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,
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