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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.


UB Walks Away from McCarley Gardens Purchase

Boy, that was five years of architectural drawings and bogus public meetings for nothing. Hooray!

To celebrate, here’s a picture of former UB Foundation chair Francis Letro (far left) celebrating the now defunct Moreland Commission to Investigate Public Corruption.

Outgoing UB Law School Dean and former member of the Moreland Commission Makau Mutua is currently being accused of perjury. What’s not to smile about?

From left: Francis Letro, outgoing UB Law School Dean Makau Mutua, NY Governor Andrew Cuomo, UB President Satish Tripathi, and Erie County DA Frank Sedita III

From left: Francis Letro, outgoing UB Law School Dean Makau Mutua, NY Governor Andrew Cuomo, UB President Satish Tripathi, and Erie County DA Frank Sedita III

Hillary Clinton Was Paid $275,000 by UB Foundation

Last week, NYS Assemblyman Kieran Michael Lalor told UB president Satish Tripathi to come clean about how much Hillary Clinton was paid by the secretive UB Foundation to speak at the university last year.

“The University at Buffalo is a public university, it should be open and transparent about how it spends money. The same goes for the University’s foundation. When the foundation spends exorbitant amounts to bring in guest speakers, it means taxpayers will be making up the difference elsewhere. That’s why taxpayers should know how the foundation spends its money. You can’t separate the University from the foundation.”

Read his entire open letter published in the Rockland County Times on July 10 by clicking here.

On July 11, I sent an email to UB spokesperson John Della Contrada and UB Foundation president Ed Schneider asking if they had any comment on the commotion. Neither of them replied.

Today, the Public Accountability Initiative shares the contract they procured by filing a FOIL request to UB asking for records concerning Clinton’s appearance—by seeking communications between the private foundation and the state university. Click here to read it. The former First Lady, Senator and Secretary of State was paid $275,000 for her appearance at the public school. After the Harry Walker Agency took its cut, the net proceeds then went to the Clinton Foundation, apparently.

The Washington Post covers all this quite nicely here.

It marks another proud moment for the UB Foundation—still as afraid of sunlight as any vampire would be.



The Disingenuous Dr. Tripathi

Back on December 3, 2013, the Faculty Senate of the State University of New York at Buffalo passed a resolution asking the UB Foundation(s) to make its records public. The Spectrum student newspaper covered it well here.

"As UB President, my hands are tied."

As UB President, my hands are tied.

On March 5, 2014, UB President Satish Tripathi, after three months of thought, was able to condense his response down to a six-paragraph letter to Professor Ezra Zubrow, Chairman of the Faculty Senate. Click here to read it.

This bit is a real gem:

The resolution asks that “the President and administration of the University at Buffalo make available the budget of UBF and its associated foundations as if it were subject to FOIL.” As a not-for-profit 501(c)(3) corporation, the University at Buffalo Foundation, Inc. is outside of my purview as University at Buffalo President. Neither I as President, nor the University at Buffalo as an institution, have the legal authority to make available any records held by the UB Foundation as a private corporation.”

What the coy Tripathi fails to mention in his letter is that he is also on the Board of Trustees of the University at Buffalo Foundation, Inc. Not only that, but he is the sole member of the Compensation Committee of the UB Foundation and its many affiliates, under the chairmanship of Francis Letro. The two of them are charged with “determining compensation for the operating staff of the Foundation and its Affiliates,” and various other salary top-offs for NYS employees and administrators scattered all over the place.

Magnanimously, Tripathi adds this:

Please note, however, that acting of its own accord, the UB Foundation, Inc. has made public much of its financial information. All audited financial statements of the University at Buffalo Foundation, Inc. are published online by that corporation and can be readily accessed on the UBF website. It is also my understanding that the UB Foundation will be making available (via the UB Foundation website) its official IRS 990 tax forms.

Gee, thanks. The audited financial statements have been available at the UBF website for years. They shed exactly zero light on the things the Faculty Senate is interested in. What’s more, the IRS 990 tax forms have already been available for free through for years. Guidestar obtains them from the IRS. The only way the UB Foundation could keep its 990s from becoming public would be to stop filing tax returns.

stop filing tax returns

As it is, the most recent, publicly-available UB Foundation 990 only accounts for fiscal year July, 2011—June, 2012. Click here if you want a copy.

So the faculty of our public university asks the university president to share current information that he has access to as a UBF Board member, and after three months of delay, the president offers them publicly-available information from two years ago.

from two years ago







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.


More on that UB Letter…

denialConcerning yesterday’s blog post

Click here to see the actual reply that was sent to Veronica Hemphill-Nichols by UB Assistant Vice President for Government and Community Relations Michael Pietkiewicz on January 23.

It fails to address the requests made by Fruit Belt and McCarley Gardens residents in this letter sent to UB Foundation chairman Francis Letro on January 15.

The January 15 letter was sent after face-to-face requests for the same information were made by George K. Arthur at a December 13 meeting with members of the Economic Opportunity Panel (EOP) that is supposedly interfacing with residents of the Fruit Belt and McCarley Gardens. Although panel members promised to convey the requests to the UB Foundation and UB President Satish Tripathi, the January 3 deadline for a reply (imposed by Arthur) came and went with no response. Hence the need to send the request in writing on January 15 to the chairman of the private UB Foundation—who apparently punted and assigned the job of responding to state employee Pietkiewicz, who writes in his January 23 reply:

“As you know, the University at Buffalo is actively engaging multiple stakeholders around the Buffalo Niagara Medical Campus, including Fruit Belt and McCarley Gardens residents, on a variety of issues. Separately St. John Baptist Church has facilitated numerous meetings with tenants of the McCarley Gardens during this process and will continue to do so in the future. The Economic Opportunity Panel (EOP) has offered multiple opportunities for public input through dozens of individual and group interviews and meetings where residents and neighbors have been encouraged to voice their concerns.”

It’s one thing to hold meetings and let people voice their concerns. It’s another thing to communicate those concerns back to people in power—which the EOP apparently failed to do after the December 13 meeting. Either that, or they communicated residents’ concerns, and the people in power decided the proper response was to ignore them.







UB Responds to Fruit Belt, McCarley Residents

UB Foundation Receptionist: "Who is this man?"

UB Foundation Receptionist: “Who is this man?”

As we reported in this week’s print edition, representatives of the Fruit Belt and McCarley Gardens apartments sent a letter to UB Foundation chairman Francis M. Letro on January 15, requesting access to a contract signed between the foundation and Oak-Michigan Housing Development Fund Company, Inc.—a development arm of St. John’s Baptist Church in April, 2010. Back then, the foundation agreed to pay $15 million for the moderate-income housing development—with the intent to relocate residents and knock it down.

In the letter, Fruit Belt and McCarley representatives Veronica Hemphill-Nichols and Lorraine Chambley also requested the dissolution of the current “economic opportunity panel” that met with disgruntled residents on December 13. That panel is comprised of Dennis Black, vice president of University Life and Services at UB; June Hoeflich, a UB Council member and former CEO of the now-defunct Sheehan Hospital; Paul A. Tesluk,  the Donald S. Carmichael Professor of Organizational Behavior at the UB School of Management; Colleen B. Cummings, former executive director for the Buffalo Employment and Training Center; Brenda W. McDuffie,  president and CEO of Buffalo Urban League, Inc.; and Judge James A. W. McLeod. Assisting the panel are Marsha Henderson, former UB vice president for external affairs, and current “consultant” to the UB president; and Dr. Bradshaw Hovey, Senior Fellow, UB Urban Design Project and UB Regional Institute.

The panel was named by UB and St. John’s, but residents are calling for a new panel to be to be convened—one that would consist of actual Fruit Belt residents, in a ratio of 2:1.

Finally, residents demanded that all meetings be open to the general public, and to the press in particular.

Chairman Letro did not respond to the letter. Instead, the private UB Foundation—which is putting up $15 million for the sale—tasked UB Assistant Vice President for Government and Community Relations Michael Pietkiewicz with sending a response to Hemphill-Nichols on behalf of foundation chairman Letro. The response was copied to Letro, Mayor Byron Brown, Councilmember Darius Pridgen, Buffalo-Niagara Medical Campus President and CEO Matthew Enstice, UB President Satish Tripathi, UB Neighborhood Outreach Coordinator Linwood Roberts, St. John’s Baptist Church Reverend Michael Chapman, and McCarley Gardens tenant Lorraine Chambley.

Pietkiewicz’s response does not address the call to dissolve the current panel and reconstitute it to include Fruit Belt residents (strike one). Nor does it mention the call that meetings be made open to the public and press (strike two). It also avoids answering the residents’ request for access to the actual contract signed between the UB Foundation and St. John’s on April 5, 2010 (strike three).

Instead, a link is offered to the “contingencies” included in the contract. Click here to read them, as they are described in a press release issued by UB spokesperson John Della Contrada, back when the contract was signed.

The first contingency states:

• Within three years, Oak-Michigan Housing Development Corporation will develop a plan to relocate the residents of McCarley Gardens into new and improved housing. The plan must be approved by HUD.

To date, no such plan has been approved by HUD. Looking at the calendar, it appears that the UB Foundation and St. John’s now have just 67 days left to secure HUD approval of a plan before this three-year deadline expires. It is also true that Reverend Chapman signed this 20-year renewal contract for McCarley Gardens with HUD on December 1, 2005—which should run until 2025 unless it can somehow be broken. Artvoice received that contract a couple years ago as the result of a Freedom of Information request to HUD.

Pietkewicz—who is on vacation in Florida until next Tuesday—explained via email that even though he is a New York State employee, he wrote the letter for the private UB Foundation. “In this case, a response to Ms. Hemphill-Nichols was more appropriate coming from UB’s Office of Government and Community Relations because our staff is actively engaged with community members who reside near the medical campus, including Ms. Hemphill-Nichols.”

Letro could not be contacted at the UB Foundation. The receptionist there did not know who he was. When it was explained that he is the UB Foundation chairman, his name still did not ring a bell. Instead, we were given the voicemail of Ed Schneider, Executive Director of the UB Foundation. Schneider has not returned the call.






Anti-Frack Group to Protest Shale Institute

New Yorkers Against Fracking will protest the UB Shale Resources and Society Institute (SRSI) outside the SUNY Board of Trustees meeting in Albany today at 12:30pm, according to this report on the Politics on the Hudson blog.

From the group’s press release:

“In the wake of University of Buffalo professors questioning the independence of the Institute, a report detailing errors in a report issued by the University of Buffalo Shale Resources and Society Institute, and news accounts that detail that the authors’ ties to the oil and gas industry were not appropriately disclosed, students and anti-fracking activists are pushing SUNY to stop supporting the University of Buffalo Shale Resources and Society Institute.”

What an embarrassing moment for new SUNY trustee Angelo Fatta, who left his position as chairman of the UB Foundation Board in June, in order to step into his new trustee position at SUNY. After all, funding for the SRSI report came from the UB Foundation, while he was chairman, according to a UB spokesman.

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