The Board, Lawyers, Other Offices, and Quick Legal Issues

Senior Staff OrientationOctober 24, 2013

Presented by: Bill Howard, Senior Vice Chancellor, General Counsel, and Secretary of the University

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SUNY Board of Trustees

18 Members

- 15 appointed by the Governor

- 1 voting student member, President of the Student Assembly

- 1 Non-Voting “state-operated” faculty member, President of the University Faculty Senate

- 1 Non-Voting community college faculty member, President of the Faculty Council of Community Colleges

Current Board Membership

SUNY Board Functions (Examples)

• Hire Chancellor• Approve the appointment of Presidents upon

Chancellor recommendation• Approve annual budget requests, tuition levels,

and allocation of state resources to state operated campuses, and Community College budgets as approved by local boards

• Approve major transactions and policies

SUNY Board Meetings

• 6 or more per year in Albany, NYC and at campuses– Committee meetings – All meetings are webcast live

For current schedule and more information: www.suny.edu/Board_of_Trustees

• Secretary of the University/Board• Human Resources• Employee Relations• Internal Audit• Compliance• University Police• Special Events• Charter Schools Institute• Office of Presidents & Leadership Initiatives

Select Other Offices Overseen by Bill Howard

Compliance Web Site

http://www.suny.edu/compliance/

Office of General Counsel

Provides DIRECT legal services to:

• All State-Operated Campuses• Other operating units of SUNY• System Administration• The Board of Trustees

Provides INDIRECT legal services to the Community Colleges

Office Overview

Who we are:• The General Counsel (Bill Howard)• Executive Deputy General Counsel (Monica Barrett)• 33 Senior, Associate and Assistant Counsels• 6 paralegals• associated support staff

• Attorneys are based at System Administration and at 7 other campus/unit locations

• Attorney responsibilities, biographies, and more info available on web site: www.suny.edu/counsel/

Office Web Site

www.suny.edu/counsel/

Outreach & Counseling• Website www.suny.edu/counsel • Quarterly Newsletter • Memos to Presidents• Listservs• Training Programs:

OGC offers an extensive variety of training programs to inform those clients across SUNY on a variety of topics.

Annual Reports (2012-2013): http://www.suny.edu/counsel/pdf/2013%20Office%20of%20General%20Counsel%20Annual%20Report.pdf

Newsletter

• http://www.suny.edu/counsel/pdf/General%20Counsel%20Update%20Number%206.pdf

Listservs

• Clery: joseph.storch@suny.edu

• Compliance: nedra.abbruzzese-werling@suny.edu

• FOIL: seth.gilbertson@suny.edu

• Title IX: andrea.stagg@suny.edu

Questions?

Contact information:

Bill Howard

Email: bill.howard@suny.edu

Phone: 518-320-1645 or 518-320-1197

Appendix

Select Legal Issues Overview

With special thanks to

Andrea Stagg, Associate Council

• Table of Contents from the Board of Trustees Orientation Handbook• Handbook is broken down by section on the left hand side.• http://www.suny.edu/Board_of_Trustees/

• Privacy & Safety Memo• http://www.suny.edu/compliance/topics/hipaa/Privacy%20and%20Safety%20on%2

0Campus%20-%20A%20Legal%20Framework%20HIPAA%20FERPA.pdf

Reference Material

Family Education Rights and Privacy Act of 1974 is a federal law that protects the privacy of students’ educational records and limits disclosure.

Legal Overview: FERPA

• Sharing information with students.• Students “own” their records • Be careful what you put in writing

• Sharing information with parents.• Dependent on taxes?• Waiver?• Other exceptions.

FERPA

• Campuses have FERPA information pages explaining policies and defining directory information.

For Example:• http://www.oneonta.edu/admin/registrar/pa

ges/ferpa.asp

• http://web.plattsburgh.edu/policies/privacy/ferpa/

FERPA & Your Campus

FERPA & Your Campus

Freedom of Information Law (FOIL)

• All records are accessible to the public, except records (or portions thereof) that fall within one or more categories of enumerated exceptions.

(§87(2) of NY Public Officer’s Law)

• No duty to create new records or answer questions about records

• http://www.suny.edu/sunypp/documents.cfm?doc_id=537

Legal Overview 2: FOIL

Under FOIL, a record is “any information kept, held, filed, produced or reproduced by, with or for an agency in any physical form whatsoever. . .”

This includes reports, statements, examinations, opinions, books, designs, drawings, etc.

NY Public Officers Law § 86(4).

FOIL

Commonly applicable exemptions: • Exempted by federal or state statute• Unwarranted invasion of personal privacy• Impairment of contract awards or

negotiations• Trade secrets• Law enforcement• Endangers life or safety of any person• Various inter- and intra-agency materials,

including nonfinal materials

NY Public Officers Law § 87(2).

FOIL Exemptions

• FERPA trumps FOIL for student records• FOIL may still cover other records

• Faculty/staff e-mail• Records that are exempt from FERPA

FERPA & FOIL

• Public Officers Law Section 17• Article 78• Quasi-judicial • Records retention• E-discovery• Litigation holds

Legal Overview 3: Litigation

Section 17

Public Officers Law - § 17 deals with the defense and indemnification of state officers and employees.

• Covers employees or volunteers for alleged act or omission that occurred while the employee was acting within the scope of his employment

• Does not cover intentional wrongdoing• Represented by Attorney General’s Office• State pays judgment or settlement

• Court review that compels a State action that should be essentially automatic and not subject to Agency discretion; or

• Review of a State Agency action that is outside of the Agency’s jurisdiction; or

• Review of State Action taken after a quasi-judicial hearing.

• Bottom Line: Protects against "arbitrary and capricious" State Action

Article 78

• Courts of Claims (judgment and settlement often paid from Court of Claims fund)• Seeking $$$ (Negligence and Breach of

Contract)

• Section 1983 (federal rights)• ADA/Rehab. Act (disability)• Titles IX / VII (discrimination)• Criminal• Other

Other Lawsuits

• In-House Counsel vs. Trial Counsel• Must Submit Request for Representation

Letter (OGC will help prepare)• Assistant Attorneys General try the cases• OGC tries to prevent and prepare for

lawsuits• AG Offices are regional, plus Albany and

NYC

OGC and the AG

• Arbitrations• DHR / EEOC• OCR• Audits

• OSC• AG• DOE• OIG(s)• HHS• Other

Quasi-Judicial Actions

All of the above require production of records• Adherence to records retention policy is

critical in properly defending lawsuits, administrative actions and audits.

• A few minutes attention to records obligations may save many hours and dollars down the line.

A Common Thread

• Communicate with Counsel- Full Disclosure• Find others with knowledge or relevant

insight• Provide copies of relevant policies and

documents• Preserve• Prepare for short deadlines & long “dead

times”

Your Role

Records =

1. Any documentary material (e.g., files, data, photos, recordings, books, tapes, films, papers, metadata);

2. That is received, stored, produced or transmitted by any department, office, employee or agent in the course of business; and,

3. Has a legal, operational or historical value to the institution.

Records Retention

• Schedules codify multiple retention periods into one set of documents

• Delegates power to destroy records• Eliminates uncertainty about retention,

responsibility and, hopefully, the existence of specific records

• Reduces universe of information by allowing for predictable destruction of records and other data

Example

E-Discovery =

A short hand term for the process of preserving and exchanging electronically-stored information (ESI) in the context of modern litigation or other legal processes

Litigation Hold Steps

• Identify potentially relevant records– Requires preservation of all relevant information

• Locate records/data to be preserved– Data mapping– Inventory– Interviews

• Notify Custodians– Unless strong self-interest in tampering– Consider third parties and even plaintiffs

Litigation Hold Steps

• Coordinate with IT to implement hold– Native format best– Include back ups?– Who takes possession?

• Document steps taken• Maintain regularly • Plan for ongoing collection

– Mirrored accounts?

Role of Leadership

• Understanding your data storage systems• Knowing applicable retention periods• Ensuring staff compliance with policy• Notifying counsel of possible litigation hold

triggers• Working with counsel and IT to implement

litigation holds• Purchasing/Contracting with capable

vendors

Email

• Rarely Constitutes a Record 1. Documentary Material = yes

2. In the Course of Business = yes

3. Legal, Operational, Historical Value = ?• Rarely Helps Defense • Major burden to search due to quantity• Often FOILable• Don’t keep them without good reason

– Know backup systems

Recent Audits and Investigations

• The Clery Act• OCR Compliance Review• National Collegiate Athletic Association

Recent Audits and Investigations

The Clery Act

• The Clery Act requires colleges to disclose information about crime on campus

• Department of Education began audit in 2010 of all 29 state-operated campuses to determine Clery compliance for 2006-2008

• DOE has made 4 campus site visits • SUNY has not received initial reports or findings

Recent Audits and Investigations

OCR Title IX Compliance Review

• Title IX prohibits sex discrimination in educational programs, including sexual harassment and sexual violence

• Review began in December 2010, 4 months before the release of the Dear Colleague Letter on peer sexual violence

• The Office for Civil Rights did an initial data request from all 29 state-operated campuses and asked for additional information from four campuses: University at Albany, Buffalo State College, Morrisville State College, and New Paltz

• SUNY recently received an initial proposed resolution agreement

Recent Audits and Investigations

National Collegiate Athletic Association

• Four Division III SUNY campuses have recently been cited by the NCAA for major infractions dealing with financial aid

• Division III bylaws prohibit considering athletics ability or participation in the award of financial aid

• The percentage of institutional financial aid awarded to student athletes must be proportional to the percentage of student athletes in the undergraduate population

Questions??

www.suny.edu/counsel