RE: BOARD OF REGENT MEMBERSHIP ON FOUNDATION BOARDS
I HAVE RECEIVED YOUR RECENT LETTER CONCERNING WHETHER ANY LAW EXISTS PROHIBITING A MEMBER OF THE BOARD OF REGENTS OF A PUBLIC INSTITUTION OF HIGHER EDUCATION FROM SERVING AT THE SAME TIME AS A MEMBER OF THE BOARD OF DIRECTORS OF THE COLLEGE-OR-UNIVERSITY FOUNDATION RELATED TO THE INSTITUTION GOVERNED BY THE REGENT. THIS INFORMATIONAL LETTER IS PROVIDED IN RESPONSE TO YOUR INQUIRY. PLEASE UNDERSTAND THAT THIS LETTER DOES NOT CONSTITUTE A FORMAL, BINDING OPINION OF THE ATTORNEY GENERAL.
THERE EXISTS NO LAW, EITHER AT THE STATE LEVEL OR AT THE FEDERAL LEVEL, WHICH PER SE PROHIBITS DUAL MEMBERSHIP ON GOVERNING BOARDS OF REGENTS OF INSTITUTIONS OF HIGHER EDUCATION AND ON COLLEGE-OR-UNIVERSITY RELATED FOUNDATIONS. THE HIGHER EDUCATION FINANCIAL CONTROL ACT OF 1987, OKLA. SESS. LAWS 1987, CH. 229, PP.1512-1519, CONTAINS NO SUCH PROVISIONS, ALTHOUGH IT DOES PROVIDE THAT IF ANY EMPLOYEE OF ANY INSTITUTION OF HIGHER EDUCATION ACTS AS EITHER AN OFFICER OR EMPLOYEE OF SUCH A FOUNDATION, THE FOUNDATION'S FINANCIAL RECORDS AND DOCUMENTS, EXCEPT FOR THE NAMES OF DONORS, ARE MANDATED TO BE MADE AVAILABLE TO AUDITORS WHO ARE PERFORMING AUDITS OF THE INSTITUTION. 70 O.S. 4306(D) (1988). A MEMBER OF THE FOUNDATION'S GOVERNING BOARD OF TRUSTEES WOULD BE SUCH AN OFFICER, AND, THEREFORE, THE RECORDS OF THE FOUNDATION WOULD HAVE TO BE OPENED TO STATE AUDITING REQUIREMENTS.
IT IS POSSIBLE FOR MEMBERS OF A BOARD OF REGENTS OR INSTITUTIONAL OFFICERS TO SOMETIMES LOSE SIGHT OF THE PRIMARY DUTY THAT THEY OWE TO THE STATE IF THE RELATIONSHIPS BETWEEN COLLEGE-OR-UNIVERSITY RELATED FOUNDATIONS AND PUBLIC INSTITUTIONS ARE NOT CAREFULLY MONITORED. WE HAVE UNFORTUNATELY SEEN RECENTLY A FEW EXAMPLES OF THE KINDS OF PROBLEMS THAT CAN ARISE IF THAT PRIMARY OBLIGATION TO THE STATE AND ITS CITIZENRY IS NOT SAFEGUARDED ADEQUATELY. I KNOW THAT THE ATTORNEY GENERAL WOULD WANT ME TO CAUTION THE TWO ENTITIES TO ALWAYS BE TOTALLY CIRCUMSPECT IN ALL DEALINGS BETWEEN THEMSELVES AND, IF IN DOUBT AS TO THE LEGITIMACY OF ANY PARTICULAR SITUATION, TO ERR ON THE SIDE OF LAW AND NOT TAKE UNNECESSARY CHANCES.
(CONFLICT OF INTEREST/DUAL OFFICE HOLDING ?)
(MICHAEL SCOTT FERN)