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

1. The Board, Lawyers, Other Offices, and Quick Legal Issues Senior Staff Orientation October 24, 2013 Presented by: Bill Howard, Senior Vice Chancellor, General Counsel, and Secretary of the University

2. 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

3. Current Board Membership

4. 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

5. 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

6. Select Other Offices Overseen by Bill Howard • Secretary of the University/Board • Human Resources • Employee Relations • Internal Audit • Compliance • University Police • Special Events • Charter Schools Institute • Office of Presidents & Leadership Initiatives

7. Compliance Web Site http://www.suny.edu/compliance/

8. 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

9. 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/

10. Office Web Site • www.suny.edu/counsel/

11. 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

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

13. Listservs • Clery: joseph.storch@suny.edu • Compliance: nedra.abbruzzese-werling@suny.edu • FOIL: seth.gilbertson@suny.edu • Title IX: andrea.stagg@suny.edu

14. Questions? Contact information: Bill Howard Email: bill.howard@suny.edu Phone: 518-320-1645 or 518-320-1197

15. Appendix Select Legal Issues Overview With special thanks to Andrea Stagg, Associate Council

16. Reference Material • 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%20Campus%20-%20A%20Legal%20Framework%20HIPAA%20FERPA.pdf

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

18. 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.

19. FERPA & Your Campus • Campuses have FERPA information pages explaining policies and defining directory information. • For Example: • http://www.oneonta.edu/admin/registrar/pages/ferpa.asp • http://web.plattsburgh.edu/policies/privacy/ferpa/

20. FERPA & Your Campus

21. Legal Overview 2: FOIL • 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

22. 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).

23. FOIL Exemptions • 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).

24. FERPA & FOIL • FERPA trumps FOIL for student records • FOIL may still cover other records • Faculty/staff e-mail • Records that are exempt from FERPA

25. Legal Overview 3: Litigation • Public Officers Law Section 17 • Article 78 • Quasi-judicial • Records retention • E-discovery • Litigation holds

26. 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

27. Article 78 • 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

28. Other Lawsuits • 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

29. OGC and the AG • 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

30. Quasi-Judicial Actions • Arbitrations • DHR / EEOC • OCR • Audits • OSC • AG • DOE • OIG(s) • HHS • Other

31. A Common Thread • 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.

32. Your Role • 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”

33. Records = • Any documentary material (e.g., files, data, photos, recordings, books, tapes, films, papers, metadata); • That is received, stored, produced or transmitted by any department, office, employee or agent in the course of business; and, • Has a legal, operational or historical value to the institution.

34. 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

35. Example

36. 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

37. 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

38. 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?

39. 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

40. Email • Rarely Constitutes a Record • Documentary Material = yes • In the Course of Business = yes • 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

41. Recent Audits and Investigations • The Clery Act • OCR Compliance Review • National Collegiate Athletic Association

42. 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

43. 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

44. 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

45. Questions?? www.suny.edu/counsel