Penn State trustees hope vote erases legal conflict
Share with others:
UNIVERSITY PARK, Pa. -- Three weeks ago, Penn State's board of trustees met hurriedly to fire longtime football coach Joe Paterno, accept President Graham Spanier's resignation and name provost Rodney Erickson as the university's new president.
But questions arose about whether the board had complied with the state's Sunshine Act because there is no evidence of required public votes on the matters. So the executive committee -- nine of the 32 board members -- decided to hold a brief telephone conference call Friday morning to resolve questions and formally approve those three major decisions.
Penn State spokesman Geoff Rushston said Thursday that Penn State is aware of concerns raised about Sunshine Act compliance. The trustees decided on the advice of their general counsel to meet "to correct any procedural irregularities there might have been and [ensure] the actions are in compliance with state law and university bylaws."
The changes in status for Mr. Spanier, Mr. Paterno and Mr. Erickson were the result of the questionable handling of child sexual abuse allegations against former assistant football coach Jerry Sandusky, whose arrest came five days before the departures of Mr. Paterno and Mr. Spanier.
Both men had faced growing criticism over the university's failure to report to law enforcement authorities allegations that Mr. Sandusky sexually assaulted a boy in a locker room shower of the Lasch football building on campus in 2002.
"Due to the extraordinary circumstances" during the week of Nov. 6, Penn State spokesman Bill Mahon said after the executive committee's five-minute phone call, "the board of trustees needed to act swiftly and decisively regarding personnel. While the board believes immediate action was necessary [three weeks ago], it is holding this special, pre-announced public meeting of the executive committee to reaffirm and ratify the board's prior personnel decisions."
He added that the trustees "wanted to dot all the i's and cross all the t's."
He said the firing, the resignation and the naming of the new president were effective the week of Nov. 6. The full board will meet in January to "reaffirm" the action taken by the executive committee Friday, he added.
Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, said later Friday that the Penn State trustees "took advantage of a court-made remedy known as a 'cure.' "
Agencies subject to the Sunshine Act "can remedy an alleged violation of the act if they redo the suspect action at a properly advertised public meeting. It's a 'do-over.' It's not an unusual thing for an agency to do, when there is an allegation of Sunshine Act problems. Courts have allowed agencies to participate via conference call."
"Given the extraordinary circumstances," added Muhlenberg professor/pollster Christopher Borick, "the university was called to act quickly [three weeks ago], and they very well may have failed to follow the letter of the law in terms of the Sunshine Act and public notice. What they did [Friday] was make sure the legal requirement [for notice] was met."
When asked if the trustees had violated the Sunshine Act three weeks ago, Mr. Mahon said, "I can't speculate on that." He also refused to discuss the status of former athletic director Tim Curley, who is on leave after being charged with perjury in the Sandusky case. He's due in court Dec. 16, along with former university vice president Gary Schultz, also charged with perjury.
Mr. Borick, a 1987 Penn State graduate, said he wondered if Mr. Spanier or Mr. Paterno "might feel harmed or wronged" by the board's action and "take up some legal challenge. But the answer very likely is no. I don't think Joe Paterno would want to use this [Sunshine Act issue] to challenge the board's decision. He's not going to use this to try to get his job back."
Mr. Spanier is a tenured professor, but he has decided to take a year's leave of absence away from the classroom, Mr. Mahon said. Mr. Paterno remains a tenured faculty member. "His possible continued service to the university in that capacity has not been determined at this time," Mr. Mahon wrote in an email Friday.
Mr. Mahon said the trustees have used the conference call procedure a couple times in recent years. One was three years ago, when the state Legislature didn't approve a state budget until October. The executive committee approved the school's budget and set tuition rates, which were later reaffirmed by the full board.
The language in the resolutions about Mr. Spanier and Mr. Paterno were somewhat different, but board chairman Steve Garban said, via phone, "I don't know of any particular significance" in that. The resolution said that "in view of the situation and the unfolding circumstances, the board determined it was best for Dr. Spanier to step down as president effective Nov. 9."
About Mr. Paterno, the resolution said it was "in the best interest of Penn State that [he] no longer serve as head football coach effective Nov. 9."
The Post-Gazette and others had raised questions about whether the moves were lawfully made, in the open.
Fritz Byers, an attorney for the Post-Gazette, said personnel matters can be discussed in executive session, if properly convened, but the state's open meetings law, or The Sunshine Act, requires that action be taken only at a public meeting.
The executive committee's nine members include Mr. Garban, who also serves as chairman of Penn State's full board of trustees; John Surma, board vice chairman; and Eat'n Park executive James Broadhurst.
Other questions have arisen about the Penn State board's decision to hire outside advisers, including the Reed Smith law firm, the Ketchum communications firm and former FBI director Louis Freeh, who will head up an investigation into the Sandusky scandal for the board.
But Mr. Mahon said that under trustees' bylaws, the chairman and vice chairman have authority to enter into such contracts without getting approval from other board members.
First Published December 3, 2011 12:00 am