Sources: PSU trustees left furious
Penn State's Board of Trustees announced last week that it was "deeply ashamed" by the findings of the Freeh report, which was unsparing in its criticism of the trustees' and top administrators' bungled handling of the Jerry Sandusky criminal investigation in 2011 and their firing of Joe Paterno.
But behind closed doors, in private committee meetings and during several meals, the trustees expressed fury at the way they were portrayed in the report: as passive, ill-prepared or uninformed bystanders while then-university president Graham Spanier and then-general counsel Cynthia Baldwin downplayed the potential threat of the Sandusky investigation to Penn State.
The Freeh report criticizes trustees for failing to grasp the significance of the state attorney general's criminal inquiry of Sandusky and the grand jury appearances of Paterno, athletics director Tim Curley and vice president Gary Schultz. Freeh's investigators blamed the trustees' culture of secrecy and deference for university leaders to allow the crisis to do more to harm Penn State's reputation than any other event in its 156-year history.
Several alumni groups have called for some or all of the 32 trustees to resign, but they have all steadfastly refused. Instead, the board and university leaders pledged last week to adapt many, if not all, of the 119 recommendations for reform made by the Freeh report. "We failed in our obligation to provide proper oversight," trustee Ken Frazier told reporters. "We are accountable for what's happened here."
Cynthia Baldwin attorney statement
Full statement from Baldwin's attorney, Charles A. De Monaco:
"In light of the on-going legal proceedings, it would be inappropriate to comment publicly on specific issues referenced in the Freeh Report. However, Cynthia A. Baldwin, as the Vice President and General Counsel of the Pennsylvania State University, along with the University's Office of General Counsel, cooperated fully with the Special Investigative Counsel led by Judge Freeh.
You should be aware that much of the information in the Freeh Report is factually inaccurate as it relates to Ms. Baldwin, and no one should draw conclusions until all the facts are known. As Judge Freeh made clear in his Report, no one, not even his client, the University, had an advance copy of the Report so that inaccuracies could be corrected. Ms. Baldwin was never given the opportunity to review the content of the interviews that she provided to Judge Freeh's agents so that any mistakes in note-taking or understanding could be corrected.
My client Cynthia Baldwin, as the General Counsel of the University, has chosen to maintain confidentiality and to uphold her ethical obligations to her client, the University, and to her profession, and no one should use her silence to speculate and make statements that serve to ruin her long and stellar legal reputation as a practicing lawyer, an academic, a Common Pleas Court Judge, a Supreme Court Justice in the Commonwealth of Pennsylvania and as General Counsel for The Pennsylvania State University. Those who know Cynthia Baldwin know the stories that have been written about her thus far are inaccurate.
Cynthia Baldwin at all times fulfilled her obligations to the University and its agents. Penn State's website should serve as guidance as to the proper role of Penn State's General Counsel. It states as follows: "The Office of General Counsel provides legal advice and representation to the Board of Trustees, the President and other administrators in their capacity as agents conducting university business. The attorneys in the office do not provide legal services to faculty, staff or students in their personal matters." Cynthia Baldwin's actions were consistent with this policy.
The Attorney General asked Cynthia Baldwin, as General Counsel, to accept subpoenas for the President and other administrators at the University, who were agents of the University. She at all times served the interests of her client, the University, and its agents.
Contrary to the representations made in the Freeh Report, Cynthia Baldwin hired a team of criminal and civil experts when it was appropriate to do so.
Cynthia Baldwin knows the importance of due process and how legal issues need to play out in courts of law and not in the media. As a result, it is not her intent to publicly address facts and legal issues that are properly before the courts. Ms. Baldwin will address the inaccuracies in the Freeh Report with the University and in legal proceedings, not with the media."
Away from the cameras last week in Scranton, Pa., however, the trustees spoke openly about their colleagues most deserving of the blame for the stunning breakdown in governance, two trustees engaged in the discussions and a person briefed on the discussions told "Outside the Lines." They also wondered whether at least some among their ranks should resign, the sources said.
Two trustees said the board was most angry at Steve Garban, the then-board chairman who was informed by Spanier in April 2011 of the Sandusky investigation but failed to notify his fellow trustees, according to the Freeh report.
In late October 2011, Garban was also told by Spanier that Schultz and Curley would soon be indicted, the Freeh report states. Garban alerted two trustees -- John Surma and Jim Broadhurst -- to the imminent charges but failed to tell anyone else on the Board of Trustees, the Freeh report states. Spanier had told Freeh's investigators that he assumed Garban would inform the full board.
"A lot of this mess could have been avoided if Garban had just told everyone else," a trustee told "Outside the Lines." "Most of us didn't know what was going on. If we had a week's heads-up, we could have gone to (Paterno) and tried to sort this out. We were blindsided."
Another trustee said: "It was his job to keep everyone in the loop. It's outrageous. He should do the honorable thing and resign."
In fact, the two trustees said Garban was confronted on Friday before the public session of the board meeting and was urged to resign for "the good of the board." Garban declined, the trustees said.
"He's going to try to ride it out," one trustee said. "He thinks he'll survive this."
Indeed, in the report, several trustees had told Freeh's investigators that they had concluded Garban's role had "hampered his ability to lead."
Garban remained chairman until January, when Karen Peetz replaced him. When reached Sunday, Garban declined to comment and referred questions to a university spokesman. The spokesman, David La Torre, said "Penn State cannot confirm or deny private conversations among board members." As to whether the board considered resignations, "we also cannot confirm or deny this. However, as you know, trustees Peetz and Frazier stated each trustee must examine their own future on the board."
Charles A. De Monaco, Baldwin's attorney, said Sunday evening: "In light of the on-going legal proceedings, it would be inappropriate to comment publicly on specific issues referenced in the Freeh report. ... Cynthia Baldwin at all times fulfilled her obligations to the University and its agents."
When the report was released Thursday morning, the trustees received hard copies from university staff and read former FBI director Louis Freeh's description of what they didn't know and when they didn't know it.
They discovered that the first subpoena issued to the university regarding Sandusky was dated Jan. 7, 2010, when university employment and personnel records for Sandusky were sought. The report says Spanier, Curley and Paterno were aware of that subpoena.
Another set of subpoenas arrived at Penn State on Dec. 28, 2010. This group sought the testimony of Paterno, Schultz and Curley before the grand jury. Baldwin told Spanier about the subpoenas but he "told her that things would be fine," the Freeh report states.
On Jan. 12, 2011, Paterno, Schultz and Curley appeared before the grand jury. But nothing was said by Spanier or Baldwin at that time or in the next few months to any trustee.
As one trustee said Saturday: "If it wasn't for one trustee reading a newspaper article, we probably wouldn't have been told anything."
That article was published on March 31, 2011, in The Patriot-News. The article reported Sandusky was "the subject of a grand jury investigation into allegations that he indecently assaulted a teenage boy." The article reported to a 2009 incident involving a boy at Central Mountain High School and the 1998 incident when Sandusky showered with a 12-year-old boy in a football building on Penn State's campus. The article also reported that Schultz, Paterno and Curley had testified before the grand jury investigating Sandusky. The Freeh report notes that the article "went virtually unnoticed by the board. The article was not disseminated to the full board and many board members did not read the article."
A day after the story was published, an unnamed trustee emailed Spanier to ask "What is the story on allegations against Jerry Sandusky that required testimony by Joe Paterno and Tim Curley, and I heard also Garry [sic] Schultz? Is this something the board should know a [sic] be briefed on or what?"
Spanier replied, and he copied Baldwin and Garban, "I believe that Grand Jury matters are by law secret, and I'm not sure what one is permitted to say, if anything."
Spanier said he would check with Baldwin, who told Spanier by email that those who "testify before the Grand Jury are not held to secrecy and can disclose if they so desire."
On April 13, 2011, the trustee emailed Spanier again: "I frankly think that, despite grand jury secrecy, when high ranking people at the university are appearing before a grand jury, the university should communicate something about this to its Board of Trustees."
On that same day, Spanier replied to the trustee that "through media reports that the Grand Jury has been investigating for two years and has not yet brought charges. They continue their investigation. I'm not sure it is entirely our place to speak about this when we are only on the periphery of this." Spanier added that Baldwin would report on the issue at the next board meeting. Separately, Spanier told Baldwin in an email that the trustee "desires near total transparency. He will be uncomfortable and feel put off until he gets a report."
That same day, Spanier himself testified before the Sandusky grand jury, but he apparently chose to say nothing to the trustee about that.
On April 17, Garban met with Spanier and Baldwin about the investigation. Baldwin told Freeh investigators that Spanier "downplayed the Sandusky investigation" and added, "It was the third or fourth grand jury and nothing would come of it."
Baldwin told Freeh investigators that she believed that Spanier, as a board member, and Garban, as the board chairman, would relay information about the meeting to other board members.
The Freeh report scolds the few officials aware of The Patriot-News article for failing to ask "further about Sandusky and the possible risks of litigation or public relations issues, and, most importantly, whether the University has effective policies in place to protect children on its campuses."
On May 11, 2011, on the eve of a regularly scheduled board meeting, Spanier told Freeh investigators that he told four board members at a private dinner that he had recently testified before the Sandusky investigation and he provided an update on the Sandusky investigation. When Freeh's investigators interviewed the four trustees, none of the four trustees could recall Spanier saying anything at the dinner about the Sandusky grand jury or Spanier's own testimony.
On May 12, Spanier and Baldwin gave briefings that trustees felt lacked in detail. Trustees interviewed by Freeh had varying recollections of what Baldwin said -- some had the impression that the Sandusky investigation involved issues at the Second Mile, Sandusky's charity, and not Penn State. Several trustees recalled hearing that criminal charges were not likely. According to the Freeh report: "A common perception was that this was not an 'important' issue for the university and the investigation was not a cause for concern."
"The common complaint was that Spanier's and Baldwin's May 2011 report to the board did not address the core question of why four senior Penn State officials needed to appear before the Grand Jury if the investigation did not 'involve' Penn State," the Freeh report says. "Their report also did not indicate that the attorney general's investigators had spent two days interviewing the university's football coaching staff, that the investigators had subpoenaed all emails dating back to 1997 for Spanier, Schultz, Paterno and Curley, that investigators subpoenaed the names of all Penn State Physical Plant employees from 1990, and that more football program staff were to testify before the Grand Jury."
A trustee told Freeh's investigators that Spanier's "managing of messages" and the board's reactive nature was "a recipe for disaster."
A spokesman for Spanier declined comment Sunday. Last week, a statement from the spokesman said "... at no time in his 16 years as President of Penn State was Dr. Spanier told of any incident involving Jerry Sandusky that described child abuse, sexual misconduct, or criminality of any nature."
Two subsequent Board of Trustees meetings -- in July and again September -- were held. Neither Spanier nor Baldwin said anything to the trustees about the ongoing Sandusky matter, nor did any trustees ask about it, the Freeh report found.
On Oct. 29, 2011, board chairman Garban noticed Sandusky sitting in the Nittany Lion Club at the Penn State game against Illinois when Paterno won his record-setting 409th victory. Garban told Freeh investigators he was "astounded" to see Sandusky attending the game. But despite that observation and reaction, Garban told only two of his 31 colleagues about what he knew about the Sandusky investigation.
"Neither Garban, Spanier, Broadhurst, Surma nor Baldwin spoke to the remaining board members about the impending charges until after the charges were filed against Sandusky, Curley and Schultz on Nov. 4, 2011," the Freeh report says.
"We're made to look like fools," a trustee told "Outside the Lines" about the Freeh Group's accounting of the board and the failure of Garban to inform all 32 members. "And we were fools."
Don Van Natta Jr. is a senior writer for ESPN The Magazine and ESPN.com. He can be reached at email@example.com.