Tuesday, May 13, 2014

SUNY Deputy General Consigliere Marti Anne Ellermann, Freedom of Information, Open Meetings, and journalist ethics

SUNY Deputy General Consigliere Marti Anne Ellermann on (among other things) the written threat by the President of the SUNY-wide judicial administrators' group Clarence L. McNeill ( http://www.albany.edu/staff.php ) not to contact SUNY Albany's Records Access Officers and others, essentially her advice on the banning of FOIL requests for specific people (one, at least) who have the nasty habit of making FOIL requests relevant to serious crimes committed by SUNY: “I suggest no response.”

Did Ms. Ellermann not make an Oath of Office "I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of the office of ______________________, according to the best of my ability", or does she simply not take such an oath seriously?

"New York State Sunshine Laws, Open Meetings and Freedom of Information Law" PowerPoint by D. Andrew Edwards and Marti Anne Ellermann:

"Open Meetings Law does not apply to advisory bodies"; "Open Meetings Law does not apply to non-SUNY entities i.e. ASCs, Foundations"; denying students entrance to community college senate meeting is "exercising a 'quintessentially governmental function'" http://www.slideserve.com/elma/update-on-new-york-state-sunshine-laws-open-meetings-law-and-freedom-of-information-law-foil

Why would the SUNY Deputy General Counsel propagate such legal counsel? It would seem a conflict of interest for SUNY to provide it for SUNY foundations, aside from which: wouldn't every SUNY foundation have its own consigliere?

SUNY system administration indicated they do not keep records of who the FOIL officers are for University Foundations. Surprisingly, perhaps, they did not deny that the foundations are subject to FOIL or that they have Records Access Officers, which would have been the obvious response to make if they're not: https://www.muckrock.com/foi/new-york-16/suny-university-foundations-records-access-officers-4908/

.

The Committee on Open Government has repeatedly held for over twenty years that SUNY foundations and similar organizations are subject to FOIL:

July 15, 1993. http://docs.dos.ny.gov/coog/ftext/f7802.htm

"In a decision that involved what may be characterized as an adjunct of a public institution of higher education, it was held that a community college foundation, a not-for-profit corporation, and its records are subject to the Freedom of Information Law. As stated by the court:

"'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" (Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).”

April 19, 1996. http://docs.dos.ny.gov/coog/otext/o2599.htm

May 17, 1995. http://docs.dos.ny.gov/coog/ftext/f8835.htm

September 3, 1996. http://docs.dos.ny.gov/coog/ftext/f9667.htm

October 31, 1997. http://docs.dos.ny.gov/coog/ftext/f10401.htm

“I have received your letter in which you questioned the status of what you characterized as ‘shadow agencies', Health Research Inc. (HRI) and the SUNY Research Foundation (the Foundation), under the Freedom of Information Law. You suggested that both are not-for-profit corporations and that requests for records made to those entities were not answered.

“From my perspective, based on the terms of the Freedom of the Information Law and judicial decisions, the records of those entities fall within the coverage of that statute."

July 28, 2000. http://docs.dos.ny.gov/coog/ftext/f12228.htm

("Shadow agencies" describes SUNY foundations pretty accurately!)

May 21, 2001. http://docs.dos.ny.gov/coog/ftext/f12685.htm

January 17, 2002. http://docs.dos.ny.gov/coog/ftext/13140.htm

“I believe that the records of SUNY college foundations fall within the requirements of the Freedom of Information Law, irrespective of whether a foundation has an independent responsibility to comply with that statute."

February 6, 2006. http://docs.dos.ny.gov/coog/otext/o4130.htm

October 30, 2007. http://docs.dos.ny.gov/coog/ftext/f16851.htm

October 28, 2008. http://docs.dos.ny.gov/coog/ftext/f17411.html

Etc.! One wishes at some point the NYS Department of State's Office of General Counsel would have intervened given how many decades SUNY has been ignoring the advisory opinions of the NYS Department of State's Committee on Open Government. Or the NYS Attorney General, or the NYS Inspector General, or the US Attorney General, or the US Inspector General, etc.

A bill making the law more explicit that SUNY foundations are subject to FOIL has been obstructed, presumably because of the extent of corruption it would expose if FOIL requests were properly complied with by SUNY foundations:

Odato, James M. “FOIL too close for SUNY comfort; Some opposed to opening SUNY foundation files that may reveal its power.” Albany Times Union. March 30, 2014. http://www.timesunion.com/local/article/FOIL-too-close-for-SUNY-comfort-5362100.php

Note that article fails to acknowledge that the publisher of the Albany Times Union George Randolph Hearst III is the President of the Board of Directors of the University at Albany Foundation, a rather significant and relevant potential conflict of interest, and thus a significant lapse in journalistic ethics to omit. Did it not occur to Mr. Odato to disclose that, or did he know Mr. Hearst wouldn't want it disclosed, or did Mr. Hearst prohibit it from being disclosed?

If Mr. Hearst were committed to journalistic ethics (which he’s not) or freedom of information (which he’s not) he could, as President of the Board of Directors of the University at Albany Foundation, step forward and admit that SUNY university foundations are subject to FOIL, could he not? He won’t - presumably because it would incriminate him (though his failure to do so arguably incriminates him nearly as well).

At least the SUNY Research Foundation now explicitly acknowledges it is subject to FOIL:

"The Research Foundation complies with New York’s Freedom of Information Law (FOIL)."

https://portal.rfsuny.org/portal/page/portal/The%20Research%20Foundation%20of%20SUNY/home/Contact%20RF/how_to_get_info_about_rf/foil

Ironically, the SUNY Research Foundation appears to have acknowledged it is subject to FOIL due to the litigation by the Times Union, the newspaper published by the President of the Board of Directors of the University at Albany Foundation George Randolph Hearst III (the head of one of that class of foundations which claims not to be subject to FOIL, a fact which the same Times Union reporter again failed to disclose):

"The Research Foundation of the State University of New York has reversed its long-standing position and agreed it is subject to the state's Freedom of Information Law.

“Officials at the giant research arm of the public university system also agreed to use $30,000 from its $1 billion annual budget to pay legal expenses of the Times Union, which filed the lawsuit that forced the turnaround.”

Odato, James M. “SUNY ends FOIL test; Research Foundation agrees to public access; Times Union gets costs.” Albany Times Union. January 5, 2012. http://www.timesunion.com/local/article/SUNY-ends-FOIL-test-2444633.php

The Times Union also got to recoup its expenses for its two-faced litigation (two-faced in that I don't see George Randolph Hearst III's Albany Times Union instituting a similar lawsuit against George Randolph Hearst III's University at Albany Foundation anytime soon).

As SUNY Albany "professor" Michael Barberich lectured to his students: "Ha! We'll just skip over ethics."

Saturday, May 10, 2014

UAlbany's mistreatment of human subjects since 1977 (if not earlier)?

The University at Albany Handbook at http://www.albany.edu/senate/handbook_section1.htm has a number of bad links, of which the following are just a selection:

• Rules of the New York State Ethics Commission http://www.dos.state.ny.us/ethc/eisg.html (redirects to http://www.jcope.ny.gov )

• Research Foundation Conflict of Interest statement http://www.rfsuny.org/tto/conflict.pdf

• Office for Sponsored Programs http://www.albany.edu/research/osp/ (had a slow redirect to http://www.albany.edu/research/OSPindex.htm but now goes to http://www.albany.edu/osp/index.php )

• University’s Policy and Procedures on Misconduct in Research and Scholarship http://www.albany.edu/senate/Misconduct_draft_version_Sept_2004.htm (works - but still only a draft after almost ten years?)

• Research Safety and Compliance http://www.albany.edu/researchcompliance/contact.htm

• Research Involving Human Subjects http://www.albany.edu/researchcompliance/IRB/IRB.htm

• Research Involving Animal Subjects http://www.albany.edu/researchcompliance/IACUC/IACUC.htm

• Research Involving Radioactive Materials http://www.albany.edu/researchcompliance/IBC/IBC.htm

• Research Involving Recombinant DNA http://www.albany.edu/researchcompliance/contact.htm

I reported it to SUNY system administration on November 2, 2012. SUNY system administration, predictably, didn't care. Worse - they like things being the way they are: wrong.

Nedra Abbruzzese-Werling, [Non-]Compliance Administrator and "Special" Assistant to the Senior Vice Chancellor and General Consigliere, State University of New York: "You have no idea Marti!!! Here is his response to my short, sweet 'thank you for your e-mail … I have referred it to the campus.'" Her e-mail was not short and sweet but curt, dismissive, and dishonest: as supposed Compliance Administrator she was complaining I was bringing matters of non-compliance to her attention - essentially doing part of her job for her, without pay. Why would anyone in their right mind complain about that?

Marti Anne Ellermann, Deputy General Consigliere, Office of General Consigliere, State University of New York: "I suggest no response."

From the other side of the mouth: "Ensuring the protection and welfare of living things is critical to the integrity of good science and research."

"SUNY and [Research Foundation] RF Best Practices for Human Subjects and Animal Subjects." August 2013. http://portal.rfsuny.org/portal/page/portal/The%20Research%20Foundation%20of%20SUNY/home/info_researchers_administrators/human_animal_subjects/files/human_animal_subjects_memo.pdf

Ensuring the protection and welfare of living things IS critical to the integrity of good science and research. Wouldn't it be nice, therefore, for SUNY Albany to acknowledge that and finally see that The University at Albany Handbook stops returning "404 Page Not Found" for "Research Involving Human Subjects," "Research Involving Animal Subjects," and so on? Not in Ellermann or Abbruzzese-Werling's minds.

Either Barney Fife or Cletus Hogg would make a better Deputy General Counsel than Ellermann. Could she really have graduated from the Columbia University School of Law?

That human subject research policies would be given so little proper attention at SUNY Albany is disturbing (though again, unsurprising).

"The State Health Department begins hearings today on whether Albany State University should be fined for violating state law on experiments using human subjects. [...] State Health Commissioner, Robert Whale, charged that not all human subjects had been properly warned about possible side effects of the tests."

"Albany Psychogical Experiment Hearings Begin." Statesman [Stony Brook, NY] October 7, 1977: 3. http://dspace.sunyconnect.suny.edu/bitstream/handle/1951/28257/Statesman,%20V.21,%20n.%207.pdf

“The first case to arise under New York's 1974 law governing research with human subjects has been settled, with university researchers admitting 35 violations involving 'at least 975 subjects.

"Experiments were not properly authorized or supervised, and some subjects were endangered by faulty equipment such as an electric shock machine, officials of Albany State University admitted yesterday. […]

“The case at Albany came to light because of complaints by a psychology graduate student."

"SUNY Albany Admits Violations, Health Department Settles Case." Statesman [Stony Brook, NY]. October 28, 1977: 2.

http://dspace.sunyconnect.suny.edu/bitstream/handle/1951/28266/Statesman;jsessionid=3D114ED433A8C4D6DEB031F0DDB2A6F2?sequence=1

"Research Involving Human Subjects." October 17 1977. http://old.suny.edu/provost/MTP/mtp77-18.pdf

"Smith, R. Jeffery. 'SUNY at Albany Admits Research Violations,' Science 198 (18 November 1977), pp. 708.

"This is a brief statement of Albany's owning up to violations of the rights of human subjects. Specifically, Science reports that this University was guilty of: 1) not obtaining the voluntary, informed, and written consent of the research participants; 2) failing to make a fair explanation to each participant of the risks involved; 3) failing to have the experiments reviewed by an approved institutional review board; and, 4) failing to supervise the experiments properly.

"It is reported here that Albany could have been fined $975,000. Whalen suspended the $100,000 fine which was imposed.

"What is interesting is that the reporter deals only with the superficial facts of the case. For example, there is not a suggestion of what actually went on at the school, what the research involved, how that work was done, who had been hurt. There is not a word about Brock Kilbourne and yet he is one of the few who was really injured in all of this. The reporter seems to have decided the 'important' facts of this case. This is illustrative of how much of any deviance story gets told."

http://www.albany.edu/~scifraud/data/sci_fraud_0479.html

"Assurances of Compliance with Human Subjects Research Regulations." August 20, 1981. http://old.suny.edu/provost/MTP/mtp81-10.pdf

"The case of Brock Kilbourne and the University at Albany is still, to me, outrageous. Brock as a graduate student was a TA to a senior professor in his department. That senior professor had been engaged in research involving student subjects and, according to Brock, had endangered the lives of those students. Young Brock "blew the whistle" on his professor. The department involved stood behind the professor and the University at Albany tried to stonewall the investigation by the NY State Health Department, the agency charged with investigating the charges. The heroic behavior of the whistle-blower in this case was completely ignored: what has never been forgotten was that he had been a whistle-blower.

"Eventually, the University was found to be guilty of abuse of students and severely fined. Brock, as whistle-blower, got nothing: nothing from his department, nothing from the University. He was forced out of the graduate program. The idealist who did what he thought was right slipped between the cracks and was ignored by the University and the department. Far from helping him, the University and the department tried to weasel their ways out of their difficulties and, as they saw it, Brock Kilbourne was one of their difficulties: he was no hero to the department and no hero to the NY State Department of Health. Brock, for blowing the whistle, was at best forgotten, at worst, as he learned later, to continue to pay for his whistle-blowing.

"I was able, through friends, to get Brock another graduate appointment and he did finish his Ph.D. He went on to marry Maria. They left for the other school [University of Nevada Reno http://www.leg.state.nv.us/Division/Research/Library/LegHistory/Minutes/1979/Senate/HumResFac/4-24-79.pdf] and were told, several months after their acceptance into that program: 'If we had known what you did back at Albany, we never would have accepted you here.' Then, as now, Brock's whistle-blowing continues to cost him dearly: he has been unable to find work in his chosen field."

Higgins, A. C. "Science's Dark Side." Discussion of Fraud in Science listserv. April 11, 1992.

SUNY Albany isn't one to learn from its mistakes. (And, as I've found, it is willing - even eager - to turn to terrorism to deal with whistleblowers, even backing threats with their armed, corrupt so-called police department.)
"Last week, university spokeswoman Mary Fiess released this statement on the matter: 'The university imposed the suspension because of serious concerns that the experiment did not meet the standards governing such projects on campus. While we're working to gather all the facts in this case, we cannot comment further.'

A memo sent to all psychology professors and graduate students last week instructed them to refer calls 'looking for information on any psychological research conducted in our department' to the university's public relations office.

"According to three sources -- two faculty members and a graduate student -- the school's Institutional Review Board, which monitors human research, closed the project when a student complained late last spring. The student, sources said, was not allowed to leave a lecture that was part of Kelley's experiment. Refusal to allow a subject to leave an experiment violates National Science Foundation guidelines.

"Despite the inquiry, Kelley, a fully tenured professor who earned $67,000 last year, is slated to teach two graduate courses in the fall."

Brownstein, Andrew. "UAlbany suspends implants research." Albany Times Union. August 25, 1999: B1.albarchive.merlinone.net/mweb/wmsql.wm.request?oneimage&imageid=5943057

Brownstein, Andrew. "Implant researcher goes on paid leave." Albany Times Union. November 12, 1999: B1. http://albarchive.merlinone.net/mweb/wmsql.wm.request?oneimage&imageid=5956759

Why is it that students have to bring such crimes to the public's attention? Why aren't there members of the faculty, staff, administration who will do so?
"As vice president for student success, James Anderson [...] has stepped down from that job in a shake-up he won't discuss. It's more high level turnover at a 17,000-student state school that has seen plenty of it.

"That includes the recent departure of Officer in Charge Susan Herbst , who was running the school in the wake of President Kermit Hall's death.

"Philip announced the student affairs leadership change in this Nov. 1 e-mail to faculty and staff obtained by Campus Notebook:

"'After due deliberation and subsequent discussions with VP Anderson, it was mutually agreed that he would step down from his administrative post to return to the faculty where he is tenured in the Department of Psychology.'

"Philip didn't say what prompted the move - or whether others might be coming. Christine Bouchard, a UAlbany veteran who was associate vice president, is now the interim vice president for student success. Also, the Office of Diversity and Affirmative Action will now report directly to the president, among other structural changes.

"The $230,000 salary Anderson was earning as of March made him one of UAlbany's top-paid employees. Philip credited the administrator - a protege of the late Hall's - with working on a diversity plan and a sexual assault task force.

"Asked by Campus Notebook about his move, Anderson would say only this: 'It was a mutual agreement.'

Parry, Marc. "Another administrative change at UAlbany." Albany Times Union. November 8, 2007: D3. http://albarchive.merlinone.net/mweb/wmsql.wm.request?oneimage&imageid=6427675

Under both Anderson and Bouchard, UAlbany submitted false Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act reports. Under both Anderson and Bouchard, UAlbany did not properly maintain its sexual offender registry. Etc.

When I reported the deranged Michael Barberich's inappropriate “joke” about how “we [the class] could hook up [one of his minority teaching assistants he named] to electrodes and shock her until she screams”, Communication Department chair Jeanette "Mengele" Altarriba didn't reply. When I wrote again to note my disapproval of her dismissive attitude, she claimed she'd addressed matters through internal mechanisms to do so. Her claim seems to have been a lie. I asked how she "addressed" things when they kept getting worse and what "internal mechanisms" she used, but she refused to reply. Perhaps on the basis of her sociopathy she subsequently became the Psychology Department chair and then Vice Provost and Dean for Undergraduate Education.