Law firm calls report that prompted MSU board chair's resignation 'deeply flawed'

Lawyers representing former Michigan State University Board Chair Rema Vassar on Sunday slammed a report that led Vassar to resign as the board's leader earlier this month, calling it incomplete, lacking due process, biased and "deeply flawed and unnecessarily divisive."

The Miller & Chevalier report concluded Vassar and MSU Trustee Dennis Denno violated university bylaws. It prompted Vassar to resign as the first Black woman to chair the board hours before the MSU board censured her and Denno during a special, late-night virtual meeting earlier this month. She remain on the board as a trustee.

The Rochester-based Miller Law Firm, which represents Vassar, said in a 22-page response dated Friday that "while the report is purported to be 'independent,' it is not; Miller & Chevalier’s investigation was conducted without providing due process to Dr. Vassar; the investigation and report are incomplete with regard to essential matters; and the report’s findings and recommendations are unsupported and profoundly flawed."

Vassar's lawyers, E. Powell Miller and Kevin O'Shea, summarized 10 allegations against Vassar and said they were unfounded.

"Moreover, the investigation did not find any personal benefit, actual conflict of interest, or harm to the University from any of Dr. Vassar’s actions," Miller and O'Shea said.

More:Vassar strikes back at MSU report and sanctions, saying she was targeted as Black woman

The response come days after Vassar spoke with The Detroit News and challenged the report, echoing some of her lawyers' response, but adding that the report's findings "fits within a national narrative ...There is a larger campaign and agenda to marginalize, silence, discredit and shame Black women."

MSU officials and board Chair Dan Kelly did not immediately respond for comment.

Miller and O'Shea add to Vassar's comments with more detail, addressing allegations by Trustee Brianna Scott against Vassar that prompted the investigation.

Scott, who is Black, wrote a letter to fellow board members in October that was leaked, and accused Vassar of violating the board's rules of conduct and ethics, acting out of her authority in several areas and bullying board members and administrators. MSU hired the Washington, D.C.-based Miller & Chevalier law firm to conduct an investigation that bills through January show has cost MSU $835,230.

The firm's 66-page report, released Feb. 28, concluded that Vassar and Denno violated some of the university's policies and bylaws and should be referred to Gov. Gretchen Whitmer for possible removal from office. The report also substantiated an ethics violation by Scott for disseminating her letter to the press and the public because it included references to confidential and privileged attorney/client communications that she did not have the authority to disclose. Days after it was released, the board sanctioned Vassar, along with Denno, and took away their official duties through the end of the year.

"Both Trustee Scott’s public letter and Miller & Chevalier’s investigation were conspicuous overreactions to alleged infractions that could easily have been addressed by open communicationamong board members, coupled with advice from the General Counsel," wrote Vassar's lawyers. "Instead, the atmosphere of dysfunctional operations and personal recrimination that has characterized the Board for so longled to the expenditure of countless hours, and significant resources, on a report that is deeplyflawed and unnecessarily divisive. It has also caused substantial harm to Dr. Vassar’s reputation without justification."

The report investigation concluded that a majority of the allegations made against Vassar, including those by Scott, "were not supported or were otherwise unfounded," wrote Vassar's lawyers.

Among the allegations for which the report could not find evidence, Vassar's lawyers said, included that Vassar leaked amid an investigation the name of Brenda Tracy, who accused former MSU football coach Mel Tucker of sexual misconduct; and that Vassar improperly released the Quinn Emanuel report, which examined whether former business school dean Sanjay Gupta violated the university's sexual misconduct reporting policy. Her lawyers also said the report did not show that Vassar improperly authorized the use of MSU trademarks, bullied Interim President Teresa Woodruff and threatened other trustees.

Vassar's lawyers also said that the report showed no evidence that Tucker gave Vassar gifts, “outside of what other trustees have also received and that no policy prohibits the acceptance of nominal gifts;"

The investigation also was steeped in "secrecy," Vassar's lawyers wrote. They noted that Miller & Chevalier investigators, "refused to disclose the identities of the individuals making allegations about Dr. Vassar" and also "relied extensively on secretly recorded conversations in making its conclusions, ... unaware that the Michigan Supreme Court has not ruled on the legality of recording conversations without the consent of all parties under Michigan’s anti-eavesdropping statute ... (and) the firm never considered whether making thecovert recordings was a violation of MSU ethical guidelines."

The secret recording was a reference to the report that showed Vassar and Denno allegedly encouraging underrepresented students to call neuroscience professor Jack Lipton a racist after he said that Vassar let "the mob rule the room" at a contentious Oct. 27 board meeting, referring to Vassar supporters in the audience. Lipton publicly apologized at the following December board meeting, and has said that what he meant was that Vassar could have brought order to the meeting as chair but decided not to. The Miller & Chevalier report said Vassar and Denno had created "a campaign of personal attacks through student groups and the press suggest that they were primarily motivated by personal animus against Dr. Lipton, likely generated by Dr. Lipton’s call for Chair Vassar’s resignation."

Vassar's lawyers said the report "refused to address the appropriateness of Lipton’s use of the term 'mob' ... electing for the first time to narrow the scope of its investigation."

"Miller & Chevalier ruled out the very analysis necessary to determine whether Dr. Vassar’s speech violated any rules or guidelines," Miller and O'Shea wrote. "Instead, the firm apparently manipulated its inquiry so as to reach a planned result: Dr. Vassar must have acted from motive of 'personal animus against Dr. Lipton, likely generated by Dr. Lipton’s call for Chair Vassar’s resignation.' Putting aside Miller & Chevalier’s impressive skill inarmchair psychological analysis, its own refusal to consider that Dr. Vassar acted because shebelieved Dr. Lipton made a statement that many interpreted as racist inescapably corrupted itsconclusion."

Vassar's lawyer's also addressed her failure to turn over her person cellphone for forensic examination when all the other trustees, besides her and Denno, turned over their cellphones.

"The firm refused to disclose the scope of its proposed review, the search terms that would be employed,or even the general topics it intended to explore," the lawyers wrote. "Despite Dr. Vassar’s offer to cooperate indeveloping search terms to protect her unrelated private communications (and, significantly, thoseof students and others with whom she spoke), Miller & Chevalier refused and declared that 'weare not disclosing our search terms.' Incredibly, the firm then complained in its Report that Dr. Vassar’s failure to turn over her cellular telephone may have impeded its investigation."

Vassar's lawyers also quoted an expert who said the MSU board has been “dysfunctional … repeatedly over a number of years.”

"The evidence establishes that the report, and the Board of Trustees’ rush to judgment to act against Dr. Vassar based on its recommendations, are part of an unfair and heavy-handed attempt to blame her and others for this unfortunate, well-documented history," Miller and O'Shea wrote.

Vassar's lawyers also wrote that the Miller & Chevalier investigators "never inquired regarding the substantive effects of Dr. Vassar’s actions."

The board voted 6-2 to accept the report earlier this month and penalize Vassar and Denno, both of whom opposed the move. The actions came the night before the first day of new President Kevin Guskiewicz.

The Miller Law Firm said the Miller & Chevalier report was not independent because it was acting on the behalf of its client, MSU, and "the firm’s attorneys are subject to the Washington, D.C., Rules of Professional Conduct requiring them to advocate for, vindicate, and avoid harm to, MSU."

The Miller Law Firm maintained Miller and Chevalier's own investigation concluded that "most of the allegations made against Dr. Vassar, including those by Trustee Brianna Scott in her public letter dated October 20, 2023, were not supported or were otherwise unfounded."

The Miller Law Firm said Miller and Chevalier refused to provide advance notice of interview subjects. "Instead, the firm used a 'gotcha' technique, confronting Dr. Vassar with unfamiliar topics and allegations and challenging her to respond on the spot."

The Miller firm said Miller & Chevalier also failed to provide due process by "refusing to disclose the documents and other materials it referenced in questioning Dr. Vassar or the materials it relied upon in reaching its conclusions," as well as not disclosing identities of individuals making allegations against Vassar saying there is "no way to verify the truthfulness of their accounts."

Vassar's lawyers also wrote that the Miller & Chevalier investigators "never inquired regarding the substantive effects of Dr. Vassar’s actions."

It pointed to the board's unanimous agreement in December to release the thousands of documents related to the Larry Nassar sexual abuse scandal that had withheld for years by MSU under attorney-client privledge.

Wrote Vassar's lawyers: "The action, advocated for many months by Dr. Vassar, was hailed by the Michigan Attorney General as 'a step in the right direction.'"

mjohnson@detroitnews.com

@_myeshajohnson

Staff writer Kim Kozlowski contributed.