Tuesday, August 26

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.

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.

Sunday, August 24

$60 Million in Fines Should Be Used To Establish An Office of Child Advocate

Eckel and others in Gang of 19 are turning blind eyes to DPW and CYS failures in believing that the $60 million in fines for child protection programs would help PA's children

Ray Blehar

Like the 11/9/11 trustees did with the victim settlements, the Gang of 19, which includes nine holdovers from the from the 11/9/11 group, continued to overlook the failures of DPW and CYS in its haste to "help the victims of child abuse."  The PSU BOT must acknowledge these failures and should propose (to the legislature) that the best use of the funding would be to establish an independent Office of Child Advocate to oversee DPW.

At the 15 August meeting of the Governance Committee, Keith Eckel confirmed that the Gang and their predecessors have promoted that Penn State Athletics was to blame for enabling Sandusky and therefore, decided to saddle them with paying the $60 million in fines to help children. Make no mistake, the larger University isn't paying a dime of the fine money.  

Eckel:  Revisionist history about
PSU's desire to keep money in PA
"My recollection from the beginning is that our Board and our leadership always supported the concept that the $60 million be spent in Pennsylvania for the benefit of abused children in this state.  I believe, as I understand it, the resolution presented positively deals with that aspect, and I think that's critically important, and I do not like to see that money in any type of reserve fund instead of being used by Pennsylvania people for the benefit of our children. So I am strongly in support of that concept." 

Eckel wasn't being truthful that the Board desired that the money be kept in Pennsylvania from the beginning, as there was never anything other than a complete roll-over on the NCAA Consent Decree.  It wasn't until the Corman/McCord lawsuit in January 2013,  that the idea of keeping the money in PA surfaced, and, at that time, PSU and its Board didn't voice its support for Corman. Instead, it did what it has typically done in the Sandusky affair and didn't comment on the case.

The fact of the matter is that PSU became forced litigants in the lawsuit when Judge Anne Covey decided information from PSU was needed to determine if the Consent Decree was entered into legally.  As we saw at the Governance Committee meeting, as well as in the Paterno v. NCAA lawsuit, PSU and its General Counsel, Steve Dunham are doing everything they can to avoid providing information for discovery.

However, more importantly, Eckel wasn't being truthful that the Board is genuine about its concerns over Pennsylvania's abused children.  The willingness to settle with the Sandusky victims, child abuse reporting training for PSU employees, and now the desire to support the aspects of the lawsuit that keeps the fine money in state have been strictly public relations moves to provide the appearance of contrition, again -- all not costing PSU a dime, with a tad of corruption mixed in.

Board Refusal to Acknowledge 1998 DPW failures

Frazier:  Gave DPW a pass for its
failure to recognize abuse in 1998
As I've noted many times previously, when trustee Al Clemens stated that the rift between the board's position on the Freeh Report and the alumni's position, he mentioned the DPW's failed investigation of Sandusky in 1998 and that the state should bear some responsibility for enabling Sandusky's abuse.   Former Special Investigations Task Force co-lead, Kenneth Frazier shot back that he wasn't concerned about the state's failures and actually concluded that PSU officials should have known more than the DPW agents who investigated the case.  

Frazier, like nearly everyone else in this case except many concerned PSU alumni and friends, have given the 1998 DPW investigation a pass in the Sandusky case, based on an incomplete record.  

Louis Freeh did not include critical information about signs of possible sex abuse known to investigators in the text of his report.  However, the most critical information Freeh withheld were five e-mails that showed Centre County CYS's involvement in the case up until  May 27th.  CYS received the damning psychological report about Sandusky from Dr. Alycia Chambers, therefore the press reports that the investigators were unaware of her report were false.  

The DPW investigator, Jerry Lauro, claimed never to see either Chambers report or the Seasock report -- which he helped to arrange according to the 1998 police report.   Lauro stated that had he seen the Chambers report, he would have made an abuse finding.  

“The conclusions she had drawn in her report were pretty damaging,” Lauro said. “I would have made a different decision. ... It’s unbelievable, and it gets my blood pressure going when I think about it.”

A real investigation, not a phony one like Freeh conducted, would have rightfully condemned the 1998 DPW investigative failures  and could have put the focus were it belonged in terms of improvements needed to protect children -- better investigations.  

A History of Failures

DPW Secretary Mackereth:  Her 1982
failure caused the death of a child 
Sandusky's 1998 failure was not unique in any sense, but part of a history of DPW failures to properly intervene and protect children dating as far back to 1982.  The 1982 case involved the current Secretary of the Department of Public Welfare, Beverly Mackereth, who was then a caseworker in York County.  Mackereth investigated the case of Aleta Bailey who was abused by her mother's live-in boyfriend, Larry Hake.  When she examined Aleta, she noted two sets of bruises from beatings and took the child to be medically examined.  The doctors informed her that the beatings were severe and the child in no way should have contact with Hake.

Mackereth, who contacted police to escort her to the home because Hake had a reputation as a violent individual, put Aleta back into the Bailey home with the provision that Hake should never be left alone with the child.  Five weeks later Aleta was dead -- raped, tortured, and beaten to death by Hake.

Fast forward to 1998.  Sandusky was placed under investigation by the University Park police and Centre County CYS was called to perform the child abuse investigation.  The Public Welfare Code required CYS to contact The Second Mile to inform them of the investigation, but more importantly to work with the charity to ensure Sandusky had no contact with children while under investigation.

That didn't happen.

The police report revealed that Sandusky was accessing Victim 6 and another boy during the investigation by visiting them at their Little League baseball practices.  In addition, Sandusky continued contacting Victim 6 by phone during the investigation.  Trial verdicts also revealed that Sandusky was accessing and abusing Victim 4 during that time frame.  All of this information is a matter of public record.

In 2008, Clinton County CYS repeated the same mistakes as Centre County CYS in 1998.  They did not work with the charity to ensure Sandusky did not have access to children, and despite claims by TSM's Executive Director Dr. Jack Raykovitz that Sandusky was immediately banned from all programs involving children, the evidence proves otherwise.   

According to press reports, Sandusky was allowed to attend a TSM Clearfield banquet involving families in March 2009 and also was permitted to participate in the 2010 Second Mile Summer Challenge camps.

Just like the Board's statements that few of them were aware of the grand jury investigation of Sandusky when the news broke in March 2011, the Board apparently is continuing to pretend they are unaware of these other widely reported DPW failures.

August 2014: The Tutko Case

On August 4, 2014, news broke that 9-year old Jarrod Tutko Jr. was reported dead and that his father, Jarrod Tutko Sr. had been charged with child endangerment, abuse of a corpse, and concealing the death of a child.

The news report also included the fact that Dauphin County CYS had been called to investigate a prior abuse complaint at the Tutko home.   According to Kimberly Tutko, the mother, she believed Jarrod's older brother Aaron called in an abuse complaint December 2013, stating that his father threw a bottle at Jarrod's leg causing him harm.

Unseen by CYS? The feces
covered room of Jarrod Tutko, Jr.
Dauphin County CYS investigated and determined no abuse took place.  It would appear that a more thorough investigation by CYS could have prevented this tragedy.  Cathleen Palm, a principal at the Center for Children's Justice,  opined that sometimes child abuse investigators will only investigate the allegation at hand and "can be blind to what may be occurring throughout the rest of the house."   

Based on reports from neighbors, the CYS agents investigating this case were willfully blind.  The neighbors reported that Jarrod's older brother looked malnourished - that they could see Aaron's ribs through his skin.

This practice has also been confirmed in Centre County, where one complaining parent referred to his child's case as a "drive by investigation."  The 1998 investigation by CYS could also qualify as a "drive by" based on the 1998 police report.  There was considerable foot-dragging by CYS to investigate Sandusky and, after they punted the case to DPW, it appeared Jerry Lauro spent more time driving back and forth to State College than he did in actually investigating the case.

The Tutko case was back in the news this past week with the release of the autopsy, which determined Jarrod Jr. died from starvation and dehydration.  County coroner Graham Hetrick stated the condition of the body and the condition of the home was "horrendous."

Is the PSU BOT paying attention to this case?

PSU's Misguided (and Corrupt) "Prevention" Efforts 

While the Center for Child Abuse Prevention at the Milton Hershey Medical Center will provide a holistic approach to the broader scope of child abuse, other steps the University has taken appear to be misguided -- focused on reporting -- and fail to address the real problems in PA's child protection system.

First, PSU used the proceeds from the 2012 Ticket City Bowl to provide funding to the Centre County Women's Resource Center and two other organizations for child abuse prevention efforts.  The decision, in part, has the appearance a conflict of interest, as PSU VP for Administration, Tom Poole, is married to Anne Ard, who is the Executive Director of the Center.  The training for adults in the community (to recognize and report child abuse) was planned to be conducted by the Centre County YMCA's Stewards of Children Program. 

PCAR: Rushed to judgment on Paterno
and the events of February 9, 2001
In January 2012, PSU provided a $1.5 million grant to the Pennsylvania Coalition Against Rape (PCAR) to provide training and education on child abuse reporting and prevention. In the wake of the Sandusky charges, PCAR made a statement concluding that Joe Paterno's reporting "failure" was to blame for Sandusky's abuse was a premature judgement

In another effort, PCAR called what happened at PSU the "mother of all teachable moments" about by-standers failing to report.   There should be little doubt that PCAR was simply reinforcing the narrative resulted from the BOT's 11/9/11 decisions.

PCAR provided training on how to identify and report child abuse to 10,000 PSU employees.  While this may have been born of good intentions, it appeared to be overkill to take this type of action based on a single incident.  In addition, through my access to PSU as an alumni "volunteer," I was able to take the training program and found that while it heightened awareness in recognizing abuse, it clearly omitted some critical signs of child abuse that were also omitted in the Freeh Report (i.e., those that were ignored by DPW investigators).  I don't think that was just a coincidence.  However, the bottom line of all of the training is that it doesn't prevent child abuse for occurring, but only recurring.

Child sexual abuse on college campuses is rare and this grant money would have been better spent on age appropriate child sexual abuse prevention programs for children.  This is a truly preventive effort. Training children to recognize signs and talk to their parents about it before abuse happens them is definitely preferred over waiting until adults recognize the signs -- then reporting it to a system that fails much of the time.

PSU's Promise to Be A Leader

PSU officials promised after the Sandusky grand jury presentment broke that the University would become a national leader in child abuse prevention.  It is incumbent on PSU to recognize the Commonwealth's failures in the Sandusky case and in other cases, and as the state's flagship University, demand that improvements be made at "home" first.  

Just throwing money at the state agencies and the so-called victim's advocate groups isn't the answer.

One of the biggest disappointments in the Sandusky scandal has been the quick rush to judgment by the victim's advocates against PSU and their collective silence about the failures of DPW.  This silence is driven, in part, because of these group's reliance on the Commonwealth for grant money to fund their efforts.  

If a settlement is reached in the Corman lawsuit and the PSU football program is saddled with paying the fines, the Board should make recommendations to the legislature regarding the best use of the funding, rather than just letting the legislature slice, dice, and distribute monies to various groups across the state.  

While I am not a fan of government bureaucracy, a number of child protection advocates believe that Pennsylvania would greatly benefit from the establishment of a state-level independent "Office of Child Advocate."  AG Kathleen Kane also voiced her support for this office while campaigning (shown below).  

The Office would provide oversight and review of DPW, ensure protection of children during child abuse investigations, and provide PA's families with an "ombudsman" to resolve issues and complaints related to child protective services.  

Based on the history of Sandusky, Tutko, and other failures, this would be money well spent.

Friday, August 22

Bob Jubelirer: We are (still) Penn State

By Robert C. Jubelirer

The mantra Penn State nation has shouted and responded to over the years has been -"We are" and the response has been a loud, rousing and proud -"Penn State!"

No other school exhibits the kind of emotion that our fans bring to a football game or just a group of students walking outside of any Penn State event.
Sadly, we now must ask ourselves what does that mean - what does Penn State stand for?

For me it meant that no matter what the issue was, Penn Staters would do the right thing. It encompassed the legendary Joe Paterno's message of "Success with Honor."
Penn State was the poster child of how to do things the right way. It meant that education was the first and the primary thing you were responsible for and sports and other activities came after that.

Now it seems to me that we must ask ourselves after the action of the Board of Trustees to adopt (and reaffirm last week) the NCAA sanctions without board approval just who we are.

Penn State legal counsel Steve Dunham said that former President  Rodney Erickson had the full authority to make such a decision without consulting the board. Yet he has never explained just how he arrived at such a conclusion.I can't imagine any other university or organization where one person or just a few could make such a monumental decision without ever consulting with their full board to explain why this had to be done in such a fashion.

Even if the president did have this kind of authority, why did he not respond to NCAA president Mark Emmert that this was so dramatic and encompassing that he had to consult his board before he could give an answer?

The state Commonwealth Court in its opinions in April commented that the NCAA, which was challenging a law that would keep millions of dollars collected from the Penn State sanctions in the state woefully overreached and the sanctions were likely unenforceable.

The Freeh Report, which was the basis of the NCAA sanctions, has been proven to be full of holes and would not stand up in a court of law. The board totally ignored due process and reacted with a rush to judgment and with personal feelings rather than abiding by their fiduciary duty.

There should have been a cooling off period to examine the Freeh report to review their options instead of panicking at what allegedly was a threat from Emmert.

Now as part of the consequences we have certain trustees who quickly jumped to support the sanctions telling us that most of the alumni support them or pushing to reduce the number of trustees elected by the alumni. The board never stood up for Penn State!

That brings me back to my original question - who are we? We say "We are Penn State!," but the board re-defined what that meant.

Penn State stands for what is right and does not let bullies threaten us when we did absolutely nothing wrong.

I will continue to join with my colleagues on the board elected by the alumni and hope we can convince other members to join with us to remember, after all, that "We Are Penn State" and we owe it to the future of Penn State nation to carry on that legacy.

Thursday, August 21

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

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: 

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 videothe 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.  

(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. 

Wednesday, August 20

Were Tom Harmon and Wendell Courtney untruthful about the 2001 incident?

Courtney and Harmon's roles, responsibilities, and relationships in the Sandusky case raise serious questions about their statements regarding lack of knowledge of the 2001 incident. 

Ray Blehar

Former PSU legal counsel Wendell Courtney and former University Park police Chief Tom Harmon are two individuals who have essentially escaped scrutiny for their roles related to the 2001 Sandusky incident.  

Ironically, they are the only PSU persons involved with the incident who only had regular contact with Sandusky and/or The Second Mile outside of the workplace.  

Harmon at one time lived at 120 Norle Street in Lemont and was Sandusky's neighbor. The two men also attended St. Paul's Methodist church.  

Courtney, by virtue of his wife Linette being a member of the The Second Mile (TSM) board from 1998 to 2005, would have routinely seen Sandusky at TSM fundraisers and events.  According to a TSM board member, the charity expected 100% participation and donations from its board members at every event.  Wendell and Linette typically donated between $1,000 and $1,500 per year to TSM during the time she served and after the time she stepped down from the board.  According to the charity's Annual Reports, they last donated in 2009 (year ending August 31, 2009).

In 2009, Wendell Courtney was retained by TSM as counsel and assisted them in the Sandusky matter.  An NBC news article noted that Courtney assisted with the subpoena for the expense records that had gone missing from TSM's storage facility.

These men's connections to Sandusky and, in Courtney's case,  TSM deserve consideration as possible motivations for them to act outside PSU's interests in response to the Sandusky scandal.  

Tom Harmon

In Harmon's case, he was a witness for the prosecution, as well as being exempted from the Freeh investigation at the request of the Attorney General. The latter point was rather disconcerting, considering that Freeh was conducting an alleged "full" investigation but wasn't allowed to talk to the Chief of police who was involved in both the 1998 and 2001 incidents.

1998:  Harmon's testimony at the July 2013 preliminary hearing regarding the 1998 police file and called into question his credibility as a witness.  Harmon stated he didn't recall ever giving the 1998 police report to Schultz, nor did he recall Schultz ever asking for it  (page 174).

That testimony likely took a chunk out of the prosecution's perjury charge that Schultz lied about his knowledge of the 1998 file, as well as, what was meant by "reviewed 1998 history" in the Schultz "secret file" note from 12 February 2001.  

Of course, neither the Patriot News (i.e., Charles Thompson) or any of the other local media chose to report anything about Harmon's faulty memories.  However, in a recurring pattern, Thompson reported a blatant falsehood that Schultz had inquired about the 1998 file from Harmon. 

"In 2001, and shortly after Shultz would have received McQueary’s account of the Lasch Building incident involving Sandusky, Harmon testified that Schultz asked him an out-of-context question about documentation of the 1998 report."

Harmon was very reliant on documents and leading questions by the prosecution in order to recall the events of 1998, even with that assistance, he erred in stating that Detective Schreffler and DPW agent Jerry Lauro had interviewed Sandusky at his home (page 136).  The last page of the 1998 police report  was clear that the incident took place in the locker room.  In addition, Harmon also testified that the Victim 6 incident occurred between 7-9 AM on Sunday, May 3rd, rather than 7-9 PM.  This error was of Harmon's own making because when he changed the title page of the police report, he also entered the incorrect time.  

While Harmon's memory was very unreliable to the unbiased observer, his overall trustworthiness and honesty also should have been called into question regarding his mislabeling of the 1998 police report.  Again, this is a case where the media completely ignored history and went along with Harmon's testimony (page 78) that he mislabeled the file as to avoid "premature publicity" about the investigation.  

Triponey:  Noted football players being
arrested at a greater rate than other students
Harmon retired from the University Park police force in 2005, however during the period from 2000 to 2005, football player's names were being splashed across the newspapers at a frequent rate.  It didn't appear that Harmon was the least bit worried about publicity compromising those investigations.  Note, that this was overlapping with the time-frame that Vicky Triponey was complaining that the football players were being arrested at a much greater rate than other students.  Many of these football player arrests were for alcohol related charges and other hi-jinks on campus, at which most other colleges and universities, the police likely would have looked the other way.  

It also should come as little surprise that Harmon would make that assertion about avoiding publicity, given it was the prosecution's "pet" reason for the alleged PSU cover-up.  However, Harmon's concern about publicity was indeed genuine in one regard -- the embarrassment it could cause his former neighbor, Sandusky and their church

Conclusion 1: Protecting his friend, Sandusky, and their church from public embarrassment was very likely Harmon's motivation for filing the police report as "Administrative Information."

2001:  As a prosecution witness, it was Harmon's contention that even though he was conversing with Schultz about the 1998 police file on February 12, 2001, Schultz never informed him of that incident.  Few in the media (and the public) have questioned the veracity of Harmon's statement, likely because Schultz was being made out to be a liar and a child abuse enabler.  However, Harmon's testimony deserved scrutiny and when honestly reviewed revealed the former police chief had a very poor memory.  In addition, Harmon, as a mandated reporter was motivated to say he had no knowledge of the case, otherwise he could have been charged with failure to report (FTR).

Faulty Memory

Harmon also was adamant that if he was told that Sandusky had been involved in another incident, he would have surely remembered it.  But Harmon's faulty memory was exposed repeatedly under cross-examination by his lack of recall of serious incidents that took place on campus in 2001.  

Eventually, the defense got Harmon to admit that he was only able to testify about the incidents in question after refreshing his memory be reviewing documents.

Avoiding Arrest

The second part of the veracity issue regards Harmon as a police officer was a mandatory reporter of child abuse.  Obviously, if he was told about the 2001 incident he violated the law by not reporting it, therefore it was in his self-interest to say Schultz never told him about it.  Given the fact that Harmon sought out the 1998 police file just a day after Schultz learned of the incident, it strains credulity that Schultz didn't tell Harmon what had transpired.  It's highly likely that the Attorney General cut a deal with Harmon not to charge him with FTR in exchange for his testimony that Schultz didn't tell him what transpired in 2001. 

Tom Harmon:  Motivated to lie to about his
knowledge of 2001 to avoid arrest for FTR.
Logically, Harmon, as the Chief of police, would have been the "point man" for either Schultz or Courtney for contacting CYS and/or the local DA to initiate an investigation (as Schreffler did when he received a report on Sandusky from the mother of Victim 6 in 1998).  Harmon was contacted within the 48 hour window that PSU had to make an abuse report, therefore it is very possible the either Schultz or Courtney requested he contact the appropriate parties.

At the preliminary hearing, Gary Schultz's grand jury testimony was read into the record.  Schultz repeatedly testified (pages 212-215) that he believed that someone from PSU had contacted the local child welfare agency about the 2001 incident for investigation.

The timeline and evidence regarding the 2001 incident also indicates that Schultz and Curley's planned to interview Sandusky on Friday, February 16th were delayed.  In fact, the timelines between the 1998 and 2001 cases are very similar.  It is entirely possible that Harmon was manipulating the process to provide the appearance (to Schultz) that CYS was investigating.  

Finally, Harmon had retired from the University Park police in 2005 and was enjoying retirement in State College -- as many of us hope to do some day.  However, in August 2011, just months before the scandal hit, Harmon moved to Pittsburgh.  Was this just another coincidence?

In summary, Harmon may have unilaterally made the decision not to report Sandusky to the authorities in 2001 to protect his former neighbor and church from embarrassment. When interviewed by the AG in 2011, Harmon likely cut a deal to avoid being charged.

Conclusion 2:  Harmon's self-interest to avoid being charged with failure to report child abuse likely caused him to lie about Schultz failing to tell him about the 2001 incident.

Wendell Courtney

In the early days of the scandal, some attention was paid to Courtney because of his ties to TSM, but as the scandal was skewed into a Penn State scandal only, curiosity and reporting on Courtney faded (as it did for TSM).  Those early stories focused on the question of whether Courtney had knowledge of the 1998 incident and the grand jury report's allegation that he was serving as the legal counsel for both TSM and PSU in 1998.   However, his eventual termination as legal counsel for PSU and subsequent hire by TSM should have raised more questions about his role in the scandal.

1998:  The Sandusky grand jury presentment (page 9) reported that Schultz had consulted Courtney about the 1998 incident (but failed to state Courtney was consulted about the 2001 incident).  It also reported that Courtney "was then and remains counsel for The Second Mile."

The Second Mile

Courtney immediately denied that he was the counsel for TSM in 1998 and attempted to correct the record.  However, AG press officer Nils Frederiksen refuted Courtney's claim arguing that it was "semantics" and that the point was that Courtney had knowledge of the 1998 investigation.  The question of Courtney's employment was resolved later in an article in the ABA Journal. TSM's new Executive Director David Woodle stated that Courtney was not retained by TSM until 2009.  This refuted the statement in the grand jury presentment, as well as Frederiksen's rebuttal.

Knowledge of the 1998 investigation

The question of whether or not Courtney had knowledge of the 1998 incident can be solved by comparing evidence for and evidence against.   

Evidence for:  Gary Schultz's grand jury testimony (page 217)  that "perhaps" Courtney was consulted in 1998 is the only evidence that indicates Courtney's knowledge of the incident.  It was that testimony that was the basis for the statement on page 9 of the grand jury presentment and it is dubious at best.

Evidence against:  When PSU received the report of abuse allegations against Sandusky on the morning of May 4th, 1998, Detective Schreffler contacted ADA J. Karen Arnold at 4:00PM that day to alert her to the investigation.  According to the Freeh Report (page 43), Schreffler did so, at least in part, so he didn't have "to worry about Old Main sticking their nose in the investigation."

At 5:00PM on May 4th and at May 5th prior to 9AM, Harmon provided Schultz with updates of the investigation (Freeh Report exhibits 2H and 2I).  There is no mention of Courtney in Schultz's handwritten notes memorializing the discussions.  Also, Courtney is not mentioned in any of the e-mails related to 1998 nor is he an addressee or a courtesy copy on them.

Conclusion 3:  The evidence does not support that Wendell Courtney had  contemporaneous knowledge of the 1998 investigation of Jerry Sandusky.

Courtney:  Obstruction in the
 recent Sandusky investigation?
2001:  Courtney's claim that he had no knowledge of sexual misconduct in the 2001 incident also appears to be truthful.

Courtney stated that "whether in 1998 or in 2002 (sic) or any other point in time, was I made aware or did I have knowledge of Jerry Sandusky engaging in sexual misconduct with young children."

Courtney's timesheet (Freeh Report exhibit 5A) from February 11, 2001 states that he spent 2.9 consulting and conducting research into the "reporting of suspected child abuse."  The word "sexual" does not appear on that record.  Also, Schultz contacted Courtney about the incident after discussing the incident with Paterno and Curley, but before speaking with McQueary, therefore it is unlikely that Schultz reported sexual misconduct.  According to McQueary, he didn't get into details with Paterno.  Paterno also stated he stopped McQueary early in the discussion due to the then-grad assistant being upset.

However, where Courtney veers into dubious territory is in his discussion of the files maintained (or more correctly, files that he failed to maintain) about 2001 Sandusky incident.  

According to the Freeh Report (page 83) on December 28, 2010, Schultz contacted Courtney regarding any information he may have had about Sandusky.  On December 30th, Courtney responded that the "last thing in my Penn State file" was the 1999 Sandusky retirement letter.

As proven by the billing record, Courtney should have had a record memorializing the consultation he made with Schultz regarding the 2001 incident.  Additionally, Courtney could have also searched his billing records to see if he had performed work regarding the incident.

In an e-mail to Cynthia Baldwin on January 9, 2011 (Freeh Report, page 84), Courtney wrote that we "don't have any file on the matter you and I discussed yesterday....I recall that someone (I don't think it was me, since if it was I would have written documentation of contact) contacted Children and Youth Services to advise of the situation."  

Courtney was also consulted about how to handle the January 7, 2010 grand jury subpoena that requested all employment and personnel records for Sandusky.  

The Freeh Report (page 82) stated that the lawyer handling the request was a PSU employee and that person did not tell Courtney the subpoena concerned Sandusky.  I find that statement hard to believe, given that Courtney was the lead counsel for PSU at the time and was treated in the same manner as any other Vice-President at the University.  Even so,Courtney also should have had some record on this consultation on file or in his billing records.

These deficiencies in record keeping begs the question, did Courtney expunge the records in his Penn State file after being retained by TSM to represent them in the Sandusky case?

Did disgruntlement contribute to PSU's records going missing?

McQuaide Blasko (MB) had provided legal services to Penn State for over half a century, however in the late Spring of 2009, the Board of Trustees recommended to Spanier that PSU should have its own in-house counsel.  It is quite a coincidence that this proposal bubbled up at the time that the Sandusky investigation had made its way to then-Attorney General, Tom Corbett.

Spanier did not immediately embrace the idea and requested that then VP of Business and Finance, Al Horvath, contract for an outside review.  The review concluded that MB was providing good service, but recommended that a small inside General Counsel's (GC) office be established while maintaining most of the legal services via contract.

Baldwin: Looked like a great hire...
...but turned out to be a disaster.
Eventual GC Cynthia Baldwin, in her role as emeritus trustee, was present at the BOT meetings in which the in-house counsel proposal was discussed.  After the approval of the proposal, Baldwin approached Spanier and offered to take the GC position.

Spanier believed Baldwin would be a wonderful choice, given her legal background as a former judge and that she was the former head of the PSU Alumni Association and also served as Co-Chair and Chair of the BOT.   The compensation committee, composed of Surma, Broadhurst, Garban, and Strumpf, were also enthusiastic about the hire.  Baldwin's hire was announced in January 2010 and she took over as GC on February 15th.

Conversely, MB was not at all pleased with the decision.  

One MB employee remarked that Baldwin had been foisted on PSU.  In addition, once Baldwin was in place as GC, she began taking work away from MB and moving it to her old firm, Duane Morris.

Therefore, between Courtney being removed as PSU's top legal advisor, reductions of business at MB by PSU, and his role representing TSM in the Sandusky case, he certainly had motivations to give PSU some pay back (e.g., expunging the 2001 records).  

Now, combine that with the fact that TSM's records related to Sandusky also went missing and it appears that one could make a fair case for obstruction of the investigation by Courtney.

Conclusion 4:  Courtney's failure to possess and maintain records related to the Sandusky case is highly questionable and has the appearance of obstruction of the investigation. 

In summary, it appears that both Tom Harmon and Wendell Courtney has sufficient motivation to be less than truthful about their respective roles in the 2001 Sandusky incident.  Certainly, if the case of the PSU Three ever gets to trial, the defense will be able to raise many issues of reasonable doubt when Harmon and Courtney are called to testify.