By
Ray Blehar
Recent headlines in the Victim 6 lawsuit against PSU trumpeted that the judge ruled against the University's request to delay the lawsuit and went on to discuss the broad range of documents requested for discovery.
However, the ruling that could tell the story - and perhaps get the media's attention - will be the ruling on the claims of civil conspiracy and the associated discovery.
Victim 6's lawyer, Howard Janet said Penn State officials gave Sandusky access to campus facilities where he abused children.
Janet argued that their client suffered from “the fruits of an unlawful conspiracy” that was designed to conceal the shower incident and shield the university from negative public reaction.
“Permitting Sandusky to remain as a coach with unrestricted access enabled the abuse to continue and strongly supports an inference that inappropriate sexual relations were condoned by Penn State,” Janet wrote.
“Permitting Sandusky to remain as a coach with unrestricted access enabled the abuse to continue and strongly supports an inference that inappropriate sexual relations were condoned by Penn State,” Janet wrote.
The Law
A plaintiff bringing a civil conspiracy claim is required to aver “material facts which will either directly or inferentially establish elements of conspiracy.” Id. Additionally, a plaintiff must allege (1) the persons combined with a common purpose to do an unlawful act or to do a lawful act by unlawful means or unlawful purpose, (2) an overt act in furtherance of the common purpose has occurred, and (3) the plaintiff has incurred actual legal damage. Id. Importantly, absent a civil cause of action for a particular underlying act, there can be no cause of action for civil conspiracy to commit that act.
Janet Is Arguing the "Wrong" Conspiracy
First, Janet is trying to shoe horn this into a civil conspiracy by stating the abuse occurred due to an unlawful conspiracy at PSU based on the scant evidence in the Freeh Report.
If Victim 6's abuse occurred in late 2001 or later, he might have an argument but 1998 was the first known incident of Sandusky showering with a child to be reported to PSU officials.
Next, there was absolutely no effort on PSU officials Schultz, Spanier, Curley, or Paterno to conceal the 1998 incident. Prosecutor Frank Fina is on record that there is NO evidence Paterno was involved in a cover-up, however he is pressing on with his charges of "endangerment" based on the 2001 incident, not the 1998 case.
The report of abuse in 1998 was fielded by University Park police and jointly investigated with caseworkers from the Department of Public Welfare. The investigation was joined by the State College police and had involvement the Centre County District Attorney's office.
To make an argument of concealment of the 1998 incident against Spanier, Curley, and Schultz is a losing argument.
To make an argument of concealment of the 1998 incident against Spanier, Curley, and Schultz is a losing argument.
Penn State's Senior Vice-President for Business and Finance, Gary Schultz, was informed by then-Chief of Police Tom Harmon that there was no criminality to the incident, thus neither Schultz nor any other University official could have believed there was inappropriate sexual relations, let alone condoned it.
If Janet wants to win this case, he is going to have to cast a wider net and use something more that the faulty conclusions emanating from the fake investigation of Louis Freeh -- specifically, that the PSU BOT influenced the 1998 case.
Casting a Wider Net at Penn State
According to press reports, the legal team of Victim 6 made 33 discovery requests for a wide range of information from Penn State, including the names of everyone Freeh interviewed, the entire police file from 1998, and every single document the university gave the grand jury investigating Sandusky.Freeh stated his team reviewed 3.5 million documents. As Eileen Morgan pointed out, that was mathematically impossible to cull through that much information in the eight months Freeh's team got paid for not investigating the case.
We also know that key word searches were performed for Paterno, Spanier, Schultz, Curley, and McQueary. It is unclear what other search terms were used or if the PSU IT department or OAG computer forensics teams searched on other names.
However, if Howard Janet wants to prove a "civil conspiracy," he may want to use the chart below for the list of names to search in those 3.5 million records.
As you can see, some of the people who were around in 1998 were still on the BOT in 2011 as trustees or emeriti trustees, including Joel Myers, Cynthia Baldwin, Ted Junker, David Jones, Ed Hintz, Al Clemens, Anne Riley, Robert Metzgar, and Barry Robinson. Janet may want to search those names and see what he comes up with.
Note that Schultz's name appears as Treasurer of the BOT. His role on the BOT may be unfortunate for the other members if he instructed PSU's IT department to transfer the BOT e-mails (as he did his own) during the 2004 system switch-over.
Casting the Net At The Second Mile
Janet also filed suit against The Second Mile (TSM), however TSM's lawyers denied any knowledge of the 1998 incident, claiming that Penn State "concealed" evidence of that incident from their organization. TSM also continued to repeat the false story that none of Sandusky's abuse occurred during any programmed activities of TSM.TSM's claims are quite tenuous regarding its knowledge of 1998 -- and they made a similar claim when the story of the Sandusky investigation broke in March 2011.
As I pointed out at Upon Further Review on November 9, 2013, TSM's Executive Director, Dr. Jack Raykovitz was being untruthful about TSM's knowledge of Sandusky's activities when he wrote the charity was "shaken" when it learned of the allegations in the March 2011 Sandusky grand jury. A number of press reports and the testimony of Clinton County CYS Supervisor, Gerald Rosamilia, made it clear that TSM was informed of the Sandusky investigation at its outset on November 20, 2008. Sandusky lost his clearance to work with children and abruptly resigned from the charity in the Fall of 2009. Yet TSM continued to use Sandusky in their fund raising efforts and did not announce his "retirement" from the charity until September 2010.
In the same op-ed, Dr. Raykovitz repeated the claim that the charity received no reports of abuse related to any official TSM activities.
"Throughout our history, there have never been allegations made with regard to misconduct occurring during any Second Mile program."
That claim just doesn't hold water for the 1998 incident (and the 2001 incident).
First, TSM's 1999 Annual Report (not available on-line) shows that $75.242 was spent on the Friend/Friend Fitness program and that 48 "kids between both the State College and Indiana sites" were served by the fitness program by 36 mentors. In the 2001 incident, the Annual Report shows $95,334 spent on the program and 40 participants. Reasonable people (i.e., a jury) would probably conclude that Sandusky was using the Friend Fitness program as a means to take showers with youths. Howard Janet's discovery request should include the Friend Fitness program records for all years there were victims.As I noted in Report 1, Centre County Children and Youth Services (CYS) was required under the Public Welfare Code to notify TSM of the initiation and closure of the 1998 investigation, as well as work with TSM to put a protection plan in place during the investigation. While it's clear the latter was not performed, it is unclear whether or not CYS made the notifications. Despite the fact no records from an unfounded report would be available, Mr. Janet should utilize the provisions of the Public Welfare Code to make his case against TSM.
Finally, the search terms for PSU's records should use the names of Board Members and key donors at The Second Mile, which can be obtained from their 1997 IRS 990 Form (for year ending 8/31/1998) and 1998 Annual Report. Searches of data are cheap, so why not run these names on the PSU data and see what comes up (Moulton and the Feds do should do the same).
Freeh Whiffed on TSM and PSU BOT Nexus and Protected TSM
Report 2 exposed that only 12% of Freeh's findings related to the NCAA sanctions held water, however, one of the few that I found to be correct was that Spanier, Curley, Schultz, and Paterno did not interfere with the 1998 investigation.What is not certain is if any of the members of the BOT interfered or pulled strings to ensure Sandusky was not indicated as a child molester. While the Freeh Report erroneously faults Spanier and Schultz for not informing the BOT about the 1998 case (clearly a duty that belonged to the PSU General Counsel, Courtney, under the Standing Orders of the BOT), the Freeh Report did not consider other means in which the BOT may have learned of the investigation -- namely from TSM, the police, or from CYS.
In other words, the BOT may not have gotten official notification but certainly could have learned of it through unofficial channels. And that is where the relationship between the PSU BOT and TSM comes into play.
Chapter 7 of the Freeh Report, titled "Sandusky's Post-Retirement Interactions With The University," fell woefully short in identifying any of the PSU BOT members, past or present, that had ties to TSM.
The TSM Annual Reports from 2005 to 2010 showed that USSteel and Merck, both with high ranking officials on the PSU BOT, were donors to TSM. In addition, other BOT members such as Lloyd Huck, James Broadhurst, Paul Silvis, Anthony Lubrano, and Linda Strumpf were donors. Trustee Ira Lubert sat on the Southeast Region Board of TSM for several years. Again, this information was available on public records and should have been identified in Chapter 7, but was conspicuously missing.
Full, fair, and complete investigation? Not by a long-shot.
Freeh Attempted to "Cover-up" for TSM
There are numerous other errors describing the relationship between PSU and TSM on page 107 to 109. but what is particularly notable is the last paragraph on page 109, which appears to provide a "cover-up" for TSM by making no mention of the Friend Fitness program.
"Second Mile also offered a "Friend Program," a mentorship program that matched a college volunteer with an at-risk elementary student.....Friend Program events included picnics, holiday parties, swimming, and bowling. Sandusky sometimes participated in the Friend Program at the Altoona campus. When he did, Sandusky often arrived accompanied by a boy for Second Mile who was not part of the invited group. According to a Director of Programs at Second Mile, the last time he saw Sandusky participate in any Second Mile activities was in 2008."
The Freeh Report also states that TSM's summer camps on the PSU campus took place from 1999 to 2008, but TSM's Annual Reports ending August 31, 2009 and 2010 show that TSM paid $119,592 and $124,587, respectively, for food and lodging to PSU for its camps. Clearly, those camps took place on PSU's campus through 2010. I suspect the 2008 cut-off was done to protect TSM from criticism or liability for allowing Sandusky to interact with children after he was indicated for abuse.
(Note: Similar tactics were used in later news articles written by Sara Ganim in the Patriot News)
Conclusion
For Howard Janet to succeed in the "civil conspiracy" case, he must widen his scope past the false allegations made in the fake investigation conducted by Louis Freeh.Janet must use the discovery materials to dig into the areas that the original Sandusky investigation and the fake Freeh investigation failed to explore -- specifically, the PSU BOT, TSM, and DPW.
Given the power and influence of the PSU BOT and TSM Board members, particularly their associations with government officials, I find it curious that the 1998 investigation was taken over by an investigator from Harrisburg, rather than the office that had jurisdiction, in Cresson.
