North Carolina State University
Office of General Counsel
Annual Report 2011-2012
2011-12 was a banner year for providing legal education to our campus clients and enhancing our client development. The Office of General Counsel (“OGC”) planned and launched two major initiatives with great success.
The first project was the creation of an electronic newsletter that was distributed to over 300 campus leaders and managers. The newsletter, called affectionately The Howling Counsel, was received with great enthusiasm and appreciation from our clients. Seven issues were disseminated during the year on topics ranging from campus safety and political activities, to the new federal patent law and signature authority for contracts. The newsletter is maintained on the OGC website. The Howling Counsel will continue to be published to inform our campus clients on important legal matters in higher education.
Our second project was the development and presentation of a symposium on Legal and Ethical Issues for University Leaders. Eight topics were addressed over a three-hour period, and time was allotted for questions and answers. Fifty-nine (59) campus clients (and one uninvited mouse!) attended the symposium, and enjoyed a networking reception afterwards in the Thompson Theater lobby.
We gave other presentations over the course of the year on public records, student records, conflicts of interest, faculty consulting, employment issues, grievance training, new department head orientation, and plant breeding intellectual property rights. Over 500 campus clients attended these programs.
We had several notable staff recognitions and awards this year. Yolanda Smith was elected chair of the NC Bar Association’s Paralegal Division, and E. Clifton Williams was awarded the SPA Employee Award for Excellence in the Chancellor’s Division. Judy Curry co-authored a NACUANOTE on the Leahy-Smith America Invents Act, which can be read at http://www.nacua.org/nacualert/docs/AmericaInventsAct.asp#FN1, and presented at the annual meeting of the National Association of College and University Attorneys (NACUA) on “America Invents: Patent Reform – Practical Implications for Research Institutions.” Mike Poterala presented at the annual meeting of the Association of University Technology Managers on “Utilizing Cutting Edge Techniques to Successfully License Technology.”
B. OGC’s Legal Practice: By the Numbers
A notable case that came to a conclusion this past year was Terri Ginsberg v. Board of Governors of the Univ. of North Carolina, No. 09 CVS 1789. Dr. Ginsberg was a former non-tenure track faculty member in NC State’s film studies program who claimed she was denied a tenure track position in retaliation for statements she made during her introduction of a Palestinian film shown as part of NC State’s Middle Eastern film series. After extensive discovery was conducted, NC State filed a motion for summary judgment. The trial court granted the motion and Ginsberg appealed to the North Carolina Court of Appeals. The Court of Appeals rendered a unanimous opinion on November 15, 2011 that concluded that Ginsberg “failed to establish beyond mere speculation that her statements were the motivating factor in the university’s decision to not hire her for a tenure-track position.” Ginsberg filed a petition for discretionary review with the North Carolina Supreme Court; the petition was denied on June 13, 2012.
This year OGChandled28complaintsalleging unlawful discrimination, employment, and civil rights issues. The complaints, which were filed with external state and federal agencies, all resulted in favorable resolutions for the university. Of the 17 discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) six (6) cases were dismissed with the agency issuing determinations that there was "no cause"to believe any violation of applicable discrimination law had occurred. Of the three (3) discrimination complaints filed with the Office of Administrative Hearings Civil Rights Division (OAH-CRD),two cases were dismissed where the agency ruled in favor of the university finding no violations of discrimination law were committed; one case was settled for $15,000. All three (3) of the student complaints filed with the U.S. Department of Education's Office of Civil Rights (OCR) have been resolved with the agency closing its investigation finding no violations against the university. The two (2) complaints filed with the NC Department of Labor (DOL) were dismissed by the agency. Of thefour (4) employment-related complaints filed with the Office of Administrative Hearings-Hearings Division,the Administrative Law Judge has ruled in favor ofNC State in two (2) cases; the others remain pending.
The OGC serves several university functions related to compliance with the NC Public Records Act, the most significant of which is coordinating responses to public records requests. Our office handled 112 requests involving over 4100 pages of material returned to requesters. This responsibility includes corresponding with requesters and records custodians on campus, searching for responsive documents, reviewing documents with records custodians prior to release, and redacting confidential or non-public records from otherwise releasable documents. In addition, our office advises the campus community on compliance best practices related to public records and information access laws through on-line training tutorials and live presentations. The OGC also responds to legal process served on NC State, and provides guidance to NC State employees who have been subpoenaed due to job-related activities. This year, our office responded to, or provided advice related to, 29 subpoenas, court orders and search warrants.
C. Helping NC State meet its strategic goals
In the OGC, we measure our effectiveness by whether our clients are achieving their goals. NC State’s strategic goals are, therefore, also OGC’s strategic goals. We are privileged to advise and represent a diverse group of dynamic clients across the university who are making things happen with their teaching, research, outreach, and engagement efforts. The following select examples represent some of the more visible projects from the past year in which OGC has helped NC State pursue its strategic goals.
1. Enhance the success of our students through educational innovation
a. OGC assisted and continues to assist DELTA in obtaining authorization to provide distance education courses and degree programs throughout most of the United States. With new federal compliance regulations regarding authorization of distance education programs, as well as state education departments asserting increased oversight of distance education programs, OGC was called upon to review a myriad of individual state regulations and guide NC State’s application through each state’s approval process. As a result of these efforts, NC State will be permitted to continue to provide courses online to students throughout most of the country. NC State’s distance education programs improve access by allowing distant learners the opportunity to achieve many of the same degrees, certifications, lateral entry or teacher licensure programs that are available to students attending classes on campus.
b. OGC assisted the Division of Student Affairs in revising the Code of Student Conduct and the Student Discipline Procedures. These revisions helped to make these documents easier to understand; better aligned definitions with current, commonly-held standards; and kept NC State in compliance with Constitutional parameters as well as directives from the U.S. Department of Education, Office of Civil Rights.
c. OGC worked with the Division of Student Affairs to revise NC State’s regulations regarding i) Solicitation and ii) Assemblies, Events, and Public Addresses in order to better inform the NC State community about time, place and manner restrictions and to reduce bureaucracy and streamline the approval process for events.
d. OGC assisted Chancellor Woodson and the Council on Athletics in forming a new Professional Sports Counseling Panel to help educate and advise student-athletes and their families as they select agents and advisors and seek employment and endorsement opportunities.
e. OGC advised and helped negotiate agreements in furtherance of the development of Greek Village to meet the growing student demand. The Kappa Delta sorority closed on the financing for its house and construction has commenced.
2. Enhance scholarship and research by investing in faculty infrastructure
a. OGC advised hiring officials and search committees on equal opportunity and affirmative action matters to ensure that the university hires, promotes and retains the most qualified, diverse faculty and staff.
b. OGC advised Finance & Business on numerous complex business deals to further the development of Centennial Campus, which remains a cornerstone of the university’s faculty infrastructure and basis for cross-disciplinary research opportunities with industry, private corporations and governmental agencies. Specifically OGC closed approximately 340,000 square feet of improvements worth more than $88 Million on Centennial Campus.
c. OGC assisted SPARCS and several colleges in negotiating agreements for equipment loans and purchases, access to critical materials and data, and visiting scientist/students that benefited and supported our faculty research efforts.
d. OGC assisted Campus Enterprises to contract with the Turfgrass Department in the College of Agricultural and Life Sciences (CALS) to provide maintenance of the Lonnie Poole Golf Course, which will provide faculty and students opportunities outside of the classroom to provide services for a professional golf course.
3. Enhance interdisciplinary scholarship to address the grand challenges of society
a. OGC advised and counseled the Cooperative Extension Service and the Industrial Extension Service on their initiatives throughout the State, which address the grand challenges for North Carolina. Notably this included assisting the Industrial Extension Service in the negotiation of an agreement to provide Six Sigma training to Progress Energy Corporation, valued at over $330K for phase I of the project.
b. OGC assisted the colleges, SPARCS, and other units in pursuing cross-disciplinary project funding opportunities, and advised regarding the novel issues raised to facilitate such collaborations.
c. OGC assisted administrators to strategically navigate complex regulatory and policy issues raised when pursuing and managing novel collaborations with both government and with industry.
4. Enhance organizational excellence by creating a culture of constant improvement
a. OGC played a leading role in reducing bureaucracy in the university policy system by working collaboratively with executive officers to finish the review of over 630 Policies, Regulations and Rules (“PRRs”) while maintaining legal compliance and internal controls.
b. OGC structured creative solutions for numerous projects and initiatives to expand the campus and create sustainable projects. Assisted the College of Textiles to structure a development/cooperative research enterprise with Hanes to provide over $1 million over four years. Because of the success of this interaction, Hanes is in negotiation to fund more collaborative research projects.
c. OGC helped to guide the Enterprise Risk Management (ERM) process through its first year at NC State. As these ERM activities continue, the resulting information and communications will improve the ability of NC State’s leaders to manage strategically in ever-changing circumstances.
d. As part of the Strategic Plan implementation, the Vice Chancellor and General Counsel is responsible along with the Provost to provide periodic leadership and management training for department and unit heads. The Strategic Transformational Leadership Program has been formed and begins in August 2012.
e. OGC worked with Fleet Services and Insurance and Risk Management to create a Motor Pool checklist to ensure compliance with various state regulatory requirements.
5. Enhance local and global engagement through focused strategic partnerships
a. OGC assisted the Office of International Affairs (OIA) Global University Partnership Network in negotiating a number of new affiliation agreements with foreign institutions, including China, Brazil, Botswana, and Venezuela. These collaborations literally open new frontiers for student exchanges and study abroad opportunities, and enhance opportunities for NC State faculty to conduct research on a global scale.
b. OGC assisted the Office of Technology Transfer (OTT) in successfully mediating an ownership dispute over patents related to the SmartFresh™ technology. This outcome enabled NC State to enter into a license agreement that will extend revenues on this portfolio from 2019 to 2027. The current income is approximately $800,000 per year.
c. OGC assisted OTT with drafting and negotiating a patent assignment of Dr. Jay Baliga’s patent portfolio for Insulated Gate Bipolar Transistors used in auto ignition systems to Intellectual Ventures, thus monetizing patents that OTT had been unable to license.
d. OGC successfully and amicably resolved a patent ownership issue with RJ Reynolds to obtain patent rights for a novel plasticene biomaterial that had been invented here in the College of Natural Resources, Department of Forest Biomaterials.
e. OGC drafted new license templates to be used by the OTT and the College of Agriculture and Life Sciences (CALS) when licensing Covington and other proprietary sweet potato varieties, which will provide better protection of the university’s intellectual property and will increase revenues back to the university and, in particular, the agricultural research program.
f. OGC collaborated with the Department of Athletics in structuring and negotiating two revenue-producing agreements: Learfield sports marketing (worth $49 million over ten years) and Adidas all sports sponsorship (worth more than $7 million over four years).