REVISED

M E M O R A N D U M

							January 11, 2011

To:		Members of the Board of Trustees

From:		Nancy L. Zimpher, Chancellor

Subject:	Authorization for Litigation � University at Buffalo, State University of New York

Action Requested
	The proposed resolution confirms the practice and procedure of the State University that University Counsel is authorized to initiate litigation on behalf of the State University at the request of the State University Board, the Chancellor, or the Chancellor�s designee. 

Resolution

	I recommend that the Board of Trustees adopt the following resolution:
Whereas  after years of study and consultation with the University at Buffalo, the Town of Amherst adopted a Town Master Plan in January 2007 which zoned certain property adjacent to the University at Buffalo campus, which contains a University at Buffalo  incubator facility, for �research and development�; and 

Whereas  despite its Town Master Plan, on March 19, 2007, the Town of Amherst re-zoned the parcel adjacent to the campus as �commercial� and granted a special use permit to a private developer to build multi-family residential housing; and 
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Whereas with the permission of the Attorney General, on May 16, 2007, State University filed an Article 78 proceeding to overturn the re-zoning determination on the basis that (1) it violated the Town Master Plan and (2) the Town of Amherst�s environmental review had been improperly carried out, and State University subsequently filed two companion appeals from the Town�s related determinations in the same zoning matter; 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 and, accordingly, on May 9, 2007, the Attorney General�s Office expressly consented to State University�s request to prosecute this litigation and retain its own special counsel; and 

Whereas the Policies of the State University Board of Trustees, provide, in relevant part, �When requested by the board of trustees or the chancellor, the university counsel shall . . . represent the university in legal actions.�   This provision is, and has long been, interpreted such that, with the authorization of the Attorney General, the University Counsel may represent the State University,  including through the use of private counsel who work under the University Counsel�s supervision and direction; and

Whereas the University Counsel was requested to bring this action by the Chancellor�s designee at the University at Buffalo, on or about May 1, 2007.  Under 8 NYCRR �333.2, the President acts as �Chief Administrator� of the University at Buffalo.  The decision to proceed with the litigation was made by the University Counsel and Vice-Chancellor for Legal Affairs, to whom the Chancellor has delegated certain responsibility to make legal judgments on SUNY�s behalf pursuant to the Policies of the Board of Trustees:  �The chancellor may assign to the officers, faculty and staff of the university powers, duties and responsibilities, and they shall be responsible to the chancellor and the board of trustees for the performance thereof, as well as for those powers, duties and responsibilities specifically vested in them by these policies�; and 

Whereas  the Board of Trustees and the Chancellor were apprised from time to time of the status of the litigation by the University; and 


Whereas in January 2010 Judge Whelan of the State Supreme Court ruled against State University on the ground that the litigation was unauthorized, despite the aforementioned Policies of the Board of Trustees; the specific authorization of the Attorney General; and the request by the Chancellor�s designee that this litigation be brought; now, therefore, be it 

Resolved that the Board of Trustees hereby confirms, pursuant to its regulations and long-standing interpretation of such regulations, that the policy and procedure herein described is the State University�s policy and procedure for initiating litigation on behalf of the State University. 

Background 

	The State University routinely prosecutes or defends litigation involving its interests.  Generally, the Attorney General, pursuant to the Executive Law �63, represents the University in court.  On occasion, as here, the Attorney General advises the University that it does not have the necessary expertise itself and authorizes the University to retain its own special counsel and prosecute a case.  In the matter involving the Town of Amherst re-zoning, the Attorney General advised the University that it did not have zoning law expertise or experience and approved the University�s retainer of private counsel.

	The University has always taken the position that the Policies of the Board of Trustees authorize the University Counsel to bring a lawsuit on behalf of the University when requested to do so by the Board of Trustee or Chancellor or their designees.   Here the Chancellor�s designee requested this litigation to protect the interests of the University at Buffalo campus and the State University in general.

	While this Resolution is not at all necessary or legally required by any statute or regulation because the Town of Amherst litigation has been fully authorized since its inception as a matter of law, its adoption is nonetheless recommended only to avoid any doubt or confusion whatsoever by the litigants or the courts.



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Board Resolution	January 11, 2011