Email messages number 20,000 pages

Separation of UA, nonprofit group cited as other files cloaked from FOIA requests

About three dozen University of Arkansas, Fayetteville employees exchanged an estimated 20,000 pages of emails this year with the nonprofit foundation that supports Razorback athletics, university officials said.

The state flagship university’s disclosure of how often employees have communicated with the Razorback Foundation comes as the nonprofit declines Arkansas Freedom of Information Act requests about the costs of recent athletic department turnover on the basis that the foundation is privately funded and holds independent interests.

Other records released by UA show the university has made at least one specific spending request of the Razorback Foundation, asking the nonprofit in 2015 to reach a detailed agreement with former Athletic Director Jeff Long and increase his deferred compensation plan “as soon as possible.”

A test for whether the Razorback Foundation should be subject to open-records laws is whether it acts as the “functional equivalent” of the university’s athletic department by being intertwined with its day-to-day operations, said John Tull, general counsel for the Arkansas Press Association.

“What you’re looking for is essentially [whether] this

private foundation is doing the work” for the university, Tull said.

Officials said the volume of email communication does not “diminish” the foundation’s independence from the university and that the university’s “request for assistance” was not an order.

The Razorback Foundation, formed more than 30 years ago by two university employees, has withheld documents concerning fired head coach Bret Bielema’s booster-funded buyout and how much the search to replace him cost donors.

The foundation declined to provide copies of two agreements with the former coach — one before his firing and one afterward — that would shed light on what he was promised and when, as well as its contract with the search firm DHR International. The university has denied possessing those documents.

Bielema and Long, fired nine days apart in November, are due more than $16 million in severance pay, according to reports, although that amount would be offset if they find jobs elsewhere. The university spent at least $75,000 with the search firm Korn Ferry, which evaluated candidates to succeed Long.

Chad Morris, the new football coach, also will have an agreement with the foundation, according to his signed offer letter with the university. Hunter Yurachek, the new athletic director, will not as of now, university spokesman Mark Rushing said.

“The University can request assistance from the Razorback Foundation (and has on occasion), but it cannot compel the Foundation to provide it,” Rushing said in response to emailed questions.

The nonprofit began to carry out the university’s 2015 request for Long’s agreement this year and was working on one aspect of it when Long was fired, Razorback Foundation Executive Director Scott Varady said.

Rebecca Morrison, a UA spokesman who handles open-records requests, estimated the university held 20,000 “potentially responsive records” in response to a request seeking emails that 38 university employees exchanged with Razorback Foundation staff since Jan. 1. Morrison offered to fulfill the request on a “rolling basis” after first rejecting it.

That estimate is based on a preliminary search, and the “final number” is unknown, Rushing said.

“As you might expect, the scope of communications may vary widely, and the emails will reflect the contents of the communications,” Varady said by email. “These communications, however, do not diminish the Razorback Foundation’s independence from the University.”

The Arkansas DemocratGazette

argued in its requests to the foundation that Bielema’s buyout documents and its contract with DHR International, the firm retained to evaluate his replacements, amounted to “public business” and were subject to public inspection.

The same Arkansas Supreme Court decision the newspaper cited in those requests, City of Fayetteville v. Edmark, also says that openrecords laws applied to a private attorney retained by the city because the attorney was the “functional equivalent” of the city attorney’s office.

“The City cannot avoid the [Freedom of Information Act] requirements by substituting a private attorney for the city attorney,” the decision says. “To condone such logic would arguably enable public officials to shield from disclosure sensitive or controversial material by hiring an outside attorney instead of using its regular city attorney.”

Varady said the decision does not apply to the Razorback Foundation because it does not receive money from UA, while the attorney in the Edmark case received public funds, and because the foundation is free from UA’s administrative control.

Across the country, university foundations by state law or court ruling are to varying degrees subject to open-records laws in 11 states, according to research by the North Carolina-based James G. Martin Center for Academic Renewal, a nonprofit institute that focuses on higher education. Arkansas is not one of them.

Nonprofit foundations supporting Arkansas’ university systems, four-year public universities and athletic programs raised more than $153 million in fiscal 2016, according to a review of tax filings. They spent at least $148 million that year and held a combined $1.7 billion in assets.

BROYLES CO-FOUNDED FUND

The Razorback Foundation launched in the early 1980s as the Razorback Scholarship Fund, meant to aid “approved athletic students” at the university through scholarships, according to incorporation documents obtained from the Arkansas secretary of state’s office.

Two of the three men who co-founded the organization were university employees who listed campus mailing addresses: Athletic Director Frank Broyles and Chief Financial Officer Fred Vorsanger. Fayetteville attorney E.J. Ball was the group’s third co-founder.

Then-university President James E. Martin served on the foundation’s first board of directors, alongside Broyles, Vorsanger and Albert Witte, then a university law professor who later became president of the NCAA. The board’s other three members were not UA employees.

The fund changed its name to the Razorback Foundation in 1988. Broyles, the athletic

director from 1973 until 2007, served as the foundation’s registered agent until 1992, according to filings with the state.

The fund was “organized as a distinct and separate entity” from UA, Varady said. He said no university employees or university system trustees currently serve on its board of directors.

Asked when UA fully separated from the foundation and whether it ever provided university or athletic department revenue to it, Rushing shared a link to the Razorback Foundation Web page that answers neither question.

In 2016, the foundation spent $21.2 million on behalf of the university’s athletic department — money that was split between scholarships, facilities and the department’s operating budget — according to its tax filing.

The foundation raises some of its money through a sports-venue seating arrangement with UA, which maintains that the university receives all ticket sales but allows the foundation to assign seating based on how much money people donate to the nonprofit.

Fans cannot purchase season tickets at the football stadium without first giving money to the foundation. The more money one gives, the better his chances are for a good view.

For that right, which the foundation has at several specific Razorback venues, it has committed to giving the athletic department at least $12 million per year, according to the agreement.

FIRST EMAILS RELEASED

The Democrat-Gazette on Dec. 6 requested copies of all emails that 38 specific employees, including athletic department staff members, sent to or received from Razorback Foundation staff since Jan. 1.

The university found more than 20,000 potentially responsive records, said Morrison of UA.

Morrison initially said the university would reject the request because it could not review the emails to determine whether some information should be withheld under exemptions to the state’s open-records laws without “impairing” the university. She later reconsidered.

It’s not clear how many of the records will be duplicates. Often, emails uncovered through open-records requests are repeated because different employees turn over their own copies of the same email.

“Any assessment or request for further comment based on that estimate would be premature and speculative,” Rushing said.

Morrison on Monday afternoon released 186 pages of emails exchanged between the Razorback Foundation and four employees: Associate General Counsel Bill Kincaid, Vice Chancellor for Finance and Administration Tim O’Donnell, Associate Vice Chancellor for Human Resources Debbie McLoud and Vice Chancellor for Governmental Relations Randy Massanelli.

Those emails touched on a variety of topics, including invitations to fundraisers, questions about tenure and a March note about an unnamed booster withdrawing foundation support because of Arkansas’ new campus-carry law. Most, however, were between Kincaid and Varady, who previously worked in the university’s office of general counsel.

NEW AGREEMENT

UA, in at least one case, requested that the Razorback Foundation conduct its business in a specific manner.

In June 2015, Varady, then the university’s general counsel, signed a letter urging the nonprofit to extend its personal services agreement with Long and raise his annual deferred compensation pay “as soon as possible.”

Varady wrote that the requests were on behalf of thenUA Chancellor David Gearhart and Donald Bobbitt, the university system’s president.

“The continuity of Mr. Long’s leadership is an essential component for the programmatic and financial success of the Athletic Department, and the following requests are designed to ensure that the University retains Mr. Long’s services,” wrote Varady, who later that year became the Razorback Foundation’s executive director.

Personal services agreements such as Long’s are “separate and apart from any employment agreement” and cover work such as speaking engagements and public appearances, Rushing said.

Varady’s letter asked the foundation to commit $250,000 per year to Long in deferred compensation, up from $200,000, after Long agreed to increase the amount he would pay the university if he departed early for another job.

The plan the university requested would have begun July 1, 2017. Long would receive the annual lump sum on that day and would “vest” in that amount on June 30, 2018. The university asked that should Long be fired “for convenience,” as he was Nov. 15, then he would vest in the payment as of his termination date.

The extension of Long’s personal services agreement was necessary to make the time covered by the agreement consistent with the university’s contract with Long, Varady wrote.

The foundation on Aug. 2, 2017, funded Long’s deferred compensation plan at $250,000, which was “consistent with the request by the University of Arkansas,” Varady said.

“The Razorback Foundation was in the process of preparing an amendment to extend the term of Mr. Long’s personal services agreement as requested, but the amendment was not completed and signed prior to Mr. Long’s termination for convenience by the University,” Varady said.