Professor Rice memo on his recollection of recent events

Memorandum
To: Ave Maria School of Law (amsl) students, faculty, staff, alumni and board of governors
From: Charles E. Rice, Visiting professor of law
Subject: Board of Governors resolution, 28 sep. 05
Date: 10/31/2005


In light of the Dean’s attached memo of October 25th, it may be useful for me to set forth my own recollection of the events. The descriptions in this memo are based in major part on notes I took during meetings and on summaries I wrote for my own file shortly after the meetings and other events described. I hope this memo will contribute to a better understanding of the events and issues involved. Permit me to emphasize at the outset that this memo is not written as a personal criticism of anyone. Rather, its premise is that all the persons involved are acting in what they see as the best interests of AMSL. Nothing in this memo should be understood to imply anything to the contrary.

Let me suggest, at the outset of the memo, that the most important, and the most effective, thing we can do for AMSL is to pray for all the members of its community and to ask Mary, its patroness, for the grace that AMSL will remain true to its mission.

Until my case arose, no member of the Board of Governors, who indicated his desire to be elected to a new term, had ever not been reelected, including members who had never attended a meeting. The practice, in effect, was, and is, to retain a member on the Board unless he indicates his desire not to be retained. I desire to retain my position on the Board and will not voluntarily abandon that position.

At the March 9, 2005, meeting of the Board, as the official and approved minutes state, “There was lengthy discussion regarding CR’s [my] term limit.” At that meeting, the Chairman, Thomas S. Monaghan, stated twice that I would be leaving the Board this year when my term expired.

On August 22, 2005, to avoid any misunderstanding as to my desire to remain on the Board, I sent to the Chairman a letter which said, in full: “Dear Tom: Please be advised that I submit my name for nomination and election to a new term on the Board of Governors of AMSL when my current term expires. Thank you for your cooperation. With appreciation and best wishes, Sincerely, Charlie.” The Chairman then convened a meeting on September 7th of the nominating committee, which consists of the Chairman, Judge Clark, Dean Dobranski, Professor George and myself. This was the first meeting ever of the nominating committee in the history of the Board, although a serial telephone poll of the members was taken on one previous occasion. At the Sept. 7th meeting, held by conference call, Dean Dobranski served as chairman of the meeting. The renominations of Cardinal Egan, Congressman Hyde, Judge Buckley and Judge Clark were quickly approved in about two-minutes or less for each. My renomination was reserved for last. At that time I stated my desire to remain in my position on the Board. I requested an up-or-down roll call vote by the Board on my reelection and said I would accept the outcome of such a vote with equanimity as the decision of the Board. I excused myself from the discussion of my renomination and asked to be informed of the results. The Dean said he would so inform me. Four or five days later I was told by the Dean’s office that Professor George had had to leave the meeting and so no decision had been reached on my renomination. As far as I know, however, if three members were still in the meeting there would have been a quorum, even without Professor George.

A few days later the nominating committee met again by conference call. I did not attend since the subject was my nomination. The committee, with Judge Clark abstaining, voted to renominate all the pending Governors, including myself, but voted to defer those nominations and to submit first to the Board Judge Clark’s proposal for term limits.

A third meeting of the nominating committee was scheduled for Sept. 22nd to select replacement nominees to be submitted to the Board pursuant to the Clark proposal. Dean Dobranski, in his office, informed me of the Clark proposal and the committee’s approval of it in preference to the renominations the committee had approved. The Dean invited me to attend the Sept. 22nd meeting and to suggest replacement candidates for the members, including myself, who would be removed pursuant to the Clark proposal. I explained to him that I would not voluntarily abandon my position on the Board. The Dean, whose demeanor was serious, asked, “Why are you laughing?” I said, “I’m flattered. To get rid of me you’re willing to take out a Congressman, a Federal Judge and a National Security Advisor.” The Dean replied, “I told them you would react that way.”

On Sept. 22nd, the nominating committee met by conference call, with Mr. Monaghan absent because of travel. The committee unanimously renominated all the pending candidates but voted to defer those renominations in favor of the Clark term limit proposal. I voted for those renominations, although I regarded the renomination of all the candidates as a fig-leaf gesture since those nominations, with the exception of Cardinal Egan who had served only one term and would not be removed under the Clark proposal, would probably never be presented by the committee to the Board. As it turned out, with the exception of Cardinal Egan, they never were presented to the Board. At the Sept. 22nd meeting, I voted against the Clark proposal. At that meeting, I repeated my request for an up-or-down roll call vote by the Board on my reelection since I was the only two-term member of the Board who was unwilling to leave voluntarily. At the Sept. 22nd meeting, the committee also approved replacement nominees for the members who would be removed if the Bylaws were amended pursuant to the Clark proposal. I abstained from that vote.

At the Board meeting on Sept. 28th, I was present at the beginning of the meeting. Incidentally, the Dean’s memo of October 25th discussed the proceedings of the Board meeting of Sept. 28th. I therefore have a right to recount my recollection of that meeting as necessary to present my removal in accurate context. Moreover, the involuntary removal of me from the Board is a public act which will be confirmed as public in the next publication of the list of Board members with my name deleted. I have an obligation to myself and to my family, as well as to AMSL, to state the facts of that removal as needed to prevent any misapprehensions of those facts. I told the Board I reserved the right to state those facts.

When the term limit proposal was opened for discussion at the Sept. 28th meeting, I said I opposed it and said my comments were not offered in any hostile or unfriendly spirit. I restated my request for an up-or-down roll call vote of the Board on my reelection. I then excused myself from the meeting because, as I stated, I was the only Governor to be involuntarily removed from the Board pursuant to the proposal, and the discussion of the proposal would be more free and uninhibited if I were not present. No one stated any objection to my recusal or asked me to stay. I believe I was ethically obliged to recuse myself from that discussion.

Later that day, as I was leaving my office to teach my 1:30 pm class, the Dean appeared at my office and said the Board was ready to vote and wanted me to read their proposal, comment on it and vote. I returned to the meeting and read the proposal, which was a “sense of the Board” resolution. I said that I opposed the proposal because I would not voluntarily abandon my position on the Board. I repeated my request for an up-or-down roll call vote on my reelection.

The term limit proposal, incidentally, does not apply to the Dean and the Chairman. Their terms would not be limited because, under Section II (2) of the Bylaws, they are members of the Board ex officio as Dean and as Chairman of the Ave Maria Foundation.

After the 12-2 vote approving the resolution supporting the term limit, the Dean asked that the Board say nothing about the vote until after the school issued its own press release on the vote. A couple of members voiced objections and the Dean did not pursue his request. I joined in Judge Ryan’s request that the press release note our negative votes.

I am still in my position on the Board because the Bylaws have not yet been amended to impose the term limit. As my attached memo of October 20th states, once I am removed from the Board, I will be a non-voting Life Governor, pursuant to Section II (5) of the Bylaws, unless, of course, some interpretation or amendment is advanced and adopted to change that result.

As background, it may be helpful to note that, as a Board member, I have disagreed, in writing and in spoken comments, with the Chairman and the Dean on several matters since the projected move to Florida surfaced. I have expressed the view that the move to Florida would be contrary to the best interests of AMSL, including a potentially adverse impact on AMSL’s Catholic character. In my view, the continuing speculation as to a move to Florida has significantly destabilized the AMSL community. The decisive issue, however, is not Florida but AMSL’s mode of governance. On several occasions I have raised the question of whether there is a tendency for AMSL to be governed, in effect, as a sole proprietorship, with the interests of AMSL and its community potentially subordinated to another agenda, in which case the Board could be reduced to a merely decorative role inconsistent with its fiduciary duty to AMSL and its community. The existence of these and other disagreements I have had, and still have, with the Chairman and the Dean could be relevant to any conjectures as to possible reasons for my removal from the Board. A discussion of the merits of those disagreements, however, would take this memo beyond its proper scope.

I emphasize that any criticisms in this memo are of policies or practices and not of persons. In my view, the persons involved are acting in what they see as the best interests of AMSL. I do not challenge or characterize anyone else’s recollection or understanding of the events. I offer this memo not as a confrontation but merely to state my recollection in substantial reliance on my contemporaneous notes. The reader of this memo will have to draw his or her own conclusions. I must confess, however, to one disappointment: If they were going to create a new policy just for me, the least they could have done was name it after me.
I apologize for the length of this memo but I hope it will be useful. Permit me, also, to acknowledge the contributions of Dean Falvey and Professor Safranek to a constructive understanding of these matters. I am grateful to them for their daily example of integrity and prudent, charitable judgment oriented toward the best interests of all concerned. They exemplify in the highest degree the professionalism and living faith that characterize the faculty of AMSL.

Thank you for your consideration of these comments.