APRA, and Is the Rhode Island College Foundation Risking Its c3 Status?
John Marion of Rhode Island Common Cause tweeted to ask me whether “we know” that the Rhode Island College Foundation that just hired an employee to act as Democrat Governor Gina Raimondo’s cabinet-level chief innovation officer is not subject to the state’s Access to Public Records Act (APRA). My answer was that the answer is “no,” at least as state officials are concerned. (It’s difficult to know whether to answer such questions in a technical, correct sense or in a “what’s legal in Rhode Island” sense.) But now that I look at my own evidence for my statement, I see that I should have at least added “for now” at the end of my sentence.
- The governor is representing Richard Culatta as essentially an employee under her authority (note the press release language that “Raimondo Taps Culatta”).
- Culatta is representing himself as an employee of the state (see his LinkedIn page or this screenshot, if it’s changed).
- Yet, the Rhode Island College Foundation’s memorandum of understanding (MOU) with the governor clearly presents him as an employee of the foundation, subject to its employment rules and reporting to its board, with mere “guidance” from the governor.
As I pointed out to Marion, Rhode Island’s APRA law applies to non-government agencies only when they are “acting on behalf of and/or in place of any public agency.” One could argue that a fundraising arm of a state college should already count, but the point is even stronger if its employee is explicitly acting as an agent of the state, enacting the policies of the governor.
But the deal could be even riskier for the Rhode Island College Foundation. It’s a cliché in Rhode Island that anybody who wants justice against an insider has to find a violation of federal law, and the foundation may be dangerously close, here.
Let’s start with the nonprofit corporation’s bylaws, which state (emphasis added):
No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall not participate in, or intervene in (including the publishing or distribution of statements), any political campaign on behalf of or in opposition to any candidate for public office.
There may be some way that Culatta can fulfill his role to, in the governor’s words, use technology and innovation to “make the government work better, faster, cheaper” without having to lobby the government, “carry on propaganda,” or “influence legislation,” but it’s going to be tough. Here’s the next bylaw:
Any other provisions herein notwithstanding, the Corporation will at all times be organized and operated exclusively for exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code, and shall not have the power to do anything or take any action which would cause it to cease to qualify as a nonprofit corporation under State law or as an organization exempt under sections 501(c)(3) and as a supporting organization described in section 509(a)(3) of the Code.
The rules for such nonprofits are (rightly) somewhat loose, but lobbying is specifically an area of concern. A guy with core responsibilities to develop “collaborations between research institutions, government, and public/private sector entities” utilizing government’s “unique levers to accelerate innovation in the private sector” would seem unlikely to be able to avoid lobbying. And if he’s able to avoid lobbying technically because he’s part of a network of groups in and around government that operates with private communications, winks, and nods, then that’s even worse.
Obviously, we don’t require government department heads to register as lobbyists because it’s assumed government employees will advocate for government policies. As a legal matter, though, the governor can’t simply pretend that a private corporation’s employee is her own in order to put this same force field around him and his organization.
The very audacity of the attempt makes answering legal questions about its consequences awkward. One must wonder how it could possibly be illegal for the guy to do the job for which he was hired with the governor’s involvement. The question evaporates, though, if we step back and conclude that the job itself, as envisioned, is illegal.