Penn State

Trustees sue Penn State over access to Freeh documents

Alumni-elected Penn State trustees Anthony Lubrano, Ted Brown, Barbara Doran, Robert Jubelirer, Ryan McCombie, Bill Oldsey and Alice Pope filed a lawsuit against Penn State on Monday in Centre County court, saying they need access to the Freeh report documents to do their job, making decisions about the university’s major issues.
Alumni-elected Penn State trustees Anthony Lubrano, Ted Brown, Barbara Doran, Robert Jubelirer, Ryan McCombie, Bill Oldsey and Alice Pope filed a lawsuit against Penn State on Monday in Centre County court, saying they need access to the Freeh report documents to do their job, making decisions about the university’s major issues. CDT file photo

Penn State is being sued by several of its own trustees.

On Monday, a lawsuit was filed in Centre County court by alumni-elected trustees who say they need access to the Freeh report documents to do their job, making decisions about the university’s major issues.

Ted Brown, Barbara Doran, Robert Jubelirer, Anthony Lubrano, Ryan McCombie, Bill Oldsey and Alice Pope filed a motion to compel, attempting to force the board leadership and administration to release documents they say are protected by promises made to employees.

“The Freeh (r)eport and its (s)ource (m)aterial profoundly impact the finances, operation, educational opportunities, personnel, policies, administration, reputation and very culture of the (u)niversity,” the motion stated. “The (p)etitioner (t)rustees’ fiduciary oversight responsibilities plainly encompass each of these subjects.”

The goal, they say, is to establish a credible strategic plan, objectively assess whether the data supports the “subjective, hyperbolic and sweeping conclusions” of the report, ensure proper allocation of funds, including those from settlements with victims of Jerry Sandusky, and more.

“Our decision to take this action comes only after repeatedly futile requests over many months,” Oldsey said in a statement.

“We made a good faith effort to reach a compromise but we were simply unsuccessful,” Lubrano said.

Most of the documents generated by Louis Freeh’s investigation at Penn State are still locked up tight, and officials say that will not change.

Penn State President Eric Barron and board of trustees Chairman Keith Masser say they will not change their stance on the confidentiality of documents from Freeh’s look into the Jerry Sandusky child sex abuse scandal.

In November, alumni-elected trustees sought access to the documents to do their own review of Freeh’s controversial report after the full board rejected trustee Al Lord’s request to take a closer look. Barron said he would also conduct his own review. But requests to have unfettered access brought the two sides to an impasse.

The board and administration wanted the scope of access to be narrow, citing the guarantee of privacy and anonymity offered to employees and others interviewed by Freeh’s team.

“I believe strongly that this must be a condition of review,” Barron said in a December statement.

He followed that up Sunday, saying the alumni trustees had renewed their request.

“Unfortunately, on April 15 we received yet another demand by a small group of Penn State trustees to have access to privileged and confidential information, including interviews with (u)niversity employees and others developed as part of the investigation by Judge Louis Freeh three years ago,” Barron and Masser’s statement read.

They said the trustees would not agree to stipulated confidentiality measures. Several of the trustees have said they have attempted to negotiate access with Saul Ewing LLP, a Pittsburgh law firm, where the documents are stored.

“We have rejected their demand. As we have stated in receiving past requests, the (u)niversity intends to honor the promises of confidentiality made to the faculty, staff and others who were interviewed as part of the Freeh investigation,” the administration’s statement read.

Joseph O’Dea Jr., of Saul Ewing, wrote a response to the alumni trustees’ attorney, Daniel Brier, of Myers, Brier and Kelly LLP of Scranton, addressing the seven stipulated trustees. Lord and Adam Taliaferro are not mentioned.

“President Barron and (b)oard leadership do not agree that you have a right or duty to review the (s)ource (m)aterials in order to fulfill your fiduciary duties as (t)rustees,” he wrote.

He also cited the potential for attorney-client privilege issues and work product conflict.

“I suggest before pursuing this matter further, you sign a confidentiality agreement and review the nonprivileged documents that we have made available to you. Any other course of action would subject the (u)niversity to additional and unnecessary burdens and expenditures of resources and is not in the university’s best interest,” O’Dea wrote, claiming that the university would release “literally millions” of documents.

“University leadership also is concerned that the continuing efforts of these trustees to seek this information, especially given their refusal to agree to confidentiality protections, will have a serious negative effect on the level of cooperation the (u)niversity will receive with the investigation of any matters that may arise in the future,” Barron and Masser’s statement said.

However, in his deposition for state Senate Majority Leader Jake Corman’s lawsuit against the NCAA and the university, Freeh’s lead investigator, Omar McNeill, said that interviewees were warned that not all information would safeguarded.

McNeill said employees were warned “that the investigation was being conducted at the request of the university under the privilege that the university had the right to maintain or waive at any time and, therefore, they were to act accordingly.”

Lubrano called Barron and Masser’s statement “highly misleading” and “plainly untrue.”

“Transparency begins with the board of trustees,” Lubrano said in his statement.

This is not the first time the trustees have been on the opposite side of the university they help govern or its affiliates.

Lubrano, McCombie and Taliaferro were part of a lawsuit brought by the family of late football coach Joe Paterno against Penn State and the NCAA but were dismissed from it in September. Ex-trustee Al Clemens remains a party.

Lubrano, Brown, Oldsey and Pope also are suing the Penn State Alumni Association for refusing to put them on the alumni council ballot for next month’s election.

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