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The Wayne State University Board of Governors voted Friday to resolve a contentious issue by adopting a code of conduct for board members that had been rejected two other times.

The vote was 5-3, with governors Michael Busuito, Sandra Hughes O'Brien and Dana Thompson voting against the code of conduct.

While the board attempted to exercise civility during its first meeting of the 2020, members again engaged in something that has been normal for more than a year: a clash over philosophical differences. Those differences align with a split in board members' views of the leadership of President M. Roy Wilson.

"I would like to say a vote for the code of conduct is the most responsible thing we can do for the university," said governor Bryan Barnhill, who supports Wilson. .

But Thompson, who wants Wilson fired, countered that the adoption of the code of conduct "is to muzzle board members and it is unconstitutional."

The meeting occurred during the midst of the coronoavirus outbreak that has created a global pandemic. As of Friday, the virus had infected 559 people and claimed the lives of three people in Michigan.

Wayne State's campus was quiet, like many other institutions, because people are staying home to mitigate the spread of the virus.

Some board members came to campus to meet in person, while others participated via an online platform.

Busuito, a physician, announced before the meeting that he was not coming to campus for the meeting "at the height of a national emergency that is due to the the worst health care crisis in our lifetime."

During a discussion that lasted for nearly an hour, the members debated free speech and what constitutes criticism that is "derogatory."

Hughes O'Brien said that some of the language in the code of conduct "made it sound like we wouldn't have an opportunity to speak at all to the public."

"As a publicly elected statewide official with constitutional obligations of oversight, it is imperative that we be able to speak to the press," O'Brien said.

Interim Chair Marilyn Kelly, who previously was the chief justice of the Michigan Supreme Court, said board members "accept certain curtailments of our constitutional rights."

"It is crucial to our job description that we defend the university and look out for its best interest and to the extents of that involves curtailing the freedom of speech ... we accept that when we accept this job," Kelly said.

Kelly also said: "You cannot speak to the media, if you agree to the code, in public criticism of board members or staff."

Thompson countered, "Anything in the code that would prevent us from undertaking our duties to provide oversight of the university and in providing oversight to the university, it necessarily requires us to offer public criticism."

Kelly suggested that any language that was derogatory to the president or board members or the staff should be avoided.

But Busuito questioned who decides what is "derogatory."

Added Thompson: "If we include the language that you propose, that will statistically lead to ultra-secrecy, favoring handling issues behind closed doors and preventing us with tackling tough issues that the public expects us to tackle."

Governor Mark Gaffney said he was perplexed at the gridlock during the discussion and Governor Shirley Stancato said board members had met four times to discuss the issues and language.

The Higher Learning Commission, the university's accrediting agency, gave Wayne State until March 24 to adopt a code of conduct following allegations that a board member opposed to the leadership of Wilson inappropriately interfered in the university's day-to-day operations. Gov. Gretchen Whitmer and state lawmakers also urged the board to pass the policy.

The board has been divided for more than a year on scores of issues but passage of the code of conduct came down to an amendment proposed by governor Anil Kumar, who has been a swing voter in the board split.

His amendment came after debate among the board members about their right to speak freely. Kumar's amendment reserved the right to express opinions, but not if involve derogatory criticism.

The three dissenting board members questioned the word derogatory, saying it was subjective. But in the end, the policy passed. 

The code of conduct includes provisions such as committing to being part of a healthy culture of board governance that is focused on maintaining the reputation of the university and the trust and support of its stakeholders, and respecting the opinions of others.

The code of conduct was considered two other times by the board in September and December, but rejected.

A code of conduct was among three reforms recommended by an independent investigator commissioned by the university to investigate complaints made in February and April to the Higher Learning Commission.

The report did not name any board members who allegedly interfered with the university's operations. But a complaint in February 2019 pointed to Hughes O’Brien, who is also part of the faction that does not support Wilson. 

Kelly said previously that the Higher Learning Commission accredits the university and can sanction it, and could withdraw the university's accreditation.

"We have an internal sense of responsibility," Kelly said.

The board was also scheduled to elect a chair and vice chair at the meeting, an annual election that typically occurs in January but was postponed.

At the end of the meeting, the board voted to postpone the discussion again.

kkozlowski@detroitnews.com

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