Mooney v. Board of Trustees of Temple University of Com. System of Higher Ed.

• Decision Date: 28 June 1972
• Docket Number: 295,No. 295,No. 272,Nos. 272,272,s. 272
• Citation: 292 A.2d 395,448 Pa. 424
• Parties: Thomas J. MOONEY, individually and in his own right, et al., Plaintiff, v. BOARD OF TRUSTEES OF TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION et al., Defendants (two cases). Appeal of Peter BACHRACH et al. inAppeal of TEMPLE UNIVERSITY STUDENT SENATE in
• Court: Pennsylvania Supreme Court

Page 395

292 A.2d 395

448 Pa. 424

Thomas J. MOONEY, individually and in his own right, et al., Plaintiff, v. BOARD OF TRUSTEES OF TEMPLE UNIVERSITY OF the COMMONWEALTH

SYSTEM OF HIGHER EDUCATION et al., Defendants (two cases).

Appeal of Peter BACHRACH et al. in No. 272.

Appeal of TEMPLE UNIVERSITY STUDENT SENATE in No. 295.

Nos. 272, 295.

Supreme Court of Pennsylvania.

June 28, 1972.

William H. Ewing, William T. Hangley, Ewing & Cohen, Philadelphia, for appellant.

Peter Platten, Michael Churchill, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This appeal requires us to decide whether Temple University of the Commonwealth System of Higher Education ¹ is a state 'agency' for purposes of the Inspection and Copying Records Act, ² thereby subjecting it to the requirement of making all its 'public records' 'open for examination and inspection by any citizen of the Commonwealth.' ³ We agree with the Commonwealth Court that the Legislature, in designating Temple as a part of the Commonwealth System of Higher Education in order to enable Temple to receive increased financial assistance from the Commonwealth, did not transform Temple into a state 'agency' for the purposes of the act. We affirm the decree of the Commonwealth Court.

Appellants, students at Temple, a member of the faculty, and the University Student Senate through its guardian ad litem, ⁴ commenced an original action in the Commonwealth Court seeking to compel appellees, the board of trustees, to make available for inspection '(d)etailed financial and budgetary information; minutes of Board of Trustees meetings; and minutes of meetings of Committees of the Board of Trustees, including the Executive Committee.' ⁵ The board of trustees has refused to honor appellants' requests for detailed financial information. The board did however make available 'excerpts of meetings of defendant trustees and subcommittees of defendant trustees.' ⁶ Appellants base their cause of action both on the Inspection and Copying Records Act and common law. ⁷ Appellees filed preliminary objections requesting dismissal inter alia on the ground that Temple is not an 'agency' within the Inspection and Copying Records Act. The preliminary objections were sustained by the Commonwealth Court in a unanimous opinion by Judge Crumlish. Mooney v. Temple University Board of Trustees, 4 Pa.Cmwlth. 392, 285 A.2d 909 (1972). This appeal followed.

The Inspection and Copying Records Act provides that '(e)very public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.' Act of June 21, 1957, P.L. 390, § 2, 65 P.S. § 66.2. An 'agency' is defined as:

'Any department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, Or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.'

Id. § 1, 65 P.S. § 66.1(1) (emphasis added). ⁸ In order to satisfy the statutory definition of a state 'agency,' appellants must show that Temple is a 'State or municipal authority or similar organization. . . .' ⁹ We must reject the contention that Temple, a non-profit corporation chartered for educational purposes, has become 'similar' to a 'State or municipal authority' ¹⁰ solely because of increased financial assistance from the Commonwealth.

Temple was originally chartered as a non-profit corporation for educational purposes in 1888. ¹¹ In 1907 the charter was amended to accord Temple University status. ¹² In 1965, the Legislature passed the Temple University--Commonwealth Act. ¹³ The act amended Temple's corporate charter 'by changing the name of Temple University to 'Temple University--of the Commonwealth System of Higher Education . . ." ¹⁴ and further declared it 'to be the purpose of this act to extend Commonwealth opportunities for higher education by establishing Temple University as an instrumentality of the Commonwealth to serve as a State-related institution in the Commonwealth system of higher education.' ¹⁵ More important, the act also provided that Temple 'shall continue as a corporation for the same purposes as, and with all rights and privileges heretofore granted to Temple University. . . .' ¹⁶

We conclude, as did the Commonwealth Court, that this latter declaration reveals an express legislative intent to preserve Temple's status as a non-profit corporation chartered for educational purposes. The receipt by Temple of increased state financial aid no more transforms Temple into a state 'agency' than the receipt of federal funds can make Temple an agency of the federal government. A review of the Temple University[448 Pa. 431] --Commonwealth Act further supports our conclusion.

Appellants rely on various provisions of the Temple University--Commonwealth Act to bolster their contentions. They emphasize that the act altered the board of trustees by providing for appointment of four trustees respectively by the Governor, the President pro tempore of the Senate, and the Speaker of the House. ¹⁷ Nevertheless, these twelve Commonwealth trustees remain only a one third minority of the board's total number of thirty-six trustees.

The majority of non-public trustees clearly retains the powers to manage and control the University. The act in its legislative findings describing Temple's status prior to passage of the act specifically declares that 'Temple University owns and maintains land, buildings, and other facilities which are used, together with land and buildings owned by the Commonwealth of Pennsylvania, for higher education, Which land, buildings, and other facilities are under the entire control and management of the board of trustees. . . .' ¹⁸ The Legislature then expressly directs that '(t)he entire management, control and conduct of the instructional, administrative, and financial affairs of the university is hereby vested in the board of trustees.' ¹⁹ Additionally, the act provides that '(t)he board may exercise all the powers and franchises of the university and make by-laws for their own government, as well as for the university.' ²⁰

The act also directs that '(i)n accordance with legislative appropriations made as provided by law, the Commonwealth may, By agreement with the board of trustees, acquire lands, erect and equip buildings, and provide facilities for the use of the university.' ²¹ Had the Legislature intended to transfrom Temple into a state 'agency,' it would be hardly necessary to require that the Legislature reach an agreement with the board of trustees before it can expand or alter Temple's facilities. This requirement further supports the conclusion that Temple is not a state 'agency' for present purposes.

Appellants also rely on fiscal controls, provided by the Temple University--Commonwealth Act to facilitate Commonwealth inspection of the University's expenditures of Commonwealth funds, to support their contention that Temple is now a state 'agency.' We are unpersuaded.

The Temple University--Commonwealth Act has clearly authorized increased financial assistance to Temple from the Commonwealth. The Commonwealth is obligated to provide sufficient funds to enable Temple to maintain the legislatively determined tuition and fee schedules. ²² Temple is permitted to participate in Commonwealth programs for capital development ²³ and to support these programs the board of trustees is empowered to issue tax free bonds. ²⁴ It is of course a fundamental practice of government that its grants of public funds to an appropriate institution are generally accompanied by some regulatory mechanism in order to insure that the public funds are being properly expended.

The Legislature in this instance provided several ways to assure proper expenditures of its appropriated funds. The act provides that '(f)or the purpose of assuring the proper accountability on the part of Temple University for the expenditure of the amounts appropriated by the Commonwealth, Temple University shall establish a Commonwealth Appropriation Account into which only the amounts appropriated by the Commonwealth shall be credited when received.' ²⁵ It is also required that 'proper records' be kept of these accounts and at the completion of each fiscal year the University file with the Auditor General and the General Assembly 'a statement setting forth the amounts and purposes of all expenditures made from both the Commonwealth Appropriation Account and other university accounts during said fiscal year.' ²⁶ The Auditor General is directed to conduct a 'post-audit' and his responsibilities are expressly limited to auditing the funds provided by the Commonwealth and maintained in the Commonwealth Appropriation Account.

This regulatory scheme provided by the Legislature to safeguard against improper expenditures of public funds in no way intrudes upon or alters Temple's status as a non-profit corporation chartered for educational purposes. The express limitation of this regulatory scheme to the funds 'maintained' in the Commonwealth Appropriation Account is another indication of the Legislature's intention to preserve Temple's prior status, and not to transform Temple into a state 'agency.'

Finally, we must note that the Legislature has provided for disclosure of Temple's financial expenditures of both its pulbic and private funds. As stated previously, Temple must file with the Auditor General and the Legislature at the end of each fiscal year a 'statement setting forth the amounts and purposes' of public and private expenditures. ²⁷ The Auditor General is directed to submit an annual report to the...