On Wednesday, December 7, 2016, the 75th anniversary of the surprise Japanese attack on Pearl Harbor, the RA Board of Directors held a special meeting to, as the agenda stated, conduct an “Executive Session to Discuss Contract issues with MediaWorld, the Tetra/Lake House Review Designee.” During the course of that meeting, Board member Eve Thompson referred to the five community members there as the “peanut gallery.” She was quickly rebuked by Board member Sherri Hebert, who noted they were RA members whom the Board represented. Nonetheless, in the absence of streaming or videotaping of the meeting and knowing full well that the minutes will not reflect the full substance of the meeting, we thought it would be useful to present a detailed summary and occasional commentary from the peanut gallery’s perspective.
Those in attendance included five RA community members, the five members of the Mediaworld team selected to carry out the Tetra review, Eric Carr who headed the Board-appointed Tetra Review Committee contractor selection team and committee member Janine Greenwood, all the members of the Board of Directors, and RA attorney Ken Chadwick. Not present was CEO Cate Fulkerson.
Maybe most importantly, after the pro forma call to order, opening remarks, and adoption of the agenda, the five community members there all commented on the agenda. Specifically, they all condemned the proposed use of an executive session (where there would be no community witnesses) to discuss the Tetra review contract issues. Attached are the comments of Irwin Flashman and Reston 20/20’s statement is posted on this blog. James Dean focused the need for an open discussion to preserve the credibility of the contracting effort, Ambassador Dennis Hays highlighted the ebbing and flowing of the Board’s seeming willingness—currently ebbing--to conduct a thorough, credible review of the missteps in the Tetra acquisition and renovation process, and Alison Kamat worried that the prolonged contracting process would continue into next year’s RA Board elections unless the contract issues were quickly resolved. All of them advocated unequivocally for an open meeting that evening to discuss the issues that were preventing the signing of a $1 contract with Mediaworld to carry out the work.
Thereafter, Vice President Mike Sanio moved that the Board move into executive session to discuss the contract issues with Mediaworld. The motion was seconded by Eve Thompson. In the ensuing discussion of the motion, only Board member Eve Thompson—looking at Chadwick—said she thought there would be some benefit from an executive session. Neither President Ellen Graves nor Mike Sanio said anything substantive regarding the merits of the motion. All the other members of the Board, with varying degrees of enthusiasm, saw little merit in an executive session and much credibility added to the initiative by an open discussion of the contract issues. The motion to move to executive session was defeated by a near unanimous vote with only Graves abstaining.
Mediaworld and retired World Bank economist Dick Stillson led off the discussion of the issues by highlighting the need for the contractor’s independence to assure the credibility of the product they created. He highlighted three specific terms in the 17-page contract that undercut this independence:
- Mediaworld's notes and internal communications were to be considered RA's property
- RA could decide who could and could not be on the team.
- RA had the authority to modify the report the team submitted and publish it.
Thompson responded that the Tetra review product needed to be credible and, therefore, Mediaworld should not be allowed to change its contract team. Team member John Higgins, 18-year Treasurer for RA and a former Board member, responded that Mediaworld had no intention of changing the team membership although they may need to bring in someone for specialized expertise. Mediaworld CEO Sridhar Ganesan objected that contract language allowed RA to remove a team member; that should be Mediaworld’s decision. Stillson highlighted that, if an employee misbehaved, RA could bring it to Mediaworld's attention and they could dismiss the team member--or RA could cancel the contract. But RA can't pick and choose Mediaworld’s team members and still characterize the effort as independent.
Greenwood raised some extreme hypothetical examples of potential misbehavior by a team member (e.g.—misogynistic comments to RA staff) and suggested RA should be able to terminate their involvement in such cases. Mediaworld team member Jill Gallagher, a consultant with years of experience managing contracts with non-profits both as contractor and client, added that there were no scenarios in the contract, just the demand for blanket authority to dismiss team members. She added that, in her experience, the draft contract was not a statement of trust in Mediaworld.
In an interlude, Chadwick noted that there had been ample time to work out the issues on the contract, and that he had offered several times to meet with Ganesan. He had never said there was a line in the sand. Ganesan responded that a memo Chadwick sent was the “red line.” Chadwick added that he was here to facilitate the contract, which is why they were having the Board meeting. Danielle LaRosa, Board Treasurer, added her concern about the time it was taking in a comment to Ganesan. Thompson later added that RA members are sensitive about the delays in the contract, seeing it as Board-driven, but it is really two-sided. (Note: Actually, the delays have been driven by RA’s highly restrictive 17-page draft contract and unwillingness to discuss, much less negotiate, its terms at least until this meeting.)
Ganesan noted that he has a number of other ongoing contracts, largely out of the country, and he is not waiting by the phone for a call to set up a meeting. He added that he would be glad to share phone and email logs to show Mediaworld hadn’t be dragging its feet. He suggested Chadwick have more flexibility in suggesting meeting times. He added that he wanted to move forward and, that once signed, the team would have a schedule that it would meet for delivery of the review.
Hebert, waving a signed RA contract with Quantum Governance (QG) (who conducted a study for RA on ethics), noted that QG contract served the same kind of purpose as the one being negotiated with Mediaworld—and it was only four pages long. Moreover, all the issues that were being raised in this meeting had been covered in just one paragraph in the QG contract. In both cases, RA was looking for process improvement, so why shouldn’t the QG contract serve as model for the one with Mediaworld. She added, the more the Board controls this, the worse the optics. Her question and comments were excellent, undermining just about every argument for a 17-page contract with myriad restrictions, caveats, and penalties.
Board member Ray Wedell picked up on Hebert’s comment, noting that Mediaworld had been picked after a rigorous review among several qualified competitors, so RA needs to get the contract sign and leave them alone. Trust them to do their job and deal with any issues as they come up.
Board member Julie Bitzer wondered about the issue of Mediaworld indemnifying RA. Ganesan responded that MW should be indemnified by RA. Hebert noted that the QG contract had one sentence on the matter indemnifying QG except in cases of gross negligence and willful misconduct.
Following up on a question from Graves, “What do you mean by internal communications?,” the discussion then turned to whether the Mediaworld team’s internal notes and communications were their property or needed to be turned over to RA. Stillson noted this meant communications within the team. LaRosa turned to team member Higgins and asked, “Are auditor’s notes and communications their property?” Higgins responded that the notes were the auditor’s. Hebert asked the same about legal notes to Chadwick, who responded they were the attorney’s. In fact, no one in the room could identify a contract in which a contractor’s internal notes and communications were the property of the client.
Gallagher then took up the issue of confidentiality. She noted that the contract needed to note (a) that the team was working with confidential documents and (b) that those should not be shared. But this contract called for individual members of the team to be personally libel for any mishandling of RA’s documents, an unprecedented demand. Ganesan followed up by noting that the team members are quite willing to sign a confidentiality agreement.
Gallagher added that she has never before received a 17-page contract in her extensive contracting experience. She said it felt as long as an inter-agency agreement established for with four US departments. It took her two days to read the document thoroughly and redline the areas needing changes. Moira Callaghan, another Mediaworld team member, asked rhetorically whether RA’s “standard” contract was 17 pages long.
Thompson responded that “we were clear that the team needed to have credibility.” She expressed specific concern about former RA Treasurer John Higgins’ role on the team. “What I’m hearing is that you are not going to be like a contractor we hire.” She added, “My concern is we need a real deal report at the end of this.” Her remarks followed a statement she made early in the discussion that Mediaworld must meet all the requirements of a “standard” RA contract—“the same contract used by RA on every occasion”—triggering Callaghan’s query above--and, yet, it also must meet special requirements to be credible because the team is comprised of RA members. We find the two comments remarkably inconsistent.
In response, Hebert noted that the members don’t care about the contract. Thompson responded that Mediaworld shouldn’t get special treatment. (Yet that is exactly what the draft contract does by imposing numerous unique restrictive clauses.) Ganesan asked that RA just give Mediaworld a standard contract. Moreover, Stillson responded, if Thompson had any doubts about their professionalism, she should look at the time they took to review and comment on the draft contract. He had noted earlier that, while RA owned their product, the team members’ names and reputations would be on it.
In wrapping up the discussion, Sanio expressed concerned about the failure to meet the deadline, the need to provide a credible product, and he thanked the Mediaworld team for stepping up. He then moved for the Board to go into executive session. Board member Lucinda Shannon questioned whether they could give guidance to counsel in open session. Graves said no. Bitzer said the executive session should be to give RA attorney Chadwick guidance so RA could move forward, a comment seconded by Hebert who added that it shouldn’t Chadwick’s opportunity to give the Board guidance. The motion to move to executive session was approved with three “nay” votes and the public session ended.