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Petition 1 - The petition will be sent to the Virginia Military Institute Board of Visitors, MG Wins, The VMI Foundation and associated Alumni Agency Leadership

Reasons for the Petition:

  1. Request these organizations take specific actions to become proactive in defending VMI
  2. Cease making arbitrary changes to VMI until the facts of an objective review are known
  3. Warn these agencies that if action is not taken alumni will suspend providing monetary and other support.

Petition 2 - The petition will be sent to the Virginia Military Institute Board of Visitors, The VMI Foundation and associated Alumni Agency Leadership

Reasons for the Petition:

  1. Support the actions of these agencies in protecting alumni, cadet, faculty and staff Personally Identifiable Information.
  2. Ask that Foundation and VMI AA funds not be expended to support work the State contracted for unless these organizations are repaid by the State or the contractor.

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Petition to THE VMI Foundation and VMIAA to Protect VMI Alumni Information and Foundation Funds

To all who receive this petition for action greetings

The purpose of this petition is to request you prevent and restrict the use of Donated Funds (and the earnings on those funds) under the control of the VMIAA to pay any expenses for (or otherwise support) the Virginia agency SCHEV-selected contract awardee’s (the “State Contractor’s”) investigation, as well as to protect Alumni and donors to the VMI Foundation and/or other VMIAA, and the privacy of their personally identifiable information (“PII”) under applicable privacy laws.

We understand and fully accept the importance of the VMIAA supporting the school and Board of Visitors (BOV) in educating and making the State Contractor aware of VMI’s unique mission, culture, traditions and honor. Such activities are totally appropriate and within the VMIAA’s mission. Providing any support or resources for any of the tasks or specifications that the State Contractor is contracted to perform or deliver, for pay or otherwise under the contract, is not appropriate for any of the VMI Foundation and/or other VMIAA or their officers, directors, employees, contractors, subcontractors, agents, etc. Regarding donations to the VMI Foundation and other VMI AA by alumni and donors, we believe it appropriate that VMI must provide alumni a full and transparent accounting of any funds that may be used for, or applied in whole or in part to, the State Contractor’s contract work. If any level of effort is provided to the State Contractor by the VMI Foundation and/or other VMIAA or their officers, directors, employees, contractors, subcontractors, agents, etc. “in the best interest of VMI” (or for other similar reason), alumni and VMI AA donors should be informed the specific reasons why supporting work and/or effort is not neither in whole or in part the work for which the State Contractor has been contracted and is being paid by the Commonwealth of Virginia. Further, the State Contractor should not be given any access to alumni and/or donor personally identifiable information (“PII”) and/or other personal information, nor allowed to contact alumni until such time as the State Contractor written data and PII collection protocols have been vetted and found to be fully compliant (by outside counsel for the VMI Foundation and/or other VMIAA) with the law and best practices. Moreover, legal representation by counsel for VMI (and/or counsel for the VMI Foundation and/or other VMIAA) should be made available to VMI alumni, cadets, faculty & staff undergoing (or participating in) all interviews, focus groups and related data collection efforts and that the State Contractor must pay (or reimburse) the VMI Foundation and other VMIAA (as applicable) for the labor and other resources (including, without limitation, donated funds and the earnings on those funds) expended to support their performance of the contract.

Whereas the mission of the VMI Foundation and, by extension of the other VMI Alumni Agencies (collectively “VMIAA”) is specific and limited to “[The] advancement, promotion, encouragement, welfare and progress of Virginia Military Institute (VMI), a State-Supported College, and advancement, welfare and progress of the VMI Alumni Association, who also supports VMI in conjunction with alumni relations to further support.”

Whereas the VMIAA comprise an organization formed and operated under Internal Revenue Code 501(c)(3);

Whereas the VMIAA operate(s) using funds donated by VMI Alumni and donors and have created and support endowments and other funding sources from (and repositories for) these donations;

Whereas the Governor of Virginia directed an Equity Audit and Special Investigation (“the investigation”) of allegations of structural racism at the VMI.

Whereas the General Assembly of Virginia appropriated $1,000,000 in State taxpayer funds to finance the investigation;

Whereas the State Council of Higher Education for Virginia (“SCHEV”) awarded a contract pursuant to a Request for Proposal (“RFP”) on the investigation (“contract”) to the State Contractor to conduct the investigation funded by the aforementioned appropriation, which award has been protested by two RFP unsuccessful bidders, one of which has filed a lawsuit in the Richmond Circuit Court alleging seeking (among other things) that the contract award by SCHEV to the State Contractor was made arbitrarily and capriciously and in violation of Virginia law such that the Court should vacate the award and enjoin the State Contractor from performing any further work on the investigation;

Whereas the contract was a firm-fixed price agreement wherein the State Contractor ’s final negotiated price was inclusive of all expenses;

Whereas the State Contractor’s Best and Final Offer (“BAFO”) submitted to SCHEV, which BAFO was accepted by SCHEV and is contained in the final contract confirms that the State’s Contractor, contrary to its initial bid, agreed to absorb all third-party expenses, all third-party, non-professional expenses, such as travel and lodging, survey fees, and administrative expenses in the conduct of the investigation through June 1, 2021, thereby proposing in its BAFO a fixed, all-in cost of $1,000,000.

Whereas VMI, the VMI Foundation and the other VMIAA are third parties to the contract between SCHEV and the Contractor;

Whereas The Commonwealth of Virginia in its Question and Answer Addendum to the Special Investigation and Equity Audit Request for Proposal (RFP) required the Contract Awardee to perform all surveys, focus groups, and other contract activities in complete compliance with Federal and State Laws;

Whereas although VMI and its BOV has previously stated they would “cooperate” with the investigation, neither VMI nor any of the Foundation nor the other VMI AA were consulted regarding, or had previously agreed to, any obligations to provide labor or other support or resources to the eventual State-selected contactor and were not provided any state or other funds to defray any costs VMI or the VMI AA may incur in supporting the investigation (collectively “VMI Investigation Support Expenses”);

Whereas, SCHEV is the State agency that awarded the contract to the State Contractor, and, pursuant to the Virginia Public Procurement Act (VPPA) is the Contract Administrator (CA) and Virginia government’s representative, and, as such, neither VMI, the VMI Foundation, nor any VMIAA has the authority or responsibility over the State Contractor;

Whereas if SCHEV’s award to the State Contractor survives the lawsuit challenge and other calls for independent outside reviews of the allegations by the Virginia Inspector General, the VMI Foundation and other VMIAA should establish procedures for transparent fiscal accountability as to any VMI Investigation Support Expenses that the VMI AA incurs, to be published quarterly in the Alumni Review;

Whereas the State Contractor’s February 4, 2021 “Progress Report of the Special Investigation Team On the Equity Audit and Investigation of the Virginia Military Institute” submitted to SCHEV (“Progress Report”) at Exhibit 2, page 3 of 3 recites that VMI POC’s (for the investigation) Colonel Inman agreed to provide the State Contractor: 1) Documents (including email correspondence)/information relating to monuments or statues on campus, including those that have been removed or the subject of controversy or request for Removal, and the work of the Monuments Committee of the VMI BOV;

Whereas the State Contractor’s February 4, 2021 “Progress Report” at Exhibit 2, page 3 of 3 recites that VMI POC Colonel Inman will request release from the VMI Alumni Foundation counsel: “Alumni Association membership records/listings for 2020/2021”

Whereas SCHEV’s February 4, 2021 “Progress Report” at Exhibit 2, pages 1 -3 identifies numerous categories of documents requested by the State Contractor will require a great deal of work to provide including, but not limited to search, correlation, scanning, copying and other work;

Whereas as donors to the 501(c)(3), VMI Alumni and other donors to the VMIAA have the right to restrict the use of our donations, and in no event did any of us envisage that our donations to the VMIAA would be used for such highly unusual purposes as paying VMI Investigation Support Expenses, and we strongly object to any such payments going forward because (among other things) that was never our intent as donors, and, moreover, the State Contractor’s contract with SCHEV is a firm-fixed price agreement wherein the State Contractor’s final negotiated price includes the State Contractor paying all such VMI Investigation Support Expenses from the State Contractor’s firm-fixed price award amount;

Whereas the Personally Identifiable Information (PII) of VMI Alumni and VMI Foundation and other VMIAA donors is protected by the Privacy Laws (as defined two Whereas Clauses below);

Whereas best practices and the Belmont Report on data collection by any researcher or investigator from persons, be they alumni, cadets, staff or others should meet the highest ethical standards as detailed in the National Research Act of 1974 and applicable Code of Federal Regulations Titles, while adhering to the associated Ethical Standards in Research that includes, but is not limited to, performing as an Institutional Review Board (“IRB,” which the unsuccessful bidder that filed suit is registered to do ) and any such researcher and/or investigator must operate in accordance with the pertinent requirements of the law and to ensure that all interviews, surveys, and focus groups adhere to rules and regulations that ensure the respondents' and participants’ identities are protected and the information is properly collected, safeguarded and used;

Whereas waiver of any required formal IRB process can only be granted by an IRB and the IRB must be independent of those drafting the questions, surveys and other protocols;

Whereas the Privacy Act of 1974, 5 U.S.C. § 552a (Privacy Act), Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g, and the Freedom of Information Act (FOIA), 5 U.S.C. §552, and various other State privacy laws, including, without limitation, the highly restrictive California Privacy Act “CCPA”) and other restrictive State privacy statutes (collectively the “Privacy Laws”) that govern the use of personally identifiable information (“PII”) and other personal information of individuals, residents, cadets, students, and other persons covered by one or more the Privacy Laws of those jurisdictions;

Whereas the U.S. Department of Human Services (HHS) Definition of Research (“Common Rule”) is “A systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.”

Whereas the research being conducted by the State Contractor, as described in the State’s contract, contributes to generalizable knowledge under that ”Common Rule” rule(s) as it: 1) attempts to make comparisons or draw conclusions based on the data (required by the contract); 2) seeks underlying principles that have predictive value and can be applied to other circumstances (required by the contract recommendation and other deliverables); and 3) identifies general explanations or themes that a reader can extrapolate to another situation.

Whereas the research to be conducted by the State Contractor under the State’s contract is also covered under the Common Rule, as results of the reports delivered from the contract will be given to the General Assembly and made public, without the requirement met to coordinate them with VMI, the VMI Foundation and/or other VMIAA, and therefore should be restricted to internal use only, and so are not exempt from IRB and associated requirements;

Whereas the legal requirements to protect confidential information (including, but not limited to PII) and no methodology to do so appearing to be absent from the State’s contract for the Equity Audit and Investigation of VMI; and

Whereas the PII of VMI Alumni and VMI AA donors is protected by one or more of the Privacy Laws, yet the State Contractor Team (subject to Court challenge), and counsel for VMI and the VMI Foundation (and/or for the other VMIAA) need to review carefully for their approval the State Contractor’s written protocols on protecting such PII and otherwise complying with the Privacy Laws (collectively, “PII Protocols”) and should be informed and assisted by a competent, certified IRB professional independent of those developing the protocols;

NOW WHEREFORE, We, the Alumni of the Virginia Military Institute (VMI) and donors to the VMI Foundation and/or the other VMIAA hereby petition in the strongest possible terms the VMI Foundation and the other VMIAA, their agencies, offices, directors, officers, and executives (i) neither to expend any unrestricted or restricted funds or other resources from donations provided by Alumni or other supporters to the Foundation and any of the other VMIAA (this reference to unrestricted or restricted donation funds applies to all donations in any form, be they bequests, cash donations, in-kind or otherwise). in support of the investigation or any other related actions for which the State Contractor is under contract to the Commonwealth of Virginia to do or deliver; (ii) nor release or otherwise make available to the State Contractor Team any PII of VMI Alumni (or of any donors to the VMI Foundation or to any of the VMIAA, regardless of whether or not they are alumni), and (iii) that the VMI Foundation and the other VMIAA take the following affirmative steps forthwith:

  1. Formally notify SCHEV that the VMI Foundation and the other VMIAA will neither conduct further coordination with the State Contractor nor agree to commit any resources or provide VMI Alumni or donor contact information nor any other information or support unless it is coordinated through SCHEV as the State’s CA and sole legal government representative to its contractor.

  2. Formally notify the State Contractor through SCHEV that none of the State Contractor’s attorneys, staff, subcontractors, contractors, agents, etc. (collectively “State Contractor Team”) are to contact any VMI Alumni, and, in the course of such contact(s) represent to such Alumni the VMI Foundation and/or the other VMIAA consents to, cooperates with, supports and/or endorses the State Contractor Team’s investigative work under the contract in any way until such time as the requirements contained in this petition are met and the allegations of impropriety and violation of Virginia law alleged are fully investigated by an independent third party as requested herein.

  3. Formally request SCHEV have its State Contractor Team forthwith disclose in writing to the VMI Foundation the names of any VMI alumni interviewed or surveyed to date without coordination with or consent of the Foundation and/or the other VMIAA, with such disclosure to include any questions posed, data collection and/or PII Protocols used and the content of responses received by the State Contractor Team.

  4. Inform the State Contractor in writing through SCHEV that a requirement for the support of the VMI Foundation and of the other VMIAA is that the State Contractor allow those being interviewed by the State Contractor Team may (in their option) have VMI, VMI Foundation and/or other VMIAA counsel present at all interviews and that all data collected during the investigation be made available for review by VMI, the VMI Foundation and/or the other VMIAA (and/or by its or their counsel or independent Subject Matter Experts, if desired).

  5. Obtain from the State Contractor, through SCHEV, an agreement in writing no one on the State Contractor Team will offer or solicit amnesty from, or waiver of, the VMI Honor Code or the disciplinary regulations of VMI for any cadet investigation participants who provided information by interview or otherwise as part of the investigation that later proves to be substantially false, misleading or unsubstantiated.

  6. Neither sign nor otherwise agree to any documentation or other communication provided to VMI Alumni attesting to or remarking on the fairness of the investigation or encouraging VMI Alumni participation in the investigation.

  7. Not participate with the State Contractor Team or any agency or office of the Commonwealth of Virginia in any work or tasks required by the investigation that the State Contractor is contracted to perform, unless the cost to the VMI Foundation or to any of the VMIAA for such work or tasks fully and promptly reimbursed to the VMI Foundation and other VMIAA at an hourly rate equivalent to what the State Contractor is charging the Commonwealth of Virginia, together with prompt reimbursement by the State Contractor for all out-of-pocket expenses of VMI Foundation or to any of the VMIAA.

  8. Receive a formal written commitment from the State Contractor through SCHEV and/or the Commonwealth of Virginia to reimburse the above-described costs before any such support is provided or work or tasks performed.

  9. Not provide any PII or other contact information for any VMI Alumni (and/or VMI Foundation and VMIAA donors) (collectively the “Sensitive Information and Data”) to the State Contractor Team until such time as each such alumnus/ae has received the written, full-disclosure Informed Consent notification and post-survey, -interview or -focus group “consent to use” letter reviewed by an independent, competent and registered IRB professional, whether strictly required by law or not, with the advance opportunity to agree or decline to participate. Included in that notification, without limitation, are a copy of the State Contractor’s written PII Protocols and confidentiality protections, as well as the State Contractor’s data collection and analysis plan with associated protocols for use of the collected information. Not participate in or provide any VMI Alumni and/or PII or other personal information to the State Contractor until such time as it has provided VMI and the VMI Foundation (and the VMIAA, as applicable) with the PII Protocols that comply, as confirmed by review of VMI’s (and the VMI Foundation’s and the VMIAA’s, as applicable) outside counsel, with the best practices and requirements of the OMB Office of Human Research Protections, the Belmont Report, and other applicable laws and best practices to include, without limitation: review and approval of all data collection protocols (and associated questions) and research methodology by a Federally Registered Institutional Review Board (IRB), with the express understanding that such Federally Registered IRB must be a third party entity not involved in the development, revision, or earlier review of such PII Protocols, with SCHEV confirming in writing to the VMI Foundation and the other VMIAA, before the provision of any Sensitive Information and/or Data to the State Contractor, that SCHEV accepts responsibility to ensure all such Sensitive Information and Data is adequately safeguarded and protected by the State contractor. Ensure that the State Contractor provides all members of the VMI Alumni population (rather than targeting a particular sub-group of VMI Alumni based on race, gender or other demographic characteristics) equal opportunity to participate in all surveys, interviews, focus groups and other data collection to include soliciting and obtaining the required pre-data collection Informed Consent documentation and post data collection agreements and plans, before any data collection from VMI Alumni is initiated or any data collected regarding alumni is used. Even if the State significantly alters the research away from the original contract so that it is not generalized we feel it is essential that the Informed Consent procedures be followed.

  10. Ensure that, before providing any Sensitive Information and Data to the State Contractor, SCHEV has provided to the VMI Foundation and the other VMIAA, the SCHEV- approved version of the State Contractor’s plan and methodology to safeguard and protect Confidential Information as required by the RFP and contract but for which no methodology is currently found in the contract. This methodology must comply with government standards and industry best practices to include, at a minimum: safeguards in place to prevent uses beyond those authorized under law or approved by the IRB; duration of maintaining PII; handling of PII both in transit and at rest; risk and compromise; spill plan; and appropriate encryption protections both at rest and in transit.

Should the VMI Foundation and the other VMIAA elect to take no action on this petition and not to comply with these reasonable requests, then the VMI Foundation and the other VMIAA expose themselves to the possibility of a request to the IRS to compel the VMI Foundation and/or the other VMIAA to disclose this information and these uses of these funds and resources in connection with the investigation, possibly resulting in an IRS review of the VMI Foundation and VMIAA 501(c)(3) status.

In addition, if the VMI Foundation and VMIAA fails to ensure compliance with the appropriate protections of PII (per the PII Protocols reviewed above) as well as the development and implementation of data collection protocols by the State Contractor the VMI Foundation and VMIAA could be held liable and accountable for any issues resulting from that failure pursuant to one or more of the Privacy Laws detailed above.

The requests in this Petition are retroactive to December 30, 2020, which is the date of the Commonwealth’s/SCHEV’s contract with the State Contractor.
We request the VMI Foundation and other VMIAA take these actions not later than February 28, 2021 and advise in writing the VMI Alumni community (and the donors to the VMI Foundation and other VMIAA) of their decisions in response to this Petition.

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