Earlier this summer, the University of Virginia (UVA) treated the nation to a display of colossal boneheadedness as its governing body, the Board of Visitors, ignored state law, its own rules, university tradition and common sense to fire the school’s popular president, thereby inspiring a revolt of students, faculty and alumni, national media attention and a gubernatorial threat to fire every single board member if they didn’t clean up the mess they created. With their jobs on the line and amid a toxic atmosphere on campus, the board members quickly reversed themselves with a unanimous vote to reinstate the president.
What!? How is it that the board could decide on June 8 that the president was so incompetent that she had to be fired immediately, only to conclude 18 days later by a unanimous vote that she was the perfect choice to lead the university into the future?
The answer is that the board never really “decided” to fire the president in the first place—at least legally. According to news reports, the board never met or even took a vote on the president’s ouster. Instead, the board’s rector merely polled the 17 members over a series of months. The rector then asked the president to resign, saying in effect “I have the votes.” But she really didn’t. Thus was proved the wisdom of the Code of Virginia.
The Code of Virginia defines the Board of Visitors as a corporation subject to state law, which holds that corporate actions (such as hiring or firing the chief executive) must be made in meetings of the board. However, as in every other state, the board can make decisions without a meeting, but it must do so unanimously and with every board member’s signature on a piece of paper. The requirement is a blunt corporate governance tool to make sure that major decisions are discussed in person by living, breathing board members. It acknowledges that if everyone is clearly in agreement on a point and is willing to put it in writing, then sure, you can skip the meeting. Otherwise, an in-person discussion is required.
The board’s rector subsequently admitted that she did the right thing the wrong way. Had she followed state law, she may or may not have succeeded in ousting the president, but she certainly would not have subjected the historically iconic UVA to national censure. First, she would have held a meeting to discuss firing the president. Second, the president would have attended the meeting, as required by the law (but would have been excused from the meeting when her job was up for discussion). Third, if two-thirds of the board agreed, the president would be fired or retained. Fourth, the minutes would have been open to public inspection.
In the meeting itself, the board members would have talked with one another, not just the rector. They would have heard opposing views and rationales—not just the view of the rector. They would have been able to sense where each was coming from, whether there might be hidden motives among themselves and whether something fishy was going on. A recorded vote would have forced each member to take a stand and show the hands of the others.
But the rector ignored the law. As a result, within a few days of the president’s resignation, three board members publicly announced they had no knowledge of the plan to fire the president until the rector told them the votes were in hand to do so. An internationally renowned faculty member announced his resignation in disgust. The designated interim president refused to serve. The American Association of University Professors launched an investigation of possible governance flaws at UVA. There were calls for the rector’s dismissal by the governor.
All of it—and I mean, all of it—could have been avoided had the board made its decision legally.
Bruce D. Collins is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. Email him at firstname.lastname@example.org.