Exempt your state university and its donors from open-records laws? Here’s what you get

Eugene, Ore., billboard. Photo by Donald M. Kreis

Eugene, ORE. — Sunshine is a virtue in most every field of human endeavor, but possibly nowhere more so than in the realms of architecture and law.

When designing new buildings, architects typically strive to admit as much natural light as possible because human beings are known to thrive in such conditions. When designing instrumentalities of government, lawmakers seek to build notions of accountability and openness into the organizational structure because, as Louis Brandeis famously observed, sunshine is the best disinfectant.

Louis Brandeis would likely have an aneurism if he ever visited the University of Oregon (UO) in Eugene.

Driving into town along Franklin Boulevard, and arriving on the campus, three things are immediately striking. One is a brand new rectangular building, clad almost entirely in glass. In fact, the building has an inner and an outer sheet of glass, between which is an insulating layer of air and a skrim of stainless steel strands that allow just enough light to make the interior spaces pleasant. This is the classic Miesian box, updated for 21st Century energy efficiency imperatives, two sides of which seemingly float on a placid reflecting pool, constructed in every respect with the most expensive possible materials and craftsman ship.

Though this remarkable building looks like it might be a library for rare books, or perhaps an art museum, or maybe even the denizen of some lucky university bureaucrats, the actual program, revealed in freestanding metallic lettering at curbside, is astonishing. The Jaqua Academic Center for Student Athletes is 40,000 square feet of special help for jocks, designed by the prominent Seattle architecture firm Zimmer Gunsul Frasca.

A few hundred feet away is a vast construction site, featuring a gigantic building with impressive trusses still visible from the sidewalk as of March. It is a new basketball arena that, from the standpoint of size, would rival anything that houses an NBA team. Welcome to the world of athletics in the NCAA’s high-powered Pacific-10 Conference.

The third striking object, as one arrives at the university, is not visible until one turns around and faces north. It is a billboard, the top of which shouts: “Respect Public Records Laws.” Beneath this are the words “UO Arena Project” and, below that, “www.nobidcontracts.org.”

The Jaqua Academic Center for Student Athletes, Eugene, Ore. Photo by Donald M. Kreis

Eugene therefore should be a mandatory field trip for Vermont lawmakers who are voting this very Tuesday on a bill that would exempt certain records of the University of Vermont, and other state-owned institutions of higher education, from Vermont’s public records statute. At issue are records relating to the schools’ private donors.

Donors are definitely driving the bus at UO, a campus that is gradually becoming a sprawling athletic complex with a few academic out-buildings appended thereto. As the billboard suggests, university officials commissioned the Knight Arena behind closed doors, using money donated by alumnus and Nike shoe mogul Phil Knight. His donative inclinations are also what bankrolled the opulent tutoring center – indeed, a looming image of his face, etched in mirrored glass, decorates two bathrooms. What’s odd is that they’re women’s bathrooms.

What was the budget of this high-gloss building? University officials have steadfastly declined to say, according to the local papers. One low-level employee from the facilities department mentioned the figure of $20 million to The Oregonian.

Down Franklin Boulevard, the $200 million Knight Arena will accommodate more than 12,000 spectators. Eugene had a population of roughly 138,000, according to the 2000 Census. Imagine a public university with the pluck to build a basketball court that can welcome nearly 10 percent of its host city’s population and you get a sense of what the University of Oregon is all about.

TVA Architects in Portland designed the Knight Arena in cooperation with Ellerbe Beckett, the mega-firm that designed the homes of the Atlanta Braves, the Arizona Diamondbacks, the NBA’s San Antonio Spurs, and the NFL’s Seattle Seahawks, among lots of others. According to the Oregon Daily Emerald, it will be the nation’s most expensive basketball arena.

Eugene therefore should be a mandatory field trip for Vermont lawmakers who are voting this very Tuesday on a bill that would exempt certain records of the University of Vermont, and other state-owned institutions of higher education, from Vermont’s public records statute.

The “no bid contracts” web site is the work of something called the Foundation for Fair Contracting, funded by a group of contractors and labor unions, including the Teamsters. According to their web site, “Our concern is not with the basketball arena, but rather the process by which $200 million of bonds (backed by the full faith and credit of the state of Oregon) were spent through a questionable use of an emergency declaration, special procurement and sole source procurement that exist exclusively for the Oregon University System” under Oregon law.

Their web site complains that an open-records request for the contracting documents was rejected. When the planning process began seven years ago, the university’s president noted that, because the school and its donors created a separate, and private, nonprofit organization to build the project, public scrutiny would be limited.

It would be improvident for a visitor from Vermont (in town to attend an environmental law conference at UO’s law school) to speculate on the merits of these controversies. But two realities emerge.

The Jaqua Academic Center for Student Athletes, Eugene, Ore. Photo by Donald M. Kreis

The Jaqua Academic Center for Student Athletes, Eugene, Ore. Photo by Donald M. Kreis

First, the Jaqua Center is a stunning work of contemporary architecture – the very embodiment of the reality that true simplicity is both beautiful and expensive. The second is that this orgy of athletic construction, at a school where NCAA competition seems to trump all, appears to be unfolding beyond the realm of public accountability.

Attention Vermont Legislature: This is what happens when state-supported educational institutions are allowed to raise and spend tens if not hundreds of millions of dollars behind tightly shut doors. Vermont’s state-supported institutions of higher education still put academics first. But when donors call the shots, doing so outside the normal requirements of public scrutiny, athletic boosterism can too often become the driving strategic priority.

And the result? A $20 million study hall.

Comments

  1. Doug Hoffer :

    nothing to say except thank you

    • Don Kreis :

      A “thank you” from someone as distinguished as Doug Hoffer really means something. You are most welcome!

  2. I fail to see why it’s unreasonable to enable the wishes of a private donor to a state university to remain anonymous. After all, the donor could choose to give the money elsewhere or not donate it all. That seems a foolish outcome.

    Vermont’s Legislature would do well to continue allowing the acceptance of anonymous private donations to the University of Vermont and to the Vermont State College System.

    • Don Kreis :

      I agree that for some donors — perhaps even most of them — secrecy is desirable. In reply, I offer what I said on this subject to the House Committee that blessed this regrettable amendment:

      My concerns about this provision arise out of my unusual expertise in matters of public disclosure of government files. Prior to law school, I spent a decade as a reporter with Associated Press and with a venerable alternative newspaper known as Maine Times. In those capacities, I considered it part of my job to be regularly making formal records requests of government officials. Following law school, I worked at the federal district court in Maine and was involved in resolving a Freedom of Information Act dispute that involved a federal agency that proved to be deliberately withholding information that was embarrassing to the agency. Most recently, I served as the general counsel of a state agency in New Hampshire, where one of my responsibilities was compliance with that state’s open-records law. That law required me to balance the public’s interest in disclosure against the privacy interests of persons (both animate and inanimate) referenced in the documents. It is a responsibility I took very seriously.

      In my respectful opinion, that balance would be tipped improvidently by the proposed exception to Vermont’s open records law. One can certainly understand why the University of Vermont and other state-supported educational institutions would want information about donors to remain secret — public disclosure, obviously, can only make the job of gathering such donations at least somewhat more difficult. And one can also understand why some donors would want their status as benefactors to remain undisclosed — philanthropy is very personal to most people and, as a culture, we are generally skittish about public discussion of individuals’ financial matters. But the public’s interest in disclosure is quite high in these circumstances — as it would be in any situation where an instrumentality of government is partly financed via the public fisc and partly paid for with private money. Taxpayers, in essence, ought to know who its partners are — that, in my view, tips the balance in favor of disclosure.

      One does not need to be a cynic to conclude that any institution that accepts private donations will be tempted to pay special attention to the views of those donors. In the case of educational institutions, these influences can run the gamut, from overall organizational priorities to personnel determinations to decisions on admissions applications. Presumably, the leaders of these institutions have promised they are impervious to any undue influence that donors might seek to exert. This is quite probably so — but the whole purpose of sunshine laws is to allow the public to assure itself that government officials are doing what they have promised to do. “Trust — but verify,” as President Reagan was fond of suggesting in somewhat similar circumstances.

      Even if an exemption from public disclosure were justified here, the relevant provision could and should be much more narrowly tailored. Existing law already allows for the redaction of certain personal information from publicly disclosed government documents, but it might be reasonable to make clear as a matter of Vermont law that donors will not, by virtue of that status, find that their personal, marital, familial, financial, tax, estate planning, or gift planning information become matters of public record. Unfortunately, the amendment as drafted is far broader than that.

      Part of my current responsibilities, at Vermont Law School, is teaching administrative law. A key component of that course, as I present it, is the law governing open meetings and public disclosure of government documents. I impress upon my students the importance of these laws as public policy in a democracy, and I insist that my students emerge with a working knowledge of both ‘sunshine’ law and its purposes. I tell my students that Vermont is, and should be, extremely parsimonious when it comes to granting exemptions to government openness. I strongly urge you to maintain that stance and reject the pending amendment, at least in its present form.

  3. Connie Godin :

    I have nothing to back up the following statement. This is Folgel’s idea isn’t it? I saw him at the Statehouse and I wanted to go up to him and tell him to get out of VT & UVM. He will do anything to get UVM new sports venues, that’s all he cares about.

  4. Mike Abadi :

    Regardless of the issue or product, I am so glad we don’t have to look at billboards here in VT! And it is “have to”– once they’re up they are unavoidable. There’s a law we got right.

  5. Jack Hoffman :

    I’m not suggesting we have a problem with our current congressional delegation, but this Salon article explains the types of contributions that can be hidden through such anonymous giving policies: http://www.salon.com/opinion/conason/2010/03/05/mcconnell/

  6. Jim Mulligan :

    Alas – if we only through the years we had demonstrated the same burning need to know as respects the billions that have coursed their way through Montpelier.

  7. There is more to the story….UO wants a “state of the art” indoor track for Nike now too.

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