Baffled, Befuddled, and Bamboozled: Penn State Trustees and NCAA are Sinking

 

 

by WALTER BRASCH

 

When we last left the baffled and befuddled Penn State trustees, they were trying to figure out what happened in the Great NCAA Sanctimonious Sanction.

What happened is that the NCAA bamboozled university president Dr. Rodney Erickson. The NCAA—having spent most of its history figuring out ways to make college athletics even more prominent on college campuses—suddenly found religion, created new rules, didn’t conduct an investigation, and shredded anything resembling due process. Using the Freeh Report as its newly-found Bible, NCAA president Mark Emmert piously declared he wanted Penn State to “rebuild its athletic culture,” and preached the lesson that the NCAA hoped “to make sure that the cautionary tale of athletics overwhelming core values of the institution and losing sight of why we are really participating in these activities can occur.”

It was a neat little speech, probably written by PR people. But it couldn’t be Penn State he was referring to. Penn State athletes go to classes and graduate; its football team is often at or near the top of graduation rates for Division I football programs. The university itself, even with a well-recognized party culture, is well-known for numerous academic programs that are among the best in the country.

Nevertheless, Emmert somberly told Erickson that the NCAA was seriously considering the death penalty for Penn State. Death, in NCAA terms, means a suspension of the sport for at least one season. The only time the NCAA had issued the death penalty was in 1987 against Southern Methodist University for blatant and repeated recruiting violations. Death to the Nittany Lions football program would significant harm the university and private business, and affect far more than the football team, not one of them having been involved in what is now known as the Penn State Sandusky Scandal.

But, said Emmert, have we got a deal for you. If you sign on the dotted line, we won’t kill football at Penn State, we’ll just fine you $60 million, ban you from bowl games for four years, reduce the number of scholarships, vacate the 111 wins from 1998 to 2011, require you to follow everything the Freeh Report recommended, hire an athletics monitor, comply with everything we tell you, and place you on probation for five years.

Now, every career criminal and little ole lady who accidentally shoplifts knows the police and DA aren’t serious in their first presentment of charges. They overcharge, trying to scare the defendant into a plea bargain. Plea bargains allow DAs to claim high conviction rates, while not having to get all messy with such things as jury selection and presenting evidence. So, the defendant and the DA negotiate, and a few charges are thrown out, and the defendant agrees to a lesser offense—perhaps instead of felony burglary, it becomes a misdemeanor, complete with a small fine and probation—and everyone is happy.

Dr. Erickson, with Pigskin Proud drops of perspiration flowing freely, was so relieved his university wasn’t getting the electric chair, he agreed to whatever it was that the haughty NCAA demanded, and signed the consent decree that Penn State would never ever appeal the decision.

Back in State College, the trustees, as is their history, were clueless and furious.

For years, they thought their only functions were to approve whatever the university president told them needed approving, raise tuition and fees, and get their friends good seats at football games. Now they faced a greater problem.

They had previously proven they were inept in how they handled the scandal. They had previously violated state law by their secret meetings and failure to extend any semblance of due process to Coach Joe Paterno and president Graham Spanier. Then to hide their meltdown, they commissioned Louis Freeh, former FBI director, to conduct what they claimed was an independent investigation, for which the insurance company paid about $6.5 million.

True to what the Trustees wanted, Freeh miraculously decided that the Trustees needed to reassert their power, and that the people to blame, in addition to the convicted child molester, were the former president who resigned,  a now-retired senior vice-president, a former athletic director, and the dead guy, also known as Joe Paterno. Problem solved.

However, there are still a few problems. The first problem is that the Freeh investigation is just that—a private investigation that was not subject to even the basic rules of due process, the right of individuals to subpoena witnesses and to challenge their accusers under oath.

The second problem is that Jerry Sandusky, convicted of an assortment of felonies, was not employed by the university or was a football coach at the time the crimes were committed. The first suspected felony, reported by Paterno, was not prosecuted by police or the DA.

The third problem is that Paterno and Spanier, who faced media hysteria and took the brunt of the Trustee condemnation, were never charged with having done anything illegal, nor did they ever face their accusers in court.

Enter Ryan McCombie, a Penn State alumnus who was elected to the Board in July as a reform candidate promising to get the Board and the university to be more accountable to the people and to protect the rights of accused. McCombie isn’t some wimp in the disguise of a corporate executive. He’s a retired commanding officer of Navy Seal Team Two, and not someone to be messed with.

One month after his election, McCombie unleashed his first shot, and it wasn’t over the bow. In a letter to the NCAA, McCombie, acknowledged the suffering of Jerry Sandusky’s victims. However, he also said that the NCAA objectives that led to the sanctions “should not be achieved by ignoring or trampling upon the fundamental rights of others. The desire for speed and decisiveness cannot justify violating the due process rights of other involved individuals or the University as a whole.”

He charged that Erickson didn’t have the authority to enter into the agreement with the NCAA. He noted that the lack of an NCAA investigation violated NCAA established procedures, and were “excessive and unreasonable.” But his most powerful torpedo hit dead center. The conclusions and recommendations of the Freeh report, which the NCAA used to justify its moral outrage, was “based on assumptions, conjecture and misplaced characterizations that are contrary to available facts and evidence,” said McCombie.

The final problem is that the NCAA and most of the Penn State Trustees are still paddling in choppy seas and don’t know they have been sunk.

[Walter Brasch is a former newspaper and magazine reporter and editor and university professor. He is the author of 17 books, the most recent of which is the critically-acclaimed novel, Before the First Snow, which looks at the American counter-culture and political corruption.]

           

 

 

 

Labor Not Represented in Management of the 'People's Universities'

 

by Walter Brasch

 

 Although more than one million Pennsylvanians are members of labor unions, and the state has a long history of worker exploitation and union activism, neither of the two largest university systems has a labor representative on its governing board.

The only labor representative on the Board of Governors of the State System of Higher Education (SSHE) in its 28 year history was Julius Uehlein, who served 1988–1995 while Pennsylvania AFL–CIO president. The appointment was made by Gov. Robert P. Casey, a Democrat.

Only two persons have ever represented labor on Penn State’s Board of Trustees. Gov. Milton Shapp, a Democrat, appointed Harry Boyer, the state AFL–CIO president, in 1973. Shortly after Boyer retired in 1988, he resigned as a trustee. Richard Trumka, a Penn State alumnus and Villanova law school graduate, now the national AFL–CIO president, served as a trustee, 1983–1995, while president of the United Mine Workers. He was first appointed by Gov. Dick Thornburgh, a Republican, reappointed by Gov. Casey, and not reappointed when Tom Ridge, a Republican, became governor.

The 32-member Penn State Board of Trustees is divided into five groups: ex-officio members (6), Governor appointments (6), members elected by the Alumni Association (8), Business and Industry members (6), and elected members from Agriculture (6). The Agriculture representation dates to 1862 when Penn State (at that time known as Farmer’s High School) was one of the first two land grant institutions; the land grant institutions were created to provide advanced education in agriculture and the sciences. Currently, 15 members either are or were CEOs. Among them are the CEOs of U.S. Steel and Merck. One of the ex-officio members is the Penn State president, which creates an interesting potential for a conflict-of-interest. Except for one student representative, most of the rest are lawyers or senior corporate or public agency executives. Only six members are women, only three are members of minority classes.

The lack of diversity became an issue this week when the Faculty Senate called for a more diverse board. The challenge to the Trustees was unusual because the Senate “has always been a relatively non-confrontational group,” according to Dr. Paul Clark, head of the university’s prestigious Department of Labor Studies and Employment Relations, who had served as a senator for 15 years. However, child molestation charges against former assistant football coach Jerry Sandusky, combined with how poorly the university administration and the secrecy-clad Trustees handled the problem, exposed the university and trustees to additional scrutiny.

“Because of the number of union members in Pennsylvania, and the need to have working people’s issues and perspectives represented on the board, we always thought it made a lot of sense for that constituency [working class] to be represented on the trustees,” says Dr. Clark.

At one time, Penn State had an active labor studies advisory committee, dating back to the early 1950s when Milton Eisenhower was the university president. That committee met at least four times a year and “was well respected,” says Irwin Aronson, general counsel for the Pennsylvania AFL–CIO, and a Penn State labor studies graduate. After Dr. Graham Spanier became president in 1995, the committee quickly dissolved because “he didn’t seem to have much interest in it,” says Richard Bloomingdale, Pennsylvania AFL–CIO president. There is no doubt, says Aronson, that “the previously warm relationship between labor and Penn State’s administration collapsed under Dr. Spanier’s administration.” Bloomingdale says he hopes Rodney Erickson, Penn State’s newly-appointed president, will see the necessity to reinstate the committee.

Penn State also has what may be the state’s premiere collection of labor history primary source documents, especially from the coal region. The letters, notes, diaries and other materials are archived in the Paterno Library.

 Penn State is a state-related private university which received $279 million in state funding for the current fiscal year; it has 94,000 students on its 24 campuses, with 44,000 of the students enrolled on its main campus. About 3,000 Penn State staff (mostly those working in maintenance, physical plant, dormitories, and the cafeteria) are members of the Teamsters. About 1,300 registered nurses, including those of the Hershey Medical Center, are members of the Service Employees International Union. However, there is no faculty union at Penn State. Part of the problem, says Dr. Clark, is that faculty in the large business and agriculture colleges, plus those in engineering and science, tend not to have strong union loyalties; those in the liberal arts tend to have more acceptance of the value of unions.

SSHE, the larger of the two systems, has 120,000 students enrolled in 14 universities. Its 20-member Board of Governors isn’t much more diverse than Penn State’s. The Board has three student representatives who are appointed by the Board after being nominated by the presidents of the 14 universities. However, because of the way the students are nominated by presidents of the individual campuses and then selected by the Board of Governors, most usually have views similar to what the administration sees as mainstream and acceptable. Membership also includes four legislators, selected from each political caucus (Democrat and Republican caucuses in the House and Senate) and the secretary of the Department of Education; the rest are appointed by the Governor, with the consent of the state senate. Gov. Tom Corbett and his designated representative, Jennifer Branstetter, a public relations executive, serve on both Penn State and SSHE boards. Most of the other members are lawyers or senior business executives. One of them, Kenneth M. Jarin, who served as chair for six years and is currently a member, is a lawyer who represents management in labor issues.

The lack of at least one representative of labor on the SSHE Board of Governors is because of “a lack of sensitivity to the labor point of view,” says Dr. Stephen Hicks, president of the Association of Pennsylvania State College & University Faculties (APSCUF), which represents 6,400 faculty. Dr. Hicks, who has tried to get the Board to include a faculty member, says that when a Board has most of its members “who have run a business and made money, you get a certain viewpoint.”

Richard Bloomingdale says he’s proposed to the boards and governor persons who could effectively represent the working class, “but they were always turned down.”

Even one representative, says Bloomingdale, “would still leave the Boards with heavy pro-business orientations.”

There is no question that politics and a pro-business or anti-labor philosophy has left working class Pennsylvanians with no representation on the boards of universities that are designated as “the people’s universities.”

Unfortunately, the lack of labor representation is the case at almost every public university in America.

 

[Walter Brasch is an award-winning reporter and syndicated columnist, and the author of 17 books. His latest book is the novel, Before the First Snow, primarily set in Pennsylvania. It is a look at the counterculture between 1964 and 1991, with a social justice and pro-labor focus. Disclosure: Dr. Brasch is professor emeritus of mass communications from the SSHE system.]

 

           

Penn State Trustees Also Violated State Law

by WALTER BRASCH

 

The Penn State Board of Trustees may have several times violated state law for its failure to publicly announce meetings and how it handled the firing of Coach Joe Paterno. However, these violations may be the least of the Board’s worries, as it scrambles to reduce fall-out from the scandal that began with revelations that an assistant football coach may be a serial child molester, and that the university may have been negligent.

The state’s Sunshine Act [65 Pa.C.S.A §701–710] requires all public bodies to publish notices at least 24 hours before their meetings. The purpose is to eliminate secret meetings. Penn State, a private university, which received $279 million from the Commonwealth for its 2011–2012 budget, is bound by the Sunshine Act.

A public notice did appear in the Centre Daily Times, State College’s hometown newspaper, three days before a regularly-scheduled board meeting, Friday Nov. 11. But, the Trustees were caught flat-footed the week before by what eventually turned into the largest scandal in its history. These are events the Trustees should have been aware of for at least two years; certainly, the Board should have known there was a problem when the Harrisburg Patriot-News broke a story in March that the Grand Jury was investigating former defensive coordinator Jerry Sandusky.

But, based upon Board incompetence, there wasn’t even a crisis management plan in place when Sandusky was arrested Nov. 5, and Athletic Director Tim Curley; and Gary Schultz, senior vice-president of finance and administration, were charged with perjury and failure to report a crime to police. The Trustees allowed Curley to take an administrative leave, and Schultz to return to retirement. Schultz, who had worked for Penn State for 40 years, had retired in 2009, but had been brought back on an interim basis in July. Both Curley’s and Schultz’s decisions were probably influenced by the Board demands.

During the two weeks, beginning Nov. 5, the Board had conference calls, executive sessions, and emergency meetings, all without public notice.

Conference calls involving a quorum without public notice aren’t allowed. At least one conference call was conducted on Saturday, Nov. 5. A meeting by telephone is just as illegal as a meeting with all persons at a table if it isn’t publically announced.

Several emergency meetings were held the next few days. The Sunshine Act allows emergency meetings. The Trustees conducted meetings Sunday, Nov. 6, Monday, Nov. 7, and Wednesday, Nov. 9. By law, an emergency meeting can be called, without public notice, only for “the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.” [65 Pa.C.S.A §703] Even in the wildest stretch of that definition, there was no clear and present danger. That occurred years ago when the university didn’t contact police to report the actions of a man believed to be a child molester.

Executive sessions to discuss personnel issues and some other items are allowed—if they are announced at public meetings “immediately prior or subsequent to the executive session.” [65 Pa.C.S.S. §708(b)] But, they were not. About 10 p.m., Nov. 9, following an emergency meeting, Board vice-chair John P. Surma, flanked by 21 of the 31 trustees, publicly announced it had fired Paterno and PSU president Graham Spanier.  Surma told the media the decision was unanimous, thus indicating a vote was done in secret and not under public scrutiny as required.

The Trustees also violated both Paterno’s and Spanier’s rights under law. It’s doubtful the Board members, most of them in corporate business, even care. How they handled Paterno’s firing is indicative they have little regard for employee rights and due process. Paterno had previously said he would retire at the end of the season, since he believed, “the Board of Trustees should not spend a single minute discussing my status. They have far more important matters to address. I want to make this as easy for them as I possibly can.” The Trustees, undoubtedly, believed firing Paterno immediately would take heat off the university. Again, it was wrong.

Although executive sessions may be conducted in private, the Sunshine Act requires that “individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting.” [65 Pa.C.S.A. §708(a)(1)] The Board, according to a report in the Easton Express-Times, had ordered Spanier to resign or be fired. He chose to resign. Paterno was not contacted by the Board prior to termination, either to request to be heard or to request an open meeting. Paterno was informed of his termination by a hand-delivered letter that demanded he place a phone call to a board member. There was no indication in that letter of what the Board’s decision was.

Violating the law could result in invalidating decisions made at those meetings, and penalties of $1,000 for each violation; until September, the penalty had been a paltry $100. But here’s a nice twist. The Trustees probably don’t care.

A district attorney must approve prosecution for Sunshine Act violations. Although the Pennsylvania Newspaper Association (PNA) receives about 1,000 inquiries each year about what may be Sunshine Act and Right-to-Know law violations, “it’s rare for criminal prosecutions of the Sunshine Act,” according to Melissa Melewsky, media law council for the PNA. Civil actions by individuals are likewise difficult to pursue because of significant costs.

Here’s another surprise. Because of heavy lobbying to the legislature, whose members are feasted at one home game a year and can also receive comp football tickets to other home football games, Penn State is not bound by the state’s Right-to-Know law. This means that innumerable records, including minutes of all meetings— both public and those that are illegal under the Sunshine Act—can still be secret.

Here’s something not so surprising, however. Penn State’s Public Affairs office punted all questions to the Board. The Board arrogantly has refused to answer both verbal and written questions. However, possibly using public funds, it did hire a PR firm to handle crisis management issues. We won’t know the cost—that’s something it doesn’t have to tell the taxpayers.

[Assisting on this story was Melissa Melewsky, media law counsel of the Pennsylvania Newspaper Association. Walter Brasch, as president of both the Keystone chapter of the Society of Professional Journalists and Pennsylvania Press Club, was active in fighting for a stronger Right-to-Know law and enforcement of the Sunshine Act. He is an award-winning syndicated columnist and retired university professor. His latest book is Before the First Snow, a mystery/thriller set in Pennsylvania.]

 

 

 

 

 

The Sanctimonious Scavengers of the Penn State Scandal

 

by WALTER BRASCH

 

There is nothing the media love more than a good celebrity sex scandal.

Since the story of Scarlett Johansson’s purloined nude pictures had run its course, and the media squeezed every drop of ink it could from the Kim Kardashian/Kris Humphries engagement/wedding/marriage/divorce, they had to find something else to feed the beast with the insatiable appetite.

Something else was Penn State. Neatly packaged for the media was the trifecta of what passes as journalism—sex, scandal, and celebrity. And so the media circus rolled into State College, salivating at their good fortune.

The “sex” part of the story was that Jerry Sandusky, former defensive coordinator of the Nittany Lions, was accused of 21 felony counts of sexual abuse of boys. A 23-page Grand Jury report, released Nov. 4 following a drawn-out three-year investigation, detailed some of the specifics. However, this story, no matter what the media say it is, is not about sex. It is about child molestation, child abuse, and endangering the welfare of a child. Big difference.

The “scandal” is that it appeared that high-ranking Penn State officials, although they restricted Sandusky’s access to campus, didn’t contact police or child protection services, possibly believing they were protecting the university’s image.

The “celebrity” part is Joe Paterno, who listened to a graduate assistant who says he saw an act of sodomy by Sandusky, and then, disgusted by what Sandusky may have done, reported it the athletics director and senior vice-president for administration. Paterno met his legal responsibility, and isn’t under any criminal investigation. Questions to Paterno in court would probably result in the defense objecting to hearsay testimony since Paterno never witnessed the act.  

Almost every Pennsylvania TV station and dozens of networks sent camera crews into State College. As the number of TV crews increased, the quality of reporting sank, as almost every on-air reporter seemed to feel a need to ask even dumber questions and make dumber statements than every other reporter. These are the TV stations that send camera crews to out-of-town football games, Spring training in Florida, and bowl games, yet have downsized their news staff, plead economic poverty, and failed to adequately cover critical news stories. In Pennsylvania, it has meant little original reporting about conflict-of-interest and ethics scandals in the state legislature. Sports, apparently, is “sexy”; the public’s money and legislature integrity aren’t.

These are the same members of the media who for many of Paterno’s 46 years as head coach had filed stories that he should step down after any two losses in a row, or during a losing season, or even a season that didn’t have enough wins. The media had also layered comments that Paterno was everything but senile, that he was too old to be coaching. But, Paterno, known in the media as “JoePa,” kept winning, and kept demanding academic and athletic excellence in addition to moral integrity from his players. The university’s library, not any of its athletic buildings, is named for him. America’s best-known coach was building not a place for future NFL stars, but a place where college students could supplement their education to become productive members of society. His graduation rate is among the highest in Division I athletics.

However, based upon the amount of newsprint and air time given to this story, you would swear that Paterno was guilty, arrested, and probably already convicted. The media almost forgot about Sandusky as they began piling on to Paterno. Six column headlines and five minute network stories dominated the news agenda. Like sharks, they smelled blood and circled their prey, a towering figure about to be toppled. With little evidence, these sanctimonious scavengers called for one of the most ethical and inspirational coaches and professors to resign, claiming he didn’t do enough, that he should have personally called the police rather than follow established protocol.

.Many of the media horde, who had never written any story about Penn State’s excellent academic and research programs, soon began pumping out ludicrous statements that Penn State’s reputation would be tarnished for years. Despite their self-righteous denials, the screeching of “Joe Must Go” in one-inch bold black headlines undoubtedly influenced the university’s board of trustees, which was constantly proving that incompetence isn’t just a media trait. Their attitude seemed to be not whether what Paterno did was a terminable offense, but that to terminate him would somehow save the university’s tarnished reputation—and maybe preserve the value of their own luxury seats at Beaver Stadium.

On Wednesday, Nov. 9, three days before the Penn State/Nebraska game, which was to be the last home game of the season, the Trustees, with a push from Gov. Tom Corbett, fired Paterno, thus justifying all the ink and air time spent by the media that seemed distracted from the real story—Sandusky, not Paterno, was arrested.

That night, thousands of students staged a demonstration of support for Paterno. The media called it a riot and almost universally condemned the students for exercising a First Amendment right of peaceful assembly and freedom of speech. What little damage done—the highest estimate was about $20,000—was by a relatively small number of participants.

On game day, the media camped in front of Paterno’s house. ESPN coverage of the game, which drew about twice as many viewers as expected, was constantly punctuated by the “scandal,” and what Paterno did and didn’t do. Tragedy had suddenly become a sport.

Contributing to the media’s shameful performance were mountains of crocodile tears, dripping with moral indignation. Had the media spent even a tenth of the time before the Penn State scandal to publish and air stories about child welfare problems, and what could be done to protect the most vulnerable of society, their myriad comments would have been credible.

In contrast to the masses, several reporters did credible reporting, including the hometown Centre Daily Times. But the best reporting might be that of Sara Ganim, who had begun her investigation first at the Centre Daily Times before moving to the Harrisburg Patriot-News. Three years after graduating from Penn State, she broke the story in March that the Grand Jury was investigating Sandusky and others. Her story at the time didn’t get much traction. But, for several months she meticulously gathered facts and wrote news, not opinion and speculation, which dominated the work of many of her colleagues, many of whom showed they were incapable of even reaching the journalistic standards of reporting at the National Enquirer.

Perhaps Joe Paterno should have done more; perhaps he should have called the police or at least followed-up with his earlier concern. But, we don’t know yet the facts.

One concern remains. Today, these Monday Morning Quarterbacks of the media and a pack of largely anonymous self-righteous fans all say that unlike Paterno they would have done “the right thing.” How many, if faced by the same set of circumstances, would have done “the right thing” a month ago?

 [Dr. Brasch had begun his journalism career as a sports writer and sports editor before moving into public affairs/investigative journalism. He is an award-winning syndicated columnist and retired journalism professor. His latest of 17 books is Before the First Snow, a story of the counter-culture.]

 

 

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