Did Trustee Tomalis commit perjury?

Published November 18, 2012
Secretary of Education Ron Tomalis

For the last few months, I’ve been trying to get a copy of Penn State’s agreement with Freeh Sporkin & Sullivan that governed the conduct of its investigation. Ron Tomalis, the Penn State trustee and Secretary of Education, was also second in command of the board committee that hired Freeh. So you’d think he, of all people, would have a copy of the agrement.

Initially, in an affidavit, he told me he didn’t have it. Now it looks like he might have it after all.

Here’s why:

In September, I filed a request for the agreement with the Department of Education. On Sept. 13, the Department of Education responded: “Your request is denied because it is not sufficiently specific to enable us to ascertain which records are being requested,” it said.

Pennsylvania has this gem of a rule that requires RTKL requests to be “sufficiently specific.” That, of course, is highly subjective, and it is often used by state agencies to deny requests for records.

So I refined my request to include the following language:

Specifically, and at a minimum„ I am seeking a copy of the agreement, and any subsequent agreements, that established or furthered the relationship between Penn State and The Freeh Group during its recent investigation of the university’s response to child abuse allegations.

It still wasn’t clear enough. The department answered my second request on Oct. 2. Part of it wasn’t “sufficiently specific,” the department said, but it was able to search for some of the records.

In response, Tomalis provided an affidavit made under the penalty of perjury. “I have determined that such records are not in my possession, custody, or control,” he wrote.

However, he ended his statement with this suspicious sentence: “It is understood that this does not mean that the records do not exist under another spelling, another name, or under another classification.”

After wracking my brain for a week or two, I suspected Tomalis might be taking advantage of a discrepancy between how I referred to Freeh’s group and its formal name:  Freeh, Sporkin and Sullivan, LLP. So I refiled my request, this time asking for:

Copies of contracts, memorandums of understanding, letters of intent and any other agreements, regardless of title, to which the law Firm of Freeh, Sporkin & Sullivan, LLP, is a party.

I expected the department would respond with more of the same. But I was surprised when it told me on Oct. 23 that it needed 30 more days to respond. “The request for access may require redaction of a record,” it wrote, and “a legal review is necessary to determine whether the record is a record subject to access under the RTKL.”

The response clearly indicates the department has a record that matches my request. Unless it has nothing to do with the Sandusky scandal, Tomalis lied, and perjured himself in the process.

Oddly enough, the department’s attorney sent me a follow-up letter on Oct. 25, asking me to specify a time range for the record, another party to the agreement, and a potential subject matter. She even proposed language for me to use in the revision.

I declined her invitation. Under the RTKL, my request is sufficiently specific. And since it’s the third attempt at getting a copy of the Freeh contract, there is no question about which records are sought.

Tomalis has a problem. If they release the contract, it basically proves perjury. If they deny access to it for a legitimate reason, they confirm the document exists, which also proves perjury.

I fully expect the department to deny the request for one reason or another, or claim it doesn’t exist. Part of me wonders if it hasn’t already been shredded. A final response is due by Nov. 26.

But the amount of Penn State fodder on Twitter has me suspecting some kind of announcement could be coming before then, which might change things.

On a related note, Penn Staters for Responsible Stewardship has been trying to get hold of the agreements for a while now too. So far, the group has been rebuffed.

Two of its members asked trustees for the records again on Friday. Board President Karen Peetz responded with this, according to The Daily Collegian:

In a press conference following the meeting, Chairman of the Board Karen Peetz said the board will look into the existence of those documents. She said she did not have much information in this area because she “wasn’t directly responsible for hiring him.”

“It was not something the board signed on,” she said.

It’s strange that the board president doesn’t know if a contract between Freeh and Penn State exists. Perhaps she does know about such documents? Hopefully, we’ll find out soon.

  • Anonymous

    Would it help to have a bunch of people filing requests simultaneously?  Or could the multiple requests be used as a reason for delaying fulfilling them, i.e.our office has been inundated with requests and the response time may take longer than usual.

    • Anonymous

      Thanks for the comment. No, I don’t think filing the same request will have any benefit. But I would definitely encourage you to file requests for other information with any of the  state ex-officio trustees (governor,  and the secretaries of education, agriculture and DCNR).

  • Anonymous

    If DOE shreds any documents in their possession, then that would be obstruction of justice by any or all of those involved.
    Peetz is lying if the documents do not exist because under retention of records, an organization is too keep all contracts and related working documents in perpetuity.

    • Anonymous

      Thanks for the comment. I’ve looked into the retention issue, and it boils down to this: documents of state agencies that do not meet the definition of a record under the Right to Know Law can be discarded at any time. Unfortunately, the Office of Open Records has so far ruled that Tomalis’ trustee documents aren’t public records (I’m actually appealing this decision in Commonwealth Court. http://bit.ly/T4WkYj).

      With that said, there’s a strong case to be made that the records shouldn’t be destroyed because they are part of ongoing or pending litigation. But even in that case, they can be destroyed with the OK of the agency’s chief lawyer.

      In the end, it appears that if they want to destroy the records, they can do so legally. But they’ll have to admit that, and in doing so, prove that Tomalis lied.

      • Anonymous

         If such a document exists and I’m sure it does and a suit or criminal charges is initiated, I suspect the Freeh Group can be subpoenaed for a copy during discovery. Perhaps the new AG would consider a GJ on perjury of Tomalis. Certainly, she would have to depose the entire BOT. If the Chairman of BOT had no involvement then there is evidence  gross malfeasance.

        • http://www.facebook.com/deborahdee.george Deborah Dee George

          Chairperson Karen Peetz guilty of gross malfeasance! I have been saying this for a long time! If this document becomes public, we may just have enough to get rid of her and a few others on the BoT! She refuses to read the Freeh Report because she only believes 10 of 267 pages really applies to what Freeh was hired to do. To her, the rest of the 257 pages are just fluff! All of this to the tune of $6.5 million dollars, plus attorney fees, which were exposed to be around $12 million!

        • Lauren Hoffman

           Peetz wasn’t Chair of the BoT when Freeh was hired, it was Garban. Who resigned and now we haven’t heard a peep from him. Wonder if he knows anything.

  • Anonymous

    I have a feeling that there was more than one contract and THAT may be the reason for their asking you to provide a date range…..there’s something they don’t want to include.  If anyone else makes a request, it should be something along the lines of “copy of any and all contracts, agreements, memorandums of understanding, letters of intent and/or any other documents, regardless of title, to which Louis Freeh or the law Firm of Freeh, Sporkin & Sullivan, LLP, is a party”.

  • http://www.facebook.com/dahoskins Douglas Hoskins


    I am surprised that you declined the offer to further refine your request.  It appears you found the magic key to get the camel’s nose in the tent — referring to “the law Firm of Freeh, Sporkin & Sullivan, LLP”     It also looks, to my eyes, as if the attorney is trying to prompt you as far as getting through the system.   She may not be allowed to add the “obvious” stuff —   I’d go back to that well if I were you. 

    • Anonymous

      I have a different take on the letter, Doug. I didn’t read it as wanting to help me. I viewed it as an attempt to get me to narrow the request to the point that I unknowingly excluded what I’m seeking. This is my third attempt. They know what I want. It’s a game. I’ve been here before. We just finally got to the point where they realized I’m not going away, like they hope most people do.

  • Anonymous


    Typically these kind of documents are referenced as an “Engagement Letter” by attorneys and CPA’s.  It spells out the nature of the engagement and what the purpose of the engagement will be.   I don’t know if that helps but who knows.  And remember we now know the the “Engagement” of these services were with the BOT, not PSU.

    • Anonymous

      Thanks for the tip. I’ll keep that in mind for the next round. And yes, I even wonder if Ken Frazier signed the contract personally, and Penn State funneled the money through him, in order to keep this out of the public eye.

      • http://www.facebook.com/deborahdee.george Deborah Dee George

        While Peetz was held in the dark? She acts like she had nothing to do with it! Corbett made the motion to hire Freeh. Who made the second? Or, is that in the November 11, 2011 minutes that nobody can find?

  • Anonymous

    Ryan, i am anxious to see the documents, bt dont know how Tomalis lied.
    He said he did not have them in his possession but doesnt mean they dont exist.
    So hessaing theyexist but not in my possession.  Where did he lie? 

    Cant wait to see the documents but would like to know how he was hired.  What was the role of the governor & who hired him, or recommended his hire, or how was that hiring power delegated, and whether any board member of the board had a relationship in any way, before, during or after Freeh was hired.  why werent any of these questions askedat the Board meeting?

    • Anonymous

      Thanks for the comment. He lied when he said the contract is not in his “possession, custody or control.” It now appears that it is.

      Good question about the lack of questions at the board meeting. Peetz gave a post-meeting press conference, which, to my knowledge wasn’t televised, and I haven’t seen it. But nobody seems to be demanding the release of these documents.Frankly, the public at large doesn’t really care about transparency, so there’s rarely enough outrage to compel public officials to turn over documents. It’s unfortunately, but that’s the reality. That’s what’s happening here – folks are far more upset about Joe’s treatment than the board doing nothing about increasing transparency and implementing ethics reform. So it’s understandable that people and the public at large aren’t asking the tough questions.

  • http://twitter.com/wensilver wendy silverwood

    Ryan: We all know the hiring of Freeh was for a specific purpose. He has too many PSU connections. The latest is Sporkin is a PSU grad. ’52 I believe. 

    And I wonder if the melding of Freeh’s group into Pepper Hamilton LLC means anything as far as making it much harder to get information. 
    (adjusts Tin Foil Hat)