ESU appeals court's open-records ruling
By Dan Berrett
Pocono Record Writer
East Stroudsburg University and its foundation have asked the state's highest court to reverse an appellate court ruling that would force the foundation to turn over records to the Pocono Record.
In the latest turn in an ongoing legal battle, ESU and the private ESU Foundation, which raises money for the university, filed an appeal in the Middle District of the Supreme Court of Pennsylvania, arguing that a unanimous decision of a full panel of judges of the Commonwealth Court in May should not be allowed to stand because it is overbroad and intrusive.
"The Commonwealth Court's decision is so expansive that the private records of all private entities that work with the government are now within the purview of the Right to Know Law, regardless of the actual function performed by the private entity," wrote the attorneys for the ESU Foundation.
Open government advocates statewide had hailed the Commonwealth Court's precedent-setting decision as a victory for transparency because it would prevent public agencies from conducting their work under the cover of a separate, private entity.
The ESU Foundation argued that the Commonwealth Court's decision will open up a wide swath of records to public inspection — "from the band boosters at the local high school to the foundations that support public universities and hospitals."
The Pocono Record's lawyers responded that the Commonwealth Court's decision was consistent with past legal opinions and with the intent of the legislature when it drafted the new law.
The newspaper said the ESU Foundation response to the ruling showed that it was "spinning a hyperbolic tale of the dire consequences that allegedly will flow from the disclosure of a limited set of donation records and board of director meeting minutes."
It is the second open records decision to be appealed to the state's Supreme Court since the new, more vigorous Right to Know Law went into effect in 2009, according to the Office of Open Records.
Last year, the Pocono Record sought a list of donors to ESU's Science and Technology Center, the opportunity to inspect files for six donors, and minutes of the meeting of the ESU Foundation.
The newspaper requested these records in the midst of a continuing investigation into allegations of sexual and financial impropriety leveled against Isaac Sanders, former vice president for advancement for ESU and executive director of the foundation, who has since been dismissed from that job, according to multiple sources.
Sanders, the university and other top administrators were sued in federal court last February by one current and five former students. They alleged that Sanders used money and favors to pave the way for unwelcome sexual advances, and that the university covered it up.
The ESU Foundation is a private nonprofit that raises money and awards student scholarships, and supports the building of campus facilities, such as the Science and Technology Center, and other programs.
Its offices are on the ESU campus and it is staffed by publicly paid employees. But that symbiotic relationship may be changing.
"All of the universities are looking at their relationships with their foundations," said Kenn Marshall, spokesman for the Pennsylvania State System of Higher Education, which oversees ESU and 13 other state-run universities. "We want to make sure there is appropriate separation between the universities and the foundations."
Marshall said the review was unrelated to the open records dispute between ESU and the Pocono Record. "We just felt it was appropriate to look at our foundations to see that there is the appropriate separation between the two," he said.
Frank Falso, executive director of the foundation and vice president for advancement for ESU, said it was still unclear precisely how the more divided relationship between the foundation and university would be formalized. But he predicted that it would be done by the start of the fall semester.
"Whatever restructuring we're doing we want to have behind us by the end of summer," he said.
Pocono Record Writer
East Stroudsburg University and its foundation have asked the state's highest court to reverse an appellate court ruling that would force the foundation to turn over records to the Pocono Record.
In the latest turn in an ongoing legal battle, ESU and the private ESU Foundation, which raises money for the university, filed an appeal in the Middle District of the Supreme Court of Pennsylvania, arguing that a unanimous decision of a full panel of judges of the Commonwealth Court in May should not be allowed to stand because it is overbroad and intrusive.
"The Commonwealth Court's decision is so expansive that the private records of all private entities that work with the government are now within the purview of the Right to Know Law, regardless of the actual function performed by the private entity," wrote the attorneys for the ESU Foundation.
Open government advocates statewide had hailed the Commonwealth Court's precedent-setting decision as a victory for transparency because it would prevent public agencies from conducting their work under the cover of a separate, private entity.
The ESU Foundation argued that the Commonwealth Court's decision will open up a wide swath of records to public inspection — "from the band boosters at the local high school to the foundations that support public universities and hospitals."
The Pocono Record's lawyers responded that the Commonwealth Court's decision was consistent with past legal opinions and with the intent of the legislature when it drafted the new law.
The newspaper said the ESU Foundation response to the ruling showed that it was "spinning a hyperbolic tale of the dire consequences that allegedly will flow from the disclosure of a limited set of donation records and board of director meeting minutes."
It is the second open records decision to be appealed to the state's Supreme Court since the new, more vigorous Right to Know Law went into effect in 2009, according to the Office of Open Records.
Last year, the Pocono Record sought a list of donors to ESU's Science and Technology Center, the opportunity to inspect files for six donors, and minutes of the meeting of the ESU Foundation.
The newspaper requested these records in the midst of a continuing investigation into allegations of sexual and financial impropriety leveled against Isaac Sanders, former vice president for advancement for ESU and executive director of the foundation, who has since been dismissed from that job, according to multiple sources.
Sanders, the university and other top administrators were sued in federal court last February by one current and five former students. They alleged that Sanders used money and favors to pave the way for unwelcome sexual advances, and that the university covered it up.
The ESU Foundation is a private nonprofit that raises money and awards student scholarships, and supports the building of campus facilities, such as the Science and Technology Center, and other programs.
Its offices are on the ESU campus and it is staffed by publicly paid employees. But that symbiotic relationship may be changing.
"All of the universities are looking at their relationships with their foundations," said Kenn Marshall, spokesman for the Pennsylvania State System of Higher Education, which oversees ESU and 13 other state-run universities. "We want to make sure there is appropriate separation between the universities and the foundations."
Marshall said the review was unrelated to the open records dispute between ESU and the Pocono Record. "We just felt it was appropriate to look at our foundations to see that there is the appropriate separation between the two," he said.
Frank Falso, executive director of the foundation and vice president for advancement for ESU, said it was still unclear precisely how the more divided relationship between the foundation and university would be formalized. But he predicted that it would be done by the start of the fall semester.
"Whatever restructuring we're doing we want to have behind us by the end of summer," he said.