The Clark College Foundation, the fundraising partner of the Vancouver community college, has taken legal action to block Oregon Public Broadcasting from obtaining organization records.
The foundation last week filed an injunction in Clark County Superior Court against OPB, the Portland-based National Public Radio affiliate, as well as Clark College itself and Molly Solomon, OPB’s Southwest Washington bureau chief. The injunction stems from public records requests filed by Solomon with Clark College that turned up several emails sent to and from foundation employees.
The Clark College Foundation, however, maintains it is not subject to the Washington Public Records Act because it’s a separate nonprofit organization, not a college department. Foundation spokeswoman Rhonda Morin said the organization has an “ethical obligation” to ensure its communications with donors remain private.
“There’s a high expectation that those things remain confidential and not released for public record,” Morin said.
Since 2018, Solomon has been reporting on long-standing issues at Clark College that have left people of color who work there feeling alienated and disrespected. Clark College has been without a permanent leader in its Office of Diversity, Equity and Inclusion since Loretta Capeheart was terminated from the position last year. Rashida Willard was appointed to lead the department on an interim basis, college spokeswoman Kelly Love said.
Most recently, Solomon sought emails and contracts connected to the search for a permanent vice president of Diversity, Equity and Inclusion. The Columbian has filed similar records requests but is not facing legal action from the foundation.
Clark College’s search for records responsive to Solomon’s request turned up several emails sent to and from Clark College Foundation employees. But the foundation maintains in its injunction that those records are not public and, therefore, not Clark College’s to release.
“We’re a private (nonprofit) that does not adhere to state law as it pertains to public entities,” Morin said.
But the Clark College Foundation hosts its emails on Clark College servers. All foundation staff email addresses end with @clark.edu, the same as college employees. Lisa Gibert, the Clark College Foundation president, sits on the Clark College executive cabinet and is listed on the college’s leadership page.
Morin said the foundation took steps after Solomon filed her request earlier this year to establish its own email server and domain name. She estimates that project will be complete within a couple of weeks.
“We really needed an event to honestly get us going,” Morin said. “We are actually moving toward securing our own server, our own domain so we don’t have to be in an awkward position for Clark College.”
But Toby Nixon, president of the Washington Coalition for Open Government, a nonprofit dedicated to preserving the public’s access to government information, questions why the Clark College Foundation hosted its email on college servers in the first place. Nixon equated it to a gift of public funds from the college.
“If they consider themselves public enough that they feel comfortable, or have felt for years comfortable enough to host their emails on the college’s email servers … the court would find they’re a public agency,” Nixon said.
Nixon pointed to Telford v. Thurston County Board of Commissioners, a 1999 Washington Court of Appeals decision that established a four-part test courts use to determine whether an entity is a public agency for the purposes of the state Public Records Act. According to the Municipal Research and Services Center, those parts are:
• whether the entity performs a government function;
• the extent to which the government funds the entity;
• the extent of government involvement in the entity’s activities; and
• whether the entity was created by the government.
“If this was an independent nonprofit, it was just happening to make contributions to the university, I would agree with them,” Nixon said. “But it sounds like it’s a very close relationship.”
“Although OPB did not initiate this legal action, our goal when this is resolved is to be able to fully exercise our rights as public service journalists under Washington’s Public Records Act,” said Morgan Holm, senior vice president and chief content officer for Oregon Public Broadcasting.
Current and former Clark College staff last year described to Solomon a toxic workplace culture for people of color, even as the college has touted its commitment to diversity and inclusion. In some cases, staff pointed to now-retired President Bob Knight as contributing to the cause of that culture.
Additional reporting by Solomon in January suggests the foundation experienced backlash from donors and board members. OPB reported that a donor withdrew their support and did not want their name associated with the college after fallout from equity issues at the college.