Four Wayne State board members sue the other four

In a move rarely seen in higher education, half of the Wayne State University governing board sued the other half Thursday as tensions heightened between the two factions.

"As part of a pattern of undemocratic, questionable and nontransparent behavior, actions were taken that could impact Wayne State University, our students, faculty, staff, alumni, and donors as well as our sister public institutions," WSU Governors Sandra Hughes O'Brien, Michael Busuito, Anil Kumar and Dana Thompson said in a joint statement.

"Today, in our continuing efforts to protect WSU and our community, we’ve asked the courts to stop the implementation of the items purportedly approved at a meeting where there was no quorum of the elected, voting members of the governing board."

But WSU Board Chair Kim Trent — who was among the board members named in a lawsuit filed in Ingham County Circuit Court that alleges violations of the state's Open Meetings Act — said the move was, "very unfortunate."

"We thought it was important to do the people's work and that's what we did," Trent said.

The battle between the two sides has been playing out for months as the faction that filed the lawsuit  derailed talks to expand a partnership between Henry Ford Health System and the university medical school.

The lawsuit comes after the latest battle which occurred last Friday when four of the eight-member WSU Board of Governors met to set tuition, vote on a real estate lease and other issues. The other four members were absent.

At the time, the university's general counsel, Louis Lessem, ruled that WSU President M. Roy Wilson could act as an ex-officio member so the board could conduct business.

Less than a week later, Hughes O'Brien, Busuito, Kumar and Thompson filed the lawsuit, which names Wilson, Trent and Governors Bryan Barnhill, Mark Gaffney and Marilyn Kelly as defendants.

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Their concern: Thirty-six hours before the board meeting, Wilson released a revised agenda that included a "hastily added, last minute item of enormous importance: an item regarding the long-term sublease and possible purchase of the building located at 400 Mack Avenue in Detroit, Michigan," according to the suit.

The board considered the potential purchase of 400 Mack for Wayne State's pediatricians to have offices and a place to practice during a closed executive committee meeting April 5, according to the complaint.

During that meeting, four members of the board rejected the $14 million purchase "because the Plaintiffs felt that the proposed purchase price was too high, and the Board had not been provided with any market analysis or comparison data," the suit said.

"Defendants favored spending millions of dollars on that property, even without objective market data, but were prevented from proceeding by Plaintiffs' insistence on fiscal prudence."

Following the rejection of the purchase, a proposal was made for the University Physician Group, a separate entity that was also looking for space, to lease the building and sublease a portion to the building to Wayne State to house the university's pediatricians.

Kumar let the board know that he would be unable to attend the June 21 meeting because of a family vacation, according to the suit, which says, "upon information and belief the ... defendants and Wilson devised a clever plan: they hastily arranged to add, at the last minute, a sublease of 400 Mack Avenue to the executive committee agenda for June 21, 2019."

"The proposed sublease of 400 Mack Avenue was effectively a very expensive long term lease with a purchase option an option that had been rejected by the Board due to Plaintiffs' opposition," the lawsuit said.

"Without Governor Kumar's opposition to a deal with regard to 400 Mack Avenue. the ... defendants, with quorum, could outvote the Plaintiffs, 4 to 3," the lawsuit continued. "As such, and in order to fulfill their duties to WSU and the citizens of this state, Governors Busuito, O'Brien, and Thompson had no choice but to boycott the meeting to avoid creating quorum with Governor Kumar absent."

At the meeting, the four board members in attendance voted to pass the deal.

"Plaintiffs subsequently learned that the ... defendants had planned this devious strategy in advance, enlisting WSU's general counsel to provide them with an advance legal opinion blessing their proposed scheme," the suit said.

The complaint seeks to have the vote approving the real estate deal voided, as well as a vote taken Friday to raise tuition by 3.2%.

The four board members who filed the lawsuit could not be reached Thursday for comment.

Their attorneys, Jon Steiger and H. William Burdett, Jr., also were unavailable.

Trent disputed the suit's characterization of the events leading up to and including the June 21 board meeting.

"Four of us showed up to do our job last Friday, and, frankly, four of us did not," Trent said.

She said that this meeting was planned two years ago and she and other board members have a responsibility to show up and have a robust discussion even when their views may not prevail.  

"It never occurs to me to not show up," Trent said. "We were elected to represent people at board meetings."

She added that the board tried to postpone the meeting until after Kumar returned from vacation at the end of June but it was not possible because other members couldn't make a meeting during the week of July 4. 

"We are in a very strong legal position to have done what we did, to vote and to use President Wilson to confirm we had a quorum," Trent continued.

Trent said she believes the tension between the board factions stems from a December decision to extend Wilson's contract, which Busuito, Hughes O'Brien and Thompson voted against.

"There are members of the board of governors who are still very angry the president's contract was extended and they can’t move past it," Trent said. "The majority of the board members support him. He is doing an amazing job.He is well-respected on our campus and across the country."

"I just think it’s way past time for us as a board to put the interests of WSU first," said Trent. 

But the four board members who filed suit said their focus is "100% in support of both the well-being and the infrastructure needs of our University, its faculty, and our students."

"We can only ensure this vision by being responsible fiscal stewards of the University," the four board members said in a statement. "We took this legal action today to protect University assets, our students, faculty, and staff, as well as the citizens of Michigan.

"This legal action is intended to ensure that the reckless actions of our colleagues and the President do not silence our voice to represent our constituents, our students, and University community. We must all work to ensure that future Board conduct is transparent, ethical, and consistent with our constitutional democracy."

Daniel Hurley, CEO of the Michigan Association of State Universities, has worked on the national level in higher education and said it was "atypical" for governing board members to sue their colleagues.

"It doesn't happen very often," Hurley said. "It's an unfortunate scenario playing out."

kkozlowski@detroitnews.com