The Toothless Accountability Systems Behind the Penn State Scandal

It is unlikely that the key findings from the Freeh report on the Penn State child abuse scandal will make the news. Those findings and recommendations are about how to prevent future failures of governance and administration — rather than focusing on personalities. That is not to say that the big personalities at Penn State – Joe Paterno, former president Graham Spanier, and others not named here— did not play key roles in the events that caused so much personal suffering and led the school over a cliff.

It’s easy to assume that it was only conditions unique to Penn State and specific people there that led to the lurid events of the past year. However, at this time, we see similar crimes taking place elsewhere and similar failures of leadership, organizational management, and responsibility.

So before getting into the wonkish details of the Freeh report, it’s worth a brief consideration of those two men. Paterno and Spanier definitely fell into the category of men who got paid the big bucks. Joe Paterno’s total compensation in 2011 was $1,022,794, and Graham Spanier’s pay was $813,000.

We have all heard said of someone —”That’s why he gets paid the big bucks.” That used to mean that we expected a person in that position to be able to make hard decisions, to make them for the good of the organization, for the good of society. We do not pay the big bucks for the challenging but fun parts of the job. Those parts have their own rewards.

But, although Paterno and Spanier (and others), got paid the big bucks, they did not step up to the responsibilities of people who deserve to get paid the big bucks. They did not make the hard decisions, and they flinched when it came to facing uncomfortable obligations. But that is what a leader is supposed to do— to have courage and a strong moral compass. Instead, they played the role of cheerleaders, boosting morale and making the institution feel good about itself.

Meanwhile, behind all that cheering, the wagons had been circled when it came time to acknowledge that one of the inner circle had violated the law and the trust placed in him.

So, years later, here are some of the wonkish — and shocking — details of what the Freeh report found and recommended. The report identified two key offices that were left without the staff and resources necessary to do their jobs – the General Counsel’s office and the Human Resources department. Had they been properly funded and staffed, this decades long crime might have been stopped years ago. Instead, according to the Freeh report, “The University has no centralized office, officer or committee to oversee institutional compliance with laws, regulations, policies and procedures; certain departments monitored their own compliance issues with very limited resources.”

It is hard to believe, but Penn State had no General Counsel’s office until 2010. Instead, it contracted out most of its legal work to McQuaide Blasko, a law firm in Centre County, Pennsylvania. That outside legal counsel had a serious conflict of interest in the case of Jerry Sandusky, because it was also legal counsel for Jerry Sandusky’s Second Mile and sat on its Board.

When a General Counsel’s office was established in 2010, it was led by Cynthia Baldwin, a former state Supreme Court justice. It had only two attorneys at University Park and two at Penn State Hershey. The university website does not make it easy to identify the attorneys in the GC’s office, but the linked in account of one shows only some experience in corporate law practice and litigation groups at a Pittsburgh law firm and a clerkship for Justice Baldwin. The Freeh report notes, “Baldwin did not seek assistance or advice from an attorney experienced in criminal investigations or conducting internal investigations.”

Having only two attorneys at University Park and two at Penn State Hershey meant that the office was severely understaffed and lacked the wide range of expertise necessary to provide competent advice. In addition, four attorneys is far too few for such a large organization with campuses throughout the state. Penn State’s General Counsel is responsible for overseeing all legal affairs of the University, including the Milton S. Hershey Medical Center and College of Medicine located in Hershey, Pa., the main campus at University Park, 19 campuses across the Commonwealth, and the online World Campus. Not only is the office understaffed, it is unclear how many of the staff have experience working in the general counsel’s office of a major university.

Fortunately, the new General Counsel, who has just come on board, has been vice president and general counsel at Johns Hopkins since 2005. He has announced plans to hire more lawyers, in particular, lawyers with much needed specialties in faculty issues, general employment, intellectual property rights, and regulatory compliance.

The situation in the Human Resources department is also of great concern. It is headed by an sssociate vice president, when it needs to be headed by a vice president who has the clout to ensure compliance. Instead, each school and large departments have their own HR staffs and a tendency to “relax or opt out of university rules and procedures.” The Freeh report observed that the university had over 350 policies and related procedures, but its oversight of compliance was decentralized and uneven. In the case of the Department of Intercollegiate Athletics, which has approximately 800 student-athletes, its compliance office was significantly understaffed. The cost of that understaffing and disarray has not yet stopped rising.

Also understaffed was responsibility for compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). Failure to comply with this law’s mandate to report information about crime on campuses and in surrounding communities can lead to large fines and suspension from participation in the federal financial aid program. Given the stakes, one would think Penn State would have ensured that this responsibility was taken seriously. Instead, Clery Act compliance was given to a sergeant in the University Police Department who was given no formal training until 2007 and was able to devote only minimal time to Clery Act Compliance.

If more evidence was needed that this was not an issue that mattered to the university, the report finds that “no efforts were made to finalize or implement the university’s Clery Act policies as late as November 2011,” even though compliance with laws and regulations was identified as one of the university’s top ten risks. The failure to allocate some small percentage of the pay given to Penn State’s top earners to Clery has cost the university dearly.

Instead, the university operated under its own rules, which could be easily flouted by some people. For example, the the university’s rules required having a memorandum of agreement for all third parties who used university facilities. That requirement should have included Jerry Sandusky’s using Penn State facilities for youth camps at various campuses. However, those rules seem not to have applied to Jerry Sandusky. As a result of not enforcing those rules, Sandusky was able to to make contact with, and sexually assault, several young boys on Penn State campuses.

The Freeh report tries to address this and other problems by recommending that the position of Associate Vice President for Human Resources be upgraded to Vice President and that the VP report directly to the president.

So far, the lessons learned appear to be narrow ones focused on the immediate misdeeds of child abuse.That is not to say that child abuse was not a problem. But the misconduct would have been stopped much earlier had there been an ethos of accountability and honor. It should have been stopped by the ones who got paid the big bucks.

So when we hear the refrain “We Are … Penn State,” we need to face up to who we are at Penn State. And how we must do much, much better. More of us are Penn State than we might think.