Trustees Respond to Criticism of Lawsuit

Recently, a fellow member of the Penn State Board of Trustees, Keith Eckel, wrote an editorial in which he criticized a “well-funded and highly vocal constituency” that, in his view, has employed a “burn it all to the ground” approach to the business of the university.

While it is not entirely clear who Mr. Eckel is referring to in expressing his views, as the five current Trustees who recently joined a legal action against the NCAA and its President, Mark Emmert, we feel obliged to respond.

We as trustees support the governance changes and improvements that were recommended by Louis Freeh in his report, are being implemented at Penn State, and monitored by Senator George Mitchell.


Institutions must grow and adapt to changing times and challenging circumstances and we are proud to be part of that effort at Penn State.  We certainly do not subscribe to the “burn it the ground” approach of which Mr. Eckel speaks in his piece.

Our issue, and the reason we have joined others from the Penn State community in the recently filed legal action, is the complete failure of due process afforded Penn State by the NCAA.

Under its own constitution and bylaws, the Association owed Penn State certain fundamental rights and the adherence to rules and procedures designed to provide fairness to a member institution.  These rights were not only due to the University, but to intended beneficiaries of the membership agreement, including student-athletes, coaches, faculty and administrators.

In discharging our legal and fiduciary responsibilities as trustees, it is not incompatible that we may challenge and seek relief from the unprecedented and unlawful actions of the NCAA, and at the same time embrace the governance improvements that have arisen therefrom.

It comes down a distinction between the flawed and unsupported factual findings contained in the Freeh Report leading to the rushed imposition of crippling sanctions against Penn State — which we do not accept, and the Freeh Report’s recommendations for improved governance, leading to an enhanced environment for learning and academic pursuits at this great institution — which we enthusiastically accept and support.

Al Clemens

Peter A. Khoury

Anthony P. Lubrano

Ryan J. McCombie

Adam J. Taliaferro

Bob Costas to Revisit Freeh Report on Wednesday


By Ben Jones

Bob Costas will give Louis Freeh and his independent investigation of Penn State and the Jerry Sandusky scandal another look Wednesday night Vice President of Communications Adam Freifeld told, Tuesday.

“(The Freeh Report) will be the focus of Costas Tonight tomorrow at 11pm ET following hockey on NBCSN.” Freifeld said.

The Freeh Report, headed by former FBI Director Louis Freeh, was commissioned by Penn State’s Board of Trustees to investigate former University officials and former head coach Joe Paterno’s role in the handling of allegations of child sexual abuse against former assistant coach Jerry Sandusky.

“The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims,” the Freeh Commission report reads. “The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized.”

While in large part the Freeh Report was accepted as the most accurate picture of the Penn State scandal, growing numbers of people beyond the Penn State community have begun to question some of Freeh’s assumptions and conclusions.

The Paterno family released a response to the Freeh Report this past February.

Currently Freeh is facing criticism following the release of a report in a case involving Universal Entertainment Corporation.

“The Freeh report’s “factual findings and inferences lack objectivity and lack factual support,” Former U.S. Department of Homeland Security Secretary Michael Chertoff said to the Wall Stree Journal. “Freeh’s law firm “viewed itself as an advocate first and an impartial investigator second” in preparing the Freeh report. Freeh and his colleagues “cherry-picked evidence and stretched to reach conclusions that would be helpful to the Wynn Resorts Board.”

Costas conducted an interview with Sandusky in early November of 2011 on NBC’s Rock Center and has been one of many voices throughout the lengthy unfolding of the Penn State scandal. Freifeld would not comment on the exact nature of the programming slated for Wednesday night.

The program is scheduled to air following Game 7 of the Western Conference Semifinals between the Detroit Redwings and Chicago Blackhawks. That game is slated for an 8:00 p.m. start.

Why Penn State Board of Trustees Needs to Be Fired!

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.

Pennsylvania Rep Needs YOUR Help!

PA House member Scott Conklin has asked the help of everyone who cares about
Penn State and who understands that the PSU Board of Trustees needs to get
serious reform. Two House members allegedly have been lobbied by current BOT members to stall four reform bills so that they cannot reach the floor of the
House to receive a fair hearing. If the recent PA Senate hearing is to be
anything more than a distant memory, and BOT reform to avoid being buried by our status quo trustees, we need to provide serious, and I mean SERIOUS,
encouragement to those House members to stop obstructing these bills. And
encourage House leaders to assist in that effort. We need a tsunami of emails
and snail mail to the four individuals provided here. IF you are planning to write a letter, we encourage you to be short and to the point—the trick is to be clear from the beginning what you want from this person. Write your own letter, use this one, splice something short together—your call. If you’re not a resident of PA, don’t share that with them. You’re Penn State—that’s enough. Finally, feel free to mail any snail mail letter when you’re ready. However, emails should be sent on MONDAY!

Dear Representative:

I am
writing you to request that you assist in moving legislation relating to reform
of the Penn State Board of Trustees to the floor of the House so that it can
receive the hearing that it deserves. The current leadership of the Board is
attempting to offer only minor adjustments to Board practices and touting them
as major reforms. This is the same leadership which failed to respond
effectively to crises during the past sixteen months, and those failures have
done serious damage to the Commonwealth’s flagship university.

following bills need your cooperation and assistance:

– House Bill 299 –
Reduce the size of the Board of Trustees

– House Bill 310 – Reorganize
the voting structure of the Board
– House Bill 311 – Amend the Right-To-Know
Law to include State Related entities
– House Bill 312 – Amend the Ethics Act
to include State Related entities

We are all counting on your help to
bring the Penn State Board of Trustees into the Twenty-First century.


The Honorable Samuel H. Smith
Speaker of the
139 Main Capitol BuildingPO Box 202066Harrisburg, PA

Mike Turzai
Majority Leader
110 Main Capitol BuildingPO Box
202028Harrisburg, PA 17120-2028

Daryl Metcalfe, Chairman
House State Government Committee144 Main CapitolPO
Box 202012Harrisburg, PA 17120-2012

Paul Clymer, Chairman
House Education Committee
216 Ryan Office BuildingPO
Box 202145Harrisburg, PA 17120-2145

Nothing “Independent” About Freeh Investigation

second mileLouis Freeh and Company who was hired to conduct an “independent investigation” of the Jerry Sandusky scandal and Penn State’s role in it, was anything but “independent.”  There was a built-in incentive for the investigation to place blame on Penn State (not the board of trustees—Freeh’s client), Graham Spanier, Tim Curley, Gary Schultz, and especially Joe Paterno (who was dying from lung cancer and would not be able to defend himself).  It should be made clear that Joe Paterno is the only one of the four people mentioned that was found by the Grand Jury to be honest, forthright, and cooperative in his testimony.

Mr. Freeh served as Vice Chairman, General Counsel, Corporate Secretary and Ethics Officer to MBNA Corporation, a bank holding company, from 2001 to 2006. MBNA was a major corporate sponsor of Jerry Sandusky and Second Mile (and made a lot of money by having the credit card service account for Penn State—lucrative to both parties).

Freeh was close friends with Ric Struthers.  Ric Struthers was a founding member of the management team of MBNA America which was the world’s largest affinity consumer lending company (active at Penn State).   Struthers sat on the board of directors of Sandusky’s Second Mile until 2006.  MBNA America was the lead sponsor for the MBNA Jerry Sandusky Testimonial Dinner and Roast, Friday, April 14, 2000.

MBNA’s Ric Struthers and Louis Freeh involvement with Second Mile— Would it not, at the very least, constitute a major conflict of interest in Freeh’s firm undertaking the Penn State Board of Trustee’s “independent” investigation? Is it coincidence that the Freeh Investigation never mentions culpability of the Second Mile in its “investigation?”  The Second Mile, being a child advocacy organization, had a child psychologist as its CEO, and full mandated reporting responsibility of any impropriety with children.

The Chairman of the Special Investigation Committee is Board of Trustee member Ken Frazier.  Frazier was promoted to CEO at Merck last year.  One of his predecessors at Merck also sits on the Board of Trustees, Lloyd Huck. Lloyd Huck’s wife Dottie was a board member of the Second Mile.  The Hucks have given the University over $20 million

The late William A. Schreyer, former CEO of Merrill Lynch and former chairman of Penn State’s board of trustees, gave more than $58 million to the university.   Schreyer’s daughter, DrueAnne, has served on The Second Mile board of directors since at least 1997.

Secretary of Education and (governor) appointed member of the board of trustees, Ron Tomalis is the vice-chairman of the Penn State “Special Investigative Committee” that hired Louis Freeh to investigate the Sandusky Scandal.  Varioius groups and individuals have attempted to access a copy of the contract between the Board of Trustees and Freeh’s company.  In December, a judge ruled that the contract must be released to the public.  Ron Tomalis swears he doesn’t have copies of contracts.  Tomalis wants a judge to overturn an order to release the records, at the same time claiming he (or his department) doesn’t have them. Where is the contract for the investigation which would show what the investigation was mandated to show?

Sandusky case landed on Tom Corbett’s desk in March of 2009

In 2010, Tom Corbett received $201,783.64 from Second Mile Board members. He received a total $647.481.21 from families and businesses associated to Second Mile Board members.

2010 Corbett accepted a $25,000 donation from The Second Mile—even though as Attorney General, he knew that Jerry Sandusky was being being investigated, and by 2010, the Grand Jury was deliberating the case and taking testimony.

In 2010, The Second Mile board chairman threw a fund raiser for Tom Corbett at his house for his Gubernatorial Campaign.  It took more than two years after the first report of abuse to Corbett’s Attorney General office for charges to be filed, which coincides with Corbett winning his campaign to be governor.

In 2010, Corbett released $3 million to the charity to begin construction of The Second Mile Center for Excellence (later withdrawn).  A large chunk of the $3 million grant was headed straight for the pocket of the charity’s long-time chairman and Corbett campaign contributor, Robert Poole from S & A Homes, a State College Construction Company.