Before the Rice County District Court hearing on March 8, 2007, WCAL supporters believed that if the court took the same cavalier attitude toward the fiduciary obligations of a trustee that St. Olaf College had demonstrated in its handling of the WCAL charitable trust, then the hearing would be a fizzle (from the perspective of WCAL donors). If the court had a serious interest in enforcing the responsibilities of a trustee, then we would have fireworks in the courtroom. The case had been transferred to Judge Gerald Wolf because Judge Johnson had recused himself. Judge Gerald Wolf has been the probate court judge in Rice County for 30 years so, of course, he knows the law of trusts.
We had fireworks.
Three attorneys from the Gray Plant Mooty law firm in Minneapolis represented St. Olaf. The lead attorney was Michael Cunningham, an attorney in the litigation department since 1971 and the managing partner of the firm during the years 1987-2000. Also appearing was Robert Harding, an attorney in Gray Plant Mooty's charitable gift planning area.
Based on their preparation, it seems that St. Olaf had calculated that they could present their petition unchallenged before a sympathetic judge. All that Cunningham needed to do was to state that St. Olaf had filed a verified Petition with exhibits and that he was prepared to respond to questions from the court on any points of law.
Instead, he made the grievous tactical mistake of calling St. Olaf College Treasurer Alan Norton to testify about the contents of the Petition and the exhibits that listed $1.36 million in donations from deceased donors.
This gave Michael McNabb, the attorney who had represented the SaveWCAL organization pro bono in all its previous efforts, the opportunity for cross-examination. During the cross examination McNabb was able to establish that the value of the WCAL endowment in 2004 was $2.96 million, a value that was omitted from the papers filed by St. Olaf. Norton also had to acknowledge that he knew little of the history or of the programming of WCAL even though he was the person who came up with the definition of "core WCAL activities" which St. Olaf alleges that it will continue. (How it will do so without a radio station is a fair question.)
When Cunningham realized that he had made a serious error by calling Norton to testify, he objected to McNabb's participation in the hearing on the ground that living donors do not have standing to respond to the Petition (which conveniently lists donations only from deceased donors who, of course, are without a voice to respond). McNabb responded that St. Olaf was simply trying to silence the living donors as it attempted to complete the termination of the WCAL charitable trust which began when St. Olaf sold the assets of the trust without notice and without obtaining judicial approval. Cunningham replied that WCAL was not a charitable trust! McNabb pointed out that St. Olaf acknowledges in paragraphs 25 to 31 of its Petition that WCAL was a charitable trust. (The Petition had been drafted by Cunningham and signed under oath by Norton.) The court allowed McNabb to continue.
It was painfully clear that Norton had been ill prepared for the onslaught of the cross-examination. For example, on direct examination Norton testified that the "core WCAL activities" included broadcasting the Christmas Festival. On cross-examination, Norton admitted that the broadcasting rights for the Festival had been sold to MPR.
No amount of preparation, however, can change the facts for St. Olaf. The secretive and pre-emptive action of the college in selling the assets of the charitable trust is so far beyond the pale of the type of conduct that the law requires of a trustee (namely, to honor the intention of the donors).
At the end of the cross examination Cunningham literally mumbled that he would like to call another witness. (The court reporter had to ask him to speak up.) Judge Gerald Wolf announced that he would allow Cunningham to do so, and that he would be allowed to call witnesses when the hearing resumes on Friday, April 13 at 9:00 a.m. at the Rice County Courthouse in Faribault, Minnesota. [The hearing was rescheduled, at St. Olaf's request, from the original date of March 30]
We firmly believe that the St. Olaf College position will become more untenable as more evidence is presented.
SaveWCAL reminds readers that the current Rice County District Court Petition regarding WCAL charitable trust assets was initiated and filed by St. Olaf College, not SaveWCAL. SaveWCAL attorney Michael McNabb has now received the permission of the Court to participate in the hearing and the Minnesota Attorney General (who is charged with upholding charitable trusts) has no objection to his participation in the proceedings.
There is still a grace-ful way for St. Olaf to extricate itself from its position. The college does not have to either stubbornly continue its current course or confess error at this time. Rather, while it still has the opportunity to voluntarily change its course of action, St. Olaf could inform the court that it does not object to an appointment of a special master to conduct an independent review of both the sale of the assets of the WCAL charitable trust and the disposition of the WCAL endowment fund (two issues that are directly related to each other).
The college could then announce to the St. Olaf community (and the surrounding community as a whole) that it appears that there may be ramifications to the WCAL sale that were not considered at the time, so it has agreed to have the matter reviewed by a neutral person appointed by the court.
If the special master finds that St. Olaf did not breach its fiduciary obligations to the WCAL donors, then there are no legal consequences for the college.
However, what if the special master finds that St. Olaf did breach its fiduciary obligations and recommends that the court order remedial action? Then St. Olaf announces that, having carefully considered the report presented to the court, it accepts the finding and recommendation of the special master and will take the appropriate action.
In his column in the current issue of St. Olaf magazine, St. Olaf College President David Anderson refers to the book Good Work: Where Excellence and Ethics Meet. A question to ask: Why is Anderson choosing a course of action (so far) on the WCAL charitable trust that will tie him to the legacy of his predecessor?
{ 10 comments… read them below or add one }
Perhaps what all top officials at St. Olaf must now consider: What happens when greed for money overpowers ethics?
JoAnn Meyer "56
There is hardly a day that goes by that we do not continue to grieve the passing of WCAL. 89.3 has been taken over by . . . noise! And though KSJN features some of our favorite announcers, it has none of the warmth nor the breadth and depth that accompanied WCAL.
If this were really about that place where excellence and ethics meet, there would never have been a sale in the first place. Nor a betrayal of donors — living and dead. But then you all know that, so I am, umm, preaching to the listeners.
I hope the court sees its way clear to do justice.
Barbara J. Miller
Keep up the good work that you do on this site and keep the e-mail updates coming. I hope the court helps bring the real and whole truth out! The days of St. Olaf College being able to just sweep this whole ordeal under the rug appear to be numbered. This whole sale has left a big black stain on St. Olaf College and I sure hope they're happy!
I still miss WCAL and feel anger toward both St. Olaf and MPR officials for allowing the sale to take
place. KSJN is not a satisfactory substitute for WCAL and I refuse to contribute any money to MPR in my lifetime (or after!). I do listen to Bill Morelock, Steve Staruch and Melissa Ousley, and not much else (except the Morning Show, which I have listened to for over 20 years). I hope something good eventually comes of all this. Please keep the updates coming!
It is clear past administrators of St. Olaf did not act in the best interests of the college in selling WCAL. This short-sighted decision smacked of elitism and ignored key stakeholders of the institution. Thus its image has been tarnished.
Furthermore it makes little sense from a marketing standpoint. Over the years WCAL was a key element of the college's brand equity, and gave them outstanding access into homes that direct mail or other types of promotion could never hope to. It also played an important role in fundraising and alumni communications. Why give up such a unique and important asset?
More importantly, what a magnificent training ground for our young musicians! The daily worship services were a delight for the listening audience and gave students an incredible performance opportunity. Over the years I listened with great interest to the students who would both perform and contribute to the daily sermons. What fantastic talking billboards for the college. How else could one get such an intimate feel for the college, save attending the annual Christmas Concert (if one was lucky enough to get a ticket) or watching it via television?
I applaud the organizers in keeping up the good fight. In the meantime, current St. Olaf leadership needs to revisit past decisions and do the right thing. Isn't that what we teach our youth?
Larry Borgen, Professor of Marketing
Normandale Community College
It's good to hear that disrupting efforts continue. One can hope this will make the administration think hard about how they make decisions in the future. The carelessness in their initial preparation to sell WCAL makes me think they were under a lot of pressure from MPR to sell quickly for the best deal.
Also, I believe the Rice County Courthouse in Faribault, the county seat, not in Northfield. I had to get a marriage license there back 1983!
Buying a subscription to XM or to Sirius satellite radio might be the best remedy for former WCAL-listeners who (myself included) pine with heavy heart. Having eluded MPR's greasy embrace and having fled in the early 1980s to WCAL's dulcimer arms, I was sadly disappointed by the latter's recent passing. But lest I be prodded by the cold arithmetic in a corporate advertiser's dream and re-absorbed by the tony radio monopoly that killed its small town rival, I opted to de-camp altogether the local radio airwaves. I now enjoy a subscription to satellite radio tethered in the ether.
My iPod and Satellite radio have been my companions since the unnecessary demise of WCAL. What if WCAL could be reconstituted and serve us on the airwaves, through the Internet (as it use to!), through satellite, through iPods and other technologies that might appear. If only the powers-that-be at St. Olaf had been savvy enough to realize what they had!!
I too " have avoided MPR's greasy embrace", as one reply above states.
The reason? I have worked at both WCAL and MPR and know the corporate "Culture" of each. Actually there was no corporate culture at WCAL. It was a family that was transparent and never disengenous in mission.
MPR is so awash in an embarrasment of riches; equipment and facilities that are the envy of broadcasters everywhere, both public and commercial. The corporate support for MPR is so vast and generous it would boggle the mind of other public radio personnel around the country, who get by with castoff equipmen and 2nd generation technology, kept together with rubberbands, chewing gum and paperclips. I know, I have worked at some of those stations too.
THe biggest point though is this: My worst fears about MPR's classical programming have come true. I withheld judgment until very recently, but now I confess, it has become so much more "populist" in order to get more and more members= $$$$.
The pieces aired are on average, much shorter, with more announcer yacking about irrelevant things, in order to mimic the "banter" spoken by the DJ's on the biggest commercial stations.
MPR: Get serious about classical music!! Less talk, longer pieces(read: "complete works") and quit pandering to the middle. You alienate the core classical listener who has gotten you this far. Yes, I too will go to Sirius or XM soon. Bill Kling is genetically unable to tolerate competition, criticism or collaboration.
In fact, the secretive, partisan culture that exists there is not too unlike the Bush Administration (an oxymoron, I know), except with MPR, the mission is Station Building, not Nation Building.
Minnesota Trust law:
50l.B.40.are very interesting. Also try 501-B36.and 37.