Tampa Tribune Quotes Anderson in Article About Relationship Between Lowry Park Zoo and Safari Wild

A Tampa Tribune article published last Saturday raised questions about the activities of the executive director for Tampa's Lowry Park Zoo in connection with his for-profit venture, Safari Wild.  According to the article, "Lowry Park Zoo is a nonprofit organization that has been funded with millions of dollars in taxpayer money. Safari Wild is a fledgling, for-profit business owned by [the executive director and a St. Petersburg veterinarian]." 

The Tribune reported that "a series of e-mail messages obtained by The Tampa Tribune shows that the zoo's paid administrative staffers have worked to promote and garner political favor for [the Executive Director's] private animal park, which is not open and remains mired in state and county permitting issues. It also appears that the zoo's staff has done work for Safari Wild without a vote of approval by the zoo's board." 

According to the Tribune:

"If the executive is using the zoo as a private pool of resources to develop a for-profit venture, without board approval, it could be improper, said Daniel Anderson of Tampa. Anderson and other attorneys for nonprofit organizations said the fact that the zoo receives taxpayer support amplifies the potential conflict.

Mr. Anderson expressed no opinion to the reporter covering the story as to whether the relationship is improper, only that board approval is required when a nonprofit executive director uses resources of the nonprofit for the benefit of his own for-profit venture.

This story points out the importance of disclosure, consent, and documentation with regard to the private activities of nonprofit executives. Executive Directors are stewards of nonprofit resources, and these resources should only be used for the benefit of for-profit concerns when:

1. The missions of the nonprofit and for-profit organizations are compatible:
2. The Executive Director has disclosed his/her self-interest in the for-profit venture to the Board of Directors;
3. The Board of Directors has voted to approve the use of nonprofit resources for the benefit of the for-profit concern; and,
4. The vote of the Board of Directors is recorded in the minutes of the Board meeting.

It is important to take each of the above steps before committing the resources of the nonprofit to the for-profit concern, otherwise nonprofit executives and board members may be subject to public criticism.  This is particularly true in cases where the nonprofit receives public funding.  Such activities might also jeopardize the tax exempt status of the organization, a factor which should be of critical concern to nonprofit executives and board members.

Who Woulda Thunk It: Experts May Be Biased?

The following is an article published today by Fastcase entitled: “Hot Tubbing” Steams Up the Courtroom." It points out that our adversarial system has its advantages, but the so-called "battle of the experts" is not one of them - at least not from the perspective of judges and juries. Perhaps it is time for us to consider a process by which we permit experts to arrive at a general consensus, much like scientists, rather than advocating a particular point of view. It is likely that the scientific approach to revealing "the truth" will likely be more productive, and less costly, than the approach that we employ now.

As American judges are growing increasingly frustrated with partisan expert witnesses, some are looking to a method of testimony newly employed in Australia, coyly dubbed "hot tubbing." Sadly, this does not involve an actual hot tub, but a group discussion between experts to review conflicting evidence and judgments in the courtroom, a system which some believe has promise in the United States.

Like most other English speaking countries, the U.S. follows the tradition of allowing opposing sides in a trial to select their own witnesses. These experts have been known to exhibit bias in favor of their employers, often resulting in the presentation of entirely contrary evidence from the prosecution and defense at trial. In the majority of common law countries, judges are well-equipped to sift through conflicting facts. However, in the U.S., where juries sit in judgment for civil cases, disparities in testimony can confuse unfamiliar jurors, making reform all the more essential. While American judges often have the power to appoint their own experts, judges often waive their right out of general distrust of expert witnesses. According to Oscar G. Chase, a professor of law at New York University,

"Many judges, if not most, have been trial lawyers, and they are suspicious that any expert is truly neutral. The virtue of our system is that it allows people to sort of balance things out."

Australia, where the defense and prosecution also enjoy the power to appoint witnesses, has tried to inject more fairness into the process by creating a courtroom conversation between the specialists from both sides. Hot tubbing in the land down under involves a debate between the parties over contradictory evidence and conclusions, providing a space where the two sides can reach an agreement on some issues, and elucidate their differences on others. Critics caution, however, that scientific disputes can be bitter and often difficult to resolve, and arguments may lead to further disorder during trial.

But, while one supposedly neutral expert may gloss over real disagreements in the scientific community, the hot tub model can collaboratively incorporate the opinions of all sides, and ideally, reach a consensus. Not to mention the fact that it sounds a heck of a good time.

11th Circuit Says Car Rental Companies Cannot Be Held Liable for Negligent Acts of Renters

The 11th Circuit Court of Appeals (the federal appellate court governing appeals in Florida) ruled yesterday that recently enacted federal legislation known as "the Graves Amendment" (49 U.S.C. § 30106) preempts state tort claims against car rental companies under a theory of vicarious liability.  In English, what the Court said was that the statute passed by Congress, and signed into law by President Bush in 2005, prevents a plaintiff from suing a car rental company for "negligent entrustment" of the vehicle to a person renting the car.  Thus, if the car rental company rents the car to someone that is later found to be at fault in an accident, the car rental company cannot be held liable for renting the car to the person that caused the injuries even if the company knew or should have known that the driver had a bad driving record.

 

Critics of the Graves Amendment claim that the law provides too much protection to car rental and leasing companies, and such companies should be held accountable for placing a vehicle into the hands of a dangerous driver under the "dangerous instrumentality doctrine."  According to these critics, leasing companies in particular do little to ensure that a driver has a safe record before leasing a vehicle to a driver.  Others argue that the law should shield car rental and leasing companies against liability because these companies cannot always know if a driver is safe.

 

Given the rancor over this particular law, it is likely that this or another case will reach the United States Supreme Court.  Whether the Court will hear the case is another matter.

 

Case: Garcia v. Vanguard Car Rental USA, Inc., No. 07-12235, (11th Cir., Aug. 19, 2008).