Penn State Trustees May Have 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 accepted the forced resignation of PSU president Graham Spanier.  Surma told the media the decision about Paterno was unanimous, thus indicating a vote was done in secret and not under public scrutiny as required. Because Spanier was under a long-term contract, the Trustees would also have been expected to have to vote to formally accept his resignation.

            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. However, the media never reported that they had also done damage. Reporters and camera crews walked and ran through private property and mobbed sidewalks in front of the homes of Sandusky, Paterno, and others, shoving microphones into residents' faces to get any kind of seven-second soundbite they could. Residents report mini-mountains of trash left in the media's wake.
            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?

[Assisting on this story was Rosemary Brasch. 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, set primarily in Pennsylvania.]

The Personhood of a Mississippi Zygote

by Walter Brasch

            “O.K., class, we have a few minutes at the end of today’s lecture about how the godless Communists created evolution to try to destroy the decent loyal patriotic capitalist society of America. Any questions? Yes, Billy Bob.”

            “Mr. Jim Bob, I heard about this thing called a person. What is that?”

            “Good question. With all the distortions by the lyin’ liberal left-wing, it can get confusing. But, it’s really simple. A person is an egg that has just been fertilized by a sperm. We call this young person a Zygote.”

            “Does it have to be a goat? Can it be anything else?”

            “Well, Susie Bob, if you nurture it, that fertilized egg can grow up to be anything it wants to be, because this is the United States of America. And no one has the right to tell us white folks what to do.”

            “Are there advantages of being a single-celled person?”

            “Definitely. Their parents don’t have to wait until they emerge from the birth canal to claim them as an IRS deduction. Also, with more persons in Mississippi, we can get more single-cell congresspersons to represent us.”

            “Then why did our parents vote against the constitutional amendment?”

“It was a close defeat. While those abortion activists voted against the measure, most of the opposition was because us conservatives were worried that the way the proposed amendment was written would allow them liberal types to go to Washington and overturn our states’ rights.”

            “You mean Congress can do that?”

            “No, Junie Bob, the Supreme Court can do that. It was a craps roll. You see, there are four decent Americans on the Supreme Court. And there are four who are women, or Jews, or both. And they were likely to say something stupid, like the state isn’t allowed to use religious dogma to justify new laws. That would mean there would be a 4–4 tie. We couldn’t trust the other judge to do what’s right, because he changes what side he’s on all the time. Even our illustrious governor said he had doubts about how broad that amendment was, and what the courts would do.”

            “But he voted for it anyway.”

            “He’s a politician, Kenny Bob. That’s what they do. Next question.”

            “My mommy says that abortion and wearing condoms is murder, and to protect persons she plans to run down baby-killer doctors when she sees them on the streets.”

            “Your mommy is looking out for the best interests of the fertilized egg. In that case, the courts will rule that what your mother does is justified homicide. Just like them lynchings your pappies and grandpappies might have done for fun on some hot weekend. It sent a message that we don’t tolerate uppity colored people doing dumb things like voting or demanding constitutional rights. Those were meant only for the white people.”

            “Is slavery still legal?

            “No, Bertie Bob, Mississippi outlawed it in 1995 when we ratified the 13th Amendment to the Constitution.”

            “Why did it take so long?”

            “Well, Martha Bob, you have to understand that decent conservatives just don’t go rushing into making important decisions. It takes time to figure out all the issues and their implications. Thirteen decades seemed about the right time.”

            “I’m still confused Mr. Jim Bob. My pappy says that we got to keep the gummint out of our lives, like not allowing revenooers on our property. Don’t all of them laws intrude on our rights?”

            “Sometimes, you have to intrude for the good of society. That’s why we have laws about who you can and can’t marry?”

            “You mean, me and—?”

            “Yes, Jenny Bob, I was planning to talk to you about you and your brother. Marriage has to be between a man and a woman who aren’t siblings.”

            “So, it’s OK for me and Calvin Bob to marry?

            “Since you’re first cousins that’s OK, just as long as marriage is between a man and a woman, as God intended.”

            “Is that why we don’t like the coloreds and the Asians to marry us? I heard that half the state doesn’t want intermarriages and the rest are the colored people.”

            “What people don’t understand, Beauford Bob, is that we made those laws to help the colored people. Before the War Between the States—Praise Jeff Davis and Jesus, Hallelujah!—we allowed white slave owners to have sex with anyone they wanted, as long as they were women. But, then we realized that wasn’t fair to the African people, because it diluted their purity. So, to protect the darkies, we didn’t have any choice but to forbid whites from marrying anyone with even one-eighth dark blood.”

            “I heard about this thing called sodomy, which them homosexual and lesbian ladies practice. That’s just yucky.”

            “Indeed it is. That’s why sodomy is a felony, and homosexuals can get 10 years in prison, where they can practice deviant. After that, they have to register as sex offenders. That’s another reason why the government is allowed into our bedrooms, so they can protect respectable voyeurs from having to participate in such immoral activity. Time for just one more question. Yes, Horatio Bob.”

            “Mr. Jim Bob, how did you become so wise?”

            “I’m a graduate of the Mississippi school system.”

            [Walter Brasch’s latest book is the mystery/thriller, Before the First Snow, set in rural Pennsylvania. The book is available through www.greeleyandstone.com, amazon.com, and other bookstores.]

The High Cost of Freedom from Fossil Fuels

The Diablo Canyon Nuclear Power Station near San Luis Obispo, Calif., was built between four earthquake faults, and with the wrong set of blueprints.

by Walter Brasch

            For a few hours on the afternoon of Nov. 1, the people of southern California were scared by initial reports of an alert at the San Onofre Nuclear Generating Station. An “alert” is the second of four warning levels.

            Workers first detected an ammonia leak in a water purification system about 3 p.m. Ammonia, when mixed into air, is toxic. The 30 gallons of ammonia were caught in a holding tank and posed no health risk, according to the Nuclear Regulatory Agency (NRC).  

            During the 1970s and 1980s, at the peak of the nuclear reactor construction, organized groups of protestors mounted dozens of anti-nuke campaigns. They were called Chicken Littles, the establishment media generally ignored their concerns, and the nuclear industry trotted out numerous scientists and engineers from their payrolls to declare nuclear energy to be safe, clean, and inexpensive energy that could reduce America’s dependence upon foreign oil.

            Workers at nuclear plants are highly trained, probably far more than workers in any other industry; operating systems are closely regulated and monitored. However, problems caused by human negligence, manufacturing defects, and natural disasters have plagued the nuclear power industry for its six decades.

            It isn’t alerts like what happened at San Onofre that are the problem; it’s the level 3 (site area emergencies) and level 4 (general site emergencies) disasters. There have been 99 major disasters, 56 of them in the U.S., since 1952, according to a study conducted by Benjamin K. Sovacool Director of the Energy Justice Program at Institute for Energy and Environment  One-third of all Americans live within 50 miles of a nuclear plant.

            At Windscale in northwest England, fire destroyed the core, releasing significant amounts of Iodine-131. At Rocky Flats near Denver, radioactive plutonium and tritium leaked into the environment several times over a two decade period. At Church Rock, New Mexico, more than 90 million gallons of radioactive waste poured into the Rio Puerco, directly affecting the Navajo nation.

            In the grounds of central and northeastern Pennsylvania, in addition to the release of radioactive Cesium-137 and Iodine-121, an excessive level of Strontium-90 was released during the Three Mile Island (TMI) meltdown in 1979, the same year as the Church Rock disaster. To keep waste tanks from overflowing with radioactive waste, the plant’s operator dumped several thousand gallons of radioactive waste into the Susquehanna River. An independent study by Dr. Steven Wing of the University of North Carolina revealed the incidence of lung cancer and leukemia downwind of the TMI meltdown within six years of the meltdown was two to ten times that of the rest of the region.

            At the Chernobyl meltdown in April 1986, about 50 workers and firefighters died lingering and horrible deaths from radiation poisoning. Because of wind patterns, about 27,000 persons in the northern hemisphere are expected to die of cancer, according to the Union of Concerned Scientists. An area of about 18 miles is uninhabitable. The nuclear reactor core is now protected by a crumbling sarcophagus; a replacement is not complete. Even then, the new shield is expected to crumble within a century. The current director at Chernobyl says it could be 20,000 years until the area again becomes habitable.

            In March, an earthquake measuring 9.0 on the Richter scale and the ensuing 50-foot high tsunami wave led to a meltdown of three of Japan’s Fukushima Daiichi nuclear reactors. Japan’s nuclear regulatory agency reported that 31 radioactive isotopes were released. In contrast, 16 radioactive isotopes were released from the A-bomb that hit Hiroshima Aug. 6, 1945.  The agency also reported that radioactive cesium released was almost 170 times the amount of the A-bomb, and that the release of radioactive Iodine-131 and Strontium-90 was about two to three times the level of the A-bomb. The release into the air, water, and ground included about 60,000 tons of contaminated water. The half lives of Sr-90 and Cs-137 are about 30 years each. Full effects may not be known for at least two generations. Twenty-three nuclear reactors in the U.S. have the same design—and same design flaws—as the Daiichi reactor.

            About five months after the Daiichi disaster, the North Anna plant in northeastern Virginia declared an alert, following a 5.8 magnitude earthquake that was felt throughout the mid-Atlantic and lower New England states. The earthquake caused building cracks and spent fuel cells in canisters to shift. The North Anna plant was designed to withstand an earthquake of only 5.9–6.2 on the Richter scale. More than 1.9 million persons live within a 50-mile radius of North Anna, according to 2010 census data.

            Although nuclear plant security is designed to protect against significant and extended forms of terrorism, the NRC believes as many as one-fourth of the 104 U.S. nuclear plants may need upgrades to withstand earthquakes and other natural disasters, according to an Associated Press investigation. About 20 percent of the world’s 442 nuclear plants are built in earthquake zones, according to data compiled by the International Atomic Energy Agency.

            The NRC has determined that the leading U.S. plants in the Eastern Coast in danger of being compromised by an earthquake are in the extended metropolitan areas of Boston, New York City, Philadelphia, Pittsburgh, and Chattanooga. Tenn. The highest risk, however, may be California’s San Onofre and Diablo Canyon plants, both built near major fault lines. Diablo Canyon, near San Luis Obispo, was even built by workers who misinterpreted the blueprints.  

            Every nuclear spill affects not just those in the immediate evacuation zone but people throughout the world, as prevailing winds can carry air-borne radiation thousands of miles from the source, and the world’s water systems can put radioactive materials into the drinking supply and agriculture systems of most nations. At every nuclear disaster, the governments eventually declare the immediate area safe. But, animals take far longer than humans to return to the area. If they could figure out that radioactivity released into the water, air, and ground are health hazards, certainly humans could also figure it out.  

Following the disaster at Daiichi, Germany announced it was closing its 17 nuclear power plants and would expand development of solar, wind, and geothermal energy sources. About the same time, Siemens abandoned financing and building nuclear power plants, leaving only American-based Westinghouse and General Electric, which own or have constructed about four-fifths of the world’s nuclear plants, and the French-based Areva.

            The life of the first nuclear plants was about 30–40 years; the newer plants have a 40–60 year life. After that time, they become so radioactive that the risk of radiation poison outweighs the benefits of continuing the operation. So, the operators seal the plant and abandon it, carefully explaining to the public the myriad safety procedures in place and the federal regulations. The cooling and decommissioning takes 50–100 years until the plant is safe enough for individuals to walk through it without protection. More critical, there still is no safe technology of how to handle spent control rods.

            The United States has no plans to abandon nuclear energy. The Obama administration has proposed financial assistance to build the first nuclear plant in three decades, and a $36 billion loan guarantee for the nuclear industry. However, the Congressional Budget Office believes there can be as much as 50 percent default.  Each plant already receives $1–1.3 billion in tax rebates and subsidies. However, in the past three years, plans to build nuclear generators have been abandoned in nine states, mostly because of what the major financiers believe to be a less than desired return on investment and higher than expected construction and maintenance costs.

            A Department of Energy analysis revealed the budget for 75 of the first plants was about $45 billion, but cost overruns ran that to $145 billion. The last nuclear power plant completed was the Watts Bar plant in eastern Tennessee. Construction began in 1973 and was completed in 1996. Part of the federal Tennessee Valley Authority, the Watts Bar plant cost about $8 billion to produce 1,170 mw of energy from its only reactor. Work on a second reactor was suspended in 1988 because of a lack of need for additional electricity. However, construction was resumed in 2007, with completion expected in 2013. Cost to complete the reactor, which was about 80 percent complete when work was suspended, is estimated to cost an additional $2.5 billion.

            The cost to build new power plants is well over $10 billion each, with a proposed cost of about $14 billion to expand the Vogtle plant near Augusta, Ga. The first two units had cost about $9 billion.

            Added to the cost of every plant is decommissioning costs, averaging about $300 million to over $1 billion, depending upon the amount of energy the plant is designed to produce. The nuclear industry proudly points to studies that show the cost to produce energy from nuclear reactors is still less expensive than the costs from coal, gas, and oil. The industry also rightly points out that nukes produce about one-fifth all energy, with no emissions, such as those from the fossil fuels.

            For more than six decades, this nation essentially sold its soul for what it thought was cheap energy that may not be so cheap, and clean energy that is not so clean.

            It is necessary to ask the critical question. Even if there were no human, design, and manufacturing errors; even if there could be assurance there would be no accidental leaks and spills of radioactivity; even if there became a way to safely and efficiently dispose of long-term radioactive waste; even if all of this was possible, can the nation, struggling in a recession while giving subsidies to the nuclear industry, afford to build more nuclear generating plants at the expense of solar, wind, and geothermal energy?

[Walter Brasch’s latest book is Before the First Snow, a fact-based novel that looks at the nuclear industry during its critical building boom in the 1970s and 1980s.]