Does a Florida university's private support foundation get sovereign immunity under section 768.28?

Subject

Sovereign Immunity -- Private Foundation

Plain-English summary

The general counsel for the Florida A&M University Foundation, Inc. asked the AG whether the foundation falls within section 768.28(2), the statute that defines the state and its agencies for purposes of limited sovereign immunity. The AG declined to give a formal answer, for two reasons.

First, the AG can only provide legal opinions on questions of state law to governmental agencies and officers under section 16.01(3). The FAMU Foundation is a private nonprofit corporation, so the office said it had no authority to opine for it. Second, the AG noted that recent case law shows whether a direct-support organization qualifies for sovereign immunity requires resolving mixed questions of law and fact, which is the job of the courts, not the AG.

As a courtesy, the responding attorney enclosed a copy of UCF Athletics Association Inc. v. Plancher, a 2013 decision from the Fifth District Court of Appeal that analyzed when a university direct-support organization functions primarily as an instrumentality of the university and is therefore entitled to limited sovereign immunity under section 768.28. The letter stated plainly that its conclusions were the writer's and did not represent an opinion of the Attorney General's Office.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG decide whether the foundation has sovereign immunity?
No. The AG declined to answer the question and did not take a position on whether the FAMU Foundation is covered by section 768.28.

Why did the AG decline?
Two reasons. The foundation is a private nonprofit corporation, and under section 16.01(3) the AG only issues opinions to governmental agencies and officers. And the AG said the immunity question depends on mixed questions of law and fact that courts, not the AG, resolve.

What guidance did the foundation get instead?
The responding attorney enclosed UCF Athletics Association Inc. v. Plancher, a Fifth District Court of Appeal decision that analyzes when a university direct-support organization functions as an instrumentality of the university and qualifies for limited sovereign immunity under section 768.28.

Background and statutory framework

Section 16.01(3), Florida Statutes, defines the AG's opinion-issuing authority: it covers questions of state law put by state agencies and officers, not private parties. That is the threshold the request did not meet, because the FAMU Foundation is a private nonprofit corporation. The AG has long treated requests from private entities as outside its statutory role.

The substantive question the foundation raised lives in section 768.28, Florida's limited waiver of sovereign immunity, and specifically section 768.28(2), which defines "state agencies or subdivisions." Whether a university support organization fits that definition is fact-intensive, which is why the AG pointed to UCF Athletics Association Inc. v. Plancher rather than answering directly. That case sets out the kind of factual analysis a court uses to decide whether a direct-support organization is acting primarily as an instrumentality of the university.

Citations

• section 768.28(2), Florida Statutes
• section 16.01(3), Florida Statutes
• section 768.28, Florida Statutes
• UCF Athletics Association Inc., v. Plancher, 121 So. 3d 1097 (Fla. 5th DCA 2013)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sovereign-immunity-private-foundation
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8089

Original opinion text

Mr. Harold M. Knowles

General Counsel

Florida A & M University Foundation, Inc.

Post Office Box 6562

Tallahassee, Florida 32314

Dear Mr. Knowles:

This office is in receipt of your letter of August 5, 2014, requesting assistance in determining whether the Florida Agricultural and Mechanical University Foundation, Inc. (FAMU Foundation), comes within the scope of section 768.28(2), Florida Statutes, for purposes of sovereign immunity protections. Attorney General Bondi has asked me to respond to your inquiry.

After reviewing the information you have submitted, it does not appear that this is a matter upon which this office may formally comment. The Florida Attorney General is statutorily authorized to provide legal advice and opinions on questions of state law to governmental agencies and officers. See section 16.01(3), Florida Statutes. The FAMU Foundation is a private nonprofit corporation and this office has no authority to provide opinions to private corporations. In addition, a review of the recent case law relating to this issue suggests that such a determination would require resolving mixed questions of law and fact which is the province of the judiciary, not the Florida Attorney General's Office.

In an effort to assist you, however, I am enclosing a copy of a recent case considering whether a direct-support organization functioned primarily as an instrumentality of a university and thus was entitled to limited sovereign immunity pursuant to section 768.28, Florida Statutes. UCF Athletics Association Inc., v. Plancher, 121 So. 3d 1097 (Fla. 5th DCA 2013), provides a thorough analysis of the facts involved in making such a determination and the recent case law used in developing the Fifth District Court of Appeal's opinion.

I trust that these informal comments and the copy I am enclosing will be helpful to you. The conclusions expressed herein are those of the writer and do not represent an opinion of the Florida Attorney General's Office.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

Enclosure: UCF Athletics Association Inc., v. Plancher, 121 So.3d 1097 (Fla. 5th DCA 2013).