Attorney General offers weak opinion on the Razorback Foundation | Arkansas Blog

Tuesday, January 18, 2011

Attorney General offers weak opinion on the Razorback Foundation

Posted By on Tue, Jan 18, 2011 at 10:22 PM

The attorney general's office released an opinion late today in response to questions posed by state Senator David Johnson about the Razorback Foundation and FOIA law. A private citizen initially tried to pose the questions to the attorney general, but couldn't get an answer, so the reader turned to Max who in turn asked Sen. Johnson to make the request.

Here's how Max explained in his interest in the opinion before he left for vacation:


I thought it an interesting question. I also shared the reader's interest in greater transparency in University of Arkansas athletic financing. Though the Razorback Foundation has taken steps to remove itself from under the umbrella of the university, its operation and its sources of revenue are inextricably entwined with the public institution, particularly if a public commodity comes with a mandate to make a contribution to a private organization. Public employees run the stadium and ticket office and administer benefits granted only by virtue of a mandated contribution. More simply, without the public university's football team, there would be no Razorback Foundation. There are constitutional questions about public contributions to private entities. There are legal and public interest questions in laundering that money through a private entity so as to shield that spending from public view. Some public schools in other states operate with total transparency. The University of Arkansas should strive to meet the same standard.

The questions:

Under applicable law, may the University of Arkansas, a public institution, require a person to make a monetary or other donation to a nonprofit corporation such as the Razorback Foundation in order to purchase a ticket to a University of Arkansas athletic event? Q2) If the University of Arkansas may require such donations to a nonprofit corporation such as the Razorback Foundation, do such donations open the foundation's records under Arkansas's Freedom of Information Act ("FOIA")?

The AG's response, available in full on the jump, leans on a lot of tenuous language like "appears" and "reportedly," but here's the meat of the opinion:

Although the University does reserve certain seats for Foundation donors, other seats are reportedly available for non-donor attendance. The Foundation reportedly pays millions of dollars annually for this privilege…. Although the issue is ultimately one of fact, it would appear that the Foundation is not the direct recipient of public funds.

Those non-donor seats? They constitute only 15% of the seats at Razorback Stadium and War Memorial, according to the athletic department website. The rest fall under Razorback Seat Value Plan, a priority ticket plan enacted this year that requires the remaining 85% sitting in "premium" seats to make a donation to the Foundation (Jim Harris does a good job of explaining the particulars of the plan here.)

So the Foundation receives donations from 85% of Razorback ticket holders. But that doesn't constitute receipt of public funds? The idea that the Foundation offsets whatever public "donations" it receives by paying the university "millions" for the privilege of exacting those donations relies on some circular logic.

You don't think this opinion has anything politics, do you?

More tomorrow.

Opinion Number: 2010-141 Date Sent: 01/18/201

Requestor: Johnson, David

State Senator

Opinion: Under applicable law, may the University of Arkansas, a public institution, require a person to

make a monetary or other donation to a nonprofit corporation such as the Razorback

Foundation in order to purchase a ticket to a University of Arkansas athletic event? Q2) If the

University of Arkansas may require such donations to a nonprofit corporation such as the

Razorback Foundation, do such donations open the foundation's records under Arkansas's

Freedom of Information Act ("FOIA")? RESPONSE: Both of your questions assume that the

University of Arkansas conditions the purchase of any ticket upon making a donation to the

Razorback Foundation — a premise that appears to be incorrect. Although the University does

reserve certain seats for Foundation donors, other seats are reportedly available for non-donor

attendance. The Foundation reportedly pays millions of dollars annually for this privilege. Q1)

So long as this contract is supported by adequate consideration and the proceeds are devoted

to serving a public purpose consistent with the University's educational mission, I see nothing

objectionable in the preferential-seating arrangement. Q2) Although the issue is ultimately

one of fact, it would appear that the Foundation is not the direct recipient of public funds.

Accordingly, I do not believe the contractual arrangement that affords Foundation sponsors

preferential seating would open the Foundation's records to inspection under the FOIA.

Author: Jack Druff

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