Regulation Guides Use of College Facilities

The headlines in The Arizona Republic screamed, "[School name] violated school law; charter no longer will receive free space." Thus, another Arizona public entity found itself ignominiously at odds with the Arizona Attorney General's Office, a dispute played out visibly for all to see.

The reason for the banner headline was the Attorney General's conclusion that an arrangement between a public school district and a charter school, in which the school took troubled students from the district in exchange for free rent, violated the law. The charter school, the Attorney General stated, was already required to take the troubled students, so the district wasn't getting anything new in exchange for the free rent. While there were some other titillating details of this arrangement that made it newsworthy, the "free rent" aspect was the significant "booboo" and made the front page of the Valley & State Section.

So, how do we at Maricopa avoid that pitfall? The answer is simple. We have an administrative regulation in place that specifies how we may use our facilities. It's contained in the Blue Book and is also available on-line at http://www.dist.maricopa.edu/gvpolicy/adminregs/adminregs_toc.htm under the "Fiscal Management" heading.

But how, you ask, is facilities use tied to "Fiscal Management?" It's because the genesis of the relationship is the Arizona Constitution, which precludes any public entity from "gifting" its resources of any kind to a third party. In Brief featured an article about this constitutional provision in its spring 1998 edition, and the article is available at http://www.dist.maricopa.edu/legal/dp/inbrief/publicresources.htm

As a result of that relationship, the underlying analysis for appropriate use of our facilities is in some respects the same as the one we use to determine whether the use of other types of resources, mainly funds, is for "official functions." If an outside party uses our facilities for an event or activity and we charge the party something less that a fair market rent or nothing at all, the event or activity must be one that we legitimately sponsor, which means it has to relate directly to our educational mission as outlined in law and Governing Board policy.

In a few situations, the District Office has permitted a third party to use our facilities for reduced or no rent in exchange for services that we have objectively determined to be at least equal in value to the fair market rent we normally charge for the facilities use. The facilities use administrative regulation requires the Vice Chancellor for Business Services, a College President or their designee to determine that certain conditions exist before allowing a reduced rent or waiving it altogether. Because of the tax, accounting and legal issues that those situations raise, the District Office - Legal Services and Finance Departments - should be involved in making that call.

There are only a couple of those arrangements that currently exist here, and the outside parties in those cases are a charter school and a non-profit community affairs organization. Since it was an attempt at this type of arrangement that the Attorney General's Office found to violate the law in the school district situation mentioned at the outset of this article, we need to avoid making the same mistake.

Here are some highlights of the facilities use administrative regulation that are important to remember:

• We always require an outside party to provide us with an insurance certificate that meets certain standards and shows that the Maricopa Community Colleges is an additional insured even when we are a co-sponsor of the event or activity. Practically speaking, we make an exception where the outside party is another public entity, such as a city or county, because we know that they carry significant insurance. But that call needs to be made by the person at the campus or District Office responsible for managing that campus's or District Office's use.
  
  
• Governing board members, employees and their relatives and associates may not use Maricopa facilities for their personal, business or non-Maricopa activities. So, if an employee is giving private music lessons at our facility, they must enter into a facilities use agreement, pay rent, and provide us with insurance. The regulation doesn't prevent an employee from using a college's track course in off hours, for instance, for personal exercise since other members of the public do the same thing.
  
  
• We need to have a written agreement in place for facilities use. The type of agreement generally depends on the length of the outside party's use. Agreements are important because they establish the rules with which the party must comply and also state clearly that the party is responsible for damage or injuries that it may cause.
  
  
• We will not enter into anything but a short-term agreement for uses of our facilities that are personal or commercial in nature. Committing our resources for those uses other than for a short time would likely not have our students' or the taxpayers' best interest at heart.

So it's important for us to be good stewards of our facilities. At a minimum, it helps us meet the "newspaper" test.

Published in the Spring 2006 and Summer 2004 Edition of In Brief