This is the twelfth post in an ongoing series as we file Missouri Sunshine Law (RSMo 610) requests and investigate the non-renewal of the contract of University of Central Missouri President Aaron Podolefsky. Links to previous coverage are below the fold. BG and MB

Yesterday we received a copy of a memo outlining the history of the McClain Will and Trust. We first covered the will in “A Gentleman’s Agreement?”: let’s not get cut out of the will.

…Memorandum:

DATE: October 23, 2009

TO: Mr. Dan Power, President, UCM Foundation Board (and members)

Mr. Richard Phillips, President, UCM Board of Governors (and members)

Mr. Joe Kremer, Executive Director, UCM Foundation

Mr. Michael Lucas, UCM Internal Auditor

FROM: Dr. Aaron Podolefsky, President s/

RE: Exit Memo #1: Update regarding Morrow-Garrison and the McClain Funds

Charge to the University Auditor

Charge to the Foundation Board

I will be producing exit memoranda for the appropriate parties over the course of the next months. This one concerns the use of McClain gift funds as a match for the renovation of the Morrow-Garrison complex….

…Prior to my arrival in July 2005, President Patton submitted a request to the Coordinating Board for Higher Education (CBHE) and thus the State of Missouri for the renovation of the Morrow-Garrison complex. The cost of the renovation was projected to be $15,500,000; $13,500,000 was to come from State funds and $2,000,000 of which was to come from a university match, i.e., the Regina Myers McClain gift funds. When I arrived on campus, I was led to believe that the funds were an estate gift from Mrs. McClain to the Department of Health and Human Performance (HHP) and, as such, appropriate for this use. (As part of my duties, I lobbied for over two years for the approval of these state funds. After they were approved and the projects underway, 14 MOHELA projects were halted due to lack of funds. I, with others, was successful in having these funds reinstated. UCM was one of only four of these 14 projects to be fully funded.)

After the State funds became available and planning for the renovation had begun, Vice President Paul Page mentioned off hand to me that the funds were actually given to the Nutrition program. I asked to see the documents. In reading Mrs. McClain’s Will and learning of the history of litigation over the estate, it became clear that the gift was given to “establish a department of nutrition.” Good stewardship and the law require that gifts to the university be used as the donor intended.

This presented a challenge to the entire project. However, after much though, we considered that we could establish a Department of Nutrition and use the McClain funds to renovate space for this new department. Since Nutrition faculty and facilities were already scheduled to be in this building, this was a matter of the architects creating a floor plan (actually reworking already drafted plans) and of identifying “nutrition” space valued at $2,000,000. Thus, the promised match would be provided and the funds would be expended as Mrs. McClain intended.

The HHP department insisted that a proposal for a gift had been written by HHP and that McClain’s gift was to fund that proposal with the funds going to athletic training. We spoke extensively to Dean Sluder and others. No such proposal was found in the Foundation files, and there was no indication that such a proposal was presented to Mrs. McClain. The question, however, was moot since the Will was clear. Even if she had received a proposal, Mrs. McClain’s Will is the guiding document. The department disagreed and was understandably animated given their long-standing misperception of the gift.

In order to be confident in our interpretation, I requested that Interim Legal Counsel Wright provide a written legal opinion. Mr. Wright sought a written opinion from the law firm of Lathrop and Gage of Kansas City. Mr. Wright, as I recall, expended $16,000 of university funds on this letter of opinion. In addition, Mr. Wright charged the university his hourly fee to draft his opinion, following that of Lathrop and Gage. These opinions were clear that the funds must be expended on nutrition. In addition, the opinions ventured into discussion of what constitutes a Department of Nutrition and warned of consequences related to the original lawsuit filed by Mrs. McClain’s daughter in the state of California contesting the university’s receipt of any funds at all. I requested Mr. Wright provide the Dean and department copies of these opinions and he declined, but he did visit with them and report the finding verbally. Based on the requirements of the Will, the administration including the Dean of the College, recommended, and the Board of Governors formally approved, the creation of a Department of Nutrition.

As a side issue, during the planning of the renovation the HHP department expressed a strong desore to move wrestling out of the Morrow-Garrison complex. There was broad-ranging discussion of alternatives for wrestling and how to support its needs. many ideas were explored. One idea, brought by an outside consultant, was to use Morrow-Garrison funds since the relocation was forced by the project and alternate locations were far less costly to construct than space renovation in Morrow-Garrison. This was rejected. Another option discussed with the HHP department and the Foundation Board’s Finance Committee was using McClain funds to “buy” space in the building from wrestling. This too was rejected. Yet another was to use McClain funds to pay salaries of Nutrition faculty, thereby creating a general fund salary savings that could be used for other purposes (akin to creating an endowed chair). While legal, this was rejected as being too removed from the donor’s intent. Although these and other ideas were explored in order to satisfy HHP’s request to remove wrestling, all were deemed inappropriate or too far removed from the original intent and none were approved or implemented. Given the long-term interests of all parties, the decision was made to not include wrestling in the academic building, thus providing more space for academic programs. Athletic Director Hughes proposed the use of the Police Academy space as a temporary measure, which was approved, and Vice President Robert had a study done and preliminary plans drawn for a proper wrestling facility to be attached to the Multipurpose Building.

In sum, McClain funds were allocated to renovate space to establish a Department of Nutrition and to satisfy the promise of a $2,000,000 institutional match for the building renovation. Construction project managers were instructed to specifically account for the use of the McClain funds, as distinct from state construction funds, to ensure their use strictly for the Department of Nutrition. To the best of my knowledge, McClain funds have been allocated only to the construction of space to house a new Department of Nutrition. I have authorized no other expenditures from this account.

Requested Action 1 – The University Auditor shall examine the McClain account and report to me, the Executive Director of the Foundation, and to the Foundation Board on the use of those funds, including payouts to Mrs. McClain’s daughter.

Requested Action 2 – The Foundation Board should review Mrs. McClain’s Will and the two legal opinions noted above and, per its fiduciary responsibility, reaffirm the proper use of these funds

[emphasis in original]

Our previous coverage:

Three steps behind, and to the right (January 25, 2008)

Three steps behind, and to the right, part 2 – a microc
osm of our universe (September 21, 2009)

“A Gentleman’s Agreement”? (October 15, 2009) (transcript of a portion of the live radio broadcast)

It wasn’t just about a tree (October 21, 2009)

“A Gentleman’s Agreement?”: I heard it on the radio (October 21, 2009)

“A Gentleman’s Agreement?”: let’s not get cut out of the will (October 22, 2009)

“A Gentleman’s Agreement?”: $87.75 will get you one sheet of paper (October 23, 2009)



“A Gentleman’s Agreement?”: They’re not playing hardball, they’re playing cat and mouse  (October 23, 2009)

“A Gentleman’s Agreement?”: a cola and some scoreboards (October 24, 2009)

“A Gentleman’s Agreement?”: a few more pieces of the puzzle? (October 28, 2009)

“A Gentleman’s Agreement”?: your silence means consent(October 29, 2009)