FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Anthony Barrett, Saul Mekies
and Richard Urkiel,
Complainants,
against Docket
#FIC 88-330
President and Executive Dean
of Western Connecticut State University,
Respondents July
26, 1989
The above-captioned matter was heard as a contested case
on September 30 and October 7, 1988, at which time the complainants and the
respondents appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
After consideration of the entire record, the following
facts are found and conclusions of law are reached:
1. By letter
dated August 2, 1988, the complainants requested that the respondent executive
dean allow them to inspect and copy all records of the University Foundation of
Western Connecticut, Inc. ("University Foundation").
2. By letter
dated August 19, 1988, and filed with the Commission on August 22, 1988, the
complainants appealed to the Commission, alleging no response to their request.
3. At the hearing
on this matter, the respondents moved to dismiss the complaint, claiming it was
too vague for the respondents to know the charge against which they had to
defend themselves. The hearing officer
denied the motion to dismiss.
4. By letter
dated November 7, 1988, the complainants Saul Mekies and Richard Urkiel moved
to re-open the hearing, claiming they were not given proper notice of the
continued hearing time. The motion to
re-open the hearing is hereby denied.
5. The
respondents claim the University Foundation is not a public agency and its
records are not subject to the open records provisions of the Freedom of
Information Act.
6. It is found
that the respondents never responded to the complainants' request for records.
Docket #FIC 88-330 Page
Two
7. The Commission
takes administrative notice of its decision and record in Docket #FIC 87-193.
8. As to whether
or not the University Foundation was created by government, the following facts
are found:
a. At its July 17, 1970, meeting, the Board of
Trustees for State Colleges passed a resolution authorizing the state colleges
(precursors to the state universities) to form foundations to receive gifts and
dispense funds for the colleges' facilities and activities.
b. On April 6, 1971, three private individuals
incorporated the Western Connecticut State College Foundation, Inc., precursor
to the University Foundation, as a private non-stock corporation.
c. One of the incorporators serves on the board
of trustees for Western Connecticut State University ("the
university"). He acted in his
private capacity when incorporating the University Foundation.
9. It is
concluded that, although a government entity authorized the college to create a
charitable foundation, the University Foundation was created privately, not by
government.
10. As to whether
the University Foundation is funded by government, the following facts are
found:
a. The University Foundation acts as a conduit
for private donations and pays most of its operating expenses with those
donations and income derived from them.
b. The University Foundation receives no
federal, state or municipal funds.
c. The University Foundation has in the past
received free services from the university, such as use of its mail room and
print shop.
d. In 1987, however, the University Foundation
began giving the university an unrestricted annual donation to cover any
incidental services or expenses attributable to itself. In 1987 this donation was $1,500.
e. The respondent executive dean receives all
his salary from the university. Among
the official duties for which he is compensated is acting as liason with the
University Foundation, on which he spends up to 10% of his work time.
Docket #FIC 88-330 Page
Three
The
respondent executive dean receives no compensation for his work as both a
trustee and the secretary of the University Foundation.
f. The respondent president receives all his
salary from the university. His
official duties include raising funds for the university from both state and
private sources. All state and most
private donations go directly to the university. The University Foundation has its own development account with
which it pays for its own fundraising activities. The respondent president receives no compensation for his work as
a trustee of the University Foundation.
g. The University Foundation uses its own funds
to pay a part-time employee to do its bookkeeping and all clerical work
pertaining to its assets.
h. The University Foundation uses its own funds
to hire a private accounting firm to provide tax and accounting services for
the foundation. It is not audited by
the state.
i. Four times a year the respondent president's
secretary types and distribute the minutes of the University Foundation's board
of trustees' meetings. She typed the
by-laws of the University Foundation.
Occasionally she types letters for the respondent executive dean, some
of which may be for his work with the University Foundation.
j. In the past members of the Western
Connecticut 100 Society, an athletic booster club under the aegis of the
University Foundation, received free university football season passes when
they gave donations to the society.
k. The university is now paid for the booster
club's football tickets.
l. The university's athletic director and his
administrative assistant work on an annual mailing on university stationery to
members of the booster club.
m. The booster club has been separated from the
University Foundation.
11. It is
concluded that the University Foundation is not funded or subsidized by
government to significant extent and it has recently taken steps to minimize
any incidental subsidy.
Docket #FIC 88-330 Page
Four
12. As to whether
the University Foundation is regulated by government, the following facts are
found:
a. The University Foundation's certificate of
incorporation, as amended on April 1, 1987, requires the respondents president
and executive dean to be permanent members of the foundation's board of
trustees. It also requires one member
of the university's board of trustees to be a permanent member of the
foundation's board of trustees.
b. After receiving funding requests from faculty
members, the respondent president makes funding recommendations to the
University Foundation's board of trustees.
While the other trustees are free to comment on the respondent
president's recommendations, they routinely adopt them.
c. At the March 12, 1971 meeting of the board
of trustees for state colleges, a member of that board was elected to serve on
the board of trustees for the as yet unformed foundation for the university.
d. At the July 23, 1982 meeting of the board of
trustees for state colleges, the trustees supported a suggestion to include
foundation chairpersons from each college on an honorary committee for
celebrating the change from state colleges to state universities.
e. The University Foundation's board of
trustees meet at a private location, not at the university.
f. While the records of the University
Foundation used to be housed in the office of the respondent president at the
university, the University Foundation now has an office at a private location,
where it houses its records.
13. It is found
that, although the University Foundation has taken steps to separate itself
from direct government involvement, in practice the respondent president's role
on the foundation's board of trustees amounts to significant government
regulation of the University Foundation's work.
14. As to whether
the University Foundation performs a governmental function, it is found that
accepting, managing and distributing charitable funds is not a governmental
function.
15. It is concluded
that at this time the University Foundation is not a public agency for Freedom
of Information Act purposes and not subject to its open records provisions.
Docket #FIC 88-330 Page
Five
The following order is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. The complaint
is hereby dismissed.
2. The Commission
urges the respondents to continue their efforts to separate the management of
the University Foundation from that of Western Connecticut State University.
PURSUANT TO 4-180(c) C.G.S
THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS,
PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS
CONTESTED CASE ARE:
ANTHONY BARRETT, SAUL
MEKIES, RICHARD URKIEL
85 Londmeadow Hill Road
Brookfield, CT 06804
PRESIDENT AND EXECUTIVE DEAN
OF WESTERN CONNECTICUT STATE UNIVERSITY
C/O TED D. BACKER, ESQ.
Pinney, Payne, VanLenten,
Burrell, Wolfe & Dillman, P.C.
26 West Street, P. O. Box
650
Danbury, CT 06813-0650
Approved by order of the Freedom of Information
Commission at its regular meeting of July 26, 1989.
Karen
J. Haggett
Clerk
of the Commission