Seventy-Sixth Year
EDITED AND MANAGED BY STUDENTS OF THE UNIVERSITY OF MICHIGAN
UNDER AUTHORITY OF BOARD IN CONTROL OF STUDENT PUBLICATIONS
POWER
and Regent Powner and Universty, Considerations
POERYby MARK R. KILLI NGSWORTH
. . . . . . . . .
re Opinions Are Free 420 MAYNARD ST., ANN ARBOR, MICH.
Truth Will Prevail
NEws PHONE: 764-0552
Editorials printed in The Michigan Daily express the inidividual opinions of staff writers
or the editors. This must be noted in all reprints.
TUESDAY, MARCH 15, 1966 NIGHT EDITOR: LEONARD PRATT
OSA Advisory Committees-
Will They Be Substantial?
STUDENTS have been demanding a
greater voice in University affairs for
quite some time. The advisory committee
on housing, the student advisory com-
mittee to the residential college, the steer-
ing committee for the literary college and
the recently created committee concern-
ing presidential selection have all been
attempts to give this voice.
Vice-President for Student Affairs
Richard L. Cutler has now made another
move in this direction. He has recently
instructed the heads of the nine divisions
of the Office of Student Affairs to set up
student advisory committees.
This proposition poses several prob-
lems. First, is the student carrying an
average class load of 15 class hours, going
to be able to gain the knowledge neces-
sary to make really constructive contri-
butions. But more important than this, is
the student going to be willing to put in
the time necessary to gain this knowledge
if he will have no power after he does
this?
Too OFTEN committees of this sort be-
come academic and turn into non-
functional drills, and many students are
aware of this.,
The aims which Cutler has stated in
establishing these committees-that they
will give the student a meaningful voice
in policy making of the University and
also that the University will benefit from
well-informed, interested students - are
certainly quite valid.
Acting EditorialStaff
MARK R. KILLINGSWORTH, Editor
BRUCE WASSERSTEIN, Executive Editor
CLARENCE FANTO HARVEY WASSERMAN
Managing Editor Editorial Director
JOHN MEREDITH ........Associate Managing Editor
LEONARD PRATT......Associate Managing Editor
BABETTE COHN......A... tPersonnel Director
CHARLOTTE WOLTER .... Associate Editoral Director
ROBERT CARNEY ........Associate Editorial Director
ROBERT MOORE ................Magazine Editor
Acting Business Stafff
SUSAN PERLSTADT, Business Manager
JEFFREY LEEDS........ Associate Business Manager
HARRY BLOCH. ........Advertising Manager
STEVEN LOEWENTHAL.. ...... Circulation Manager
ELIZABETH RHEIN .............Personnel Director
VICTOR PTASZNIK.............. Finance Manager
CHARLES VETZNER................. Sports Editor
JAMES LSOVAGE. . Associate Sports Editor
JAMES TINDALLI............ Associate Sports Editor
GIL SAMBERG ............... Assistant Sports Editor
SPORTS NIGHT EDITORS: Bob McFarland, Howard
Kohn, Dan Okrent, Dale Sielaff, Rick Stern, John
Sutkus.
ASSISTANT DAY EDITORS: Richard Charin, Jane
Dreyfuss, Susan Elan, Shirley Rosick, Robert Shiller,
Alan valusek.
Subscription rate: $4.50 semester by carrier 1$$ by
maiu: $8 yearly by carrier ($9 by mail)
Second class postage paid at Ann Arbor. Mich.
I would question, however, whether
these committees as they are presently
planned will fulfill these desires.
First, several of the divisions have
decided either to not set up committees,
or that the committees cannot function
in all facets of the department.
Secondly, the selection of the members
of the committees is in at least one de-
partment being done on a purely subjec-
tive basis - members are being hand
picked without calling for petitioning or
for recommendations from any student
organizations. This is not to say that the
directors are incapable of selecting stu-
dents that would be able to make signifi-
cant contributions, but rather that stu-
dents should be able to express their in-
terest in working on such a committee
if they have that interest.
IT IS IMPORTANT to consider exactly
how effective these committees are go-
ing to be. The student advisory commit-
tee concerning student housing ran into
considerable problems of communication
between the administration and the stu-
dents for quite a while. Now communica-
tions seem to be improving, and at pres-
ent, the committee is making progress.
The administration is finally seriously
considering the committee's proposal to
use funds provided for under Section 221-
D3 of the Federal Housing Act for con-
struction of married student apartments.
The question of why this happened is sig-
nificant. The pressure of the Lane Bill
now in the state Legislature which pro-
posed taking away the autonomy of the
University concerning housing construc-
tion and placing all University building
under state control, could have influenced
this considerably.
If the University did not move quickly
in making decisions on the policy of fi-
nance, the state Legislature was showing
every sign of making moves of its own.
Are such prescsures necessary to make
student-administration committees func-
tion and if so, can such pressure be exert-
ed in other areas?
It seems unlikely that the Legislature
or similar outside pressure groups would
take interest in such subjects as aca-
demic affairs and student organizations.
UTLER REALIZES that it is necessary
forstudents to have a voice in Uni-
versity policy-making. It remains to be
seen, however, if the new system of stu-
dent advisory committees being set up in
the nine divisions of the Office of Stu-
dent Affairs will be a means through
which students can attain that voice.
-BETSY TURNER
IN A SURPRISE MOVE yester-
day-the latest in a series of
wildly improbable events that
started last Friday - Governor
Power's letter of resignation until
Romney said in a news conference
that he will not act on Regent
the Regents act on the matter at
their Friday meeting.
His statement is the final and
most important indication in a
chain of events which suggest
that it is not only desirable but
possible to defer the resignation.
* * *
BEYOND ALL of the other bi-
zarre events which occurred
over the weekend, one of the most
startling, to judge from campus
reaction, has been The Daily's
supposed flipflop regarding Regent
Power.
Why did you change your mind
and why do youwant to save him
now when before you wanted to
kick him off the board? So you're
sorry now? If you think he should
stay on the board why did you
print the story in the first place?
By now the myth has probably
overcome reality completely, but
in view of what actually occured
in the past-and what ought to
occur in the future-it is well to
set the record straight.
AS THE SENIOR editors noted
in their front-page editorial last
Saturday, "We felt, and still feel,
that The Daily had an obligation
as a newspaper to print the facts
about the business transactions
between Mr. Power's concern and
the University. At the time they
were reported, as now, they sug-
gested the possibility of a techni-
cal conflict of interest. The ques-
tions about such business relation-
ships were substantive and serious,
and they had to be answered."
The Daily is indeed a news-
paper, not a house organ or a
bulletin board. It must function
as such and so must other news-
papers - if they want to keep the
proud name itself.
A newspaper-if it wants to
keep its integrity-simply cannot
avoid the dictum of The Times'
founder, Adolph S. Ochs: " . . .to
give the news impartially, without
fear or favor, regardless of any
party, sect or interest involved."
THE DAILY'S STORY-which
was researched over a month-long
period and read to Regent Power
-on a possible conflict-of-interest
in his dual role as a Regent and
a businessman appeared on Oct.
23.
An editorial in that same issue
declared:
"There is a sense of irony in all
this because Power's public con-
tributions both as a businessman
and as a Regent have been sub-
stantial ...
". . .In the best tradition of
the publishing world, Power has
undertaken projects which offer
very little profit potential but are
an invaluable service to the schol-
arly world.
"As a Regent, Power has given
of himself unsparingly. A Demo-
crat, Power has been a key force
in promoting an enlighteied Uni-
versity attitude towards student
welffare.
"As a private citizen Regent
Power has with no fanfare do-
nated $150,000 worth of micro-
filming materials to the Univer-
sity over the past 10 years ...
"(But) in good conscience one
cannot ignore the pertinent ques-
tions that arise after a compre-
hensive examination of the situa-
tion."
After a review of the possible
technical conflict-of-interest, the
editorial concluded:
"Power's magnanimity is cer-
tainly appreciated. But apparently
he refuses to concede the possi-
bility that any of the present rela-
tionships between his company
and the University may be some-
thing less than proper ... Perhaps
its is time to think the entire
relationship over."
In short, The Daily did not
suggest, or even imply, that
Power's relationship with the Uni-
versity should be ended. It simply
asked that the serious questions
surrounding it be answered.
THE ATTORNEY GENERAL
provided what for the time being
is the final legal answer, declar-
ing that the relationship sets up
a conflict-of-interest situation.,
But there are good ways of cor-
recting a conflict of interest.
The Power-University relation-
ship can be ended; the University-
University Microflims, Inc. rela-
tionship can be changed; or the
Power-University Microfilms rela-
tionship can be changed.
The Daily's editorial of Satur-
day, merely restated how impor-
tant Power's contributions to the
University have been and urged
that a way be found to ensure
that he remain as chairman of the
Board of Regents.
* * *
SO MUCH for the record. The
future, however, is still uncertain,
and it is extremely important.
Judging solely from his years of
public-spirited service to the Uni-
versity. it appears that Regent
Power submitted his resignation
to the Regents for a single, simple
reason: because he believed that
it would be unbecoming and pre-
sumptuous to do otherwise.
To do otherwise-to attempt to
restudy the UMI-University rela-
tionship or his own relationship
with UMI-would appear to be a
slightly underhanded attempt at
remaining on the board.
He thus resigned, despite the
Attorney General's statement that
"there is no question of Mr.
Power's motives, his integrity, or
his devotion to the interest of the
University" or the fact that Re-
gent Power had been told in 1956
and 1958 that the University com-
munity and his Regental col-
leagues could provide the oppor-
tunity for a reconsideration of
Regent Power's resignation.
PUBLIC SUPPORT is certainly
not lacking. Dean William Haber
of the literary college said Friday
evening, "We've lost a wonderful
Regent and some way should be
found to retain him."
Student Government Council
met last night and passed a mo-
tion embodying exactly this senti-
ment. Graduate Student Council's
Executive Committee did the same
thing in a meeting yesterday af-
ternoon.
Almost all of the University's
principal officers, constrained
from making public statements
about the composition of the
Board of Regents who are tech-
nically their employers, have pri-
vately expressed deep concern.
And a statement by two dis-
tinguished University law profes-
sors which appears today suggests
that there is in an ethical sense
no conflict of interest.
And now the Romney statement
blows the whole situation wide
open.
THE KEY to any possible re-
tention of Regent Power on the
board, however, will come as a
result of action by his fellow Re-
gents. Public opinion can influence
the future, but it will not deter-
mine it. For this reason the ac-
tions of the Regents at their
Thursday closed meeting and their
Friday public session will be cru-
cial.
Regent Irene Murphy said Sa-
turday she hopes to receive a re-
quest for consultation with ahe
other Regents on Power's intention
to resign.
Regent Carl Brablec, it has been
learned, has also voiced concern
about the loss of Regent power and
hopes that something might be
done.
But it will take more than two
Regents. And it will take a bi-
partisan effort-for both Mrs.
Murphy and Brablec are Demo-
crats. With Regent Allan Soren-
sen abroad and not expected to
return for the Regents meeting
this Friday, Regents Robert
Briggs, William Cudlip, Paul
Goebel and Frederick Matthaei
hold the balance of power.
IT SHOULD BE an interesting
meeting. Tickets of admission for
the 2 p.m. Friday meeting are avail-
able from Vice President Michael
Radock's office, 2550 Adimistra-
tion Bldg.
I'
LETTERS TO THE EDITOR:
Law Professors
0
Write on Kelley Report
" t~g' ,:1.
:;. , .x~.
"~'5;'. i ,-,
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c
To the Editor:
HIS IS AN ATTEMPT to re-
spond to The Daily's thought-
ful request for a discussion of
Regent Power's announced inten-
tion to resign by reason of the
Attorney General's opinion that
the relationship between his coin-
pany and the University makes
continuation in his position as
Regent inconsistent with the re-
quirements of the Michigan Con-
stitution relating to conflict of'
interest.
We have examined that opinion
and have come to the conclusion
that the University community
might benefit from a brief dis-
cussion of its basis and implica-
tions.
The decision is based pon a
clause of the 1963 Constitution
which contains language different
in content from the law which
had prevailed before the adoption
of the Constitution. That new
language has not yet been con-
strued by the Supreme Court, nor
has it been given specific con-
tent by implementing legislation.
The Attorney General was there-
fore required to interpret it with
no guidance other than language
itself and the debates of the Con-
stitutional Convention wherein its
intent was discussed at some
length.
THE ATTORNEY GENERAL'S
opinion is based on a careful as-
sessment of the facts, and with
most of its intermediate conclu-
sions we would be in complete
agreement. It establishes the fol-
lowing four points which are of
importance in understanding the
situation:
1) That the general provision of
the 1963 Constitution states the
controlling law;
2) That certain minor irregular-
ities in dealings between the com-
pany and the University which
resulted primarily from failures
of communication can be easily
rectified through corrective action;
3) That Mr. Power was justi-
fied in relying on the earlier ad-
vice of the Attorney General's of-
fice which found nothing to cri-
ticize in his borrowing of books
and of microflims from the Uni-
versity, from which he made
copies for sale, nor in his pur-
chase of microfilm exposures from
the University Photoduplication
Service at established rates, and
4) That the inquiry is therefore
reduced in scope to this question:
"Do certain changes in circum-
stances and practices which have
occurred since the earlier Attorney
General's opinions constitute vio-
lations of the law by placing Mr.
Power in a position of being in-
terested directly or indirectly in
any contract with the University
which is the cause of a substantial
conflict of interest?"
THE "NEW" FACTS adverted
to in the opinion are: 1) the lo-
cation of microfilm cameras in
the University Library without
payment for the space occupied;
2) the sale of mircofilm copies
of the Undergraduate Library
shelflist by University Microfilms
without payment of royalties to
the University: and 3) the storage
reaction between University Mi-
crofilms and the University, spe-
cifically with reference to the
question whether is was improper
for the company to continue its
past practice of borrowing books
and microfilms from the Univer-
sity Library and making copies of
those books and microfilms for
sale to the public, and with ref-
erence also to the purchase of
microfilm exposures made by the
University Photoduplication Serv-
ice, at the established prices at
which such exposures are sold to
the general public.
The Attorney General's answer
to these questions both in 1956
and 1958 was that there was noth-
ing improper in such transactions
between the company and the
University.
IN RELIANCE on these opin-
ions the company continued to
check out books and purchase
negatives as before. At a later
date, the cameras were placed in
the Library building at the request
of the University Librarian, in
order to save wear and tear which
would result from transportation
of the books to a different loca-
tion.
The so-called shelflist is the
collection of catalog cards, (most
of which were supplied to the
Library free of charge by the
Library of Congress) which record
the contents of the Undergraduate
Library. The microfilming of the
shelflist involvedonly the micro-
filming of the sheflist involved
only the microfilming of each of
these catalog cards at the re-
quest of other institutions interest-
ed in establishing similar libraries.
The arrangement with reference
to graduate dissertations is one
in which the University partici-
pates along with 150 other grad-
uate schools.
The school's requirement for
publication of a graduate thesis
is satisfied by producing from the
text a microfilm negative which
is then stored by University Mi-
crofilms in airlconditioned vaults
so that copies can be made at
the request of 'any interested
party. In order that the paper's
existence may become known to
persons potentially interested in
it, University Microflims publishes
and distributes a brief abstract.
ALL OF THIS is done without
charge to the University, though
the University charges the student
a fee for producing the micro-
film negative. The arrangement
constitutes an economical means
of making graduate scholarship
available to those to whom it will
be useful, without the expense of
hardcover publication and of the
storage facilities that this re-
quires.
In order to test whether these
changed circumstances constitute
together a violation of the con-
stitutional inhibition, we must
probe the meaning of that pro-
vision. It reads as follows:
"No member of the legislature
nor any state officer shall be
interested directly or indirectly
in any contract with the state
or any political subdivision
The word "substantial" modifies
the word "conflict," rather than
the word "interest"; it is sub-
stantiality of conflict which is the
criterion, rather than substan-
tiality of interest.
What then is meant by a "con-
flict of interest caused by an in-
terest in a contract?" The term
"conflict of interest" is one which
lawyers have always %ad
culty in defining. It relates most
frequently to the tendency of an
officer's interest in a contractual
transactioh with the University to
lead him to disregard the Uni-
versity's interest in favor of his
own in that transaction.
The standard is realistic, not
formal. It trusts the ofecifgsr'
formal it trusts the officer's sense
of duty to the University to guide
him in most situations; it is only
where decisions are made by him
in which there is a substantial
possibility that he would be guided
by his own interest to the dis-
advantage of the University that
the law intervenes to proscribe
the relationship completely.
IT IS FOR this reason that, as
a general matter and as the At-
torney General ruled in response
to Mr. Power's earlier requests
in 1956, it is not improper for
him to buy from the University
services which are made available
also to others, at the established
rates for such services, or to make
use of University facilities when
those facilities are held open to
the public generally. In such cir-
cumstances he is not called upon
to exercise a discretion in which
his own interest might prevail over
that of his trust.
This is also the reason why he
may not properly sell property or
services to the University, for in
that situation a decision made by
him in his business capacity be-
comes the basis of a pecuniary
transaction with the University.
In these circumstances the law
does not permit him to trust his
fiduciary obligation to his own
objectivity. It removes all temp-'
tation from his path by proscrib-
ing such transactions completely.
IT IS IMPORTANT to note
that the Attorney General did not
rest his recent decision upon the
existence of any significant con-
tractual relationships between the
company and the University, for
there were none.
If the loan of books to be taken
out of the Library for the making
of photographic copies for sale
does not constitute a "contract"
of the kind referred to in the
conflict of interest concept (and
the Attorney General so held in
1956, confirming the holding again
in 1958), then surely the act of
moving the camera into the Li-
brary for the latter's convenience
in facilitating use of its books did
not change the nature of the
transaction; and if the sale by
the University to University
Microfilms of photographic ex-
posures of books does not con-
stitute such a prohibited contract
(which the Attorney General also
held in 1956), then the sale of
photographic exposures of catalog
cold storage facilities.
ON THE BASIS of the rationale
in the Attorney General's earlier
opinion, we must then conclude
that the changed conditions re-
ferred to in the Attorney General's
most recent opinion do not rep-
resent "contracts" with the Uni-
versity in which Mr. Power has
an interest within the meaning of
the constitutional language.
We are left, then, with a set of
practices that have arisen between
the company and the University,
and an assertion that these prac-
tices create a relationship between
the company and the University
which, because of its magnitude
and complexity, is prohibited by
the "substantial conflict of in-
~-est" inhibition of the constitu-
tion. -
This is a conclusion that, in
the absence of authoritative inter-
pretation, the Attorney General
drew from the general language of
the constitution itself. While not
all lawyers would necessarily share
that view, (indeed, we tend not to)
his legal conclusion cannot be
proved wrong. As a practical mat-
ter neither review by the Supreme
Court nor appropriate legislation
could be achieved in anything like
a timely manner.
Time consuming litigation would
have to originate in the lower
courts. Further, legislation wisely
responsive to the relevant con-
stitutional provision could not pos-
sibly be drafted in time to meet
the almost immediate deadline
covering introduction of such bills
in this session.
Political realities also suggest
that our long range interest in
securing only wise legislation on
the whole conflict-of-interest
question would not be served by
having a "live" case serve as the
focal point of legislative debate.
BECAUSE THE Attorney Gen-
eral's decision rested upon a con-
stitutional norm of uncertain con-
tent and a factual judgment turn-
ing largely on a question of degree,
it becomes peculiarly important to
make some evaluation of the ethi-
cal implications of the situation.
For this reason, it is relevant and
highly material that the relation-
ship between the company and
the University has benefited the
latter by helping it perform its
function in an effective and eco-
nomical manner.
It is surely clear that the func-
tion of a scholarly library main-
tained by a public educational in-
stitution is the preservation and
dissemination of the scholarly ma-
terials entrusted to it. To view
such an institution as analogous to
a business institution which should
apply commercial criteria to its
transactions with the public is
completely to misconceive its
function.
For the University Library there
is no higher principle than the
obligation it has to make its re-
sources available to all, not just
within the University, but within
the state, and indeed within the
entire world of scholarship, at as
small a cost as possible and with
as little injury to the collection
tion by taking advantage of the
unique reproduction and distri-
bution facilities of a local private
enterprise.
The very essence of the matter
here under consideration is the
fact that the large scale repro-
duction and distribution oflibrary
resources by University Micro-
films is in itself a device through
which the Library has been en-
abled to perform its highest func-
tion, with least possible expendi-
ture of its own resources which are
in such great demand for the con-
tinuing improvement of the col-
lection.
The fact is that the greater
the volume of reproduction and
distribution accomplished, the
greater is the advantage to the
Library in the performance of
its function.
Whatever be the proper legal
conclusion, there was no ethical
conflict between interests which
were in effect identical. And the
Attorney General did not suggest
otherwise.
-Luke. Cooperrider
Professor of Law
-L. Hart Wright
Professor of Law
Endorsements
To the Editor:
T HE SUNDAY LETTER from Ed
Robinson's opponents for the
presidency of SOimplied unfair
personal favoritism and accused
Robinson of political irrelevance
because seven prominent people
have given him their personal en-
dorsement. This seems to the op-
ponents to be a method of getting
around organizational endorse-
ment, but it is no such thing.
Mr. Robinson has the support
of people who have been working
with him for a long time-who
should be better qualified to know
his capabilities?
The final paragraph of the op-
ponents' letter states, "The most
prominent campus leaders have
remained discreetly aloof from
this 'friendship contest.' These
people include the current presi-
dents of SGC, IFC, Panhel, IHA,
and UAC."
His opponents' attempt to indict
Mr. Robinson here with slanted
language in no way invalidates
the judgements of the people who
have finished their terms within
the past month, whose records
show a year of capable service,
and who know thoroughly the
workings of campus organizations.
WE FEEL that their judgements
can and should be taken very
seriously, along with those of the
organizations and with informa-
tion gained through exposure to
the candidates personally in
speaking engagements and in the
coming debate.
-Cris Brooks, '68
-Sue Redfern, '68
-Nancy Shaw, '68
Questions
THE QUESTION remains: How
long can we continue to play
A
fI
40
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