Summary of the Law
In order to maintain their tax-exempt status under 501(c)(3), private colleges and universities must not engage in, or interfere with, political campaign or lobbying activities. Failure to follow these proscriptions could result in loss of tax-exempt status for the institution, or imposition of an excise tax. The university cannot endorse any particular candidate. For a more complete explanation of the prohibitions from the IRS, please reference the above Legislative and Political activities link.
The GC has specific responsibility for ensuring that the lobbying activities portion of the above law is complied with.
Family Educational Rights to Privacy Act of 1974 (FERPA)
Summary of the Law:
Regulates the keeping and dissemination of student records at all institutions that receive federal funds or who have students receiving federal funds. Procedures must be in place to allow a student access to student records. Consent must be obtained to release student records to a third party, with certain exceptions contained in the law.
The General Counsel reviews all subpoenas that are sent to CUA, and ensures that a reasonable effort to notify the student of the order or subpoena in advance of compliance. Notification may be prohibited if the university receives a federal grand jury subpoena or any other subpoena which states that the student should not be notified.
Age Discrimination in Employment Act of 1967
Prohibits employment discrimination based on age with respect to persons who are at least 40 years of age. The General Counsel, is responsible for ensuring (along with the Chief Human Resources Officer) that any waivers under the law are valid.
Title IX of the Education Amendments of 1972
Summary of the law: Prohibits employment discrimination based on gender by educational institutions receiving or benefiting from federal financial assistance. Requires the adoption and publication of grievance procedures to resolve employee and student complaints, as well as the designation of a responsible employee to coordinate compliance. Notification of all students and employees of the name, address, and phone number of the responsible employee.
Responsibilities: Any Supervisor, Department Chair, Dean or Administrator who receives or becomes aware of a complaint of sexual harassment or other violation of this policy should report the complaint to the Director of Equal Opportunity or the Office of the General Counsel as soon as possible and normally within three workdays. The General Counsel receives complaints regarding gender equity in athletics.
Summary of the Law:
Responsibilities: Works closely with Director of Disability Support Services and AVP for HR to ensure compliance with federal law and regulations. The GC is the Responsible Official for the Policy on Reasonable Accommodations at University Events. As such, the GC works with the compliance officer to ensure implementation of the policy across the variety of university departments with ministerial duties under the policy.
Trademark Act of 1946
Summary of the law: While registration of a trademark is not necessary for protection under federal, registration of a trademark gives the owner certain legal rights. Accordingly, CUA has registered certain trademarks, and must file declarations of current use for those marks.
Responsibilities File Declaration of Current Use of Trademark with assistance of Foley and Lardner for CUA Press and The Catholic University and The Catholic University of America (various marks). See Foley and Lardner Chart for a list of due dates and marks and registration numbers.
Summary of the law
This law regulates the disclosure of non-public personal information by financial institutions. Specifically, the law protects consumers or customers who are "individuals obtaining financial products or services to be used primarily for personal, family or other household purposes." See http://counsel.cua.edu/glb/clicks/ for a list of the five components of an information security program.
OGC must assure that all contracts that contain confidential data have a security addendum, and work with CPIT in case of an information security breach as a first responder. OGC will also convene, along with CPIT, an Information Assurance Advisory Council.
Summary of the Law
Requires institutions that receive grants and certain contracts from any federal agency to certify that it will provide a drug-free work place by complying with the requirements set forth in Section 706(2) of the Act. The employer must establish an ongoing drug-free awareness program. The clause requires a specific agreement with workers on contracts or grants.
Disciplinary action or required participation in a rehabilitation program for employees will be determined and implemented by the Provost in consultation with the General Counsel (in the case of faculty) and by the cognizant Vice President in consultation with the General Counsel and AVP for Human Resources (in the case of staff).
National Science Foundation Act of 1990
Summary of Law: Institutions receiving research money from the National Science Foundation (NSF) must maintain and enforce a written conflict of interest policy and take steps to prevent scientific misconduct. An awardee institution must have a policy for investigating and acting on suspected or alleged misconduct. In certain situations the NSF must be immediately notified of the apparent misconduct. The conflict of interest policy must identify, evaluate and resolve conflicts of interest, and if they cannot be resolved, report them to the NSF. Financial disclosures must be updated annually. Records of same must be kept for three years after the expiration of an award or grant (42 C.F.R. §§ 6.04 and 6.05). The institution must also set up an Institutional Review Board (IRB) for all research involving human subjects.
Responsibilities: Designate a special counsel if an inquiry panel determines a allegation of research misconduct should be referred to a Senate Committee for an investigation. All documentation (other than that referred to in Section 1.1 of the Research Misconduct Policy) associated with findings, recommendations and sanctions of the Inquiry Panel, Senate Committee, Provost, and/or President shall be maintained in a confidential and secure file by the Office of General Counsel for a period of three (3) years following the termination of the proceedings.
Immigration and Nationality Act and Multicultural Educational and Cultural Exchange Act of 1961
Summary of the laws: Regulate foreign exchange students and scholars.
Responsibility under the law: Work with ISS to assure that off campus employment of students meet legal requirements.
Additional Certification Requirement Under Higher Education Opportunity Act:
20 USC § 1011m Certification regarding the use of certain Federal funds. Effective August 14, 2008 each institution must annually "demonstrate and certify" to the Secretary of Education that it has not used any funds under the Higher Education Act to attempt to influence a member of Congress in connection with any federal grant, contract, loan, or cooperative agreement. No student aid funding under HEA may be used to hire a registered lobbyist or to pay for securing an earmark. See the NAICU Quick Guide on this new provision. The General Counsel is responsible for this certification.
Common Law and or Policy Responsibilities
Contracts: The General Counsel must approve all contracts binding the University
Gift Acceptance Procedures: Work with Development to ensure documents to do not expose University to liability and are in accord with all policies and procedures. Recording of any deeds is to be done with assistance of the Office of General Counsel.
Employee Electronic Communications and Resources: The General Counsel works with CPIT and the VP for each area to approve exceptions to procedures dealing with access to email upon departure from the university.
Computer Ethics: Any complaints received about copyright infringement by university employees in the use of university computer resources will be referred to the Office of General Counsel who will work with the cognizant university official to respond to the complaint. Where appropriate, the complaint will be handled in accord with the notice and takedown procedures specified in the Digital Millennium Copyright Act.
Conflicts of Interest: Resolve potential conflict of interest questions when sent to OGC for guidance and resolution.
Discipline and Termination: Review all employee terminations.
Protection of Human Subjects in Research: The President, Provost, General Counsel, Vice Provost for Graduate Studies, or the Institutional Official) may review any research protocol and have the right to disapprove the implementation of a research protocol that has been approved by the IRB.
Intellectual Property Donations: American Jobs Creation Act of 2004
Under a provision of the American Jobs Creation Act of 2004, for contributions of patents and certain other intellectual property made to a 501(c)(3) after June 3, 2004 the taxpayer's initial contribution deduction is limited to the lesser of the donor's basis in the contributed property or the FMV of the property. The donor of intellectual property will be able to claim a second deduction related to the amount of money the charitable organization earned from the property during a certain time period after the donation. The University, as donee, must file an annual information return that reports qualified donee income for the taxable year if the donor filed timely notice of the donor's intent to treat a charitable contribution as a qualified intellectual property contribution and net income was produced by the donation and the income was received or accrued during a 10 year period beginning on the date of contribution.The donee is absolved of the need to file a return after the expiration of the legal life of the property. See the page linked above for more information. The General Counsel's role is to keep an eye open for gifts of this type and to let the Controller know about the existence of the gift and the need to see if a return must be filed under this provision.
The Sarbanes Oxley Act of 2002
This is a law designed to protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws. It applies to publicly traded companies, and, with a few exceptions noted below, does not apply to institutions of higher education. University governing boards deal with similar issues in corporate activities, and thus universities are looking to this law as a framework for evaluating financial risks. The GC is responsible for monitoring best practices under this law. To the extent the law is applicable to CUA, ensure that those provisions are known to relevant university officials, and a program is in place to ensure compliance. As of 2/24/09 only two provisions apply to non-profits:
No person may
(1) knowingly, with the intent to retaliate, take any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense, see Sarbanes-Oxley Act § 1107 (codified at 18 U.S.C.A. § 1513(e)), or
(2) knowingly alter, destroy, mutilate, conceal, cover up, falsify or make a false entry in any record, document, or tangible object with the intent to obstruct or influence any U.S. governmental investigation or administrative procedure before any U.S. department or agency or any contemplated or filed bankruptcy proceeding, see id. § 802 (codified at 18 U.S.C.A. § 1519).
Private Use of University Facilities
The IRS will look at the type of bond issued for the university's benefit, and whether the funds are being used for exempt purpose or private activity. The general rule is that if a bond financed facility is used by an exempt organization for purposes not related to its exempt purpose, the use is treated as impermissible private use. If the use were to be found to be a private use, the bonds used to finance the facility might become taxable.
The General Counsel is responsible for advising on an as needed basis whether or not a particular use is a permissible one. The General Counsel is responsible for reviewing any agreements that are entered into by the university for any type of private use arrangement in a tax exempt bond financed facility and notifying the employee responsible for the arrangement once it has been approved. The OGC will assure proper training on bond compliance issues for appropriate personnel. The General Counsel will review percentages used during each fiscal year, (in conjunction with the Treasurer) for the purpose of assuring the Facilities are used in compliance with federal tax regulations.
The Byrd Amendment
Prohibits lobbying with federal funds. Requires disclosure of lobbying activities when receiving federal contracts, grants, loans or cooperative agreements. Requires certification and disclosure with each submission for consideration of a federal contract, grant or cooperative agreement exceeding $100,000 or an award of a federal loan or commitment providing for the U.S. to insure or guarantee a loan exceeding $150,000. Federal contractors, grantees and those receiving federal loans and cooperative agreements must also report lobbying expenditures from non-federal sources which they used to obtain such federal program monies or contracts.
The GC/AVP for Community Relations has general oversight of any lobbing activities at the university, and will arrange for necessary training regarding this law.
The ECPA amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wire Tap Statute), which was designed to protect communications from government surveillance. The law also regulated private individuals and businesses. The ECPA amended the Wire Tap Statute to encompass transmissions of electronic data by computer and the law prohibits both the interception of electronic communications and access to stored electronic communications. Some commentators argue that this law gives employees of private entities a right to privacy in their e-mail. Title18 U.S.C. § 2510(15) extends the Act's protection to university-owned telephone, e-mail and Internet systems. However, there is support for the proposition that employers who own the computer system used by their employees have the right to monitor employees' e-mail. Employee consent is also a defense to liability under the ECPA intercept provision, and this exception is the more certain of the exceptions to liability under the law. Thus, employees should either consent to or be put on notice that it is university policy that their e-mail may be intercepted.
The General Counsel works with the Chief Information Officer on computer access issues to determine if an exception to the general rules set forth in the Electronic Communications Policy will be made given a particular circumstance.
Members of Congress and officers and employees of the executive, legislative, and judicial branches are barred from soliciting or accepting anything of value from anyone seeking official action from, doing business with, or conducting activities regulated by the individual's employing entity or whose interests may be substantially affected by the performance or nonperformance of the individual's official duties.
The General Counsel is responsible for being aware of restrictions on gifts to members of Congress and staff; and for knowing the event sponsorship and other rules under this law.
On April 12, 2006 (and effective Dec. 1, 2006), the below listed Federal Rules of Civil Procedure were amended to clarify the process of retrieving, saving and producing electronically stored information in anticipation of and during litigation. The rules impose an obligation to identify data that is potentially relevant and reasonably accessible, as well as data that may be relevant but not accessible. There is a duty to preserve what a party knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. This duty attaches in anticipation of litigation as well. The General Counsel is responsible for having a litigation hold process in place.