Divided Association of Alumni sues College

by William Schpero | 10/4/07 2:10am

Citing a 1995 New Hampshire court case as proof that recent governance changes should not be implemented, the executive committee of the Dartmouth's Association of Alumni filed its lawsuit against the College Wednesday morning in Grafton County District Court.

With the suit, members of the committee hope principally to bar the College from adding eight trustees selected by the board. But the suit could spell the end for the Association, some alumni leaders said.

"The majority of the executive committee has taken the extraordinary step of making the Association completely independent, although traditionally we have had a symbiotic relationship with the College," Bill Hutchinson '76, president of the Association, said.

Hutchinson voted against any legal action.

"The existence of the Association is in jeopardy because of the stance the Alumni Association has taken," he said.

In its suit, which includes a motion for preliminary injunction and a petition for injunctive and declarative relief, the Association seeks legal intervention on three specific issues: A declaration by the court that the Association has a right to elect one-half of the board's trustees, an injunction barring the College from seating the eight new trustees and an order that the College must seat an equal number of charter and alumni-elected trustees.

"I think it is unfortunate," Ed Haldeman '70, chairman of the Board of Trustees, said.

"I know there are people who philosophically don't agree with the board's decision, but to me it is pretty clear that the board had legal standing to take the action it did."

The lawsuit represents the latest fallout from the Board of Trustees' Sept. 8 resolution that added eight charter trustee seats. The resolution followed four trustee elections in which candidates elected by petition, rather than nomination by the Association, were successful in gaining a seat. These four trustees -- T.J. Rodgers '70, Peter Robinson '79, Todd Zywicki '88 and Stephen Smith '88 -- won on similar promises of change and were outspokenly critical of the College.

In addition, recent elections have been highly politicized, with top-tier candidates spending over $75,000 on their campaigns.

The central debate of the impending case concerns an 1891 board resolution that some believe requires the College to have an equal number of charter and alumni-elected trustees.

"Resolved, that the graduates of the College, the Thayer School ... of at least five years standing may nominate a suitable person for election to each of the five trusteeships next becoming vacant on the Board of Trustees of the College," the resolution states.

It does not mention parity with respect to the number of alumni-elected trustees and charter trustees, although the addition of five alumni-elected trustees at the time of the agreement gave the board as many alumni trustees as charter trustees. The 1891 creation of this balance, and its century-long perpetuation, has prompted some current alumni to contend that the College is bound to that balance. From a legal standpoint, at issue is whether the resolution calls for parity and whether the resolution is, in fact, a contractual agreement that the College must respect.

In answering this question, the Association bases its argument in part on the 1995 New Hampshire Superior Court case Tell v. Trustees of Dartmouth College. The case stems from a suit brought by William Tell '56 and several other alumni against the College after the board and the Association made changes to the governance system in 1990. The board and Association, at the time, agreed to allow alumni-elected trustees to be re-seated at the end of their term without another election and specified that the Association should nominate three alumni for the board.

The court ruled in favor of the College, but the Association in Wednesday's motion also contends that the 1995 court found that the College was bound by the 1891 agreement.

"The court thus found that the 1891 agreement existed; that a pledge of 'financial support' was part of its consideration; that the College 'until 1891, was entitled to select ... the successor of any Trustee'; that 'it was agreed that the person nominated by the alumni would be elected by the Board'; that the College 'must act to ... seat ... the alumni's nominees'; and that in 1990 the 'contract was thus modified by the parties and not breached,'" the Association's motion states.

The Board of Trustees in public statements has disputed any claims that the 1891 resolution should be interpreted as a legal contract, which would bind the College to parity and the previous process of trustee election.

"Importantly, the 1891 resolution was simply that " a resolution of the Board, and one of many that have been adopted over the years regarding governance," the governance committee, a sub-committee of the Board, said in its report on the issue.

"Like other resolutions, the 1891 resolution is not permanently binding on the Board. Accordingly, the Board is free to amend, supersede, or rescind the 1891 resolution by subsequent Board action in the exercise of its fiduciary duty, just as the Board modified the 1876 plan in 1891."

Richard Pepperman '87, a partner at the New York-based firm Sullivan and Cromwell and Dartmouth's lead outside counsel on the case, concurred. The College will be filing a response and a motion to dismiss the Association's petition within the next few weeks, he said.

"They talk about the 1891 resolution being an agreement," Pepperman said. "The fact that there is an agreement with a lowercase 'a' does not mean there is a legal binding forever into the future. Our argument is that there is no contract. [The association's] claim is for breach of contract -- there can be no breach of contract absent a contract."

Charles Davant '98, one of three lawyers at Washington-based Williams and Connolly representing the association, would not comment on the legalities of the case.

Fallout from the suit has been swift, with alumni leaders applauding or condemning the Association's decision.

"I feel that the over 8,300 alumni who voted for me are horrified by the idea that the Alumni Association is suing the College," said David Spalding '76, vice-president for alumni relations at Dartmouth and a member of the executive committee.

"I think that the Association is continuing to make policy arguments; they are not making legal arguments, and those policy arguments are not going to be decided by the courts."

Frank Gado '58, also a member of the executive committee and the committee's liaison with its legal counsel, said he believes the suit, which was ratified by a 6-3 vote of the Association executive committee, is nonetheless necessary.

"Honestly, everybody on our side wanted to avoid a lawsuit," he told The Dartmouth Tuesday. "We wanted to avoid going to court, but we wanted respect for alumni rights."

College President James Wright, while unsure of the future effects of the suit, said he is confident that the board's decision was necessary and proper.

"I think the board made not just a defensible decision, but the right decision, and I think it is time to move forward. It is unfortunate that some group from the Association determined this would be an appropriate move to make," he said.

"I don't think this is in the best interest of students here, but I think we can continue to try to buffer students from this."

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