SUNY failure to create law enforcement agreements

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

* Records of the SUNY Chancellor's disapproval of the University at Albany's entering into written agreements with adjoining law enforcement agencies.

N.Y. EDUC. LAW § 355 (2) (l) would appear to require, in relevant part: "Subject to the approval of the chancellor, the president of each state-operated campus of the state university shall enter into a written agreement with adjoining law enforcement agencies establishing protocols for the exercise of authority by such university police officer off-campus, including mutual aid and assistance. Such written protocols shall not be deemed to supersede the authority of other police officers"

"Shall" is a legal imperative, and yet the University at Albany apparently failed to enter into written agreements with all adjoining law enforcement agencies. Such agreements seem to be the particular legal responsibility of university presidents and the SUNY Chancellor. Where there is no agreement, it would suggest that the university president and chancellor choose not to make one or that the university president pursued such an agreement but the Chancellor would not approve it; in either event, there should be a record: one indicating a choice was made not to have such an agreement or an agreement was proposed but ultimately rejected by the Chancellor. It might also be possible that a university president and the Chancellor neglected to comply with the law that is part of their jobs, though that would be remarkable given how much money they are paid to do their jobs, e.g. "[Robert J.] Jones’ appointment is effective on January 2, 2013. As [University at Albany] president, he will receive an annual State salary of $385,000, with a supplement of $110,000 from the campus’ allocation of research funds through the Research Foundation. He will also receive a $60,000 housing allowance and have access to a campus vehicle." http://www.albany.edu/news/28617.php "Nancy Zimpher, who gets $545,000 a year as SUNY chancellor." http://www.bloomberg.com/news/2010-11-10/executives-collect-2-billion-running-for-profit-colleges-on-taxpayer-dime.html

An e-mail from the NYS Police's FOIL unit of January 3, 2013 12:28:35 PM EST indicated they failed to find "a copy of the current Memorandum of Understanding between the Division of State Police and the University at Albany's University Police Department."

Albany County likewise indicated they could not locate a Memorandum of Understanding or agreement between the Albany County Sheriff's Office and the University at Albany President and/or University at Albany Police. The lack of such an agreement seems inexplicable given problems like the case involving SUNY Albany football players charged with gang rape that ex-athlete, ex-coach, football fan SUNY Albany Police "Chief" J. "Frank" Wiley did not report to the Albany County District Attorney until the media did which thereby forced his hand; reporting such cases ASAP to the DA's office evidently can help strengthen cases for the prosecution and provide better services to victims, but for at least ten years (and perhaps still), Mr. Wiley had chosen not to do so (see quoted e-mail II below).

All these years after that gang rape case involving SUNY Albany football players, and still no law enforcement agreement with the Albany County Sheriff's Office as NYS Law would seem to require, and yet the SUNY Albany Police under ex-athlete, ex-coach, football fan SUNY Albany Police "Chief" J. "Frank" Wiley took particular care to establish an agreement with the SUNY Albany football team despite that not being something required by law at all: "Establish an MOU [Memorandum of Understanding] with the UA Football program to create a leadership development opportunity for football players. MOU was established and signed and pilot program has begun" (38)
"An MOU for a new mentorship program (ATLAS) with UPD and the UA Football team was established" (43)
"Student Success Celebrations." Student Success 2011-2012 Briefing Book. http://www.albany.edu/studentsuccess/assessment/BriefingBook/UAlbany%20Briefing%20Book%2011-12.pdf

The Smart System Technology & Commercialization Center of the College of Nanoscale Science & Engineering of (formerly of?) SUNY Albany is in Canandaigua. SUNY Police have their jurisdiction defined by N.Y. CRIM. PROC. LAW § 1.20 (34-a) (d): "The geographical area of employment of a police officer appointed by the state university is the campuses and other property of the state university, including any portion of a public highway which crosses or abuts such property." As such, N.Y. EDUC. LAW § 355 (2) (l) and also SUNY Police Manual § 5.01 would seemingly require the SUNY Albany President to have entered into a law enforcement agreement with the Town of Canandaigua Police Department. However, the Clerk-Treasurer of the City of Canandaigua indicated "The City of Canandaigua has no such record and therefore cannot fulfill this FOIL request." There did not appear to be an agreement with the Ontario County Sheriff's Office either.

The supposed "President of the SUNY-Wide Judicial Administrator group" http://www.albany.edu/staff.php Clarence L. McNeill sent me an e-mail (in violation of my clear instructions to SUNY Albany that Mr. McNeill should never write me again, given the threats he sent me and my family following my having reported academic dishonesty, faculty ethics violations, sexual harassment, and retaliation to him) that seems to indicate that there are not law enforcement agreements with the Ontario County Sheriff's Office, the Rensselaer County Sheriff's Office, the Rensselaer Police Department, and the Warren County Sheriff's Office and that there are also no SUNY Police there. Mr. McNeill indicated that SUNY Albany does not own the East Campus property, the Smart System Technology & Commercialization Center, or the Dippikill property and gave that as the reason why there are no SUNY Police there and seems to have given that as the reason why there are no law enforcement agreements with the Ontario County Sheriff's Office, the Rensselaer County Sheriff's Office, the Rensselaer Police Department, and the Warren County Sheriff's Office. No explanation was offered as to why a FOIL request was forwarded to him when he is not a Records Access Officer.

J. "Frank" Wiley was cc'd on threats that Clarence L. McNeill sent to me and to my family subsequent to my reporting academic dishonesty, faculty ethics violations, sexual harassment, and retaliation to him. SUNY Albany Clery Act Compliance Officer John Murphy wrote me that the SUNY Albany Police are backing Mr. McNeill's threats, a claim Mr. Murphy cc'd to Mr. Wiley. However, to date I have had no instructions from the SUNY Albany Police, nothing to indicate that they are indeed backing those threats. Rather, J. "Frank" Wiley claimed the SUNY Police had complied with a FOIL request I'd made for "Any and all reports, e-mails, logs, etc. received by, created by, or sent by UPD pertaining to or mentioning myself [...] from October 1, 2011 to present. I wouldn't expect there to be any, because I had not been contacted by UPD during that time period in any way, and it would be exceedingly strange if there was something on file about me with UPD when I had not been contacted by UPD. However I thought it best to exercise my FOIA rights (my New York Freedom of Information Law and Personal Privacy Protection Law rights, as well) and see if for some unusual reason there is something, and in that event, what reasons there were as to why I had not been contacted by UPD about it. I thought it particularly important to learn if there are any outstanding issues, obligations, restrictions, etc. of which I need to be made aware; anything I need to do, refrain from doing, or pay, etc.; anything I could appeal, etc." even though UPD's response did not include anything indicating that UPD had any of Mr. McNeill's threats or were enforcing them.

If the position of SUNY is that properties such as SUNY Albany's East Campus do not fall under the "geographical area of employment of a police officer appointed by the state university is the campuses and other property of the state university, including any portion of a public highway which crosses or abuts such property" then SUNY Police would presumably be prohibited from involvement in any investigation of crimes at those properties absent a law enforcement agreement. The property had seemed to be owned by university's foundation, though: "the University at Albany Foundation purchased the former Sterling Winthrop pharmaceutical complex located at 81 Columbia Turnpike, East Greenbush, NY. " http://www.albany.edu/eastcampus/ http://www.albany.edu/uafoundation/uaf_properties.shtml "for the purposes of [the Higher Education Act] HEA, if you have an institution-associated foundation that owns or controls a building or property that is operated in support of, or in relation to, your institution’s educational purposes, your institution is considered to be in control of that building or property" (13)

For the purpose of campus safety and security reporting under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act a university is responsible for reporting about separate campuses, properties the university does not own but does control, and noncampus buildings or property. "Controlled by means that your institution rents, leases or has some other type of written agreement (including an informal one, such as a letter or an e-mail) for a building or property, or a portion of a building or property. Even if there is no payment involved in the transaction, under Clery, a written agreement for use of space gives your institution control of that space for the time period specified in the agreement" (12) "If your institution has more than one campus, each campus must comply independently with all of the Clery Act and the fire- and safety-related HEA requirements as described in this handbook. For the purpose of these requirements, consider an additional location a separate campus if it meets all of the following criteria:
"– Your institution owns or controls the site;
"– It is not reasonably geographically contiguous with the main campus" (15); "Any building or property owned or controlled by a student organization that is officially recognized by the institution; or Any building or property owned or controlled by an institution that is used in direct support of, or in relation to, the institution’s educational purposes, is frequently used by students, and is not within the same reasonably contiguous geographic area of the institution" (25)
U.S. Department of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting, Washington, D.C., 2011. http://www2.ed.gov/admins/lead/safety/handbook.pdf

[I]
From: "McNeill, Clarence L" <cmcneill@albany.edu>
Subject: FOIL Request
Date: December 3, 2013 at 11:06:29 AM EST
To: [Christopher K. Philippo]
Cc: "McNeill, Clarence L" <cmcneill@albany.edu>

Mr. Philippo,

Your FOIL request of November 27, 2013, a copy of which is below, has been forwarded to me for response. As you may recall, you are to contact me for any issues or requests that you have with the University at Albany.

Regarding your requests for local police agency cooperation agreements between the University at Albany and the Ontario County Sheriff, the Rensselaer County Sheriff, the Rensselaer City Policy, and the Warren County Sheriff, the University has no documents that are responsive to your request.

The State of New York, on behalf of SUNY and the University at Albany, does not own the East Campus property or the property that the Smart System Technology & Commercialization Center is located on or the Dippikill property. As such, In addition, the University at Albany does not have University Police stationed at any of the said properties.

Thank you.

From: Christopher Philippo [...]
Sent: Wednesday, November 27, 2013 11:11 AM
To: Maureen.nardacci@rensselaerny.gov; dan.dwyer@rensselaerny.gov; Jones, Robert
Cc: McBride, Bruce; Howard, Bill; Zimpher, Nancy, Chancellor; John King;president@buffalo.edu; president@binghamton.edu; Stanley, Samuel
Subject: FOIL Request
I’m not sure that I ever received a reply to the below FOIL request; regardless, I’m resubmitting the request.
I suspect there is no such agreement as I’ve requested, since SUNY, on behalf of SUNY Albany, represented to the US Department of Education Office for Civil Rights only that there are agreements with the City of Albany and Town of Guilderland regarding law enforcement. “SUNY, on behalf of SUNY Albany, has a ‘Memorandum of Understanding’ with the City of Albany, on behalf of its Police Department, and the Town of Guilderland, on behalf of its Police Department, that outlines the relationship between the University Police Department and the City and Town Police Departments.”http://www2.ed.gov/documents/press-releases/suny-new-york-letter.doc Those two agreements are indeed the only ones I have been able to obtain. In response to FOIL requests I was informed there was no agreement with the Albany County Sheriff’s Office, no agreement with the State Police, and no agreement with City of Canandaigua law enforcement (the location of the Smart System Technology & Commercialization Center of the College of Nanoscale Science & Engineering of SUNY Albany). There’s apparently no agreement with the Ontario County Sheriff’s Office, and apparently no agreement with the Rensselaer County Sheriff’s Office.
If there is no such agreement, then it would probably be in the best interests of safety and security to ensure that such an agreement is made in compliance with N.Y. EDUC. LAW § 355 (2) (l)? If not, why not?
Sincerely,
Christopher K. Philippo
Begin forwarded message:
From: Christopher Philippo [...]
Subject: FOIL Request
Date: January 31, 2013 at 2:10:50 AM EST
To: Maureen.nardacci@rensselaerny.gov
Dear Records Access Officer:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request that you email the written agreement between the City of Rensselaer Police Department and the University at Albany's President. N.Y. EDUC. LAW § 355 (2) (l) states that, subject to the approval of the chancellor, such an agreement "shall" be entered, which would appear to indicate the existence of such an agreement is legally required, unless the SUNY Chancellor sees fit to prohibit agreements between SUNY and non-SUNY law enforcement agencies. The SUNY Chancellor ever choosing to prohibit such agreements would seemingly require a great deal of justification, given, e.g. the statement in SUNY Police Manual § 10.10 "University police will cooperate with all legally authorized agencies and their representatives in the pursuit of justice"http://www.suny.edu/sunypp/documents.cfm?doc_id=364 or Governor Andrew Cuomo's relatively recent statement, "the safety of our students and the security of our campuses is our top priority". Press Releases. September 13, 2012.http://www.governor.ny.gov/press/091412stmtsunythreats
I realize SUNY Albany's main campus is some distance from Rensselaer, but SUNY Albany has its East Campus at 81 Columbia Turnpike in Rensselaer. SUNY Police have their jurisdiction defined by N.Y. CRIM. PROC. LAW § 1.20 (34-a) (d): "The geographical area of employment of a police officer appointed by the state university is the campuses and other property of the state university, including any portion of a public highway which crosses or abuts such property." As such, N.Y. EDUC. LAW § 355 (2) (l) and also SUNY Police Manual § 5.01 would seemingly require the SUNY Albany President to have entered into an agreement with the City of Rensselaer Police Department.
If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and please supply the records without informing me if the fees are not in excess of $10.00 ($0.25 per page or actual cost of reproduction). If the fees are in excess of $10.00, please advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).
If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

As you know, the Freedom of Information Law and Personal Privacy Protection Law require that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.
Sincerely,

Christopher K. Philippo
[...]
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“Make you the world a bit better or more beautiful because you have lived in it.” - Edward W. Bok
N.Y. EDUC. LAW § 355 (2) (l), in relevant part: "Subject to the approval of the chancellor, the president of each state-operated campus of the state university shall enter into a written agreement with adjoining law enforcement agencies establishing protocols for the exercise of authority by such university police officer off-campus, including mutual aid and assistance. Such written protocols shall not be deemed to supersede the authority of other police officers."
SUNY Police Manual § 5.01, in relevant part, "The campus President, as the chief administrative officer, has the authority and responsibility for operation and security of the campus." http://www.suny.edu/sunypp/documents.cfm?doc_id=364

Clarence L. McNeill
Assistant Vice President for Student Success
Director, Office of Conflict Resolution & Civic Responsibility
PH: (518) 956-8140
FX: (518) 956-8141
EM: cmcneill@albany.edu
[end of quoted e-mail]

[II]

From: Christopher Philippo [...]
Subject: Re: FOIL Request
Date: January 30, 2013 at 1:39:27 PM EST
To: FoilUnit <FoilUnit@troopers.ny.gov>

Thank you!

The Albany County Sheriff's Office had the same response; the State University of New York at Albany did not have a Memorandum of Understanding or agreement with them either. The City of Albany Police seemingly have chosen to constructively deny the request, from which one might fairly reasonably infer that they don't have one either. Apart from SUNY police departments seeming to be obligated to form such agreements, absent opposition from the SUNY Chancellor, such agreements seem like a genuinely good idea.

With such agreements, problems like the following might be less likely to occur:

"While six sexual assaults have been reported on the UAlbany campus since September, university police contacted Albany County District Attorney David Soares' office for only one - the alleged rape of a freshman woman by the three football players. In the five other cases, the victims declined to press charges. In the case involving the football players, the district attorney's office was called by a television station before receiving a call from the UAlbany police. […] After the forum, Wiley declined interview requests, saying he only conducts interview by e-mail. 'I've been misquoted in my time here. I have been the object of irresponsible, gotcha journalism,' he said. Wiley steered questions to his officers."
Crowley, Cathleen F. "Handling of rape case defended; UAlbany police chief says officers followed protocol in dealing with alleged assault." Albany Times Union. October 26, 2006: A1. http://albarchive.merlinone.net/mweb/wmsql.wm.request?oneimage&imageid=6365244 (emphasis added)

Mr. Wiley had stated in that article that in his ten years at UAlbany, he'd never referred a case to the District Attorney's Office prior to arrest. The DA's Office indicated that they could help cases if they were involved earlier on in the process. Whether Mr. Wiley ever subsequently began following the advice of the DA's Office, I don't know, but I would seriously doubt it. Hence the thought that compliance on the part of SUNY with N.Y. EDUC. LAW § 355 (2) (l) would be a good thing to pursue. Local law enforcement doesn't seem to be required by that law to take the initiative to pursue such agreements; that seems to be SUNY's responsibility. However, when SUNY is lax in compliance with the law, the law does not seem to prohibit local law enforcement agencies from taking the initiative in forming such agreements.

Thanks again,

Christopher K. Philippo

---

“Make you the world a bit better or more beautiful because you have lived in it.” - Edward W. Bok
[end 2nd quoted e-mail]

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Christopher Philippo

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 10, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To James J. Malatras, SUNY FOIL Appeals Officer

I requested records of the SUNY Chancellor's disapproval of the University at Albany's entering into written agreements with adjoining law enforcement agencies by written request made on March 10, 2014. More than five business days have passed since the receipt of the request without having received a response. Consequently, I consider the request to have been denied, and I am appealing on that basis.

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.