, Muskogee, OK

May 12, 2013

Foundation practice comes into question

By suggesting successors, board members may be infringing on City Council's turf

By D.E. Smoot
Phoenix Staff Writer

— City of Muskogee Foundation board members may be usurping the City Council’s authority to nominate and appoint members to the nonprofit corporation’s board.

The foundation’s bylaws appear to give city councilors sole authority to nominate and appoint foundation directors. Appointments approved by city councilors in 2012, the first year that at-large directors came off the rolls because of the expiration of their terms, were made based upon recommendations by foundation directors.

Mayor Bob Coburn presented a second slate of four nominees to replace three members whose terms will expire July 31 and fill a new 14th position. Although the slate appears likely to win confirmation Monday, the nomination process raised red flags for some.

The foundation was funded with proceeds from the long-term lease of the former Muskogee Regional Medical Center to Cappella Healthcare. Its board of directors — made up of nine at-large members, two city councilors, the mayor and the city manager — is entrusted with overseeing and investing those assets to meet the foundation’s goal of improving the quality of life in Muskogee.

City Attorney Roy Tucker agreed that the nonprofit’s bylaws could be interpreted in a way that grants city councilors the sole authority to nominate and appoint foundation board members. But he defended the legitimacy of the 2012 appointments based upon an interpretation offered by the foundation’s executive director and the fact that councilors can reject nominations pre-approved by foundation directors.

“I don’t disagree that it would be a better practice to provide all the names” of those who were vetted by foundation directors, Tucker said, noting that the foundation’s executive staff declined to make those names available. “But based upon their interpretation, which seems reasonable to me, I don’t see where there has been a violation of the bylaws.”

Although foundation board members pre-approved the nominees put forward in 2012 and again this week, Tucker said that technically the mayor — one of nine city councilors — nominated the prospects. Final approval of the proposed appointments rests with city councilors.

That interpretation, however, seems to seize from the eight remaining City Council members their authority to nominate and appoint foundation directors. One city councilor seated when the foundation was created said the process contradicts the original intent of the foundation’s bylaws, which have been amended twice.

Deputy Mayor David Jones is one of only two city councilors who held office in 2008 when the foundation was created. Although he acknowledged the foundation’s successes, he expressed concerns about the evolution of the nomination process.

“My concern is that it appears some group at the foundation got together and made some decisions about who ought to serve on the board,” said Jones, who supports the four nominees to be considered Monday.

“All of a sudden we see these recommendations and are supposed to make a decision without a chance to put forward our own nominations — we are just confirming something that already seems to have been decided.”

Jones said he has no problem with foundation directors offering the names of people who may want to serve. But he would prefer that councilors get advance notice of coming vacancies, “so we can have more input in the process.”

“People on the foundation (board) putting on people they want is not the intent of the bylaws,” Jones said. “I am proud of the foundation and what it’s been able to accomplish, but I think going forward this point is made so the process is put back in the hands of the City Council.”

Ward I Councilor Lee Ann Langston, who was elected to her first term just more than a year ago, said that because the City Council is “ultimately responsible” for the foundation’s work, councilors should have more input in the nomination process.

“I want more participation in city governance, and I think the more open and transparent we are the better off we are,” she said. “We continually see all the same people on these committees ... but I think there are a lot of other people out there whose voices we are not hearing.”

Langston said she has no problems with anybody who has been a foundation board member or any of the latest four nominees. She said board members and the foundation’s executive director “are doing a good job” and the city is “getting a lot of mileage” from the nonprofit.

Frank Merrick, the foundation’s executive director, said he interprets the bylaws’ provisions for the nomination and appointment of board members as a method intended only for the selection of the first nine at-large members.

He stood by that position even though the amendments to the bylaws made since those first members were seated did not affect the nomination and appointment process .

“We feel we are following the bylaws to a ‘T’ — what we try to do is find the skill sets we need to run the foundation,” Merrick said, acknowledging that the bylaws may be due for revisions.

“The nominating committee brought forward the names of those they thought would serve the best interests of the foundation, and they (councilors) have a chance to reject, fire and replace any member on that board.”

The nominees to be considered Monday are: Daniel Miller, a financial adviser; Leigh Ann Mathews, a business owner; Earnie Gilder, a real estate broker whose first appointment expired in 2012; and Johni Wardwell, a retired educator.

Reach D.E. Smoot at (918) 684-2901 or