BOT's Rejection of Freeh Report is Best Way to Fight the new D.F. Lawsuit

Ryan Bagwell's latest find of a lawsuit filed by D.F that reveals that the PSU BOT has set the University up for more payouts -- unless it rejects the Freeh Report

By
Ray Blehar

Bagwell:  Documents obtained thru
Sunshine Fund are exposing the BOT

Ryan Bagwell's latest cache of documents includes not only verification that a Federal investigation related to the Sandusky case is ongoing, but that another Sandusky victim has filed suit against PSU and The Second Mile.  According to a source close to the PA OAG, the number of Sandusky victims is now over 50. 

Translation -- more lawsuits.  

It now appears likely that the PSU BOT was mistaken in its belief that the settlements with 26 victims for $59.7 million would prevent costly litigation and future bad publicity.  

The latest case also could  mean an onslaught of litigation for the co-defendant, The Second Mile charity.  At last check of the charity's 2012 IRS 990 filing, the charity held nearly $4.9 million in assets just one year ago (on August 31, 2013). 

Latest Victim Is More Proof of Bungled Sandusky Investigation

The legal filing states that the latest victim was found by using The Second Mile lists found in Sandusky's home in June 2011.  As I reported in Report 3 (page 22), the investigators failed to follow up on those asterisked names, which included the name, phone number, and mother's first name for Victim 9.   Victim 9 was reported to police by his school's assistant principal after news of the Sandusky charges broke.

Victim D.F.'s family was contacted by police in April 2012 and he was subsequently interviewed at that time.  However, based on statements from AG Kathleen Kane, many of the children on these lists were not interviewed until the Spring of 2013.  Kane said. "I was concerned after I took office and found out that there may be more victims that no one talked to."

This does not bode well for PSU.

Eckel and BOT wrong about lawsuits

Eckel: Disconnected
from reality on lawsuits

At the August 13th, 2014, PSU BOT Conference Call regarding the Corman vs. NCAA lawsuit, trustee Keith Eckel's faulty arguments (starting at 26:30) against challenging the NCAA Consent Decree were based, in part, on the idea that the end was in sight on the NCAA sanctions (i.e., 2016).  Conversely, he saw no end in sight if PSU legally challenged it:

"..the timetable that the Consent Decree encompasses -- we can see the end of that. I do not see the end of that with legal battles."

While it is likely true that the Corman v. NCAA lawsuit could extend beyond 2016 if no settlement is reached, Eckel's rationale to not sue the NCAA in order to avoid legal battles certainly seems disconnected from reality. PSU will be fighting legal battles well past 2016, whether or not it decided to legally challenge the NCAA sanctions.

Lawsuits galore

As the D.F. lawsuit shows, there is no end to the legal battles for PSU regardless of the decision to not sue the NCAA.  As it stands today, PSU is engaged in the Victim 6, Victim 9, Paterno, Et Al v. NCAA, Jay Paterno, Graham Spanier, and Mike McQueary lawsuits as a defendant.  It is also paying for the defenses of Curley, Schultz, and Spanier in the criminal trial -- of which there is no "beginning" in sight.  It is also likely they are going to have to pick up the tab for Cynthia Baldwin in the Schultz vs. Baldwin professional liability case.  Finally, PSU is a plaintiff versus the Pennsylvania Manufacturer's Association (PMA) Insurance Company, who refused to pay for the victim settlements because abuse and molestation has not been covered in PSU's policy after March 2002.





The PMA lawsuit looks like a loser for PSU, who was already warned by the judge for using "nonprecedential memorandum decisions" in its failed attempt to keep the proceedings from moving to Philadelphia (from Centre County court).  Its argument for payment from PMA also appears to be without merit - citing its long history of paying PMA for insurance as justification. As Ken Frazier might say, the University's claims defy the "plain language" written in the insurance policy.

Mitchell:  Little effort needed
to "monitor" PSU Athletics.

While PSU will be a defendant in lawsuits for years to come, it's ironic that it won't enjoin on one in which it  would actually be a plaintiff with the possibility of avoiding the payment of $60 million in fines and avoiding future payments to the Maytag Man (i.e., Athletic Integrity Monitor, former Senator George Mitchell).  As Mitchell's last report revealed, very little of his "work" actually deals with athletics (i.e., 5 pages of the 32 page report) and has become focused on a host of other issues at PSU.  In short, he has exceeded the scope of his contract  in order to be able to bill PSU for his "work."

Mitchell's billing for work outside the scope of his contract could be considered fraud - as could Louis Freeh's fake investigation of PSU.

Given that the fulll Board did not vote on or officially accept the Freeh Report, the benefits of fighting the NCAA and rejecting the Freeh Report would be many -- but especially from the perspective of defending against the Victim 6, Victim 9,  D.F., and likely future lawsuits. 

Fact-Freeh Report/Victim Settlements Cited in Lawsuits

Freeh: Many erroneous findings

The lawsuit filed by D.F., as well as the previous lawsuits by Victims 6 and 9 utilized the erroneous findings in the Freeh Report to allege that PSU enabled Sandusky's abuse.  In addition, the lawsuit filed by Victim 9 alleged that Penn State was responsible for the abuse of over 20 victims which is very likely based on the fact that the Board of Trustees reached settlements with 26 victims.

D.F.

The D.F. lawsuit contains numerous allegations  which are quite similar to statements in the Freeh Report.  My analysis of the lawsuit determined that at least 13 allegations (i.e. 24, 27, 28, 29, 38,  47, 49. 50, 64,78, 81, 82, and 84)  that were tied to findings the Freeh Report.  A few examples follow:

 "24. Defendant-Sandusky abused his authority and positions under the guise of Defendant-The Second Mile and Defendant-Penn State to cause emotional and physical injuries to the Plaintiff.  

Freeh Report at 13: "Several of the offenses occurred between 1998 and 2002, during which time Sandusky was either the Defensive Coordinator for the Pennsylvania State University ("Penn State" or "University") football team or a Penn State professor emeritus with unrestricted access to the University's football facilities."

"27. Defendant-The Second Mile and Defendant-Penn State were negligent in failing to perform the necessary and required background checks on Defendant-Sandusky which may have revealed Defendant-Sandusky's sexual misconduct prior to hiring Defendant-Sandusky and/or placing him in such highly held positions.

Freeh Report at 120: "The policies for background checks on employees and volunteers was significantly inadequate"

28. Defendant-The Second Mile and Defendant Penn State were negligent in failing to manage the risk posed to minor children such as Plaintiff of Defendant-Sandusky, who had sexual interests in children, including Plaintiff, which management would have prevented Defendant-Sandusky from sexually assaulting Plaintiff.

Freeh Report at 16:  "A failure of the Board to exercise its oversight functions in 1998 and 2001 by not having regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University."

29.  Had Defendant-The Second Mile and Defendant-Penn State acted responsibly in confronting Defendant-Sandusky as to the allegations of sexual molestation, Plaintiff may not have been sexually assaulted by Defendant-Sandusky.

Freeh Report at 39:  "Spanier, Schultz, Paterno and Curley did not even speak to Sandusky about his conduct on May 3, 1998 in the Lasch Building."

Nittany Lions Tips Card

47.  Defendant-Penn State has benefited from its affiliation with Defendant-The Second Mile by reaping the public relations rewards of close ties to and participation, such as internships for Penn State football players with a local charitable organization."

Freeh Report at 107:  "Each year The Second Mile distributed playing cards that displayed both the Penn State and Second Mile logos and contained images of Penn State football players, coaches, and other student athletes.  A number of the University's football players and student athletes volunteered for Second Mile youth programs."

49.   Defendant-The Second Mile provides activities for children in conjunction with Defendant-Penn State.

Freeh Report at 107:  In Sandusky's retirement agreement with the University, both parties agreed to "work collaboratively" in community outreach programs such as the Second Mile. 

81.  All defendants concealed from Plaintiff Defendant Sandusky's sexual interest in children, their unsafe environments, and/or their inadequate measures to protect children such as Plaintiff.

Freeh Report at 16:  "..the most powerful leaders at the University - Spanier, Schultz, Paterno and Curley - repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities....and the public at large."

Victim 6

From the Centre Daily Times: “The inadequate oversight, deliberate indifference, failure to report, and intentional concealment of Sandusky’s actions by Penn State contributed substantially to Sandusky’s ability to commit his criminal outrageous and depraved acts,” the attorneys wrote in the lawsuit. 

“Both institutions fostered a culture and/or code of silence that unduly influenced those within their respective ranks from revealing conduct of the nature of that committed by Sandusky from being reported and acted upon.”

Read more here: http://www.centredaily.com/2013/01/23/3474338_victim-6-in-jerry-sandusky-case.html?rh=1#storylink=cpy

 Victim 9

From the AP via ESPN:  "Penn State provided Sandusky the tools with which to ply the craft of a pedophile long after Sandusky's formal ties with the university were supposed to have been severed," the lawsuit said.

Victim 9's lawyers wrote that "it was the inviolable culture of financial and sporting success of Penn State football that made possible the horrific sexual abuse that forms the basis of this lawsuit."

"It's now clear that Penn State enabled Sandusky to sexually abuse more than 20 other children before Sandusky preyed on this boy," wrote the plaintiff's lawyer, Stephen E. Raynes. "Each of those tragic assaults provided Penn State with the opportunity to stop Sandusky, opportunities which Penn State squandered. We will learn through this lawsuit why that happened and what additional lessons Penn State should learn from this tragic episode in its history."

September Freeh Report Discussion

At the July 2014 PSU BOT meeting, trustee Al Lord offered a resolution that stated the Freeh Report's use by the NCAA resulted in harsh penalties to PSU, that the investigation was reviewed by an number of parties and found to be inaccurate and incomplete, and that the Board should complete the investigation.

Prior discussion between Lord and PSU General Counsel, Steve Dunham resulted in an agreement to table the motion until the September public meeting, where Lord will ask for a roll call vote.  Dunham stated that a discussion should occur in the future (but not immediately) due to pending litigation.  

However, it is that pending litigation -- and the allegations based on the faulty Freeh Report --that makes the discussion of the Freeh Report an exigent matter.

In September, the Board needs to take up the matter, and ultimately decide to reject the Freeh Report.  Doing so would take much of the "starch" from the Victim 6, Victim 9, and D.F. lawsuits and could also give PSU a means to void or nullify its previous statements about liability for the injuries suffered by Sandusky's victims.

PSU and BOT Statements

As  I mentioned in Monday's blogpost, Erickson published a five-point promise in November 2011, which stated (as point 4)":

"We will be respectful and sensitive to the victims and their families. We will seek appropriate ways to foster healing and raise broader awareness of the issue of sexual abuse."

In October 2012  the PSU BOT's Legal Subcommittee's took that to the extreme when it crafted a resolution to provide victim settlements and admitted liability for Sandusky's criminal actions. 

"WHEREAS, claims have been and are expected to be made against the University by
persons alleging, among other things, that the University is liable for injuries suffered by such persons relating to the actions of Gerald Sandusky..."

If there is a saving grace or a way to wiggle out of this statement, it is that it was made in October 2012, before the publishing to the Paterno Report, which rebutted many of the Freeh Report conclusions.  The Clemente Report, in particular, would be especially useful in rebutting the victim claims against PSU.



The Clemente Report

Clemente:  Freeh "interpreted
facts through the wrong filter."

The Board should  fully embrace and cite the Clemente Report as its primary basis for rejection of the Freeh Report.  The Board should also state that the conclusions of the Freeh Report were erroneous, based on "common, yet erroneous, stereotypes of child sex offenders," (Clemente at 1). 

As a result of the Freeh Report "interpreting the facts through the wrong filter," (Clemente at 6) it unfairly --and wrongly -- blamed PSU officials for enabling Sandusky's abuse.  However, the even more tragic result of Freeh's report was it  kept the public in the dark about the threat posed by insidious "pillar of the community" offenders.  

PSU trustee Ryan McCombie recognized the value of the Clemente Report and penned an article which should be used to guide the BOT's discussion about why the Freeh Report should be rejected (my emphasis added):

"To me, Mr. Clemente’s report is not about defending Joe Paterno. It’s about recognizing the wolf among us, defending our children and avoiding these preconceptions and mistakes in the future. If we don’t learn and understand the category of preferential sex offenders called “nice guy acquaintance offenders” and “compliant victimization,” as described by Mr. Clemente, we all risk being the pedophile enablers we so despise."

If the Board decides to stand by the Freeh Report, and not recognize the Clemente Report as the more accurate evaluation of how Sandusky was able to commit his crimes, they will be doing a great disservice to the children of Pennsylvania and the public at-large.   

What is at stake in this matter isn't just lawsuits, fines, football scholarships, and bowl games.  

Give to the Penn State Sunshine Fund

https://www.pennstatesunshinefund.org/donate/