None of this opinion piece constitutes legal advice, but most people know that remedies are available when a conservator, power of attorney, or trustee mismanages the affairs of an entity to which he owes a fiduciary duty.
The Pennsylvania State University is past the point at which the Legislature, or some other external authority, needs to determine whether these remedies are now relevant, reasonable, and necessary.
You can fire and humiliate a person of unquestionable character and integrity like Coach Joe Paterno, and you can also kill another human being. What happens to you afterward depends entirely on whether you can justify the action in question.
The growing preponderance of the evidence indicates that the Trustees’ action was based — per their own admission at the time — on highly incomplete information. This information proved subsequently to be faulty. The Trustees’ defective judgment, however, went far beyond what they did to Coach Paterno. Their action admitted falsely on Penn State’s behalf that the University approved or facilitated Jerry Sandusky’s crimes in any way, shape, or form, and this has caused enormous damage to Penn State’s reputation.
Character and integrity determine what one does after one makes an error in judgment, as the Trustees did on Nov. 9, 2011. The Trustees hired public relations firms primarily, as I see it, to defend their own bad decisions. Then they brought in the Freeh Group to investigate the events surrounding Jerry Sandusky’s activities. The resulting report was internally inconsistent at best, and more problems have been uncovered since its release. The Trustees would have known about these defects had they studied the report before two of their leaders affirmed its findings of guilt at a public meeting in July 2012.
The Trustees’ affirmation of the Freeh Report provided the NCAA the excuse it needed to slap unprecedented sanctions on the University, and in contravention of the NCAA’s own written rules. President Rodney Erickson agreed to the sanctions without consultation with the Board of Trustees, who supposedly have fiduciary responsibility for the University, on the grounds that the NCAA had threatened a four-year shutdown of Penn State’s football program. If the Trustees believed Erickson’s story, they should have pursued legal remedies against the NCAA. Two NCAA officials, Ed Ray and Ameen Najjar, denied, however, that the football “death penalty” was ever on the table. The Trustees’ failure to make any identifiable effort to find out who is telling the truth, and then act accordingly, underscores the perception that nobody is minding the store.
There is also widening evidence of the NCAA’s lack of integrity, and violations of its own rules, with regard to universities other than Penn State. Florida Attorney Benjamin Haynes has even used the word “extortion,” and its definition as a felony in Florida’s criminal code, with regard to the NCAA’s threats to a University of Miami football player. The controlling majority of Penn State’s Trustees has taken no identifiable action in response to these serious questions about the NCAA’s fitness to regulate collegiate athletics.
The Board has also taken no identifiable action to reassess the Freeh Report despite negative assessments by prominent attorneys. Trustee Kenneth Frazier instead reacted to an alumnus’ criticism of the report with an angry tirade that included a derogatory remark about the alumnus’ skin color.
A handful of Trustees are attempting to do their jobs by challenging both the Freeh Report and the NCAA sanctions. The controlling majority has reciprocated with implied threats to remove members of this minority from the Board. Penn State cannot heal itself while this majority remains in charge, and the Legislature or some other outside authority needs to intervene.
William A. Levinson, P.E., Penn State ‘78, is a coauthor of “The Expanded and Annotated My Life and Work: Henry Ford’s Universal Code for World-Class Success,” and other books on quality, management, and industrial productivity.