The General Counsel is =
responsible for providing leadership and consultation on all legal =
issues affecting the University.=C2=A0 This scope of responsibility =
extends University-wide and also to the University=E2=80=99s direct =
support organizations of the FGCU Foundation, Inc. and the FGCU =
Financing Corporation.=C2=A0 In so doing, the General Counsel=E2=80=99s =
Office maintains a high level of output without sacrificing =
quality.=C2=A0 Most of the Office=E2=80=99s accomplishments fall into =
more than one of the President=E2=80=99s Goals=C2=A0or the =
University=E2=80=99s goals in the 2005-2010 Strategic Plan.=C2=A0 =
However, the activities of the legal office generally fall consistently =
within strategic plan goal 8 =E2=80=93 ongoing quality improvement. =
Below, some of the major accomplishments of the General Counsel's Office =
during fiscal year 2005-06 are highlighted.=C2=A0 Several of the Office's accomplishments also =
support Goal 1 - High Quality Education, Goal 2- The Student Community, =
Goal 4 -Talented and Dedicated Faculty and Staff, Goal 5 -=C2=A0State of =
the Art Infrastructure, and Goal 6 - Research and Sponsored =
Programs.
=C2=A0
Board of =
Trustees
=C2=A0
A significant portion of the =
duties and responsibilities of the General Counsel relate to support of =
the FGCU Board of Trustees.=C2=A0 For example, prior to distribution of =
board agendas, the General Counsel reviews every proposed agenda item =
from the legal perspective and works through any legal or governance =
issues raised by an agenda item with the respective vice president or =
director.=C2=A0 In addition, the General Counsel is directly responsible =
for the drafting or submission of agenda items with legal or governance =
implications.=C2=A0 For example, the General Counsel updated and revised =
the FGCU Board of Trustees Bylaws at the January and June 2006 =
meetings.=C2=A0
=C2=A0
Delegations of Contracting =
Authority
=C2=A0
During fiscal year 2005-06, the =
General Counsel=E2=80=99s Office ensured that the University raised its =
level of best governance practices by decreasing the number of incidents =
where officers or employees are acting or executing legal documents =
without the authority to do so, also known in business and legal circles =
as acting in an =E2=80=9Cultra vires=E2=80=9D capacity.=C2=A0 For =
example, the following delegations of authority were established:=C2=A0 =
Academic Agreements (Provost to Associate Provost), Academic Agreements =
(Provost to deans), Administrative Officer Succession (President to vice =
presidents), Athletic Game Contracts (President to Athletics Director), =
Capitol Access Cards (President to Financing Corporation Executive =
Director and Government Relations Director), Continuing Education and =
Extended Program Contracts (Provost to Associate Vice President for =
Research & Interim Dean of Extended Programs), Curriculum and =
Instruction Agreements (Provost to Associate Vice President, Academic =
Affairs), Operating Budget Amendments (Board of Trustees to President), =
Personnel Actions (President to Vice President, Student Affairs), =
Personnel Actions and Academic Agreements (Provost to Associate =
Provost), Procurement Agreements (Procurement Services Director to =
Procurement Services Assistant Director & Purchasing Agents), =
Regulation Development (Board of Trustees to President), Regulation =
Development (President to General Counsel), Student Code of Conduct =
Final Appeals (President to Vice President, Student Affairs), Housing =
and Resident Assistant Employment Agreements (Housing Director to =
Assistant Director), and USPS and A&P Employment Plans (Vice =
President, Administrative Services to Human Resources Director).=C2=A0 =
Additional work remains to locate and bring a few stragglers into the =
=E2=80=9Cdelegation tent=E2=80=9D but the bulk of the work has been =
completed.=C2=A0 The tightening of the contract execution process =
enables the General Counsel's Office to ensure that more contracts =
receive legal review, and therefore more contracts contain terms that =
are favorable to the University.
=C2=A0
FGCU Policies
=C2=A0
In accordance with the FGCU =
Policy on Policies, the General Counsel has some responsibility for =
overseeing the University-wide policy promulgation process.=C2=A0 The =
following policies were completed and approved during fiscal year =
2005-06:=C2=A0 Academic Learning Compacts (#2.41), Intellectual Property =
(#2.12), Retention of External Legal Counsel (#1.12), Student Possession =
and Use of Alcoholic Beverages (#2.33), and Student-Athlete In-State =
Tuition Waivers (#3.35).=C2=A0 In addition, two existing policies, =
Centers and Institutes (#2.11) and Department of Athletics Substance =
Abuse and Testing Program (#1.21), were reviewed and revised. =
=C2=A0
FGCU =
Regulations
=C2=A0
The Board of Governors=E2=80=99 =
adoption of a regulation development procedure for state university =
boards of trustees, in July 2005, required FGCU to design and implement =
a new process for the establishment, publication and cataloging of local =
regulations.=C2=A0 Implementation of the BOG policy required a =
comprehensive re-design and upgrade to the FGCU General Counsel=C2=A0web =
page, to include the addition of new pages informing the University =
community regarding regulation developments, status of current =
regulations and an archive of obsolete regulations.=C2=A0 Currently, the =
FGCU General Counsel web page is considered to be state-of-the-art in =
the legal community, and the General Counsel has received many =
commendations from colleagues with respect to the website.=C2=A0 The =
General Counsel=E2=80=99s Office also designed and implemented a system =
to maintain FGCU=E2=80=99s hard copy official files upon which the =
website version is based.
=C2=A0
The General Counsel is =
responsible, along with the respective vice president, for ensuring that =
University regulations are promulgated, updated and revised as =
appropriate.=C2=A0 In September 2005 and June 2006, the General Counsel =
revised the University=E2=80=99s tuition and fees regulation chapter to =
comply with changes in the law, implement the appropriations bill, and =
support funding needs on campus.=C2=A0 In April 2006, the General =
Counsel overhauled and revised the University=E2=80=99s parking =
regulations chapter to improve efficiencies and implement fee increases =
which would fund the construction of parking garage I.=C2=A0 Parking =
garage I is expected to open in Fall 2006.
=C2=A0
Academic =
Issues
=C2=A0
With respect to FGCU=E2=80=99s =
pursuit of an authorization to offer lower-division courses off the main =
campus, the General Counsel in Spring 2006 researched applicable state =
rules and laws and brainstormed with the Provost=E2=80=99s Office.=C2=A0 =
In May 2006, the General Counsel discussed the issue with Board of =
Governors General Counsel Vikki Shirley, provided the BOG with data and =
information regarding potential course offerings and coordinated a =
process for FGCU to seek proper authorization from the BOG.=C2=A0 This =
culminated in FGCU=E2=80=99s formal request to place the matter on the =
BOG agenda, and President Merwin=E2=80=99s successful presentation and =
application to the BOG for approval of a two-year pilot =
project.
=C2=A0
During fiscal year 2005-06, the =
General Counsel=E2=80=99s Office had the unique opportunity to represent =
the FGCU Child Development Center in an administrative matter before the =
Department of Children and Families.=C2=A0 The Center was alleged not to =
have complied with regulations requiring the training of employees soon =
after beginning work and with=C2=A0record-keeping requirements.=C2=A0 =
The General Counsel=E2=80=99s Office was able to negotiate an amicable =
settlement with the Department as to this matter.=C2=A0 The settlement =
was finalized in January 2006.
=C2=A0
The General Counsel=E2=80=99s =
Office also reviewed or drafted over one hundred articulation and =
affiliation agreements. These agreements facilitate the exchange of =
students and faculty between universities or the placement of students =
in external facilities for internships and other learning =
experiences.=C2=A0 Some of the more notable examples of these agreements =
include the international agreements with Halmstad University (Sweden), =
Stazione Zoologica 'Anton Dohrn' di Napoli (Italy), =C2=A0European =
Institute of Marine Studies of the University of Brest (France), Nankai =
University (China), Yantai University (China) and Audencia Nantes.Ecole =
de Management (France).
=C2=A0
The General Counsel=E2=80=99s =
Office also renders significant legal support to the Office of Sponsored =
Research in the form of contract review and interpretation of laws and =
regulations related to research matters.=C2=A0 Some examples of the =
Office's work in this area=C2=A0include issues related to technology =
transfer and intellectual property.
=C2=A0
You may recall that in the =
previous fiscal year of 2004-05, the University submitted its initial =
self-report as a part of its reaffirmation of SACS accreditation and =
subsequent focus report on specific issued raised by the on site =
assessment team. At the end of March 2005, the SACs onsite committee =
held its visit.=C2=A0 The General Counsel was responsible for =
participating in the writing of the report to include the section on =
direct support organization liability.=C2=A0 To close the loop from last =
fiscal year=E2=80=99s evaluation, the Commission in early 2006 =
reaffirmed the University=E2=80=99s accreditation with no qualifications =
or follow-up required as to the matters addressed and resolved by the =
General Counsel in the focus report.
=C2=A0
Human Resources and Labor =
Issues
=C2=A0
During fiscal year 2005-06, the =
General Counsel=E2=80=99s Office assumed sole responsibility for the =
legal aspects of the collective bargaining process and contract =
administration on campus. As a part of this process, the General Counsel =
meets frequently with and renders legal advice to the Provost and her =
staff and the staff of the Office of Human Resources.=C2=A0 The General =
Counsel reviews drafts of bargaining proposals and advises as to =
negotiating strategies and bargaining processes.=C2=A0 As specific =
faculty issues and personnel matters arise during the fiscal year, the =
General Counsel interprets the collective bargaining agreement and =
provides advice to the Provost=E2=80=99s Office, deans and department =
chairs.
=C2=A0
During fiscal year 2005-06, the =
General Counsel=E2=80=99s Office handled the legal aspects of a =
multitude of personnel-related challenges in the areas of immigration =
issues, workers compensation, unemployment compensation, separations =
from employment, discipline, counseling, promotions, and discrimination =
matters. =C2=A0The specifics of these matters shall not be enumerated =
here for confidentiality reasons.
=C2=A0
Real Property Acquisitions and =
Matters/Construction
=C2=A0
During fiscal year 2005-06, FGCU =
and its direct support organizations explored the acquisition of many =
parcels of real property in the University=E2=80=99s service area.=C2=A0 =
The responsibility for analyzing and resolving many of the transactional =
details and carrying out the due diligence falls to the General =
Counsel.=C2=A0 In handling these matters, the General Counsel=E2=80=99s =
Office is consistently able to negotiate successful transactional =
outcomes and is skilled in refusing unreasonable demands of the =
University.=C2=A0 These transactions are described briefly =
below.
=C2=A0
Charlotte =
County instructional site (one hundred fifty acres) =E2=80=93 The =
General Counsel=E2=80=99s work on this project has two parts.=C2=A0 =
First, the General Counsel drafted and negotiated an agreement between =
FGCU/FGCU Foundation and Stock Development/Private Equity Group for the =
establishment of an FGCU District in Charlotte County.=C2=A0 This =
agreement was executed in December 2005 and enumerates the many business =
and gift terms between the parties.=C2=A0 Second, and more recently, the =
General Counsel worked with Susan Evans to formulate the =
President=E2=80=99s charge to the Charlotte County Site Selection =
Advisory Committee.=C2=A0 In addition, the General Counsel requested =
that Private Equity Group (O.J. Buigas) formally assign their rights and =
responsibilities in the University District Agreement to Pine Creek =
(Greg Eagle).=C2=A0 This assignment was executed commensurate with =
Private Equity=E2=80=99s assignment to=C2=A0Pine Creek=C2=A0of their =
purchase and sale of the larger parcel of 1200 acres surrounding the 150 =
acre FGCU-designated parcel.=C2=A0 Work =
generated by this site selection project continues into fiscal year =
2006-07, and this new effort will be enumerated in next year=E2=80=99s =
annual report.
=C2=A0
Naples Grand Central =
Station/Renaissance Village =E2=80=93 During previous fiscal year =
2004-05, discussions began between FGCU and Antaramium Development as to =
FGCU=E2=80=99s interest in acquiring a site in the Grand Central =
Station/Renaissance Village development in the City of Naples.=C2=A0 =
After many meetings, negotiations, brain-storming sessions and contract =
drafting exercises, the parties on December 14, 2005 executed a purchase =
and sale agreement for approximately two acres of property.=C2=A0 Upon =
additional negotiation, document drafting and due diligence, the parties =
on April 6, 2006 closed on the property.=C2=A0 Because FGCU was closing =
on a parcel of land in a development without a recorded commercial =
association, this closing required the negotiation and drafting of many =
important documents beyond those required in a typical land closing, to =
include: a courtyard easement, a drainage easement, a parking garage =
easement, a signage easement, an access easement, a temporary =
construction easement, an option agreement and a post closing =
agreement.=C2=A0
=C2=A0
With respect to the financing of =
the Naples purchase, the General Counsel drafted an Inter Direct Support =
Organization loan agreement to memorialize the Foundation=E2=80=99s loan =
to the Financing Corporation of five million dollars.=C2=A0 The General =
Counsel also ventured for the first time into the realm of tax law by =
authoring a tax-exempt debt transaction opinion on behalf of the =
Foundation for Northern Trust.=C2=A0
=C2=A0
In May and June of 2006, the =
parties continued discussions on the outstanding post closing matters, =
particularly as to the analysis and resolution of the question whether =
FGCU would become a member of the commercial association and if so, =
under what terms and conditions. Work on this project continues into the =
current fiscal year which will be reflected in next year=E2=80=99s =
evaluation.=C2=A0
=C2=A0
Naples Botanical Garden =E2=80=93 =
After several challenging years of negotiations, the FGCU Foundation =
closed on the gift of approximately two acres of land from the Naples =
Botanical Garden.=C2=A0 This transaction required reaching agreement and =
execution of many documents to include a land transfer agreement, an =
operational memorandum of agreement, a license to use real property =
agreement, and a partial release of the NBG mortgage.=C2=A0 =
=C2=A0
Ginn-LA Naples LTD, LLLP =
=E2=80=93 During fiscal year 2005-06, the General Counsel continued to =
develop an excellent rapport with representatives of the Ginn Companies =
and to evaluate opportunities for collaboration between the two =
entities.=C2=A0 For example, during the 2005-06 Winter Break, the =
General Counsel collaborated with Ginn=E2=80=99s representatives to =
restructure the proposed=C2=A0transaction between the parties, as =
required by Lee County, and to draft the necessary closing documents for =
the FGCU Foundation=E2=80=99s sale and leaseback of its two hundred acre =
parcel north of Alico Road (also known as the =E2=80=9Ctomato =
patch=E2=80=9D).=C2=A0 Ensuring that the Foundation received its payment =
of $210,000.00 and gift of $2,500,000 on January 5, 2006 =
was=C2=A0necessary to meet the State of Florida gift matching deadline =
for the 2006 legislative session.=C2=A0 The Ginn gift was matched during =
the session.=C2=A0 Similarly, in June 2006, the General Counsel =
collaborated with Ginn=E2=80=99s representatives to ensure that the FGCU =
Foundation received its donation of $2,290,000.00 prior to July 1, 2006, =
pursuant to the parties' agreement.
=C2=A0
Charlotte County five-acre =
donation =E2=80=93 In follow-up to the execution of documents during =
fiscal year 2004-05 to effectuate Charlotte County=E2=80=99s donation of =
five acres of real property to the FGCU Foundation, the General =
Counsel=E2=80=99s Office ensured that the documents related to the =
county=E2=80=99s donation of five acres to the FGCU Foundation were =
executed and recorded on July 14, 2005 in the county=E2=80=99s land =
records.=C2=A0
=C2=A0
Miscellaneous Transactions =
=E2=80=93 Several real property transactions were explored and =
investigated during fiscal year 2005-06 but were not brought to closure =
for reasons such as abandonment of the project or postponement of the =
project to permit further exploration and analysis.=C2=A0 =
Nevertheless,=C2=A0 the projects are worthy of mention in this annual =
report as the General Counsel spent significant effort exploring and =
analyzing proposals and records in evaluation of possible land =
acquisitions.=C2=A0 The following are examples of such =
transactions:=C2=A0 (1) establishment of an FGCU Environmental Forensics =
Facility at the Deep Lake location in Charlotte County (aka =E2=80=9CThe =
Body Farm=E2=80=9D), (2) pursuit of a golf facility for the PGM program =
and/or a forensics facility at the FGCU Foundation=E2=80=99s Rash =
property on 14841 N. Mallard Lane, =
Ft. Myers, (3) acquisition of 20/1000 acres owned by the Benderson =
family south of the airport (more specifically, east of Treeline Ave, =
north of Alico Road, south of the Midfield Terminal and west of Airport =
Haul Road), (4) pursuit of approximately five acres of real property in =
Charlotte County=E2=80=99s Murdock Village development via either Kitson =
& Partners or Stock Development Corporation, (5) the establishment =
of a retirement-style village on the FGCU campus, and (6) execution of a =
35-year real property sublease with the Florida Department of =
Environmental Protection for establishment of a marine laboratory and =
research site at Rookery Bay, Collier County.=C2=A0
=C2=A0
In addition, the General =
Counsel=E2=80=99s Office is responsible for reviewing most agreements =
relating to the hiring of architectural, design or construction services =
by independent professionals and firms.=C2=A0 During fiscal year =
2005-06, the General Counsel's Office reviewed or drafted numerous such =
contracts.
=C2=A0
Also, the General Counsel =
negotiated and resolved the campus conservation easement matter that had =
been outstanding since the University=E2=80=99s establishment.=C2=A0 =
This resolution took the form of a memorandum of agreement with the =
South Florida Water Management District, which was approved by the Board =
of Trustees in April 2006 and by the District in Summer 2006.=C2=A0 The =
resolution of this matter enabled the FGCU Financing Corporation to =
obtain its permit to begin infrastructure development and construction =
of the new south campus housing parcel within a reasonable =
timeframe.=C2=A0
=C2=A0
The General Counsel also provided =
advice with respect to the handling of the University=E2=80=99s master =
planning process.
=C2=A0
During fiscal year 2005-06, the =
General Counsel's Office had the opportunity to represent FGCU in its =
litigation against a roofing contractor and architectural firm.=C2=A0 =
The complaint stemmed from a defect in the membrane used as an =
underlayment on the roof of several campus buildings. The asphalt-like =
compound melted and leaked from the eaves and other areas of the roof =
and formed unsightly tar-like formations along the walkways and =
underlying roofs.=C2=A0 Four counts=C2=A0were alleged in the complaint: =
(1) breach of contract by the architect; (2) breach of contract by the =
contractor; (3) breach of express warranty by both defendants; and (4) =
negligent design by the architect.=C2=A0 In March 2006, the General =
Counsel's Office negotiated a settlement whereby the contractor and =
architects would compensate the University in the amount of =
$100,000.
=C2=A0
Risk Management
=C2=A0
In collaboration with the Vice =
President, Administrative Services, the General Counsel is responsible =
for managing certain aspects of risk management at the University to =
include slip-and-fall and other negligence claims.=C2=A0 During fiscal =
year 2005-06, the General Counsel handled several such matters which =
will not be enumerated here for confidentiality purposes.
=C2=A0
Direct Support Organizations
=C2=A0
The General Counsel bears =
responsibility for meeting the legal needs of the FGCU Foundation and =
the FGCU Financing Corporation.=C2=A0 In furtherance of this =
responsibility, the General Counsel works with the respective executive =
directors on issues as they arise and she=C2=A0frequently is consulted =
with respect to board of directors initiatives and agenda items.=C2=A0 =
The General Counsel in conjunction with the Executive Director of the =
Financing Corporation oversees the work of bond counsel and the review =
and execution of the many legal documents necessary to finance, plan and =
design housing phases and parking garages.
=C2=A0
Student =
Issues
=C2=A0
The General Counsel=E2=80=99s =
Office is responsible for rendering legal advice with respect to student =
issues in areas such as student discipline, student grievances and =
student disability issues.=C2=A0 For purposes of confidentiality, the =
specifics of individual cases will not be enumerated in this =
document.=C2=A0 With respect to student government matters, the General =
Counsel's Office is called upon to advise on matters such as student =
elections issues, free speech issues, statutory interpretations and =
contracting issues related to event planning.=C2=A0
=C2=A0
Legislative
=C2=A0
At the beginning of fiscal year =
2005-06, the General Counsel completed her role serving as chair of the =
search committee for the position of Government Relations =
Director.=C2=A0 As far as legal work performed in support of =
FGCU=E2=80=99s legislative agenda after the new director began work, the =
General Counsel spent significant time reviewing and commenting upon =
drafts of the state university system governance bill, HB 7257, =
particularly the sections dealing with the roles of the Board of =
Governors and university boards of trustees, rule-making processes, and =
bonding authority.=C2=A0 While this bill was filed in preparation for =
the 2006 Session, it died in committee.
=C2=A0
As for FGCU-specific legislation, =
the General Counsel drafted FGCU=E2=80=99s amendment for CS /SB 1086, =
Building Designations, to name the Kleist Education Center, the Herbert =
J. Sugden Hall, the Holmes Hall engineering program facility and the =
Lutgert Hall college of business facility.=C2=A0 This bill was approved =
by the Governor on June 20, 2006.=C2=A0 The General Counsel also drafted =
HB 751/SB1352, Adult Human and Animal Stem Cell Research, which would =
have established and funded a stem cell research institute at =
FGCU.=C2=A0 While this bill was filed and referred to various =
committees, the bill did not pass in either legislative =
house.
=C2=A0
Additionally, the General Counsel =
drafted a bill amendment granting state universities a right of first =
refusal to provide access to upper-division level college courses and to =
award baccalaureate and graduate degrees at a community college in the =
respective state university=E2=80=99s geographic and service area.=C2=A0 =
=C2=A0
While the line item was =
ultimately vetoed by the governor, the General Counsel also tracked the =
Second District Court of Appeal annex issue.=C2=A0 Upon conclusion of =
the 2006 legislative session, the General Counsel assisted =
administrators with interpretation and implementation of other =
legislation that passed, such as the following:=C2=A0 (1) HB 5001, the =
appropriations bill; specifically=C2=A0tuition and salary increases, (2) =
HB 2434, relating to=C2=A0travel to terrorist states, (3) HB 428, =
relating to=C2=A0the travel expense/reimbursement bill which increases =
the per diem and mileage rates for purposes of state-related travel, (4) =
SB 80, relating to agency website notices regarding electronic mail, and =
(5) HB 1369, relating to rejected =
bids/proposals/negotiations.
=C2=A0
Upon conclusion of the special =
session earlier last fiscal year, the General Counsel assisted officers =
and administrators with interpretation and implementation of SB 6-B that =
amended the legislative and executive branch lobbying provisions and =
related Interim Lobbying Guidelines for the House and =
Senate.
=C2=A0
Sunshine Law and =
FERPA
=C2=A0
During fiscal year 2005-06, the =
General Counsel=E2=80=99s Office handles many calls and questions =
regarding application of the Open Meetings Law on campus.=C2=A0 The =
General Counsel=E2=80=99s Office receives many inquiries from around the =
campus and resolves problems regarding interpretations of the Family =
Educational Rights and Privacy Act of 1974 (FERPA).=C2=A0 Also, the =
General Counsel's Office works alongside the Office of University =
Spokesperson to ensure that the Public Records Law is complied with and =
that requests for public records are handled in a timely and accurate =
fashion.
=C2=A0
Administration of the General Counsel=E2=80=99s =
Office
=C2=A0
The General Counsel provides a =
high level of administrative competence to the legal function and =
communicates a clear strategic direction for the Office.=C2=A0 She is =
continuously examining administrative effectiveness and seeking better =
procedures.=C2=A0 She ensures that the Office is in compliance with all =
University policies and procedures.=C2=A0 The General Counsel ensures =
that other departments are fully informed of activities that may be =
related to their areas.=C2=A0
=C2=A0
With respect to information and =
records, the Office excels in maintaining an effective records retention =
program, to include electronic and hard copy files,=C2=A0and =
gives=C2=A0proper attention to legal and operational needs for swift =
information retrieval.=C2=A0 Every member of the General =
Counsel=E2=80=99s Office respects confidential information. =
=C2=A0
The General Counsel is a strong =
proponent of employee coaching and counseling and is a strong =
mentor.=C2=A0 The office operates with a high degree of morale.=C2=A0 =
The General Counsel supports and requires her employees to sharpen and =
continuously update their skills through attendance at training =
opportunities.=C2=A0 The General Counsel empowers her employees with the =
authority and resources to achieve results.
=C2=A0
Members of the General Counsel's =
Office=C2=A0demonstrate a high degree of integrity, challenge and =
drive.=C2=A0 The General Counsel's Office=C2=A0excels in creative =
problem solving.