The new agreement between the New Mexico State University Foundation and the university raises some new, interesting questions.
Perhaps most interesting – at least to me – in the new agreement is the statement that the agreement supersedes and replaces the Feb. 11, 1991 agreement between the NMSU Foundation and university and additional agreements dated June 1, 1993 and Aug. 25, 2005.
That’s interesting because, in May, when I formally requested a copy of the agreement between the foundation and university, foundation Director and university Vice President Rebecca Dukes told me the most recent agreement, which she called “old,” was from 1991. She provided me with a copy of it.
Why didn’t she provide me with the 1993 and 2005 documents? Was that a violation of the state’s Inspection of Public Records Act?
I’ve submitted an addendum to my Thursday request to the attorney general asking that question – was the university’s failure to provide me with those records a violation?
In addition, I’ll be filing a request with the university tomorrow for those two records that I was not provided in May.
Procedure is important
I realize I’m raising a lot of procedural questions here, but the point is not only that I get my hands on these records, but that the university follows government transparency laws so that the public has access to them.
I was given a copy of the new agreement between NMSU and the foundation today only after I hand-delivered a copy of my records request to the office of university Attorney Bruce Kite. The university still does not consider the e-mail request I filed last week to be valid.
The university did, however, cave on its prior claim that the agreement wasn’t public because it wasn’t yet signed by all parties. The university made that claim last week even though the agreement had already been approved by the regents on July 23. The copy I was given is signed by the foundation president and secretary and the regents president, but not the regents secretary.
What the agreement states
The agreement specifically states, in many places, that the foundation is separate from the university and that the foundation’s records, including donor lists, are confidential. As it has done in the past, the university will pay employees of the foundation, but the foundation and university may enter into an agreement whereby the foundation reimburses NMSU for some of those costs. The foundation has not reimbursed the university for employee compensation in recent years.
In addition, as was true in the 1991 agreement, under the new agreement the university pays for foundation office space, furnishing, utilities, Internet and phone access, building and grounds maintenance and repairs and property insurance.
That’s important because some state university foundations across the nation have been ordered to open their records after court determinations that they were operating as de facto state agencies in part because they didn’t pay fair-market value for rent and other expenses. You can read more about the gray area of whether foundation records are public by clicking here.
The new agreement also states that the foundation can’t accept any federal or state grants without approval of the university president. That’s important because courts in other states have considered the handling of public money a factor in favor of opening foundation records.
The new agreement raises two additional questions in my mind. It specifies that university employees who do foundation work are responsible for “receiving, receipting, recording and reporting gifts.” In addition, it states that the university will conduct reviews of gift funds transferred from the foundation to the university each year to “ensure compliance with donor restrictions.” The foundation is required to provide “access to its records regarding specific gifts and donor imposed criteria” so the university can produce an annual, written report to provide to the regents.
These are my questions:
• If public employees are handling the gifts, can they legally be kept secret?
• If the university is reviewing what the foundation considers secret records to produce a written report to present to the regents, wouldn’t that report be public? Would the donor records be public, since they’re factors in the report?
The bottom line
So, the release of one document produces more questions than answers. What is contained in the 1993 and 2005 agreements, and why wasn’t I told about or provided with them when I formally requested records? What impact does the new agreement have on whether donor information can be kept secret?
We’ll see what happens. Check out the new agreement by clicking here, and the 1991 agreement by clicking here, and let me know if you think of any other questions I should raise. You can e-mail me at heath@haussamen.com.