Advice and Consent


Leonard Zwelling

         It’s right there in Article II, Section 2, Clause 2 of the
US Constitution. “He shall have Power, by and with the Advice and Consent of
the Senate…”.

describes the time-honored principle of legislative review of presidential
appointments and treaties. The recent adoption of the so-called “nuclear
option” (I have no idea why they call it that) that reduces to a simple
majority what was originally a necessary two-thirds vote by the Senate to
approve judgeships appointed by the President still leaves the power to
overturn Presidential action in the hands of the people’s representatives (now;
remember originally the people did not elect the Senate).

into the fabric of the document that defines our nation is the idea that one
man (or woman?) could not run the government all by him- or herself. The
Founding Fathers had quite enough of kings. Even when designing the city that
would bear his name with L’Enfant, George Washington made sure that the
People’s House was on the hill and the President’s down in the valley. The
action of the Executive would always be under the scrutiny of the
representatives of the people.

         Corporate America does oversight differently.
Publicly-traded companies have boards of directors whose fiduciary role is to
oversee the operations of the company and the behavior of its executives to
maximize value for shareholders. This not working properly is what blew up
Enron. The corporate board was effectively kept in the dark by the executives,
failed to ask the right questions, and thus dropped the ball on its fiduciary
role of protecting the interests of the stockholders or the people who worked
at the company.

         Even in the non-profit world, most reasonable-sized agencies
have boards that oversee the finances and projects of the non-profit organization
and make sure what is done is in service of that organization’s mission.

         Academic medical centers in the UT System—not so much.

         Let’s take one example. Can you guess which?

         MD Anderson has no oversight of its operations or the
behaviors of its executives. In theory this falls to the Board of Regents in
Austin but its members really have no particular expertise in health care let
alone cancer care and are political appointees of the first order with little
loyalty to anyone but the Texas Governor.

         I am asked about the Board of Visitors

frequently? Does this board
oversee the success or failure of MD Anderson’s leadership?

BoV is a bunch of very wealthy donors that bears a striking resemblance to the
boosters club of a large college athletic program. Their insight into health
care or cancer care is also minimal if any at all (other than as patients and
families thereof and that does not teach you how to run a hospital) and the
degree to which they influence the behavior of the leadership or events on the
ground is virtually none and completely at the discretion of that leadership.
They meet infrequently and clearly have allowed a ton of bad behavior to
persist through at least two presidents of Anderson without taking any
reasonable action. I wonder if they would have been so forgiving if the money
being squandered were their own? Wait. Some of it was! The BoV has no fiduciary
responsibility to oversee the decisions of the executives, if they even know
what they really are.

         The mess that is the current leadership of Anderson is
amplified by the fact that no one with any insight, understanding or courage is
watching the store.

         Or, as I said to a very prominent BoV member recently, “with
all the smart businessmen and women on your board, how could you let this

         It is long past the time when the $3.3B MD Anderson Cancer
Center must acquire a true oversight board at the local level that holds the
leadership accountable for the knuckleheaded things it keeps doing from silly
statements on national TV, to grant applications for their wives, to intense
conflicts of interest, to the random dismissal and hiring of major players in
the institution’s executive suite without national searches.

         The Board of Regents can appoint the MD Anderson Oversight
Board but appointees should have some expertise in at least one of the mission
areas of MD Anderson or real-world experience supporting such activities (e.g.,
hospital administration, clinic operations, research regulatory affairs,
post-graduate science and medical training, etc).

have some advice—seek consent. I have some even better advice—I’ll keep that to
myself. I don’t give second opinions without being paid

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