Penn State: Lessons Learned Maine Municipal Association October 1, 2014 Presented by: Peter D. Lowe plowe@brannlaw.com (207) 786-3566

Today’s Agenda The Penn State Story as a Case Study Lessons Learned: Investigative Culture of Silence Governance Independence

The Players Gerry Sandusky Joe Paterno Graham Spanier Gary Shultz Tim Curley Mike McQueary James Calhoun - Assistant Coach - “Coach” - President - S.V.P./Treasurer - Athletic Director - Graduate Assistant - Custodian

“It’s a tremendous legacy he’s built over a long period of time “It’s a tremendous legacy he’s built over a long period of time. He has had such loyalty and dedication to the university and the community.” – Athletic Director Tim Curley, 2000

Career Overview Jerry Sandusky starts his coaching career at Penn State University as a Defensive Line Coach. 1969 1977 Sandusky established “The Second Mile” program. 1983 & 1987 Penn State University National Championships. 1999 Sandusky retires.

Scandal Breaks Patriot-News reports grand jury is investigating Sandusky on allegations of indecent assault against a teenage boy. March 2011 November 2011 Jerry Sandusky is indicted.

Sandusky is Found Guilty One June 22, 2012 Sandusky is convicted of child molestation.

Sandusky sentenced to 30 to 60 years "You will serve not less than 30 and no more than 60 years in prison," the Judge told Sandusky. “ That has the unmitigated impact of saying 'the rest of your life in prison.' "

Tragic Misses - 1998 Survivor 6 (11 years old) Showers with Sandusky Police and State investigate No criminal charges Shultz’s email – “no criminal behavior… the matter was closed… and I hope it is now behind us.” Shultz’s notes – “Is this opening Pandora’s box? Other children?”

Tragic Misses - 2000 Custodian James Calhoun witnesses Sandusky sexually assault boy in shower Discussed with co-workers “they’ll get rid of all of us” “football runs this University” Not reported

Tragic Misses - 2002 Graduate Assistant McQueary observes Sandusky sexually assault boy in shower Outcome No police or DHS report No internal investigation Report to Second Mile Surrender keys and “no guests”

The Cover-Up Captured in E-mail Athletic Director Tim Curley to Spanier and Schultz – “After giving it more thought and talking it over with Joe yesterday… I would indicate we feel there is a problem… We feel a responsibility to inform his organization and maybe the other one about the situation.”

The Cover-Up Captured in E-mail President Spanier replies – “This approach is acceptable to me… The only downside for us is if the message isn’t “heard” and acted upon, and then we become vulnerable for not having reported it.”

The Cover-Up Captured in E-mail Senior V.P Schultz’s concurs – “[t]his is a more humane and upfront way to handle this… we will inform his organization. We can play it by ear and decide about the other organization.”

The Consequences Abuses victims for another decade Sandusky jailed for life Schultz, Curley, and Spanier indicted Reputational harm $49 million in fees… and counting Huge civil damages liabilities

The results from a "failure of leadership" What are our obligations…..from a legal perspective and a public relations perspective?

Freeh Report Conclusions Investigation concluded that, the most powerful leaders at the University repeatedly concealed critical facts relating to Sandusky’s child abuse. The investigation revealed: An institution dominated by the culture of reverence for its football program. Chronic investigatory failures. A striking lack of empathy for child abuse victims. A failure by the Board to exercise its oversight functions in 1998 and 2001. A failure by the Board to make reasonable inquiry. A President who discouraged discussion and dissent. A lack of awareness of child abuse issues and whistleblower policies and protections

Lessons Learned Investigate: Gather the Facts Illegal conduct Risk of harm Required by law Required by policy

Failure to Investigate The top dog Risk of reputational harm The highly regarded respondent The less regarded complainant Nothing criminal Hope it blows over

Lessons Learned Overcome the Culture of Silence Understanding of policies and protections Understanding of responsibilities Show that the process works

Lessons Learned Develop a Culture of Accountability Board of Directors President/CEO Senior leadership Risk Management All employees

Lessons Learned Seek Independent Advice

Lessons Learned Crisis Management Avoid knee jerk defensive posture Speak when you have the facts Admit your mistakes… even apologize Manage the media

MAINE MANDATORY REPORTING Required report to department. The following adult persons shall immediately report or cause a report to be made to the department when the person knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected or that a suspicious child death has occurred: When acting in a professional capacity: A teacher; A guidance counselor; A school official; A youth camp administrator or counselor; A social worker The reporter should be reassured that their identity will be protected should their testimony not be needed in court and their immunity from liability if the report was made in good faith.

How To Investigate Use a skilled investigator. Make it a priority. Ask the tough questions. Don’t skimp on interviews. Write a thorough report.

Assessing Credibility Find out who else Complainant told his/her story to. Review personnel files and performance history. Interview supervisors. Interview co-workers (not just eye witnesses).

Explore motive to lie. Examine the consistency of the story. Evaluate demeanor. Consider the details.

The Conclusion of the Investigation The written report: Set the stage. Summarize interviews. Review other evidence. Make factual findings. Explain why you reached your decision.

The consequences: Make your decision after your report is written. Explain your findings and decision to Complainant in writing. Explain your findings and consequences to Respondent in writing.

Questions???