Penn State Trustees Violated State Law
November 21, 2011
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.
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 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.
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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.