. Maybe these legislators have more information than we do about the relevant personnel issues, for example? Might they be precluded from publicly discussing all they know about a sensitive matter that has privacy implications for the people involved? Might they be reasonably concerned about the university’s ability to attract a new president of sufficient caliber, if the successful tenure of the departing one ends the wrong way? Might Fogel, who does not appear to have committed any misconduct himself, have a colorable argument that he was wrongfully discharged, thus giving him some leverage in negotiating his exit?

Those who would criticize the nine legislator-trustees for approving the Fogel severance package should walk a mile in their shoes. How many of those complaining about Fogel’s golden parachute have had the experience of being a fiduciary of a large, publicly accountable organization? In particular, who among us has had to review and set compensation arrangements for someone whose salary and benefits are vastly in excess of their own?

I’ve been there and done that. I can testify to the temptation to look at such a CEO and think: Hey! That guy isn’t any smarter than I am, and he doesn’t really deserve to make a multiple of what I make. In fact, technically, I’m his boss! So why is he so rich and why I am I so relatively poor? I vote no!

Such an attitude would be sufficiently reckless and self-indulgent to be a violation of a trustee’s fiduciary obligations. UVM is a vast institution of more than 13,000 students. A state land-grant university, UVM represents a legacy built up by generations of Vermonters. It is an entity whose continued success is crucial to future generations. Like it or not, an institution of that size and significance must be governed by a highly qualified and ambitious CEO who is prepared to obsess about the university to the exclusion of everything else, even his family. That’s someone who can and will expect to be highly compensated. Indeed, one reason university presidents command such big salaries is as a form of unemployment insurance; the tenure of such people has a way of ending abruptly.

I’ve also been there and done that when it comes to teaching at an academic institution with a president who makes a multiple of what I make. As that president retires, and as the institution seeks his successor, I earnestly hope the trustees offer a level of compensation that can attract world-class leadership, not because I am oblivious to the wealth disparity but because, frankly, these are tough times and my job depends on what that person is able to accomplish. Even in good times, mediocre leadership breeds mediocre institutions, and I want a good professional life in an excellent organization.

The point here is not to defend Fogel or, necessarily, to excuse him for politely rejecting Gov. Shumlin’s suggestion that he donate a chunk of his severance pay to a scholarship fund. Rather, the point is that those who serve on the university’s board of trustees might actually deserve our thanks, rather than our derision, for the way in which they have handled this matter and provided for a graceful transition from Fogel to his successor. In that regard, it bears noting that UVM was contractually obliged to give Fogel a year’s worth of paid leave at whatever point he stepped down from the presidency.

Those who sit on the UVM board while also serving as underpaid state legislators deserve our gratitude in particular. A misguided effort is afoot to remove legislators from the boards of all state institutions of higher education, including UVM. Gov. Shumlin told Seven Days there is an “inherent conflict of interest” in such service because legislators ultimately decide how much to appropriate to the institutions they are helping to govern.

“Are you doing what’s best for taxpayers, or are you delivering on what the president wanted you to deliver as a trustee?” asked Shumlin in his interview with Seven Days.

The problem with this line of thinking is that the taxpayers of Vermont and the owners of UVM are the same people. Thus the alleged conflict of interest is illusory, except insofar as every governing board must be vigilant in avoiding capture by the CEO it supervises on behalf of the owners.

No one has come forward with a shred of evidence to demonstrate a lack of such vigilance on the part of the legislators who help govern UVM. Yes, Dan Fogel walks away from his presidency with a pile of cash that most of us can never hope to accumulate. Yes, he does so at a time when many Vermonters of limited or no means are struggling. Yes, in some sense this is unfair. But should we throw the battered women’s advocate, the retired school counselor and the visual artist off the UVM board of trustees as a result? Given the way the world works, would their successors look more, or less, like regular Vermonters?

Comments

  1. Ross Laffan :

    What an incredibly lame defense. The fact that Kesha Ram is the youngest member of the legislature or that Sweeney is a retired school counselor or that Botsow is affable are irrelevant facts. The fact that they are underpaid for their service as trustees is also irrelevant. The Fogel payoff is obnoxious and clearly indefensible as has just been proven by Mr. Kreis. These legislators will hopefully be made to explain it to their constituents, none of whom, as Kreis has correctly stated, will ever walk in Fogel’s shoes. You want evidence of a lack of vigilance? The vote is the evidence.

  2. walter carpenter :

    There are probably hundreds of employees at UVM in all realms of the university that work five times harder than Fogel did and only get the boot. As a taxpayer of Vermont it is difficult at best to see the reasoning behind this severance when it can cost me a thousand bucks just to take a course there, much less go twenty years in hock to get a degree. No, like the$7.25 million blue cross golden parachute this seems like a case of CEO taking it for all he or she can get.

    • Christian Noll :

      Walter how true,

      It is sad to realize that our American Colleges and Universities are really “Rich Boy Clubs” so to speak.

      Its really not about “Education” in the US, its about money and power.

      Similar to health care, “Education” in the US is not at all universal and guys like you and I, will just be cast aside. Education and Healthcare are both like driving a car in that they’re not rights but rather privileges, for the previleged at that.

      We’ve created a mockery in our country.

  3. Christian Noll :

    Hey Don thanks,

    Who at Vermont Law School would I send a few free copies of my book to?

  4. Dave Bellini :

    Avarice and arrogance has reduced UVM’s credibility to that of a reality TV show. As long as there is an audience willing to pay increasingly exorbitant tuition, the story line won’t change and the actors will get paid millions.

  5. Christian Noll :

    Its about bringing in rich out of state money.

    Its about selling “Vermont” to out of state parents.

    Its about hiring out of staters who will someday call themselves “Vermonters.”

    Its about putrid opulence and yes arrogance. There is not one humble thing about them.

    Both Champlain College and UVM have redefined a “Vermont Education” to the highest bidder.

    Its revolting, hateful and highly discriminatory.

  6. Christian Noll :

    Don he got more than you stated in your article.

    If your going to “inform” the public, then you need to be more thorough.

    What about the $20,000 “Wellness” package? Oh yeah and the “Car?” Is that from the Automaster?

    I’d imagine any free tuition would add up as well.

    Its not just the money. Its the misinformation practiced by our own media.

    Education needs to be more accessable to Vermont tax payers, which includes being more honestly informed.

  7. Steven Farnham :

    “Fogel deserved something better than simply being booted out the door.”

    Who’s booting him? He resigned!

    “Those who would criticize the nine legislator-trustees for approving the Fogel severance package should walk a mile in their shoes. How many of those complaining about Fogel’s golden parachute have had the experience of being a fiduciary of a large, publicly accountable organization?”

    How much more must we suffer this lame logic? A university president is not an island to himself. He has colossal power and resources at his disposal, not only to assist in making his decisions, but also to carry them out. One would think the man was personally performing every task, right down to cleaning the toilets. Most of us can only dream of filling such a position as that of University president. It is most reasonable to expect the best of those who do. If he fails, he deserves no more sympathy than the fellow whose marital problems interfere with his properly cleaning toilets. The day they start rewarding janitors with golden parachutes, I’ll reconsider my opinion.

    “In particular, who among us has had to review and set compensation arrangements for someone whose salary and benefits are vastly in excess of their own?”

    Since when does the size of our salaries determine our abilities to comprehend a concept? Is Mr. Kreis a gratuitous elitist, or merely “drunk on power and prestige”?

    “When he announced his resignation, Fogel said his wife faces some significant mental health issues — a contention that is both unrebutted and, obviously, a reason to feel sympathy rather than scorn for the Fogels.”

    From published reports, it appears that Ms. Kahn-Fogel’s main problem is that being spouse to a well-paid university official is less than satisfactory. However, making it on her own has its drawbacks as well. As for Fogel himself, it seems he has to keep his house in order. Failing to do so may compromise his public reputation and diminish his and his office’s prestige.

    Thus, both have much to gain by owning his/her share of their personal problems and dealing with them–and it would appear that their efforts have failed. Either way, I am not impressed by Fogel’s public declaration of his wife’s “mental health issues.” The implied message: “None of this mess is my fault.” While I have no way of knowing, the gentleman doth protest too much, methinks.

    These people are wealthy enough to meet their own therapy needs. Suppose there were no “mental health issues,” but that instead, Fogel’s wife was killed in an automobile accident. Would that situation make Fogel deserve compassion and sympathy? Of course. But would it entitle him to gobs of money? From his wife’s life insurance policy maybe, but not from the coffers of a public institution of higher education.

    The scorn I feel is not toward a situation which may merit sympathy, but rather that a bunch of sycophant’s have decided that the Fogels’ failure is one which merits so much financial reward along with said sympathy. No matter how you slice it, rewarding their failure (no matter who is at fault) is highly unnecessary and inappropriate.

    “But should we throw the battered women’s advocate, the retired school counselor and the visual artist off the UVM board of trustees as a result?”

    Perhaps.

    “Given the way the world works, would their successors look more, or less, like regular Vermonters?”

    If their world worked like it does for the rest of us, their jobs would be outsourced.

    • Christian Noll :

      Steven,

      I could not have said it better myself. Thank you!

      It makes one wonder if the Vermont Journalism Trust is an honest organization. Our media needs to do a better job.

      Sheer arrogance, holds no place in our College’s and Universities.

      I should have stayed in France.

  8. Fred Jansen :

    Mr. Kreis, I’m sorry that your well-argued piece apparently had no effect on the above 5 commentators.

    Mr. Noll in particular seems to have a lot of time on his hands since he is responsible for 5 of the 9 gripes above. Yes, maybe he should have stayed in France. No wait, they don’t work there, either.

    My only quibble with your piece is the following:

    “No one has come forward with a shred of evidence to demonstrate a lack of such vigilance on the part of the legislators who help govern UVM.”

    I agree with you about the legislators. But there is one high-profile trustee who can be accused of not doing his diligence, but who, ironically, has blathered on the most and the loudest about the unfairness of this package. And that would be Gov. Shumlin. He is a trustee, but he didn’t attend the meeting where the package was discussed and voted on. Isn’t there an old saying about how you can’t complain about the election results if you didn’t vote? Our top politician had a vote and didn’t even show up at the polls. And now is complaining about the results. Gee, could that be because he knew what the meeting was going to be about and he didn’t WANT to have to vote.

    • Christian Noll :

      Mr. Jansen thank you,

      “Mr. Kreis, I’m sorry that your well-argued piece apparently had no effect on the above 5 commentators.”

      Would we have posted comments if it had “no effect?”

      “Mr. Noll in particular seems to have a lot of time on his hands since he is responsible for 5 of the 9 gripes above.”

      Perhaps if I were not so maliciously blacklisted by the above named institutions (which exist for the betterment of our lives) I WOULD have less time on my hands. It is ambiguously ironic and sad to say the least that higher educational institutions ruin lives and not improve them. Your math skills are stellar.

      “Yes maybe he should have stayed in France.”

      So we agree.

      “No wait, they don’t work there either.”

      I wasn’t sure if your remark was bigoted, truthful, or both. From day one of full time employment all French citizens are guaranteed 5 full weeks of paid vacation.
      Sounds awful doesn’t it? So I guess your remark is correct within a certain context. The French do work less than we do, if you’re employed that is.

  9. Doug Hoffer :

    Attempting to divert attention from the actions of the trustees by focusing on the Governor is clasic misdirection but it doesn’t wash.

    The previous posts are right on the money. The legislative members have lives and careers apart from their roles on the UVM board. But as was noted, that is irrelevant. Good people sometimes make bad decisions.

    I’m reminded of what happened after Fletcher Allen’s CEO was busted for lying about the expansion and the financing. The entire board was replaced.

    The UVM board of trustees no longer has the confidence of the people of this state. They should resign.

    • Christian Noll :

      Thank you Doug Hoffer,

      I cannot express the detriment and harm that has come to my career from UVM and Champlain College. I’ll spend the rest of my life writing about it.

  10. walter carpenter :

    “The UVM board of trustees no longer has the confidence of the people of this state. They should resign.”

    Or at the very least try to figure out a way that Vermonters who want to utilize this university that they are paying so lavishly for can do so without incurring thousands of dollars in debts as the ex-president gloms it for all he can get.

    • Christian Noll :

      They’ll send you to the continuing Ed department and try to get you to spend your money (or the banks money) on something that wont’ allow you to earn a degree.

      What good does that do if you’re trying to better yourself?

  11. fred jansen :

    “I’ll spend the rest of my life writing about it.”

    Yeah, apparently, all on this thread. That’s 7 posts by you so far.

    • Christian Noll :

      Actually I just counted my posts and I take back my remark about your math skills.

  12. NICOLE LEBLANC :

    There needs to be more transparencey and We need to reduce college cost by 40%. This is a perfect example of the Rich getting richer. and passing it on to the rest of us.
    We need to make our higher ed system more affordable to everyone.
    So that more young people will stay and live in VT!!!!!

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