Sunshine Still Blocked at Penn State

 

 

by WALTER BRASCH

 

STATE COLLEGE, Pa.--The Penn State Board of Trustees, still sanctimonious in its public moral outrage, continues to violate state law.

The Board held a private three hour meeting, Wednesday evening [July 25] to discuss the NCAA sanctions and the role university president Dr. Rodney Erickson played in accepting the sanctions.

Erickson, according to the Centre Daily Times, had “accepted the sanctions after discussing them with advisors and some trustees, but not the entire board.”

The Pennsylvania Sunshine Act, which covers Penn State, requires that public agencies “shall give public notice of its first regular meeting of each calendar or fiscal year not less than three days in advance of the meeting and shall give public notice of the schedule of its remaining regular meetings.” For special meetings, the Sunshine Act requires an agency to give public notice at least 24 hours in advance. The law doesn’t require a public notice if an emergency meeting is declared, but there was no indication that anything the Board conducted in secret was an emergency, as defined under the Act. The Board gave no indication that the meeting was an executive session to discuss personnel issues or pending lawsuits.

The law also requires that, “Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public.” None of the few exceptions permitted in state law seems to apply to the reason for the latest meeting.

Following the meeting, the Board issued a PR-soaked statement that the meeting was for a “discussion,” and that there was no vote. Apparently, the Board believes that “discussions” without a vote aren’t covered by the Sunshine Act, so it was free to hold yet another unpublicized secret meeting. The Board, as has been so often the case, was wrong.

The Sunshine Act defines a meeting as “Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” Discussions or the lack of a vote are not reasons for exemption. According to local media, at least 15 members of the 32-member board were in attendance at that meeting, with an unknown number possibly connected by telephone communications. A quorum is 13 members.

The Board, in the week prior to firing Coach Joe Paterno and President Graham Spanier in November, had conducted at least two illegal meetings and, in violation of its own rules and state requirements, failed to give Paterno or Spanier due process in their abrupt termination.

The pattern of the Board’s haughty disregard of state law and failure to provide transparency didn’t begin with the disclosure of Jerry Sandusky’s actions on the university campus, but has been obvious to even the most casual observer for years.

On the day after the Board held its latest meeting, Auditor General Jack Wagner, who had been conducting an independent investigation, called a news conference to announce that “the culture at the highest level of this university must change.” Wagner, calling for better “transparency and accountability,” charged that the Board and administration “operate[s] in an isolated fashion without any public scrutiny on certain very important decisions impacting the university.” The Board, said Wagner “cannot operate in secrecy.”

He also recommended that Penn State and the three other state-related universities (University of Pittsburgh, and Lincoln and Temple universities), all of which take state funds, be fully subjected to the state’s Right-to-Know Law. The state’s 14 state-owned universities are already covered by the Right-to-Know Law. (Penn State receives $300–400 million a year.)

Wagner also recommended the university president not be a member of the Board, citing the unusual situation of the president being an employee of the Board as well as a member of the governing body. He also recommended that the Governor, a voting member, become an ex-officio nonvoting member to avoid appearance of any conflicts of interest.

Gov. Tom Corbett has come under heavy opposition for what was at least a three year delay while he was attorney general in prosecuting Jerry Sandusky, although there was sufficient evidence to make an arrest; for taking about $600,000 in campaign donations from members of the Board of  Sandusky’s Second Mile Foundation and those associated with the Foundation; for awarding a $3 million state grant to the Foundation, which was later rescinded; and then, after his election as governor and a Board trustee, not only failing to inform the Board about Sandusky but then using his political muscle to sway the Board into making personnel decisions. Corbett, a Republican, is also suspected of having a personal vendetta against Paterno, a Republican who refused to endorse him for governor and who did endorse Barack Obama for the presidency. When questioned about his role in the scandal, Corbett has either ignored questions or lashed out against reporters who asked for clarification.

Corbett’s response to Wagner’s suggestions was relayed by his press secretary to the Philadelphia Inquirer. Without answering the issue raised by Wagner’s report, Kevin Harley said, “Jack Wagner can sit on the sidelines and take political shots, but the fact remains that Gov. Corbett was elected by the people of Pennsylvania.” Harley also attacked the auditor general’s suggestion about removing the governor as a voting member of the Penn State Board of Trustees as nothing more than “a proposal made by someone who ran for governor but lost.” Wagner never ran against Corbett, but in a Democratic primary.

Wagner, in a letter to the General Assembly, noted that formal recommendations would be made within 60 days.

In this case, the Pennsylvania legislature, as dysfunctional as it is bitterly partisan, should have little debate about making the state’s largest university more accountable to the people who support it.

[Assisting was Mary C. Marino, a former research librarian. Dr. Brasch spent four decades as a journalist and university professor. He is the recipient of the lifetime achievement award from the Pennsylvania Press Club and the author of 17 books. His latest book is the critically-acclaimed novel, Before the First Snow.]

 

 

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.]

 

 

 

 

 

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