Elon Musk can’t just ask ‘his brother and his besties’ to pay him $46 billion, NYC comptroller says

Some shareholders are clearly in the camp that the pay package is too high and a strong indicator of failed corporate governance on the Tesla board. Other investors, including an army of small retail holders, have already voted in support of Musk.

At a meeting of Tesla investors on Tuesday, including New York City Comptroller Brad Lander, representatives made their case for voting against supporting Musk’s 2018 pay package a second time at the company’s annual shareholder meeting this month. Lander, whose office manages $271 billion in assets across five NYC retirement funds, said the Tesla board has repeatedly failed to provide the independent governance on behalf of shareholders that they are legally obligated to provide. Lander noted that the five NYC funds hold 3.4 million shares of the electric vehicle maker, worth about $627 million. Lander has said the funds will vote against the the Tesla CEO’s pay and against the reelection bids of board members Kimbal Musk, Elon Musk’s brother, and James Murdoch. Both are hopelessly conflicted, Lander said.

“This vote is not a referendum on Elon Musk as CEO,” said Lander. “He is a visionary whose role in Tesla in the past has been critical but there must be independent shareholder governance that makes sure pay packages are reasonable. This pay package is not reasonable.”

Tesla did not immediately respond to a request for comment.

Musk’s pay was rescinded in January by a Delaware Chancery Court judge who determined the board’s process for awarding stock options then valued at $56 billion to Musk lacked independence and that the deal wasn’t properly negotiated. After the ruling, Musk announced that he would seek to move Tesla’s headquarters from Delaware to Texas, where courts might be more deferential than in Delaware. The Tesla board has asked investors to reapprove Musk’s pay and the move south. Shareholder advisory firms Glass Lewis and Institutional Shareholder Services have recommended that investors vote against the pay package, while the Tesla board and its independent chair Robyn Denholm are urging investors to back the company and its CEO.

According to Lander, however, Tesla doesn’t have a full-time CEO who is focused on growing the EV maker and that Musk is “chasing shiny new objects” at the moment. He and other investors in the past have complained that Musk isn’t focused enough on Tesla and is distracted by social media and half a dozen other companies where he holds leadership roles including X, xAI, Neuralink and The Boring Company.

Ivan Frishberg chief sustainability officer of Amalgamated Bank who leads shareholder engagement, said Musk is increasingly distracted and that it’s a growing concern because Tesla is facing significant headwinds. Those come in the form of greater global competition for Tesla’s core product, development delays, and labor disputes. Frishberg said it was particularly concerning that two corporate directors departed and reports blamed the board’s level of deference to Musk as an underlying reason. Close relationships between the board members including longstanding friendships, familial relations, and interwoven business dealings are part of investors’ mounting concerns, he said. The bank’s clients hold 600,000 shares of Tesla on behalf of its funds, and Frishberg said they would vote against Kimbal Musk and Murdoch in the election vote due to the lack of independence on the board.

In the area of Musk’s pay, what’s happening at Tesla could lead to reverberations across the capital markets, warned Lander. Tesla investors and NYC retirees deserve to have a sufficiently independent board overseeing Musk and safeguarding their investments, argued Lander.

“When billionaires are allowed to flout the rules, normal people suffer,” he said. “A billionaire can’t just have his brother and his besties be the ones to decide what rules they’ll follow, what courts they’ll listen to, and what rules they’ll abide by.”

Lander, who previously told Fortune that his office hasn’t been able to even get a call back from the Tesla board about its concerns, described Musk’s pay package as “outrageously large and insufficiently governed” at Tuesday’s meeting.

Comptroller Brooke Lierman, an elected official in Maryland, said at the meeting this week that Tesla’s poor track record of managing its workforce and the board’s lack of attention to human capital concerns presented a significant risk to weigh in determining how to vote.

“Suffice it to say that for Tesla to succeed, we need a management team that is on the ball,” said Lierman. And an effective board at Tesla should “make sure somebody is standing up to the CEO when necessary.”