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?