On Tuesday a suit was filed against the UNM Foundation and the Board of Regents for alleged violations of the New Mexico Inspection of Public Records Act.
The suit describes plaintiff Daniel Libit as having been denied multiple IPRA requests seeking information from the WisePies/Pit naming agreement, prompting his legal action.
“The negotiation and implementation of the WisePies naming agreement is obviously a public activity taken by public officials employed by the University of New Mexico,” said Nicholas Hart, the attorney representing Libit in the case.
“The University and the Foundation should not be able to shield those records simply by creating a so-called ‘non-public’ entity,” Hart said.
As of Thursday, the suit is being processed by court and no summons have been made. As such, neither of the defendants — the UNM Foundation and the Board of Regents— have been served with the lawsuit, according to Dianne Anderson, public information officer for the University.
UNM has not made any review of the suit, she told the Daily Lobo.
If the case is decided in the plaintiff's favor, the UNM Foundation will be declared a public body with records subject to public disclosure.
The UNM Foundation is a non-profit 501(c)(3) organization formed by regents to facilitate private donations, manage the investment of the University endowment, and distribute gifts throughout UNM.
Libit is a journalist whose website — NMFishbowl.com — is a self-declared watchdog of the UNM Athletics Department. The suit was published on that website Wednesday. It has not yet been made public through the Bernalillo Court case tracking system.
Anderson said the complaint misunderstands the relationship between UNM and the Foundation.
“The UNM Foundation is a standalone organization with a separate board, employees and mission,” she said. “We are grateful to have an independent partner like the UNM Foundation.”
Pursuant to its policy, the Foundation will not provide any comment regarding pending litigation, said Jennifer Kemp, the Foundation’s communications director.
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Emails disclosed in the suit reveal the rationale behind the Foundation’s denial of Libit’s requests.
Kemp stated the Foundation doesn’t typically share donor information out of respect. However, the Foundation tries “to be as transparent as possible,” she said.
Kemp also noted the Foundation is not mandated to reveal its records because it “is not a public body,” but rather a separate legal entity from the University.
Libit contested this, saying the Foundation’s close relationship with UNM mandates its records are to be made public on request.
The suit argued the WisePies naming agreement, which renamed UNM’s basketball arena in 2014, contained records subject to disclosure under IPRA laws.
The agreement required WisePies to provide $5 million to the Foundation over 10 years and was reviewed by multiple UNM administrators, the suit said.
“By calling it a gift,” Libit told the Daily Lobo, “(the Foundation) is able to hide these dealings.”
“It gives them a layer of secrecy,” he said.
“The taxpayers have a right to see the records related to the naming agreement,” Hart said. “And that is what this lawsuit is seeking — transparency regarding the operations of our public officers.”
The suit provided several arguments supporting its claim that the Foundation’s relationship with UNM makes it a public body subject to IPRA disclosure.
While the Memorandum of Agreement between UNM regents and the Foundation designates the Foundation as a separate entity, it establishes its close relationship with the University and its administration, the suit noted.
The UNM Foundation makes fiduciary suggestions to the regents, and manages UNM’s nearly $400 million endowment.
UNM also supports the operating costs of the UNM Foundation, giving over $4.5 million for 2014-2015.
The UNM president must be included in “all facets” of the work of the UNM Foundation president, according to the MOA.
Brendon Gray is a news reporter for the Daily Lobo. He can be reached at news@dailylobo.com or on Twitter @notgraybrendon.
