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Committee on Open Government Disputes UB Foundation Ruling

Five years after the Honorable Patrick H. NeMoyer, J.S.C. ruled that the UB Foundation is not a public body and therefore not subject to the Freedom of Information Law, the Committee on Open Government (COOG) has issued an advisory opinion disputing that decision. Artvoice covered the case on March 31, 2011, in a story that raised eyebrows all over New York State. Click here to read it.

On Thursday, February 18, responding to a request from Manhattan-based good government group Reinvent Albany, COOG concluded that the Court’s decision was “inconsistent with judicial precedent.”


Here is the advisory opinion, with links to referenced documents:

We are in receipt of your inquiry regarding the application of the Freedom of Information Law (FOIL) to the University of Buffalo Foundation, Inc. (UB Foundation).

You include in your e-mail a copy of a response to a recent FOIL request to the UB Foundation, wherein the Foundation replied that “[b]ased on various decisions of the New York State courts, please be advised that the UB Foundation and its affiliates, including FNUB, Inc., are not subject to the FOIL.” The Committee respectfully disagrees with that conclusion.

While it is accurate that the Court in Quigley v. University at Buffalo Foundation, Supreme Court, Erie County, March 2, 2011, held that the UB Foundation is not an “agency” subject to FOIL, nor is it a “public body” subject to the Open Meetings Law, it is our opinion that this decision is inconsistent with prior judicial determinations regarding “foundations” chartered by the Regents of the State of New York created to support and promote the activities and programs of the State University of New York (SUNY) and the City University of New York (CUNY).

The Committee has rendered several opinions relating to this matter which are available on our website (See FOIL Advisory Opinions, Letter “S,” scroll down to “SUNY or CUNY Foundation.”

Perhaps most analogous to the situation described is a decision in which it was held that a community college foundation associated with a CUNY institution was subject to FOIL, despite its status as a not-for-profit corporation. In so holding, the Court in Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988 stated:

“At issue is whether the Kingsborough Community College Foundation, Inc. (hereinafter ‘Foundation’) comes within the definition of an ‘agency as defined in Public Officers Law §86(3) and whether the Foundation’s fund collection and expenditure records are ‘records’ within the meaning and contemplation of Public Officers Law §86(4).

The Foundation is a not-for-profit corporation that was formed to ‘promote interest in and support of the college in the local community and among students, faculty and alumni of the college’ (Respondent’s Verified Answer at paragraph 17). These purposes are further amplified in the statement of ‘principal objectives’ in the Foundation’s Certificate of Incorporation:

‘1 To promote and encourage among members of the local and college community and alumni or interest in and support of Kingsborough Community College and the various educational, cultural and social activities conducted by it and serve as a medium for encouraging fuller understanding of the aims and functions of the college.’

Furthermore, the Board of Trustees of the City University, by resolution, authorized the formation of the Foundation. The activities of the Foundation, enumerated in the Verified Petition at paragraph 11, amply demonstrate that the Foundation is providing services that are exclusively in the college’s interest and essentially in the name of the College. Indeed, the Foundation would not exist but for its relationship with the College.”

In another decision relating to SUNY foundations, Siani v. The Research Foundation of the State University of New York, Supreme Court, Albany County, March 26, 2007, the Court concluded that the SUNY Research Foundation is an agency required to comply with FOIL. Specifically, the Court found that:

“The powers and duties of the Research Foundation as found in its charter are to assist in developing and increasing facilities of the State University of New York by making and encouraging gifts, grants and donations of real and personal property, to receive, hold and administer gifts, grants and to finance studies and research of benefit to and in keeping with the educational purposes and objectives of the State University.”

“Given the functional relationship between the Research Foundation and the State University, the importance of the role played by the Research Foundation in the educational efforts of the State University and the power it has with respect to sponsored programs of the State University, the Research Foundation exercises a governmental function and is therefore, subject to the provisions of the Freedom of Information Law.”

The Court in Hearst Corporation v. Research Foundation of the State of New York, Supreme Court, Albany County, September 17, 2010 followed the decision in Siani.

In a case involving SUNY and the Empire State College Foundation, Kelber v. University of the State of New York, Empire State College and Empire State College Foundation, Supreme Court, Albany County, April 14, 2010, after lengthy analysis, the Court directed Foundation to comply with FOIL and disclose records sought.

As in the case of the foundations in Siani and Eisenberg, the UB Foundation would not exist but for its relationship with SUNY Buffalo. Due to the similarity between the history (“chartered in 1962 by the Regents of the State of New York as a non-profit educational corporation in the same year in which the private University of Buffalo became part of the State University of New York (SUNY) system.” and mission (“to support and promote the activities and programs of the University at Buffalo, State University of New York.”) of the UB Foundation and the foundations presented in Siani and Eisenberg, as well as the functions of the Foundation and its relationship to the University, I believe the Court’s decision in Quigley that the UB Foundation is not subject to FOIL is inconsistent with judicial precedent.


Erie County Republicans Support Free Tuition for All

Filed under: State Politics
Tags: , ,

I applaud the Erie County Republican Committee’s efforts to make a college education free for all in-state children. The problems that the students in this video identify are all wholly solvable through legislation, and I’m sure that our local Republican delegation is working feverishly to ensure that every New Yorker attending a state school gets the free quality education that our post-industrial society requires. 

SUNY Chancellor Zimpher’s $2.7 Million Annual Slush Fund

Albany Times Union reporter James Odoto reveals how the Chancellor of the State University of New York has been spending lavishly on outside consultants, lobbyists, strategic planners and on and on—instead of using the talent already within the state university system. The $2.7 million/year comes from grant money won by SUNY researchers, via the SUNY Research Foundation. Click here to read the story.

Apparently, she doesn’t much believe in the “Power of SUNY” 


Public Comments…Anyone? Anyone?

A-dog-and-pony-show-was-just-one-of-the-many-actsSo you’ve heard about the new UB medical school, which is planned to rise nearly 200 feet into the sky at the southwest corner of Main and High streets? Did you know you’ve missed the public comment period by a month? Did you know there was a public scoping meeting on October 22, 2012 held “to provide an opportunity for the public to identify specific issues and environmental impacts that should be addressed in a Draft Environmental Impact Statement (DEIS) for the Phase 1 of the School of Medical and Biological Sciences”?

Here at Artvoice, we never receive notices about these kinds of meetings. Wonder why. We’re a newspaper and stuff.

Anyway, this October 22 event appears to have been one of the most pathetically under-attended meetings in the vast annals of dog and pony shows. Only one person signed in. And she didn’t have any questions to ask, according to this court reporter’s account of the meeting.

The event lasted a grand total of 22 minutes, including scintillating banter among Christopher Marcella, director of design for the State University Construction Fund; Christopher McGrath, project manager for the State University Construction Fund; and Pat Heaton and Ben Brazzell from EDR Companies, an environmental consulting firm based in Syracuse and Rochester that was working on the SEQR for the project.

The meeting was held at—where else?—St. John Baptist Church.

Click here if you are interested in looking at the piles of literature that have been generated around this secretive “Project 30B08.”


UB Foundation Paid $5,000/month to Fight Disclosure

The Albany Times Union takes a look at SUNY schools and their shadowy foundations. UB and Stony Brook lead the system in using foundation money to boost executive pay and lobby state lawmakers—to vote against a bill that would introduce sunlight to their operations, for example.

“I’m in the wrong business,” said Assembly Higher Education Committee Chairwoman Deborah Glick, D-Manhattan, when told of the Lackman contract.

The lawmaker said she would have expected the University at Buffalo’s foundation, not Stony Brook’s, to have been doing the big lobbying, since UB came up with the public/private partnership plan that became SUNY 2020. It allowed the campuses to raise tuition by $300 per year for five years.

But the massive UB Foundation didn’t spend anything on lobbying for 2020, according to records. In 2011 it hired the lobbying firm of Meara, Avella at $5,000 a month to target a bill that would require SUNY foundations to be subject to FOIL, the state ethics commission said. The firm also represents the university. Edward Schneider, executive director of the UB foundation, could not say why he did not include the lobbying expense on a federal tax form.

Click here to read the story.


SUNY Releases UB Shale Institute Report

This afternoon, SUNY Director of Communications David Doyle sent Artvoice a copy of the 162-page UB Shale Institute report requested by SUNY trustees. “In the interest of transparency,” Doyle writes, “the SUNY Board of Trustees is releasing the report it requested regarding the UB Shale Resources and Society Institute.”

Here is the accompanying statement:

The Board of Trustees is reserving comment at this time as it continues to review the UB Shale Institute Report. It does not view the public release of the report as the end of the process and may discuss possible responses or other related actions at a future public meeting.

Click here to read the report.

The report was only emailed to me at 1:51pm. But if you click here you can read the detailed defense of the report that is already up on the UB News Center website.

UB delivered the report to the SUNY trustees on September 27. So the UB News Center had two-weeks to craft its response to the report UB submitted. All that was left to do today was click “publish” when the Trustees decided to make it public.

Which really begs the question: Why the artificial delay in releasing this document?

UB could have released it immediately, as could have SUNY. Instead, I filed Freedom of Information Requests with both UB and SUNY on September 28.

Five days later I get this email from the UB FOIL officer:

Mr. Quigley,
Please be advised that I am in receipt of your Freedom of Information Law (F.O.I.L.) request dated September 28, 2012.
I am currently determining the availability and accessibility of the requested document(s) and I expect to be in further contact with you within twenty business days.  If you wish to make further inquiry regarding this particular FOIL request, please reference File Number 12-056.
Brian T. Hines
Brian T. Hines
Records Access Officer
Employee Relations
University at Buffalo
112 HRD Building
Buffalo, NY 14260-7022
(716) 645-4475
(716) 645-5904 (fax)
P  Please consider the environment before printing this e-mail.

And on the same day, this from the SUNY FOIL officer:

Dear Mr. Quigley:
This is to acknowledge receipt of your request for information from the State University of New York.
We are in the process of reviewing your correspondence and will be back to you within 20 business days regarding our response.
Thank you.
Jennifer LoTurco
Records Access Officer

Nothing appears to be redacted. So why the need to sit on it?

And why can’t the UB News Center simply report that the ultimate source of SRSI co-director John P. Martin‘s salary ultimately comes from one of the secretive and private UB Foundations (UBF)—entities that do not have to disclose who or what donates to them? It’s right there in the report, for crying out loud:

$60,000 John Martin – Research Professor (in-house title: Director of the Shale Resources and
Society Institute). This is a paid appointment @ .25 FTE from the Arts and Sciences
General Fund UBF. The department listed on the UBF form is the College of Arts and
Sciences. His appointment term in 12/15/11 – 12/14/14.
$4,914 Fringe Benefit costs on above (approx.)
$12,000 Travel support for John Martin @ $1,000 flat rate per month. This is added to his biweekly
paycheck from UBF. Travel is paid from the Arts and Sciences General Fund UBF

But no. UB News services still stubbornly reports the half truth:

The University at Buffalo’s College of Arts and Sciences has been the sole source of funding for the Shale Resources and Society Institute. There has been no sponsored funding for the institute.

Oh yeah? Prove it. Oh, that’s right, they can’t prove it—because UB won’t open up the books to their foundations, which control nearly three-quarters of a billion dollars.


UB Not Sharing Shale Institute Report

According to this report in Business First, the State University of New York at Buffalo is not publicly releasing the report it sent to SUNY Trustees yesterday concerning the Shale Resources and Society Institute (SRSI).

Artvoice has filed Freedom of Information Law requests with both UB and SUNY Trustees, seeking disclosure.

UPDATE: SUNY Director of Communications David Doyle says, via email: “The report the SUNY Board of Trustees requested from UB is under review and once that process is complete it will be made public.”


NEW Josh Fox Screening at UB Tonight, More Secret Docs, etc…


Tonight there’s a screening of Josh Fox’s short follow-up documentary to Gasland, entitled “The Sky is Pink.” The event takes place at 7pm in room 12, O’Brien Hall on the UB North Campus. It’s sponsored by the National Lawyers Guild SUNY Buffalo Law Chapter, and the UB Coalition for Leading Ethically in Academic Research (UBCLEAR).

The screening will be preceded by a short presentation on fracking from David Kowalski (Research Professor in Cell & Molecular Biology / author of the Re-Energize Buffalo blog), followed by a discussion of the recent controversy surrounding UB’s Shale Resources and Society Institute.

Below are links to documents released in response to a Freedom of Information Law (FOIL) request filed by local attorney John Lipsitz. These docs, pertaining to UB’s Shale Resources and Society Institute (SRSI), compliment the ones Artvoice posted here.


Resp 2

Resp 3(1)

Resp 3(2)

Resp 5

Two weeks ago, the SUNY Board of Trustees resolved to look into the SRSI. According to this September 13 Buffalo News story: “We’ll follow what the board has asked us to do,” UB Provost Charles F. Zukoski said Wednesday. “I would imagine they would like it within a week or two, and we’re very happy to write them that report.”

We’re now two weeks out from the request, but no word yet on the report to the SUNY Trustees.


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