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)."
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."
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