August 22, 2019; Columbian
The Clark College Foundation, which raises funds to support Clark College, a community college in Vancouver, Washington—located across the Columbia River from Portland, Oregon—has filed a lawsuit seeking an injunction against Oregon’s National Public Radio affiliate, Oregon Public Broadcasting (OPB), and its southwest Washington bureau chief, Molly Solomon.
But the NPR affiliate and its bureau chief are not the only named defendants. Also listed as a defendant is Clark College itself. According to the Clark College Foundation, the Washington Public Records Act (WPRA) does not apply, because while Clark College is a public agency, the foundation itself is a private nonprofit.
The move to stop OPB follows a request from both Solomon and Clark College for the foundation to reveal emails sent to and from Foundation staff. Both Solomon and the Columbian have filed for records under the WPRA, but to date the Columbian has not received an injunction.
Solomon’s search of Foundation records is part of her yearlong investigation of discrimination and harassment at Clark College. Faculty and staff of the college who are people of color say they have felt disrespected and isolated. Some staff point to retired former president Bob Knight as a major contributor to the toxic culture. The school does not have a permanent officer for diversity, equity, and inclusion; the previous officer, Lorette Capeheart, was removed from the position a year ago.
The Foundation holds that the WPRA doesn’t apply to a separate foundation and its donors. Rhonda Morin, spokeswoman for the Foundation, said the Foundation has an “ethical obligation” to preserve the privacy of its donors.
“There’s a high expectation that those things remain confidential and not released for public record,” Morin says. Foundation emails are generally made without expectation that they can be released to the public.
It appears Solomon is looking for the breadth of the discrimination problem by reviewing the Foundation. The Foundation’s position is that it is single and separate. “We’re a private (nonprofit) that does not adhere to state law as it pertains to public entities,” Morin said.
There are signs that the foundation and the college have complaints about each other, which the board minutes may reveal. Knight used the podium at one of the college’s major fundraising events last November to speak about racial issues at the college, an odd juxtaposition with an effort to encourage a room full of people to donate to the school—a room that included the mayor, members of the city council, and area business leaders. Knight announced his retirement two months later.
Emails and other material OPB has received to date reveal the subsequent backlash from existing donors and Foundation board members. A potential donor, who had already been in discussion about his gift, said he would not be making a gift and the name of his business could not be used in any way in support of the college.
One of the emails, from Joel Munson, senior vice president at the Foundation to Foundation CEO Lisa Gilbert, stated that another board member had proposed that they should separate themselves from the school completely. That move would involve the IRS.
The use of the terms “public” and “private” in relation to foundations is often confusing. An actual private foundation, which files a 990PF, is a specific category under the Internal Revenue Service, with a definition that encompasses more of what it isn’t than what it is. A private foundation is still subject to public disclosure. The Clark College Foundation, with assets of $93 million and 26 employees, does not file a 990PF, and it is listed as a public charity that raises funds and distributes funds. A “public foundation” description is often used if an organization receives public dollars or public assets.
Clark College hosts the Foundation’s emails; their domain names end in clark.edu. The Foundation president, Lisa Gilbert, is on the college’s executive cabinet. At face value, this doesn’t offer strong footing for the injunction. Sharing an email server is common practice for foundations that exist to raise money for colleges, as is sharing space. It is the interpretation of that as public value, meaning public funds have been received by the foundation, even if they are in-kind, that opens the door to the WPRA—and perhaps even the federal Freedom of Information Act. It will likely be considered a public agency if assets or funds were from the school.
The Foundation has moved ahead with connecting to a separate server and domain name to minimize the “awkward position” regarding the college, Morin says.
Toby Nixon, the president of the Washington Coalition for Open Government, a nonprofit dedicated to preserving the public’s access to government information, points to a four-part test to determine if an agency is public and therefore subject to WPRA. The test was a result of a 1999 Washington Court of appeals decision in Telford v. Thurston County Board of Commissioners. The test includes:
- “whether the entity performs a government function”;
- “the extent to which the government funds the entity”;
- “the extent of government involvement in the entity’s activities”; and
- “whether the entity was created by the government.”
“If this was an independent nonprofit, it was just happening to make contributions to the university, I would agree with them,” Nixon said. “But it sounds like it’s a very close relationship.”
In the bigger picture, a foundation, as a tax-exempt organization, is charged by the IRS with sharing its financials. Going further and establishing a policy of transparency contributes to the ability to attract donors. Whether or not that includes board meeting minutes, and public board meetings, is guided by federal and state regulations for “public” organizations. While there are privacy policies regarding students on college email servers, foundation staff emails on a public college server may be included in transparency. The foundation should be clear about that in the personnel policy manual.—Marian Conway