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Stuck in the Middle

Stuck in the Middle
August 31, 2010

Your boss's bosses, members of the board, are concerned about some possible misdeeds, and ask you to tell them what you know. You're reluctant to dish on your direct superior -- you get along fine, and think he's doing a solid job -- but his bosses sign your paychecks, and your employment contract is ultimately with them.

They reassure you that they'll protect you from any repercussions. Warily, you tell them what you know. But because you want to be forthright with your direct boss, you tell him that you've been contacted by the board, and describe what you've discussed.

Then, your boss fires you.

That, in a nutshell, is what Wanda Hill and Robin Bowen (and several people close to the two former senior administrators at Kansas' Washburn University) say happened to them this spring. The two women were vice presidents for administration and for academic affairs, respectively, at Washburn, and President Jerry B. Farley announced their departures in April, saying only that it was a "personnel issue."

As Hill and Bowen describe it, though, in the lawsuit they filed this summer against Farley, Washburn, and its Board of Regents, Farley dismissed the municipal university's second- and third-ranking administrators because he considered them disloyal for having shared information with board members about issues related to controversial spending and other topics. Farley declined, through a spokeswoman, to discuss the situation at all, but he told The Topeka Capital-Journal that he disputed the allegations.

As is generally the case with newly filed lawsuits, many of the plaintiffs’ allegations can’t and won’t be proven until a trial occurs (if then).

But enough of the facts can be verified with parties close to the situation to know that the Washburn case raises serious issues about university governance, and about relationships among trustees, presidents and other administrators -- issues that have implications for campus leaders everywhere.

The bottom line is that board members appear to have put Hill, Bowen and other senior officials in an untenable position by conducting an informal, back-channel review of Farley based largely on information gleaned from those who worked for the president, instead of either confronting the president directly or engaging an outside investigator or mediator to take charge of the situation.

That decision -- and Farley’s unchecked response to it -- cost Hill and Bowen their jobs, perhaps seriously damaging their careers.

Jerry B. Farley

“These women appear to have been caught between a rock and a hard place, and to have paid a big price,” says Raymond D. Cotton, a lawyer and vice president of higher education for ML Strategies, a Washington consultancy. “It looks like a very, very good example of why a board should not use internal people to investigate the president, because it could have terrible repercussions for them and their careers.”

Back-Channel Review

Jerry Farley has had a long, seemingly successful 13-year run as president of Washburn, and for much of that time, Wanda Hill has been by his side, serving as vice president for administration and treasurer, on a series of one-year contracts, since 1999. Bowen joined the Washburn leadership team more recently, in 2007.

By all accounts, the relationships among the administrators had been good. As alleged in the complaint, and confirmed by officials at Washburn, Farley did not annually review Hill and Bowen, but they received merit raises each year that Washburn offered them, and Farley told Hill in a 2008 e-mail that her nine years of employment had "flown by and been a delight.”

Exactly what changed, and when, is not clear, and given how few people have direct knowledge of the situation -- and how universally they declined to talk with Inside Higher Ed about the case -- the answer may not be evident anytime soon.

But the lawsuit asserts that in 2008, several board members, including the then-chairman, Bob Storey, began believing that they were not getting accurate information from Farley about Washburn's operations, and that some regents started losing confidence in his presidency.

Whatever prompted their concerns, a small group of regents -- including Storey, Ben Blair, who succeeded Storey as chair, and Maggie Warren -- began months of questioning in which individual regents met with individual senior administrators, asking them for information about the university's financial situation and some of its policies.

The suspicious regents focused their attention on two major issues, according to the lawsuit and independent confirmation by campus administrators. One -- described sexily as being about "phantom students" -- related to concerns about whether Washburn was appropriately reporting when students had dropped classes, a decision that had implications both for federal financial aid and for enrollment calculations.

The other involved the acknowledged overspending (by $500,000) of institutional scholarship funds in the 2008 fiscal year and questions about whether the over-awarding of financial aid had occurred in previous years.

Because they were concerned they were not getting accurate reports from Farley, who, like most presidents, is the chief source of information for board members, the three regents -- operating on their own, rather than as part of any formal board inquiry -- directly approached Hill, Bowen and others.

"These Board members advised Plaintiffs that the Board of Regents was ultimately responsible for the affairs of the University and assured Plaintiffs that cooperating with the Board by truthfully responding to their inquiries would not result in their respective jobs being terminated, and further that these discussions with the Board members would assure them their jobs would be 'safe,' ” the two administrators state in their lawsuit. "On multiple occasions, Plaintiffs were assured that their jobs would be protected by at least three Board members."

Because they "were convinced they were serving the best interests of Washburn University, and complying with the terms of their employment and University policy," Hill and Bowen "openly and honestly continued to answer questions from the members of the Board of Regents," their complaint states. Some of that information confirmed that problems had arisen in the university's financial affairs.

David Monical, a former director of governmental and university relations at Washburn who left within weeks of Bowen and Hill, confirmed to Inside Higher Ed that Storey and Blair had approached him with similar concerns. "I had meetings of my own with the board chairs, and was asked, as far as I know, pretty much the same questions," he said in an interview. "In each instance, I was urged to tell the truth, promised that there would be no retaliation."

Farley was aware of the regents' concerns, and at a meeting of senior aides in June 2009, he asked his subordinates to tell him when they were approached and what was discussed -- which Hill and Bowen did, according to the lawsuit and to sources familiar with the situation.

By the early part of 2010, the lawsuit alleges, the small cadre of regents stepped up their criticism of Farley, at one point telling Hill and Bowen that they planned to ask the president to resign at a spring meeting, and that they were confident they had enough votes on the nine-member board to fire him if he declined.

In March, according to the lawsuit, Blair and Warren approached JuliAnn Mazachek, the head of the university's foundation, and asked her what impact firing Farley would have on the institution's fund-raising operations. Exactly what transpired at that meeting is unclear -- Mazachek did not respond to requests for comment, but confirmed to the Capital-Journal that the meeting took place, and that "different options were discussed" -- but sources familiar with the situation said that some regents became concerned that dumping the president would hurt fund-raising efforts.

What is clear is that over a three-day period at the end of March and beginning of April, Farley met individually with Bowen and Hill and dismissed them both. The lawsuit alleges that the president told a meeting of deans that the two vice presidents had been let go because of "loyalty issues," but his public statements, and those of other institutional officials in the days that followed, referred to their departures as "resignations" and as mutual decisions.

According to the lawsuit, one of the regents who had led the subterranean campaign to oust Farley "called both plaintiffs and apologized for their terminations" in early April. "This board member stated he feared the terminations were a result of Defendant Farley discovering that plaintiffs had met with board members and openly discussed the issues involving ... Farley."

None of the regents involved responded to a reporter's repeated requests for comment about their review of Farley or their role in the departures of Hill and Bowen.

Implications Beyond Washburn

The former administrators' lawsuit accuses Farley of depriving them of due process by dismissing them and charges the regents with breaching contracts that allow their dismissal only "for cause" and with violating common law whistleblower protections.

Legal issues aside, though, the situation at Washburn -- variations of which are common -- has significant implications for leaders on many campuses, given the typical administrative and governance structures in higher education.

It is absolutely proper -- required, even -- for board members to be concerned about financial and other management practices at their institutions, said Cotton, the higher ed management consultant. "They are called trustees because they have a trusteeship with the institution, and if they think assets are somehow being mismanaged, it is incumbent on them to find out if this is true or not," he said.

On most if not all campuses, though, presidents are the primary source of information for board members; a statement on "Board Responsibility for Institutional Governance" this year from the Association of Governing Boards of Universities and Colleges states that "[a]lthough the board is an independent policy-making body, it routinely relies upon the president as its major window on the institution; the board should expect candor, frequent communication, and sufficient information from the administration and its leaders. In turn, the board should support the president, while maintaining a healthy degree of independence, and ensure that the voices of other campus constituents are heard."

So if, as Cotton said, board members like Washburn's were "foursquare within the obligations of their office by talking to these high-level vice presidents" about potential wrongdoing within the institution, what happens if board members become concerned that the wrongdoing might involve the chief executive him- or herself?

The preferable option with a well-functioning board, said Richard Novak, senior vice president for programs and research at the governing boards' association, is for a board's chairman to work directly through the president, asking the chief executive directly for the necessary information and then, if the board is not satisfied, telling the president that trustees feel the need to go to staff members for more.

Ideally, Novak and Cotton agree, it is best for boards to create a special process -- perhaps staffed by people outside the institution -- if they grow concerned about issues involving the president.

"It's hard to say no to a board member, and you really put a staff person -- or in some cases, a clerk in an admissions office -- in a real awkward situation" when trustees come directly to them, said Novak.

"The last place you as an employee want to be is between the president and the board, because who is the boss? The president who can hire or fire you, or the board who is the ultimate legal authority?" said Cotton.

Monical, the former government relations officer at Washburn, said that an employee who is put in that situation and told that he or she will be protected, could, in theory, "say 'Give it to me in writing, or let me get counsel,' but as a practical matter, that’s really not very likely."

Instead, boards with concerns about their presidents should find someone with some independence to ask the hard questions of employees, said Cotton.

The regents at Washburn "went beyond the water's edge, went right into the pond," he said. "They put these people at risk, and now they've been fired."

 

 

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