REVISED

M E M O R A N D U M

							March 22, 2011

To:		Members of the Board of Trustees

From:		Nancy L. Zimpher, Chancellor

Subject:	 Litigation Delegation


Action Requested
	The proposed resolution delegates to the General Counsel of the State University authority to initiate litigation on behalf of the State University and to request the Attorney General or private counsel to represent the State University in such litigation.
 
Resolution
	I recommend that the Board of Trustees adopt the following resolution:
Whereas the General Counsel is the legal advisor to the State University, and upon the request of the Board or the Chancellor  represents the University in legal actions; and

Whereas under Executive Law § 63(1), the Attorney General represents the State University in litigation and can authorize the State University to bring its own actions or proceedings without the participation of the Attorney General, including through the use of private counsel who work under the General Counsel’s supervision and direction; now, therefore, be it

Resolved that the Board hereby delegates to the General Counsel of the State University authority to (i) initiate litigation for and on behalf of the University, upon the request of the Board, the Chancellor or their designees, or upon the sole determination of the General Counsel, and (ii) request the Attorney General or private counsel to represent the State University in such litigation.



Background 

	By the proposed resolution, the Board authorizes the General Counsel to initiate litigation on behalf of the State University upon the request of the Board, the Chancellor or their designees, or upon the sole determination of the General Counsel.

	The State University routinely prosecutes or defends litigation involving its interests, and the General Counsel represents the University in legal actions upon the request of the Board or Chancellor.  With respect to infrequent affirmative litigation, the General Counsel has initiated litigation upon the direction of the Chancellor or campus Presidents (the Chancellor’s designees), and without Board resolution.  Periodically, the General Counsel advises the Board and senior managers of the status of threatened, pending or concluded litigation.

	Recent litigation has put in question the authority of the General Counsel to initiate litigation on behalf of the University without the express authority by the Board  (In the Matter of State University of New York v. Town of Amherst, et al., memorandum and order, dated February 18, 2011,  of the Appellate Division, 4th Dep’t.). 

	The resolution reaffirms and expressly delegates to the General Counsel authority with respect to litigation of the State University that the General Counsel has exercised routinely under the Policies and practices of the State University.





Board Resolution0[Type text]0March 22, 2011

Board Resolution0-2-0March 22, 2011