DKE Request for Investigation of Criminal Coercion

October 20, 2005

Donald F. Cerio, Jr.
Madison County District Attorney’s Office
Box 578
Wampsville, New York 13163

Re: Colgate University

Dear Mr. Cerio:

As we discussed on Wednesday, October 12, 2005, Delta Kappa Epsilon (“DKE”) believes Colgate’s recent directive ordering DKE to sell its property or face elimination as a fraternal organization after 150 years makes out a case for coercion in the second degree under McKinney’s Penal Law ' 135.60, which states in relevant part:

A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:

9. Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Based on the statute above, DKE believes Colgate is guilty of coercion in the second degree by compelling or inducing DKE to sell its property against its will for below market value by means of instilling in DKE a fear that, if Colgate’s demand was not complied with, Colgate would withdraw recognition of DKE as a fraternity after 150 years, which is calculated to harm DKE materially with respect to its business, financial condition, reputation and its members’ personal relationships.

As we discussed, since you have been in your office for quite some time, you are familiar with the Colgate community and its culture. Indeed, although Colgate identifies the Willow Path tragedy as a primary motivation for its program to buy fraternity houses to gain greater control of them, the drunken driver at the wheel of the car that night was first and foremost a Colgate University student who had purchased beer as an underage minor at a local Hamilton, New York grocery store, and had also been served alcohol at a local bar in Hamilton. The ultimate irony, as you know, is that Colgate eliminated its shuttle service from Hamilton to the Colgate campus prior to that accident, and you were later involved in prosecuting the shuttle service driver for drunk driving after Colgate reinstated the shuttle program as a result of the accident. Former Colgate officials also acknowledged that DKE was not responsible for that accident.

Your office also is undoubtedly aware of the criminal break in of the DKE temple and the theft of its contents and DKE’s suspicions that members of the Colgate faculty had knowledge of the criminals and even promoted the activity. In the end, Colgate ended up settling DKE’s lawsuit as a result of that incident for a total of $87,000 that included forgiveness of loans and a financial payment to DKE. John Wilson (Phone #404-255-2862) can be contacted about other Colgate transgressions against DKE and the Colgate community.

My point is that Colgate, although an established institution of higher learning in Madison County, has had its own legal issues involving questionable conduct. One need not go any further than the recent stabbings at the Palace Theatre in Hamilton, owned by Hamilton Initiative, LLC, of which Colgate is the sole member. And John Golden, the current Colgate trustee chairman, has received notorious publicity in a paid protest ad in USA Today as a board member of Abercrombie & Fitch for “allowing the marketing by A & F of ‘thong’ underwear to 5th grade pre-teen girls, underwear imprinted with lurid adult expressions like ‘Eye Candy,’ and ‘Wink, Wink.’” Colgate University does not have completely clean hands in this community.

The facts upon which we believe coercion in the second degree may be established under Section 135.60 are as follows :

1. The keystone to Colgate’s new Residential Plan is that all students (except for 250 students who are excluded) must live in university-owned housing. Colgate officials have coercively applied that mandate into requiring the sale of DKE and other Greek-letter houses for those organizations to remain recognized at Colgate. This is in the face of Delta Delta Delta and Kappa Kappa Gamma sororities, and Phi Kappa Tau fraternity, which are Greek-letter organizations recognized by Colgate without any privately owned chapter houses.

2. Colgate allegedly needs to buy DKE and other fraternity houses for more control over Greek-letter conduct, but its own misconduct statistics compiled under federal law demonstrate that incidents of crime and misconduct on campus occurs at a rate exponentially greater than in Greek-letter houses. Indeed, based on Colgate’s information, since 1986, almost 20 years, Greek-letter houses committed 70 total minor or major infractions. In just three years, between 2002 and 2004, in university-owned houses, 1,573 minor and major offenses occurred!

3. Colgate proposes to buy the DKE house for $725,000. Our economic expert in the antitrust case we have against Colgate has calculated that the cost per bed for new student housing for Colgate is $53,767. Assuming a 50 bed maximum in the DKE house, Colgate’s per bed offer is $14,500 ($725,000 ÷ 50 = $14,500). That is $39,267 less per bed, or $1,963,350 less overall. Colgate may argue that renovation costs will also be a factor, but nothing realistically close to $2 million.

4. Colgate’s own real estate appraiser noted that the best and maximum use for the house is as a residence for students of Colgate University. It also noted that the best and maximum use to renovate the house would be for purposes of enhancing habitation by students. Colgate therefore knows that the primary – indeed, the only – realistic purpose for the DKE house is for use as student housing or as a fraternity. Yet as part of its “residential program,” DKE cannot use its house as private property for any Colgate student activity, even if its student members are living in university-owned housing. So even though all the brothers are living in university-owned housing now, they, and all other Colgate students, are prohibited from using the DKE house or the Temple. Colgate’s restrictions render the DKE house useless. This is geared to coerce the sale of the property.

5. Colgate included a perfunctory “buy back” provision in its purchase offer to DKE wherein DKE could “buy back” its house if Colgate eliminated the fraternity by paying Colgate the $725,000 purchase price, the unamortized amount of improvements expended by Colgate, which it believes could be $1.50 million, and any appropriate appreciation based on the cost of living, CPI-U. In the final analysis, the DKEs would be forced to sell their house to Colgate for less money than its worth, and then be required under Colgate’s buy back provision to spend almost $2.5 million to buy it back. Given that DKE cannot use its house for its primary purpose of student residences, Colgate’s “buy back” provision requires DKE to buy back its house for almost four times what it sold it for to the University, and DKE is still prevented from using it for its primary purpose. Colgate again is coercing terms that guarantee Colgate acquires and keeps DKE property.

6. Colgate’s purchase offer to DKE requires it to waive all its legal rights “from the beginning of time” and to allow Colgate to change the rules applicable to DKE, including DKE’s elimination, at Colgate’s discretion. Again, DKE is eliminated if it refused to accept those terms and sell its property.

7. A classic example of Colgate’s intent to coerce the sale of the DKE house is evidenced by a member of its Task Force, the body that made recommendations to Colgate upon which it developed its “residential program,” that the sale of the Greek-letter houses at Colgate can be “forced with [withdrawing] recognition.” Colgate is readily aware that by threatening to withdraw recognition and prohibiting students not only from living in the DKE house, but ever using it for any purpose while they are matriculated at Colgate, that the DKE house will be rendered useless, the DKE Alumni Association will suffer significant financial losses, and the brotherhood would be destroyed, except if DKE concedes to the University’s demand to buy the property.

8. To further underscore its “DKE or die” object lesson, on September 8, 2005, Kelly C. Opapari, assistant Director of Residential Life and Director of Fraternity and Sorority Affairs at Colgate, met with the DKE student members to discuss the status of DKE as an unrecognized fraternity at Colgate. She informed the DKE student members that: (1) DKE was not allowed to perpetuate its organization; (2) if DKE members are engaging in group activities, they were prohibited from including freshman or sophomore males in those activities; and (3) no freshmen or sophomore males would be present at social events with DKE student members unless they have already joined another Greek-letter organization. Ms. Opapari suggested that student members of DKE not interact with freshman or sophomore males so as to create the perception that those individuals were being recruited by DKE for its organization. These restrictions are designed to destroy DKE and coerce the sale of its property (keeping in mind that all DKE brothers live in university-owned housing just like other Greek-letter organizations that are still recognized).

9. Colgate’s counsel implied that if I met with the student members of DKE on Homecoming weekend to discuss the merits of our lawsuit that the students would be in violation of Colgate policy and subject to discipline. This harsh restriction further coerces DKE student members to put pressure on DKE to sell it property.

10. If you interviewed the Greek alumni association presidents most, if not all, would tell you they sold their property because they felt “they had no choice.” Two alumni groups are suing to rescind the sale because of Colgate’s tactics.

Thus, Colgate’s demand that DKE must sell its property to the University to remain recognized and the disastrous results if the sale is not done, does not benefit Colgate itself materially but is calculated to harm DKE materially with respect to its business, financial condition, reputation and personal relationships between its student members and alumni.

Colgate has abused it residential program by requiring DKE to sell its property as a condition of remaining a recognized fraternity when all of its members are living in university-owned housing, in accordance with the primary purpose of the program. Colgate’s only purpose in offering such one-sided terms to purchase DKE’s property is to coerce it to give up its property or face elimination or be negatively effected materially with respect to DKE’s business, financial condition, reputation and personal relationships. Forget about tough business practices and hard bargaining. Colgate’s tactics here are within the criminal standards of '135.60.

DKE therefore requests that the District Attorney’s Office do a thorough investigation of this matter and present it for consideration by the grand jury on grounds of criminal coercion.

Very truly yours,

Thomas J. Wiencek

TJW/rjh

625297.1

bcc: Thomas P. Halley
Mr. Philip J. Wolfenden
Mr. Barry Ridings
Mr. John R. Wilson
Kevin Hulslander

Thomas P. Halley
2 Walnut Hill Rd
Poughkeepsie NY 12603

Mr. Philip J. Wolfenden
Fasken Martineau DuMoulin LLP
66 Wellington St W
Ste 4200, Toronto Dominion Bank Tower
Box 20, Toronto-Dominion Centre
Toronto, Ontario M5K 1N6
Canada

Mr. Barry Ridings
Lazard Freres & Company, LLC
30 Rockefeller Plaza
New York NY 10020

Mr. John R. Wilson
5740 Lake Island Dr NW
Atlanta GA 30327

Kevin E. Hulslander, Esq.
Smith, Sovik, Kendrick & Sugnet, PC
250 S Clinton St
Ste 600
Syracuse NY 13202-1252

Students & Alumni for Colgate, Inc.
2707 E. Willamette Lane, Greenwood Village, CO 80121
sa4c@sa4c.com