College files motion to dismiss suit
By William Schpero, The Dartmouth Staff
Published on Monday, October 29, 2007
In filing its motion to dismiss the Association of Alumni lawsuit on Friday, the College recently attempted to counter the Association's assertion that the Board of Trustees is bound to having an equal number of alumni-elected and board-selected members. The motion also may make the Association's request for a preliminary injunction irrelevant by changing the date the board plans to add its eight new members.
The Association initially filed its suit on Oct. 3, seeking both a preliminary injunction that would stop the board from moving forward with its plans to add eight new trustees, along with a separate petition requesting a long-term judicial solution. The case was scheduled for a hearing just prior to the trustees' November meeting, when the board planned to announce its new members. In response to this legal action, the board decided on Oct. 11 to move the date at which it would announce the new board members to February.
By February, the case may have already been decided and the preliminary injunction barring the addition may no longer be needed.
"The decision to change the date for the election of charter trustees was based on the assessment that requiring the court to have to rule on a preliminary injunction motion the same day that the board was about to elect new trustees," Bob Donin, Dartmouth general counsel, said. "[This] would not have given the court adequate time to acquaint itself with the legal issues."
Some proponents of the suit cited the date change as an indication that the College is unsure of the merits of its case.
"It seems logical that if this was the slam dunk that they have been telling everybody about, I see no reason why they would have changed the date," Frank Gado '58, a member of the Association executive committee, said. Gado is one of the members of the executive committee who voted for the lawsuit.
Donin dismissed such claims, citing the College's motion to dismiss as proof that it believes its case is sound.
"The motion to dismiss demonstrates that the board's decision to change the date for election of trustees was in no way an indication that the College's case is not a strong one," Donin said.
The central issue the court must decide is whether the College's board is bound to the current tradition of having an equal number of alumni-elected and board-selected trustees, or alumni-elected representation at all. This stems from disagreement over whether an 1891 board resolution -- which at the time created parity between these two groups -- is legally binding.
The Association, in the original lawsuit filing, asserted that the resolution was passed as a compromise to boost alumni donations to the College in exchange for alumni seats on the board.
This is relevant to the motion to dismiss, where the College argues that the resolution does not meet the criteria for a legal agreement, because there is no definitive stipulation of what the alumni must provide in return for the College's actions. Legal contracts require that there be negotiated benefits for the parties involved. According to the Association's motion, the 1891 document promises that alumni will "raise funds" and "take a livelier interest in" College administration in exchange for representation on the board. The College says that such promises were "amorphous" and "do not constitute valid consideration."
"There was no such vagueness at the time," Gado said, adding that he believes there was a clear agreement that alumni would donate to the College in exchange for alumni representation on the board.
The College purports that in 1891 Dartmouth did not have the ability to "delegate its fiduciary responsibility to select Trustees" to alumni and that the Association, as an unincorporated organization, did not have the authority to enter into a legal agreement. As a result, the College believes the 1891 resolution does not constitute a contract.
"There is no question that there was a recognition that there were two parties at the time and that these two parties were negotiating and finally one party said, 'we will meet your conditions,'" Gado said in response. "Is that a contract? All of that is kind of murky, but it is for the courts to decide."
The legal situation is complicated by the possible introduction of a bill later this year by New Hampshire Rep. Maureen Mooney, R-Merrimack, that would allow the state to alter the College's charter. The text of the bill may be available as early as this week.