Annual Report

NC State University
Office of Legal Affairs
Annual Report 2007-2008

I. Introduction

This report provides information on the business undertaken by the Office of Legal Affairs (OLA) during the past fiscal year. The report addresses lawsuits and administrative agency complaints, internal administrative grievances and appeals, tort claims, business transactions, employment matters, student affairs issues, regulatory compliance, and other legal matters handled. It also addresses internal legal office matters.

II. Programs

The Office of Legal Affairs is responsible for all institutional legal advice and works with the Attorney General’s Office, which represents the University in litigation. The office has two main functions:

· Legal advice and counsel (includes contract review; negotiation and drafting; interpretation of federal and state laws; handling internal and external administrative and regulatory matters; policy review and development; general legal education of the campus community and the provision of timely and effective legal advice before legal problems arise in order to prevent or minimize legal liability).

· Litigation support (includes gathering factual information and assisting the Attorney General’s Office in developing and furthering the university’s position in judicial and administrative forums).

The Office of Legal Affairs annually reviews the work it has undertaken during the preceding year and develops new and continuing initiatives, all of which fit within the overall strategic plan previously developed by the Office.

The Office of Legal Affairs coordinates policy and legal matters for North Carolina State University through a central legal office. The Office is the official contact with the Attorney General's Office, The University of North Carolina General Administration’s Office of Legal Affairs, and external parties concerning legal matters.

The Office of Legal Affairs researches the law, prepares opinions and provides advice for administrative offices and academic units based on applicable federal and state laws and regulations, and Board of Governors’ and Board of Trustees’ policies.

The Office of Legal Affairs maintains NC State’s policies, regulations and rules (PRRs) web site and is responsible for posting new and updated policies, rules and regulations on the web site. The Office also assists in analyzing and advising on the legal implications of policy decisions. The Office of Legal Affairs also handles matters with outside attorneys and other persons concerning North Carolina public records law.

The Office of Legal Affairs provides legal advice on business matters, including but not limited to the development of the Centennial Campus, and represents the university during construction hearings and provides advice on lawsuits concerning payment bonds or defaults on construction contracts and bankruptcy issues.

The Office of Legal Affairs is responsible for legal review of licensing agreements for patents, copyrights, trademarks and software for the university community. This responsibility includes numerous contacts with the contractor to verify language requirements placed upon the university by the State of North Carolina.

The Office of Legal Affairs is responsible for responding to federal and state agency civil rights complaints and provides advice to administrators in resolving internal grievances.

The Office of Legal Affairs assists in the handling of litigation for the university in cooperation with the Attorney General’s Office and requests all formal legal opinions from the Attorney General.

A. Major Initiatives

University Policies, Regulations and Rules (PRR) Project - This project involves the continuing effort to locate, reformat, revise/update as appropriate and publish on the PRR website all University PRRs. It also involves development of new PRRs and revision of current PRRs when necessary. OLA drafts changes, revises drafts of other units, advises on policy changes proposed by other units and initiates policy changes for review by other units. New and revised PRRs are placed on the PRR website within one week of approval. OLA also maintains and updates the website periodically and creates a history page so that changes in PRRs can be historically tracked.

During this reporting period this office worked on 105 PRRs, 81of which were approved and published on the PRR website, 2 were repealed, and 22 of which are in progress. New, revised, and rescinded PRR updates are listed on the PRR Website.

East Carolina University recently approached us seeking information on our PRR protocol and PRR website. East Carolina University has appointed a PRR task force to develop a similar system. In exploring best practices they were complimentary about our system after meeting with our PRR Advisory Committee in March 2008 to review our website and our PRR process.

Records Retention Project – As noted last year, the UNC General Schedule for the retention and disposition of university records was finalized on June 5, 2007 and issued to the UNC campuses for implementation. This office developed the University Record Retention and Disposition regulation to clarify that the UNC General Schedule approved by the Department of Cultural Archivesis the approved NC State schedule,that all previously approved schedules including any that were unit specific are superceded, and that any unit specific records that are not addressed in the schedule must be permanently retained unless NC State seeks and obtains approval from the Department of Cultural Archives for a unit specific addendum to the General Schedule. Included in the regulation was a procedure for obtaining approval for unit specific addenda for documents not addressed in the UNC General Schedule. We also made presentations to the executive officers and to the provost and vice provosts regarding records retention with a focus on electronic records retention and disposition in the context of the legal duty to retain documents and institute a “litigation hold” on records that are required for pending or threatened litigation. We are in the process of scheduling a meeting with the vice chancellor for business and finance and his direct reports to make the same presentation and will address these matters also with the new vice chancellor for information technology after his arrival.

Korea Project – Provided advice, negotiated and drafted agreements for the Korea undergraduate program and the Korea biotech research lab to be set up in Incheon with funds provided by Korea. Legal is coordinating university action on bank accounts, legal entity approval and regulatory compliance with the Korean government, tax issues, employment issues, real estate leasing, facilities design, accreditation, export controls, intellectual property ownership, and other matters. OLA attorney also traveled to Korea to meet with Korean law firms, Korea Exchange Bank, economic development officers from the Incheon Free Economic Zone, and a consultant. The role of OLA attorney has evolved to the point that the Provost has asked for 50% of his time as a project leader.

B.General Advice

OLA provided advice on numerous legal matters to all segments of the University.For reporting purposes our work is set forth under seven broad subject areas:(1) regulatory and governance matters, (2) general business transactions, (3) research and technology transfer, (4) employment and personnel, (5) student matters, (6) civil rights matters and (7) athletics.

Regulatory and Governance Matters – Provided daily advice on federal and state regulatory matters and university policies and regulations as well as review and revision of various annual notices as required by law or UNC policy; the policy on illegal drugs/drug free workplace, political activity by employees, and misuse of state property. It also includes matters relating to governance issues, including Board of Trustee and Faculty Senate interactions.

General Business Transactions – Provided daily advice on numerous business transactions including real estate matters, Centennial Campus development, purchasing, bankruptcy, joint ventures, intellectual property matters (patents, trademarks and copyright), including commercialization of intellectual property (insurance and risk management, university housing agreements, debt collection, academic cooperation agreements, construction contracts and disputes and other miscellaneous business matters.

Sponsored Research and Technology Transfer – Drafted, revised, and provided advice on numerous agreements regarding the university’s involvement with research sponsors and potential licensees of university owned technology. Advised OTT on all major licensing negotiations and license drafting.Advised other university units on numerous options, material transfer and confidentiality agreements.Advised on conflicts of interest and external activities for pay. Advised on research misconduct cases, human subjects research issues, export regulations and intellectual property matters.Provided advice to university research committees such as the IRB and IACUC. Advised on several disputes over ownership of patents and also scope of license agreements.

Employment and Personnel Matters – Provided daily advice to numerous administrators, deans, department heads and the Division of Human Resources on personnel matters involving employee misconduct, various leave policies, work performance, appointment, promotion and tenure, grievances and potential dismissals. Provided advice on the application and interpretation of various federal and state laws such as Title VII (non-discrimination on the basis of race, sex, national origin, etc.), ADEA (age discrimination), FMLA (family medical leave), and the Americans with Disabilities Act (ADA). Also provided advice to Human Resources’ Employee Relations Unit on many issues involving SPA employees including potential dismissals, other disciplinary actions, performance management concerns and conflicts of interests.

Student Matters - Provided advice on numerous student-related matters such as student health issues, student disciplinary and grievance matters, providing reasonable accommodations to qualified students with disabilities, student privacy rights, student organization activities, copyright infringement and peer-to-peer file sharing, and student field placements. Provided advice to the Residency Appeals Committee on student appeals for in-state tuition.

Civil Rights Matters - Advised and counseled university administrators regarding civil rights issues related to specific personnel and student matters, including unlawful harassment investigations, ADA accommodations, and other civil rights issues. Advised on affirmative action and diversity issues. Advised the colleges and other business units on legality of various affirmative action approaches to scholarship funding. Responded on behalf of the University to complaints filed with state and federal agencies, including the Equal Employment Opportunity Commission (EEOC), the Office of Administrative Hearings-Civil Rights Division (OAH), and the North Carolina and US Departments of Labor.

Athletics Matters – Provided advice on NCAA compliance issues, reviewed all outside income and conflict of interest reports for coaches’ outside consulting. Reviewed athletics NOI and COI forms. Provided advice related to cell phone ownership (tax and public records), and settlement of class action lawsuit against NCAA. Continued to advise on issues related to NC State’s use agreement with the Centennial Authority, and attended and participated in Centennial Authority meetings of the Legal/By-Laws and Management Committees as requested by the chancellor.

C.Business Transactions

Purchasing Agreements - The Legal Affairs Office has drafted, reviewed, revised and/or participated in the negotiation of approximately 132 contractual agreements. Contract review includes assistance in the resolution of contract disputes between purchasers and outside vendors, and advice, negotiation and editing of unusual contracts that require special consideration.

Research Contracts and License Agreements - Approximately 46 license agreements were reviewed, drafted and/or negotiated for the Office of Technology Transfer (OTT). Also reviewed and advised on 48 sponsored research agreements. Reviewed and helped to negotiate 55 analysis and testing agreements, 27 patent agreements, 60 confidentiality agreements and 26 material transfer agreements.

Construction Related Contracts - Reviewed approximately 4 construction contracts under $500,000, including contracts for planning and design and real estate.

Athletics Outside Income Forms – Reviewed approximately 22 requests from coaches for authorization to receive athletically related income from sources outside the university to ensure compliance with NCAA standards.

Academic Agreements - Advised and negotiated contracts for many academic units including 11 agreements for the Provost Office involving academic cooperation agreemetns, academic exchanges, and academic field placements. Many of these agreements were with universities in Asia and Europer.

Real Estate Agreements – Reviewed approximately 70 routine real estate agreements.

D.Lawsuits and Administrative Matters

In addition to numerous daily oral and written requests for advice regarding faculty, staff and student matters, this office has represented the university in a variety of formal administrative proceedings. Assisted the Attorney General’s Office with all lawsuits and internal dismissal proceedings. Sought approval for and retained outside counsel for litigation and other matters. Monitored all litigation and provided semi annual litigation reports to the Chancellor and Board of Trustees.

Lawsuits – OLA advised university officers and executives and assisted members of the Attorney General’s Office in 21 lawsuits (of which 8 cases have been resolved and 13 are pending); and 6 contested case petitions filed with the Office of Administrative Hearings.

Employment Complaints (External) - OLA has worked with the Attorney General’s Office on 6contested cases involving appeals brought before the State Personnel Commission.

Civil Rights Complaints (External) - OLA handled 7 administrative complaints filed with the Equal Employment Opportunity Commission, the Office of Administrative Hearings (OAH) Civil Rights Division, and the North Carolina Department of Labor. Thus far the university has not received an unfavorable administrative ruling on any of these charges.

Internal Grievances and Appeals - Provided legal representation and advice to the board of trustees, chancellor, provost, vice chancellor for student affairs, and/or grievance committee and/or department respondents in 8 internal grievances/appeals, which included 4 complex faculty grievances, 2 student appeals, and 1 case on appeal to the board of governors that was upheld. Also assisted UNC Chapel Hill with 1 EPA non-faculty grievance due to a conflict of interest with that institution’s counsel.

Tort Claims - In addition to numerous daily oral and written requests for advice on liability, insurance and other risk management issues, OLA processed 36 formal tort claims of which 18 were settled and 18 remain pending.

SBI Reports - OLA is responsible, by delegation from the Chancellor, for reporting to the State Bureau of Investigations (SBI) all misuse of state property. OLA forwarded 137 misuse reports to the SBI. Also worked cooperatively with the internal audity department on the investigation of various department personnel and/or programs and in reviewing findings and recommendations of internal audit investigations.

E. Workshops and Seminars

OLA presented, hosted or participated in 31 workshops or seminars. OLA regularly (monthly) participated in Human Resources’ Quick Start Program giving an overview of legal issues of interest to new employees. During this reporting period OLA developed and presented 11 educational presentations addressing the legal issues related to records retention, electronic discovery, grievance hearing procedures, residence hall searches for contraband, international legal issues, securities law, corporate law, FERPA issues, and online course hosting. OLA hosted 3 virtual seminars via the National Association of College and University Attorneys (NACUA) to the university community addressing legal issues in higher education related to establishing and operating overseas programs, conflict of interest policies, and the power of PDF documents. Also during this reporting period the attorneys participated in 17 programs addressing issues on conflict of interest, employment, international issues, diversity, intellectual property, technology transfer, export controls, peer-to-peer file sharing, sponsored program and regulatory, as well as legal issues related to compliance, computers, copyright, internet, telecommunication, privacy and security.

III. Diversity Initiatives

OLA supports diversity goals by providing education and legal advice on University policies and programs addressing a number of civil rights subjects, including affirmative action, equal opportunity, unlawful harassment, and reasonable accommodation of qualified individuals with disabilities.

OLA continues to devote substantial time to educating the campus as to the impact of recent US Supreme Court decisions addressing affirmative action and assisting administrators with the development of programs to comply with the legal requirements set down in these decisions.(The University of Michigan affirmative action cases).

We provided advice on drafting university policies and on handling specific cases in all the protected civil rights categories (race, sex, religion, disability, national origin, age, and with respect to university policy, sexual orientation).

We advised and counseled administrators on compliance issues associated with providing reasonable accommodations to qualified students with disabilities under Section 504 of the Rehabilitation Act and the ADA, including accessibility issues relating to distance education and web-based learning.

IV. Professional Services and Activities

Attorneys in this office are involved in the academic programs of the university through service on committees, guest lecturing and providing workshops to the campus community.Attorneys in the office have served ex officio on the following university committees during this reporting period: Attorneys have served ex officio on the following university committees during this reporting period: Grievance Task Force, Copyright Committee, Diversity Advisory Committee, Study Abroad Advisory Committee, Joint Personnel Roundtable, Human Resources Advisory Council, Ombudsman Committee, OEO Advisory Committee, Disability Compliance Advisory Team, Advisory Team for Harassment Prevention, Intellectual Property Committee, and Export Controls Committee. In addition the general counsel chairs an advisory PRR committee and meets periodically with PRR representatives appointed by each executive officer unit.

Attorneys have served on the following UNC-GA committees during this reporting period: UNC Task Force on Violence Prevention and UNC Working Group on Safety and Confidentiality. Follow-up email activity also occurred with regard to our service on last year’s task force on addressing revisions to Chapter VII of the UNC Code.

Attorneys have also served on the following professional committee during this reporting period: Triangle Export Control Group (SAS Institute). Attorneys have also served on the following constituent institution committee during this reporting period: General Counsel Review Committee. Attorneys have also provided advice to numerous other committees such as the IRB, and IACUC.

V. Accomplishments with External Constituencies

Office of the Attorney General - Maintained good working relationships with members of the Attorney General’s office at all levels.

UNC General Administration - Maintained good working relationship with members of the General Administration’s legal office as well as attorneys at individual constituent institutions. Attorneys have participated in regular UNC Legal Meetings.

Professional Organizations – Encouraged attorneys to serve on committees of the National Association of College and University Attorneys (NACUA) and/or make professional presentations at CLE and annual NACUA programs. Promoted and encouraged professional OLA attorney participation in other external professional organizations.

VI. Accomplishments and Areas of Satisfaction

Maintaining an efficient and effective in-house legal office that serves the university well despite increased workload due in part to federal and state regulatory compliance matters, new university initiatives, and increased litigation, administrative proceedings, internal grievances and discharge proceedings.

Being part of a team of first class lawyers who provide excellent and effective legal advice to the university community.

Maintaining good relationships with external constituents such as UNC-GA’s legal office, the Office of the Attorney General and other attorneys at our constituent institutions. We often collaborate with other university legal offices on matters of mutual concern. We also have established good working relationships with other state offices, such as the State Property office and the Office of Administrative Hearings. We were also approached and hosted meetings with, as noted previously, UNC-Chapel Hill and ECU when they sought to obtain information on the development of our PRR website and protocol.

Conducted lunch meetings with all the vice chancellors and college deans. The purpose of the meeting was to get a general overall assessment on the performance of the Office of Legal Affairs over the last academic year as well as ask for input on the services provided and to inquire if there are any specific issues that need to be addressed. Each vice chancellor and dean was provided with a copy of OLA’s annual report and compact plan initiatives at the meeting. In response to the assessment reviews, the deans provided positive feedback and comments were complimentary of the services provided.

VII. Compact Plan Major Initiatives for 2007-2010

International Programs - Work with the Office of International Affairs to hire outside counsel versed in foreign laws and their impact on study abroad programs.

Violence in the Campus Environment - Raise awareness, develop protocol and discuss prevention and response to violence in the workplace and student setting.

Education and Training - Develop education and training programs for the campus community addressing purchasing and contract, intellectual property and consulting, and new department head training.

Discrimination Complaints - Develop policies and procedures to improve the prevention, investigation and resolution of discrimination complaints at NC State.

603 Discharge Procedures and EPA Policy/Grievance Procedures - Develop clear procedures for conducting post tenure review along with training materials for 603 Hearing Committees. Develop a new EPA Grievance Procedures to accommodate EPA professionals or SAAO employee grievances.

Intellectual Property Matters - Develop and/or review policies and procedures addressing the role of the intellectual property committee, royalty distribution of patent income and ownership of intellectual property that will minimize potential liability and facilitate the management and transfer of intellectual property developed at the university.

Cooperative Extension Service – Work with CES Personnel to develop new policies to implement proposed legislation (if enacted) clarifying exempt status of CES county-based employees.

Records Retention and Disposition – Develop a regulation to clarify the new University General Schedule as well as procedures for obtaining approval of unit specific addendum not addressed in the University General Schedule.

Contract Review and Revision - Develop standard coach contracts for athletics, review and revise all standard legal documents for technology transfer, and develop standard procedures for review and execution of North Carolina real estate instruments.

Centennial Campus Expansion - Work with the Centennial Campus Development Office and the Real Estate Office to negotiate leases and contracts for project development on Centennial Campus.

VIII. Conclusion