This is based and paraphrased from an article in the National Law Review written by Ty Howard, a Penn State Alumnus who is a practicing attorney in Nashville Tennessee.
Penn State should have quickly done an internal investigation to learn the scope of the conduct, assess their legal exposure, and charted a course of action. Such an investigation would have preserved any historical information, key documents and obtained statements from individuals who wouldn’t or couldn’t speak later. It would have revealed the university’s legal and public-relations exposure so the Board of Trustees could make informed decisions going forward. As the investigation developed, the BOT and administration should have been preparing. For employees called to testify, they should have been reviewing documents, refreshing distant memories and anticipating questioning. Penn State officials–Curley, Schultz, and Spanier testified before a grand jury without having been prepared by experienced criminal-defense counsel, reviewing pertinent documents or having any understanding of the grand jury process, which resulted in charges of perjury, obstruction of justice, etc. Preparation also means evaluating the need for separate counsel, particularly when the interests of Penn State and individual employees may conflict. Joe Paterno is the only person who did this, and not by any recommendation of Penn State. Curley and Schultz definitely thought that Cynthia Baldwin was THEIR counsel–being provided by Penn State. Penn State even made public statements that the University would be providing legal assistance for them.
The Penn State Board of Trustees should have ensured that the investigating counsel (Cynthia Baldwin) remain its advocate. The BOT should have used their counsel’s findings to craft a strategy and insist that counsel advocate for them while the legal and criminal investigations continued.
The so-called “Freeh report,” produced by lawyers hired by the board of trustees after the fact, was protected by the attorney-client and work-product privileges and could not have been disclosed without the board’s (special task force) consent. The board allowed it to be disclosed publicly without prior review—a serious tactical error. Regardless of any media clamoring, it’s entirely appropriate for a client to review materials prepared by its own lawyers to determine if and how the materials are released. The BOT should have limited that release to factual findings and recommendations. (The Freeh Report didn’t have any).
The Penn State BOT should have managed the media so the legal case against Jerry Sandusky (who was no longer an employee when the crimes were committed) didn’t become the uncontrollable media event with Penn State in the crosshairs. Penn State (had the BOT been competent) should have had a well-planned media strategy that included a consistent message, timely responses and proactive tactics.
Penn State was caught flat-footed in November 2011 when the news first broke and continued to falter as the scandal grew. By firing Joe Paterno and removing Graham Spanier immediately without due process, they actually were declaring them guilty. But those mistakes pale in comparison to its further mishandling of the Freeh report. By allowing the report to be released without review, the board erred again by accepting the report in full. By doing so, it undermined any principled objection to the media’s—and ultimately, the National Collegiate Athletic Association’s—rubber-stamping the report’s opinions, regardless of whether they were supported by facts in the report. Having lost control of the media narrative, the university was left defenseless, largely by its own doing.
It is my opinion that due to their inept handling of the entire affair, the Board of Trustees has failed in its fiduciary responsibility to the University, has cost the University millions of dollars, has destroyed, defamed and slandered Penn State, Joe Paterno, and the community of State College, Pennsylvania. It is also my opinion that there are members of the BOT such as John Surma (whose brother Vic had publicly declared a vendetta to destroy Joe Paterno) who used the Sandusky scandal for personal agendas rather than fulfilling their responsibilities to the institution they were serving. Every member of the Board of Trustees that was present for the November 2011 firing of Penn State’s football coach and President needs to resign or be removed from office. Only then can we as alumni move forward.
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