When: Tomorrow – Wednesday, June 19, 2013, 9:30 a.m.

Where: Pennsylvania Judicial Center, 601 Commonwealth Ave., Harrisburg, Pa., 17106

The Pennsylvania Commonwealth Court will hear oral arguments tomorrow in a case that will decide whether the public has a right to access records from some state-related universities.

Judges will consider whether records received by the Secretary of Education in his capacity as a university trustee are subject to the Right-to-Know Law. The Office of Open Records has ruled they are not subject to the law.

The case was filed in November 2012 by Penn State alumnus Ryan Bagwell, who sought records sent to Secretary of Education Ron Tomalis that described his actions as a Penn State trustee. It would also affect the public’s right to obtain records about trustees of Pennsylvania’s other state-related universities: Temple University, Lincoln University and the University of Pittsburgh.

Tomorrow’s court session is scheduled to begin at 9:30 a.m., and Bagwell v. Dept. of Education will be the third case heard. Court rules designate 30 minutes for each case, but each could last longer if the presiding judge agrees.

Bagwell and his attorneys will be available after the hearing to answer questions.

The case will precede a hearing in Corman v. The National Collegiate Athletic Association, which seeks to prevent the distribution of Penn State fines to organizations outside of Pennsylvania. That case will be the fifth heard during the session.

For more information, contact:

Ryan Bagwell
608-466-6195
ryan@ryanbagwell.com

Attorneys for Bagwell:

Craig J. Staudenmaier and Joshua D. Bonn
Nauman Smith Shissler & Hall
717-236-3010

Attorneys for the Department of Education:

Delene Rachel Lantz Johnson
Office of General Counsel
717-783-6563

Karen S. Feuchtenberger
Department of Education
717-787-5500

But the disclosure didn’t go far enough. The AG’s Right-to-Know Law officer withheld an unknown number of records that he said could stay secret because they were subject to grand jury secrecy rules and the RTKL’s criminal investigation exception.

Unconvinced that the reasons for the partial denial were correct, I appealed the decision to the next level – another person in the AG’s office.

Today I got the final decision. And it’s not helpful to those who are still trying to uncover what went on behind the scenes during Freeh’s investigation.

In a letter dated April 23, 2013, Linda Dale Hoffa, the AG’s senior executive deputy attorney general, told me that after a “careful review of the content and nature of the withheld documents,” she agreed that the records are not subject to grand jury secrecy rules.

“However, I am persuaded by a preponderance of the evidence that the withheld documents are records … relating to a criminal investigation,” she wrote.

Unlike most states, the Pennsylvania legislature exempted every record of every investigation from disclosure. State officials can permanently withhold any document “relating to” both criminal and noncriminal investigations.

State agencies can, by their own accord, choose to release pretty much any record they want to release. But that rarely happens. True to the norm, newly elected Attorney General Kathleen Kane is asserting her right to keep those records secret.

The RTKL’s investigation exceptions are among the many frustrating aspects of a 2008 law that  was billed as a dramatic improvement over its previous, toothless version. The exceptions, for some reason, are much broader than any of Pennsylvania’s neighbors.

Until Pennsylvanians demand more open and transparent government, much of the real story behind the Sandusky scandal will remain sealed from public.

Conceding a key issue in a dispute over whether trustee records of Secretary of Education Ron Tomalis are public, an administration spokesman told the Pittsburgh Tribune-Review that a ruling by the Office of Open Records improperly exempted those documents from public disclosure.

That ruling is the subject of a lawsuit by Penn State alumnus Ryan Bagwell, who sought records from the Department of Education about Tomalis’ trustee activities. Though the department released some records, the OOR ruled that any records received in Tomalis’ capacity as Penn State trustee weren’t subject to the requirements of the Right-to-Know Law.

In a March 28 court filing, Corbett lawyers said they disagreed with the OOR’s opinion, arguing standard RTKL exemptions should apply instead. They also argued that the state has an obligation to protect private institutions, like Penn State, from having their records disclosed.

But an administration spokesman yesterday said even though Penn State isn’t a government agency, records that make their way into the hands of state officials should be subject to the RTKL.

“The department has requested that the Commonwealth Court decide this appeal in its favor based on statutory exemptions under the law, and not on any prior decision that has held that PSU was not subject to the law,” spokesman Nils Hagen-Frederiksen told the Tribune-Review.

The Commonwealth Court will decide whether the Department of Education properly withheld the remaining records later this year. Oral arguments in the case are scheduled for June.

The decision is a victory for open-records advocates, who argue that Pennsylvania’s four state-related universities should be more transparent. Even though they’re mostly exempt from the RTKL, records of the state officials who sit on their governing bodies are public. By law, state-related universities are required to appoint the governor and secretary of education to their boards.

The decision

Calling it “ridiculous” to have to release records of so-called “ex-officio” board members, Corbett attorneys last month asked the Commonwealth Court to let it keep records of the governor and secretary of education under wraps.

Ordering the release of trustee records in the possession of the Department of Education would be “exploiting the circumstance of a public official serving ex officio on the Board of Trustees,” wrote Pennsylvania General Counsel James D. Schultz in a March 28 court filing.

“Such a blatant disregard of PSU’s rights would expose PSU’s records to public scrutiny,” he said.

Schultz is the governor’s chief legal advisor. He’s also leading Pennsylvania’s lawsuit against the NCAA.

The dispute involves a Right-to-Know Law request by Penn State alumnus Ryan Bagwell that sought documents sent to Secretary of Education Ron Tomalis in his capacity as a Penn State board member. The Department of Education denied most of his request, and the state’s Office of Open Records ruled Tomalis’ trustee records are off limits.

But Bagwell appealed the ruling in November, arguing that records of a state agency are public records regardless of how they made their way into the state’s hands.

“If Governor Corbett was serious about making Penn State more transparent, he’d tell his lawyer to stop helping it conceal university records,” Bagwell said.

The Corbett administration’s arguments are contrary to his calls for Penn State to become more transparent. Last year, Corbett said Penn State and its sister state-related universities should have to comply with all provisions of the Pennsylvania Right-to-Know Law in order to receive state funding, according to the Harrisburg Patriot-News.

But Schultz argued the RTKL shouldn’t be “twisted into (a) mutant weapon” that would force the governor to release his trustee records.

Penn State could have intervened in the dispute. But it stayed out of the case, and let Corbett argue on its behalf.

Oral arguments are tentatively scheduled for June 17. A decision is expected sometime in the fall.

After last year’s election, my wife, who’s a statistics wizard, plugged some number into her computer and came up with the following observations: the alumni preferred candidates who were older than me (I’m almost 34 years old) who live in areas with large alumni populations (State College, for example). Ballot position was also helpful.

I don’t think there’s a direct preference for older candidates however. Instead, I think there’s a general tendency to support candidates with “substantial life experience,” to borrow a phrase from PS4RS. That translates into people who have fancy titles on their resumes like “president” or “CEO.” Positions like that are impressive. They’re hard to come by, they illustrate one’s corporate leadership experience and they demonstrate the drive to achieve one’s goals. Many sit on company boards, and therefore have “board experience.” Based on title alone, a corporate executive seems like the perfect candidate.

But there’s one glaring problem with such a shallow candidate analysis: the board was filled with corporate executives in November 2011. They failed us miserably then, and have continued to fail us ever since. How is it that somebody so qualified to lead Penn State turned out to be so wrong?

The corporate executive candidate is certain kind of leader. He works in the private sector. He’s good at making management decisions that fuel higher profits.  Meetings are held, and management decisions are made, behind closed doors. He only has to build concensus with a few high-ranking corporate officers, and only answers to his board of directors. He is not scrutinized by those outside the company, and can usually ignore criticism from pretty much anybody.

Contrast that position with the role of somebody who serves on a public board. Major decisions are made during public meetings, during which the public has the right to lob a never-ending barrage of criticism. Building consensus among board members is key, but you’re ultimately accountable to the voters who elected you. Your job isn’t to make more money – it’s to further and enhance the mission of the institution, a goal whose path to achievement is far less clear.

In truth, the corporate executive candidate is really the antithesis of who the public candidate should be. Every day, he thumbs his nose at transparency. He doesn’t have to worry about fostering a culture of collaboration and openness.  Those qualities just isn’t natively in his blood.

That’s why I’m starting to cringe at the emerging support for the corporate executive candidiate again.

Take this post from somebody in the PS4RS forum:

In order for a BoT member to be effective, they need a demonstrated leadership capability and an ability to effect change as part of a minority group on the board (I particularly liked that question). These people need to be able to go toe to toe with heavy hitters some of whom are CEO’s (Ken Frazier e.g.) of large companies … in order to do so, leadership positions/experience in industry is essential. After reviewing the 6 candidates, I feel confident that 3 will emerge to help Anthony on his/our quest. Can['t] wait to get 3 more next year.

This person believes the best person to fight Ken Frazier is another Ken Frazier. He wants somebody who can schmooze the other size, and will be charming, conniving and cunning behind the scenes. He wants someone with a much power as Frazier, because he assumes Frazier will only bow to somebody with as much, if not more, power than himself.

The problem with that people like Ken Frazier don’t understand the difference between the Board of Trustees and Merck’s Board of Directors. They don’t understand the benefits of transparency. They don’t understand the ethical differences between public and private board members. It’s just not part of their daily lives. A Ken Frazier will not convince Ken Frazier he needs to change.

People who aren’t corporate executives don’t bring with them entrenched values of secrecy. Their daily mission isn’t to make as much money as possible, and their routine decisions aren’t made with that in mind. They bring a completely different set of skills to the table that this board is lacking.

As you’re making your final choice for Penn State trustee, be sure to cast your vote for somebody who shares your values. Don’t be fooled by fancy titles. Do your homework.

What they do suggest, if not confirm, is that the relationship between Freeh investigators and the attorney general’s office was far closer than Freeh ever let on. And I cannot underscore the impact that such a revelation might have on the entire Sandusky narrative.

If you’ve read the Freeh report in its entirety, you know this: a former FBI director, who’s a man of supposed impeccable integrity, arrived at damning conclusions based on circumstantial evidence pieced together and presented in a tidy package for the world to consume. The media repeated the gist if his conclusions over and over again – that top Penn State administrators allowed a child predator to harm children for 14 years. But to those of us who read past the first few pages, it just didn’t make sense that Freeh actually believed the rhetoric he was spewing.

Until now, I believed the conventional theory: trustees asked Freeh to purposefully skew his findings and blame everything on the dead guy and those that no longer work for Penn State. It allowed the board to “move on,” a mantra that immediately emerged after Freeh concluded his investigation. There still might be some truth to that theory. But the emails, which surprised the heck out of me, offer another, more reasonable, reason for Freeh’s stance.

The emails show that Freeh investigators had a clear reverence for state prosecutors, and a devout belief in their mission to convict Sandusky, if not Spanier, Curley and Schultz too. Composed entirely of former law-enforcement officials, it was natural for Freeh’s team to tend to side with prosecutors. For that reason alone, with the benefit of hindsight, it seems obvious that any report would adopt the prosecutors’ stance on what happened at Penn State. There was never a chance that it would be a fair and objective look at how administrators handled the Sandusky allegations 12 years ago.

Anything less than total condemnation might have hurt the prosecution’s case against Spanier, Curley and Schultz, and maybe even Sandusky. Former Attorney General Linda Kelly, as well as her prosecution team, needed Freeh’s findings to be strong and damning. Freeh gave them exactly what they needed. It was a big boost to their case.

Kelly wasn’t running for re-election, so she didn’t have much riding on the Freeh report’s outcome. But the man who put her there – Tom Corbett – certainly did. Think about how an inconclusive report would have affected Corbett. He would have been harangued for any anti-Penn State statement he ever made. His stance in the early days of the crisis would have dogged him through his re-election campaign next year. And more importantly,  as the original attorney general of the Sandusky case, he would have been blamed for bringing charges that could not be independently substantiated, and ultimately held responsible for Penn State’s entire crisis. To be proven right, Corbett more than anybody needed this report to be bad.

So how would Corbett increase the likelihood that the report would be damning? By ensuring Penn State hired an investigator who would be at least sympathetic to the prosecution’s case, or, at most, even somebody his hand-picked successor could control. The emails suggest that’s exactly what he got when Penn State, at Corbet’s urging, hired Louis J. Freeh.

Count me among those who never believed the Corbett conspiracy theories. Until now, I dismissed them as just angry, baseless rhetoric. But these emails raise many other questions that I, and most others, never even fathomed. What did Corbett know when he suggested hiring Freeh?

Remember the leaks about the Freeh report just before it was unveiled? Most assumed they came from Penn State. Instead, was the Attorney General’s office actually the sieve?

Penn State was Freeh’s client. But it looks like investigators almost became an arm of the prosecution, helping them make their cases against everyone charged. Can they even do that? Did they breach their ethical responsibility?

My request for information from the AG’s office essentially was made on Feb. 5 (there’s a long saga involving appeals, but Feb. 5 was the first they they admitted they had to at least look for the records) . Three days later, the supervising judge of the Sandusky grand jury appointed a special prosecutor to investigate secrecy issues surrounding the proceedings. Is the sharing of information with Freeh’s team at the center of that investigation? You have to believe that these 12 emails are just part of what Kane is reviewing.

Did trustees know how friendly the Freeh team was with state prosecutors? If they didn’t, are they at both Corbett and Freeh for basically fooling them into thinking they were shelling out cash for an independent investigation.

When the NCAA sees these emails, will it admit Freeh’s investigation wasn’t as independent as it originally thought?

It’s true that we knew all along Freeh would contact prosecutors to share information. At a press conference announcing his hiring, Freeh said his team would “liaise closely with the law enforcement authorities and ensure that nothing we do interferes with or impedes their important investigations.” But the emails suggest his team not only influenced state prosecutors, but eventually started working on their behalf.

Trustee Anthony Lubrano recently suggested that Penn State should get a full refund because Freeh’s investigation didn’t live up to the terms in his contract with Penn State. With the bias shown in these emails, I have to agree with Lubrano.

Freeh has some explaining to do.

But a series of internal emails released by the Pennsylvania Attorney General last week suggest investigators for Louis J. Freeh didn’t arrive at their conclusions on their own.

After working with state prosecutors to convict Jerry Sandusky in June, Freeh’s team of ex law-enforcement officials celebrated the victory, the emails show. And within hours of his conviction, they offered their congratulations and expressed their pride.

“I am proud of you and the entire prosecution team,” wrote senior Freeh investigator Gregory Paw to Frank Fina, the AG’s lead prosecutor. “Very well done.”

The emails, released in response to a Right-to-Know Law request on Thursday, call into question the objectivity of an investigative team that Penn State hired to explain how child abuse allegations went unreported for years. They paint a picture of a group of private eyes who were hired to conduct their own, independent investigation, but wound up working with prosecutors to secure a criminal conviction and support their law enforcement objectives.

At the urging of Pennsylvania Governor Tom Corbett, Penn State hired Freeh, Sporkin & Sullivan in November 2011 “to conduct a full, fair and completely independent investigation,” Freeh said when announcing his findings on July 12. “We have shown no favoritism toward any of the parties, including the Board of Trustees itself, our client.”

During the investigation, “we continuously interfaced and cooperated with those agencies and authorities,” Freeh said.

But the emails between his investigators and members of the Attorney General’s office seem to counter the former FBI director’s claim of complete independence. They suggest their interaction with law-enforcement agencies went beyond mere cooperation.

Hours after Sandusky was convicted, Freeh investigator Tom Cloud congratulated prosecutors. “As I told Tony – congrats on a great job in tough conditions,” he wrote to Randy Feathers, the agent who supervised the AG’s Sandusky investigation. “Our team is happy.”

Just before midnight, Feathers replied. “Thanks, [we] were happy too. It was great working with you guys. You all are real pros.”

The next day, Fina replied to Paw, who wrote how proud he was. “Thank you for all the help and support,” Fina said.

And when Freeh delivered his own verdict against Penn State on July 12, Fina was pleased. “Truly great work,” he said in an e-mail to Paw. “Please extend my congratulations to your team.”

Paw replied the same day. “This note really means a lot to me,” he told Fina. “I have a tremendous respect for you and your work, and it was my pleasure to have an opportunity to work with you on this matter.”

Immediately releasing state and university records would shed significant light on how officials responded to child abuse allegations, said Ryan Bagwell, an alumnus who’s been trying to obtain records since June.

Instead, officials have denied eight of his 12 requests filed under the Right-to-Know Law because they weren’t “sufficiently specific.” Last week, they stepped up their efforts by filing a lawsuit in Commonwealth Court to block an order to release contracts with the law firm of Louis J. Freeh.

“Today’s release of the Paterno report underscores the need for full disclosure from state and university officials,” Bagwell said. “It raises important questions about why Freeh investigators decided to omit other plausible conclusions from their $6.5 million report.”

“Instead of coming clean, the Department of Education has embarked on an expensive and unprecedented mission to withhold documents from the very people who own them,” Bagwell said. “It’s time for Ron Tomalis to level with Pennsylvanians and stop hiding behind an army of lawyers who are engaging in their own questionable conduct.”

For more information, contact:

Ryan Bagwell

443-867-6413

www.bagwellforpennstate.com

-MJ Neumann

Thanks for the question about when/if to honor Joe. A year after his death, it tops the list of alumni complaints. It is also one of the most polarizing issues Penn State continues to face.

After reading Posnanski’s book, the Freeh report, a good chunk of the Sandusky trial testimony and pretty much every other news story about Penn State since November 2011, I am convinced that he was unaware of the extent of Sandusky’s crimes, and played no role in any alleged cover-up.

With that said, I believe it is only prudent to wait for an extended period of time before honoring Joe. By all accounts, Joe led a life of integrity and challenged others to do the same. We know that. But the reset of world believes a different story that was concocted by a sensationalistic media horde. The story we know will become much more clear when Curley, Schultz and McQueary finally tell their sides. Unfortunately, with the difficult legal issues yet to be meted out in court, that could take years.

I realize this is a difficult and unpopular tack for many Penn Staters, but believe me, he will be honored as soon as possible.

Meanwhile, there are many questions yet to be answered about the roles Penn State leaders played. I’m focused on trying to bring those answers to light.

-Ryan

- Shari Wilson Hughes

Hi Shari, fantastic question. First, congrats to you and your daughter for her impending graduation. It’s always awesome to welcome another Penn Stater into the family.

Second, capping or lowering tuition has to become a priority for the board, since Penn State has become far too expensive for many middle class families to afford. I’d like to see us grow our endowment substantially over the next 10 – 20 years with the goal of reducing tuition by 50%. It’s quite an endeavor, but with the right leadership in place, it’s an attainable goal that will position Penn State as model for how state schools should operate.

Now, to your question:

Penn Staters face quite a dilemma these days. It’s tough to support an institution whose leaders have shrugged off every call for reform, no matter how much reverence we have for it. I’m reluctantly going to make my annual Nittany Lion Club donation this week, but it feels like I’m betraying my core values.

I don’t know if it’s possible for the current board to mend fences at this point. But a good place to start would be to release all emails and other records that shed light on how board members and administrators handled the NCAA sanctions and dealt with Freeh’s investigation.

As you may know, access to public records is an issue that’s dear to my heart, and I’ve been fighting to obtain records that would reveal how the Secretary of Education participated in the oversight of Freeh and his investigators. I’ve even taken the difficult but necessary step of hiring an attorney to pursue an appeal in Commonwealth court on my behalf. Opening Penn State’s records to public scrutiny is the single most important thing the board can do to begin restoring faith in its leadership. Without that, questions and mistrust will persist in perpetuity.

I’ve proposed other ideas that would also help. You can read about them here.

In the near term, I don’t think we have to worry about dwindling financial aid. Those funds come from the endowment, which can’t be used for operating expenses. But if we don’t take steps to make Penn State more affordable, boosting scholarship contributions will be critical to the university’s future. Hopefully our trustees will follow through with some of the calls for reform and begin the healing process soon.

Let me know if you have any more questions. Thanks!

-Ryan