Eileen Morgan: To Tell The Truth. Would the Real Mark Emmert Please Stand Up?

by Eileen Morgan

NCAA vs. PSU

In his letter¹ on November 17, 2011 to the Penn State Board of Trustees, NCAA President Mark Emmert wrote, “I am writing to notify you that the NCAA will examine Penn State’s exercise of institutional control over its intercollegiate athletics program, as well as the actions, and inactions, of relevant responsible personnel.  I also have notified the NCAA Division I Board of Directors of the NCAA approach.  We recognize that there are ongoing federal and state investigations and the NCAA does not intend to interfere with those probes.  Moreover, we respect that under our criminal justice system there is a defined process to ascertain the facts, as well as determine criminal guilt or innocence.  We will utilize any information gained from the criminal justice process in our review….”

Although Penn State did not violate any NCAA rules, it is clear that in November 2011, the NCAA planned to ‘examine’ for itself if Penn State (and relevant personnel) lacked ‘institutional control.’  It is also very clear that Emmert was initially going to allow due process to run its course and defer NCAA action until the criminal justice system (via the Tim Curley and Gary Schultz trials) determined criminal guilt or innocence.  So what happened to the NCAA’s probe and waiting for due process?  The very next day on November 18, 2011, the Penn State Board of Trustees signed Freeh’s engagement letter², authorizing Freeh and his team to investigate the matter.  Apparently, within one day, Emmert changed his mind and decided to hold off on an NCAA investigation until after Freeh disclosed his findings.    

Shortly after the release of the Freeh report, the NCAA Board gave Emmert the power to take corrective and punitive action relative to Penn State, forgoing the NCAA's normal investigative protocol.  On July 22, 2012, the NCAA announced that it would impose "corrective and punitive" sanctions against both the Penn State football program and the institution as a whole the next morning.  Additionally, the NCAA said that since Penn State had commissioned the Freeh report and accepted its findings, further proceedings would be redundant.  Emmert himself said that Freeh's investigation was far more exhaustive than any that would have been mounted by the NCAA.³  But, Emmert could not have known back in November 2011 that Freeh’s investigation would turn out to be ‘exhaustive.’  So why did the NCAA forgo their own probe in 2011?  Was there a deal between PSU and Emmert to use Freeh’s findings from the beginning?  And more importantly, why did Emmert renege on his promise ‘to utilize any information gained from the criminal justice process’ in his review before handing down unprecedented sanctions?  Certainly, the criminal justice system’s examination in the Curley and Schultz trials will be far more exhaustive and its determination of criminality or innocence will be legally binding.
¹ http://www.psu.edu/ur/2011/NCAA.pdf
² http://www.scribd.com/doc/129799160/Freeh-Engagement-Letter
³ http://usatoday30.usatoday.com/sports/college/football/bigten/story/2012-07-23/ncaa-penn-state-punishment-sanctions/56427630/1

It is interesting to note that questions 2-4 on page 3 of Emmert’s letter deal with the Grand Jury Presentment.  The Presentment listed allegations against Sandusky, as well as Curley and Schultz.  The statements in the Presentment were only allegations waiting to be proven through the justice system.  Therefore, how can Emmert expect PSU to answer questions regarding issues identified in the Presentment when those issues are only allegations and have yet to be verified in a court of law?

In addition, Emmert’s stretch of the bylaws’ context to encompass the Sandusky issues is unimpressive.  His particular attempt of equating ‘young people’ within the NCAA framework to that of children is overreaching to say the least.  The context of ‘young people’ cited in Bylaw 19.01.2 clearly means collegiate student-athletes.  However, on page 3, he discussed re-examining “behaviors that lift up ‘young people’ rather than making them victims.”   Clearly, no student-athlete at Penn State was a victim and this comparison was a feeble attempt to validate the NCAA’s jurisdiction in this matter.

Sanctions: Mark Emmert vs. Rodney Erickson

What is the truth regarding the Penn State sanctions and the threat of the death penalty?  Emmert maintains there was no such threat.  This 7/24/12 ESPN video⁴ (at the 3:00 mark), affirms that Mark Emmert denied that PSU was threatened with the death penalty, “No, it wasn’t that at all.”  In addition, the Sun Sentinel article ⁵ reveals that Ameen Najjar, former NCAA enforcement director (who worked under Emmert up until May 2012), addressed the Penn State sanctions in an Aug. 7, 2012 email to Nevin Shapiro:  "The Penn State deal is a travesty," he wrote. "The NCAA did not impose anything. Penn State agreed to and self-imposed the penalties, waved all due process and waived any right to appeal.  The NCAA had/has NO authority to impose any penalties in that situation and PSU's president sold the school down the river!"

However, according to a story written⁶ by Don Van Natta Jr., Emmert confirmed that a core group of NCAA school presidents had agreed that an appropriate punishment was no Penn State football for four years and that Emmert told Erickson in a phone conversation on July 17 that a majority of the NCAA's leadership wanted to levy the four-year penalty.
Gene Marsh, a former chairman of the NCAA’s infractions committee who defended former Ohio State coach Jim Tressel, had been hired by Penn State to help negotiate sanctions in the wake of the scandal. According to Van Natta, Marsh received a call in July from Donald Remy, the NCAA’s general counsel. Remy told Marsh that Penn State was facing a death penalty for multiple seasons.
Erickson said, “if Penn State did not agree to the sanctions, a formal investigation would have begun and the University could have faced a multiyear death penalty, as well as ‘other sanctions,’ including a financial penalty far greater than $60 million.”

⁴ http://www.youtube.com/watch?v=rKWIOqcvQZI&feature=youtube_gdata_player
⁵ http://www.sun-sentinel.com/sports/um-hurricanes/fl-nevin-shaprio-miami-ncaa-0403-20130403,0,3454721.story
⁶ http://espn.go.com/espn/otl/story/_/id/8199905/penn-state-nittany-lions-rodney-erickson-said-school-faced-4-year-death-penalty

At the 3:30 mark of the ESPN video, Emmert admits the death penalty was ‘unequivocally on the table’ and an ‘active option.’  He also states that the Board’s behavior and actions (signing the Consent Decree) were ‘clearly considerations in not applying the death penalty’ and he says had Penn State not been as ‘forthright, open and decisive’ he does not ‘know what the outcome would have been’ but suspects ‘it would have been significantly worse.’  This would at least suggest there was an unspoken threat of a four year death penalty from Emmert.

I find it interesting to note that Erickson said, “if Penn State did not agree to the sanctions, a formal investigation would have begun and the University could have faced a multiyear death penalty….” Perhaps we have been focusing on the wrong threat.  The threat has always been centered on the death penalty.  Maybe the threat of a ‘formal investigation’ gave Erickson pause.  Imagine if a formal NCAA investigation would have begun, taking into consideration the outcome of the criminal justice process as Emmert promised in November 2011.  This would have exposed the Freeh report for its fraudulent and baseless conclusions and the Board of Trustees would no longer be able to justify their rush to judgment in terminating Joe Paterno and Graham Spanier.  In all likelihood, Penn State would have been absolved of Sandusky’s crimes and able to avoid sanctions altogether.  Why didn’t Erickson buy time for the football program and allow the NCAA to formally investigate?  Did Erickson sign the Consent Decree to avoid an authentic investigation that would make the Freeh report vulnerable to review which would then confirm that the Board’s November 2011 actions were unjust?  Whether the death penalty was real or fabricated, is Erickson hiding behind it to justify the acceptance of the Consent Decree?

At about the 4:00 mark of the video, Emmert confirms the NCAA had two options: to investigate or hand down the Consent Decree.  He says a traditional investigation would ‘consume’ much time and energy with an ‘UNKNOWN OUTCOME’ so they opted for the Consent Decree.  Don’t all investigations begin with unknown outcomes?  Isn’t that the very purpose of a probe: to determine the facts?

Oh wait, I stand corrected.  If you are the Penn State Board of Trustees you can apparently pay for an investigation and determine your OWN outcome⁷.  Emmert did not want to launch his own investigation to determine the truth; he wanted to act immediately, saving precious time and money, and appease the masses, so he took the ‘known’ outcome authored by Louis Freeh and the PSU Task Force.  Again I ask, what happened to Emmert’s initial stance to wait for the “criminal justice system to ascertain the facts, as well as determine criminal guilt or innocence?”

At a closer look, the Consent Decree seems to satisfy both parties.  Emmert got to flex his NCAA muscles to a world-wide audience and Erickson avoided a formal investigation that would have exposed the Freeh report.  By the way, if Erickson was threatened, why hasn’t he and the Board fought the sanctions since they were negotiated under duress?  It appears he wants to keep the sanctions status quo to avoid an investigation yet at the same time cry foul at Emmert’s threat. 

⁷ http://emf.intherough.net/pennstate5.htm

Emmert vs. Emmert

In this 4/3/13 article in USA Today ⁸, Emmert is accused of evading a variety of scandals that took place on his watch, including LSU having systemic academic fraud in its football program.

Emmert disputes that.

"The facts speak for themselves," Emmert said. "We went from an athletic program that was underperforming dramatically in the classroom to one that was performing well."

NOW HERE ARE THE FACTS (shared with me by an anonymous source):

The academic fraud was uncovered in 2001-02—and LSU submitted a report in 2004--2 years later. Penn State submitted the Freeh Report just months after the story broke.

These are the graduation rates for the Football Student-Athletes at LSU under Chancellor Mark Emmert, and corresponding rates for PSU. (Source: The Federal Graduation Rates from the NCAA)

Recruiting Class Year              LSU                                     Penn State

1999                                        37%                                         76%

2000                                        38%                                         72%

2001                                        37%                                         75%
Cheating exposed at LSU

"The facts speak for themselves," Emmert said. "We went from an athletic program that was underperforming dramatically in the classroom to one that was performing well."

2002                                        42%                                         80%

2003                                        42%                                         77%

2004                                        48%                                         80%

Apparently Mark Emmert, the head of the NCAA, believes graduating less than HALF of his football student-athletes can be defined as “performing well.”

Well, here is a fact that definitely speaks for itself.  Emmert’s comment reveals nothing but hypocrisy.  The NCAA President wants us to believe that under his supervision, a 48% graduation rate exemplifies a football program that is “performing well”, however, the Penn State football program that has consistently graduated 75-80% of its student-athletes constitutes a “Football Culture Problem.”

Mark Emmert speaks out of both sides of his mouth.  He says he will utilize information gained from the criminal justice process in his review, and then denies PSU due process.  He says he did not threaten PSU with the death penalty, but admits a four year death penalty was on the table as a viable option.  He says PSU has a ‘Football Culture Problem’ yet says LSU’s graduation rate of about 50% LESS than PSU is defined as ‘performing well.’  

Would the real Mark Emmert, please stand up?

⁸http://www.usatoday.com/story/sports/ncaab/2013/04/02/ncaa-president-emmert-previous-cases-uconn-lsu/2047607/

A Closer Look At Freeh's Engagement Letter

 PSU Got What They Wanted, But Not What They Paid For

-By Eileen Morgan

An engagement letter defines the legal relationship (or engagement) between a professional firm, a law firm in this case, and its client.  The PSU/Freeh Engagement Letter¹ details the hiring of Freeh, Sporkin, and Sullivan, LLP (FSS) to perform legal services and act as legal counsel for the Penn State Board of Trustees’ Task Force (Task Force).

LEGAL REPRESENTATION

The contract reveals that Freeh had been engaged to ‘represent the Task Force.’  The engagement letter clearly specifies throughout the document that ‘legal services’ were to be rendered by Freeh (FSS), including: page 1, ‘Re: Engagement to Perform Legal Services’; part 1. Scope of Engagement, Freeh’s law firm will ‘serve as independent, external legal counsel to the Task Force to perform an independent, full and complete investigation’ and will provide a report that ‘will contain FSS’s findings concerning: i) failures that occurred in the reporting process; ii) the cause for the failures; iii) who had knowledge of the allegations of sexual abuse; and iv) how those allegations were handled.  FSS’s report also will provide recommendations to the Task Force to ensure that those failures do not occur again.’ ; page 5, part 5., ‘For purposes of providing legal services….’; page 5, part 7., ‘FSS will provide the above-described legal services for the Task Force’s benefits’; page 7, part 10., ‘FSS may terminate its legal services’; and at the bottom of page 7, ‘FSS is delighted to be asked to provide legal services to the Task Force’ and the Task Force was invited to call Freeh to ‘discuss any matter relating to (their) legal representation.’  

Why did the Board of Trustees’ Task Force need additional legal counsel and representation?   The Board of Trustees had already brought in the firm of Reed Smith to handle the Board’s legal affairs in relation to the Sandusky matter and its aftermath.  Why would PSU spend millions of additional dollars on a second law firm in November 2011 to investigate possible criminal matters (i-iv above) when the state of Pennsylvania had already charged Tim Curley and Gary Schultz with criminal wrongdoing and the investigation was underway and in the hands of the judicial system?  After all, Freeh had NO subpoena power, and Task Force’s Ken Frazier, who oversaw Freeh’s work, acknowledged that Freeh knew he would be unable to interview ANY of the key witnesses and had no legal authority in the pending criminal matters.

In other words, the Pennsylvania courts will lawfully establish the very findings (i-iv above), if any, that the Penn State Board of Trustees paid Freeh to determine, the difference being that the Freeh Report could ultimately cost the University $10 million and is NOT a legally binding document based on indisputable evidence.  The Freeh Report, regarding the PSU officials’

involvement, has been substantially refuted and would be thrown out of a court of law based on the very fact that Freeh’s findings and conclusions are unproven opinions that relied upon flimsy evidence. 

In essence, Freeh could not officially and did not actually render legal counsel or a legally binding report regarding the alleged failures at Penn State, and thus, failed to fully deliver the services paid for as itemized in the engagement letter.  If Freeh had truly been serving in the capacity outlined in the letter of engagement, the University would never have allowed him to pontificate as he did in a nationally-televised and sensational press conference without the benefit of the Board having even read his report.

A PLAN FOR VINDICATION

So why did Penn State agree to pay for a multi-million dollar report instead of waiting for the courts to LEGALLY determine if there was knowledge of sexual abuse and if there were failures of reporting that abuse, in accordance with the law?  Since Freeh’s report would have no legal standing and the courts would have the final say, it appears the Board essentially hired Freeh to produce an unofficial report that would vindicate their highly controversial terminations of Joe Paterno and Graham Spanier on November 9, 2011. 

First, Freeh was clearly representing the Board of Trustees, as indicated twice on page 1.  On page 2, Freeh’s team was ‘under the sole direction of the (Board’s) Task Force,’ meaning the Task Force ‘supervised, guided, and/or managed’ the actions of the investigation and possibly ‘gave explicit instruction(s)’ to Freeh.  On page 5, part 7., Freeh provided his legal services for the ‘Task Force’s benefit.’  In addition, the two parties would ‘consult one another’ during the investigation, as necessary, as indicated on page 6, line 1.   And finally, Freeh’s team was ‘looking forward to working with the Task Force.’  Based on this description of a mutual working relationship and Freeh’s legal representation of the Task Force, it begs the question: How could Freeh possibly ‘perform an independent investigation’ as promised?  Independent means ‘not influenced or controlled by others; not subject to another’s authority or jurisdiction.’  Freeh obviously did not perform an independent investigation, but rather, was under the authority of the Task Force who could control the content of the report.  Therefore, Freeh failed again to deliver the services paid for as itemized in the engagement letter.  

CALCULATED RESULTS

The results from the investigation were to be provided in a written report per the Scope of Engagement.  Remarkably, this report seemed to have predetermined results before the investigation even began.  Notice that Freeh is certain of what the report will contain.  FFS discloses that ‘the report will contain FSS’s findings concerning: i) failures that occurred in the reporting process; ii) the cause for the failures; iii) who had knowledge of the allegations of sexual abuse; and iv) how those allegations were handled.  FSS’s report also will provide recommendations to the Task Force and Trustees for actions to be taken to attempt to ensure that those and similar failures do not occur again.’  Freeh was careful to address the ‘sexual abuse’ as alleged since those charges were pending at the time, even though all of the other aspects of his planned “investigation” were more definitive, making no use of the word “alleged.”   And on page 2, Freeh states that ‘any discovered evidence of criminality’ and ‘if any victims of sexual crimes’ are identified, they ‘will be reported to appropriate authorities.’  Here, Freeh discusses his course of action ‘if’ he finds certain data.  However, as previously mentioned regarding the Scope of Engagement, he did not say his report ‘will contain any findings determined’ or ‘if findings are determined.’  Clearly, Freeh differentiates between what he might find and what he will find. 

On the date of this contract, November 18, 2011, Freeh seemingly guarantees to the Task Force that his future report will contain findings concerning the failures of the Penn State Officials in reporting sexual abuse, the cause for those failures, who had knowledge and how did they handle that knowledge.  He also guarantees his report will provide recommendations to ensure those failures do not occur again.  This is amazing foresight by Freeh since he did not actually know at the time if there even was a confirmed report of sexual abuse, let alone if there were indeed failures in reporting it. 

Although Freeh states at the top of page 6 that his team ‘does not promise any result’ he claims they ‘will make every reasonable effort to provide specific results.’  It is apparent, from the Scope of Engagement, that many of the findings of the Freeh Report, which was publicly released on July 12, 2012, had been premeditated from day one.  The results the Board wanted, regarding the top PSU officials, were apparently the results they were going to get.  Since the criminality of any wrongdoing by individuals was being handled by the judicial system, there seems to be only one motivational factor to pay millions of dollars for an unsubstantiated report: To justify the Board’s reckless and impetuous decisions to terminate Paterno and Spanier.  

Trustee Kenneth Frazier’s recent statement² appears to confirm the Board’s need for a predetermined outcome: “I believe that we are entitled to look at the words and contemporaneous emails and other documents that draw the conclusions that we need to draw as a university.”  What conclusions did the Board need to draw as a university?  The courtroom will determine the factual findings once and for all.  All the Board needed to do was to be responsible stewards of the University, exercise patience, and allow the legal system to establish the ruling regarding the Penn State officials. 

But Frazier actually answers that question by further saying, “We can take employment actions, we can take corrective actions without any need to resort to the so-called due process, reasonable doubt standard, and I don’t care if they are acquitted.”  Clearly, Frazier and the rest of the Board needed to draw certain conclusions to justify the Board’s ‘employment actions’ taken against Paterno and Spanier.

INSURANCE

What’s even more fascinating is that the Penn State Board of Trustees indemnified Freeh and his team for ALL costs, expenses, and judgments, including any amounts paid in settlement of ANY claims.  It was actually a brilliant plan.  The Trustees ostensibly paid Freeh millions to publish a report with (unsubstantiated) findings that legitimized their rash decisions of November 9, 2011, and by indemnifying him, provided Freeh with unbridled freedom to publicly spew fallacious and slanderous statements about Paterno, Spanier, Curley and Schultz.  Essentially, Freeh had carte blanche to produce findings and conclusions, regardless of truth, that would substantiate the Board’s previous actions without the liability of being sued.  By protecting Freeh from the fallout of lawsuits, the Task Force could contrive the results they desired while relieving Freeh of any accountability.  Should there be any legal action taken against Freeh and his firm, should there be any judgments against Freeh, and should Freeh have to spend any time defending himself to the University or the public, the tab for all of his bills will generously be picked up by Penn State. 

FREEH’S FAILURES ARE THE BOARD’S VICTORIES

Freeh’s failure to perform an independent investigation allowed the Task Force, overseen by Frazier and Corbett’s Secretary of Education Ron Tomalis, to supervise the probe.  And, Freeh’s failure to deliver a report that was legally binding allowed the Task Force to acquire what seemed to be its ultimate goal: exoneration for the Board.  This truly was a match made in heaven.

¹http://www.scribd.com/doc/129799160/Freeh-Engagement-Letter
²Ken Frazier’s statement at the Penn State Board of Trustees Legal & Compliance Committee Meeting, Hershey, PA-March 14, 2013

Alice Pope: Highlights of Today's Smucker Hearings

Some reflections on today’s Senate hearings (with thanks to others who have posted, and apologies that this is so long):

• We packed the hearing room, just as Anthony requested. Several mentions were made of this – Senators said they had never seen a full hearing room before! And this was the largest room they have.

• The Senators were well-informed and well-prepared. Their questions were fair and insightful. Sometimes detailed, sometimes big picture. One question was repeated several times: “Do you think that the failures with Penn State’s BOT were a result of structural problems, or personality problems?” They are trying to figure out how to address what went wrong. It was taken for granted that the BOT most definitely HAS failed.

• The Auditor General spoke fervently in support of many aspects of reform. And he said, “It would be a big mistake to leave the reforms up to the Penn State Board to do themselves.”

• Masser, Broadhurst, and Lubert testified for BOT. They did not respond intelligently to questions. They did not have good answers to why the Legal Committee did not think change in the size and composition of the Board was a priority. They had to acknowledge that the committee’s proposed changes may not be approved by the full Board. 

• Senator Folmer asked BOT: “The alumni seem very angry. Why is that? What are you doing about it?” There was a very long pause. Then Broadhurst said, “That’s a good question,” clearly unprepared to answer. Said they wanted to move forward, had done their best but were criticized for it, decisions they had to make were difficult, they are trying to be responsive. It was a weak response and everyone in the room saw that. Lubert added info about public comment session at Board meeting, visitors invited to attend and comment at committee meetings, new website with info on progress. 

• Dinniman was quite assertive in telling BOT that legislation would be required to change the Enabling Statute to accomplish some of the reforms. This apparently was news to the BOT.

• Senator Yudichak challenged BOT on process of engaging Freeh and the BOT’s failure to accept report. Challenged them on whether engagement of Freeh and use of Task Force were consistent with the Standing Orders. Said investigation was NOT independent because it was managed by Task Force.

• The BOT folks left after their turn, before Anthony Lubrano and Bob Horst spoke. Stephanie Deviney remained throughout. I thought it was a very insulting thing for them to leave Senate hearings before they were complete. It did not reflect well on them. 

• Bob Horst’s testimony about how the BOT functioned in the 1990s was chilling. He describes a power-hungry cabal of insiders. Described Hintz as “the face of the power block.” Talked about Trusteeship as a reward for big donors.

• Anthony was articulate and persuasive. Senators were clearly sympathetic to his positions. Anthony spoke repeatedly about importance of engagement for all Trustees, suggested that reducing size of BOT would support better engagement. Criticized selection process for B&I Trustees as too insular, suggested instead that deans of all the colleges each put forward two candidates to be voted on by full BOT, a more open and inclusive process that would broaden the types of people who would serve. Spoke of his concerns about the new language where BOT could vote out a Trustee who spoke openly in disagreement of BOT decisions; Senators were openly critical of this new provision. 

• Senator Folmer asked Anthony why alumni are unhappy. Anthony said most important thing was lack of fairness, no willingness to deal with that in an honest way. He said it may be too late to regain confidence of the alumni in the old BOT. Failure of leadership, political correctness motivated their actions. Anthony said we can separate fairness and due process versus protecting children – both can happen. He spoke movingly about the mission of our land grant university, where sons and daughters of farmers and coal miners have received excellent educations. We became an elite university without becoming elitist, because of Joe’s leadership.

• I spoke with Senator Corman after the hearings and he said they prefer for BOT to make changes internally but they are prepared to respond with legislation if needed. He noted that the problem with legislation is that they lose control of all the things that might get attached to a bill. We agreed that threat of legislation seems to be motivating BOT to make at least some reforms.

• Today went better than I ever could have imagined. These Senators see very clearly where the problems lie in the BOT and are committed to addressing it. Old BOT looks weak and cannot defend their actions. PSU alumni showed up in force. WE ARE on a roll! 

• Thanks to everyone who helped get us all to the hearings, those who showed up, and those who sent good thoughts from afar. There is much work remaining to be done, but we have great momentum now.

More coverage from StateCollege.com

Letter Campaign to Oust Frazier Plus On-line Form

LETTER CAMPAIGN TO OUST KEN FRAZIER. I believe one way to get Frazier off the Board is to go after Merck.    Also here is Merck's on-line complaint form

By Eileen Morgan

We need to have a letter and email writing campaign and inundate Merck with constant contact regarding Frazier's remarks, esp. 'I don't care if they are acquitted.' They need to know:

#1 Frazier apparently doesn't care about the truth which means he doesn't actually care about the children. He doesn't care about the truth regarding the PA agencies that failed the children and are still operating status quo today.
...
#2 Frazier does NOT care about due process. But, based on one-sided information, he deems himself the judge and jury and takes matter into his own hands and determines the verdict based on his opinion. This means every employee of Merck has no say or defense if an issue comes up re: their employment. They should feel very insecure working for a company with a man having this mindset at the helm.

#3. Let them know that we want Frazier OFF the Board at PSU and that until that happens we will be initiating a social media campaign via, facebook and twitter, that will travel the globe letting the stockholders of Merck know all about the man who runs Merck.

Here is the address and phone for Merck. The second contact info is for their Media Relations. What do you think? Just a one pager, once a week from all of us, should make an impact. And let's add MBNY (Peetz) and US Steel (Surma) writing campaigns too! I'm going to start writing….

One Merck Drive
P.O. Box 100
Whitehouse Station, NJ 08889
United States
1-908-423-1000

Steven Cragle
Head of Media Relations
+1 908-423-3461
steven.cragle@merck.com

Kenneth Frazier: Audio of racist remark and transcript

....you are one of the few people in this country, that looks like you, who actually believes the O.J. Simpson not guilty verdict was correct ~ Ken Frazier


Hat tip, Tom McLaughlin

“Excuse me.  Excuse me.  Excuse me.  Excuse me, sir. That is your view."

"I believe that we are entitled to look at the words and contemporaneous emails and other documents that draw the conclusions that we need to draw as a university,”

“We are not subject to the criminal beyond-a-reasonable-doubt standard, and you’re a lawyer, so you can stop pretending that you think we are,” 

“We can take employment actions, we can take corrective actions without any need to resort to the so-called due process, reasonable doubt standard, and I don’t care if they are acquitted. And you know the difference.

“If you cared about that, you are one of the few people in this country, that looks like you, who actually believes the O.J. Simpson not guilty verdict was correct.  And you know you do."
"So the reality of the world is..."

"Yes, I said it."

“The fact of the matter is, those documents say what they say, and no amount of hand-waving will ever change what those documents say.”

Read more here: http://www.centredaily.com/2013/03/15/3538896/penn-state-trustee-frazier-dismisses.html#storylink=cpy

PSU BOT: Not Upholding Their Duties And Responsibilities

The students, faculty, staff and alumni have the right to know where the trustees stand regarding the Freeh Report.

By Eileen Morgan

THE FIRING

As most are well aware, the Penn State Board of Trustees fired Joe Paterno on November 9, 2011.  And by refusing to allow then President Graham Spanier to respond to the Sandusky crisis and let him lead the University as he had for the previous 16 years, the Board of Trustees forced Spanier into the position of stepping down, which he did graciously and with dignity.  Even after Paterno announced his retirement earlier that day, the trustees decided to fire him, not allowing him to retire with dignity.  And, even after Spanier presented the trustees that same day with a magnanimous resignation statement, the trustees downplayed it and later made a point in the media to talk about his "firing." 

Believe it or not, their terminations were based on the grand jury presentment used to indict Jerry Sandusky for alleged child sexual abuse and they came just two days after the Attorney General's press conference announcing the indictments.  It is important to clarify that a presentment is a report by a grand jury, without a request for or presentation of evidence by the prosecutor.  The inflammatory content of the presentment turned out to be insufficient to prove in a court of law that Sandusky committed the most serious of the alleged crimes, the supposed anal rape of a child in a Penn State locker room, let alone be used to take career-altering and reputation-damaging actions such as the ousting of Paterno and Spanier.

However, the Penn State trustees apparently read this document and believed the 2001 eyewitness account without question or proof.  The eyewitness was later revealed to be Mike McQueary, not by the presentment, but by a news story.  It appears the trustees concluded, without evidence, that Paterno and Spanier did not properly handle the 2001 incident, which constituted a failure of leadership.

But, at Sandusky’s trial the presentment’s most shocking revelation, McQueary’s eyewitness account in which he allegedly saw Sandusky sexually assaulting a boy, was completely refuted.  In fact, the witnessing of “anal rape” or any sexual assault was denied by McQueary himself.  Neither Paterno nor Spanier at the time of their terminations had been charged with any crimes.  Moreover, they willingly testified before the grand jury about what little they knew of the 2001 incident involving Sandusky.  Yet, based on the testimonies given by these men almost 10 years after the incident, the trustees, under perceived media pressure and without thoughtful debate, fact finding, or due process, terminated the men’s employment immediately.  Even Sandusky, alleged to have committed horrific crimes, was afforded fairer treatment and due process.

This Board decision incited anger throughout much of the Penn State community including students, faculty, staff and alumni.  The rush to judgment to get rid of these men, without even the courtesy of discussing the matter, was and still is to this day unacceptable to many.

THE HIRING

That same month, the Board hired Louis Freeh to investigate the matter, an investigation in which Freeh had no subpoena power, interviewed none of the key witnesses, and those he did interviewed were not under oath.  Dozens of people who were interviewed gave substantial positive testimony of the honesty and integrity of Joe Paterno, Tim Curley, Gary Schultz, and Graham Spanier, including many trustees.  Likewise, many individuals spoke positively about the culture of Penn State athletics and the Penn State Football program.  But it is clear that Freeh and his team ignored exculpatory testimony and evidence.  Freeh’s weak and unsubstantiated conclusions regarding these men could never
be used in a court of law or be used to convict them of any crimes.  In reality, the findings and conclusions regarding their alleged wrongdoing are simply one opinion based on a few emails taken out of context and given the most unfavorable interpretation.

This 267 page report came out July 12, 2012, and based on the Board’s statement¹, was released simultaneously to the Board and public.  Yet, amazingly, within hours the Board had a prepared statement and made themselves available to the media.  The statement (addressed below) most likely was in response to Freeh’s forty-five minute press conference and not in response to reading the lengthy report, digesting and analyzing the evidence, and determining if the facts and evidence clearly supported the findings and conclusions drawn by Freeh.  It seems clear that the trustees boxed themselves in by proclaiming that they would see the report at the same time as the public and by suggesting all along that they would accept whatever was in the report.  Unfortunately, to this day, there has never been a Board of Trustees meeting in which the Freeh Report has been discussed, dissected, analyzed and verified.  One would think that most, if not all, of the trustees have read the Freeh Report, the King and Spalding study sponsored by the Paterno family, the report of Spanier's attorneys, and other independent analyses, but only a few of the trustees have publicly stated their position.  Do these actions represent responsible stewardship of Penn State University? 

Remember, the Freeh Report, which alone has reportedly cost the university up to $10 million, was commissioned by the Penn State Board of Trustees.  Should it not be required of each trustee to thoroughly read, verify the content, and comment on the product they paid for?  Should they not be required to collectively discuss the evidence to determine, as the governing body, if they agree or disagree, with Freeh’s findings?  After all, they apparently read and discussed the presentment to reach their decisions regarding the terminations of Paterno and Spanier.  It is an undeniable breach of fiduciary responsibility that the leaders of Penn State, who paid millions for an investigation, have not publicly stated where they stand regarding the findings of the final product. 

THE FALLOUT

Not discussing and verifying the findings of the Freeh report, is merely the tip of the iceberg.  This report was the single source used by the NCAA to levy unjustifiable sanctions that included a $60 million fine.  The consent decree², which PSU President Rodney Erickson agreed to without confirming Freeh’s findings, included a clause that the ‘University willingly accepted the Freeh Report.’  How is it possible that the governing body of Penn State agreed to the sanctions without question or fight?  How is it possible that at the time the sanctions were coming down, the Board didn’t take a step back, get together as a group, and consider the merits of the very source (Freeh Report) for the sanctions?  In addition, this report is apparently the primary reason why Penn State has decided to enter into settlement talks with possible victims because of Penn State’s alleged liability for Sandusky’s crimes.  Indescribably, the Board actually invited plaintiff lawyers to settle quickly, in fact announcing that they wanted to compensate all victims before the end of 2012, even before anyone's guilt other than Sandusky’s could be determined.  Although it looks increasingly unlikely that there is any evidence that university officials had any role in enabling Sandusky's crimes, the University continues to apologize and open the doors of liability for itself.  

The Freeh Report and Penn State's implied acceptance of it could easily cost Penn State well over $100 million, and the Board of Trustees has not been brave enough to stand up and acknowledge the report's substantial limitations.  Do these actions represent responsible stewardship of Penn State University? 

The following section contains the mission statement, standing orders, and public statements of the Board.  In light of the hasty terminations of Paterno and Spanier, the silent acceptance of the Freeh Report, the acceptance of the NCAA
sanctions and the pending settlement talks with possible victims, determine for yourself if the Board of Trustees has responsibly governed the University. [My comments are in blue and in brackets.]
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[1] Legal Matters http://progress.psu.edu/legal-matters²http://s3.amazonaws.com/ncaa/files/20120723/21207236PDF.pdf

THE BOARD’S DUTIES AND RESPONSIBILITIES

The following is the Penn State Board of Trustees’ mission statement: The Board of Trustees of The Pennsylvania State University is the corporate body established by the charter with complete responsibility for the government and welfare of the University and all the interests pertaining thereto including students, faculty, staff and alumni.³

[The welfare of the University and interests of the students, faculty, staff, and alumni has been neglected by the Board for the past 16 months as evidenced by their rush to terminate Joe Paterno, 61 year employee, and Graham Spanier, a 27 year employee, 16 as president, with no evidence of wrongdoing.  The fact that the trustees have not collectively acted on the findings of their multi- million dollar Freeh Report and have not publicly stated where they stand is additional proof of their negligence.  Furthermore, their surrender to the NCAA and their apparent surrender to the possible victims, without challenge or confirmation of Penn State’s culpability at this point in time, is a complete disregard for the welfare of the University.  The hasty acceptance of the sanctions and settlements could cost the state-funded school $100 million or more, quite possibly forcing tuition increases and risking loss of enrollment.]

One of the ‘Guiding Policies’ states that ‘the Board shall receive and consider thorough and forthright reports on the affairs of the University by the President or those designated by the President.  It has a continuing obligation to require information or answers on any University matter with which it is concerned.’⁴

[The Freeh Report pertains to the affairs of the University.  However, the consideration the report has gotten from the trustees has not been publicly stated.  The trustees who are not on the Executive committee are obligated to require information and answers regarding the Freeh Report and the details of the agreement between Erickson and the NCAA regarding the sanctions.]
The ‘Expectations of Membership’ state⁵: In exercising the responsibilities of trusteeship, the Board of Trustees is guided by the expectations of membership, each of which is equally important (not all listed):

1. Understand and support the University's mission, vision, and values
[Based on the above, the trustees do not understand or support, by their actions, the University’s mission.]

2. Act in good faith at all times and in the best interests of the University in a non-partisan manner
[The actions of the trustees over the past 16 months have not been in the best interest of the University, in fact, their actions have been detrimental to Penn State.  How is it that the lawyers on the BOT did not consult the relevant laws on child abuse reporting before accepting the allegations against PSU officials (in the grand jury presentment) as fact?  That is not acting in good faith. ]

4. Prepare diligently, attend faithfully, and participate constructively in all Board meetings and related activities by reading the agenda and supporting materials

[The trustees are directed to read the agenda and supporting materials for all Board meetings but have not been required to act on their own $10 million Freeh Report?]

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

[The Board, as a whole, did not make the decision to silently accept the Freeh Report nor to accept the NCAA sanctions, but individual trustees did.]

8. Disclose promptly and fully any potential or actual conflicts of interest, and personally maintain exemplary ethical standards
[Gov. Tom Corbett did not disclose his conflict of interest regarding his investigation into Sandusky’s crimes that possibly involved the University.  Trustees Corbett and Ken Frasier did not reveal conflicts over their prior relationships with Freeh around an internal investigation at Merck, where Frazier is CEO, which resulted in massive fines.  The silence surrounding the Freeh Report and the questionable actions of the consent decree signing by Erickson, which are costing the University millions of dollars, before culpability has been determined, appear to be less than ethical.]

13. Extend goodwill to one another and to all members of the University community. [The Board’s failure to extend goodwill (due process) to its former employees speaks for itself.]

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³Standing Order IX, (1)(a)
⁴Standing Order IX, (1)(b)2
⁵Standing Order IX. (1)(f) Expectations of Membership

President Erickson’s Promise to the Penn State Community (2011)6

With the full support of the Board of Trustees, I have outlined five promises to the Penn State community that will guide my leadership of this great institution in the wake of this tragedy. I wish to share these promises with everyone who is a part of our community. (Not all listed)

1.       I will reinforce to the entire Penn State community the moral imperative of doing the right thing – the first time, every time. [Throwing caution to the wind that will cost the University $100 million is NOT the right thing.]

·         I ask for the support of the entire Penn State community to work together to reorient our culture. Never again should anyone at Penn State feel scared to do the right thing. My door will always be open. [The Penn State culture has never needed to be reoriented, until now, due to the Board’s negligent and irresponsible leadership.  Penn State cannot be responsible for anyone’s feelings.  Adults are responsible for their own behavior.  The story of the scared janitor has been disproven by the evidence.  Mr. Erickson, the right thing, as our President, is for you to fight for our school and defend the University.  But, out of fear, you accepted the NCAA sanctions and signed the consent decree.  Practice what you preach.]

2.       As I lead by [poor] example, I will expect no less of others [trustees].

·         I will ensure proper governance and oversight exists across the entire University, including Intercollegiate Athletics. [As detailed above, the governance and oversight of the University has been improper, irresponsible, and disgraceful.]

3.  Penn State is committed to transparency to the fullest extent possible, given the

     ongoing investigations.

·         I encourage dialogue with students, faculty, alumni, and other members of the Penn State community. [The Penn State Community demands to know which trustees read the 267 page Freeh Report before lending their support for it, and when will the Board discuss the report, collectively, as a body.]

5.   My administration will provide whatever resources, access, and information are needed to support  
       the Special Committee’s investigation. I pledge to take immediate action based on its findings.
       [These promises were made in Nov. 2011.  Erickson pledges 8 months before the findings of Freeh are to be released that he will ‘take immediate action on its findings.’  It appears Erickson gave up all rights of Penn State to Freeh in 2011.  Whatever Freeh determined to be true would be true and Penn State would blindly do whatever Freeh dictated, as well as, blindly accept whatever the NCAA would hand down. This is the epitome of poor leadership.  Responsible stewardship would be to immediately take the findings under advisement, analyze the report as a body, determine if the evidence supports the findings, and THEN decide, as a corporate body, what actions Penn State would take.]

THE BOARD’S PUBLIC STATEMENTS

On July 12, 2012, the Board released this statement⁷ in response to the Freeh Report  (not in total): Today’s comprehensive report is sad and sobering in that it concludes that at the moment of truth, people in positions of authority and responsibility did not put the welfare of children first. The Board of Trustees, as the group that has paramount accountability for overseeing and ensuring the proper functioning and governance of the University, accepts full responsibility for the failures that occurred. [A responsible governing body would not have blindly accepted full responsibility for Sandusky’s crimes without first reading and analyzing the basis of the accusations.
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⁶http://president.psu.edu/goals ⁷http://progress.psu.edu/resource-library/story/penn-state-issues-statement-on-freeh-report

If they indeed accept full responsibility for the failures that occurred then why haven’t each of them resigned from the Board?  After all, they terminated Paterno and Spanier for ‘failure of leadership,’ without any evidence of wrongdoing, so why haven’t they taken the same punishment they allocated to those men for the same infraction?]
Judge Freeh's report concludes that certain people at the University who were in a position to protect children or confront the predator failed to do so. There can be no ambiguity about that. [Freeh’s conclusions were never verified by the Board so how can they make a claim regarding ambiguity.]

Furthermore, the Board is committed to greater transparency and communications with the entire University community. [The Board must be open and publicly state where they stand regarding Freeh’s conclusions.]

In the weeks ahead, the University will carefully review and consider each of the report’s recommendations. Tomorrow at its regularly scheduled meeting, the Board of Trustees will consider a series of immediate next steps. President Rodney Erickson has appointed three members of his senior leadership team to coordinate and implement operational changes suggested by the Freeh Report. [How can the governing body of a world class institution implement operational changes that they don’t know in fact need changing?  If Freeh recommended they shut down all athletics for two years would they do it without question and without analyzing his report?  That’s exactly what the Board is doing with these recommendations.  The Board of Trustees is being run by substandard leaders.]
With the release of the Freeh Report we are beginning to correct our failures…. [Again, how can the Board correct failures they don’t know actually exist?]

On July 23, 2012, the Board released this statement⁸ regarding the sanctions (not in total): The NCAA announced their penalties against Penn State, which included a four-year prohibition against post-season play for the football team, the loss of scholarships, the vacating of past wins, and a $60 million fine. Penn State President Rodney Erickson, with input from legal counsel and members of the executive committee of the Board of Trustees, accepted the NCAA-imposed penalties. [The Board had 11 days to come together to discuss and verify the findings of the report.  Had the trustees done so, as one would expect of a world class University, then they would have quickly realized that Freeh’s findings and conclusions were not supported by the evidence.  They then would have been in a position to challenge Mark Emmert and the NCAA, defend the University against the unjust sanctions, and display effective leadership that had been lacking for 8 months.] 

The events surrounding allegations of serious misconduct on our campus have led to multiple investigations and lawsuits. Many of these are ongoing or are still in early stages. The process of establishing what happened, determining personal and institutional accountability and ensuring that these events do not happen again is essential to our community's recovery and eventual healing. [The trustees talk out of both sides of their mouths.  Their initial statement above on 7-12-12, just hours after the Freeh report came out, never uses the word ‘alleged.’  Their statement was total acceptance of Freeh’s conclusions and that Penn State was to blame.  Here, they actually admit Freeh’s findings are merely ‘allegations’ and that the law, due process, has yet to determine exactly what happened and if anyone or the University is culpable.  Yet, knowing all this, they irresponsibly neglected to wait for the law to determine culpability, and accepted Freeh’s alleged findings, allowing Penn State to take full responsibility for Sandusky’s crimes which led to unprecedented sanctions that could cost the University over $100 million.]______________________________________⁸Legal Matters http://progress.psu.edu/legal-matters

The University has been and is cooperating fully with all appropriate government authorities and all criminal and administrative investigations, including those described below. Out of respect for the legal process and the privacy of the individuals involved it would not be appropriate to comment on specific charges, evidence or individuals until the legal process and such investigations are completed. [Why didn’t the Board take a STAND for Penn State and make this statement on November 9, 2011?  Why didn’t the Board take a stand and make this statement on July 12, 2012?  And why didn’t the Board take a stand against the NCAA, using this statement, and refuse to sign the consent decree?]

§  Attorney General: The Grand Jury investigation is ongoing, which means further questioning and charges may yet occur. [The Board acknowledges the legal process have not concluded, yet never defends or fights for the University, which eventually may be found not responsible for any of Sandusky’s crimes.]

§  Penn State Board of Trustees' Special Investigations Task Force: The Freeh Report was released online at thefreehreportonpsu.com simultaneously to the University community, Board of Trustees, the media and the general public on July 12, 2012. [The trustees never saw the report until a couple hours before their statement.  They could have never read or verified the report within that time frame.  Their statement on July 12, 2012, allowing Penn State to fully accept responsibility for Sandusky’s crime was reckless and a colossal dereliction of duty.] 

On Oct. 26, 2012, the Board released this statement⁹ regarding the Legal Committee (not in total): Penn State's Board of Trustees voted unanimously to authorize a subcommittee of the Board to approve possible settlements of claims made against the University related to the crimes of former assistant coach Jerry Sandusky.

This measure provides the Subcommittee on Legal -- an arm of the board’s Committee on Legal and Compliance -- the authority to approve settlements that may be reached related to claims against the University by individuals alleging that Penn State is liable for injuries suffered in connection with sexual abuse by Sandusky. [Again, the Board acknowledges that the courts have yet to determine if the University is responsible for Sandusky’s crimes.  Why would the University even consider approving settlements before the legal processes have concluded?  I wonder if the insurance companies who will be footing the bill of this negligent Board have any recourse.]

On Feb. 10, 2013, the Board released this statement¹⁰ regarding its progress (not in total): The goal of this investigation was to uncover facts and identify where failures occurred in the University's governance and compliance structure and to make recommendations to help ensure that such failures never happen again. [Do you notice with each new statement, the Board adjusts its tone and position?  The initial statement following Freeh’s press conference was total acceptance of blame.  A week and a half later, the Board is careful to correctly say “Penn State’s ‘alleged’ misconduct” and “the process… to determine personal and institutional accountability….”  With this recent statement, “the goal was to uncover facts,” now suggests the Board might not necessarily agree that the goal was accomplished.]

The University intends to implement substantially all of the (119) Freeh recommendations by the end of 2013. [Many of the recommendations are derived from alleged failures that have yet to be confirmed.]

It is understandable and appreciated that people will draw their own conclusions and opinions from the facts uncovered in the Freeh report. [WOW!  The Board acquiesces that the conclusions drawn by Freeh are not necessarily 100% truth and they now understand and appreciate that other conclusions, different from Freeh’s, are possible from the same facts he based his findings on.  So what are THEIR conclusions?]______________________________________
⁹http://progress.psu.edu/resource-library/story/trustees-approve-resolution-to-grant-authority-for-legal-settlements
¹⁰http://progress.psu.edu/resource-library/story/freeh-investigation-findings-used-to-improve-penn-state-operations

THE DEMAND FOR REAL LEADERSHIP

Has each trustee read the entire Freeh Report?  If so, where do they stand regarding Freeh’s conclusion that the senior leaders of Penn State knowingly allowed Sandusky to sexually molest boys for 14 years?  I believe the trustees have been silent on this matter because they have backed themselves into a corner.  Either way they answer that question, their backs are up against a wall.  If they continue down their current path of silence, and do not reveal that they have indeed read it, then they are displaying a complete dereliction of duty, as addressed above.  Their disregard of the responsibility for the government and welfare of this University is blinding.  I’m not sure which is more astonishing, the fact that the trustees have not collectively reviewed and vetted their $10 million report, or the fact that they have gotten away with it for so long.  However, if the trustees do in fact publicly reveal they each have read the report, then they will have to answer for the unsupported findings and conclusions surmised by Freeh.  They will have to explain why they allowed a faulty, unsubstantiated report to be used by the NCAA, without objection, to impose hefty sanctions, including a $60 million fine.  In addition, they will have to explain why they are even considering making settlements with possible victims before the courts have determined Penn State’s culpability.  And finally, they will have to admit their rush to judgment and the ousting of Joe Paterno and Graham Spanier were egregious mistakes, not made in the best interest of the University.  Clearly, the corner they have painted themselves into shrinks day by day.

A remarkable fact about the Penn State trustees is that many of them own and/or run well-known, successful corporations throughout America.  I wonder if these trustees run their businesses in the same irresponsible and unethical manner they have run Penn State over the past sixteen months.  I certainly hope they do not throw caution to the wind, like they have at Penn State, when making decisions that could cost their companies over $100 million.  I wonder if the trustees run their households this way, with the same cavalier attitude and disregard for family members.

According to Standing Order IX (1)(c)1¹¹,the Board of Trustees has a certain responsibility to evaluate the President of the University.

1. This responsibility includes a commitment to grant the President broad delegated authority, to support the President in his/her exercise of such authority, to judge the performance of the President, and if necessary, to remove the President. In the selection of a President, the Board shall consult with representatives of the faculty and the student body.

Perhaps President Erickson’s performance in governing Penn State needs to be evaluated.
Penn State’s situation today reminds me of the relevancy of a famous quote: “A true leader has the confidence to stand alone, the courage to make tough decisions, and the compassion to listen to the needs of others. He does not set out to be a leader, but becomes one by the equality of his actions and the integrity of his intent.”
Of all the great leaders this brings to mind, Rosa Parks comes front and center.  Her undeniable courage and confidence to sit alone in the face of adversity helped change American history forever.  The Penn State Board of trustees needs a Rosa Parks.  Penn State needs a true leader.  Who will finally stand up for this University and refuse to sit in the back of the bus?  Until then, this bus is not moving forward.

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¹¹ http://www.psu.edu/trustees/charter.html