The April 13, 2007 hearing session continued the Rice County District Court hearing from March 8.
As the hearing resumed, the Rice County District Courtroom gallery was at least two-thirds full. To many of those watching from the courtroom gallery, the hearing clearly showed the weakness and problems in St. Olaf's case. Simply put, all is not going St. Olaf's way…
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. On March 8, 2007 SaveWCAL attorney Michael McNabb received the permission of the court to participate in the hearing.
There were two attorneys present for St. Olaf with lead attorney Michael Cunningham as the only vocal attorney for the College during the entire proceeding. At the beginning of the hearing, Cunningham, again vigorously objected to SaveWCAL pro bono attorney Michael McNabb's participation in the hearing. St. Olaf served and filed its motion requesting the court to reconsider its ruling of March 8, 2007 on standing — less than 48 hours before the April 13, 2007 hearing! The motion was untimely, and St. Olaf had not even requested permission from the court to file a motion to reconsider as required by the rules of court.
McNabb was fully prepared for this and took the court once more through the law and issues that supported donor representatives being present to ensure that living beneficiaries and contributor interests are considered. At the hearing on March 8, 2007 the Attorney General objected to McNabb's standing to examine witnesses. On April 13, 2007 the Attorney General modified her position slightly by taking no position. So the Minnesota Attorney General left the donors to fend for themselves and failed to even support their efforts to participate in the hearing. With that, the hearing resumed.
The first witness St. Olaf presented in this session was Jeffrey O'Donnell '02, an audio technician at the college. O'Donnell, a former student worker for five hours a week at WCAL (1998-2002) and then as a WCAL employee (2002-2004), is one of the very few former WCAL employees who now works at St. Olaf College (2004-).
St. Olaf attempted to use O'Donnell's testimony to make a case that the various activities the College is conducting are successor services to the WCAL radio station. These include producing the 30-minute program "Sing for Joy" and distributing it to radio stations, Internet streaming of St. Olaf College Chapel services and occasional special events, and assisting MPR in the production of the St. Olaf Christmas Festival broadcast.
Indeed, some of the argument presented by the St. Olaf attorney in this portion of the hearing seemed weak, and at times, ineffective. Courtroom observers noted that "Sing for Joy" was not the major part of WCAL's total programming (in terms of time and resources), although it has been a more than 50 year "fixture", giving long and faithful service.
About halfway through the hearing, after a break, the Judge called the three parties (St. Olaf, Attorney General, McNabb) into chambers, inviting each to have one further person present. Phil Voxland '66 accompanied McNabb for SaveWCAL. The intent of the judge was to see if there was some possibility of common understanding or compromise.
After the break, St. Olaf Treasurer Alan Norton continued as a witness with further financial information. Since St. Olaf has not provided ready public access to audit reports, filling in the blanks has been difficult. Despite two clear subpoenas from Michael McNabb, St. Olaf Treasurer Alan Norton and the St. Olaf attorneys did not bring requested documentation of WCAL financial records to the hearing. The WCAL financial statements are approximately nine pages long. The most critical information is on one page of each statement. The subpoenas also require the witnesses to produce other records that are related to the contribution of funds to build the Skifter Building and the Rosemount broadcasting tower.
These subpoenas have not been well received by St. Olaf and were the subject of the final discussions in the hearing. St. Olaf asserted several objections, including that it would be an undue burden to produce the documents. The major objections were that McNabb did not have standing to issue the subpoenas and that the documents are not relevant!
At the first hearing on March 8, 2007, it appeared that that St. Olaf had not done much in the way of due diligence preparing an accounting of the gifts. It is not so much the accounting of the gifts that is misleading, but rather the accounting of the support that St. Olaf claims to have provided to the station over the years — which St. Olaf now claims as the basis for releasing the restrictions on the funds in the endowment.
The impression created by the College's presentation and response to McNabb's questioning is that they are not interested in making an effort to be totally candid in this matter.
The proceedings have now given McNabb the opening to reveal to the court the tactics of the St. Olaf attorney, including the attempt by St. Olaf attorney Michael Cunningham to preclude St. Olaf alumnus Phil Voxland '66 from doing his own, independent research at the St. Olaf library [see entry of April 5, 2007].
It's interesting to remember the film, The Verdict, where there was an act of medical malpractice in a church affiliated hospital. A team of attorneys from a large law firm represented the hospital. The hospital was so desperate to avoid liability that it falsified medical records in order to cover up its negligence.
In this case, what we have is a church affiliated college represented by a large law firm using every tactic available to prevent relevant information from reaching the court.
One legal observer in attendance wryly noted, "[The College] appear[s] very much like the child who, having murdered his parents, throws himself on the mercy of the court because he is now an orphan."
It is a sign of how seriously St. Olaf is taking the proceedings by the fact that St. Olaf Director of Communications Amy Gage was in the courtroom taking notes for the entire session.
A hearing on McNabb's motion to compel production of the documents listed in the subpoenas will be held on Thursday, May 3, 2007 at 9:30 a.m. at the Rice County Courthouse, located at:
218 3rd St NW
Faribault, MN 55021
The proceedings will resume on Friday, May 25, 2007at 9:00 a.m. at the Rice County Courthouse, located at:
218 3rd St NW
Faribault, MN 55021
The public is encouraged to attend one or both hearings — and St. Olaf alumni and WCAL donors who are in town for the St. Olaf Alumni/Graduation weekend are most welcome on Friday, May 25! It's going to be interesting…
