Attorneys for Trustees, Penn State Clash Over Freeh Documents Access
September 08, 2015 1:51 PM
by Michael Martin Garrett
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A group of Penn State trustees has moved one step closer to resolving an issue that has been a source of contentious debate among the full board of trustees.

Attorneys for Penn State and for seven alumni-elected members of the board met in court Tuesday morning to face off over access to the source documents behind the controversial Freeh Report, which was commissioned by the university in the wake of the Jerry Sandusky child sex abuse scandal.

Fiduciary Responsibility

“We’re here as the trustees of a public body seeking access to records owned by the university, which we can’t get access to even though the Pennsylvania State University has been ordered to produce them in litigation to parties in opposition to the university,” said Dan Brier, an attorney for the trustees.

Brier says that the seven trustees behind the petition – Anthony Lubrano, Ted Brown, Barbara Doran, Robert Jubelirer, Ryan McCombie, William Oldsey, and Alice Pope – have a stronger claim to these documents than Penn State's opponents in lawsuits, but have been denied access.

But Joseph O’Dea, an attorney for Penn State, painted the issue in a different light. He argued that the trustees were attempting to act outside the scope of their authority as trustees, twisting principles of law to empower them to circumvent decisions already made by the full board.

Although Brier said the trustees were merely attempting to access information they need to do their jobs as trustees, O’Dea pointed out that the full board has already voted not to review the Freeh Report. Just because the alumni-elects feel they have a duty to review the source materials doesn’t automatically invest them with the authority to do so, he argued.

“If the law only required that the trustees believe in good faith that their conduct is proper and authorized under fiduciary law of the commonwealth, that would turn cooperate governance on its head,” O’Dea said. “It would reek havoc and cause chaos, because any trustee could do whatever they wanted.”

Brier argued that O’Dea misrepresents the trustees’ intentions, and said the trustees need access to the Freeh Report documents because the report plays a crucial role in several lawsuits being waged against the university. He said the trustees need to be able to evaluate the report, which is highly critical of the university, in order to fulfill their duties to Penn State.

“The Freeh Report is a summary of all these documents,” Brier said. “It’s a work of interpretation.”

Confidentiality Concerns

Confidentiality was another point of debate between the two attorneys. Penn State has said the employees interviewed by Louis Freeh were promised confidentiality, and wants to maintain that agreement so employees feel comfortable reporting wrongdoing in the future.

Brier disputed this argument, quoting from Penn State professor emeritus John Nichols who reportedly testified he was warned by Freeh investigators that they could not promise confidentiality.

O’Dea said this argument was inaccurate, claiming that Nichols (like all employees interviewed) was told that Penn State would work to ensure confidentiality, but that the university also had the authority to waive that privilege in certain situations.

“To suggest there was no commitment of confidentiality to interviewees, respectfully, is wrong,” O’Dea said.

Brier also stressed that the alumni-elects were more than willing to agree to confidentiality restrictions, including a written confidentiality agreement and any orders specially presiding Bedford County Judge Daniel Howsare sees fit to enact.

However, O’Dea questioned the intent of the seven trustees and their commitment to confidentiality in the past, noting that details of court settlements and other confidential information has previously been leaked to the press.

Brier has submitted a proposed confidentiality order for the court to consider. O'Dea said he will also draft and submit his own proposed order.

Pending Resolution

Anthony Lubrano says he and his fellow alumni-elected trustees tried to resolve this issue with Penn State before filing their court petition in April.

Lubrano says the trustees and Penn State were unable to agree on the terms of a confidentiality agreement, but maintains that they are willing to agree to certain restrictions if they are able to access all the information they seek.

“I hope we can still reach a settlement but I’m not sure if that’s still possible,” Lubrano says. He thinks Penn State might be too set in its defense to still be open to a settlement, "as if it was us versus them, when we're just trying to do out jobs."

Brier declined to speculate when the issue might be resolved, but final briefs in the case are due by October 1. The invovled parties have previously expressed hopes that the dispute may be resolved by the end of October.


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