Michigan State University trustees who violate the board’s newly adopted ethics code can lose privileges ranging from complimentary football tickets to discretionary travel budgets, sanctions that some governance experts say are unusual and that First Amendment scholars say raise unresolved constitutional questions.
Debate over the policy intensified after MSU President Kevin Guskiewicz announced at the end of May that he was leaving for Clemson University, citing board dysfunction among the reasons for his departure. Days later, Trustees Mike Balow and Rema Vassar, who refused to sign the updated code, held a news conference calling it unconstitutional.
Balow and Vassar specifically took issue with the phrase “duty of loyalty” in a new standard that says after board action, “we will act consistent with our fiduciary duties, including the duty of loyalty — we will embrace the principle of loyal opposition and raise issues of concerns in appropriate settings, in advance of board action, and protective of the integrity of the board’s deliberations and processes.”
“I took my constitutional oath when the people of Michigan elected me,” Vassar said at a news conference that was held earlier this month. “I took it seriously. This oath is what I serve. No additional loyalty pledge, no matter how it’s labeled, is constitutionally permissible.”
Vassar pointed to the oath for public officers in Michigan’s Constitution, which says that no other oath will be required as a qualification for any office.
The board later voted to censure both trustees.
The dispute has raised broader questions about transparency, trustee independence and whether a public university can impose consequences on elected board members who publicly dissent from board decisions.
“We have not seen anything as ever reaching as these revisions are,” Nick Down, associate director of external affairs for the American Council of Trustees and Alumni, a nonprofit that says it works with trustees to ensure that they serve as guardians of both the financial and academic health of their institutions, said about MSU’s updated code.
What MSU’s ethics code allows — and why critics object
Among the provisions that concern ACTA are sanctions that could include the immediate revocation of complimentary tickets to home and away athletic events, suspension of discretionary travel budgets and restrictions on attending university events in a trustee’s representative capacity.
“Some of the consequences or penalties seemed crazy to me,” Down said.
The MSU Board of Trustees amended its code consistent with best practices across governing boards and in line with findings and recommendations from the Association of Governing Boards of Universities and Colleges, a national organization that works with higher education governing boards, Amber McCann, a spokesperson for MSU, said in an emailed comment.
“These codes of conduct are not about limiting speech or restricting members of governing boards from raising concerns, providing oversight or questioning decisions,” McCann said.
How MSU’s policy compares with other universities
The Association of Governing Boards of Universities and Colleges declined to comment specifically on MSU’s policy but said board ethics and conduct policies are common in higher education.
“Many college and university governing boards maintain ethics or conduct policies that address confidentiality, fiduciary responsibilities and expectations for board members following official board actions,” the statement said. “While approaches vary among institutions, effective governance generally depends on balancing open dialogue and transparency with the board’s responsibility to deliberate constructively, protect confidential matters and govern in the best interests of the institution.”
For example, Wayne State University has a conduct policy for its board.
The university was required to adopt a code of conduct in 2020 by its accrediting agency, the Higher Learning Commission, following an investigation that found a board member was interfering with the day-to-day running of the school.
The code of conduct says board members will “avoid any derogatory public comments in criticism of other board members, the president or the staff.” The policy also outlines a process for investigating alleged violations and allows sanctions that can include a letter of reprimand or censure.
McCann pointed to Wayne State’s code as a policy with standards similar to MSU’s updated policy. She said the board did its due diligence in seeking a “thorough legal review” of its updated code of ethics.
Why Michigan’s elected trustee system matters
At the center of the debate is Michigan’s unusual system of university governance. Michigan is one of only a handful of states where voters elect trustees to oversee MSU, the University of Michigan and Wayne State.
That distinction is important when evaluating the policy’s potential impact on free speech, Mary-Rose Papandrea, a First Amendment professor at George Washington University, said.
She said when the public selects board members, the public then has a right to know what they think. That’s true with an appointed board, too, but “those concerns are heightened when you’re asking the public to vote.”
“If [the public doesn’t] know what the various board members think, and instead there’s an effort by the board of trustees to sugarcoat it to make it seem like everyone gets along and no one disagrees, that is a disservice to the public and the public’s ability to engage in meaningful, informed elections,” she said.
Papandrea pointed to a 2022 U.S. Supreme Court decision that relates directly to the MSU board situation.
The unresolved First Amendment question
The court ruled unanimously against a Houston Community College System board member David Wilson, who argued the board had retaliated against him for criticizing fellow board members and filing lawsuits against the institution, which he said violated his right to free speech under the First Amendment.
Wilson faced similar ramifications as what’s in MSU’s updated code, such as excluding Wilson from the reimbursement for travel expenses, but Papandrea said the court went out of its way to avoid resolving that issue and divided the censure from these other penalties.
That distinction is significant because the MSU policy goes beyond censure.
She said the reason the court cited for doing that is that there is strong historical evidence that “these kinds of political bodies, including U.S. Congress all the way down, have exercised this power of censure.”
However, she said the court did not really know how to answer the question of these other actions because there isn’t as clear historic tradition.
She said she would expect that MSU’s board would argue that there is no entitlement to tickets to athletic events or reimbursement for non-board-required activities.
“That policy is written very carefully to thread a needle between things that are part of the board duties and things that are not,” Papandrea said. “This is an unresolved legal issue that Michigan State is relying on as an argument that there is no entitlement to these things.”
MSU Board of Trustees Code of Ethics and Conduct (PDF)
The Lansing State Journal contributed with prior reporting.
Contact Adrienne Roberts: amroberts@freepress.com
This article originally appeared on Detroit Free Press: MSU trustee ethics code sparks debate over sanctions, speech limits
Reporting by Adrienne Roberts, Detroit Free Press / Detroit Free Press
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By Adrienne Roberts, Detroit Free Press | USA TODAY Network
