Examination of the Governance of the
University of Louisville Foundation and its Relationship to the
University of Louisville

MIKE HARMON
AUDITOR OF PUBLIC ACCOUNTS
www.auditor.ky.gov

209 ST. CLAIR STREET
FRANKFORT, KY 40601-1817
TELEPHONE (502) 564-5841
FACSIMILE (502) 564-2912

 The Auditor Of Public Accounts Ensures That Public Resources Are
Protected, Accurately Valued, Properly Accounted For, And
Effectively Employed To Raise The Quality Of Life Of Kentuckians.

 Table of Contents

TRANSMITTAL LETTER
EXECUTIVE SUMMARY ............................................................................i

Chapter 1

Introduction and Background ............................................................1

Chapter 2

Findings and Recommendations.......................................................10

Chapter 3

Benchmark Methodology and Results Analysis ..............................39

University of Louisville and University of Louisville Foundation Joint Response ...............................50
Former President Dr. James Ramsey’s Response ...................................................................................52
Auditor’s Reply to Former President Dr. James Ramsey’s Response...................................................58

 December 14, 2016

Dr. Neville G. Pinto, President
University of Louisville
102 Grawemeyer Hall
2301 South 3rd Street
Louisville, KY 40292
and
Brucie Moore, Board Chair
University of Louisville Foundation
102 Grawemeyer Hall
2301 South 3rd Street
Louisville, KY 40292
Dear President Pinto and Chairperson Moore:
The Auditor of Public Accounts (APA) has completed its governance examination of the University of
Louisville Foundation (ULF) and its relationship to the University of Louisville (UofL). This report
summarizes the procedures performed and communicates the results of those procedures.
As part of this examination, the APA reviewed information related to the governance and oversight of ULF,
such as policies, procedures, and council board meeting minutes. The APA also analyzed financial information,
such as budgetary processes and information, vendor contracts and related payments, financial statement audits,
and other financial transactions; and interviewed relevant parties, including the former President of ULF and
UofL, UofL and ULF chief financial officers, the former President’s chief of staff, and various members of the
UofL Board of Trustees and ULF Board of Directors. The initial examination period of this engagement was
July 1, 2012 through June 30, 2015; however, due to significant events impacting ULF governance since June
30, 2015, the examination was expanded as needed in order to keep the analysis current.
The purpose of this examination was not to provide an opinion on financial statements, but to review specific
issues brought to our attention related to governance practices and concerns related to limited accountability
and transparency of certain aspects of the ULF operations. The purpose of the examination is also to provide

 Dr. Neville G. Pinto, President
Brucie Moore, Board Chair
Page 2

recommendations to address weaknesses discovered during the examination. Detailed findings and
recommendations based on our examination are presented in this report to assist all parties involved in
evaluating board governance and operational policies and practices to achieve appropriate accountability and
transparency. Serious weaknesses were identified that impact the governing practices of ULF. These
weaknesses included:
• Delays and inconsistencies in information provided, which, along with numerous open records violations,
validated concerns of poor transparency;
• Poor segregation between the administrative operations between UofL and ULF, resulting in ineffective
governance practices and management having too much influence without appropriate checks and
balances;
• A dysfunctional governing climate due to excessive board conflicts;
• Endowment funds used for loans to ULF and an affiliate without appropriate notification to and approval
of the UofL Board of Trustees;
• The appointment of an acting ULF Chief Administrative Officer without appropriate authorization from
the ULF Board of Directors; and
• Compensation provided to the former UofL and ULF President greater than amounts approved by the
UofL Board of Trustees.
We appreciate your assistance, and the assistance of your staff and members of UofL and ULF Boards
throughout the examination. If you have any questions or wish to discuss this report further, please contact me
or Libby Carlin, Executive Director, at (502) 564-5841.
Sincerely,

Mike Harmon
Auditor of Public Accounts
cc: Dr. Laurence N. Benz, Chairman, University of Louisville Board of Trustees

 Executive Summary
December 14, 2016

MIKE HARMON
AUDITOR OF PUBLIC ACCOUNTS

Examination of the Governance of the University of Louisville Foundation
and its Relationship to the University of Louisville
information regarding the selection of peer higher
education institutions and benchmark results can be
found in Chapter 3.

Examination Impetus
On February 18, 2016, the Office of the Auditor of
Public Accounts (APA), in response to numerous
concerns expressed to this office regarding certain
governance issues between the University of
Louisville (University or UofL) and the University
of Louisville Foundation (Foundation or ULF),
decided to continue an examination initiated by the
former State Auditor on June 25, 2015. The
examination focused on specific governance issues
between the two entities. Since its inception, this
governance examination of the Foundation and the
University has been met with numerous delays.

Foundation Background
ULF is an independent 501(c)(3) not-for-profit
organization established in 1970. It is a fundraising
corporation that holds, invests, and designates
gifted and endowed funds on behalf of the
University. ULF is governed by a 15-member
Board of Directors. Four trustees on the UofL
Board are appointed by the UofL Board Chair to
serve on the ULF Board. The former UofL President
also served as President of the Foundation and a
voting member of the ULF Board, a member of the
ULF Board Executive Committee, and Chair of the
ULF Board Nominating Committee during the
examination period.

Examination Scope and Objective
The purpose of this examination was not to provide
an opinion on the financial statements or to
duplicate work of annual financial statement audits
of either the University or the Foundation. The
scope of this examination included examining
records, activities, and other information for the
period July 1, 2012 through June 30, 2015, unless
otherwise specified; however, the time period of
certain documents reviewed and issues discussed
with those interviewed may have varied.
Additionally, due to significant events impacting
the Foundation since June 30, 2015, the
examination was expanded as needed to keep the
examination current and to understand the impact of
those events on its governance.

The Foundation reported total revenues of
$77,653,000 in its FY 2015 audited financial
statements, with gift revenue being the largest
source of revenue for the year. That same year, the
Foundation reported expenses totaling $124.2
million, and reported a loss on investments and an
actuarial loss on annuity and trust obligations
totaling $4.8 million. Payments to or on behalf of
the University totaled $24.7 million for the fiscal
year 2015. Real estate operations made up $12.8
million of the total expenses. Interest expense,
residence hall operations, and general and
administrative expenses were $5.2 million, $5.4
million, and $2.2 million respectively.

To address the objectives of the governance
examination, the APA interviewed over 20
individuals, and examined and analyzed thousands
of documents, including emails; reports; supporting
documentation and schedules; and policies provided
by UofL, ULF, and others. In addition, we
performed a survey of peer higher education
institutions for benchmarking purposes. Further

The Foundation has grown substantially since its
creation in 1970. According to the audited financial
statements for FY 2015, ULF has consolidated
current total liabilities and net assets valued at
approximately $1.05 billion. The Foundation has
diversified into real estate with the utilization of tax
i

 Executive Summary (Continued)

Board policies, Open Records/Open Meetings laws,
and professional ethics.

increment financing (TIF). According to its FY
2015 audited financial statements, the Foundation
has 14 affiliates to assist with the implementation
and management of such growth.

We further recommend the ULF administration
review current operational processes and ensure
records are organized to meet the accountability and
transparency objectives of the ULF Board,
including the implementation of a budget-to-actual
analysis for its operational costs. Finally, we
recommend the ULF Board consider creating an
internal audit function to report directly to the ULF
Board or a committee of the Board.

Endowment Background
The University endowment managed by the
Foundation had an approximate value of $662
million, according to Foundation personnel, as of
June 30, 2016. According to information provided
by ULF personnel, the endowment has grown from
approximately $593 million as of June 30, 2009 to
$662 million as of June 30, 2016. The current
annual spend rate is 7.48%. Of the spend rate, 5.5%
is allocated for use by individual University
colleges and programs, and 1.5% is allocated for
fundraising efforts and used to pay the overhead
incurred by the University Advancement and
Development Office.
Additionally 0.48% is
allocated to the ULF President to support highstrategic initiatives and program enrichment,
including fundraising activities.

Finding 2: Administrative operations of the
University and its Foundation were at times
indistinguishable and led to ineffective
governance.
The administrative operations of the University and
its not-for-profit 501(c)(3) fundraising foundation,
ULF, were at times indistinguishable despite being
legally separate entities. The dual role of one
individual acting as both the UofL and ULF
President and other comingled administrative
operations, coupled with the growing complexity of
ULF operations and ambiguous lines of authority
and responsibility, created an enigma leading to
confusion and questions of transparency. This
confusion and the concentration of authority led to
ineffective governance practices that resulted in
management having too much influence and a lack
of checks and balances. During the examination
period, the administrative authority of the
Foundation rested primarily with three individuals:
the former University and Foundation President, the
former President’s Chief of Staff, and the
Foundation CFO.

Findings and Recommendations
Finding 1: Requests for documentation and
other information were met with continued
delays and unclear or inconsistent responses.
Throughout most of the examination process,
requests for documentation and other information
were met with continued delays and unclear or
inconsistent responses.
The delays and
inconsistencies in information created redundancies
in requests, postponed examination procedures, and
provided auditors little assurance as to the
completeness and accuracy of the information
provided. The difficulties encountered in obtaining
consistent, complete, and accurate information
timely during the examination exemplify the need
for improved accountability and transparency
within the Foundation and University operations.

Recommendations: We recommend the UofL and
ULF Boards discuss together, through designated
committees of each board, the need and potential
benefits and disadvantages of having the president
of the UofL serve as the president of the Foundation.
We recommend the UofL and ULF Boards consider
developing a MOU to establish an effective set of
operational and governing policies. The MOU
should be the result of a collaborative process
between the two boards and should include a review
of recommended principles and practices.

Recommendations: We recommend the ULF
Board review Board policies, ensuring that
accountability and transparency of the organization
is a clear expectation of both officers and staff. We
recommend all ULF employees receive training on
ii

 Executive Summary (Continued)

attention to the situation at the University and
Foundation reportedly discouraged some Trustees
and administrators from discussing necessary board
and University business in UofL Board meetings.
Therefore, the climate not only created
disagreements and tension, but also led to
withholding information at Board meetings in
attempts to avoid further problems. Although this
justification may be understandable given the
climate, the lack of transparency and reporting of
valid business-related information draws into
question whether UofL Trustees were able to
perform their fiduciary duties.

We recommend the UofL administration review its
human resource processes and management
structure to determine whether they are appropriate
for its organization and whether they provide fair
and consistent treatment of UofL personnel. After
the review is complete, we recommend the
administration update its personnel policies to be
consistent with the approved changes. As part of
this policy review, we recommend the UofL
administration develop administrative policies to
establish guidance and parameters by which
additional benefits, such as vehicle and cellphone
allowances, may be awarded. This policy should be
formalized in writing and approved consistent with
UofL policy.

Recommendations: We recommend the UofL
Board of Trustees operate in an atmosphere that
welcomes open and forthright discussion of issues
the University faces.
Discussions at Board
meetings should be civil and respectful even if there
are disagreements.

We recommend the University administration
involve its General Counsel when considering
matters that will result in any legal agreements or
arrangements transferring funds from the University
to the Foundation, and in any matters that could
appear to be noncompliant with existing
agreements, regulations, or laws.

Finding 4: Endowment funds totaling $67
million, budgeted for use by the University, were
loaned to the Foundation and an affiliate
organization without prior notification to, or
approval by, the UofL Board.
The concentration of authority over the University
and Foundation resulted in transactions between the
two entities occurring without the administration
first going through the appropriate processes to
communicate and gain approval from the governing
boards. Specifically, endowment funds totaling $67
million, budgeted for use by the University, were
loaned to the Foundation and an affiliate
organization without prior notification to, or
approval by, the UofL Board. Although the former
President had authority to enter into contracts on
behalf of both the Foundation and the University,
unilaterally authorizing loans to ULF or its affiliate
organizations, without prior notification or approval
from the UofL Board caused concern among UofL
Trustees, ULF Directors, and donors.

We further recommend the UofL Board, or a
committee of its body, consider creating a policy to
address the University’s ability to transfer funds to
the Foundation. We recommend any consideration
of such a policy be discussed with the appropriate
University
administrators,
including
the
University’s General Counsel. If a policy is created,
we recommend the policy be formalized in writing,
approved by the full board, and distributed to all
appropriate University personnel.
Finding 3: Conflict among members of the UofL
Board and the administration created an
environment of distrust resulting in a
dysfunctional governing climate impacting both
the University and the Foundation.
Conflict among members of the UofL Board and the
administration created an environment of distrust
resulting in a dysfunctional governing climate.
UofL Trustees and ULF Directors consistently
described a damaged and divisive working
relationship among members of the UofL Board and
the administration of the University and the
Foundation. This division and constant public

Recommendations:
We recommend the
University refrain from loaning its funds to the
Foundation and its affiliates.
We recommend the UofL Board consider revising
its Short-Term Investment Guidelines policy to
again require annual reporting on the status of shortiii

 Recommendations: We recommend the ULF
Board and President abide by the ULF bylaws in all
matters, including
the appointment and
compensation of ULF officers. The ULF Board
should ensure appropriate checks and balances are
put into place to avoid situations in which a single
individual has the ability to take actions beyond
those authorized. As such, we recommend the ULF
Board not knowingly approve, ratify, or allow its
president to take actions that are in contravention of
the bylaws.

Executive Summary (Continued)
term investment funds by the UofL Senior Vice
President (SVP) for Finance and Administration.
We
further
recommend
the
University
administration ensure any discussion involving
“cash management strategies” and short-term
investments be vetted by the SVP for Finance and
Administration.
We recommend the ULF Board and the UofL Board
each establish a policy establishing criteria for
reporting financial activity to each board. The
policy should include criteria such as the type of
activity, dollar threshold, and limitations. The
policy established by each board should be formally
documented in writing, along with details noting the
purpose of the presentation, the frequency, the level
of detail to be reported to the board, and by whom
reports should be presented.

We recommend the ULF Board designate a
committee of its body to annually review the ULF
bylaws to determine whether updates are needed.
After the review is performed, the committee
responsible for performing the review should report
the review results to the full ULF Board.
Finding 6: The ULF Board compensated the
former UofL President beyond the amount
approved by the UofL Board and beyond the
amount provided under the terms of his
contract.
The ULF Board compensated the former UofL
President beyond the amount approved by the UofL
Board and beyond the amount provided under the
terms of his contract. During an annual review of
the UofL President’s progress in meeting boardestablished goals in July 2014, the University
Compensation Committee recommended a 2%
merit increase to the UofL President’s salary. This
same 2% merit increase was communicated and
recommended to the Foundation as part of its
compensation review of the President. Rather than
accepting this recommendation by the UofL Board,
the ULF Board then approved a 4% merit increase
for the President in his ULF capacity and an
additional 2% increase to the President in his UofL
capacity, all to be paid by Foundation funds.

Finding 5: Action taken by the former UofL and
ULF President to appoint an acting Chief
Administrative Officer appears to violate ULF
Bylaws.
Action taken by the former UofL and ULF President
to appoint an acting Chief Administrative Officer
(CAO) for the Foundation, as well as the action to
provide for additional post-employment benefits
associated with this appointment, appears to violate
ULF bylaws. Without formal action taken by the
ULF Board, the former UofL and ULF President
appointed the former UofL Chief of Staff to the
position of acting CAO, a position the president is
assigned in the ULF bylaws. Though it was
indicated that members of the ULF Board Executive
Committee were aware of the intended
appointment, such action had not been formally
introduced or acted upon by the full ULF Board or
any ULF committee. Taking such action without
following proper protocol is particularly
questionable in light of ongoing public concerns
regarding the accountability, transparency, and
governance of ULF. Although the letter does not
award the former UofL Chief of Staff with
additional salary to perform these CAO duties, the
former President awarded the former Chief of Staff
six months of administrative leave at her current
salary plus her deferred compensation if she leaves
ULF involuntarily for reason other than for cause.

Recommendations: We recommend the ULF
Board refrain from taking any actions that exceed
its authority, such as increasing the President’s
university
salary
without
an
official
recommendation from the UofL Board. Further,
any offer from the ULF Board to assist beyond what
was requested from the UofL Board should be
considered and acted upon by the UofL Board in
compliance with University Bylaws. We further
iv

 Executive Summary (Continued)

Recommendations: We recommend the ULF
Board, in consultation with the Foundation
administration, develop and implement a
formalized orientation for new and returning board
members. This orientation should provide members
with a clear understanding of the Foundation and its
affiliated entities, their role, as well as their legal
and fiduciary responsibilities as board members.

recommend the ULF Board compensate its
president in compliance with established contract
terms.
Finding 7: The University CFO was not included
in meetings of the ULF Board Finance
Committee in violation of its bylaws and in direct
conflict with his contract with the Foundation.
The SVP for Finance and Administration, who also
serves as the University CFO, was not included in
meetings of the ULF Board Finance Committee in
violation of its bylaws and in direct conflict with his
contract with the Foundation. The Foundation
bylaws establish the University CFO as an ex officio
member of the ULF Board Finance Committee. In
addition, his contract with the Foundation requires
the University CFO, during his term of employment
at the University, to provide assistance and support
as indicated by the Foundation bylaws. The failure
to involve the University official primarily
responsible for the financial affairs of the University
further impaired
the accountability and
transparency between the two entities.

We recommend the ULF Board consider having an
independent party involved in the organization,
structure, and content of the board orientation, with
involvement from the board attorney to ensure
topics such as legal agreements, conflicts of
interests, open records and open meetings, and
ethics are sufficiently covered. We recommend the
material for the orientation be written and formally
presented as a manual to assist the orientation
process and serve as a useful resource tool to board
members. Because of the dynamic nature of the
Foundation, the orientation should be reviewed
periodically to ensure all materials are current and
applicable. This orientation should be made
mandatory for all new directors, and the materials
should be available to all directors.

Recommendations: We recommend the ULF
Board structure its committees in accordance with
the requirements established by its bylaws and that
all ex officio members be properly notified of
meetings. All committee members should review
and be aware of their responsibilities. We further
recommend the University CFO be appropriately
involved in financial decisions directly impacting
the University.
Finding 8: ULF Board members do not receive
an orientation despite the growing complexity of
Foundation operations.
ULF Board members do not receive an orientation
despite the growing complexity of Foundation
operations.
The Foundation consists of
approximately 14 affiliates with operations
covering real estate holdings and developments,
deferred
compensation
management,
and
management of a multi-million dollar endowment,
yet there is no formal or defined board orientation
provided for new Foundation Board members.

v

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Chapter 1

Page 1

Introduction and Background
Impetus and
Timeline of
Examination

On February 18, 2016, the Office of the Auditor of Public Accounts (APA), in
response to numerous concerns expressed to this office regarding certain
governance issues between the University of Louisville (University or UofL) and
the University of Louisville Foundation (Foundation or ULF), decided to continue
an examination initiated by the former State Auditor on June 25, 2015. The
examination focused on specific governance issues between the two entities. Since
its inception, this governance examination of the Foundation and the University has
been met with numerous delays.
An initial documentation request was submitted to the then UofL and ULF
President on July 24, 2015; however, several key items requested remained
outstanding as of November 2015. On November 3, 2015, a new Auditor of Public
Accounts was elected, taking office on January 4, 2016. Because the governance
examination would not be completed prior to the end of the year, the APA’s work
was temporarily suspended to allow the new administration to consider the matter
further.
On January 11, 2016, the ULF Board of Directors (ULF Board) Chair at the time
requested the APA proceed with a review of governance practices between the
Foundation and the University. On February 18, 2016, the APA submitted a letter
to the former UofL and ULF President announcing it would continue with the
examination, focusing on the existing oversight and operating procedures between
the University and the Foundation. According to the letter, the primary objective
of this examination was to evaluate whether the governance and oversight structure
established between the UofL Board of Trustees (UofL Board) and the ULF Board
is sufficient to ensure accountability and transparency of Foundation spending as it
relates to UofL activities. In addition the APA would perform benchmarking
research with other colleges and universities.
Through its letter dated February 18, 2016, the APA provided the University and
Foundation with an estimated cost of the examination contingent upon the
“complete and timely cooperation from the University and the Foundation.” With
fieldwork beginning in late February 2016, it was initially anticipated the
examination report would be completed and released by early June 2016.
On May 3, 2016, the APA submitted a letter to the Foundation and University
stating “the estimated timeframe for completion [of the examination] was
dependent upon…full cooperation and no significant structural changes… [I]n
many instances, information and documentation provided has been unclear or
inconsistent, which creates the need to perform more follow-up, verification, and
clarification procedures than is typically required. As a result, the early June report
release date is no longer feasible.”

 Chapter 1

Page 2

Introduction and Background
Scope and
Methodology for
Examination

The purpose of this examination was not to provide an opinion on the financial
statements or to duplicate work of annual financial statement audits of either the
University or the Foundation. The scope of this examination included examining
records, activities, and other information for the period July 1, 2012 through June
30, 2015, unless otherwise specified; however, the time period of certain documents
reviewed and issues discussed with those interviewed may have varied.
Additionally, due to significant events impacting the Foundation since June 30,
2015, the examination was expanded as needed to keep the examination current and
to understand the impact of those events on its governance.
To address the objectives of the governance examination, the APA interviewed
over 20 individuals, including both current and former UofL and ULF Board
members, the former UofL President, who also served as the ULF President until
September 16, 2016, and various other University and Foundation personnel.
Thousands of documents, including emails; reports; supporting documentation and
schedules; and policies provided by UofL, ULF, and others were examined and
analyzed in relation to the objectives.
In addition to information obtained directly from the University and Foundation,
we also performed a survey of peer higher education institutions for benchmarking
purposes. Further information regarding the selection of peer higher education
institutions and benchmark results can be found in Chapter 3.

University of
Louisville

UofL was organized in 1846 and became a state supported metropolitan research
university in 1970. It is located in Kentucky’s largest city of Louisville and is a
component unit of the Commonwealth of Kentucky. The University is made up of
12 individual schools and colleges, and as of academic year 2015, had a student
body of 22,922 and a faculty and staff of 6,863. The operating budget for fiscal
year (FY) 2016 was $1.2 billion. In 2012, the University became a member of the
Atlantic Coast Conference.
UofL consists of three campuses: the Belknap Campus houses eight of the
University’s 12 colleges and schools; the Health Sciences Center is located in
downtown Louisville and houses the University’s health related programs and the
University of Louisville Hospital; and the Shelby Campus, located in eastern
Jefferson County, houses the National Crime Prevention Institute, the Center for
Predictive Medicine regional bio-safety lab and the Division of Distance and
Continuing Education. UofL also offers expanded campus courses off-site and at
international locations.

UofL Board of
Trustees

The University is governed by a Board of Trustees (UofL Board) whose
composition is prescribed by Kentucky state law. Kentucky Revised Statute (KRS)
164.821(1), states, in part:

 Chapter 1

Page 3

Introduction and Background
The government of the University of Louisville is vested in a board
of trustees appointed for a term set by law pursuant to Section 23 of
the Constitution of Kentucky. The board shall consist of seventeen
(17) members appointed by the Governor; one (1) member of the
teaching faculty of the University of Louisville who shall be the chief
executive of the ranking unit of faculty government; a member of the
permanent staff of the University of Louisville who shall be the chief
executive of the staff senate; and a student member who shall be the
president of the student body during the appropriate academic year.
On June 17, 2016, the Kentucky Governor, by executive order, removed all 17
gubernatorial appointees to the UofL Board and reorganized the UofL Board with
10 gubernatorial appointees. At the same time, the now former UofL President
agreed to resign his position as UofL president contingent on presenting his formal
resignation to a newly appointed Board of Trustees. The Governor then, also by
executive order, appointed three interim Trustees to serve until the 10 Trustees
could be selected from a slate of 30 candidates to be submitted to him by the
Council on Postsecondary Education Nominating Committee. On June 29, 2016,
the Governor appointed 10 new Trustees to the UofL Board. On July 27, 2016, the
newly formed UofL Board met and accepted the now former UofL President’s
resignation. As part of his resignation agreement, the former UofL President was
provided a payout of $690,542.
The Attorney General, on June 22, 2016, petitioned the Franklin Circuit Court for
an injunction to block the UofL Board reorganization and challenged the
Governor’s authority to reorganize the board. The Franklin Circuit Court granted
an injunction on July 29, 2016 which reinstated the original 17 Trustees removed
by the Governor. The reinstated Trustees then proceeded to ratify actions taken by
the previous 10 Trustees, including the acceptance of the former UofL President’s
resignation. The Franklin Circuit’s decision has been appealed, and the appeal is
pending as of the date of this report.
University of
Louisville
Foundation

ULF is an independent 501(c)(3) not-for-profit organization established in 1970,
prior to the University becoming part of the state supported system of higher
education. It is a fundraising corporation that holds, invests, and designates gifted
and endowed funds on behalf of the University. As found in the Articles of
Incorporation for the Foundation, Article III paragraph 1:
The Corporation shall conduct and carry on its work, not for profit
but, exclusively, for the charitable and educational purposes of the
University of Louisville, a body politic and corporate, in such manner
that no part of the Corporation’s income or property shall inure to the
private profit of any donor, member, trustee, or individual having a
personal or private interest in the activities of the Corporation.

 Chapter 1

Page 4

Introduction and Background
According to its 2015 federal tax Form 990, the Foundation’s mission is stated as:
The University of Louisville Foundation (Foundation) exists to
support the academic, scholarly, research and community
engagement activities of the University of Louisville (University)
and to assist the University in becoming a national top tier
metropolitan research university. Since its inception in 1970, the
Foundation has supported the efforts of the University to attract
outstanding students and to bring the world's top scholars and
scientists to Kentucky. Investment in the University is increasingly
critical as State support for higher education continues to decline.
Although State budget cuts are challenging, the University remains a
leader among colleges and universities in Kentucky.
ULF Board of
Directors

ULF is governed by a 15-member Board of Directors whose members each serve
three-year terms. A majority of the ULF Directors are not also members of the UofL
Board or officers or employees of the University. However, four trustees on the
UofL Board are appointed by the UofL Board Chair to serve on the ULF Board in
an effort to facilitate a cohesive direction for both Boards and communication
between the two Boards. Although not a formal policy, to further support
transparency and alignment with UofL goals, it has become practice that the Chair
of the ULF Board also be a trustee of the UofL Board. The former UofL President
also served as President of the Foundation and a voting member of the ULF Board,
a member of the ULF Board Executive Committee, and Chair of the ULF Board
Nominating Committee during the examination period.

Foundation Support

The Foundation’s policy is that all gifts and contributions received are held in trust
for University benefit. Foundation funds received from donors are invested and
managed in support of University education, research, and service goals. These
contributions are to be used for scholarships, endowments, research chairs, grants
and other academic initiatives. Gifts to the University are also managed by the
Foundation and are to be used according to the wishes of the donor and the
appropriate University departments. Gifts without restrictions are managed at the
discretion of the ULF Board upon recommendation by the ULF President.

Foundation
Financial Activity

The Foundation’s audited financial statements are consolidated and include
financial activity for ULF, its affiliates, and amounts paid to or on behalf of the
University. ULF affiliates included in the consolidated financial statements are
explained later in the “Foundation Affiliates” section of this chapter.

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Introduction and Background
The Foundation reported six sources of revenue in its FY 2015 audited financial
statements: gifts, investment income, endowment income, residence hall income,
real estate income, and other revenues. Also within its FY 2015 audited financial
statements, the Foundation reported a loss on investments and an actuarial loss on
annuity and trust obligations totaling $4.8 million. The total revenues reported in
FY 2015 were $77,653,000. Gift revenue was the largest source of revenue for FY
2015, including $27.8 million reported as unrestricted, $10.8 million as temporarily
restricted, and $10.4 as permanently restricted. Both temporarily and permanently
restricted gifts carry donor stipulations that limit their use.
The Foundation’s FY 2015 financial statements reported $10.5 million in other
revenues and $9.4 million in endowment income. Residence hall income and real
estate income were reported as $7.6 million and $4.8 million, respectively.
The Foundation also reported six classes of expenses totaling $124.2 million in its
FY 2015 audited financial statements: contributions to various University
departments, University of Louisville Real Estate Foundation (ULREF) and others;
payments to or on behalf of the University; interest expense; residence hall
operations; real estate operations; and general and administrative expenses.
Contributions to various University departments, ULREF and others was the largest
class of expenses at $73.9 million. Payments to or on behalf of the University
totaled $24.7 million for the fiscal year 2015. Real estate operations made up $12.8
million of the total expenses. Interest expense, residence hall operations, and
general and administrative expenses were $5.2 million, $5.4 million, and $2.2
million respectively.
Endowment

The University endowment managed by the Foundation had an approximate value
of $662 million, according to Foundation personnel, as of June 30, 2016. As of
mid-September 2016, there were 117 individual investments that make up the
endowment. In 1995, the ULF Board approved an investment change from a
traditional 60% stocks and 40% bonds mix to a more diversified investment
strategy. The Foundation claims this diversified portfolio of investments has led to
their endowment pool of investments exceeding the returns of its peers and the S&P
500. Endowed funds consist of donor-restricted gifts, both permanently and
temporarily restricted, and unrestricted gifts. The endowment is comprised of
donations from various philanthropic individuals and groups, state funds, and
unspent earnings. According to information provided by ULF personnel, the
endowment has grown from approximately $593 million as of June 30, 2009 to
$662 million as of June 30, 2016.

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Introduction and Background
Initially, APA auditors were not able to confirm these totals using the Foundation’s
audited financial statements. The annual market valuation of the endowment
provided by the Foundation on September 22, 2016 was greater than amounts
reported in the ULF audited financial statements for fiscal years 2010 through 2015.
The Foundation’s Chief Financial Officer (CFO) explained the Foundation does not
receive statements from its investment managers at the same time for all of the 117
individual investments making up the endowment. Therefore, some individual
investments included in the financial statement audit valuation are not current
market values. An explanation provided later by a liaison hired by the Foundation
to assist with the examination explained that all investment statements are
considered by the independent CPA conducting the Foundation annual financial
statement audit, but the amounts are not revised as the variances are considered
below the audit materiality levels. Although analysis of these discrepancies was
outside the scope of our governance review, we felt it important to bring these
inconsistencies to the attention of interested parties. See Table 1 for details.
Table 1: University Endowment Market Values
Fiscal Year ending June 30
Reported in Annual Audit* Reported by Foundation CFO
to APA*
2009
$572
$593
2010
644
673
2011
748
773
2012
703
721
2013
742
764
2014
824
845
2015
800**
801
2016
739
662
Source: Auditor of Public Accounts based on the Foundation’s audited financial statements for FY 2010 through FY 2016
and information provided by Foundation personnel. The audited financial statements for FY 2016 are pending
approval of the full ULF Board as of the date of this report.
*All amounts are shown in millions.
**The FY 2015 audited financial statements reflected an endowment market value of $792 million. This value was
restated in the FY 2016 audited financial statements as $800 million.

Endowment
Spending

The Foundation spending policy is to annually calculate a spend rate, which will be
used to determine the amount of endowment funds distributed to the University
each year. The spend rate is applied to the endowment funds balance to determine
the annual amount of earnings to be contributed by the Foundation to the
University. According to the Foundation’s FY 2015 spending policy, the spend
rate is based on a “three-year moving average of the market values of the
endowment using the three previous calendar year-ends as recorded each December
31st.” For FY 2012, FY 2013, and FY 2014, the ULF Board modified the spending
policy to offset adverse market performance in an effort to increase availability of
funds to the University from the endowment. This modification allowed the
Foundation to exclude the worst performing year from the calculation, and instead
apply the spend rate to an average of the two highest market values of the past three
years.

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Introduction and Background
The current annual spend rate is 7.48%. Of the spend rate, 5.5% is allocated for
use by individual University colleges and programs, and 1.5% is allocated for
fundraising efforts and used to pay the overhead incurred by the University
Advancement and Development Office. Additionally 0.48% is allocated to the
ULF President to support high-strategic initiatives and program enrichment,
including fundraising activities.
Table 2 presents the amounts reported by the Foundation as available for spending
and carryover funds available for use by the University between FY 2012 and FY
2016. The column labeled “Available for Spending” is the calculated 5.5% spend
rate of endowment earnings made available for spending by individual University
colleges and programs each year. The “Carryover Funds” column represents those
cumulative funds from prior years’ endowment allocations that were not spent in
those periods, and as such currently remain available for spending.
Table 2: Annual Amounts Available for University Spending and Annual Carryover
Fiscal Year
Available for Spending*
Carryover Funds*
2012
$35.7
$38.9
2013
33.5
49.3
2014
32.1
47.8
2015
38.5
37.5
2016
39.1
45.2
Source: Auditor of Public Accounts based on the Foundation’s 2015-2016 Operating Budget.
*All amounts are shown in millions.

Foundation
Affiliates

The Foundation has grown substantially since its creation in 1970. According to
the audited financial statements for FY 2015, ULF has consolidated current total
liabilities and net assets valued at approximately $1.05 billion. The Foundation has
diversified into real estate with the utilization of tax increment financing (TIF),
discussed in more detail below. According to its FY 2015 audited financial
statements, the Foundation has 14 affiliates to assist with the implementation and
management of such growth, including:
•
•
•
•
•
•
•
•

ULH, Inc. established April 2001
University Holdings, Inc. (UHI) established September 2007
University of Louisville Development Corporation, LLC (ULDC)
established September 2007
Nucleus: Kentucky’s Life Sciences and Innovation Center, LLC established
February 2008
MetaCyte Business Lab, LLC established June 2002
MetaCyte Equity Holdings, LLC established February 2006
AAF-Louisville, LLC established February 2008
KYT-Louisville, LLC established February 2008

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Introduction and Background
•
•
•
•
•
•

Phoenix Place-Louisville, LLC (PPL) established April 2009
Louisville Medical Center Development Corporation (LMCDC)
established October 2008
Minerva-Louisville, LLC established September 2011
The Nucleus Real Properties, Inc. (TNRP) established July 2013
CCG, LLC established December 2013
DCPA, LLC established May 2014

According to the Foundation’s FY 2016 audited financial statements, certain
entities listed above “were contributed to the University of Louisville Real Estate
Foundation, Inc. (ULREF) during the year ended June 30, 2016 by assignment of
membership interest.” ULREF is reported in the Foundation's FY 2016 audited
financial statement notes as “an unconsolidated affiliate of the University of
Louisville.”
Tax Increment
Financing

A tax increment financing (TIF) participation program is an economic incentive
using the incremental increase in local and state tax revenues generated within a
defined development district to finance certain costs of a qualified project. The
Commonwealth of Kentucky implemented the TIF program by way of KRS
Chapter 154.30. The TIF program is designed to assist with the economic
development of identified areas of need. The TIF plans require investments of
capital and improvements to a defined area to benefit that area economically.
Future tax gains from the defined area resulting from the improvements are then
earmarked and passed on to the investing entity of the TIF.
As noted above, the Foundation utilized TIFs to diversify into real estate
investments. The purpose of the TIFs identified and activated by the Foundation is
to encourage the University to become an economic driver for the city, state, and
region by developing property within the defined areas of each TIF. Prior to
drawing, or activating funds, there must be a certain amount of capital
improvements within the defined TIF district. The Foundation currently has three
Signature TIFs, as defined in KRS 154.30-050: Belknap Engineering and Applied
Sciences Park TIF, Louisville Health and Life Sciences TIF, and ShelbyHurst
Research and Office Park TIF.
Belknap Engineering and Applied Sciences Park Signature TIF, valued at $1.2
billion and covering 980 acres, was approved in 2012. Capital improvements of
$200 million activated the TIF in 2014. According to its 2015-2016 operating
budget, the Foundation will receive 80% of the incremental state and local tax
revenues generated over the 30 year term of the TIF.

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Introduction and Background
The Louisville Health and Life Sciences Signature TIF, approved in 2007 and
located in downtown Louisville, is valued at $2.5 billion and covers 210 acres. This
TIF district has a 30 year term and includes the Health Sciences Campus and the
J.D. Nichols Campus for Innovation & Entrepreneurship as well as the surrounding
blocks in the downtown area. Capital improvements of $150 million activated the
TIF in 2012. Per its 2015-2016 operating budget, the Foundation has received over
$14 million from this TIF alone.
ShelbyHurst Research and Office Park Signature TIF was granted final approval in
2014 for a 253 acre area valued at $450 million. The TIF required a $200 million
capital investment in improvements to activate, which has not yet been met.
According to its 2015-2016 operating budget, the Foundation will receive 80% of
the incremental city and state tax revenues generated over the 30 year term of the
TIF.

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Findings and Recommendations
Finding 1:
Requests for
documentation
and other
information were
met with
continued delays
and unclear or
inconsistent
responses.

Throughout most of the examination process, requests for documentation and other
information were met with continued delays and unclear or inconsistent responses.
The delays and inconsistencies in information created redundancies in requests,
postponed examination procedures, and provided auditors little assurance as to the
completeness and accuracy of the information provided. The difficulties
encountered in obtaining consistent, complete, and accurate information timely
during the examination exemplify the need for improved accountability and
transparency within the Foundation and University operations. Additionally, during
the examination period, these concerns regarding the lack of appropriate
transparency were further illustrated by multiple recent decisions of the Office of
the Kentucky Attorney General (OAG) indicating the Foundation did not comply
with open records laws.
Difficulties in obtaining documentation began in the earliest stages of the
examination. Discussions early this year with the former President, former
President’s Chief of Staff, and Foundation CFO emphasized the importance of
submitting complete, accurate, and timely information to keep the examination
timeframe and cost reasonable. Auditors also offered time saving guidance, such
as providing auditors read-only access to computer systems for viewing
information rather than processing reports or printing hard copies. However, these
recommendations were met with explanations that the University is not as
electronically advanced in its accounting and record keeping as might be expected
for an entity of its size, and that much of the information being requested was only
available via hard copy and financial reports would need to be generated from
multiple sources and compiled manually to make them meaningful.
Audit staff communicated these concerns, both verbally and in writing. In a letter
dated May 3, 2016, the State Auditor notified the former UofL and ULF President
as follows:
While we appreciate the professionalism shown in the meetings we
have held with staff, our requests for documentation and other
information have not been filled as quickly as we hoped. The majority
of the documentation requested since our February meeting is still
outstanding. Also, in many instances, information and documentation
provided has been unclear or inconsistent, which creates the need to
perform more follow-up, verification, and clarification procedures than
is typically required. As a result, the early June report release date is
no longer feasible.
The letter further advised:
Once the flow of information becomes more consistent and
outstanding requests for documentation and information are filled,
we will have sufficient information to revise our estimated
timeframe.

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Findings and Recommendations
An official revised estimated timeframe was not provided to the University or the
Foundation as the flow of information did not become consistent until after a new
interim UofL President and new ULF Board Chair were named, at which time
action was taken to address the majority of outstanding requests.
Discrepancies in
Expenditure and
Vendor Payment
Reports

While not a financial statement audit, some information requested for the
governance examination included financial data to allow auditors to gain an
understanding of the types of financial activities of the Foundation and to identify
whether certain activity was properly reported to the Foundation or UofL Board.
However, obtaining complete and consistent reporting of certain Foundation
financial activity proved overly difficult. Also, on more than one occasion auditors
were questioned by current and former members of the Foundation administration
as to the relevancy of Foundation expenditure information in the performance of a
governance examination.
Initial vendor summary payment reports provided by the University and Foundation
appeared to contain duplicate data for the same fiscal year. In following up with
the ULF Director of Budget and Accounting, she stated that the Foundation report
was “a subset of the other [University] report, not separate.” However, auditors
noted the Foundation report included vendors that were not included in the
University report referenced, and also found instances where the Foundation report
reflected a larger total payment amount for some vendors than the University
reflected for the same time period, indicating that the Foundation report could not
be a subset of the University report. Auditors also questioned the absence of a
known vendor from both reports. In response to these discrepancies, the
Foundation CFO provided a second set of vendor summary reports. The second set
of reports contained additional discrepancies, including larger payment amounts to
certain vendors than had been reported on either of the previous reports. In light of
continued report discrepancies, auditors requested a full report of all fiscal year
2015 expenditures. Ultimately the Foundation was unable to provide this
information, attributing the problem to the complexity of its accounting functions
during that period of time.
According to the Foundation CFO and Financial Affairs staff, accounting for the
Foundation and its affiliate entities has undergone a significant transition over the
last three fiscal years. The accounting function for many of the affiliate
organizations, such as AAF, MetaCyte, Nucleus, and UHI, had been outsourced to
local CPA firms until fiscal years 2014 and 2015 when they were transitioned inhouse. Prior to July 1, 2015, the Foundation itself utilized UofL’s accounting
system, delineating its activity through certain fund and program codes. In
addition, some affiliates were managed by third-parties and any related financial
data would have been maintained in a separate system. However, even with these
obstacles, it remained unclear why the Foundation CFO was unable to provide a
complete detail of expenditures, or why as the CFO, he would not have readily
available access to such information himself. This concern in and of itself raises
questions as to whether the Foundation CFO had sufficient information to properly
manage the financial operations of an organization of this size.

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Findings and Recommendations
When examining a sample of ULF vendor contracts and associated correspondence
and payments, auditors again questioned the completeness of documentation
provided by the Foundation. While most vendor payments in this request were
limited to payments made in FY 2015, the request included earlier years for
payments made to a former ULF Board Director, who became a consultant to the
Foundation following his resignation from that board in 2013. Foundation
personnel provided documentation associated with the vendor sample in increments
to auditors over a period of four months, requiring repetitive requests for complete
information.
Information found with the documentation raised additional questions as to the
completeness of the vendor records provided. On May 17, 2016, the Foundation
provided the APA with the first set of records relating to the vendor sample.
Contained within these records was a note which stated, in part: “[i]f any more info
to add on [former ULF Board Director], we have and need to add @ discretion.”
While most of the records provided at this point were invoices and payments to
various vendors, the Foundation had only provided a single contract and two letters
of correspondence with the former ULF Board Director detailing contract
deliverables. Even though all of the vendor’s payment records and supporting
documentation had been requested, this note and the lack of information provided
to that point led to concerns that the Foundation was being selective in the records
provided to the APA. Though eventually auditors were provided with payments to
the former ULF Board Director for services rendered, along with supporting
documentation including invoices, work summaries, and a second contract, for the
period December 2013 through June 30, 2014, it took repeated requests to obtain
the information. Due to the difficulties in obtaining this information, APA auditors
questioned whether the information was complete.
Lack of Detailed
Budget-to-Actual
Reports

Another concern was raised from the attempt to obtain complete and consistent
reporting of certain Foundation financial activity. In an attempt to understand basic
Foundation financial activity, auditors requested detailed budget-to-actual reports
from the Foundation. Auditors requested this information assuming that an
organization the type and size of the Foundation would have this information
readily available. However, the file provided by the Foundation to meet this request
took weeks to create and did not provide budget-to-actual analysis as is typically
presented by such a report. Rather, the file provided by the Foundation contained
four separate spreadsheets for each of the three fiscal years of the examination
period and did not agree to other reports provided by the Foundation.

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Findings and Recommendations
The Foundation CFO first provided a detailed budget-to-actual report for the
conjoined accounting systems of the University and Foundation and explained the
majority of the Foundation budget is expended by University academic units. The
expenditures of those budgeted funds are tracked by employees at the University,
not the Foundation. For that reason, the spreadsheets were compiled by Foundation
and University personnel specifically to fulfill our request and did not already exist.
Despite a conjoined accounting system, auditors anticipated the Foundation would
have its own operational budget and the amount provided to the University would
be a line item in the Foundation’s budget. It is concerning that the Foundation did
not appear to have a working budget-to-actual analysis for use by its Board and
administration.
While attempting to confirm the accuracy and completeness of expenditure reports,
auditors found expenditures in the Foundation’s vendor report that were not
included in the Foundation’s detailed budget-to-actual report. The detailed budgetto-actual report contained expenditure data coded to a series of specific program
codes; however, the Foundation’s vendor report included expenditures coded to
program codes not included in the budget-to-actual report. Therefore, the budgetto-actual report was considered unreliable and useless for further analysis during
the examination.
Additional Requests
for Information

In addition to Foundation financial information, auditors encountered delays in
obtaining other records, including Attestation and Disclosure Forms (ADFs) for
select University employees. Auditors requested this information directly from the
former President’s Chief of Staff in March 2016, and had requested and discussed
previously with her under the administration of the previous State Auditor. The
Chief of Staff was the designated liaison for all audit requests at that point during
the examination. In May 2016, auditors contacted the UofL Associate Vice
President for Audit Services and Institutional Compliance for assistance in
gathering the information and received direct contact information for the University
personnel who maintain these records. Auditors were given access to the requested
sample of ADFs within a 24-hour period of making contact with these University
personnel.

Open Records
Violations

While conducting this examination, the Foundation was the subject of nine Open
Records Decisions (ORD) issued by the OAG from February 2016 through
November 2016. The Foundation was found to be in violation of some portion of
Kentucky’s open records law on eight occasions. The APA has statutory authority
other than open records law to access public records, but these ORDs reinforce our
concerns regarding accountability and transparency related to Foundation
operations. This is a significant operational area that needs improvement in order
for the Foundation to regain public trust that it is operating in the best interest of
the University.

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Findings and Recommendations
The information presented in this finding reflects only illustrative examples of
issues encountered during the examination and serves, in part, to provide insight as
to the timing of this examination. While delays and inconsistencies encountered
during this examination do not provide clear evidence of questionable activity at
the Foundation, such issues do raise red flags and appear to validate why concerns
have been expressed by others regarding the transparency of the Foundation and its
affiliates. It should be noted that the UofL and ULF Boards have recently taken
action, collectively, to engage a firm to conduct a forensic accounting review of the
Foundation.
Recommenda ti ons We recommend the ULF Board review Board policies, ensuring that accountability
and transparency of the organization is a clear expectation of both officers and staff.
As part of this process, we recommend the ULF Board review the APA
Recommendations for Public and Nonprofit Boards, which can be found on the
APA website, and consider those that may be applicable to the Foundation.
We recommend all ULF employees receive training on Board policies, Open
Records/Open Meetings laws, and professional ethics.
We further recommend the ULF administration review current operational
processes and ensure records are organized to meet the accountability and
transparency objectives of the ULF Board, including the implementation of a
budget-to-actual analysis for its operational costs.
Finally, we recommend the ULF Board consider creating an internal audit function
to report directly to the ULF Board or a committee of the Board. This internal audit
function can identify and communicate risks to the Board, providing it an
opportunity to be proactive in addressing concerns. In developing this function, the
ULF Board should consider utilizing the UofL Audit Services Department as a
resource for developing the new function.
Finding 2:
Administrative
operations of the
University and its
Foundation were
at times
indistinguishable
and led to
ineffective
governance.

The administrative operations of the University and its not-for-profit 501(c)(3)
fundraising foundation, ULF, were at times indistinguishable despite being legally
separate entities. The dual role of one individual acting as both the UofL and ULF
President and other comingled administrative operations, coupled with the growing
complexity of ULF operations and ambiguous lines of authority and responsibility,
created an enigma leading to confusion and questions of transparency. This
confusion and the concentration of authority led to ineffective governance practices
that resulted in management having too much influence and a lack of checks and
balances.
During the examination period, the administrative authority of the Foundation
rested primarily with three individuals: the former University and Foundation
President, the former President’s Chief of Staff, and the Foundation CFO. Until
recently, the former UofL President’s Chief of Staff and the Foundation CFO were
employed by UofL, but they had been appointed as ULF officers.

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Findings and Recommendations
The growth of the Foundation over the last several years was repeatedly
acknowledged throughout interviews with UofL and ULF board members. The UofL
Board Chair specifically noted that despite the growth of ULF, no structural changes
have been made to the governance of that organization since its creation in 1970,
calling into question whether the governance structure is appropriate for an
organization of its size. The former President’s Chief of Staff acknowledged the
tremendous growth of ULF in recent years, and indicated that some of the concerns
raised throughout the examination may be attributed to growing pains. This growth,
along with the increasing complexity of the Foundation’s activities, resulted in
historical operating practices of the Foundation that are no longer effective for
meeting the accountability and transparency objectives needed for proper
governance.
Dual Role of UofL
and ULF President

The dual administration of UofL and ULF has reportedly existed for years, predating
the service of the now former UofL and ULF President. As the president of both
organizations, the former President served as the chief administrative officer of each
entity, managing the day-to-day operations of these legally separate entities. This
dual role created inherent conflicts by concentrating a significant amount of authority
in one individual. In these roles, the President not only had the responsibility of
managing the University, but also influenced the percentage of endowment earnings
provided to the University by ULF, including endowment funds budgeted to the
President’s office. Given that the University President is evaluated at least in part on
meeting annual performance goals, this influence over endowment spending was too
broad for proper oversight. This influence is especially concerning given the
circumstances described below.
In addition to serving as ULF President, the former UofL President also served as a
voting member on the ULF Board that hired him under a separate employment
contract. This position also afforded him undue influence in the selection of the
majority of the ULF Board who would later participate in conducting his annual
performance evaluation as the ULF President. Ineffective communications with the
UofL and ULF Boards were compounded by weak board practices at ULF, which
often led to the former President operating without appropriate compensating checks
and balances.
In accordance with ULF bylaws, the UofL president serves as an ex-officio member
of the ULF Board with voting rights and as a member of the ULF Executive
Committee. The ULF Executive Committee has the power of the full board, except
for specific actions stipulated in the bylaws. In addition, the Executive Committee
has been designated by the ULF Board as the administrator of the deferred
compensation plan established to provide retention incentives for key Foundation and
University administrators. As administrator of the deferred compensation plan, the
Executive Committee has the authority to authorize plan participation. After a
participant was approved by the Executive Committee to participate in the plan, the
former President then had the authority to award amounts he deemed appropriate to
key personnel, other than himself.

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Findings and Recommendations
In addition to serving on the ULF Executive Committee, the ULF bylaws provide for
the UofL president to serve as the Chairman of the ULF Nominating Committee.
Serving in this capacity, the UofL president has significant input in the selection of
members to the ULF Board, which employs and evaluates the Foundation president
and also calculates and approves the University endowment spending. Also,
although the ULF bylaws do not require the UofL president to serve as the
Foundation president, there is nothing in the governing documents of either
organization to prevent this from occurring.
It was noted during interviews with board members and administration staff that
having one individual serving in both presidential roles assisted with aligning the
trajectory and vision of the University with the actions of the Foundation, as well as
streamlining processes. Administrative staff noted difficulties in implementing
projects and securing partners at the University, explaining that projects see a faster
turnaround when they are managed through the Foundation.
The overarching authority of the former President within both organizations appears
to have led to poor management and governing practices, such as bypassing the UofL
and ULF Boards, thereby limiting the governing Boards’ involvement in and
knowledge of certain administration actions. While the former President and others
in his administration had authority to initiate and approve many actions
independently for both the University and the Foundation, the method followed in
implementing some of these actions and the explanations for why these actions were
not explicitly reported or shared with others in the governing structure of the
organizations is questionable. These questionable actions have led to other findings
within this report, including: loans of millions in University budgeted funds to the
Foundation and an affiliate without notification to, or approval from, the UofL Board
or UofL Senior Vice President (SVP) for Finance and Administration (see Finding
4), and excluding the SVP for Finance and Administration in discussions of
significant cash management strategies or other financial matters involving
University and Foundation funds even though his contract and the ULF bylaws
indicate he should be involved in these matters (see Finding 7).
In the benchmarking presented in Chapter 3, none of the respondents identified a
governing structure between their university and foundation that involved the same
individual acting as president of both entities. However, there were instances noted
in which university presidents acted as foundation board members and participated
on foundation committees. Further, a representative of the Association of Governing
Boards (AGB) confirmed that “it is very unusual for an institution president to also
serve as chief executive of an institutionally related foundation.” (See Observation
4.)

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Findings and Recommendations
UofL and ULF Staff
and Resource
Sharing

While the role of the Foundation is to support the initiatives of the University through
availing additional financial resources to it, it is imperative that UofL and ULF have
clearly defined roles and responsibilities and a mutual understanding of how the two
organizations share resources to accomplish their mission. While bylaws for UofL
and ULF lay out the responsibility of the two Boards and an agency agreement from
1996 was identified, these resources were not effective in providing sufficient clarity
to the governing structure. Further, the agency agreement had not been presented to
the UofL and ULF Boards since its initiation in 1996, impairing their ability to
properly monitor compliance with the agreements. To be effective, such an
agreement needs to be shared openly and utilized in policy considerations.
In addition to the former President, his Chief of Staff, and the Foundation CFO, eight
other UofL employees were assigned to ULF full time, serving in the ULF Financial
Affairs Office. Recent administrative actions were taken to move select University
personnel to the employment of ULF. This occurred through resignations and
retirements and involved the Foundation CFO, members of the ULF Financial Affairs
staff, and at least one previous staff member of the UofL President’s Office.
According to the Foundation CFO, the transfer of University personnel to the
Foundation would have no impact on the University because the positions were
already funded by the Foundation, and therefore, no information about this transfer
would be communicated to the UofL Board. He indicated the only thing that would
need to be reported to the UofL Board would be the retirement or resignation of a
UofL Board appointed administrator. He also explained that because most of the
transitioned staff were not board appointed administrators, their retirements and
resignations were not required to be reported to the UofL Board. However, the
resignation of the Foundation CFO from the University in July 2016, as well as, the
subsequent retirement of the former President’s Chief of Staff in August 2016 would
be expected to be formally reported through a personnel report to the UofL Board.
After a request was made in mid-September 2016 for documentation of this reporting
to the UofL Board, it was discovered that the resignation of the Foundation CFO and
retirement of the former President’s Chief of Staff had not yet been reported.
According to the UofL Board Liaison, the exclusion of these personnel actions from
this report was an error and the reporting would be made in the September Personnel
Report to the Board, which was subsequently presented through email to members
of the UofL Board on October 18, 2016.
On August 12, 2016, the Foundation provided the APA with an agency agreement
between UofL and ULF dated September 30, 1996, which outlines the basic
agreement between the two legally separate entities to allow the Foundation to utilize
UofL staff and designated UofL to serve as the Foundation paymaster. Under this
agreement, the Foundation would be able to utilize UofL personnel and reimburse
UofL for the personnel costs. As paymaster, the University would then administer
the payroll function on behalf of the Foundation, including the assembly of all payroll
records, withholding the appropriate taxes, distributing the payroll checks, and
issuing W2 tax statements each year.

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Prior to August 12, 2016, auditors were unaware that the aforementioned formal
written agency agreement between the University and Foundation existed, despite
previous inquiries with UofL and ULF management as early as Fall 2015 requesting
governing documents. When auditors presented the agreement to the UofL Board
Chair and the now former ULF Board Chair, both indicated they had not seen the
document before, although the former ULF Board Chair recalled hearing reference
to an agency agreement.
The former Chief of Staff stated that the document was an administrative document
and as such, was not something brought back before the boards. She noted that the
document was routinely reviewed by the Foundation CFO and Foundation legal
counsel. While this document has administrative impact, auditors noted that it was
signed by the chairs of both boards when it was initiated. Also, being that it is an
agreement outlining the terms of how the organizations will share human resources,
it is relevant information for the governing boards, which are ultimately responsible
for oversight and policy making. In light of recent controversies and concerns openly
expressed by UofL Trustees, it is unclear why the administration would not openly
share this document with the Board, at least during an orientation program. See
Finding 3 relating to board dysfunction and Finding 8 relating to ULF Board
orientation.
Furthermore, as this is a binding agreement in which the University is sharing its
resources with the Foundation in exchange for reimbursement of personnel costs, it
would be appropriate to involve the UofL SVP for Finance and Administration who
serves as the University’s chief operating officer and chief financial officer in the
periodic review of this agreement to ensure the terms are appropriate and in the best
interest of the University, especially since the document has remained unchanged
since its initiation in 1996. However, auditors noted that the UofL SVP was also not
aware of this agreement, and had little to no formal authority or involvement in
activities between the University and Foundation.
Through research, auditors identified a resource available through the Association of
Governing Boards of Universities and Colleges (AGB), a national organization
assisting universities and colleges, which provides recommended principles and
practices to assist institutions and their foundations. In 2005, AGB and the Council
for Advancement and Support of Education (CASE) developed an illustrative
agreement that could be considered by institutions. According to the Illustrative
Memorandum of Understanding issued by the AGB, “[i]t should be emphasized that
there is no definitive best model for foundation-institution partnerships; the
illustrative MOU is presented as a starting point for a collaborative process of
assessment and strategic thinking about how the foundation and institution can mosteffectively work together.” In response to the benchmark survey performed by the

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Findings and Recommendations
APA, respondents from 15 different institutions indicated that the roles and
responsibilities of the institution’s university and its foundation were defined, in part,
by a written contract or agreement, such as a memorandum of understanding (MOU).
Although the 1996 agreement between UofL and ULF discussed above contains
some elements regarding resource sharing, a working MOU could be expanded to
address or clarify other operational policies and areas of responsibility between the
two entities.
Compensation and
Benefits Paid by
ULF

Concerns regarding the dual administration of the University and the Foundation and
the impact it had on the management of endowment funds were expressed by some
UofL and ULF Board members interviewed. Specific areas of concern included
compensation and benefits awarded to UofL personnel through the Foundation and
its affiliate organizations, and the level of control by the former President and his
staff. Interviews with University and Foundation administrators identified that the
UofL and ULF Boards had delegated authority to the former President to act on
behalf of the Boards on several matters, including negotiation of compensation and
benefits to administrators. As a result, compensation and benefits for University
administrators were handled directly by the President’s Office rather than through
the University Human Resources Department. Therefore, the compensation and
benefits for these administrators were not scrutinized in the same manner for
consistency with all other staff or to determine compliance with University policy.
Additionally, this process reduced oversight and created transparency concerns
among members of the UofL Board.
According to the interim UofL Executive Director of Human Resources (HR), her
office handles standard benefits awarded to UofL personnel, including University
administrators, faculty, and staff. However, her office is not involved in the
contracting or compensation of administrators, as that is handled by the Office of the
University President. Because of this practice, the interim Executive Director of HR
stated she was not aware which administrators serve under a contract and which do
not. Further, UofL Personnel Policy Per-1.05 indicates that the office of the interim
Executive Director of HR will control access to all UofL personnel files, but she
stated those files are maintained outside of her office in the Office of the University
President and Office of Faculty Affairs.
The interim Executive Director of HR noted that such decentralization of the HR
function was not what she was accustomed to, based on her years of previous higher
education work experience. Further, she indicated that the decentralization was a
concern to her and that “some of her efforts would be to gain more oversight and
consistency around how” they managed those things at UofL. She believed there
were certain things within the UofL HR function that were very transparent, such as
health benefits, but other things are less transparent.

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The interim Executive Director of HR was unaware of any policy allowing or
disallowing the award of certain benefits to UofL personnel, such as vehicle and
cellphone allowances. In practice, there was little consistency on the awarding of
these fringe benefits. For example, according to personnel records and former Chief
of Staff statements, the former Chief of Staff served as an at-will employee in the
UofL Office of the President, and was assigned to work at the University,
Foundation, and Foundation affiliates, until her retirement in August 2016 from the
University. Salary letters provided to the APA for the examination period, and dating
as far back as 2007, document the former UofL President routinely awarded his Chief
of Staff an annual vehicle allowance of $12,000.
In reviewing a list of all UofL personnel awarded a vehicle allowance in FY 2015,
auditors noted that the benefit had been awarded in varying amounts, ranging from
$6,000 a year to $12,000 a year, to 11 UofL administrators. The remaining personnel
listed on the report were all affiliated with the UofL athletic programs. Without a
policy in place, there are no established parameters or guidelines the University can
utilize to ensure fair and impartial award of such additional benefits. The interim
Executive Director of HR stated that she was not certain she would be aware of
additional benefits to UofL personnel if awarded by the other entities.
According to the former UofL Chief of Staff and the Foundation CFO, the dual
operating structure of the two organizations was intended to provide for efficiencies
in administrative overhead costs. However, the significant compensation and
benefits awarded to UofL administrators for their roles in the dual governance, as
well as the outsourcing of some Foundation accounting functions, call into question
whether those efficiencies existed. Furthermore, while the dual administration of the
University and Foundation can allow for more effective lines of communication and
ensure the two entities operate in “lock-step” as suggested by some, the relationship
can also lead to undesired consequences as demonstrated throughout this report.
Voluntary
Separation
Incentive Program
payments with ULF
funds

The University used Foundation funds to make payments of over $2 million to
employees for a voluntary separation incentive program (VSIP). On March 7, 2013,
the UofL Board approved the implementation of a VSIP and “authorized the
President to make executive decisions needed to fully implement this program.” The
program offered incentive pay, equal to 12 months of annual base salary for faculty
and six months of annual base salary for administrators and staff, to eligible
University personnel in exchange for their voluntary retirement. The primary
objective of the program was to create cost savings for the University. According to
the University, 285 faculty and staff participated in the incentive program with
payouts totaling $16,848,026 as of March 2016.

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Of the total VSIP payouts, $2,177,923 was paid with Foundation funds between
November 2013 and March 2016. These payments were part of a University funding
strategy to use Foundation funds to make a portion of the incentive payments to nontenured University staff with the intent that the University would repay these funds
to the Foundation at a future time. This plan was developed without the UofL
Board’s awareness that it would involve a repayment of funds to the Foundation.
Even though the UofL Board gave the President broad authority to implement this
program, this authorization did not comply with the requirement that all University
indebtedness be approved by the UofL Board.
Additionally, it appears the use of Foundation funds was designed to circumvent
advice from University legal counsel. The UofL Associate Vice President (AVP) for
Budget and Planning indicated that they had done due diligence in planning the
incentive program, noting a member of the UofL legal department had advised that
while you can use general funds to buy out the tenure for faculty, certain restrictions
exist on the use of general fund monies toward paying incentives for staff. Though
UofL personnel understood University general funds could not be used to fund the
portion of this incentive, the AVP for Budget and Planning notified the APA in the
spring of 2016 of the intent to repay the Foundation for the funds it had paid to
University employees.
More than two years after VSIP payments began, the UofL AVP for Budget and
Planning indicated that the University was still planning to repay the Foundation in
full and that she and the Foundation CFO were “working to set up an MOU on
repayment terms.” In June 2016, auditors requested a status update on this action
and were advised on August 1, 2016 by the CPA hired to act as liaison between ULF
and the APA during the examination (ULF liaison), that Foundation funds used for
the VSIP would not be repaid by the University.
The ULF liaison understood consideration had been given to repaying the funds to
the Foundation, but it was determined that doing so would be inappropriate as it
“could be seen as running afoul of the rule that University funds cannot be used for
voluntary separation payments to administrative personnel.” When asked if this
decision was reached after discussing the matter further with UofL General Counsel,
the ULF liaison said he was advised by the Foundation CFO that the decision came
after he and AVP for Budget and Planning spoke with the interim UofL President
and that the University General Counsel was not consulted “as this was just a funding
issue that had no legal ramifications.” However, this characterization is not accurate
as this funding situation certainly raises potential legal ramifications. The decision
not to repay ULF for these funds was not made at the inception of the program, but
almost three years after incentive payments to University staff began. Legal
questions related to the VSIP and the intended repayment are beyond the scope of
our governance examination, and therefore, we do not offer an opinion on these legal
matters.

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Findings and Recommendations
Furthermore, it should be noted that in the benchmark survey performed by the APA,
participants having a separate 501(c)(3) not-for-profit organization managing their
university endowments were asked whether their university is permitted to transfer
funds to its foundation(s). The response from survey participants indicated that the
majority, 71%, were not permitted to transfer funds to their foundations (see Chapter
3, Observation 14).
Given the role of the Foundation to support the University, the action to repay or
transfer funds back from the University to its Foundation seems counterintuitive, and
as such, it would appear consideration of such activity would be seen as something
outside the course of normal business activity and something that could have legal
ramifications. This situation highlights the additional risks of financial decisions
being made without appropriate board notification and approval due to the dual
management of the University and Foundation.
Recommenda ti ons

We recommend the UofL and ULF Boards discuss together, through designated
committees of each board, the need and potential benefits and disadvantages of
having the president of the UofL serve as the president of the Foundation. If the
decision is made to continue this joint relationship, we recommend the UofL and
ULF Boards seek consultation services from an independent expert to establish the
appropriate parameters through which this role should operate to ensure the structure
allows the president to operate in an effective, efficient manner, but with appropriate
checks and balances.
We recommend the UofL and ULF Boards consider developing a MOU to establish
an effective set of operational and governing policies. The MOU should be the result
of a collaborative process between the two boards and should include a review of
recommended principles and practices, such as those recommended by AGB and
CASE.
We recommend the UofL administration review its human resource processes and
management structure to determine whether they are appropriate for its organization
and whether they provide fair and consistent treatment of UofL personnel. After the
review is complete, we recommend the administration update its personnel policies
to be consistent with the approved changes. As part of this policy review, we
recommend the UofL administration develop administrative policies to establish
guidance and parameters by which additional benefits, such as vehicle and cellphone
allowances, may be awarded. This policy should be formalized in writing and
approved consistent with UofL policy.
We recommend the University administration involve its General Counsel when
considering matters that will result in any legal agreements or arrangements
transferring funds from the University to the Foundation, and in any matters that
could appear to be noncompliant with existing agreements, regulations, or laws.

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Findings and Recommendations
We further recommend the UofL Board, or a committee of its body, consider creating
a policy to address the University’s ability to transfer funds to the Foundation. We
recommend any consideration of such a policy be discussed with the appropriate
University administrators, including the University’s General Counsel. If a policy is
created, we recommend the policy be formalized in writing, approved by the full
board, and distributed to all appropriate University personnel.
Finding 3:
Conflict among
members of the
UofL Board and
the administration
created an
environment of
distrust resulting
in a dysfunctional
governing climate
impacting both the
University and the
Foundation.

Conflict among members of the UofL Board and the administration created an
environment of distrust resulting in a dysfunctional governing climate. UofL
Trustees and ULF Directors consistently described a damaged and divisive working
relationship among members of the UofL Board and the administration of the
University and the Foundation. This division and constant public attention to the
situation at the University and Foundation reportedly discouraged some Trustees and
administrators from discussing necessary board and University business in UofL
Board meetings. Therefore, the climate not only created disagreements and tension,
but also led to withholding information at Board meetings in attempts to avoid further
problems. Although this justification may be understandable given the climate, the
lack of transparency and reporting of valid business-related information draws into
question whether UofL Trustees were able to perform their fiduciary duties.
All Trustees interviewed acknowledged the UofL Board was divided. The former
ULF Board Chair, who serves as a trustee stated the UofL Board was “the most
dysfunctional board” he has served on, noting “you can’t glue this Board back
together.” Although opinions varied as to who or what was responsible, there was
no disagreement on the existence of division and discord or the fact that this situation
made it difficult for the UofL Board to function effectively.
In interviews with various UofL Trustees, it was noted some requests for specific
information from the University and ULF were not fulfilled, adding to the feelings
of mistrust. For example, the UofL Board Chair, who also serves as a ULF Director,
stated he and others had requested from the administration a list of UofL employees
who get additional compensation from the Foundation, as he still did not know who
was actually employed by the Foundation despite serving on both boards. As of
March 1, 2016, the date of his interview, the UofL Board Chair noted he had never
received that list. Also, the UofL Board Treasurer stated, prior to the consultant’s
compensation report detailing the former President’s compensation issued in July
2015, he had requested a one to two page summary detailing the complete
compensation received by the former UofL and ULF President. The UofL Board
Treasurer noted he had been told the matter was complicated, then later was told by
both administration staff and the former ULF Board Chair that he could go out and
obtain this information on his own. He indicated that he often received this kind of
response to his requests for information. Due to his position as Treasurer on the UofL
Board, it is unclear why the amount and composition of the President’s compensation
information would not be readily available for his review.

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Findings and Recommendations
The former ULF Board Chair indicated he did not know what, if anything, had been
provided in response to requests relating to the former President’s compensation
prior to the consultant’s compensation report. He stated, “If I had to take an educated
guess, it was probably a convoluted answer with the realization that it was going to
be used as a weapon,” speaking to the environment in which the UofL Board was
operating at the time.
In line with the former ULF Board Chair’s statement, the former UofL Board Finance
Chair also expressed hesitation by individuals, including himself, in presenting
information to the UofL Board. He noted while reports were being offered to the
UofL Board, those offering the reports would be attacked. He stated individuals were
“very tentative to even want to make a report for fear of any attacks.” The former
Finance Chair expressed he had UofL Board business to discuss with the UofL
Board; however, he felt reluctant to present topics due to the constant media pressure
related to UofL. The former Trustee went on to say “[meetings] became so
disruptive, it became impossible to conduct a Board meeting without contention…
reports are still made but you can tell they are no longer the open free flow of
conversation.”
Though all UofL Trustees and ULF Directors interviewed agreed there was conflict,
no one could clearly identify the cause. Some Trustees indicated the absence of
communication and unwillingness of the University and Foundation administration
to provide certain information was evidence of veiled and secret actions, supporting
the concern that a lack of transparency exists (see Finding 2). Other current and
former Trustees indicated the questions posed of the administration, by some current
and former Trustees, were accusatory statements and were a deliberate action to
disrupt the administration, rather than an effort to gain better understanding of the
workings of the institution, and as such, viewed the opposing faction as being disloyal
to the institution and its administration.
Although during the examination, auditors observed attempts by UofL Trustees to
address the poor governing climate, such as the creation of an Ad Hoc Governance
Committee, those actions often were ineffective and did not result in change to the
environment. Also, the frustrations and disagreements among Board members often
resulted in high profile media reports, which heightened tensions and contributed to
the distrust among the members. Overall, the climate was not conducive to proper
governance, leading to difficulties in making key decisions, including disagreements
among the UofL Board Finance Committee regarding the University’s budget due,
in part, to questions about the impact of a $38 million loan between the University
and Foundation. The details of this loan are further discussed in Finding 4.

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Findings and Recommendations
Recommenda ti ons

We recommend the UofL Board of Trustees operate in an atmosphere that welcomes
open and forthright discussion of issues the University faces. Discussions at Board
meetings should be civil and respectful even if there are disagreements. It is
incumbent upon all trustees, administrators, and staff attending board meetings to
establish an atmosphere that is conducive to open discussion. It is the trustees’
fiduciary duty to address the myriad of changing issues that confront the University.
Trustees should not be concerned about how topics of discussion will be received,
but rather ensure all relevant Board business is reported and discussed openly with a
focus on finding ways to address topics and issues in a professional manner that
furthers the mission and goals of the University.

Finding 4:
Endowment funds
totaling $67
million, budgeted
for use by the
University, were
loaned to the
Foundation and an
affiliate
organization
without prior
notification to, or
approval by, the
UofL Board.

The concentration of authority over the University and Foundation resulted in
transactions between the two entities occurring without the administration first going
through the appropriate processes to communicate and gain approval from the
governing Boards. Specifically, endowment funds totaling $67 million, budgeted for
use by the University, were loaned to the Foundation and an affiliate organization
without prior notification to, or approval by, the UofL Board. The funds were loaned
through two executed agreements implemented by members of the University and
Foundation administration. While the former President and some administrators
identified these loans as cash management strategies, this explanation ignores the fact
that the University and Foundation are legally separate entities, and the effect of this
transaction created a lending arrangement that bypassed the individuals with
fiduciary responsibilities to authorize such activity. Although the former President
had authority to enter into contracts on behalf of both the Foundation and the
University, unilaterally authorizing loans to ULF or its affiliate organizations,
without prior notification or approval from the UofL Board caused concern among
UofL Trustees, ULF Directors, and donors.
Each loan was executed through a memorandum of agreement (MOA). As discussed
in more detail below, the Foundation CFO repeatedly referred to the arrangements as
“receivable agreements” and disputed the characterization of the transactions as
loans. Auditors were unable to obtain a clear differentiation between the Foundation
CFO’s terminology and a basic cash lending arrangement. Auditors were also unable
to identify the terminology “receivable agreement” in professional literature.
Therefore, due to the pattern of these transactions as temporary cash borrowings
between legally separate entities, the transactions will be referred to as loans in this
examination other than when citing contrary statements by ULF administrators.

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Findings and Recommendations
The first MOA, in effect June 27, 2014, was a one-year agreement between the
University and the Foundation in the amount of $29 million. According to the
Foundation CFO, the agreement allowed the Foundation to effectively postpone
payment of funds budgeted for use by the University and use those funds instead for
real estate activities, in support of the University. In return, the University would
receive 1% interest from the Foundation, reportedly granting them more interest
income than they would otherwise earn. This MOA was signed by the UofL AVP
for Budget and Planning on behalf of the University, the Foundation CFO on behalf
of the Foundation, and the former President on behalf of both the University and the
Foundation. According to the University’s FY 2015 audited financial statements, the
loan was fully repaid as of June 30, 2015.
The second MOA, in effect July 1, 2015, was a three-year agreement between the
University and the ULREF, an affiliate organization of UofL in the amount of $38
million. The terms of this MOA again included a 1% interest return to the University.
Pursuant to the MOA, more than half of the funds loaned would be used by ULREF
to make a $22 million line of credit principal payment to the Foundation. The
Foundation CFO stated that the $22 million was used as bridge financing until the
Foundation could restructure a property loan for another affiliate, KYT – Louisville,
LLC, and that the $22 million was paid back to the University on June 22, 2016, after
new financing was in place. This second MOA was signed by the former President
in his capacity as the UofL President, and by the Foundation CFO in his capacity as
the ULREF Assistant Treasurer. The Foundation CFO reported an outstanding
balance of $9.8 million on this loan as of June 22, 2016.
In discussing the loan with auditors, the Foundation CFO, noted the University, at
any one-time, “has $100 million in unspent cash sitting out there,” referring to funds
maintained in the bank earning interest. Though described as a loan in a footnote to
the University’s audited financial statements for FY 2014 and FY 2015, the CFO
noted the Foundation’s financial statement audit did not refer to the transaction as a
loan and explained his position that the transaction was not a loan by noting that it
did not have a security instrument, an amortization schedule, or “any elements that
have to do with a loan.” The former UofL President’s Chief of Staff stated that the
terminology used in the footnote of the University’s audited financial statements
incorrectly characterized the transaction. However, the UofL SVP for Finance and
Administration, when interviewed, stated that the transaction was discussed by his
staff when preparing the financial statement footnotes, and it was a conscious
decision to describe the transaction as a loan. He did not know how anyone describes
the transaction any other way and noted no one had advised that the financial
statement footnote should be changed.

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The Foundation CFO and the former President both describe these transactions as
“cash management strategies.” The former President noted that the process followed
by the administration was similar to that followed by Kentucky State Government, a
process he was familiar with as former State Budget Director. However, the process
to which the former President was referring is an internal lending process between
funds of the same governmental entity; whereas in this situation the agreements
related to the University-budgeted funds are being loaned to a legally separate entity
and are not merely an internal transfer of funds. This is a prime example of how the
dual administration of the University and the Foundation blurred the lines of legal
separation between the two organizations, and at times essentially led to operating
decisions being made as if they were a single entity.
In a September 21, 2016 email, the Foundation CFO, referencing the $38 million
loan from July 1, 2015, stated “The $38M receivable agreement was a cash
management initiative to better utilize the internally managed short-term funds of the
University. It was structured in compliance with the Short-Term Investments
Guidelines policy in effect for the University at that time,” and, “[t]he University
guidelines do not require formal and/or recurring reporting to the Board of Trustees
on short-term investments which is why it has only ever been incorporated into the
University’s annual financial audit.” However, the Short-Term Investments
Guideline referenced by the Foundation CFO lists permissible investments which do
not appear to include loans such as those between the University and the Foundation
or its affiliates. Further, the policy in place at the time of the loans did in fact require
the UofL SVP for Finance to “report at least annually to the Board on the status of
invested short-term funds.” University personnel indicated the policy was intended
to require the UofL Board be advised of the status of invested short-term funds “when
requested,” but the policy language was not actually revised until January 14, 2016.
These loans to the Foundation and its affiliate were not reported directly to the UofL
Board. Rather, the majority of UofL Trustees who were interviewed acknowledged
they were not aware of the agreements until auditors inquired about the loans. The
former ULF Board Chair, who also served as Chair of both the UofL and ULF Board
at the time of the second MOA, stated that he had only recently been made aware of
the transactions after another UofL Board member discussed it with him following
an interview with APA auditors. The former Board Chair had since understood the
agreements were done in support of the University; however, he acknowledged there
should be criteria requiring certain transaction amounts to be reported to the Board.
The former ULF and UofL Board Chair was not aware of any requirement for loaned
funds to be presented to the boards and suggested that a threshold of $1 million may
be appropriate. When asked whether loans were reported to or approved by the UofL
Board, the Foundation CFO stated the agreements were reported to the UofL Board
and approved in conjunction with the University’s audited financial statements,
which contained a footnote describing the loan. By this statement, the Foundation
CFO indicated the UofL Board’s action to approve the annual audited financial report
constituted approval of the loans by the UofL Board, even though the footnote about
the loans was not specifically pointed out or discussed.

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Findings and Recommendations
While the practice of loaning University funds in this manner is concerning, further
troublesome is the lack of transparency even with the University’s financial
management administrators. As noted previously, the Foundation CFO mentioned
the University had an amount of unspent cash on hand at any given time, although
that analysis or the resulting decision to loan University funds to ULF did not appear
to involve the UofL SVP for Finance and Administration. The UofL SVP for Finance
and Administration, who began working at the University in this position in January
2015, recalled that he first became aware of the second MOA when he was asked to
transfer the funds from the University to the Foundation. Upon becoming aware of
the request for transfer, the SVP stated that he sought advice from University legal
counsel as to the legality of such a large transaction. He noted nothing was found in
State statute that would prevent the transaction, and the individuals who signed the
agreement were authorized to enter into agreements. He also noted that he had
questions about the terms of the agreement and how it was structured, but at that
point the agreement was already an executed document. He noted one of his concerns
was the payback terms of the agreement, asking if he could call the money back if
the University needed the cash for any reason. The Foundation CFO has stated that
these funds are callable at any time, meaning the funds would be made available to
the University, if needed. However, nothing in the terms of the MOA addresses this
issue or guarantees the Foundation will make the funds available to the University
upon request.
Though the ULF administration believes the terms of the agreements are beneficial
to both the University and the Foundation, the governance question is whether it was
appropriate for such transactions, particularly transactions of this size, to be loaned
between legally separate entities in a manner that would be more consistent with an
internal fund transfer of a single entity. Furthermore, while those involved in the
approval process had signatory authority to enter into contracts on behalf of each
entity, the manner in which these transactions were handled and the subsequent
description and explanations provided for these transactions by current and former
Foundation officers are concerning and lack appropriate transparency.
Additionally, it is unclear whether the University actually benefitted from the lending
arrangement, at least in the manner expressed by the ULF administration. Although
the terms of the two MOAs provided for 1% interest repayment on the borrowed
funds, the interest was paid by ULF and ULREF, the managing entity for the
University’s endowment and one of its affiliates. Therefore, although the interest
paid to the University could be seen as a short-term benefit, the University would
ultimately have had long-term access to those same funds used by ULF and ULREF
to pay the interest. In order for the University to gain additional benefit from this loan
arrangement, interest income would have needed to be derived from an investment
or financing arrangement with assets to which the University would not be otherwise
entitled.

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Findings and Recommendations
Because the University and Foundation administrations have operated in a conjoined
manner for years, the governance role of the UofL and ULF Boards is vitally
important and cannot be overlooked. While the role of each board is not to manage
daily operations of the University or Foundation, sufficient segregation and reporting
mechanisms need to be devised and implemented by these boards.
Recommenda ti ons

We recommend the University refrain from loaning its funds to the Foundation and
its affiliates.
We recommend the UofL Board consider revising its Short-Term Investment
Guidelines policy to again require annual reporting on the status of short-term
investment funds by the UofL SVP for Finance and Administration. We further
recommend the University administration ensure any discussion involving “cash
management strategies” and short-term investments be vetted by the SVP for Finance
and Administration.
We recommend the ULF Board and the UofL Board each establish a policy
establishing criteria for reporting financial activity to each board. The policy should
include criteria such as the type of activity, dollar threshold, and limitations. The
policy established by each board should be formally documented in writing, along
with details noting the purpose of the presentation, the frequency, the level of detail
to be reported to the board, and by whom reports should be presented.

Finding 5: Action
taken by the
former UofL and
ULF President to
appoint an acting
Chief
Administrative
Officer appears to
violate ULF
Bylaws.

Action taken by the former UofL and ULF President to appoint an acting Chief
Administrative Officer (CAO) for the Foundation, as well as the action to provide for
additional post-employment benefits associated with this appointment, appears to
violate ULF bylaws. Without formal action taken by the ULF Board, the former
UofL and ULF President appointed the former UofL Chief of Staff to the position of
acting CAO, a position the president is assigned in the ULF bylaws. Though it was
indicated that members of the ULF Board Executive Committee were aware of the
intended appointment, such action had not been formally introduced or acted upon
by the full ULF Board or any ULF committee. Taking such action without following
proper protocol is particularly questionable in light of ongoing public concerns
regarding the accountability, transparency, and governance of ULF.
In a letter dated July 22, 2016, to the former UofL Chief of Staff, the former UofL
and ULF President stated:
As the Executive Committee of the UofL Foundation, Inc.
(Foundation) discussed earlier this summer, I am writing to appoint
you as Acting Chief Administrative Officer (CAO) of the Foundation,
in addition to your continuing duties as Chief of Staff to the President.
As CAO, you will work for me as President and CEO of the
Foundation on developing real property owned by the Foundation to
maximize revenues to support the University’s mission.

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The letter continued by listing a number projects requiring the attention of the new
CAO and then stated:
This is an ambitious list of property development projects, but
knowing you, they have a good chance of completion by July 31,
2017. Your responsibilities as Chief of Staff to the President will
continue as long as I am President of the University and/or President
and CEO of the Foundation.
ULF bylaws prescribe a process to be followed for appointment of officers to the
ULF Board and corporation. Section 3.9(4) requires the ULF Nominating
Committee to select and recommend to the ULF Board, candidates for officers of the
Board and the corporation. Further, section 3.9(2) of the bylaws specifically
identifies that the Executive Committee “shall not have the authority of the Board in
reference to…electing, altering or removing any member of that Committee or any
Director or officer of the Corporation….” In light of the bylaws and the public
acknowledgement by ULF representatives that no formal board action was taken to
approve this appointment, it appears the action was taken unilaterally by the former
UofL and ULF President and as such may not be a valid appointment or binding
agreement.
Although the letter does not award the former UofL Chief of Staff with additional
salary to perform these CAO duties, the former President awarded the former Chief
of Staff six months of administrative leave at her current salary plus her deferred
compensation if she leaves ULF involuntarily for reason other than for cause. The
letter does not define “for cause,” and ULF bylaws require compensation paid to “any
person” due from ULF to be fixed by resolution of the ULF Board. While ULF
policy allows the resolution to be taken in the “form of a resolution addressing a
specific individual’s compensation or a resolution approving the Foundation’s
operating budget,” the agreement to extend payment of compensation to the former
UofL Chief of Staff in her capacity as acting CAO appears to further violate the intent
of ULF bylaws.
On July 21, 2016, the day before the appointment letter to the former UofL Chief of
Staff, the former UofL and ULF President had offered his resignation as UofL
President to the UofL Board. His resignation as UofL President was discussed,
accepted, and effective just a week later on July 27, 2016. As a result of this action,
questions were raised as to whether the former UofL President would remain as
president of ULF given that his Foundation contract provided “resignation from his
position as President of the University” would be a potential basis for termination as
ULF President. Given the significant events and concerns surrounding the University
and the Foundation at the time of this letter to the former UofL Chief of Staff, the
action by the former UofL and ULF President becomes even more suspect.

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In discussing the action with a former ULF Director who served as ULF Board Chair
in early 2016, the action to appoint the former UofL Chief of Staff to the position of
acting CAO was not formally taken by the ULF Executive Committee as there was
not a quorum of members when the matter was discussed around March 2016. He
indicated the action to appoint the former UofL Chief of Staff as CAO was to be
taken, in part, to address the 4.5% University budget cut enacted by the Kentucky
Governor in the spring of 2016 by moving the former UofL Chief of Staff’s salary
from the UofL President’s Office budget to being fully funded by the Foundation.
The former ULF Director stated removing the salary of the former UofL Chief of
Staff out of the Office of the UofL President was roughly in the 4% to 5% range,
indicating that it served a purpose by addressing this budgetary issue. In addition, he
explained that he and others felt the former UofL Chief of Staff had a valuable role
to play in ULF projects to be completed and the action would put her in the capacity
to complete these projects, whether the former UofL and ULF President was at ULF
or not. As a result, the former ULF Director stated the Foundation’s law firm was
directed to draft a contract in March 2016 that would be signed by the former ULF
Director, as the ULF Executive Committee Chair, and the former ULF President.
However, he stated the contract was delayed, and ultimately the July 22, 2016 letter
was prepared by the former President to cover matters until the contract could be
finalized.
While some ULF Directors may have been aware of the intent to appoint the former
UofL Chief of Staff as the acting CAO, the role of CAO is assigned by ULF bylaws
as part of the job description of the ULF President. Section 4.4 Duties of the
President states, in part:
He shall be the Chief Administrative Officer and General Manager of
the Corporation.
Thus, the former UofL and ULF President was not only circumventing the process
set forth in the bylaws for appointing an officer to the corporation and awarding
extended compensation to the former UofL Chief of Staff, he was also altering his
own official role at ULF in contravention of the bylaws. No action was taken by the
ULF Board to remove the CAO position from duties of the ULF president or to
reduce the former ULF President’s compensation to account for the reduction in his
official duties.
In discussing her role at UofL, ULF, and ULF-affiliated entities on August 23, 2016,
the former UofL Chief of Staff did not identify her role as acting Foundation CAO,
despite the action taken just a month prior. At the time of the interview, auditors
were only aware of her official role as UofL Chief of Staff to the President, UofL
Executive Director of Boards, and assistant Secretary to the ULF Board. The former
Chief of Staff explained while serving as an at-will University employee she had
been assigned by the former President to work with ULF affiliates. She noted during
the interview that due to the recent departure of the former UofL President and the
appointment by the UofL Board of an interim UofL President on July 27, 2016, she
currently served two bosses as Chief of Staff.

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Findings and Recommendations
The former UofL Chief of Staff also stated her compensation was divided between
UofL and ULF and then acknowledged she also received compensation through
UHI, an affiliate of ULF, as she serves as an officer at UHI and other Foundation
affiliated entities. The former Chief of Staff offered to auditors her salary letters
resulting from her annual evaluations noting that her role would be explained by
those letters.
While the salary letters did document a great deal of involvement by the former
UofL Chief of Staff at the University, ULF, and its affiliated entities, the
documentation did not clearly identify her appointment as ULF Chief of Staff or as
acting CAO. Auditors were advised of her appointment as the acting CAO on
September 30, 2016 when the July 22, 2016 letter was forwarded to the APA from
the former UofL Chief of Staff through the ULF Liaison. This document was
provided after the former UofL Chief of Staff was suspended with pay by the new
ULF Board Chair.
In discussing with the former ULF Board Chair the concern about whether the
former ULF President acted without authorization in his appointment of the former
Chief of Staff to the CAO position, he noted that the ULF Board reviews its bylaws
as needed, but he did not remember the last time the ULF bylaws were reviewed.
As discussed in Finding 8, the members of the ULF Board do not receive a formal
orientation, and information such as ULF bylaws are not distributed to or discussed
with new board members. This lack of information limits the opportunity of the
Board to examine and discuss potentially needed updates to the bylaws. It also
increases the likelihood that the Board will inadvertently ratify actions that are
contradictory to the bylaws and which could be viewed as a breach of their fiduciary
responsibility.
Recommenda ti ons

We recommend the ULF Board and President abide by the ULF bylaws in all matters,
including the appointment and compensation of ULF officers. The ULF Board
should ensure appropriate checks and balances are put into place to avoid situations
in which a single individual has the ability to take actions beyond those authorized.
As such, we recommend the ULF Board not knowingly approve, ratify, or allow its
president to take actions that are in contravention of the bylaws.
We recommend the ULF Board designate a committee of its body to annually review
the ULF bylaws to determine whether updates are needed. After the review is
performed, the committee responsible for performing the review should report the
review results to the full ULF Board. The report, along with any suggested revisions,
should be fully documented in the minutes of the ULF Board meeting in which the
presentation is made.

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Findings and Recommendations
Finding 6: The
ULF Board
compensated the
former UofL
President beyond
the amount
approved by the
UofL Board and
beyond the amount
provided under the
terms of his
contract.

The ULF Board compensated the former UofL President beyond the amount
approved by the UofL Board and beyond the amount provided under the terms of
his contract. During an annual review of the UofL President’s progress in meeting
board-established goals in July 2014, the University Compensation Committee
recommended a 2% merit increase to the UofL President’s salary. This same 2%
merit increase was communicated and recommended to the Foundation as part of its
compensation review of the President. Rather than accepting this recommendation
by the UofL Board, the ULF Board then approved a 4% merit increase for the
President in his ULF capacity and an additional 2% increase to the President in his
UofL capacity, all to be paid by Foundation funds.
It has been explained that the Foundation supplements the salary of the UofL
President because of limitations set in KRS 164.013(6), which limits the
compensation amount a president of a public university can receive from the
university to be less than the salary of the President of the Council on Postsecondary
Education. There is a concern that this limitation to the salary a Kentucky public
university can legally give its president also limits the talent the university can
attract. To work around this constraint and attract top talent to these positions,
university foundations routinely supplement the compensation for university
presidents, which was also supported in the benchmark survey performed by the
APA (see Benchmark Observation 6 found in Chapter 3 of this report).
The employment contract between the former President and the Foundation states:
If the Foundation’s Board of Directors determines that [the
President’s] performance of his services as President of the
Foundation has been satisfactory, [the President’s] base salary shall
be adjusted …, after receiving a recommendation from the Board of
Trustees, by the same percentage as his salary as the University’s
President is increased.
In the July 2, 2014 UofL Board Compensation Committee meeting, a motion was
approved to award a 2% merit increase to the UofL President’s salary. The minutes
of the meeting reflect that the Committee wanted to award a full 4% increase but
rather chose to award a 2% merit increase “out of respect for the President’s offer
not to receive it.”
In addition to awarding a 2% increase to the former UofL President’s salary, the
University Board recommended to the Foundation Board the former President
receive a bonus equal to 25% of his 2013-14 total salary for last year’s performance.
The Foundation Board unanimously approved the University Board
recommendation and further stated in a letter to the former UofL Board Chair on
July 18, 2014:

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[T]he Foundation Board approved a 4% merit increase for the
President on his Foundation salary…. In recognition of the
extraordinary achievement of the $1B capital campaign, the
Foundation Board directed an additional 2% merit increase, on [the
President’s] university salary, to be paid from Foundation funds as a
public statement of the high regard the Foundation Board has for
[his] outstanding performance. These actions … were unanimously
approved by the Board of Directors.
In discussing this matter with the former ULF Board Chair, who was serving only
on the UofL Board at the time of this award as UofL Board Chair, he stated he did
not think the ULF Board action had to go back to the UofL Board for approval.
Also, he indicated the ULF Board is not bound by the UofL Board’s salary
recommendation. However, the Foundation contract with the former ULF President
does specify the raise awarded to the ULF President is to be the same percentage as
approved by the UofL Board, and nothing in the contract authorized the ULF Board
to increase the President’s university salary beyond what the UofL Board
recommends.
In addition, UofL Board Bylaws require “all compensation for the President of the
University” to be considered and recommended to the full UofL Board. While the
Foundation action was communicated to the then UofL Board Chair in a letter from
the then ULF Board Chair, the matter was not brought back to the UofL
Compensation Committee for consideration. The AVP for Budget and Planning
confirmed that the former UofL and ULF President accepted and received this
additional 2% merit increase to his base University salary.
The two employment contracts for the former UofL and ULF President are from
two legally separate entities. By its action, the ULF Board appears to have
overstepped its authority and circumvented the governing authority of the UofL
Board by altering the base pay for the UofL President. Further the ULF Board action
is contrary to its own contract with the former Foundation President as the ULF
Board awarded a salary increase in excess of the amount provided under the terms
of the contract.
Recommenda ti ons

We recommend the ULF Board refrain from taking any actions that exceed its
authority, such as increasing the President’s university salary without an official
recommendation from the UofL Board. Further, any offer from the ULF Board to
assist beyond what was requested from the UofL Board should be considered and
acted upon by the UofL Board in compliance with University Bylaws.
We further recommend the ULF Board compensate its president in compliance with
established contract terms.

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Findings and Recommendations
Finding 7: The
University CFO
was not included
in meetings of the
ULF Board
Finance
Committee in
violation of its
bylaws and in
direct conflict with
his contract with
the Foundation.

The SVP for Finance and Administration, who also serves as the University CFO,
was not included in meetings of the ULF Board Finance Committee in violation of
its bylaws and in direct conflict with his contract with the Foundation. The
Foundation bylaws establish the University CFO as an ex officio member of the ULF
Board Finance Committee. In addition, his contract with the Foundation requires the
University CFO, during his term of employment at the University, to provide
assistance and support as indicated by the Foundation bylaws. The failure to involve
the University official primarily responsible for the financial affairs of the University
further impaired the accountability and transparency between the two entities.
The Foundation bylaws establish the Finance Committee membership as the
University President, the University CFO, one Trustee Director, and four At-Large
Directors. The Foundation bylaws further state the Finance Committee is to “have
general supervision over the finances of the [Foundation] and over its budget.”
Additionally, the Committee is to present a report including all gifts, trusts, and funds
of the Foundation to the full ULF Board at the annual meeting. This ex officio
requirement of his position was never discussed with the CFO or enforced by anyone
within the UofL or ULF administration. The University CFO has contracts with both
the University and the Foundation that provide him compensation and benefits. The
requirement for the University CFO to assist and support the Foundation is expressly
stated in the employment contract between the Foundation and the University CFO.
In the contract under the terms and duties, it states, “[he] will assist the Foundation’s
fundraising and property management activities and provide such support and
assistance consistent with the Foundation’s By-Laws, as may be appropriate to his
position with the University.”
The University CFO stated he was not informed of his status as an ex officio member
on the ULF Board Finance Committee. He was never notified of or included in the
Committee’s scheduled meetings and has never been requested to assist or support
any actions or functions of the Foundation. He further stated he had no association
in practice or responsibility with the Foundation or its affiliates and provides no role
operationally at the Foundation. He indicated he was aware of the terms of his
contract with the Foundation and stated he only fulfilled the fundraising portion of
his duties. He also stated “it became clear early on that I was not going to be
empowered with a role at the Foundation.” He was never provided a copy of the
Foundation bylaws; however, he took it upon himself within the last year to seek out
those bylaws.

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Findings and Recommendations
The former ULF Board Chair indicated he was unaware of the requirement stated in
the ULF bylaws of the University CFO’s inclusion on the Finance Committee of the
ULF Board. The former ULF Board Chair went on to say he did not know of the
contractual requirements between ULF and the University CFO found in the ULF
employment contract. When questioned who was responsible at ULF for ensuring
the required persons were properly notified of board or committee meetings, the
former ULF Board Chair believed it would be either the former ULF President or the
former UofL Chief of Staff, who also served as the ULF Board Assistant Secretary,
as “she usually was the logistical person in terms of making sure all the appropriate
people were there.”
Furthermore, the University CFO confirmed that his participation in University
financial activity involving transactions with the Foundation was limited; though, as
University CFO he is responsible for managing such activity on behalf of the
University. For example, as presented in Finding 4 of this report, the University CFO
was not informed nor aware of a $38 million loan of University funds to the
Foundation prior to execution of the loan. The loan was signed only by the former
UofL President and the Foundation CFO, who reported to the former UofL President
at the Foundation. The University CFO became aware of the loan only when he was
asked to transfer the money from the University to the Foundation. After he became
aware of the loan he questioned the terms and conditions of such an action. This lack
of inclusion of a key University official in committees and significant actions
concerning the University and the Foundation further hinders the transparency that
should exist between the two entities.
Recommenda ti ons

We recommend the ULF Board structure its committees in accordance with the
requirements established by its bylaws and that all ex officio members be properly
notified of meetings. All committee members should review and be aware of their
responsibilities. We further recommend the University CFO be appropriately
involved in financial decisions directly impacting the University.

Finding 8: ULF
Board members do
not receive an
orientation despite
the growing
complexity of
Foundation
operations.

ULF Board members do not receive an orientation despite the growing complexity
of Foundation operations. The Foundation consists of approximately 14 affiliates
with operations covering real estate holdings and developments, deferred
compensation management, and management of a multi-million dollar endowment,
yet there is no formal or defined board orientation provided for new Foundation
Board members.
The Foundation has grown substantially since its creation in 1970. The Foundation
is made up of approximately 14 affiliates, manages three tax increment financing
(TIF) areas within the University campuses, and manages an endowment with a
market value of nearly $685 million as of August 2016. The three TIFs are expected
to generate $4.15 billion in revenue to the University through the Foundation over
30 years. The Foundation recorded a net worth of $1.05 billion in the fiscal year
2015 audited financial statements.

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Findings and Recommendations
Despite its expansion and growth, along with its diversification of interests, the
Foundation Board members do not receive a formal orientation upon appointment to
the Board. One board member interviewed clearly recalled receiving an orientation
upon joining the board around 2005, but was not sure it was “formal.” Board
members interviewed who were appointed to the Foundation Board over the last few
years, including the former ULF Board Chair, the current ULF Board Chair, and the
current UofL Board Chair expressed they had not received an orientation upon initial
appointment to the Foundation. When asked whether basic governing documents,
such as ULF bylaws and articles of incorporation are given to new members, in the
absence of an orientation, the former Board Chair said he could not recall but noted
he had read the information on the web.
The former ULF Board Chair was questioned about actions taken by the former
President and the exclusion of specific UofL personnel from the ULF Board
proceedings (see Finding 7). The former ULF Board Chair admitted he was unaware
of some of the requirements concerning these actions found in the bylaws of ULF.
However, he informed the APA he had become more familiar with the ULF bylaws
in the last two or three months after administration upheaval at both UofL and ULF.
He was also unaware of the ULF contractual requirements for the University CFO to
be involved with the ULF Board. Such a lack of knowledge by ULF Board members
increases the risk that actions of the board could not only violate the bylaws but could
also result in a breach of fiduciary duty or other action with legal ramifications
affecting both UofL and ULF.
Additionally, a former ULF Director expressed while serving on the ULF Board he
personally had “zero comfort level” he knew what was going on at the Foundation.
Another ULF Director in discussing a specific meeting of the Foundation, described
it as “perfunctory” and brief. Both instances are strong indicators that a formal
orientation is needed to allow ULF directors to fulfill their fiduciary duties to the
organization.
The former ULF Board Chair suggested the reason for not having a formal orientation
may stem from the fact several ULF Board members have either been on the UofL
Board or interfaced with the Foundation. While this may be the case, every entity
is unique and even with prior dealings with the entity and a general understanding of
how governing boards function, it is a fiduciary duty of each board member to gain
an understanding of the scope of the business performed by the entity, a knowledge
of the duties of the governing board, and basic knowledge of the rules governing that
board and entity. Knowing and understanding the basic mission and vision of an
entity can also help facilitate the governing board’s ability to move the entity
forward.

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Findings and Recommendations
Recommenda ti ons

We recommend the ULF Board, in consultation with the Foundation administration,
develop and implement a formalized orientation for new and returning board
members. This orientation should provide members with a clear understanding of
the Foundation and its affiliated entities, their role, as well as their legal and fiduciary
responsibilities as board members. We recommend the ULF Board consider having
an independent party involved in the organization, structure, and content of the board
orientation, with involvement from the board attorney to ensure topics such as legal
agreements, conflicts of interests, open records and open meetings, and ethics are
sufficiently covered. We recommend the material for the orientation be written and
formally presented as a manual to assist the orientation process and serve as a useful
resource tool to board members. Because of the dynamic nature of the Foundation,
the orientation should be reviewed periodically to ensure all materials are current and
applicable. This orientation should be made mandatory for all new directors, and the
materials should be available to all directors.

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Benchmark Methodology and Results Analysis
Methodology
As part of the examination, the APA determined a benchmarking survey would assist in identifying best
practices concerning governance between universities and their independent fundraising entities. When
initiating this effort, the APA requested UofL and the Foundation provide a list of peer institutions, along with
contact information, for inclusion in this survey process. The Foundation CFO provided a list of institutions
with comparably-sized endowments, though contact information was not provided. Some institutions from this
listing were considered in the survey process, along with others identified as having possible commonalities to
UofL and others that could help provide a broader perspective for best practice considerations.
Using this information, an initial list of universities and colleges to survey was developed that included all
Atlantic Coast Conference (ACC) schools, all Kentucky public universities, a sample of Kentucky private
universities and colleges, post-secondary institutions identified by the Foundation during the examination, as
well as institutions identified through media reports as being similar to UofL based on certain factors including
enrollment, endowment size, and SAT scores.
This initial list identified 39 universities and colleges that were asked to participate in our benchmark survey.
After inquiries, the survey was then sent to 34 institutions using the contact information collected. Upon
completion of the survey, the APA received 36 separate responses. However, of those 36 responses: one was
incomplete and had no institution identified and seven were duplicate responses, leaving 28 unique responses
for analysis.
The institutions providing unique responses were:
• Berea College
• Clemson University
• Duke University
• Eastern Kentucky University
• Florida State University
• Georgia Institute of Technology
• Indiana University
• Louisiana State University
• Midway University
• Mississippi State University
• Morehead State University
• Murray State University
• North Carolina State University
• Northern Kentucky University
• Purdue University
• Transylvania University
• University of Arizona
• University of Arkansas – Fayetteville
• University of Cincinnati
• University of Kentucky
• University of Notre Dame
• University of Pittsburgh
• University of Virginia (responded twice, once for each of their main foundations)

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Benchmark Methodology and Results Analysis
•
•
•

Virginia Polytechnic Institute and State University
Wake Forest University
Western Kentucky University (responded twice, once for each of their main foundations)

Of the 28 unique responses, seven respondents indicated that their endowment was not managed by a separate
501(c)(3) not-for-profit corporation, but rather was managed internally by the institution. Two of those seven
respondents were public institutions. The University of Kentucky and the University of Pittsburgh were the
only public universities in the survey managing their own endowment. For comparison to UofL and ULF, any
respondent not having a separate 501(c)(3) managing its endowment was removed from further analysis. The
APA concluded institutions that internally manage their own endowment would not provide meaningful
comparative data to help evaluate the governance relationship between two legally separate entities such as
UofL and ULF. Therefore, responses from a total of 21 respondents were considered to be useable for
comparative analysis. Of the 21 respondents considered useable for comparative analysis, not all respondents
answered all survey questions. Because certain questions permitted multiple responses, the number of
responses represented in the analysis of individual questions may not always total 21.
Auditors utilized a combination of methodologies to obtain the comparative data for UofL. First, information
known to auditors from evidence or statements made during the examination were used to prepare a draft of
UofL’s survey responses. The draft responses were then provided to the Foundation CFO for input. In some
cases, the CFO presented responses that differed from those identified through other means. In those instances,
auditors worked with the Foundation CFO to try to identify and resolve discrepancies. When the discrepancies
between the CFO’s response and other evidence obtained during the examination could not be resolved, the
analysis addresses both the CFO’s response and conflicting information obtained during the examination. To
permit better comparison, responses for UofL are not co-mingled with responses from other colleges and
universities. The following are survey results and comparative analysis related to key questions posed in our
benchmark survey.

Survey Results and Comparative Analysis
Observation 1
Does a non-profit 501(c)(3) organization or foundation manage your university’s endowments and gifts?
Answer
Number of responses
Percentage of response
No
7
25%
Yes
21
75%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions.

As reflected in the table above, the majority of respondents to this survey question indicated their endowments
and gifts are managed by a non-profit 501(c)(3) organization. While there are advantages and disadvantages to
each method, UofL’s endowments and gifts are managed by a 501(c)(3) organization like the majority of the
survey respondents.

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Benchmark Methodology and Results Analysis
Observation 2
How is your foundation governed?
Answer
Number of responses
Foundation board is
completely independent from
university board (no like
members)
Foundation board is
independent from university
board but includes members
from the university board
Other*

Percentage of response

5

24%

13
3

62%
14%

Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.
*One respondent indicated their endowment is owned by the board of trustees and managed by the university investment office, the
board then appoints an investment committee to oversee the office and set policies for the management of the endowment. Another
respondent stated the foundation board is completely independent but includes the university president and two members of
faculty/staff. The third respondent indicated their foundations were governed by a combination of the two scenarios found in the table
above. However, their endowment is managed by a separate board and, somewhat similar to ULF, its board is independent from the
university but includes members from the university board.

Based on the survey responses above, it appears the ULF Board structure is similar to the majority of survey
respondents, as the ULF Board is considered independent from the UofL Board but includes members of the
UofL Board.
Observation 3
How are the foundation board members appointed?
Answer
Number of responses Percentage of response
Foundation board self-appoints its members
17
81%
University board appoints
1
5%
Other*
3
14%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.
* Two universities indicated their foundation board was appointed by a combination of university appointments and foundation board
self-appointments. One university stated their foundation board was made up of self-appointees, a university president appointee, and
a university board appointee.

According to its bylaws, the ULF Board is comprised of 15 members. Of these members, 10 are self-appointed
by the ULF Board and are referred to as at-large members, four are UofL Board members referred to as Trustee
Directors, and the last member per the by-laws is the UofL President, who serves as an ex-officio voting member
on the Board. It is not policy but rather practice at ULF for one of the UofL appointed Trustee Directors to
serve as Chair of the ULF Board.

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Benchmark Methodology and Results Analysis
Observation 4
What is the role of the university president in relation to the foundation? (Can have multiple responses.)
Answer
Number of
UofL’s
responses
response
The university president is a voting member of the
foundation’s board
6
1
The university president is a non-voting member of the
foundation’s board
8
The university president is the president / CEO / executive
director of the foundation
1
The university president serves on committees of the
foundation’s board
3
1
The university president chairs one or more committees of
the foundation’s board
1
Other*
5
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts, including UofL responses.
* One response stated that the president of the university appoints a representative to serve on the foundation board, two stated the
president was the chair of the foundation board, one response noted that the president was a voting member for one of 10 foundations
that serve the university, and one response indicated that the president has no formal appointment or relationship with the foundation.

Because multiple responses were allowed, it should be noted that of the 18 responses to this question, four
respondents indicated multiple answers. However, those multiple responses were compatible responses. For
example, a university president may be a voting member of the foundation’s board and serve on committees of
the foundation board.
As indicated by the survey results above, the dual role of the former UofL and ULF President is unique among
respondents, as UofL is the only institution that identified its president as also serving as the president or
executive director over the separate 501(c)(3) foundation managing its endowments and gifts. Though not
prohibited, the dual role of the former UofL President serving also as the ULF President created both
opportunities and challenges. See APA Finding 2, relating to this unique role. Although two respondents stated
the president was the chair of their foundation board, no other university indicated the daily management or
executive authority over both the university and its independent fundraising entity is concentrated in one
individual.
Another item to note from these results relates to university presidents serving on committees of the separate
501(c)(3) foundations. Per the ULF bylaws, the UofL president serves as chair to the ULF Board Nominating
Committee. While ULF bylaws establish this role, no other respondent indicated that its university president
chairs one or more foundation board committees.

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Benchmark Methodology and Results Analysis
Observation 5
Do the foundation's bylaws or other governing documents specify the university president's role? If yes, please
list the documents that define the president's role with foundation.
Answer
Number of responses
Percentage of response
No
5
28%
Yes
13
72%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

Of the 13 “yes” responses above, five indicated the bylaws of the foundation specified the role of the university
president with the foundation; two listed the role was addressed in the bylaws and a memorandum of
understanding (MOU); one identified the university president’s role was addressed in the bylaws as well as
statutes; and, one indicated the bylaws, the articles of incorporation, and a MOU addressed the role of the
university president with the foundation. Four respondents that answered “yes” did not identify what governing
documents addressed the role of the university president at the foundation.
UofL indicated that the role of the UofL president at ULF was addressed in the ULF bylaws only.
Observation 6
Does the foundation provide compensation to university employees? (Can have multiple responses.)
Answer
Number of responses
UofL’s responses
University president
6
1
University faculty/staff
2
1
Other university executives
4
1
Other*
7
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts, including UofL responses.
* Of the seven “Other” responses above: three institutions indicated endowed chair and/or professorships are paid by foundation
funds; one institution indicated the foundation president received a stipend; one respondent replied “only awards”; one indicated the
foundation reimburses salaries for specific advancement positions; one indicated the foundation provides or has provided a one-time
bonus to the president after eleven years of service, reimbursement for a portion of the dual role of vice president of advancement and
CEO of the foundation, three development positions in support of university, and endowed faculty/professorships.

UofL responses are in line with other institution responses.
Observation 7
Does the university board approve the foundation's compensation provided to the university employees?
Answer
Number of
Percentage of
responses
response
No
2
12%
Yes
9
53%
Foundation does not provide compensation to university
employees
6
35%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

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Benchmark Methodology and Results Analysis
The UofL Board does not approve compensation provided by ULF funds resulting from ULF employment
contracts. However, the UofL Board does approve compensation governed by employment contracts for UofL
employees paid by ULF funds. The majority of respondents indicated that the university board has approval
authority for compensation provided by the foundation.
Observation 8
Who is involved in determining the foundation's annual endowment spending policy? (Can have multiple
responses.)
Answer
Number of
UofL’s responses
responses
Foundation board
14
1
Foundation president
7
University board
1
Joint decision by the foundation and university boards
3
Other*
2
1
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts, including UofL responses.
* One respondent indicating “other” stated that an investment committee in conjunction with the foundation board is involved with
determining the annual endowment spending policy. While another respondent indicating “other” stated that the foundation
investment committee, finance committee, and executive committee were involved in determining the foundation’s annual endowment
spending policy.

The majority of respondents identified that their foundation board is involved in determining the foundation’s
annual endowment spending policy. UofL’s response is in line with this practice. Further, UofL’s response of
“other” denoted the ULF President submits the recommended endowment spend rate to the Foundation Board
for its formal approval.
Observation 9
Does the university board approve the foundation's annual endowment spending rate used to calculate the
amount distributed to the university?
Answer
Number of responses
Percentage of response
Yes
4
21%
No
15
79%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

UofL’s response indicated the ULF Board receives a recommendation from the ULF President as to the annual
endowment spending policy. It is this recommendation that the ULF Board will vote on whether to accept.
After the annual spending policy has been approved, it is enacted with no further input from the UofL Board.
Not having the UofL Board approve the annual spending policy is in line with the majority of respondents based
on responses above. Although this practice is common, the element that raises concern in the case of UofL is
that the same individual acted as both the UofL and ULF President. This circumstance is addressed further in
Finding 2.

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Benchmark Methodology and Results Analysis
Observation 10
What is your target annual endowment spending rate (percent) for FY 2016?
Answer
Number of responses
3.00%
2
4.00%
4
4.20%
1
4.50%
2
4.60%
1
4.62%
1
4.75%
1
4.90%
1
5.00%
1
5.25%
2
5.35%
1
6.00%
1
7.25%
1
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions
having a separate 501(c)(3) not-for-profit corporation managing their endowments and gifts.

The annual spend rate of survey respondents ranged between 3% and 7.25%; the ULF current spend rate is
7.48%. The ULF spending policy currently in place is the highest of all respondents. However, the ULF spend
rate includes fundraising costs paid from the endowment. The ULF spend rate includes 1.5% for fundraising
efforts of ULF and an additional 0.48% allocated to the ULF President to support high-strategic initiatives and
program enrichment, including fundraising activities. When adjusted for these amounts, the ULF spend rate
provided for other UofL purposes is 5.5%. Of the 19 respondents who provided their endowment spend rate,
68% stated the reported target spend rate did not include overhead fees (See Observation 12). The second
highest spend rate was Morehead State University (MSU) at 7.25%. Similar to ULF, MSU indicated that
overhead costs are calculated as part of the target endowment spending rate.
Observation 11
Does the university receive any other revenue from the foundation in addition to the spending rate distribution?
Answer
Number of responses
Percentage of response
Yes*
14
78%
No
4
22%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.
* Seven of the fourteen “yes” responses indicated current use gifts are also given to the institution per the donor’s wishes. Also noted,
revenues for development operations, university strategic needs, president compensation, earnings on non-endowed funds, payment
for program services, and discretionary funds.

Similar to the majority of respondents, UofL receives additional revenues from ULF beyond the 7.48% spend
rate. The additional revenue received from ULF includes gifts, direct allocations arising from other revenue
streams, and interest payments from a loan agreement between UofL and ULF (see Finding 4).

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Benchmark Methodology and Results Analysis
Observation 12
How are overhead costs to manage endowments paid?
Answer
Calculated as part of the target endowment spending rate
Other fees applied to the endowment but not part of the
target spending rate

Number of
responses

Percentage of
response
6
32%
13

68%

Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

Approximately one-third of respondents calculate overhead as a portion of the annual spend rate of endowed
funds. UofL’s spend rate includes overhead, as identified in Observation 10.
Further analysis of target endowment annual spend rates reported by survey participants:
Target endowment
Target endowment spend
spend rate with
rate without overhead
overhead included
included
Number of survey respondents
6
13
Percentage of respondents
32%
68%
Average target endowment spend rate
5.25
4.36
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

According to analysis performed, universities including overhead costs as a component of their annual spend
rate have average spend rates 0.89% higher than those which do not. UofL’s spend rate is reported as 5.5%
without the overhead component, which puts its rate as the second highest among spend rates reported without
overhead included. As previously stated, MSU did not indicate how much of the annual spend rate is used for
overhead.

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Benchmark Methodology and Results Analysis
Observation 13
What are the financial reporting and approval requirements of the foundation(s) to the university board?
(Can have multiple responses.)
Answer
Number of
UofL’s
responses
response
Foundation board consists of university board members, so
formal reporting is not required
1
1
A foundation board member or employee is required to report
the foundation’s activities to the university board
6
The university board has approval authority of all foundation
board activities and budgets
0
Foundation board only reports the amount to be provided to the
university for budgeting purposes
3
Foundation board and university board work in conjunction to
approve spending levels and goals
2
Foundation and university board are totally independent and
reporting is not required
4
Other*
8
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts, including UofL responses.
* One respondent stated certain defined “reportable events” require disclosure to the university board, if no “reportable events” occur,
the foundation is required to report that fact annually. One respondent indicated close administration collaboration on shared goals
happens in addition to required reports. One respondent indicated only reports made directly to the university president were required.
Five respondents indicated audited financial statements are provided to the university as a reporting mechanism. Of those five
submitting audited financial statements to the university, three of those indicated this was the only means of reporting required.

As noted in the table above, the response for UofL indicated that formal reporting of ULF activities is not
required since the ULF Board includes four UofL Board members. However, it is important to note that this
view has been under significant scrutiny, as UofL Board members, including some who also serve on the ULF
Board, have indicated ULF activities are not transparent. This concern is discussed further in Finding 3.
Observation 14
Is the university permitted to transfer funds to its foundation(s)?
Answer
Number of responses
Percentage of response
Yes
5
29%
No
12
71%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

UofL allows for the transferring of funds from UofL to ULF. This practice is not the norm among other
universities responding to the survey, as indicated in the responses above. This practice has also been under
scrutiny due to concerns about whether such transfers are properly approved. (See Finding 4)

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Benchmark Methodology and Results Analysis
Observation 15
Is the university permitted to loan funds to its foundation through a loan or receivable agreement?
Answer
Number of responses
Percentage of response
Yes
1
7%
No
14
93%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

Loans between a university and its foundation, as indicated in responses above, are rare among universities
surveyed. The one university responding “yes” to this question stated that it was allowed to loan funds to its
foundation, but indicated no loans had actually been initiated between the two entities. Through two separate
transactions, in FY 2014 and FY 2015, UofL loaned $67 million in university-budgeted funds to ULF and a
ULF affiliate. Though a portion of these funds have since been repaid to UofL, the practice and process
followed to loan funds have come under scrutiny. See Finding 4 for further discussion of these two loans.
Observation 16
Are loans from the university to the foundation reported to or approved by the university board?
As noted in Observation 15, only one respondent identified its university is permitted to loan funds to its
501(c)(3) foundation, and therefore, it was the only respondent for which this question was applicable.
However, that respondent also indicated that no loans had actually been provided.
Observation 17
Related to employees, select the situation applicable to your university.
Answer
Number of responses
UofL’s response
The university’s foundation
has its own employees
10
The university’s foundation
shares employees with the
university
8
Other*
1

-

1

Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts, including UofL responses.
* The one institution having a structure different than our supplied responses stated the foundation had no employees and those
persons doing work for the foundation were state employees. Its university was reimbursed for services rendered for the foundation.
UofL also answered “other” and its response is explained below.

Until July 1, 2016, ULF was managed primarily by UofL personnel assigned to support the Foundation. On
July 1, 2016, the Foundation CFO and eight other UofL personnel assigned to work as ULF Foundation
Financial Affairs personnel either resigned or retired from UofL and were rehired directly by ULF. See Finding
2, which addresses concerns regarding staff sharing.

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Benchmark Methodology and Results Analysis
Observation 18
Is the foundation subject to review by the university's internal audit function?
Answer
Number of responses
Percentage of response
Yes
7
39%
No
11
61%
Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

Refer to analysis below with Observation 19.
Observation 19
Does the foundation have its own internal audit function?
Answer
Number of responses
Yes
No

Percentage of response
5
13

28%
72%

Source: Auditor of Public Accounts based on surveys of a sample of higher education institutions having a separate
501(c)(3) not-for-profit corporation managing their endowments and gifts.

In its response, the Foundation CFO indicated ULF does have an internal audit function provided through
external accounting firms. However, after auditors requested internal audit reports issued by the external
accounting firms, it was indicated that no such reports existed as the firms were merely advising the Foundation
on various financial matters. Auditors concluded ULF is not subject to UofL’s internal audit function nor does
it actually have its own internal audit function. See Finding 1 for recommendation that ULF establish an internal
audit function.

 THIS PAGE LEFT BLANK INTENTIONALLY

UNIVERSITY OF LOUISVILLE AND UNIVERSITY OF LOUISVILLE FOUNDATION
JOINT RESPONSE

Page 50

 

Office of the President

LOUISV [fl

Dec. 9, 2016

Honorable Mike Harmon
Auditor of Public Accounts
209 St.  Clair Street
Frankfort, Ky. 40601

RE: Preliminary Response to Examination of the Governance of the University of Louisville Foundation
and its Relationship to the University of Louisville

Dear Auditor Harmon:

We appreciate the Auditor?s Office responding to our request for an examination of the University of
Louisville Foundation and agree overall with your findings. We also thank you for the considerable time
and effort expended by the Auditor of Public Accounts team in reviewing information.

The University of Louisville Foundation has a critical mission to support the University of Louisville in its
efforts to maintain its distinction as a premier, nationally recognized metropolitan research university.
The foundation fulfills that mission in many ways, including through the funding and support of the
university?s education, research and service goals through such things as student scholarships, research
chairs, endowed professorships, faculty grants and salaries and other academic initiatives. It is an
invaluable asset.

We recognize and appreciate that many in the community?including UofL faculty and staff, students,
alumni, supporters, donors and other stakeholders?have concerns about whether the foundation has
adhered to best practices in its governance, accounting and financial record keeping. We can a55ure you
that considerable time and energy have been and will continue to be spent addressing the issues that
you have identified.

More specifically, we believe it is important to note that needed changes to the leadership ofthe
foundation and some of its policies and procedures have occurred in recent months. We have pledged
to operate in a spirit of transparency and openness while maintaining our commitment to advance the
intellectual, social and economic development of our community.

We can report that subStantial change and corrective action are already underway to address many of
the findings in your governance review. These measures include:

Hiring outside counsel through a University of Louisville Foundation Board resolution to help
establish processes that have ensured we are now in compliance with our legal obligation to
fulfill Open Records Requests in a timely manner.

- Creating a vastly improved working relationship between the University of Louisville Board of
Trustees and University of Louisville Foundation Board. As one example, the two entities are

Office of the President University of Louisville - Louisville, 40292
P: 502852.541? F: 502.852.7226 W: Iouisvilleedu

Page 51

working cooperatively on a Joint Audit Oversight Committee that recently selected Alvarez 
Marsal Disputes and Investigations LLC to conduct a forensic audit of the foundation.

0 Establishing a new foundation committee to oversee the foundation's governance and
organizational structure and to suggest any needed modifications.

Joining the Association of Governing Boards of Universities and Colleges (AGB), a premier
organization focused on governance in higher education and assisting institutions with instilling
best practices. Both the University of Louisville and the University of Louisville Foundation are
now members.

I Hiring Keith Sherman as interim executive director/chief operating officer of the foundation to
improve operations of the foundation and to implement best practices.

0 Establishing a board orientation program. The first session will be held at the Dec. 21 board
meeting focusing on foundation By-Laws, Open Record Request procedures and Conflict of
Interest statements.

Determining that the current interim president of the university would not serve as president of
the foundation during this transition period.

- Ensuring that the university?s senior vice president of finance and chief operating officer will
serve on the foundation?s Finance Committee.

Again, we thank you for the invaluable work by your team. This audit provides a roadmap for further
improvements in the oversight and daily operations of the foundation, and we look forward to
continuing the work necessary to ensure that public confidence and trust in this important resource is
fully restored. We will provide a more detailed Corrective Action Plan to your office within the next 50
days. While much of that work remains, as we?ve stated above a tremendous amount has been
accomplished in a short amount of time. It is truly a new day for the University of Louisville and the
University of Louisville Foundation.

amm?

Neville Pinto, Interim President Brucie Moore, Chair
University of Louisville University of Louisville Foundation

FORMER PRESIDENT DR. JAMES RESPONSE

Dr. James R. Ramsey
December 9, 2016

Hon. Mike Harmon
Auditor of Public Accounts
209 St. Clair Street
Frankfort, KY 40601

Re: Response to Examination of the Governance ofthe University of Louisville
Foundation and its Relationship to the University of Louisville

Dear Mr. Harmon:

Thank you for the opportunity to review your report: Examination of the
Governance of the University of Louisville Foundation (ULF) and its Relationship to the
University of Louisville (UL). Your examination notes incredible growth
in recent years, and notes the increased centrality of its role in supporting UL. The
examination fails, however, to adequately acknowledge how UL and relationship
and the procedures governing that relationship allowed for and facilitated that
growth, and thus allowed for the amazing academic trajectory that the University has
achieved since 2002, despite repeated state budget cuts. in fact, many of the procedural
defects you describe are a consequence of UL and remarkable growth and
progress.

Speci?cally, the examination fails to note how support has been critical in
helping the University meet its statutory mandate to be ?a premier nationally recognized
metropolitan research university." We?ve done that. As a result of the 
collaboration, UL has achieved unprecedented growth and academic success on campus
and in our community in critical areas such as:

- Student success, as evidenced by a) better academically prepared freshman
classes; b) dramatically improved graduation rates; and c) recognition ofUL as
a national leader in the production of Fulbright Scholars;

- Dramatically increased philanthropic support to the University;

- Signi?cant increases in research funding and the development of
internationally recognized research programs;

- A successful partnership among the University, the Commonwealth, and the
city of Louisville. For instance, between 2015 and 2020, ill. will have created
nearly 20,000 jobs and generated nearly $1.5 billion for the area?s economy;

Page 52

- A dramatically changed campus, with new facilities that in many cases are
second to none. Today, campus is a great source of pride to students,
faculty, staff and alumni.

These are the reasons the University exists and this progress occurred in large part
because of support her the University?s academic mission. This success also
explains why every Board evaluation of the President, including the ?nal evaluation in
July 2015, found that the University and the Foundation met or exceeded the annual goals
set by both Boards. indeed, the President?s 2014 evaluation praised him for ?his
transparency and continued willingness to make changes at the University." And every
year the University received ?clean? ?nancial audits from outside independent auditors.

It is important to note in your examination that, despite cumulative state budget
cuts ($339m), the University has never been academically stronger while maintaining
absolute ?nancial integrity.

With respect to your speci?c ?ndings, or combinations of ?ndings, 1 offer these
observations:

Finding 1: Your examination found that UL and ULF were slow to respond to
your requests for information, and that some provided was
inconsistent. This observation fails to acknowledge that we had a small staff
seeking to respond to multiple outstanding Open Records Act requests, and to
simultaneously cooperate with your of?ce. That our responses were slow, or
sometimes inconsistent, does not re?ect a lack of transparency, as you suggest,
nor an unwillingness to cooperate. (lndeed, any inconsistency in our responses
means that we were not seeking to sanitize any answers.) Our highest priority
was the academic function of the university and for that I accept responsibility.
Contrary to your finding, UL and ULF did its best to meet massive document and
information requests with limited staff. (As you noted, our very low overhead
could not accommodate the enormous demand). lndeed, to meet your requests,
the Foundation hired a private CPA devoted solely to managing your demands.

I Finding 2: Your examination found that the UL andi?or ULF Boards acted in
conflict with one another, or without sufficient training or information, or in
violation of governing principles, and that they allowed institutional officers
(including me} to act without proper checks and balances. I strongly disagree.
Your examination does a great disservice to the outstanding individuals who
served on those boards. Neither I, nor to my knowledge other institutional
of?cers, acted without Board authority. Board had full access to
governing documents and records, and unfettered ability to discuss, digest, and
affect the outcome of institutional options and policies. This was never a concern
in any of my annual evaluations and only in the last year or so was it raised as an
issue, primarily in the media.

Page 53

Your finding that there is an ?inherent conflict? in having the President of UL also
serve as the President of ULF is wrong. The University?s President is best
quali?ed to determine academic priorities and thus direct the ?rnding of ULF
resources, and for the vast majority of my years of service, the UL and ULF
Boards agreed. While procedures can always be improved, the dual role of the
President has served UL very well since 1970, and certainly during my fourteen-
ycar tenure. [Your report omits stating that the President?s contract with ULF
requires that he also be UL's President.) And your finding that the 
President exerted ?undue influence" on the LF Board is unsupported and an
affront to those Boards. The individuals who serve the ULP are recognized
community and business leaders who gave countless hours to issues of portfolio
management, real estate development, etc. Their expertise was valued and relied
upon.

Neither the UL nor the ULF Board was ?bypassed.? This complaint stems from a
lack of engagement by certain members of the UL Board, some of whom
exhibited little or no connection to the Commonwealth or the University. Again,
the alleged lack of transparency could more accurately be deemed a lack of
inquiry and diligence by certain Board members. Lack of transparency was never
an issue in the UL Board?s evaluations of me; indeed, quite the contrary: I was
praised for my transparency.

Finally, regarding Finding 2, your examination criticizes the way in which the UL
aner ULF Boards operate, but fails to note that their actions confonn to the
cam-em operating guidelines. to other words, there is a marked difference one
that often is lost in your report between institutional boards that should
consider structural changes, and those that adhere to current structural
requirements. We conformed to the current structural requirements.

Finding 3: Your examination found a conflict among the members of the UL
Board and found that the administration created an environment of distrust in a
dysfunctional governing climate. I completely agree with the first assertion.
There was a conflict among members of the UL Board. Much of that con?ict
arose in recent years. If the administration was at all responsible for this newly~
developed dysfunctional governing environment, it was a by?product of the
administration?s focus on enhancing the academic environment of our students
and not dwelling on the ?governing climate."

I agree with your that the UL Board slronld operate in an
atmosphere that welcomes forthright discussion; boards should act civilly and he
forthright. Indeed, this lack of civility and the Board?s dysfunction contributed to
my offer to Governor Bevin to retire once the Board was statutorily compliant.

Finding 4: Your examination found that the University made two transfers of
endowment funds, totaling $67 million, to the Foundation without prior notice to,
or approval by, the UL Board. You noted that the first, $29 million, transfer has

Page 54

been repaid with interest in full, and that more than three-fourths of the second,
$38 million, transfer had been repaid with interest as of June ZUlo. Most
signi?cantly, you noted that I had full authority to enter into these transparent
contractual transfers on behalf of both the University and the Foundation. in
other words, these transfers (and resulting repayment) were transparent,
aboveboard, and did not conflict with state law or internal UL or ULF policies.
Rather, as you noted, the process by which UL and ULF entered into these
transactions apparently ?caused concern" among some of?cials and donors. Those
concen'rs were never expressed to me. i was always provided assurance by the
former CFO for UL and ULF that this inter-fund cash management strategy has
been in place since 1970. University counsel assured me in 2014 that there were
no issues with this strategy. These transactions were always provided to the UL
and ULF external auditors and they raised no issue. All of this aside, had either
the UL or ULF Board wanted me to obtain prior approval or notify them of these
transactions which were well documented and readily discernable they
simply could have directed that the CFO or I do so. An audit was not necessary.

I disagree with your recommendation that UL refrain from transfen?ing funds
between ULF or its af?liates; this is a judgment better made by UL and ULF
Boards for the of?cials in wheat the Boards vest that judgment), whose members
have a ?duciary duty to make sound ?nancial judgments for their institutions.

Finding 5: Your examination found that my decision to appoint an acting Chief
Administrative Of?cer (CAO) for the Foundation ?appears to violate ULF
Bylaws.? That conclusion elevates form over substance. As you reported, the
decision effectively moved the salary of [His Chief of Staff from UL [the
President?s of?ce) to ULF, a move deemed advisable in light ol?budgetary needs
and consistent with duties she actually performed. Moreover, committees and
of?cials of the ULF Board were fully aware of and supported the move, which
was entirely transparent. The only reason that the ULF Board did not approve it
was that it lacked a quorum. That is why I appointed her as acting CAO,
eSpecially as you noted - - while we awaited the formal drafting of a contract
by our legal counsel. (Nothing in the ULF Bylaws prohibits the temporary ?lling
of positions pending rati?cation which occurred September, 2016. All Presidents
have had authority to make temporary appointments.) Based on your view of
what transpired, you recommended that the ULF Board and President abide by the
Bylaws. I agree, anti did so. Foundation counsel also agreed.

Finding 6: Your examination found that the ULF Board compensated me
?beyond the amount approved by the of Board of Trustees and beyond the
amount provided? in my employment contract. You correctly stated the
underlying facts, and the rationale for decision, but reached a
fundamentally flawed conclusion. As you stated, UL and ULF are separate legal
entities, each of which has a contract with its President. (The President of UL and
ULF has for four decades been the same person.) As you also recognized, in
2014 the UL Board wanted to give me a 4% merit raise, acceded to the faculty

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trustee?s request to limit it to The ULF Board then gave me a 4% merit
increase for exemplary performance; as you noted, ?foundations routinely
supplement the compensation for university presidents? so as to allow public
universities to ?attract top talent to these positions  All of this would be
uncontroyersial, but [or your Focus on the provision in my employment contract
that, if the ULF Board deems my job perfonnancc ?satisfactory,? it will increase
my base salary ?by the same percentage [as my UL President salary] is
increase From that contractual language, you conclude that the ULF Board
was barred from increasing my base salary by more than You are simply
wrong. This is a provision in an employment contract between the ULF and me.
The parties are free to alter the terms if they choose. Without any agreed
alteration, was to receive a salary increase only if the Board deemed my job
performance satisfactory, and then only in a percentage equal to my UL salary
increase; similarly, without any agreed alteration, the Board was obligated to
increase my base salary by the same percentage as my UL increase, so long as it
deemed my pcrfonnance satisfactory. But, as with any other contract, the parties
were free to modify its terms. I was free to accept a lower?than-contracted?for
salary increase; ULF was free to provide a higher-than-contracted-for salary
increase. The decision was transparent, open, consensual, and perfectly proper.
Your recommendation that the ULF Board ?refrain from taking any actions that
exceed its authority" mistakenly deems it to lack the authority to modify its
employment contracts. And your recommendation that the ULF Board
?compensate its president in compliance with established contract terms" exceeds
the scope of your mission; it is for the ULF Board, not your of?ce, to determine
whether ULF ?s interests are best served by modifying the terms of its contracts.

Further, over the fourteen years that was President, never requested an increase
in compensation trom either UL or ULF. I repeatedly refused to accept bonuses,
after which the UL and ULF Boards decided that they would deposit my earned
performance bonuses into my retirement account.

Finding 7: Your examination found that, in violation of ULF Bylaws, the
University?s CFO was not included in the ULF Board Finance Committee?s
meetings. Of course, all ULF Board meetings are public. The University Sr.
referred to in this ?nding was new to the University at that time, and
also served as the COO of UL. The allocation of his time during his first] 2-18
months at UL was better spent on operational issues, in areas such as human
resources and organization management.

Benchmarks: Your use of benchmarks to assess UI. and current structure
and operating policies while helpful in many respects fails to note one key
feature: many of the universities to which you compare Ul. (such as Clemson,
Duke, Georgia Tech, Purdue, Notre Dame, and the University of Virginia) are
already considered top-tier academic institutions. UL has sought to join those
ranks, and has pursued policies through UL and ULF in an effort to do just
that. Those universities? governing bodies understandably pursue goals, and

Page 56

adopt strategies, that differ from L?s remarkable record of growth and
progress, summarized above, stands as testament to its structural and Operational
decisions.

Again, I appreciate the opportunity to offer these brief comments in response to
your dratt report. Please convey my appreciation to those in your of?ce who spent
countless hours on this review. I agree with recommendations that directors and trustees
should get along hetter, have orientations and trainings, and follow internal rules. The
structural controls and altered chains of authority that you recommend also merit serious
eonsideratitm. But, candidly, this extensive research and evaluation was not needed to
tell us this. What really is at stake here is the independence of the ULF Board From
political in?uence. I continue to believe that a professional hoard like that at ULF knows
how to achieve its mission, which simply put is to be a full partner with the UL Board to
help the University achieve its academic goals.

Yours truly,

 e; .- 4t ?4 
7?7?

'1 James Ramsey

Page 57

 REPLY TO FORMER PRESIDENT DR. JAMES RESPONSE

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Auditor’s Reply to Former President Dr. James Ramsey’s Response
Although not a current member of management for the University of Louisville (UofL) or its Foundation (ULF),
the APA offered Dr. Ramsey an opportunity to respond to this report to honor a professional pledge made earlier
this year that he would have a chance to respond to the governance examination findings. In evaluating his
response, however, certain comments warrant additional clarification or correction.
In response to Finding 1, Dr. Ramsey points to the limited staff size and the significant number of requests for
information from our office and others as the reason for slow and inconsistent responses. Also, Dr. Ramsey’s
response indicates the Foundation hired a private CPA to manage the requests from the APA. However, Dr.
Ramsey’s response does not take into consideration multiple suggestions made to alleviate the burden on the
UofL and ULF staff related to the APA’s request. For example, the APA requested a “data dump” of financial
information in order to generate reports and analyze financial information ourselves. Additionally, audit staff
repeatedly requested that copies of information not be made, but instead auditors preferred to review original
documentation, whether it be in electronic format or hard copy format. However, the APA’s recommendations
to improve the situation were largely rejected or ignored. Also, Dr. Ramsey’s response does not address the
appearance of sanitizing information, such as the note included in documentation provided to auditors that is
discussed on page 12 of the examination report. Finally, while we were pleased with the communication and
cooperation provided by the private CPA liaison hired by ULF, it should be noted that the delays and
inconsistencies continued throughout the process until there was a change in management, at which time the
majority of outstanding requests were quickly addressed.
Dr. Ramsey’s response to Finding 2 indicates that the APA’s examination does a disservice to Board members
by reporting on the lack of appropriate board orientation, and actions taken in violation of governing principles
or without appropriate checks and balances. Additionally, the response indicates Board members had full access
to governing documents and records. The APA believes its examination provides Board members with an
understanding of information and processes needed for improved board governance. The APA’s examination
was based, in part, on information obtained directly from members of both UofL and ULF Boards. The Board
members interviewed varied in their support of the former President, in their roles, and in their views of the
Board dynamics. Also, auditors attempted to obtain access to documentation identified as being readily
available to Board members. Unfortunately, those requests for information were delayed significantly, and
when access was provided to a website used to transmit information to the Board members, pertinent
information was either limited or no longer available. As noted in the examination, certain governing
documents, such as a resource sharing agreement between UofL and ULF, were initially not identified by
management. Dr. Ramsey’s response to this finding also indicates that actions conformed to “current structural
requirements.” To clarify, the examination identifies instances in which current requirements in contracts and
the bylaws were not followed, as well as recommending a review of certain structural components, such as the
role of the UofL president.
In his response to Finding 4, Dr. Ramsey points out that loans between UofL and ULF have been in place since
1970. Although outside the timeframe of this examination, auditors were told that such loans did precede Dr.
Ramsey’s employment at UofL. However, the APA disagrees with Dr. Ramsey’s assertion that such loans did
not conflict with internal UofL or ULF policies, as the UofL Board of Trustees requires indebtedness to be
reported to the Board. Although external auditors may not have raised concerns, the lack of board reporting and
authorization identifies governance concerns, not necessarily matters relevant to a financial statement audit.
Additionally, based on interviews with Board members, it is not an accurate depiction that the transactions were

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well documented or readily discernable. In fact, no UofL Board member interviewed about the loans was aware
of them at the time they were made, and media reports indicated at least one Trustee was not provided
documentation regarding the loans when requested.
Dr. Ramsey’s response to Finding 5 disputes the finding as being a matter of “form over substance” and
identifies that the appointment of his former Chief of Staff to the position of ULF Chief Administrative Officer
(CAO) was a temporary appointment until the position could be ratified. However, the response does not
recognize that the position of CAO was not a vacant officer position, since as discussed in the examination, it
was a role assigned to the ULF president per the ULF bylaws. Additionally, failing to follow the protocol for
officer appointments is more than a form over substance matter given the additional benefits awarded in the
temporary CAO appointment letter. Although the former President indicates the ULF Board’s authorization is
evident through the ratification of the action at the Board’s September 2016 meeting, auditors were not able to
confirm the ratification.
In his response to Finding 6, Dr. Ramsey focuses on the salary changes the ULF Board approved related to his
ULF contract. However, this fails to address the additional 2% the ULF Board approved related to the former
President’s UofL base salary.
In responding to the APA’s benchmarking, Dr. Ramsey fails to acknowledge that he and his staff were provided
an opportunity to give input on the institutions they believed to be fair selections for comparative analysis. In
fact, the former Chief of Staff and Foundation CFO both recommended at least one of the institutions Dr.
Ramsey questions. The purpose of the benchmarking was to gather comparative information for best practices
and also help identify uncommon practices. We believe the benchmarking assisted in meeting those objectives.