“Harken” University’s unethical investments

BY CLIFFORD GINN

In the last week, articles in twenty news outlets and a report released by the student organization HarvardWatch have detailed how Harvard University bailed out Harken Energy through a series of questionable transactions in the late 1980s and early 1990s, during the period when George W. Bush was a director of the company. These revelations demonstrate a need for disclosure, investigation, and reform.

In 1986, Harken Energy bought Bush’s failing oil company and made him a director and “consultant.” One month later, Harvard began investing heavily in Harken, ultimately becoming its largest shareholder and placing two directors on Harken’s seven-member board. Harvard’s directors held positions on the boards of entities managing Harvard’s endowment, and each held 10,000 shares in Harken, in clear violation of conflict of interest standards for nonprofits. Robert Stone, a member of the Harvard Corporation (Harvard’s executive governing board), was a prime mover in getting the University invested in Harken, and has longstanding ties to the Bushes. The other Corporation members at the time made virtually all their political contributions to Republicans.

In 1986, liquidity and solvency crises were driving Harken toward bankruptcy. Harken attempted a phony asset sale (the “Aloha” transaction reported in the press), but the SEC caught them. In May 1990, Harvard and another large shareholder lent Harken $46 million to keep the company afloat. This did not address the company’s liquidity problems, however, and Harken soon defaulted on its loan covenant with one of its two main banks. On Bush’s motion, the board voted unanimously to negotiate an off-the-books “joint venture,” between Harken and Harvard, similar to the partnerships Enron used to hide its true financial status from investors and creditors.

In November 1990, Harken and Harvard created the Harvard Anadarko Partnership (HAP). Harvard contributed $64.5 million, 91 percent of the investment, but accepted just 84 percent of HAP’s earnings. Harken contributed $6 million — assets valued at $26 million plus $20 million of debt and liabilities. Transparent only to Harken insiders, HAP deceptively brightened Harken’s balance sheet. Harken concealed $20 million in debt and liabilities, creating an appearance of solvency. By taking a diminished share of HAP’s earnings, paying Harken fees to run HAP, paying most of HAP’s operating expenses, and paying interest on debts that Harken had contributed to HAP, Harvard both funneled revenues to Harken and reduced Harken’s yearly expenses. By effectively transferring millions of dollars to Harken, Harvard addressed the company’s liquidity crisis.

Not surprisingly, HAP’s creation inflated Harken’s stock price, which rose to an all-time high. Harvard took advantage of this opportunity to sell $7.47 million in stock. Harvard later bought out Harken’s share at a generous price, and then sold HAP’s assets to Cabot Oil and Gas for $34.5 million, half of what Harvard and Harken had collectively invested initially. (The Cabot family has played a central role in managing Harvard’s finances for decades.)

While HAP appears to have followed accounting rules, the combination of the partnership’s creation and the stock sales raises serious questions about market manipulation. Given Harken’s flirtation with bankruptcy, the transfer of assets to a partnership controlled by its largest shareholder might raise issues of fraudulent conveyances or voidable preferences. We cannot know the answers without access to the HAP’s business records, and Harvard refuses to disclose any information about its dealings with Harken.

The possibility that Harvard broke the law, while troubling, is not really the heart of the matter. Even if Harvard did not violate the law, its willingness to throw good money after bad violates standards for nonprofit investors. Harvard’s investment in the HAP was at least twice the size of its original stake in Harken, and its loans to Harken also nearly doubled that stake. Harken was among the worst-performing companies in a high-risk industry. Harvard’s pumping of money into an already anomalous (if not bizarre) investment seems difficult to explain, and the Harvard Corporation owes us all an explanation.

Students are rightly calling for full disclosure, an independent investigation, and a public meeting with the Harvard Corporation, as well as development of an open investment policy and a more transparent and democratically accountable university governance structure. Whether Harvard’s bailout of Harken was politically motivated, or had some other reason behind it, President Summers is absolutely right when he talks about the central importance of transparency in financial transactions and corporate governance. The Harken transactions, the University’s investments in apartheid South Africa, and Harvard’s use of sweatshop labor to make its apparel can only happen in a culture of secrecy, a culture incompatible with the University’s professed commitment to accountability, honesty, integrity and democratic values.

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