Stick to your guns! In Virginia we have similar constraints. The sovereignty of the state is implied in its constitution, rather than being legislated. The AG has numerous recorded Opinions (gathered and published annually), memos of instruction, etc., about the implication of this. For example, we may not accept the laws of any other venue. We routinely implement this by requiring the laws of Virginia, unless we are making an agreement with another state's agency, in which case we ostentatiously remain silent. (As I read it, arguments between states are settled in federal courts, anyway!!!) We will not indemnify anyone for any reason. We will accept responsibility for our own acts and omissions to the extent of Va law -- which has significant limitations of our liability. We are self-insured for most matters, and cannot name a third party as as a co-insured. This is based on state law, so "laws of VA" brings it into an agreement, though we normally clearly inform the other party. Etc, etc, etc. YOU DO NOT NEED TO ACCEDED TO ANY CLAUSE, WHATSOEVER. A contract is an agreement, freely entered into .... IF THEY WILL NOT LISTEN TO SIMPLE, RATIONAL REASONS, YOU PROBABLY SHOULD NOT BE DOING BUSINESS WITH THEM!!!! And, if your PI does not understand that state law/procedure takes precedence over her desires for funding, you need to do a little educating. By the way, don't forget that most impasses like this result from either some low level person blindly following rules or some legal advisor trying to justify her existence. Can you raise it to the level of a person who has the management responsibility to make a decision? "...has no meaning in the real world...." suggests that you are dealing with someone who does not understand that the law, or the opinion of the AG, IS REAL. Yes, think those words. All of us out here are thinking them for you. Let me quote from an e-mail I sent to a departmental administrator who is being an intermediary in a similar discussion: " They may call our General Counsel if they wish to discuss the matter. He has made a concession to be willing to take the time to tell them "no" if they will not believe you and me." Chuck At 12:00 PM 3/31/00 -0600, you wrote: >I recognize that not all public institutions have the same constraints >placed on them by their state constitution or governing board but I think >what may be discussed on this topic through this list will benefit several >people who have questions about liability, sovereignty, venue and >jurisdiction. > >We have the following in our state constitution: "The State of Alabama >shall not be made a defendant in any court of law or equity." That is all >it says. Case law has brought Auburn University in and shown that we share >in the sovereignty of the state. The sole remedy for claimants against >Auburn is to go through our State Board of Adjustments. This certainly >does not prevent someone from trying to sue the institution, however, it >would be dismissed by any court in Alabama and hopefully by most courts in >other states because of sovereign immunity. > >We have a contract with the following clause to which we have objected: > >"This Contract shall be governed by and construed in accordance with the >laws of the State of ---------------(not ALABAMA). The Contractor agrees >that it will be subject to the exclusive jurisdiction of the courts of the >State of ------------- and the courts of the United States which are >located within the State of ---------- in actions that may arise under this >Contract. The Contractor acknowledges and agrees that any rights or claims >against the State of --------- or its employees hereunder, and any remedies >arising therefrom, shall be subject to and limited to those rights and >remedies, if any, available under (state name) Code Annotated, Sections >9-8-101 through 9-8-407." (basically their version of the state board of >adjustments) > >We objected initially to many clauses and they changed all but this one. >We objected finally to this one and received the following response: > >"The paragraph to which you refer is not a negotiable item according to the >legal staff downtown. They feel that they have made concessions along the >way to make this contract work, but this is standard language in all state >contracts now and they have negotiated all they can. >If Auburn cannot do the overlooking in this case, I'm afraid we will not be >able to work with the university. We have contacted XYZ University and they >can and will do the work. >We also have a contract with Auburn for the AAA Project. When this comes up >for renewal, I fear we will find ourselves deadlocked again even though it >is at least a 20+ year association. [editorial comment - the previous 20 >years contracts didn't have this clause in them] >I think it is very unfortunate that state and university personnel are past >ready to get on with this, but we are being hamstrung by contract verbiage >that we both know has no meaning in the real world." > >Our General Counsel is just as adamant for changing the language to Alabama >as their is in keeping it as their own state. We offered to take it out >all together and remain silent. That way, it would be an issue only if >something really bad happened. After all, this has "no meaning in the real >world." as far as they are concerned. > >What I would like to say to them in response is not polite and thus not >effective. SO I appeal to this group to help me figure out what I am >overlooking and what universities out there would agree to their language. >If you could accept this language, please tell me if it is something in >your charter or constitution or policies or what that makes this >acceptable. Do you have gobs of insurance and a huge general counsel >staff? I am honestly wanting to learn the risks involved. Thank you. >----------------------------------------------------------------- >Martha M. Taylor, Director >Office of Sponsored Programs >310 Samford Hall >Auburn University, AL 36849-5131 > >334-844-4438 >334-844-5953 (fax) > >(xxxxxx@auburn.edu) > > >====================================================================== > Instructions on how to use the RESADM-L Mailing List, including > subscription information and a web-searchable archive, are available > via our web site at http://www.hrinet.org (click on "Listserv Lists") >====================================================================== > Herbert B. Chermside, CRA Director, Sponsored Programs Administration Virginia Commonwealth University PO BOX 980568 Richmond, VA 23298-0568 Express Delivery Only: Sanger Hall, Rm. 1-073 11th & Marshall Streets Richmond, VA 23219 Voice: 804-828-6772 Fax 804-828-2521 OFFICE e-mail xxxxxx@VCU.EDU Personal e-mail xxxxxx@vcu.edu http://views.vcu.edu/ospa/ ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================
