North Dakota State University’s development foundation is in the news again, a year and a half after the state attorney general said it had no viable legal rationale for shielding its lavish expenditures on major donors from public view.
Once again, Attorney General Wayne Stenehjem said in an “open records and meetings opinion” that the foundation, though private, is subject to public disclosure because it’s performing a “government function” – hiring a consulting firm to search for job candidates for NDSU’s then-open president position.
The Forum of Fargo-Moorhead had requested the opinion from Stenehjem’s office on whether the foundation and Alumni Association could legally refuse “to provide records in the possession of their agent,” in this case Lois L. Lindauer Searches (LLLS).
The foundation and association claimed that the names of the candidates – not known to their search committee, just LLLS – were a “trade secret” for the consulting firm. Stenehjem swatted down that rationale:
When a private corporation enters into a contract with a public entity and performs governmental functions and public services on behalf or in place of the public entity, it is an agent of the public entity subject to open records law. Lois L. Lindauer Searches, LLC, is therefore considered an agent of the Foundation and Association, subject to open records law.
It’s evasive to claim that LLLS would “not be able to sell its services if this entire database of contacts [for the “educational fund raising industry”] was generally known to the public,” Stenehjem said:
However, The Forum did not request to receive the database cultivated by LLLS. It only requested the names of the twelve individuals who expressed interest and provided qualifications to LLLS for consideration of the President/CEO position with the public entities. The LLLS does not derive “independent economic value” from the information of the twelve individuals; rather, this information was bought and paid for by the Association and Foundation as part of LLLS duties under contract and, since there is a contract in place, the LLLS is not in competition with any other company to advertise and obtain applications for this CEO/president position.
In his Jan. 25 opinion, Stenehjem gave the foundation and association a week to get the names of the candidates from LLLS and provide them to The Forum, or face “mandatory costs, disbursements, and reasonable attorney fees” if The Forum files suit against the entities.
The Student Press Law Center reported Feb. 1 – a week after Stenehjem’s order – that the foundation declined its request for comment.
RELATED: North Dakota State’s President Can’t Hide Big Spending On Donors From Public View
Like The College Fix on Facebook / Follow us on Twitter
IMAGE: val.pearl/Flickr
Please join the conversation about our stories on Facebook, Twitter, Instagram, Reddit, MeWe, Rumble, Gab, Minds and Gettr.