Atty. Ross Garber’s Letter to WSU Board of Trustees Chair John Flynn
Mr. John F. Flynn III
Chair, Westfield State University Board of Trustees
c/o Mr. Thomas Frongillo, Esq.
Fish & Richardson
One Marina Park Drive
Boston, MA 02210
Dear Chairman Flynn:
I understand that you will be calling a special meeting of the Board of Trustees for October 16, 2013 to address several issues related to your review of certain expenditures by the University and the WSU Foundation (the “Inquiry”), which began in August 2012. I respectfully suggest that there are significant University governance issues that have been identified and must be addressed. These governance issues have been raised with you multiple times during the course of the past several months, including by other members of the Board of Trustees at the Board’s August meeting. No action has yet been taken with respect to these issues. Absent appropriate consideration and action on these issues, any Board actions on the subject of your expenditure review will substantially exacerbate the University’s legal exposure. Such actions could also subject individual Board members to additional liability, a particularly troubling prospect as I am informed that the Board’s directors and officers liability insurance policy was allowed to lapse. Perhaps more significant, however, consideration of the identified governance issues would comport with good governance practices and notions of fundamental fairness.
In light of the above, and Pursuant to Article IV, Section 2 of the University by-laws, President Dobelle, directs that a meeting of the Board of Trustees of Westfield State University be held on October 16 at 2:00 p.m. to address the following issues:
1. Whether the University’s by-laws or any other principles of University governance were violated by Chairman Flynn, Vice Chair Scheibel, Trustee Queenin and/or others in any of the following respects:
a. whether the Inquiry was properly authorized by the Board of Trustees;
b. whether the expansion of the scope of the Inquiry was properly authorized by the Board of Trustees;
c. whether the expansion of the scope of the Inquiry to include matters related to the WSU Foundation (as opposed to WSU itself) was properly authorized by the Board of Trustees;
d. whether the Board of Trustees authorized the retention of O’Connor & Drew (O&D) for a forensic accounting inquiry;
e. whether the O&D retention was proper despite the fact that there was no review of O&D’s qualifications to perform such an inquiry and no formal or informal bidding process;
f. whether the Board of Trustees authorized and budgeted the expenditure of funds to pay O&D for the Inquiry;
g. whether the Board of Trustees authorized and budgeted the expenditure of funds for the O&D Foundation review;
h. whether the Board of Trustees designated Chairman Flynn or any other Board member(s) to supervise and direct O&D’s work;
i. whether Chairman Flynn improperly failed to disclose and/or obtain requisite approval for his activities from other Board members;
j. whether Thomas Foley, a former high-ranking Massachusetts State Police official, participated in the Inquiry or in any meetings related thereto, and whether such participation was proper;
k. whether Chairman Flynn inappropriately withheld drafts of reports prepared by O&D from Board members;
l. whether University counsel Rubin & Rudman kept the Board adequately informed of the Flynn/O&D review and provided competent legal counsel;
m. whether any trustee informed the Inspector General that the full Board and/or the full Foundation Board approved the engagement and/or scope of work of O&D and, if so, whether such information was conveyed knowing of its falsity; and
n. whether former chair and current trustee Kevin Queenin informed current chair Jack Flynn and/or other current Board members of the substance of the memorandum prepared by Rubin & Rudman in November 2011 concerning President Dobelle’s travel expenses and credit card usage.
2. Whether Chairman Flynn and other Board members violated the State’s open meeting laws by having un-posted and/or non-public meetings regarding the above-referenced activities, including any meetings that took place in person, by telephone, by electronic mail, by text message or by any other means of communication.
3. The nature and extent of the University’s potential legal liability related to the activities referenced herein.
4. The nature and extent of the potential legal liability of individual Board members related to the activities reference herein, including whether any Trustees violated their fiduciary duties.
5. The status of the September 12, 2013 request for information from Charles Desmond, Chair of the Board of Higher Education to Chair Flynn.
6. Whether attorney James Cox, Chairman Flynn, Vice-Chair Scheibel and/or Trustee Queenin misled senior state administration officials concerning their knowledge of and/or participation in the transfer of funds from the University to the WSU Foundation. And, if so, whether there is any potential legal liability.
7. Whether a Special Committee of non-conflicted trustees should be established to address the above issues and other issues related to the review of expenditures, including those identified in the proposed agenda submitted by Trustee Queenin.
8. Whether trustees and officers of the University are indemnified for expenses related to the Flynn/O&D and Inspector General inquiries, including advancement of attorneys’ fees? In addition, whether the University has applicable directors and officers insurance as required by the University by-laws? (Please see attached correspondence from Ross Garber to Thomas Frongillo.)
9. Whether activities related to the Flynn/O&D Inquiry violated President Dobelle’s legal rights as alleged in the attached letter to Thomas Frongillo and, if so, what compensation will be provided to President Dobelle.
Very truly yours,
Ross H. Garber