Before I call it a night, I thought I would share with this all-knowing board what I’m readying for my return to the BOT.
This entire mess continues to keep me up at nights. I have no doubt based on my review of documents that Louis Freeh knowingly represented his opinion as facts. Moreover, he had absolutely no basis to reach his conclusions.
I would like your input on the following resolution. Thanks in advance.
Proposed Resolution
Re: the July 12, 2012 “Report of the Special Investigative Counsel” issued by Freeh, Sporkin & Sullivan, LLP (“Freeh Report”)
Whereas, Freeh, Sporkin & Sullivan LLP (“Freeh”) was engaged on December 2, 2011 by the Pennsylvania State University Board of Trustees (the “Board”) to investigate allegations of sexual abuse by a former employee of The Pennsylvania State University (the “University”) and the alleged failure of University personnel to report the alleged sexual abuse to law enforcement;
Whereas, Freeh was to perform an independent investigation and issue a report to the University concerning (i) whether failures occurred in the reporting process; (ii) the cause of those failures; (iii) the identities of persons with knowledge of the allegations of sexual abuse; and (iv) how those allegations were handled by the Trustees, University administrators, coaches and other staff;
Whereas, Freeh was engaged to conduct an independent and comprehensive investigation, leaving no stone unturned, and without fear or favor;
Whereas, Freeh publicly announced the conclusions and issued the report (the “Freeh Report”) on July 12, 2012, the same date Freeh provided the Freeh Report to the University;
Whereas, Freeh’s investigation was subject to severe limitations including the inability to subpoena testimony and the production of relevant documents, lack of access to documents in the possession of governmental and regulatory bodies and the inability to interview all relevant witnesses;
Whereas, Freeh, without justification, elected not to pursue interviews of certain key witnesses;
Whereas, subsequent criminal and civil proceedings, governmental and administrative proceedings and other factual investigations (“Related Proceedings”) have shed further factual light on the issues covered by the Freeh Report;
Whereas, Louis Freeh testified under oath that the conclusions in the Freeh Report are nothing more than his opinions;
Whereas, the University has not formally accepted or denied any of the conclusions in the Freeh Report;
Whereas, certain sweeping assertions and unsupported conclusions in the Freeh Report regarding the University’s culture have severely and negatively impacted the University’s general wellbeing;
Whereas, certain sweeping assertions and unsupported conclusions in the Freeh Report have damaged the reputation of the University;
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Whereas, on July 23, 2012, the University accepted a binding consent decree (the “Consent Decree”) imposed by the National Collegiate Athletic Association (the “NCAA”) in which the University agreed, among other sanctions, to pay a $60 million fine;
Whereas, the NCAA subsequently acknowledged that it did not complete its own investigation of the University, and instead relied upon the Freeh Report to justify the Consent Decree;
Whereas, the imposition of the Consent Decree on the University by the NCAA has caused financial and reputational damage to the University;
Whereas, the University relied on Freeh’s representation, that the Freeh Report was accurate, complete, independent and the product of a comprehensive investigation;
Whereas, the NCAA’s imposition of the Consent Decree upon the University was based upon such representation, and the Executive Committee of the Board accepted the Consent Decree on the basis of such representation;
Whereas, the Executive Committee of the Board of the University believed that the NCAA complied with its own governance charter and bylaws and was authorized to impose the Consent Decree;
Whereas, since the Freeh Report was issued, credible criticisms of the Freeh Report have emerged both with respect to the purported conclusions and with respect to the manner in which Freeh conducted the investigation;
Whereas, publicly available documents confirm that, at the time that Freeh was purportedly acting independently, one or more representatives of Freeh were covertly seeking to curry favor with, and become engaged by, the NCAA;
Whereas, representatives of Freeh have since acknowledged that the purported “conclusions” within the Freeh Report are not based in fact but are instead the personal opinions of the author or authors;
Whereas, in the nearly eight years since the Consent Decree was imposed, credible criticisms of the process by which the NCAA adopted the purported investigative findings in the Freeh Report and the NCAA’s failure to adhere to its own charter and bylaws in imposing punishments on the University, have emerged;
Whereas, on January 16, 2015, the Consent Decree was repealed and replaced by another agreement (the “New NCAA Agreement”);
Whereas, certain terms and conditions of the Consent Decree remain in the New NCAA Agreement, including the imposition of the $60 million fine;
Whereas, neither the University nor the Board ever undertook a review of the information (the “Source Material”) upon which the Freeh Report is based;
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Whereas, on April 15, 2015 Trustees Edward B. Brown, III, Barbara L. Doran Robert C. Jubelirer, Anthony P. Lubrano, Ryan J. McCombie, William F. Oldsey and Alice W. Pope (the “Plaintiff Trustees”) made a Formal Demand to Inspect and Copy Corporate Records under Section 5512 (a) of the Pennsylvania Non-Profit Corporation Law of 1988 (“the Inspection Demand”) the Source Material;
Whereas, after the Inspection Demand was rejected by the University, on April 23, 2015, the Plaintiff Trustees filed a Petition to Compel the Inspection of Corporate Documents in the Court of Common Pleas (the “Court”) of Centre County, PA;
Whereas, on November 19, 2015 the Court Ordered the University to provide the Plaintiff Trustees access to the Source Materials;
Whereas, on January 21, 2016, the Alumni-Elected Trustees and the University entered into a Stipulation and Order providing for the conditions under which access to the Source Materials would be provided;
Whereas, other Trustees entered into an agreement with the University providing for the conditions under which access to the Source Materials would be provided to such Trustees;
Whereas, after more than 27 months of review, Plaintiff Trustees presented its written report of the findings (the “Report”) to the Board in an Executive Privileged session;
Whereas, other Trustees who have been provided access to the Source Materials have today presented findings to the Board in an Executive Privileged session today;
Whereas, based on the Report by the Plaintiff Trustees and other Trustees, the Board questions the accuracy, independence and completeness of the Freeh Report and believes that it may not be conclusive in all material respects;
Whereas, in light of the above, including the review and findings of the Plaintiff Trustees and the other Trustees, the Board has determined that the public release of the Report by the Plaintiff Trustees is in the best interest of the University.
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Therefore, be it Resolved that
The Board rejects the conclusions of the Freeh Report and officially repudiates the Freeh Report; and,
The Board hereby authorizes the public release of the Report that the Plaintiff Trustees presented to the Board; and
The Board authorizes General Counsel to engage specialized independent outside litigation counsel to evaluate and recommend claims against Freeh and others, as are appropriate, including but not limited to an action to recover the more than $8.3 million paid by the University to Freeh for the work associated with the Freeh Report.
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