Sunshine Still Blocked at Penn State

PENN STATE / OLD MAIN, ADMINISTRATION BUILDING

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.

More Jokes From the Penn State Trustees

 Penn State trustees on the day they
fired Joe Paterno and Graham Spanier

by Walter Brasch

Whenever I need a couple of laughs, I turn to the bumbling self-aggrandizing antics of the Pennsylvania legislature.

            However, in the past few months, the Penn State Board of Trustees has done the near-impossible; they have provided more laughs than the menagerie in Harrisburg.

            To call either the Legislators or the Trustees “clowns” would demean the hard work of the circus performers who spend significant time to develop and execute comedy routines. There is no evidence the Trustees even have a thought process before they make outrageous and just plain silly statements.

            The latest Trustee joke is that the reason they really fired Joe Paterno abruptly on Nov. 9, 2011, is because of “a failure of leadership.” The Board released what it called a “report,” but which is nothing but a press release of rehashed statements. This “report” claims the Trustees fired Paterno after they read the Grand Jury report that outlined a series of allegations against former defensive coordinator Jerry Sandusky, whose name is now known among more Americans than anyone who ever won a Nobel Prize.

Sanctimonious Hypocrites Can’t Diminish the Warmth for Joe Paterno

by Walter Brasch

            Gov. Tom Corbett (R-Pa.) praised Joe Paterno and ordered flags on all state buildings to fly at half-staff for four days.

            That would be the same Tom Corbett who had said he was “personally disappointed” in Joe Paterno for not doing more to alert authorities in the Jerry Sandusky case, while acknowledging that Paterno did nothing illegal and followed university rules for conduct.

            That would be the same Tom Corbett who, as attorney general, assigned only one investigator to the case in 2009, while devoting almost innumerable personnel and financial resources to prosecute high-profile cases that could help lead him to the governor’s office.

            That would be the same Tom Corbett who had the authority to order the arrest of Jerry Sandusky as soon as the claims were made, but who allowed the investigation to drag two years.

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 that 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 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.”

            [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 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.]