Acknowledgment: The Pennsylvania Department of Education provided e-mails and lists of exempted e-mails in response to their requests for information under the Right To Know requests filed by Ryan Bagwell and Bill Cluck. It is only through Ryan's and Bill's diligent efforts and their willingness to share this information that I can provide the following analysis.
An on-going analysis of the Right To Know (RTK) e-mails that were released, information about e-mails that were exempt from RTK, and press releases/reports indicate that PSU Board of Trustee members Kenneth Frazier (Business and Industry) and Ronald Tomalis (Education Secretary), with likely influence from Governor Tom Corbett (Ex-Officio) narrowed the scope of Louis Freeh's inquiry about the Sandusky Scandal.
What began as an investigation of broad scope about the incidents that gave rise to the Grand Jury report became limited scope investigation targeting only a few PSU employees who were part of a larger group of employees that received a contemporaneous report of the 2001 incident. The upcoming trials or the investigation of Kathleen Kane undoubtedly will reveal some of the others who knew and when they knew it. However, this report focuses specifically on the changes in the scope of Louis Freeh's inquiry and the likely reasons for the change.
Original Special Investigations Task Force Plan - November 7, 2011
Shortly after midnight on November 7th, then-President Graham Spanier and then Board Co-Chair Steve Garban made a joint statement following up on the original November 6th release about the Sandusky allegations and impending scandal. The statement was crafted during an hours long meeting of the Board (reference Lisa Powers Preliminary Hearing Testimony) in which various members of the BOT had provided drafts of their ideas on the scope of the statement. Spanier, Garban, Powers, and others exchanged e-mails to craft the statement from the drafts into a single message for release to the press. The release would address the status of Tim Curley and Gary Schultz, as well as the plans of the BOT to address the scandal.
The key points of the message were attributed to Steve Garban, as follows:
The appointment of a task force that will seek external legal counsel and an independent review of policies and procedures for the protection of children.The public announcement of findings generated by the independent review. A review, with administrators, of police reporting protocols. An enhancement of "educational programming around such topics.
Members of the Board of Trustees reinforced that Penn State is committed to honesty, integrity and upholding the highest ideals."
Some members of the board, including Garban, expressed disappointment with the statement and said it did not reflect the "sense of the Board." Specifically, the Board was upset that the statement reflected that Curley requested and was granted administrative leave and that Gary Schultz had re-retired. According the the Freeh Report (page 93), the Board recalled it was their decision to place Curley and Schultz on administrative leave (Note the inaccuracy of the Schultz decision reflected in the Freeh Report, as Schultz re-retired and was not place in administrative leave status by the BOT).
PSU Board of Trustees Expansion of Scope - November 8, 2011
On November 8th, Garban announced he was turning over the "leadership" of the Board to John Surma. According to a factually challenged statement in the Freeh Report, Surma then told the Board that he intended to form a special committee to deliberate on Spanier and Paterno's leadership. As the facts (not the Freeh Report) show, this task force had a much more extensive mission than deliberating on the status of Paterno and Spanier and the November 8 press release proves that the announcement was an expansion on the themes reflected in the November 7 press release by Spanier and Garban. I have added emphasis on the passage reflecting the BOT's proposed scope of the investigation. The press release of November 8, 2011 follows:
"The Board of Trustees of The Pennsylvania State University is outraged by the horrifying details contained in the Grand Jury Report. As parents, alumni and members of the Penn State Community, our hearts go out to all of those impacted by these terrible events, especially the tragedies involving children and their families. We cannot begin to express the combination of sorrow and anger that we feel about the allegations surrounding Jerry Sandusky. We hear those of you who feel betrayed and we want to assure all of you that the Board will take swift, decisive action. At its regular meeting on Friday, November 11, 2011, the Board will appoint a Special Committee, members of which are currently being identified, to undertake a full and complete investigation of the circumstances that gave rise to the Grand Jury Report. This Special Committee will be commissioned to determine what failures occurred, who is responsible and what measures are necessary to insure that this never happens at our University again and that those responsible are held fully accountable. The Special Committee will have whatever resources are necessary to thoroughly fulfill its charge, including independent counsel and investigative teams, and there will be no restrictions placed on its scope or activities. Upon the completion of this investigation, a complete report will be presented at a future public session of the Board of Trustees. Penn State has always strived for honesty, integrity and the highest moral standards in all of its programs. We will not tolerate any violation of these principles. We educate over 95,000 students every year and we take this responsibility very seriously. We are dedicated to protecting those who are placed in our care. We promise you that we are committed to restoring public trust in the University."
PSU Board of Trustees Meeting (same scope as 11/8) - November 11, 2011
There is no mention of this meeting in the Freeh Report, likely because it provides significant understanding of why the Freeh Report only focused on the acts of PSU officials and did not consider the failures of the Pennsylvania Department of Public Welfare, Office of Children and Youth Services (Centre County) and The Second Mile. According to the minutes of the meeting, Paula Ammerman repeated the statement of November 8, 2011, as follows:
"A statement was released on Tuesday, November 8, noting that the task force will undertake a full and complete investigation of the circumstances that gave rise to the Grand Jury Report. It will be commissioned to determine what failures occurred, who is responsible, and what measures are necessary to insure that this never happens again. There will be full accountability to those found responsible. All resources will be made available for the committee to fulfill its chargeThere will be full accountability for and there will be no restrictions placed on its scope or activities. Upon the completion of this investigation, a complete report will be presented at a future public session of the Board of Trustees."
At that point, Ammerman turned the floor over to Kenneth Frazier for his remarks and that's when the high-jacking took place.
The Frazier/Tomalis High-Jacking
"Thank you, Mr. Chair. I would just start by saying that the special committee will take very seriously its charge of conducting a complete and independent and separate investigation which will be viewed as rigorous, objective, and impartial into the matters that you just discussed. I would also say that the Board has made it clear that sexual abuse, and in particular, child sexual abuse is completely unacceptable in any setting, but it has absolutely no place at Penn State University, and because of that, the special task force will bring all of its resources, including independent counsel to determining whether or not officers and employees of the University acted responsibly in connection with these allegations and whether, going forward, we need any changes to the University's policies or procedures to ensure the protection of children in the future. So, I will only say that, along with Secretary Tomalis, we will do everything in our power to ensure that we give the community, our students, their parents, and our alums the best indication that we've looked at everything, talked to everyone, looked at all the documents that we can, with the help of outside counsel, and that we are going to get to the bottom of all of these matters. I appreciate your support and I look forward to reporting back in the future."
First, it should be noted that at the time Frazier made this announcement, PSU had yet to name the members of the task force and, as e-mails show, deliberated on who its members would be until November 17th. Therefore, the narrowing of the scope from a full investigation to just on PSU officials was decided not by the full task force, but by Frazier and Tomalis. It is also notable that a public announcement of the report's result also appeared to be taken off the table.
It is also important to note that at the time that Frazier and Tomalis made this decision, they would have had access to the 1998 University Park Police Report, which then PSU Counsel, Cynthia Baldwin obtained in January 2011. As most readers of this blog know, the 1998 police report indicates the lackadaisical nature of the DPW investigation on one hand, and the diligence of the University Park police, particularly Detective Ronald Schreffler, on the other. Also, as most readers of this blog know, the 1998 police report was also noticeably absent from the Appendices of the Freeh Report.
Clearly, the November 2011 Grand Jury Presentment diminished DPW's and CYS's roles in the 1998 investigation, essentially laying the blame for not bringing Sandusky to justice on the University Park Police and then-District Attorney, Ray Gricar. It seems quite obvious that the Commonwealth of Pennsylvania, represented by Tomalis, as well as the Governor, pursued a similar strategy in ensuring that the PSU inquiry focused just on PSU and not the Commonwealth's agencies (or The Second Mile).
The question to many is why would Frazier go along with this and not pursue a full investigation, as originally planned? And how did we end up with Louis Freeh, the disgraced former FBI Director, headlining the investigation?
RTK E-mails and Exempted Lists Provide Insights
The earliest e-mails involving Tomalis are on November 5, 2011, when he was informed the BOT would meet in Executive Session that day. Since Tomalis was not a member of the Executive Committee, it is unknown why Paula Ammerman informed him of the meeting. However, on November 8, shortly after the BOT announced the formation of the Special Investigations Task Force (SITF), Tomalis sent an e-mail to Steven Aichele, Pennsylvania's General Counsel, and J. Schultz, subject RE: Attorney Recommendations. Apparently, this was for the special counsel attorney position because PSU had already gotten its legal representation for the Sandusky scandal in place by November 6th.
One of the attorneys considered for the job was Philadelphia suburbs Congressman Pat Meehan. Tomalis and Frazier exchanged e-mails about Meehan on the afternoon of November 11th. Later that evening, four more e-mails were exchanged with the subject "Re: Gov." between Frazier and Tomalis. While we know that Louis Freeh eventually got the position - with Corbett's effusive praise - the story of why Meehan was not selected is easily answered by an internet search or two.
While Meehan was the U.S. Attorney operating from Philadelphia, he utilized the FBI to assist in wiretapping of a city official suspected of dealing drugs. However, the wiretap evidence revealed widespread municiple corruption, as well as tax evasion, embezzlement, and extortion, which were then prosecuted by Meehan. Apparently, Frazier, Tomalis, and Corbett didn't want anything to do with a lawyer who might end up following the evidence that could have/would have led to arrests for similar crimes.
It is highly probable that Meehan's history disqualified him for the investigation at PSU. Corbett likely preferred a hired gun like Freeh, who had more than a little history with manipulating evidence.
On November 14th, Frazier's administrator notified him that Governor Corbett wanted a conference with him the following day (the 15th) at 2:45PM. Frazier forwarded an e-mail of the meeting notice to Garban, Surma, and Tomalis. Later that evening, Frazier and Tomalis exchanged e-mail, very likely regarding participation of "Distinguished Alumni" on the SITF.
November 15th brought more deliberation on Alumni Representation on the SITF between Ammerman, Garban, Surma, Frazier, and Tomalis. These deliberations would continue for most of the day on the 17th, until they arrived at a decision to invite former astronaut Guion "Guy" Bluford to represent alumni on the panel. Also on the 17th, Frazier and Tomalis discussed bringing in a "PR Pro" and the firm Kekst was considered. It is not clear if Kekst was hired or that if Ketchum supported the PR effort that would ensue on November 21.
On November 18, Frazier and Tomalis exchanged two e-mails titled "Re: Monday Press Briefing Memo," and forwarded "FW: Monday Press Briefing Memo" to Garban and Surma. This memo was apparently for the announcement of the selection of Louis Freeh. The Freeh engagement letter is dated November 18, confirming the purpose of the e-mails.
The next afternoon (19th), Paula Ammerman sent an e-mail to all trustees announcing a briefing call for Sunday, November 20th.
The hiring of Louis Freeh was announced with much fanfare on November 21st.
Corbett Responds to SITF and Freeh HireGovernor Corbett's responses to a November 22, 2011, Question and Answer session on the investigation appear to be quite transparent in light on the RTK information:
Q: If it is necessary, will your administration support extra money for Penn State's internal investigation, and do you worry that the investigation will obstruct or get in the way of the attorney general's investigation?
Corbett: Ah, let me talk about the Penn State investigation first.
I'm very pleased with Ken Frazier leading that. Ken – I've only known him a short time – but I'm very impressed with his leadership. I'm very impressed that he has put together some people, including Ron Tomalis, on behalf of the administration and also as [state] secretary of education, on that team, and the selection of Louis Freeh is I think a very good one. I'm sure most of you by now know the former director of the FBI and former federal judge Louis Freeh was appointed.
And I think one of the reasons that someone like Mr. Freeh was appointed is because he understands the role of a grand jury investigation, the role of the prosecutors and will work well with the attorney general's office and Attorney General Linda Kelly so that [obstruction of the attorney general's investigation] does not happen.When it comes to the financial side of it, we'll cross that bridge when we get to it.
Q: Can any investigation of Penn State be truly credible if it is not truly independent? Why should the board of trustees be allowed to investigate itself?
Corbett: "Well I think the board of trustees has to investigate on their own what was done and what wasn't done, and this is an investigation done according to them.
I'm not sure who would have the authority to do an independent investigation.
I'm sure that the General Assembly will ask the questions. I'm sure the attorney general's investigation continues to look into what happened.
But I think it's the responsibility of the board of trustees, from their perspective, to determine what they were told, when they were told, why they were told, who told them, who knew what – you all can ask the questions – but it's their responsibility, the fiduciary responsibility to, as the board of directors for want of a better description, deal with Penn State. They're the ones who have to authorize the investigation.
And there you have it.
Penn State decided to investigate Penn State because they're the only ones who can authorize it -- so said Governor Corbett - whose fingerprints are all over it.