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.
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.
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.