(OPINION) The best boards debate freely and govern collectively - then there's Michigan State

Editor's Note: This is a guest column by Jeshua Lauka, an attorney and Founding Partner at LightStone Law where he serves as outside general counsel to private companies and non-profit corporations. With over 17 years in corporate law and governance, he advises boards on leadership, fiduciary responsibilities, and board dynamics. You can follow him @JeshuaTLauka (X) and Jeshua Lauka (LinkedIn).

Following President Kevin Guskiewicz's decision to leave Michigan State University for Clemson University, attention has increasingly turned to the relationship between the president and the MSU Board of Trustees. Questions about trustee conduct, public disagreements, and board communication have become central to the discussion.

At the Board's May special meeting, trustees debated and ultimately approved amendments to the Board's Code of Ethics and Conduct. Among the changes was a provision limiting trustees from publicly criticizing board actions after those actions had been approved by the board. More recently, a pre-litigation demand letter from Trustee Rema Vassar against the university became public, further intensifying the conversation surrounding board governance and trustee communication.

The merits of those specific disputes are not the subject of this opinion. Instead, the recent events raise a broader governance question: What constitutes proper board communication?

Before answering that question, it is important to understand a foundational principle of governance.

Effective board governance can be counterintuitive. Trustees possess the highest level of authority within an organization, yet they exercise that authority almost entirely through collective action rather than individual decision-making. Understanding that distinction is essential to understanding the current debate at Michigan State.

Simply put, the board's role is to govern.

Boards govern through collective authority. Individual trustees possess influence, expertise, and voting power, but no trustee acts independently on behalf of the institution. The board's authority exists only when it acts as a body.

This concept can be challenging because it differs from how many trustees operate in their professional lives. Individuals are often selected for governing boards because they are successful leaders in their own organizations. They are accustomed to exercising individual authority, making decisions, and directing others.

Board governance works differently.

No individual trustee is the boss of the university president. No individual trustee is the boss of fellow board members. Even the board chair is not the president's supervisor in the traditional sense. The board, acting collectively, governs the institution and holds the president accountable.

Understanding that distinction is critical because it shapes how trustees should communicate.

Different Forms of Board Communication

Trustees communicate through several channels: with one another, with the president, with members of the administration, and with the public. Each serves a different purpose and carries different governance implications.

Within the boardroom, individual trustee communication is invaluable. Strong governance depends on the free exchange of ideas, competing viewpoints, and vigorous debate. Diversity of thought often produces better decisions.

That dynamic was evident during the Board's recent special meeting. Trustees expressed differing perspectives and engaged in spirited discussion before voting on the matters before them. Such disagreement should not be viewed as a sign of dysfunction. In many cases, it is evidence that a board is thoughtfully considering important issues.

As governance expert John Carver observed:

"Governance at its best considers multiple viewpoints to be priceless. It deems the ability to speak authoritatively and powerfully despite lack of total agreement to be one of a board's greatest strengths."

Strong disagreement before a vote can strengthen governance. Once a vote is taken, however, the board's authority is expressed through the action adopted by the board itself.

Advisory Communication with the President

Another important form of trustee communication occurs between individual board members and the president.

Trustees bring valuable experience, expertise, and professional judgment to their roles. Presidents frequently seek advice from trustees whose backgrounds may provide insight on specific issues. Likewise, trustees often offer counsel based on their experience.

Healthy trustee-presidential communication is advisory, not directive. The trustee offers perspective; the president remains free to accept or reject it. Once a trustee begins issuing instructions rather than advice, the line between governance and management begins to blur.

Two characteristics distinguish appropriate advisory communication.

First, it is advisory rather than directive.

Second, it is welcomed by both parties.

Problems arise when either side loses sight of its role. Trustees may begin to view the president as someone who works for them individually. Conversely, trustees may become overly deferential and forget that their responsibility is to provide governance and oversight on behalf of the institution.

Effective governance requires maintaining the proper balance.

Communication with the Public

The most controversial form of trustee communication is communication with the public regarding board action.

This issue lies at the center of much of the current debate surrounding the MSU Board of Trustees.

On one side are those who argue that trustees, particularly elected trustees, should retain broad freedom to publicly express disagreement with board decisions. On the other are those who contend that persistent public criticism of board actions can undermine the board's effectiveness and the institution's leadership.

Whether the Board's recent ethics amendments are legally sound is a question for others to answer. Likewise, the legal arguments contained in Trustee Vassar's demand letter fall outside the scope of this discussion.

The governance considerations, however, are worth examining.

Trustee Vassar's public comments highlight a tension present in many elected governing boards. Trustees are elected individually and understandably feel accountable to the voters who elected them. Yet once seated, they exercise authority primarily through collective board action.

That tension can be difficult to navigate.

When trustees routinely communicate positions that conflict with adopted board decisions, uncertainty can emerge regarding who speaks for the institution. Over time, that uncertainty can weaken trust among board members and make it more difficult for a president to understand the direction the board is providing.

Presidents are accountable to boards through clearly established expectations and directives. Effective governance depends upon consistency. When the board's expectations are communicated collectively, the president knows who is responsible for governance and what standards will be used to evaluate performance.

When communication becomes fragmented and contradictory, confusion can replace clarity. The result may be diminished trust between the board and the president, diminished trust among board members themselves, and ultimately diminished confidence in the institution's governance.

None of this suggests trustees should never publicly disagree with board actions. Circumstances may arise where public dissent is both appropriate and necessary.

But in healthy, high-functioning boards, those situations tend to be rare.

The most revealing aspect of the recent ethics amendment may not be the language itself. High-trust boards rarely need formal rules governing how members speak about board decisions because the underlying relationships already provide those guardrails.

When a board finds itself debating restrictions on trustee speech, the deeper issue is often not speech at all.

It is trust.

Trust among board members.

Trust between the board and the president.

And trust that the institution's leaders are working toward the same objective: the long-term success of the university they have been entrusted to govern.