Does "Plain Language" of the Laws Point to Collusion Between 11/9/11 BOT, Freeh, and the AG?

The "plain language" of the laws reveal the PSU Three were wrongly charged and it was highly likely that the PSU BOT knew it.

By
Ray Blehar

Last Monday, August 18th,  I wrote that prosecutor Joe McGettigan told Judge Cleland they were not going to try the case of Curley and Schultz -- with the AG's intention to get one or both to flip and testify against Spanier.  That blogpost described the weak evidence against Spanier, specifically the testimony of (duplicitous) Cynthia Baldwin and e-mails of dubious provenance.

PSU Three:  Plain language of the FTR and
 EWOC laws don't support charges against them.

However, one of the biggest weaknesses in the case against results from the "plain language" of the laws, two of which which most assuredly didn't apply to Curley, and Schultz on 11/9/11.  This fact that was very likely known by the both OAG and the PSU BOT.

The Failure To Report (FTR) child abuse charge (23 Pa. C.S. § 6311)  and the Endangering the Welfare of Children charges (18 Pa. C.S. § 4304 A) don't apply because the law requires the abused children to be "under the care" of, or be provided or subject of PSU's " education, training, or control," respectively.

Failure To Report
In the 2001 FTR case, the victim was "unknown," therefore it was impossible for the Commonwealth to claim the "unknown" victim was under the care of, or affiliated with,  the PSU Three or PSU at large.  The "unknown" child was in the care of Jerry Sandusky, who was not a PSU employee at the time of the incident. The relevant portion of the statute follows (my emphasis added):

(a)  General rule.--A person who, in the course of employment, occupation or 

practice of a profession, comes into contact with children shall report or cause a 

report to be made or in accordance with section 6313 (relating to reporting 

procedure) when the person has reasonable cause to suspect, on the basis of

medical, professional or other training and experience, that a child under the 

care, supervision, guidance or training of that person or of an agency, 

institution,organization or other entity with which that person is affiliated is a 

victim of child abuse, including child abuse by an individual who is not a perpetrator....

Endangering the Welfare of Children
The EWOC charges are unsupported because the Victims 1, 3, 5, and 9, who all were allegedly abused after February 2001, were not provided "education, training, or control" by PSU.  The relevant statute follows below.  Please note that the grading of the offense is cited in section (b) which is  from the description of the offense in section (a).

(a) Offense defined.--

(1)  A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

(2)  A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).

(3)  As used in this subsection, the term "person supervising the welfare of a child" means a person other than a parent or guardian that provides care, education, training or control of a child.

(b)  Grading.--An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree. (Dec. 19, 1988, P.L.1275, No.158, eff. 60 days; July 6, 1995, P.L.251, No.31, eff. 60 days; Nov. 29, 2006, P.L.1581, No.179, eff. 60 days)

Spanier moved for dismissal based on May 16, 2013 (Note: filing is no longer on Dauphin County web-site)  based on the fact that the laws did not apply.  His motion was joined by Curley and Schultz.  Point 4 of Curley's motion follows:

The AG's Sleight of Hand

AG Linda Kelly obviously knew these laws didn't apply when they filed charges, and in the case of FTR, pulled some sleight of hand on November 7. 2011 when she permitted prosecuting attorney Frank Fina to retroactively apply language from the 2007 statute in the presentment (in violation of the ex post facto clauses of the PA and U.S. Constitutions) and  to charge Curley and Schultz for violating 18 Pa. C.S. § 6319 instead of  § 6311.

Just days earlier, on November 5, 2001, the 23-page Sandusky grand jury presentment (page 12) cited Curley and Schultz for violating 23 Pa. C.S. § 6311.  

Sandusky Grand Jury Presentment

Obviously, the other weakness in the citation in the grand jury presentment is that describing Curley and Schultz as school or institution employees is erroneous, according the the definitions of both a "school employee" (employed by a public or private school, intermediate unit or area vocational-technical school) and a student (under age 17) according to 23 Pa. C.S. § 6303.  Morever, neither Curley nor Schultz was the "person in charge."

Finally, one day earlier, a 24-page version of the presentment was attached as "Exhibit A" to the Affidavit of Probable Cause (i.e, criminal complaint).  That document cited Curley and Schultz for violating 23 Pa. C.S. § 6319 on page 24.  

What was the purpose of the AG omitting page 24, which contained a listing of charges for Sandusky, Curley, and Schultz, from the publicly released presentment?

Graham Spanier
As for Graham Spanier, the OAG didn't even bother to provide a citation of the statute in the Conspiracy of Silence grand jury presentment (page 39).  Just as in the cases of Curley and Schultz, the OAG charged Spanier for violating § 6319.

Given the falsity of the charges under § 6311, the AG cited § 6319 for the PSU Three because it does not enumerate who is actually required to report. See below:

§ 6319. Penalties for failure to report or to refer.

A person or official required by this chapter to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation. (Nov. 29, 2006, P.L.1581, No.179, eff. 180 days)

The Plain Language of the Law

Graham Spanier's November 6, 2011 statement, for which he was criticized by many for backing Curley and Schultz, was exactly right based on the plain language of the laws you have just read:

"Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and 

compassion. I am confident the record will show that these charges are groundless

and that they conducted themselves professionally and appropriately."

One of the most confounding parts of this entire scandal is that the Penn State Board of Trustees allegedly didn't bother to read the law before they made their decisions on 11/9/11.  If this is true, it would be yet another lapse of the Board's fiduciary responsibility under Standing Order IX. (1) (f) 4. which requires members to prepare diligently for each meeting. 

Surma : "We don't know anything..."

According to Board Co-Chair John Surma, the decision to terminate Paterno and Spanier was based on the members reading of the Sandusky grand jury presentment and related media reports.  An excerpt from CNN 11/9/11 press conference transcript follows:

"SURMA: The board deliberative process is, as it implies, a process that requires some time. There was information that we sought, although we don't know anything more about the actual details than the grand jury report and whatever you all write." 

Frazier:  Either colossally
failed to diligently prepare
or was in on the "railroad."

The lawyers on the board that night included Stephanie Nolan Deviney and Kenneth Frazier, who as General Counsel for Merck famously defended the pharmaceutical giant in the Vioxx case.  Frazier, in defending the Freeh Report and dismissing the Paterno report said this:

“In my personal opinion, the Paterno report strains to interpret the 1998 and 2001 emails and other documentation in ways that are at odds with the plain language of those documents,” Frazier said. “The Paterno report is therefore, largely non-responsive or irrelevant.”

It strains credulity that Frazier never bothered to check "the plain language" of the law when he read the grand jury presentment.

 And it also strains credulity that the legal firm, Reed Smith, that was retained by the PSU BOT, didn't check the FTR and perjury laws and realize they didn't apply.

Deviney: Also failed to diligently
 prepare for meeting.

One can likey conclude that Surma silenced Reed Smith and that Frazier and others in the know also remained silent about the laws during the Board's 11/9/11 deliberations.

As for Stephanie Deviney, instead of doing legal research. made her decision based on emotions.  According to the New York Times, Deviney remembered going to the bedroom of her 7-year old son to kiss him good night and she "thought of the mothers of all those boys in the presentment."

Collusion among AG, BOT, and Freeh

The PSU BOT and the PA OAG both had to know the FTR charges didn't apply to Curley and Schultz, and that the perjury charges also couldn't stick based on the uncorroborated testimony of Mike McQueary.  The AG's filing of those charges was wrong, as was the BOT's inaction to rebut the charges.  

It appears that both parties are using the Sandusky scandal as a deflection. The OAG has put the onus on PSU officials in order to cover-up the failures of the Pennsylvania Department of Public Welfare and the actions and in-actions of individuals at The Second Mile.  

Similarly, the PSU BOT gladly threw Paterno and the administrators under the bus very likely to deflect attention away from their business relationships with The Second Mile.  The Freeh Report, which Frazier called "comprehensive and thorough," made no mention of those relationships either.

It has been truly amazing to see that neither the AG Linda Kelly, the PSU BOT, and Louis Freeh had not a single bad word to say about Sandusky's victim farm.  Moreover, the Board put a provision in the Sandusky victim settlements that precluded them from suing the charity, according to settlement attorney Josh Rozen:  

"Under the terms of each settlement, the victims have agreed not to sue Penn State or Second Mile [Sandusky's former charity], and cede their right to sue Second Mile to the university, which plans to go to court to try to get the charity's insurer to reimburse the university for some of the claim amount, Rozen said."

Conversely, the PSU BOT has done everything in its power (e.g., the firings, accepting responsibility for the conclusions in the Freeh Report, agreeing to the NCAA Consent Decree and, paying victim settlements) to ensure that Curley and Schultz, then Spanier, would be convicted in the court of public opinion -- before the trials ever take place.

As Joe McGettigan said about the Curley and Schultz trial, "we don't plan to try that case."  

And they don't need to.

The court of public opinion, aided by the actions of the OAG, the Board, and the PSU administration, and Louis Freeh, has already convicted them.

Upon Further Review: BOT didn't vote to fire Paterno on 11/9/11

Contrary to the BOT's announcement, media reports and Baldwin's termination letter, the PSU BOT didn't actually fire Joe Paterno & Graham Spanier on 11/9/11

By

Ray Blehar

Surma:  Announced firings even
though no official vote was taken. 

On the night of November 9, 2011, PSU BOT co-chair John P. Surma informed the public of the Penn State Board of Trustees' decisions to remove Joe Paterno and Graham Spanier from their positions as head football coach and President of the University, respectively.  Both men's termination was effective November 9, 2011.

Also at the meeting, Surma announced the decisions that Rodney Erickson would serve as interim President effective November 9, 2011.

These facts appear to be indisputable and were documented in the minutes of the November 11, 2011 PSU BOT meeting.

After the announcements, Board Co-Chair John P. Surma participated in a question and answer session in which he explained the process and rationales used in the Board's decision making process.  Cutting to the chase, Surma's remarks gave all the impression that the board had deliberated on the personnel decisions and voted on the actions (Source: CNN):

SURMA: The board deliberative process is, as it implies, a process that requires some time. There was information that we sought, although we don't know anything more about the actual details than the grand jury report and whatever you all write.

We were working through the not entirely consistent processes of wanting to act swiftly and decisively, but also to be thorough and fair. And that resulted in these actions tonight. 

Surma's remarks and meeting minutes of November 11, 2011 both confirm that decisions were made to terminate Joe Paterno, effective November 9, 2011.  In addition, on November 15, 2011, then PSU General Counsel, Cynthia Baldwin wrote a termination letter stating that Paterno was terminated effective November 11, 2011, which was the meeting at which the actions of November 9, 2011 were documented in the minutes. 

From the moment of the termination, the public, including Penn State alumni, were under the impression that the Board had deliberated and voted to terminate Spanier and Paterno. 

That was not the case.  

Clemons: No vote taken
on the firing of Paterno

The decisions made on 11/9/11 did not result from a vote of the Board. That vote didn't happen until December 2, 2011.  This news report and video, the Executive Committee meeting minutes of December 2, 2011, trustee Al Clemens, and trustees who were interviewed by the New York Times in January 2012 provide the supporting evidence.

Clemens recalled : "After barely even any discussion of the matter, he says that the motion to fire Paterno was put on the table and, since no one verbalized an objection to it, the proposition was considered “passed.” 

In addition, Clemens was  upset that some board members had much more advanced notice/information about what was going on than others -- Clemens being in the latter group.

According to trustees interviewed by the Times recollection was the same as Clemens:

 "Surma, those present recalled, surveyed the other trustees — there are 32 — for their opinions and emotions before asking one last question: “Does anyone have any objections? If you have an objection, we’re open to it.”

No one in the room spoke. There was silence from the phone speakers." 

In other words, there was a total "abstention" of voting.  It was neither a unanimous vote of "yays" nor "nays."  It was indeed a travesty for Surma to announce a decision based on a unanimous abstention.

However it doesn't end there.

On March 12, 2012, after months of deliberations and consulting by PR flack Lanny Davis, Penn State and the BOT  finally made the official announcement of the reasons for firing Paterno and Spanier on November 9th.  That statement contained the falsehood that the board had reached a unanimous decision. 

"The Pennsylvania State University Board of Trustees has been asked by members of the Penn State community, including students, faculty, staff and alumni, to state clearly its reasons for the difficult decisions that were made unanimously on the evening of Nov. 9, 2011 -- to remove Graham Spanier as president of the University and Joe Paterno as head football coach for the remaining three games of the 2011 season. Our decisions were guided by our obligation as Trustees, always, to put the interests of the University first."

Under the Standing Orders of the Board of Trustees in effect at the time (revised May 13, 2011), the decisions of 11/9/11, which brought considerable damage to the University's image and reputation and resulted in tremendous financial costs, did not result from a valid process.  As such, the Board members failed to execute those decisions consistent with their "Expectations of Membership."  

The 11/9/11 members violated Standing Order IX. (1) (f) 4 and 6. because supporting materials and information were not provided to all board members and the decisions made were not reached as a Board, respectively.  

ORDER IX. GOVERNANCE OF THE UNIVERSITY 

(1) Role of the Board of Trustees in University Governance

(f) Expectations of Membership. In exercising the responsibilities of trusteeship, the Board of Trustees is guided by the expectations of membership, each of which is equally important:

1. Understand and support the University's mission, vision, and values

2. Act in good faith at all times and in the best interests of the University in a non-partisan manner

3. Make the University a top philanthropic priority to the very best of one's personal ability
4. Prepare diligently, attend faithfully, and participate constructively in all Board meetings and related activities by reading the agenda and supporting materials.

5. Speak openly within the Board and publicly support decisions reached by the Board

6. Make decisions and instruct the administration as a Board, not as individuals

7. Participate regularly in events that are integral parts of the life of the University community

8. Disclose promptly and fully any potential or actual conflicts of interest, and personally maintain exemplary ethical standards

9. Refrain from requests of the president or staff for special consideration or personal prerogatives, including admissions, employment, and contracts for business

10. Maintain confidentiality without exception

11. Advocate the University's interests, but speak for the Board or the University only when authorized to do so by the Board or the Chair

12. Respect established channels to acquire information or open communication with constituents

13. Extend goodwill to one another and to all members of the University community.

Surma: Led faction of BOT members who
"crammed down" firing of Joe Paterno

Without a vote according to Roberts Rules of Order,  (i.e., motion, second of the motion, and calls for supporting/opposing votes)  the decisions of 11/9/11 should be considered those of a few individuals.  The Board realized its mistake in not following the Rules, thus they conducted the actual vote (i.e., a "do over") to fire Paterno and Spanier on December 2, 2011.  Rather than call it what it was, the Executive Committee referred to it as a vote to "reaffirm and ratify" the Board's Nov. 9th decisions.

Even though Board decisions were presented as unanimous, press reports and other information revealed the Board members were split on the decision to terminate Paterno and Spanier.  

There was also a failure of those who opposed termination on 11/9/11, who should have insisted that a vote be taken before any decisions were presented as Board decisions.

These failures are a breach of fiduciary responsibility in accordance with Section 8.07 of the PSU BOT By-Laws.

The entire 11/9/11 Board failed to uphold their fiduciary responsibilities in permitting a public announcement of decisions that were not reached by a valid process under the Standing Orders.  Then after the decision, the Board was untruthful in saying the vote (that didn't happen) was unanimous.

The impact of this decision in financial terms was put at $177 million in November 2013.  The decision has also impacted revenues related to charitable donations, merchandising, and football ticket sales (details here).  The damage to Penn State's image and reputation was even worse.

Firing was the result larger, overriding governance issue

Former Board members Bob Horst and Ben Novak have written about the history of the BOT and both concluded that all decision making power is vested in a small group of individuals. 

Horst, who served on the BOT from 1992 to 1995, contended:

"The way the board really seems to work is that the board chair or vice chair (or both) emanate from the “industry trustee” group. There are six industry trustees in total. In my time, they formed the de facto executive committee along with elected officers. The rest of the board just approved what they put forward."

Novak, who served from 1998 to 2000, contends the decision making power is vested in a group smaller than the full Executive Committee.  To wit:

"The Power Group is a self-selected group of the wealthiest and most powerful members of the Board consisting of from three to five Trustees who consider themselves the real Board. They hire and fire the president; set the salaries of the top administrators (and their retirement packages and benefits); meet or talk with the president frequently; fly around in the president’s jet; attend meetings around the country on behalf of the University; and approve of all the policies the president sets. They do this with little or no input from the majority of Trustees.

While the president of the University is a member of this group, he remains president only so long as this group considers him one of them. Indeed, there is almost no distinction between this first group and the administration itself."

The evidence from 11/9/11 forward appears to support both Horst's and Novak's analyses.

1.  The firing of Paterno and Spanier was not voted on by the full board on 11/9/11. A few trustees led by John Surma "crammed down" the decision to fire JVP.  On December 2nd, 2011, the Executive Committee voted to fire Paterno and Spanier.

2.  The Freeh Report was not voted on by the full board.  Instead, Karen Peetz, Kenneth Frazier, and Rodney Erickson accepted the report's findings and recommendations.  Make no mistake, when Peetz and Frazier "accepted responsibility" for the failures cited in the report that was an admission of acceptance.

3.  The NCAA Consent Decree was not voted on by the full board. Instead, it was discussed between Erickson and a few other (unnamed) trustees.

In conclusion, the most consequential - and disastrous - decisions affecting PSU have been made by a small group of trustees and/or the Executive Committee.  As a result, it is easy to identify the governance problem at PSU -- and it has nothing to do with the structure of the BOT.

As Jim Collins wrote in Good to Great, the most important decision a leader can make is who is on his leadership team:

“Get the right people on the bus, the wrong people off the bus, and the right people in the right seats.”

It's time for President Barron to tell Dambly, Eckel, Frazier, Hintz, Huber, Masser, Peetz, Shaffer, and Silvis to get off the bus.


Note: Trustee Al Clemons demonstrated the type of character we expect from our trustees when resigned and admitted the mistakes of the BOT in firing of Paterno and the BOT's tacit acceptance of the Freeh Report.