Joel Myers vs Graham Spanier - THE PENN STATE CULTURE

by Barry Bozeman

Saturday April 11, 2014, In an article on State College dot com, Joel Myers is credited with the following remarks:

"..... three former Penn State administrators, including former President Graham Spanier currently face criminal charges for allegedly trying to cover-up the Sandusky scandal. The board decided to terminate Spanier in the wake of the scandal. 

Joel Myers says Graham Spanier had too much authority at Penn State. 

"Here we had a situation where the board had to act over a couple of days and it became obvious Graham Spanier hadn't kept the board informed," Myers says. "Graham Spanier had a lot of authority, he had in retrospect far too much. ... Obviously he didn't keep the board informed with things they should know about." 

In response, Lubrano challenged Myers, saying the board should be held responsible for allowing Paterno and Spanier to have too much power. Myers argued the board took responsibility with its actions to remove Paterno and Spanier as well as moves to reform the communication and organizational models of the board and administration."

These remarks come along with his justification for the firing of Joe Paterno -- a subject this website has covered in copious detail. Everything that we need to know about Joe's correct and appropriate action has been discussed in great detail repeatedly. We have been remiss in not considering Graham Spanier's role in what happened at Penn State.

It is our contention that, had the Board followed Dr. Spanier's lead, Penn State would be in a far better position today -- morally, ethically, and financially.  Dr. Spanier did two things about which we are certain:  1) He told John Surma that firing Joe Paterno would be a terrible mistake; and 2) He publicly announced his full support of AD Tim Curley and VP Gary Schultz.

Graham Spanier with Joe Paterno

Spanier called the allegations against Sandusky "troubling" and added that Curley and Schultz had his unconditional support.  He predicted they would be exonerated.  "I have known and worked daily with Tim and Gary for more than 16 years," Spanier said. "I have complete confidence in how they handled the allegations..." 

Despite knowing the personal risk Spanier did the right thing - and the BOT fired him for it while Corbett's AG indicted him.

2 1/2 years later, those comments appear to have been absolutely appropriate. 

By contrast, the Board (including Joel Myers) acted in a panic, driven by a media tsunami that was set off by the lies contained in then-Attorney General Linda Kelly's Presentment. The Presentment contained the fabrication that Mike McQueary saw a boy "being subjected to anal intercourse" and told Joe Paterno, Tim Curley and Gary Schultz exactly that. The Board reacted based on those lies and that media pressure. When the Trustees fired Joe and Graham, they sent a message to the world that the Penn State Board believed these key employees to be guilty. That act signaled the world,that the Trustees accepted liability on behalf of the University for the crimes of Jerry Sandusky -- a man who had not been employed by PSU for 11 years. 

Had the Board followed Graham Spanier's advice, it would have crafted a statement for the press expressing the deepest concern, pledging full cooperation with any investigation, recommending that everyone allow the legal process to run its course, and stressing that all accused individuals are "innocent until proven guilty" in a court of law.  Had the BOT taken that reasonable and proper stand, this would be the situation today:

1) Joe Paterno would have retired at the end of the season, with no riots or demonstrations.

2) Penn State attorneys would have tabled any claims by Sandusky's victims until the adjudication of the proceedings against the Penn State administrators.

3) The FREEH investigation would have been done by investigators working for the defense of Penn State and locating the exculpatory evidence.

4) The NCAA would have been forced to conduct its own investigation, if it deemed an investigation necessary, and no sanctions would have been issued.

5) Penn State would currently be in a position of power instead of being powerless. The Commonwealth would have been required to prove, beyond a reasonable doubt, the guilt of Graham Spanier, AD Tim Curley, and VP Gary Schultz -- a very daunting task given the contradictory statements by its only witness to perjury (Mike McQueary) and the breach of attorney-client privilege by Cynthia Baldwin. 

The appropriate actions required in November 2011 were common sense. Any individual or organization facing charges takes similar actions. A Presentment is a "best case for indictment" document brought to life through the writings of the prosecution, using testimony and evidence never tested by a defense, exculpatory evidence, or cross-examination. It is merely an accusation -- certainly not a verdict. 

In our "Conflicts of Interest" series, we have offered the reasons why a group of seemingly intelligent individuals with positions of power would do something so damaging to the best interests of the institution to which they owed a fiduciary duty. See Uncommonly Complete Conflicts of Interest  and Uncommonly Clear Conflicts of Interest   

But let us go further in discussing Spanier's role and Joel Myers' deliberate misunderstanding of it.

Myers claims Spanier did not keep the Board fully informed.  So Joel, what did Graham know that you were not told? 

See Appendix A at the bottom of this article for an essay on what Graham Spanier might have known from Tim Curley and Gary Schultz 

Enter Cynthia Baldwin -- Who should have kept the Board informed?

Cynthia Baldwin was a member of the Board of Trustees for many years. She served a three-year term as chair of the Board while an appointee of the Governor.  Baldwin became Vice President and General Counsel at the time the Board wished to move from an outside law firm's partner as general counsel to having an in-house general counsel office.

As PSU General Counsel, Baldwin also served as legal counsel for the Board of Trustees.  She served the ENTIRE Board and attended all board meetings. 

Ten years after the incident McQueary witnessed, Cynthia Balwin was the person who received all legal correspondence and information concerning any Grand Jury appearance by any of the Penn State employees or administrators. It is Balwin who sat in on every session of the Grand Jury with President Graham Spanier, AD Tim Curley, or VP Gary Schultz. 

All information about the Sandusky matter was in the hands of Cynthia Baldwin, not Graham Spanier.  She was the one in touch with the AG's office. She was the one receiving subpoenas. She sat in on three grand jury testimonies and numerous interviews with football staff.  She never had reason to reveal to Spanier what she heard in those interviews. That was her purview as legal counsel and VP, not the President's.

Graham Spanier was not privy to a shred of information that was not already in the hands of former Board member, Vice President, and General Counsel Cynthia Balwin, who was accessible to every member of the Board -- particularly the Chairman and Vice-Chairman. Baldwin served at the behest of the Board of Trustees.  If Baldwin, as legal counsel and VP,  believed something needed to be shared with the Board she had served on and chaired, she could have done so at any time. Dr. Spanier would have asked her as legal counsel what was appropriate to share in any case. 

 Here is some additional information about Baldwin's office. 

It was university policy and practice for the service of all subpoenas to be handled directly by the General Counsel.  In fact, Cynthia Baldwin reiterated this in a revised Office of General Council policy approved July 19, 2010, which stated, “All legal documents including subpoenas are to be referred to or routed through The Office of General Counsel. The Office has the prerogative to send them to other parties after receipt. The Office of General Counsel shall establish all procedures for handling and addressing legal documents.”

Why is Joel Myers attacking Graham Spanier and not legal counsel and VP Cynthia Balwin for some failure to keep the Board informed about the Grand Jury proceedings? Wasn't it Joel who wrote to the Board demanding they mark all correspondence "attorney/client privilege" and send it through Baldwin's office?

 While we're at it, Joel, we have a few questions and observations for you.

Joel, if you, as Accuweather's officer, were named in a Presentment by the Attorney General, would you advise your Board to fire you and start making settlements with the plaintiffs caught in a snowstorm you failed to predict and frostbitten to the extent they lost limbs? What if it was a carload of children and the press launched a media circus accusing Accuweather of endangering children for saying it would be 40 degrees and sunny on their long trip up the Susquehanna?

Or would you express your concern and sympathy and stand by your indicted meteorologist while lining up the best defense team you could muster? 

What do you fail to understand about America's adversarial judicial system where people are innocent until proven otherwise? What possessed you and the rest of the Board to violate every known crisis response best practice in opposition to Graham Spanier's perceptive instincts? Anyone of reasonable intelligence would realize that firing Joe Paterno mid-season and Graham Spanier upon receipt of a Presentment is simply a clear signal by the only entity with the power to speak for Penn State that you believe them to be guilty and Penn State liable. 

No Joel, this wasn't some mistake in weather forecasting. This mistake cost the institution for which you swore fiduciary duty somewhere in the neighborhood of $300 million and it cost every alumnus, student, faculty, and staff member a big chunk of pride and reputation. WE ARE PENN STATE, you and they say, but you are the one who decided Penn State was guilty. You hired the guy who said you had a terrible culture. I don't know about everyone else, Joel, but, speaking for myself, I have to wonder how you have the balls to run for re-election. You certainly didn't have any on the night you voted to fire Joe Paterno and Graham Spanier.

Graham Spanier served Penn State with distinction for 16 years and he, along with Joe Paterno, were Penn State's greatest assets in a fight like this. What kind of fools fire their greatest assets on the eve of their greatest test? Well, I can tell you they aren't the kind I would vote to re-elect. 

Joe Paterno and Graham Spanier worked for decades to create a culture of Success with Honor accepted and revered by every Penn Stater. What it took them decades to cultivate the 11/9 Board severely damaged in a few hours on Nov 9, 2011. A week later elements of that same Board hire the man who would field a report critical of the culture at Penn State. The man hired after 4 hours of interviewing 2 candidates was considered qualified to issue a report on Penn State's culture without ever questioning any of the principals involved in the Sandusky case? That's bad enough on it's face, but then the Board of which you were a part accepted that report without even reading it's contents and allowed it to become the basis for NCAA Sanctions. 

Joel Myers argued "the board took responsibility with its actions to remove Paterno and Spanier as well as moves to reform the communication and organizational models of the board and administration." I cannot help but point out that taking that responsibility from two great leaders who built a strong and honored Penn State culture led to a $300 million loss in capital and a far more important loss in character and reputation. The only thing wrong with Penn State Culture is the make up and method of choosing the Board of Trustees When Alumni of Penn State say WE ARE PENN STATE - I don't believe they are referring to the 11/9 Board of Trustees. I hope the election this weekend proves they are not referencing Joel Myers.

And one more thing Joel. If the board wanted to know what was going on with the Sandusky investigation why not ask the Governor. He was not only a board member - his appointees occupied 11 of the 33 seats and he was Attorney General when the grand jury was seated that brought that presentment. Corbett and his appointees didn't recuse themselves from deliberations despite that glaring conflict of interest so why didn't you just avail yourselves of his insight - or did you? Perhaps you were too blind to see Corbett's hand involved in taking down his political opponent while chopping the Penn State budget. 

Appendix A  
What Graham Spanier could have known from Tim Curley and Gary Schultz:

 Dr. Spanier could only have known whatever Tim Curley and Gary Schultz told him -- a graduate assistant had witnessed something that made him very uncomfortable in a Penn State locker room. He had told his father and a doctor / family friend that night. They had advised him to inform Coach Paterno and McQueary told Joe an unspecific story of Sandusky in the shower after a workout with a boy. Was the boy Sandusky's foster child or one of the Second Mile kids that Jerry was supporting? McQueary did not know. He was upset and thought there may have been something sexual but, whatever he saw, it was only for a second or two, through a mirror or around a corner. McQueary told his story to Curley and Schultz, who thought he was describing what he called "horsing around".  McQueary's various testimonies and contradictory statements have been covered so exhaustively by SMSS that we have a special site just for McQueary's contradictions. 

Sandusky was employed by The Second Mile and the boy was a Second Mile child, according to Sandusky. Tim and Gary quite reasonably decided the proper course of action was to inform his employer, a child psychologist, responsible for the welfare of TSM kids. Who better to get to the bottom of this? Who better to decide what to do -- after all, TSM's business was to care for these children. It is not that Penn State was unconcerned; they were concerned enough to inform Sandusky and his employer that he was never to bring TSM children to use university facilities again. Jack Raykovitz assured Tim Curley he would handle the matter and make certain that nothing untoward happened. Spanier could only know what Curly and Schultz were led to believe. McQueary, based on 3 slaps, imagined sexual activity and, when he saw Sandusky with a boy, he feared the boy might have been assaulted but he saw no stress or fear from the boy. He told his father and his doctor / family friend, who helped him decide not to call police or do anything that indicated he thought the child was in any danger.  

As it happens, the boy has said that he was not assaulted that night, and the jury acquitted Sandusky of that specific charge of rape. 

Spanier, through Curley and Schulz, based on Jerry Sandusky's long standing charity work and his reputation as a physically demonstrative person, thought Jerry was horsing around or "wrestling" with a boy who was taking a shower after a workout because that boy was in Sandusky's care as a part of his charity work. Three slapping sounds and a shower do not equal a sexual assault in that case for anyone of Sandusky's sterling reputation as a charity for kids founder. They don't for any reasonable observer.