Old Main's Leaks & Confidentiality Smokescreen

In June 2012, Ken Frazier was cheerleading for the expected "leaks" to be featured on the Today Show and when they occurred, Old Main said little.

By
Ray Blehar

In the most recent round of filings over access to the Freeh Source materials, Penn State's legal team, led by William Odea, argued (at 44) hypothetically that confidentiality must be maintained because if a person applied to be President of the University, and the alumni trustees  "leak the information that that person has applied and it undermines them and that's it."

So, they're afraid "leaks" might undermine someone?  Really?

Let's flash back to June 11, 2011....

Frazier: Cheerleader For Leaks
Former Board of Trustee (BOT) member, Ken Frazier, who was the co-chair of the Special Investigations Task Force (SITF) that oversaw the Freeh investigation, was cheerleading for the leaking of grand jury information to the media.   

The email below, obtained by PSU alumnus Ryan Bagwell, shows Frazier's June 11, 2012 communique to SITF co-chair Ron Tomalis the Freeh group alerting them that the emails (gathered in response to a 2011 grand jury subpoena) might be featured on the Today Show.  

How did Frazier know that grand jury information was going to be leaked?  And who was in on the leak?  

The short list includes Old Main, the PA OAG, the Freeh group, and the NCAA.      

Old Main Stays Silent, Masser Condemns 

At the bottom of the email, it's clear that the University did not decry the leaked information, but instead stated "it cannot comment."   Ironically, it went on to state it would "cooperate" to "determine what happened and ensure personal accountability."

So, did Old Main attempt to find out who leaked the information and hold them accountable?

Of course not -- and the reason was that "elephant in the room."

Old Main and the Board needed Freeh's investigation to justify the firings of Spanier and Paterno.  The leaks helped advance their cause.

The next day, Old Main and the Board got the rest of what they were looking for when Tomalis mentioned that an article from the Philadelphia Inquirer "had the Paterno hook."  In other words, it mentioned that Paterno was referenced in the 2001 email.

At the time the emails were leaked, neither former President Graham Spanier nor the late Joe Paterno had been accused criminal conduct.  After the leaks, papers reported that Spanier (and Paterno had he been alive) could be facing criminal charges.  But there were no sentiments from Old Main about either man being "undermined" by the leaks.

Masser: Begged forgiveness for
his unauthorized statement  

Instead, then BOT vice-chair Keith Masser took the opportunity - based on excerpts of emails - to sway the court of public opinion and convict Spanier, among others, of not informing the proper authorities.

"It now appears like top administrative officials and top athletic officials were involved in making the decision to not inform the proper authorities."

 "From a board standpoint it was Judge Freeh's investigation that found these emails that relate Spanier, Curley and Schultz to the suspected cover-up."

Masser faced calls for his resignation over his statement.  PS4RS opined that Masser's  statement could be interpreted as an official position and used against Penn State in a court of law.  In another email, Frazier apparently echoed that sentiment, opining Masser's statement was "unhelpful." 

Masser later retracted his statement and apologized to the Board. 

Selective Undermining 

The engagement letter between the SITF and Freeh stated that the Freeh, Sporkin, and Sullivan (FSS) group would: "immediately report any evidence of criminality to the appropriate law enforcement authorities and provide notice to the Task Force" and  "communicate regarding its independent investigation performed hereunder with media, police agencies, governmental authorities and agencies, and any other parties as directed by the Task Force."

On April 12, 2012, SITF Co-chair Ron Tomalis sent an email to Freeh and Frazier regarding a recent media report that Graham Spanier was to begin employment in a national security position.  Tomalis sarcastically noted that "someone might not have done their homework."

Freeh responded that "we have done our job in notifying federal prosecutors."

Spanier's clearance was revoked as a result of the information passed to the federal government by Freeh.  

Rewind the clock to December 2011 and you'll see that Freeh didn't abide by the engagement letter when it was determined that Cynthia Baldwin was facing charges of contempt.

Lead Sandusky prosecutor, Frank Fina, sent a letter to then-PSU General Counsel Cynthia Baldwin castigating her for failing to comply with a subpoena concerning Sandusky's retirement information, as well as for a "lengthy history of noncompliance."   

Fina stated that the Sandusky retirement information had just been received on December 19, 2011, nearly a full year after it was originally subpoenaed. 

The December 19th letter from Fina set off a chain of emails between Frazier, Tomalis, Omar McNeil of FSS, and PSU hired attorney, Frank Guadagnino regarding what to do about Baldwin.

Frazier, Freeh and Tomalis: Torched
Spanier, but let Baldwin walk away

Frazier: "I just finished speaking with Frank. I explained why I think there are issues with the incumbent [Baldwin].  He agrees.  I believe he will be providing that advice to Surma when they meet tomorrow.

McNeil:  "any further need for Louie to follow up? I trust that Frank got a clear message from you."

Frazier:  "I think I was very direct. After hearing my position he said he was already thinking in a similar direction. No need for Louie to call." 


Frazier's coded language -- "issues with the incumbent" --  was a reference to the OAG's  "intent to pursue contempt" charges against Baldwin.

On January 16th, 2012, the board held a briefing call about "Strategic Issues Moving Forward."  

The next day, Baldwin announced her retirement.  The media reported her retirement was unrelated to the Sandusky scandal.

It's very likely that FSS asked if they needed to intervene or follow-up because Baldwin was not one of the "targets" of their investigation.  When they asked, the SITF told them to stand down. 

Conclusion

As stated in my last post and as above, the elephant in the room regarding the position of Old Main not to allow review of the Freeh Source materials is that it is all about self-interest.

The Board majority voted, without making a single statement to support their position,  to pay out untold millions of dollars to prevent the legal team of Victim 9 from accessing those documents.  

Undoubtedly, the source materials would prove what most people already know -- the Freeh Report's pre-determined conclusions weren't based on any real evidence.  Tampered evidence, maybe, but not real evidence.

Two lawsuits involving the Freeh documents pit the Board majority and Old Main against opponents who won't and can't be bought.

The smokescreen is lifting.

PSU's Confidentiality Promise Already Broken

PSU's recent filing denying alumni trustees access to Freeh's source materials falsely argues that Freeh went to great lengths to protect employee confidentiality - but analysis proves otherwise.

By
Ray Blehar


PSU's latest court filing attempts to justify denying the alumni-elected trustees access to the Freeh investigation source materials by arguing that if the alumni trustees have unfettered access to the documents, then the confidentiality of individuals will be compromised.

Then, in typical Old Main fashion, the filing goes on to make the absurd assertion (p. 7)  that the Freeh Report maintained the confidentiality of those interviewed during the (phony) investigation.

"Consistent with the promise to the interviewees, the Freeh Law firm went to great lengths in the Freeh Report to maintain the confidentiality and anonymity of the interviewees."

Really?

Confidentiality Promise Already Broken

The University's confidentiality promise to interviewees didn't last any longer than it took to post the Freeh Report to the internet. 

Anyone with a knowledge of the University and the Sandusky case can read the Freeh Report text, end note number, and dates of interviews and easily determine the identities of the following individuals:

Cynthia Baldwin:                         Interviewed on 1-4-12, 2-28-12, and other dates  
Kimberly Belcher:                       Interviewed on 1-12-12 and 4-12-12
Ronald Schreffler (retired):        Interviewed on 1-4-12 and 2-28-12  
Steven Shelow:                           Interviewed on  2-1-12
Steve Garban (trustee):             Interviewed on 2-20-12 
Rodney Erickson (retired):        Interviewed on  4-12-12
Ted Junker (emeritus trustee):  Interviewed on  4-23-12
Ronald Petrosky:                        Interviewed on 7-2-12 
Graham Spanier:                        Interviewed on: 7-6-12

If you read the actual footnotes, it is obvious that former Dean of Student Affairs, Vicky Triponey, and PSU football equipment managers Kirk Diehl, and Brad Caldwell  were also interviewed.  

There are other non-University employees who can be identified as well, but for the purposes of this blog, I'll stick to just employees and former employees. 

Use of the Flawed Freeh Report

The Freeh Report was advertised as the outcome of "an independent, full and complete investigation" of the alleged failures to report the abuse by Jerry Sandusky and the circumstances that gave rise to the abuse on the PSU campus.   The Freeh Report press conference dealt a devastating blow to Penn State -- so much that few even bothered to read the report.

The attorneys for the Sandusky scandal claimants certainly were among those who did, however.

Each of the filings of claimants D.F., Victim 6, and Victim 9 relied heavily on the conclusions of the Freeh Report -- which trustee Ken Frazier said were "not as clear and irrefutable as some people think they are."

Barron's recent statement that the Freeh Report has no bearing on future decisions is complete nonsense. Other pending lawsuits depend on the Freeh Report's findings and conclusions.

Those who carefully reviewed the report concluded that Freeh cherry-picked evidence to arrive at a pre-determined conclusion that was aligned with the PA OAG's prosecution and to support the BOT's removal of Spanier and Paterno.  

In the years following the report's release, evidence surfaced that proved Freeh lied about his "independent discovery" of the emails (see Moulton Report, page 158), his team's discovery of the Schultz secret file, and that he purposely withheld evidence from the report indicating state and county child protective services ignored the psychology report of Dr. Alycia Chambers (in 1998).   

Despite these facts coming to light, the PSU BOT made no attempt to correct the record nor did they retract their July 12th, 2012 acceptance of the Freeh Report.  Even though doing so would have made it possible to avoid paying out millions of dollars in claims and fines. 

Instead, former President Erickson, President Barron, and Board Chair Keith Masser have doubled down on the statement that Penn State accepted the report for "the limited purposes of the NCAA Consent Decree" -- which was signed eleven days after the report was accepted.  

There are two conclusions that can be drawn from the "accepted for the limited purposes" statement:  
1) The Board's inner circle and the NCAA had a draft consent decree in the works on July 12th; or,
2) the statement is a baldfaced lie.  

Documents from the Corman v. NCAA lawsuit overwhelmingly support "baldfaced lie."

More False Statements

The recent filing also makes a variety of statements that are flatly false and/or unsupported by evidence. For example:

1. It states the Board approved the proposal not to "re-examine" the Freeh Report, however there cannot be a re-examination because an examination had never been conducted. Trustee Lord's proposal, had it been successful, would have resulted in the initial examination of the Freeh Report by the Board.

Freeh Report Acceptance on July 12, 2012

2. It states (on page 8) that the Board has never relied on the Freeh Report to make decisions or make judgments about individuals, but that statement is rebutted by the video evidence of BOT member Ken Frazier defaming PSU officials based on the report's conclusions.

3. It states (on page 13) that it voted against "re-investigating" the Freeh Report, even though no such proposal was ever made. See #1.


4. It states the alumni trustees are seeking access to the Source Materials and to conduct an evaluation to support their own ends, but the filing provides no evidentiary support citing what those ends were.  Ironically, the report cites statements from the alumni trustees that clearly state the benefits to be gained by the University of such a review -- notably, increased transparency.

5. It states there are no pending or future matters that require access and/or review of the Freeh Report Source Materials.  This is patently false because PSU's financial statements are clear on the fact that the University is unable to predict the outcome of pending litigation or the ultimate legal and financial liabilities.  As noted earlier, nearly every lawsuit against the University relied on the conclusions drawn in the Freeh Report. 

The assertion by Barron and others that the Freeh Report doesn't impact the University's business or mission of educating students is defied every time there has been a tuition increase because of shortfalls in the University budget.  Undoubtedly, monies being spent related to the Freeh Report would have lessened tuition increases, or in the case of 2013, completely offset them.

I am sure the attorneys for the alumni trustees will have a field day with Old Main's lame filing. But court battles to get to the truth take time and the University continues to construct impediments or throw money at individuals to make them go away.   

Barron and his cohorts must know that their plan to get us to move forward failed.  They also must know that their plan to wait us out and hope we go away is also futile.  Now they are just stringing out the time until the lid is blown off...but that time will be here quicker than they think.

The truth cometh and that right soon.