Penn State Trustee "Leaders" Seek to Mandate Unethical Conduct

B_Levinson

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Jun 27, 2014
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To: Penn State Board of Trustees and President
State Senator John Yudichak
American Council of Trustees and Alumni
PSU Alumni Networking


Subject: Penn State Trustee "Leaders" Seek to Mandate Unethical Conduct

Contents
Executive Summary 1
Obligation to Support Group's or Superior's Decision 2
Obligation to Refuse Group's or Superior's Decision 2
The Challenger Disaster 3
Professional Obligations in General 3
Penn State: Dishonest Board Statement of March 2012 4
"Tolerate Those Who Do" is as Unacceptable as "Lie." 5
A False Accusation is a Lie 6
Penn State: Misuse of University Communication Resources 7
Dereliction of Fiduciary Duty 8
Conclusion 8

Executive Summary

The leaders of Penn State's Board of Trustees, as currently directed by Chair Ira Lubert and Vice Chair Mark Dambly, have proposed a change to the Bylaws to prohibit or at least discourage Trustees from publicly criticizing any decision of the Board. As reported in "Penn State board members chafe at proposal limiting public speech" (Philly.com),


Discussed by trustees during a committee meeting Thursday, the proposal calls for the board to "convey a consistent message," and said that "in most instances" the board chair should serve as spokesman. Members are to refrain from talking disparagingly about a board decision because it could damage the university, the proposal states.


Trustees are generally expected to support the decision of the Board even if they do not agree with it, just as subordinates are normally expected to support the decisions of superiors even if they do not agree with them. Trustees and subordinates are however not only permitted but required to refuse to support dishonesty and reckless actions that endanger the organization. The behavior of this Board during almost the past five years (beginning on November 9 2011) illustrates the need for a Penn State freshman course in leadership ethics similar to that taught at the U.S. Military Academy.


The Simon Center for the Professional Military Ethic has some excellent case studies, as does Colonel Larry Donnithorne's The West Point Way of Leadership, as to when Trustees, subordinates, and others in similar positions are absolutely obligated to support the decision of the group (or a superior) and also when they are absolutely prohibited from supporting a decision or even a directive from the group or a superior.


Obligation to Support Group's or Superior's Decision
Donnithorne (p. 139) describes an incident in which the highest ranking cadet officer demurred at the USMA's Commandant's directive to conduct an extra rehearsal for a parade. The Commandant finally had to give him a direct order to do it. This is an example of a situation in which the subordinate is obligated to support a superior's legitimate directive even if he does not agree with it. He is also expected to act toward his own subordinates not as if he is unwillingly carrying out his superior's order, but rather as if he supports it 100 percent. A directive to rehearse for a parade is entirely legitimate regardless of whether those who receive the directive believe it is necessary.


Obligation to Refuse Group's or Superior's Decision
The Cadet Character Development Program Tactical Officer and Noncommissioned Officer Workbook includes scenarios in which a subordinate not only need not, but must not, comply with a superior's directive or a group's decision.


"It is Sunday evening and your company activities staff has organized a dinner following recall formation. This is an optional meal where cadets must sign a rations roster in order to eat the meal. You came back to West Point later that night from a trip section and were not able to attend the company dinner. There was no food left over by the time that you arrived back to your room."

"On Monday evening, one of the activity staff stops in at your room. They say that not everyone signed for the food at the company dinner and that you need to sign the rations roster. They also say that if they do not get the required amount of signatures to justify the money spent that events like this meal won’t be able to happen in the future."


The cadet not only need not sign the rations roster, he or she must not sign it because doing so is a false statement (lying) even though the cadet does not benefit personally. The reference explains, "Signing a form is a method of communication and is meant to verify that the information on the signed document is accurate. In this case if the cadet signed the rations sheet it would be a false statement, and possible Honor violation."


Here is another scenario in which a cadet must refuse a superior's directive.


"CDT X is at the football game and his Platoon Leader, CDT Y, calls him over. CDT Y and his friends put some additional medals, rank, and badges on CDT X’s uniform and send him on a mission. The mission is to go into the crowd of the opposing team and bring back some women for CDT Y and friends to meet. CDT X doesn’t feel comfortable with this mission. He knows that he hasn’t earned the medals and badges, but CDT Y told him that it was ok to go do this. What should CDT X do?"


Cadet X is not only permitted but required to refuse his platoon leader's instruction to wear decorations to which he is not entitled, and also to refuse to use his West Point insignia inappropriately to pick up women for his platoon leader and his friends. The reference explains, "Does this action warrant a violation under the lying tenet of the Cadet Honor Code? Wearing unearned badges is a form of communication with the intent to deceive." Furthermore, if Cadet X complies with this directive, "In this case a selfish act aimed at meeting women has the potential to damage the trust of several layers of units in the Corps, as well as break the trust of some of the American people with their Army."


The Challenger Disaster
If a professional engineer (P.E.) is on a committee that decides to launch a space shuttle under weather conditions outside those for which the O rings are specified, he or she is not only permitted but required to refuse to support his superior's and/or the group's decision to jeopardize astronauts and a multibillion dollar piece of equipment. The National Society of Professional Engineers provides ethics case studies similar to this one frequently, and the answer is always the same; an engineer cannot under any circumstances support a decision to endanger human safety.


Roger Boisjoly, P.E., fulfilled his duty to object to the Challenger launch, as did Bob Eberling and two other engineers. Their objections were overruled which lead to the black humor observation that NASA stood for Need Another Seven Astronauts, and it is surprising that NASA could get any astronauts after its recklessness caused seven deaths and set the U.S. space program back several years. In any event, the four engineers in question were the only individuals to emerge from the debacle with their credibility and honor intact.


Professional Obligations in General
The Challenger disaster, as well as the National Society of Professional Engineers' Code of Ethics, shows why it is not merely ridiculous but outrageous to expect a P.E. to support a superior's and/or group's decision to jeopardize the public safety. The Code of Ethics says very explicitly, "If engineers' judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate." This means that, if the engineer's judgment is overruled, his or her first obligation is to notify his employer or client but, if the latter insist on (for example) using substandard materials to build a bridge or skyscraper, or take shortcuts to save money at the expense of safety, the engineer's duty is to go over or around the employer or client by notifying the appropriate regulatory authorities.


The same principle almost certainly applies to a medical doctor who is directed to take shortcuts that deliver substandard care to a patient, a certified public accountant who is directed to provide false information to stockholders and/or the Internal Revenue Service, or a licensed trade worker like an electrician whose employer tells him to violate construction codes to save money by not doing the job properly. Penn State's Board of Trustees cannot similarly direct any Trustee to support, even with complicit silence, the dishonesty and dereliction of fiduciary duty that have been the rule rather than the exception at Penn State beginning November 9 2011.


Penn State: Dishonest Board Statement of March 2012
This is what Penn State's Board of Trustees told the Penn State community and the public in March 2012 (http://www.npr.org/sections/thetwo-...paterno-was-fired-after-failure-of-leadership).


"While Coach Paterno did his legal duty by reporting that information the next day, Sunday, March 3, to his immediate superior, the then Penn State Athletic Director Tim Curley, the Board reasonably inferred that he did not call police. We determined that his decision to do his minimum legal duty and not to do more to follow up constituted a failure of leadership by Coach Paterno. …At about 9 pm, we unanimously made the difficult decision that Coach Paterno’s failure of leadership required his removal as football coach."


This statement by itself indicates that every single Board member who was a party to this statement is incompetent, dishonest, or both. If anybody was supposed to have called the police, that was Mike McQueary when he saw whatever it was he thought he might have possibly seen, when the police could have actually done something about it. McQueary, however, later testified under oath that he did not see anything he deemed reportable to police. His father and Dr. Dranov, both of whom are apparently mandated child abuse reporters, did not advise him to call the police when he told them the same story he probably told Joe Paterno.


Paterno was supposed to report McQueary's concerns to the appropriate person (Athletic Director Tim Curley), which he did, and then keep his hands off the ensuing investigation, which he also did. This is also the NCAA's current written policy: you report the allegation to the designated person, and then you keep your hands off. You do not "do more," "follow up," or run your own investigation. Another way of saying this is that the Trustees admitted to firing Paterno for following what was then University policy and is definitely now NCAA policy.


Far more damning, however, is former Board Chairman Keith Masser's sworn testimony in State Senator Corman's lawsuit against the NCAA (http://onwardstate.com/2015/01/19/board-chairman-still-thinks-paterno-wasnt-fired/).


“The decision to remove Coach Paterno had nothing to do with what he had known, what he hadn’t done. It was based upon the distraction of having him on the sidelines would have caused the university and the current football team harm. It had nothing to do with what Coach Paterno had done, or hadn’t done.”


Merck CEO and former Trustee Kenneth Frazier testified similarly although not as explicitly to the effect that Paterno had been fired solely for public relations reasons (http://av.pasenategop.com/ncaa/discovery/depositions/ken-frazier/transcripts/frazier.pdf).


"Just as I said in the case of Mr. Curly, my initial feeling was, when I first heard about this, that the facts had not been established and we needed to be careful to make sure we understood the facts. As I was in -- in that 48-hour time period read the grand jury presentment, I reached the conclusion that given what had become public about the issues leading up to the presentment and given what was said in the presentment itself about Coach Paterno's testimony and about what the graduate student said to Coach Paterno, I felt that it would not send the right message if Coach Paterno was able to lead the football team out onto the field of play under those circumstances. So I didn't change my mind on the question of whether we had established all the key facts that related to Coach Paterno's involvement and/or responsibility. But I had reached the conclusion that, from the standpoint of what the University's values would be interpreted to be by the broader public, that what was known was sufficiently serious as it relates to child sexual abuse that it would send the wrong message about our values as a University if Coach Paterno were allowed to coach as though none of this had ever happened."


If Paterno was removed not for anything he had or had not done, he was not removed for failure of leadership. This puts every single Trustee who was a party to the unanimous March 2012 statement into the "lie, or tolerate those who do" category of the USMA's Honor Code. This includes not only the Board's leaders such as Karen Peetz, Kenneth Frazier, Keith Eckel, Keith Masser, Ira Lubert, Mark Dambly, and then-Chairman John Surma, but also former Penn State President Rodney Erickson (if an ex-officio Trustee) and also former Governor Tom Corbett in his capacity as an ex officio Trustee, and indeed everybody else involved except for the one Trustee who later distanced himself from the Board's actions.


"Tolerate Those Who Do" is as Unacceptable as "Lie."
Some of the former Alumni Trustees such as Paul Suhey, Joel Myers, Anne Riley, and Stephanie Deviney complained to one degree or another about how badly the alumni treated them during the subsequent elections, while others such as Jesse Arnelle did not seek reelection. The alumni recognized that these individuals were probably followers ("sheep") rather than leaders, and that the Board's inner circle may have even issued the purportedly "unanimous" statement without their consent or permission. They did not however receive any sympathy because of the "tolerate those who do" issue.


Their silence supported the group's dishonest and dishonorable statement, which makes them almost as culpable as those who actually wrote and published it. If they knew that the Board had fired Paterno solely for public relations reasons, and Keith Masser's testimony suggests that that was the case, they had an obligation to distance themselves from the dishonest statement as soon as it was published. They had to step up and say, "No, that is not what happened" or "No, I did not and do not support that decision."


It is also to be remembered what happened to all the slaves who yelled "I'm Spartacus!" in the movie, although their conduct was honorable rather than dishonorable. The former Alumni Trustees, on the other hand, proclaimed in effect, "I'm John Surma!" "No, I'm John Surma!" so they were accordingly treated like John Surma, the Board Chairman who orchestrated Paterno's dismissal and posthumous defamation. When you make yourself a willing party to a bad decision you get crucified, in one manner or another, right along with the ringleaders. This is why the alumni fired Joel Myers, Paul Suhey, Anne Riley, and Stephanie Deviney while Jesse Arnelle and others chose to not seek reelection.


A False Accusation is a Lie
A Google search on "honor code" and "false accusation" makes it very clear that it is an honor code violation to knowingly levy a false accusation against another person. Here is what Kenneth Frazier said about Joe Paterno and others in July 2012. http://articles.mcall.com/2012-07-1...tate-trustees-trustee-kenneth-frazier-spanier


"People who were in a position to protect children and to confront a predator, including people at the highest levels of responsibility in the university, specifically Graham Spanier, Joe Paterno, Tim Curley and Gary Schultz, did not put the welfare of children first," Frazier said.


It has already been shown that Joe Paterno did exactly what University policy called upon him to do, and also that Mr. Frazier himself acknowledged that Paterno had been fired solely for public relations reasons. Graham Spanier is meanwhile suing Penn State because of what Frazier and other Trustees said about him. See http://freehreport.com/wp-content/uploads/2015/03/1-Complaint-in-Spanier-v.-Freeh-and-Penn-State.pdf which names Frazier along with Karen Peetz, Keith Masser, and Rodney Erickson.


The USMA exercises ask cadets to envision how a seemingly minor lapse in judgment (such as being photographed at a party where people are using marijuana, even though the cadet does not smoke any) will affect the way his or her future peers, superiors, and subordinates will think of him. It is therefore difficult to understand how any Trustee can, after scapegoating a subordinate and then lying about the circumstances of his dismissal, continue to command the trust, respect, or confidence of peers, subordinates, customers, or business associates, or serve as a credible role model for any Penn State student or recent graduate.


Penn State: Misuse of University Communication Resources
In 2014, unknown members of the Board of Trustees directed spokesperson David La Torre to issue a false and defamatory attack, using Penn State's communication resources and name, on five Trustees who performed their fiduciary duty by joining a lawsuit against the NCAA (http://www.centredaily.com/2013/08/20/3746233/penn-state-board-responds-to-trustees.html).


"A spokesman said the leaders of the board have “serious concerns” about Peter Khoury and other trustees, including Anthony Lubrano and Alvin Clemens, who’ve joined the Paterno family’s lawsuit to reverse the NCAA sanctions against Penn State. Board spokesman David La Torre said their action creates a conflict of interest spelled out in the university’s bylaws. "

"…La Torre said the trustees’ filing a lawsuit exceeds their authority and conflicts with Penn State’s official position and interests."

"“Board leadership, with the advice of the legal subcommittee, has serious concerns that the role of the five trustees as plaintiffs in the litigation against the NCAA creates conflicts of interest under the trustees’ conflict of interest policies in the university’s bylaws,” La Torre said. “The complaint itself contains numerous allegations and claims that do not represent positions that the university has taken and conflict with the university’s position and interests.”"


· Mr. La Torre is paid by the University, and is therefore a University resource. The same goes for other University communication channels that are making statements of this nature on Penn State's behalf.

· The accusation is, in the absence of qualification, false, because the plaintiff Trustees (Lubrano, McCombie, Taliaferro, and Clemens) have nothing to gain personally from the lawsuit's success, although the University to which they owe fiduciary responsibility certainly does. The Commonwealth Court, in fact (opinion of Judge Pellegrini, which he says is shared by the other judges, document issued 4/09/2014), said in effect that the Board was derelict in its fiduciary duty for failing to challenge the sanctions.

· The above statement is false because, noting that the Board of Trustees never voted to affirm the Freeh Report or accept the NCAA sanctions, the University has no position with which the lawsuit can conflict.

· La Torre's statement acknowledges that the Board's leaders, as opposed to the Board as a whole, have the concerns. This means he is speaking on behalf of a Trustee faction, and not on behalf of the Board or the University.


This misuse of University communication resources therefore constitutes lying on the part of those who actually directed the publication of these statements, toleration on the part of any Trustee who acquiesced to this course of action, and also a contravention of the Board's fiduciary duty to protect the interests of Penn State rather than cover up for the poor decisions of Keith Masser, Kenneth Frazier, Karen Peetz, Keith Eckel, Mark Dambly, John Surma, and so on. (Lubert left the Board for a period of time, so he might not have been a party to this action.)


Dereliction of Fiduciary Duty
Commonwealth Court Judge Pellegrini opined that the Board's failure to challenge the NCAA's sanctions and also to supervise Rodney Erickson (who acquiesced to the sanctions without a vote by the Board) constituted dereliction of fiduciary duty. http://www.pacourts.us/assets/opinions/Commonwealth/out/1MD13_4-9-14.pdf?cb=1, page 37, labeled DRP-5


"The majority appears to arrive at this outcome because it is bewildered, as I am, by how the Board of Trustees of PSU could have approved or allowed to be executed a “Consent Decree” involving the expenditure of $60 million of PSU funds when the Consent Decree specifically states that the matter “ordinarily would not be actionable by the NCAA.” If, as the majority suggests, the NCAA did not have jurisdiction over conduct because it did not involve the regulation of athletics, then the expenditure of those funds is problematic, given that PSU is a non-profit corporation as well as being tax-exempt as a charitable organization, and that Boards of Directors of non-profit charitable corporations have a fiduciary duty to ensure that funds are only used for matters related to its charitable purpose – in this case, the students of PSU. See 15 Pa. C.S. §5712. Moreover, the majority position is understandable given the lax supervision by those responsible for insuring that non-profit and charitable organizations operate as non-profit and charitable organizations as well as their failure to take action against Boards of Directors and Officers who use funds of a non-profit and/or charitable entity to pay funds that they are not legally obligated to pay and/or expend funds not related to their charitable purpose or who no longer act as a charity."


The clarity we have from Judge Pellegrini's opinion is that the same Trustees who lied about the circumstances of Coach Paterno's dismissal, or tolerated the lie by allowing themselves to be made parties to it, not only failed to perform their fiduciary duty but orchestrated or tolerated the misuse of University communication resources and the University's name to make false public statements about the handful of Trustees who did perform their fiduciary duty.


Conclusion
The Board's clear, obvious, and gross ethical failures have brought nothing but discredit on Penn State and the Board itself during the past several years. The Board's inner circle has nonetheless stepped up to implement a new rule to require other Trustees to support reckless, irresponsible, and dishonest decisions such as those that have plagued Penn State during the past years. We therefore need to make some things very clear to the Board and the entire Penn State community.


· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to a dishonest act such as scapegoating a subordinate and then publishing a defamatory falsehood about the circumstances of the subordinate's dismissal. One must, in fact, refuse to be a party to a dishonest act by denouncing it or saying he does not support the dishonest statement.

· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to dereliction of fiduciary duty as practiced by this Board regarding its failure to challenge the NCAA's illegitimate sanctions. A Trustee, in contrast, has a duty to perform his or her fiduciary duty regardless of peer pressure or directives to the contrary.



Regards,




William A. Levinson B.S. '78
 

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To: Penn State Board of Trustees and President
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Subject: Penn State Trustee "Leaders" Seek to Mandate Unethical Conduct

Contents
Executive Summary 1
Obligation to Support Group's or Superior's Decision 2
Obligation to Refuse Group's or Superior's Decision 2
The Challenger Disaster 3
Professional Obligations in General 3
Penn State: Dishonest Board Statement of March 2012 4
"Tolerate Those Who Do" is as Unacceptable as "Lie." 5
A False Accusation is a Lie 6
Penn State: Misuse of University Communication Resources 7
Dereliction of Fiduciary Duty 8
Conclusion 8

Executive Summary

The leaders of Penn State's Board of Trustees, as currently directed by Chair Ira Lubert and Vice Chair Mark Dambly, have proposed a change to the Bylaws to prohibit or at least discourage Trustees from publicly criticizing any decision of the Board. As reported in "Penn State board members chafe at proposal limiting public speech" (Philly.com),


Discussed by trustees during a committee meeting Thursday, the proposal calls for the board to "convey a consistent message," and said that "in most instances" the board chair should serve as spokesman. Members are to refrain from talking disparagingly about a board decision because it could damage the university, the proposal states.


Trustees are generally expected to support the decision of the Board even if they do not agree with it, just as subordinates are normally expected to support the decisions of superiors even if they do not agree with them. Trustees and subordinates are however not only permitted but required to refuse to support dishonesty and reckless actions that endanger the organization. The behavior of this Board during almost the past five years (beginning on November 9 2011) illustrates the need for a Penn State freshman course in leadership ethics similar to that taught at the U.S. Military Academy.


The Simon Center for the Professional Military Ethic has some excellent case studies, as does Colonel Larry Donnithorne's The West Point Way of Leadership, as to when Trustees, subordinates, and others in similar positions are absolutely obligated to support the decision of the group (or a superior) and also when they are absolutely prohibited from supporting a decision or even a directive from the group or a superior.


Obligation to Support Group's or Superior's Decision
Donnithorne (p. 139) describes an incident in which the highest ranking cadet officer demurred at the USMA's Commandant's directive to conduct an extra rehearsal for a parade. The Commandant finally had to give him a direct order to do it. This is an example of a situation in which the subordinate is obligated to support a superior's legitimate directive even if he does not agree with it. He is also expected to act toward his own subordinates not as if he is unwillingly carrying out his superior's order, but rather as if he supports it 100 percent. A directive to rehearse for a parade is entirely legitimate regardless of whether those who receive the directive believe it is necessary.


Obligation to Refuse Group's or Superior's Decision
The Cadet Character Development Program Tactical Officer and Noncommissioned Officer Workbook includes scenarios in which a subordinate not only need not, but must not, comply with a superior's directive or a group's decision.


"It is Sunday evening and your company activities staff has organized a dinner following recall formation. This is an optional meal where cadets must sign a rations roster in order to eat the meal. You came back to West Point later that night from a trip section and were not able to attend the company dinner. There was no food left over by the time that you arrived back to your room."

"On Monday evening, one of the activity staff stops in at your room. They say that not everyone signed for the food at the company dinner and that you need to sign the rations roster. They also say that if they do not get the required amount of signatures to justify the money spent that events like this meal won’t be able to happen in the future."


The cadet not only need not sign the rations roster, he or she must not sign it because doing so is a false statement (lying) even though the cadet does not benefit personally. The reference explains, "Signing a form is a method of communication and is meant to verify that the information on the signed document is accurate. In this case if the cadet signed the rations sheet it would be a false statement, and possible Honor violation."


Here is another scenario in which a cadet must refuse a superior's directive.


"CDT X is at the football game and his Platoon Leader, CDT Y, calls him over. CDT Y and his friends put some additional medals, rank, and badges on CDT X’s uniform and send him on a mission. The mission is to go into the crowd of the opposing team and bring back some women for CDT Y and friends to meet. CDT X doesn’t feel comfortable with this mission. He knows that he hasn’t earned the medals and badges, but CDT Y told him that it was ok to go do this. What should CDT X do?"


Cadet X is not only permitted but required to refuse his platoon leader's instruction to wear decorations to which he is not entitled, and also to refuse to use his West Point insignia inappropriately to pick up women for his platoon leader and his friends. The reference explains, "Does this action warrant a violation under the lying tenet of the Cadet Honor Code? Wearing unearned badges is a form of communication with the intent to deceive." Furthermore, if Cadet X complies with this directive, "In this case a selfish act aimed at meeting women has the potential to damage the trust of several layers of units in the Corps, as well as break the trust of some of the American people with their Army."


The Challenger Disaster
If a professional engineer (P.E.) is on a committee that decides to launch a space shuttle under weather conditions outside those for which the O rings are specified, he or she is not only permitted but required to refuse to support his superior's and/or the group's decision to jeopardize astronauts and a multibillion dollar piece of equipment. The National Society of Professional Engineers provides ethics case studies similar to this one frequently, and the answer is always the same; an engineer cannot under any circumstances support a decision to endanger human safety.


Roger Boisjoly, P.E., fulfilled his duty to object to the Challenger launch, as did Bob Eberling and two other engineers. Their objections were overruled which lead to the black humor observation that NASA stood for Need Another Seven Astronauts, and it is surprising that NASA could get any astronauts after its recklessness caused seven deaths and set the U.S. space program back several years. In any event, the four engineers in question were the only individuals to emerge from the debacle with their credibility and honor intact.


Professional Obligations in General
The Challenger disaster, as well as the National Society of Professional Engineers' Code of Ethics, shows why it is not merely ridiculous but outrageous to expect a P.E. to support a superior's and/or group's decision to jeopardize the public safety. The Code of Ethics says very explicitly, "If engineers' judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate." This means that, if the engineer's judgment is overruled, his or her first obligation is to notify his employer or client but, if the latter insist on (for example) using substandard materials to build a bridge or skyscraper, or take shortcuts to save money at the expense of safety, the engineer's duty is to go over or around the employer or client by notifying the appropriate regulatory authorities.


The same principle almost certainly applies to a medical doctor who is directed to take shortcuts that deliver substandard care to a patient, a certified public accountant who is directed to provide false information to stockholders and/or the Internal Revenue Service, or a licensed trade worker like an electrician whose employer tells him to violate construction codes to save money by not doing the job properly. Penn State's Board of Trustees cannot similarly direct any Trustee to support, even with complicit silence, the dishonesty and dereliction of fiduciary duty that have been the rule rather than the exception at Penn State beginning November 9 2011.


Penn State: Dishonest Board Statement of March 2012
This is what Penn State's Board of Trustees told the Penn State community and the public in March 2012 (http://www.npr.org/sections/thetwo-...paterno-was-fired-after-failure-of-leadership).


"While Coach Paterno did his legal duty by reporting that information the next day, Sunday, March 3, to his immediate superior, the then Penn State Athletic Director Tim Curley, the Board reasonably inferred that he did not call police. We determined that his decision to do his minimum legal duty and not to do more to follow up constituted a failure of leadership by Coach Paterno. …At about 9 pm, we unanimously made the difficult decision that Coach Paterno’s failure of leadership required his removal as football coach."


This statement by itself indicates that every single Board member who was a party to this statement is incompetent, dishonest, or both. If anybody was supposed to have called the police, that was Mike McQueary when he saw whatever it was he thought he might have possibly seen, when the police could have actually done something about it. McQueary, however, later testified under oath that he did not see anything he deemed reportable to police. His father and Dr. Dranov, both of whom are apparently mandated child abuse reporters, did not advise him to call the police when he told them the same story he probably told Joe Paterno.


Paterno was supposed to report McQueary's concerns to the appropriate person (Athletic Director Tim Curley), which he did, and then keep his hands off the ensuing investigation, which he also did. This is also the NCAA's current written policy: you report the allegation to the designated person, and then you keep your hands off. You do not "do more," "follow up," or run your own investigation. Another way of saying this is that the Trustees admitted to firing Paterno for following what was then University policy and is definitely now NCAA policy.


Far more damning, however, is former Board Chairman Keith Masser's sworn testimony in State Senator Corman's lawsuit against the NCAA (http://onwardstate.com/2015/01/19/board-chairman-still-thinks-paterno-wasnt-fired/).


“The decision to remove Coach Paterno had nothing to do with what he had known, what he hadn’t done. It was based upon the distraction of having him on the sidelines would have caused the university and the current football team harm. It had nothing to do with what Coach Paterno had done, or hadn’t done.”


Merck CEO and former Trustee Kenneth Frazier testified similarly although not as explicitly to the effect that Paterno had been fired solely for public relations reasons (http://av.pasenategop.com/ncaa/discovery/depositions/ken-frazier/transcripts/frazier.pdf).


"Just as I said in the case of Mr. Curly, my initial feeling was, when I first heard about this, that the facts had not been established and we needed to be careful to make sure we understood the facts. As I was in -- in that 48-hour time period read the grand jury presentment, I reached the conclusion that given what had become public about the issues leading up to the presentment and given what was said in the presentment itself about Coach Paterno's testimony and about what the graduate student said to Coach Paterno, I felt that it would not send the right message if Coach Paterno was able to lead the football team out onto the field of play under those circumstances. So I didn't change my mind on the question of whether we had established all the key facts that related to Coach Paterno's involvement and/or responsibility. But I had reached the conclusion that, from the standpoint of what the University's values would be interpreted to be by the broader public, that what was known was sufficiently serious as it relates to child sexual abuse that it would send the wrong message about our values as a University if Coach Paterno were allowed to coach as though none of this had ever happened."


If Paterno was removed not for anything he had or had not done, he was not removed for failure of leadership. This puts every single Trustee who was a party to the unanimous March 2012 statement into the "lie, or tolerate those who do" category of the USMA's Honor Code. This includes not only the Board's leaders such as Karen Peetz, Kenneth Frazier, Keith Eckel, Keith Masser, Ira Lubert, Mark Dambly, and then-Chairman John Surma, but also former Penn State President Rodney Erickson (if an ex-officio Trustee) and also former Governor Tom Corbett in his capacity as an ex officio Trustee, and indeed everybody else involved except for the one Trustee who later distanced himself from the Board's actions.


"Tolerate Those Who Do" is as Unacceptable as "Lie."
Some of the former Alumni Trustees such as Paul Suhey, Joel Myers, Anne Riley, and Stephanie Deviney complained to one degree or another about how badly the alumni treated them during the subsequent elections, while others such as Jesse Arnelle did not seek reelection. The alumni recognized that these individuals were probably followers ("sheep") rather than leaders, and that the Board's inner circle may have even issued the purportedly "unanimous" statement without their consent or permission. They did not however receive any sympathy because of the "tolerate those who do" issue.


Their silence supported the group's dishonest and dishonorable statement, which makes them almost as culpable as those who actually wrote and published it. If they knew that the Board had fired Paterno solely for public relations reasons, and Keith Masser's testimony suggests that that was the case, they had an obligation to distance themselves from the dishonest statement as soon as it was published. They had to step up and say, "No, that is not what happened" or "No, I did not and do not support that decision."


It is also to be remembered what happened to all the slaves who yelled "I'm Spartacus!" in the movie, although their conduct was honorable rather than dishonorable. The former Alumni Trustees, on the other hand, proclaimed in effect, "I'm John Surma!" "No, I'm John Surma!" so they were accordingly treated like John Surma, the Board Chairman who orchestrated Paterno's dismissal and posthumous defamation. When you make yourself a willing party to a bad decision you get crucified, in one manner or another, right along with the ringleaders. This is why the alumni fired Joel Myers, Paul Suhey, Anne Riley, and Stephanie Deviney while Jesse Arnelle and others chose to not seek reelection.


A False Accusation is a Lie
A Google search on "honor code" and "false accusation" makes it very clear that it is an honor code violation to knowingly levy a false accusation against another person. Here is what Kenneth Frazier said about Joe Paterno and others in July 2012. http://articles.mcall.com/2012-07-1...tate-trustees-trustee-kenneth-frazier-spanier


"People who were in a position to protect children and to confront a predator, including people at the highest levels of responsibility in the university, specifically Graham Spanier, Joe Paterno, Tim Curley and Gary Schultz, did not put the welfare of children first," Frazier said.


It has already been shown that Joe Paterno did exactly what University policy called upon him to do, and also that Mr. Frazier himself acknowledged that Paterno had been fired solely for public relations reasons. Graham Spanier is meanwhile suing Penn State because of what Frazier and other Trustees said about him. See http://freehreport.com/wp-content/uploads/2015/03/1-Complaint-in-Spanier-v.-Freeh-and-Penn-State.pdf which names Frazier along with Karen Peetz, Keith Masser, and Rodney Erickson.


The USMA exercises ask cadets to envision how a seemingly minor lapse in judgment (such as being photographed at a party where people are using marijuana, even though the cadet does not smoke any) will affect the way his or her future peers, superiors, and subordinates will think of him. It is therefore difficult to understand how any Trustee can, after scapegoating a subordinate and then lying about the circumstances of his dismissal, continue to command the trust, respect, or confidence of peers, subordinates, customers, or business associates, or serve as a credible role model for any Penn State student or recent graduate.


Penn State: Misuse of University Communication Resources
In 2014, unknown members of the Board of Trustees directed spokesperson David La Torre to issue a false and defamatory attack, using Penn State's communication resources and name, on five Trustees who performed their fiduciary duty by joining a lawsuit against the NCAA (http://www.centredaily.com/2013/08/20/3746233/penn-state-board-responds-to-trustees.html).


"A spokesman said the leaders of the board have “serious concerns” about Peter Khoury and other trustees, including Anthony Lubrano and Alvin Clemens, who’ve joined the Paterno family’s lawsuit to reverse the NCAA sanctions against Penn State. Board spokesman David La Torre said their action creates a conflict of interest spelled out in the university’s bylaws. "

"…La Torre said the trustees’ filing a lawsuit exceeds their authority and conflicts with Penn State’s official position and interests."

"“Board leadership, with the advice of the legal subcommittee, has serious concerns that the role of the five trustees as plaintiffs in the litigation against the NCAA creates conflicts of interest under the trustees’ conflict of interest policies in the university’s bylaws,” La Torre said. “The complaint itself contains numerous allegations and claims that do not represent positions that the university has taken and conflict with the university’s position and interests.”"


· Mr. La Torre is paid by the University, and is therefore a University resource. The same goes for other University communication channels that are making statements of this nature on Penn State's behalf.

· The accusation is, in the absence of qualification, false, because the plaintiff Trustees (Lubrano, McCombie, Taliaferro, and Clemens) have nothing to gain personally from the lawsuit's success, although the University to which they owe fiduciary responsibility certainly does. The Commonwealth Court, in fact (opinion of Judge Pellegrini, which he says is shared by the other judges, document issued 4/09/2014), said in effect that the Board was derelict in its fiduciary duty for failing to challenge the sanctions.

· The above statement is false because, noting that the Board of Trustees never voted to affirm the Freeh Report or accept the NCAA sanctions, the University has no position with which the lawsuit can conflict.

· La Torre's statement acknowledges that the Board's leaders, as opposed to the Board as a whole, have the concerns. This means he is speaking on behalf of a Trustee faction, and not on behalf of the Board or the University.


This misuse of University communication resources therefore constitutes lying on the part of those who actually directed the publication of these statements, toleration on the part of any Trustee who acquiesced to this course of action, and also a contravention of the Board's fiduciary duty to protect the interests of Penn State rather than cover up for the poor decisions of Keith Masser, Kenneth Frazier, Karen Peetz, Keith Eckel, Mark Dambly, John Surma, and so on. (Lubert left the Board for a period of time, so he might not have been a party to this action.)


Dereliction of Fiduciary Duty
Commonwealth Court Judge Pellegrini opined that the Board's failure to challenge the NCAA's sanctions and also to supervise Rodney Erickson (who acquiesced to the sanctions without a vote by the Board) constituted dereliction of fiduciary duty. http://www.pacourts.us/assets/opinions/Commonwealth/out/1MD13_4-9-14.pdf?cb=1, page 37, labeled DRP-5


"The majority appears to arrive at this outcome because it is bewildered, as I am, by how the Board of Trustees of PSU could have approved or allowed to be executed a “Consent Decree” involving the expenditure of $60 million of PSU funds when the Consent Decree specifically states that the matter “ordinarily would not be actionable by the NCAA.” If, as the majority suggests, the NCAA did not have jurisdiction over conduct because it did not involve the regulation of athletics, then the expenditure of those funds is problematic, given that PSU is a non-profit corporation as well as being tax-exempt as a charitable organization, and that Boards of Directors of non-profit charitable corporations have a fiduciary duty to ensure that funds are only used for matters related to its charitable purpose – in this case, the students of PSU. See 15 Pa. C.S. §5712. Moreover, the majority position is understandable given the lax supervision by those responsible for insuring that non-profit and charitable organizations operate as non-profit and charitable organizations as well as their failure to take action against Boards of Directors and Officers who use funds of a non-profit and/or charitable entity to pay funds that they are not legally obligated to pay and/or expend funds not related to their charitable purpose or who no longer act as a charity."


The clarity we have from Judge Pellegrini's opinion is that the same Trustees who lied about the circumstances of Coach Paterno's dismissal, or tolerated the lie by allowing themselves to be made parties to it, not only failed to perform their fiduciary duty but orchestrated or tolerated the misuse of University communication resources and the University's name to make false public statements about the handful of Trustees who did perform their fiduciary duty.


Conclusion
The Board's clear, obvious, and gross ethical failures have brought nothing but discredit on Penn State and the Board itself during the past several years. The Board's inner circle has nonetheless stepped up to implement a new rule to require other Trustees to support reckless, irresponsible, and dishonest decisions such as those that have plagued Penn State during the past years. We therefore need to make some things very clear to the Board and the entire Penn State community.


· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to a dishonest act such as scapegoating a subordinate and then publishing a defamatory falsehood about the circumstances of the subordinate's dismissal. One must, in fact, refuse to be a party to a dishonest act by denouncing it or saying he does not support the dishonest statement.

· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to dereliction of fiduciary duty as practiced by this Board regarding its failure to challenge the NCAA's illegitimate sanctions. A Trustee, in contrast, has a duty to perform his or her fiduciary duty regardless of peer pressure or directives to the contrary.



Regards,




William A. Levinson B.S. '78
Integrity, this is what we are fighting for. Very well written. This embodies Success with Honor. Each and every OGBoT should be ashamed and humiliated when reading this. Is their conduct what we want our students to look up to and follow? NO. Do the right thing and make a differencence.
 
Sep 11, 2011
14
17
1
F
To: Penn State Board of Trustees and President
State Senator John Yudichak
American Council of Trustees and Alumni
PSU Alumni Networking


Subject: Penn State Trustee "Leaders" Seek to Mandate Unethical Conduct

Contents
Executive Summary 1
Obligation to Support Group's or Superior's Decision 2
Obligation to Refuse Group's or Superior's Decision 2
The Challenger Disaster 3
Professional Obligations in General 3
Penn State: Dishonest Board Statement of March 2012 4
"Tolerate Those Who Do" is as Unacceptable as "Lie." 5
A False Accusation is a Lie 6
Penn State: Misuse of University Communication Resources 7
Dereliction of Fiduciary Duty 8
Conclusion 8

Executive Summary

The leaders of Penn State's Board of Trustees, as currently directed by Chair Ira Lubert and Vice Chair Mark Dambly, have proposed a change to the Bylaws to prohibit or at least discourage Trustees from publicly criticizing any decision of the Board. As reported in "Penn State board members chafe at proposal limiting public speech" (Philly.com),


Discussed by trustees during a committee meeting Thursday, the proposal calls for the board to "convey a consistent message," and said that "in most instances" the board chair should serve as spokesman. Members are to refrain from talking disparagingly about a board decision because it could damage the university, the proposal states.


Trustees are generally expected to support the decision of the Board even if they do not agree with it, just as subordinates are normally expected to support the decisions of superiors even if they do not agree with them. Trustees and subordinates are however not only permitted but required to refuse to support dishonesty and reckless actions that endanger the organization. The behavior of this Board during almost the past five years (beginning on November 9 2011) illustrates the need for a Penn State freshman course in leadership ethics similar to that taught at the U.S. Military Academy.


The Simon Center for the Professional Military Ethic has some excellent case studies, as does Colonel Larry Donnithorne's The West Point Way of Leadership, as to when Trustees, subordinates, and others in similar positions are absolutely obligated to support the decision of the group (or a superior) and also when they are absolutely prohibited from supporting a decision or even a directive from the group or a superior.


Obligation to Support Group's or Superior's Decision
Donnithorne (p. 139) describes an incident in which the highest ranking cadet officer demurred at the USMA's Commandant's directive to conduct an extra rehearsal for a parade. The Commandant finally had to give him a direct order to do it. This is an example of a situation in which the subordinate is obligated to support a superior's legitimate directive even if he does not agree with it. He is also expected to act toward his own subordinates not as if he is unwillingly carrying out his superior's order, but rather as if he supports it 100 percent. A directive to rehearse for a parade is entirely legitimate regardless of whether those who receive the directive believe it is necessary.


Obligation to Refuse Group's or Superior's Decision
The Cadet Character Development Program Tactical Officer and Noncommissioned Officer Workbook includes scenarios in which a subordinate not only need not, but must not, comply with a superior's directive or a group's decision.


"It is Sunday evening and your company activities staff has organized a dinner following recall formation. This is an optional meal where cadets must sign a rations roster in order to eat the meal. You came back to West Point later that night from a trip section and were not able to attend the company dinner. There was no food left over by the time that you arrived back to your room."

"On Monday evening, one of the activity staff stops in at your room. They say that not everyone signed for the food at the company dinner and that you need to sign the rations roster. They also say that if they do not get the required amount of signatures to justify the money spent that events like this meal won’t be able to happen in the future."


The cadet not only need not sign the rations roster, he or she must not sign it because doing so is a false statement (lying) even though the cadet does not benefit personally. The reference explains, "Signing a form is a method of communication and is meant to verify that the information on the signed document is accurate. In this case if the cadet signed the rations sheet it would be a false statement, and possible Honor violation."


Here is another scenario in which a cadet must refuse a superior's directive.


"CDT X is at the football game and his Platoon Leader, CDT Y, calls him over. CDT Y and his friends put some additional medals, rank, and badges on CDT X’s uniform and send him on a mission. The mission is to go into the crowd of the opposing team and bring back some women for CDT Y and friends to meet. CDT X doesn’t feel comfortable with this mission. He knows that he hasn’t earned the medals and badges, but CDT Y told him that it was ok to go do this. What should CDT X do?"


Cadet X is not only permitted but required to refuse his platoon leader's instruction to wear decorations to which he is not entitled, and also to refuse to use his West Point insignia inappropriately to pick up women for his platoon leader and his friends. The reference explains, "Does this action warrant a violation under the lying tenet of the Cadet Honor Code? Wearing unearned badges is a form of communication with the intent to deceive." Furthermore, if Cadet X complies with this directive, "In this case a selfish act aimed at meeting women has the potential to damage the trust of several layers of units in the Corps, as well as break the trust of some of the American people with their Army."


The Challenger Disaster
If a professional engineer (P.E.) is on a committee that decides to launch a space shuttle under weather conditions outside those for which the O rings are specified, he or she is not only permitted but required to refuse to support his superior's and/or the group's decision to jeopardize astronauts and a multibillion dollar piece of equipment. The National Society of Professional Engineers provides ethics case studies similar to this one frequently, and the answer is always the same; an engineer cannot under any circumstances support a decision to endanger human safety.


Roger Boisjoly, P.E., fulfilled his duty to object to the Challenger launch, as did Bob Eberling and two other engineers. Their objections were overruled which lead to the black humor observation that NASA stood for Need Another Seven Astronauts, and it is surprising that NASA could get any astronauts after its recklessness caused seven deaths and set the U.S. space program back several years. In any event, the four engineers in question were the only individuals to emerge from the debacle with their credibility and honor intact.


Professional Obligations in General
The Challenger disaster, as well as the National Society of Professional Engineers' Code of Ethics, shows why it is not merely ridiculous but outrageous to expect a P.E. to support a superior's and/or group's decision to jeopardize the public safety. The Code of Ethics says very explicitly, "If engineers' judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate." This means that, if the engineer's judgment is overruled, his or her first obligation is to notify his employer or client but, if the latter insist on (for example) using substandard materials to build a bridge or skyscraper, or take shortcuts to save money at the expense of safety, the engineer's duty is to go over or around the employer or client by notifying the appropriate regulatory authorities.


The same principle almost certainly applies to a medical doctor who is directed to take shortcuts that deliver substandard care to a patient, a certified public accountant who is directed to provide false information to stockholders and/or the Internal Revenue Service, or a licensed trade worker like an electrician whose employer tells him to violate construction codes to save money by not doing the job properly. Penn State's Board of Trustees cannot similarly direct any Trustee to support, even with complicit silence, the dishonesty and dereliction of fiduciary duty that have been the rule rather than the exception at Penn State beginning November 9 2011.


Penn State: Dishonest Board Statement of March 2012
This is what Penn State's Board of Trustees told the Penn State community and the public in March 2012 (http://www.npr.org/sections/thetwo-...paterno-was-fired-after-failure-of-leadership).


"While Coach Paterno did his legal duty by reporting that information the next day, Sunday, March 3, to his immediate superior, the then Penn State Athletic Director Tim Curley, the Board reasonably inferred that he did not call police. We determined that his decision to do his minimum legal duty and not to do more to follow up constituted a failure of leadership by Coach Paterno. …At about 9 pm, we unanimously made the difficult decision that Coach Paterno’s failure of leadership required his removal as football coach."


This statement by itself indicates that every single Board member who was a party to this statement is incompetent, dishonest, or both. If anybody was supposed to have called the police, that was Mike McQueary when he saw whatever it was he thought he might have possibly seen, when the police could have actually done something about it. McQueary, however, later testified under oath that he did not see anything he deemed reportable to police. His father and Dr. Dranov, both of whom are apparently mandated child abuse reporters, did not advise him to call the police when he told them the same story he probably told Joe Paterno.


Paterno was supposed to report McQueary's concerns to the appropriate person (Athletic Director Tim Curley), which he did, and then keep his hands off the ensuing investigation, which he also did. This is also the NCAA's current written policy: you report the allegation to the designated person, and then you keep your hands off. You do not "do more," "follow up," or run your own investigation. Another way of saying this is that the Trustees admitted to firing Paterno for following what was then University policy and is definitely now NCAA policy.


Far more damning, however, is former Board Chairman Keith Masser's sworn testimony in State Senator Corman's lawsuit against the NCAA (http://onwardstate.com/2015/01/19/board-chairman-still-thinks-paterno-wasnt-fired/).


“The decision to remove Coach Paterno had nothing to do with what he had known, what he hadn’t done. It was based upon the distraction of having him on the sidelines would have caused the university and the current football team harm. It had nothing to do with what Coach Paterno had done, or hadn’t done.”


Merck CEO and former Trustee Kenneth Frazier testified similarly although not as explicitly to the effect that Paterno had been fired solely for public relations reasons (http://av.pasenategop.com/ncaa/discovery/depositions/ken-frazier/transcripts/frazier.pdf).


"Just as I said in the case of Mr. Curly, my initial feeling was, when I first heard about this, that the facts had not been established and we needed to be careful to make sure we understood the facts. As I was in -- in that 48-hour time period read the grand jury presentment, I reached the conclusion that given what had become public about the issues leading up to the presentment and given what was said in the presentment itself about Coach Paterno's testimony and about what the graduate student said to Coach Paterno, I felt that it would not send the right message if Coach Paterno was able to lead the football team out onto the field of play under those circumstances. So I didn't change my mind on the question of whether we had established all the key facts that related to Coach Paterno's involvement and/or responsibility. But I had reached the conclusion that, from the standpoint of what the University's values would be interpreted to be by the broader public, that what was known was sufficiently serious as it relates to child sexual abuse that it would send the wrong message about our values as a University if Coach Paterno were allowed to coach as though none of this had ever happened."


If Paterno was removed not for anything he had or had not done, he was not removed for failure of leadership. This puts every single Trustee who was a party to the unanimous March 2012 statement into the "lie, or tolerate those who do" category of the USMA's Honor Code. This includes not only the Board's leaders such as Karen Peetz, Kenneth Frazier, Keith Eckel, Keith Masser, Ira Lubert, Mark Dambly, and then-Chairman John Surma, but also former Penn State President Rodney Erickson (if an ex-officio Trustee) and also former Governor Tom Corbett in his capacity as an ex officio Trustee, and indeed everybody else involved except for the one Trustee who later distanced himself from the Board's actions.


"Tolerate Those Who Do" is as Unacceptable as "Lie."
Some of the former Alumni Trustees such as Paul Suhey, Joel Myers, Anne Riley, and Stephanie Deviney complained to one degree or another about how badly the alumni treated them during the subsequent elections, while others such as Jesse Arnelle did not seek reelection. The alumni recognized that these individuals were probably followers ("sheep") rather than leaders, and that the Board's inner circle may have even issued the purportedly "unanimous" statement without their consent or permission. They did not however receive any sympathy because of the "tolerate those who do" issue.


Their silence supported the group's dishonest and dishonorable statement, which makes them almost as culpable as those who actually wrote and published it. If they knew that the Board had fired Paterno solely for public relations reasons, and Keith Masser's testimony suggests that that was the case, they had an obligation to distance themselves from the dishonest statement as soon as it was published. They had to step up and say, "No, that is not what happened" or "No, I did not and do not support that decision."


It is also to be remembered what happened to all the slaves who yelled "I'm Spartacus!" in the movie, although their conduct was honorable rather than dishonorable. The former Alumni Trustees, on the other hand, proclaimed in effect, "I'm John Surma!" "No, I'm John Surma!" so they were accordingly treated like John Surma, the Board Chairman who orchestrated Paterno's dismissal and posthumous defamation. When you make yourself a willing party to a bad decision you get crucified, in one manner or another, right along with the ringleaders. This is why the alumni fired Joel Myers, Paul Suhey, Anne Riley, and Stephanie Deviney while Jesse Arnelle and others chose to not seek reelection.


A False Accusation is a Lie
A Google search on "honor code" and "false accusation" makes it very clear that it is an honor code violation to knowingly levy a false accusation against another person. Here is what Kenneth Frazier said about Joe Paterno and others in July 2012. http://articles.mcall.com/2012-07-1...tate-trustees-trustee-kenneth-frazier-spanier


"People who were in a position to protect children and to confront a predator, including people at the highest levels of responsibility in the university, specifically Graham Spanier, Joe Paterno, Tim Curley and Gary Schultz, did not put the welfare of children first," Frazier said.


It has already been shown that Joe Paterno did exactly what University policy called upon him to do, and also that Mr. Frazier himself acknowledged that Paterno had been fired solely for public relations reasons. Graham Spanier is meanwhile suing Penn State because of what Frazier and other Trustees said about him. See http://freehreport.com/wp-content/uploads/2015/03/1-Complaint-in-Spanier-v.-Freeh-and-Penn-State.pdf which names Frazier along with Karen Peetz, Keith Masser, and Rodney Erickson.


The USMA exercises ask cadets to envision how a seemingly minor lapse in judgment (such as being photographed at a party where people are using marijuana, even though the cadet does not smoke any) will affect the way his or her future peers, superiors, and subordinates will think of him. It is therefore difficult to understand how any Trustee can, after scapegoating a subordinate and then lying about the circumstances of his dismissal, continue to command the trust, respect, or confidence of peers, subordinates, customers, or business associates, or serve as a credible role model for any Penn State student or recent graduate.


Penn State: Misuse of University Communication Resources
In 2014, unknown members of the Board of Trustees directed spokesperson David La Torre to issue a false and defamatory attack, using Penn State's communication resources and name, on five Trustees who performed their fiduciary duty by joining a lawsuit against the NCAA (http://www.centredaily.com/2013/08/20/3746233/penn-state-board-responds-to-trustees.html).


"A spokesman said the leaders of the board have “serious concerns” about Peter Khoury and other trustees, including Anthony Lubrano and Alvin Clemens, who’ve joined the Paterno family’s lawsuit to reverse the NCAA sanctions against Penn State. Board spokesman David La Torre said their action creates a conflict of interest spelled out in the university’s bylaws. "

"…La Torre said the trustees’ filing a lawsuit exceeds their authority and conflicts with Penn State’s official position and interests."

"“Board leadership, with the advice of the legal subcommittee, has serious concerns that the role of the five trustees as plaintiffs in the litigation against the NCAA creates conflicts of interest under the trustees’ conflict of interest policies in the university’s bylaws,” La Torre said. “The complaint itself contains numerous allegations and claims that do not represent positions that the university has taken and conflict with the university’s position and interests.”"


· Mr. La Torre is paid by the University, and is therefore a University resource. The same goes for other University communication channels that are making statements of this nature on Penn State's behalf.

· The accusation is, in the absence of qualification, false, because the plaintiff Trustees (Lubrano, McCombie, Taliaferro, and Clemens) have nothing to gain personally from the lawsuit's success, although the University to which they owe fiduciary responsibility certainly does. The Commonwealth Court, in fact (opinion of Judge Pellegrini, which he says is shared by the other judges, document issued 4/09/2014), said in effect that the Board was derelict in its fiduciary duty for failing to challenge the sanctions.

· The above statement is false because, noting that the Board of Trustees never voted to affirm the Freeh Report or accept the NCAA sanctions, the University has no position with which the lawsuit can conflict.

· La Torre's statement acknowledges that the Board's leaders, as opposed to the Board as a whole, have the concerns. This means he is speaking on behalf of a Trustee faction, and not on behalf of the Board or the University.


This misuse of University communication resources therefore constitutes lying on the part of those who actually directed the publication of these statements, toleration on the part of any Trustee who acquiesced to this course of action, and also a contravention of the Board's fiduciary duty to protect the interests of Penn State rather than cover up for the poor decisions of Keith Masser, Kenneth Frazier, Karen Peetz, Keith Eckel, Mark Dambly, John Surma, and so on. (Lubert left the Board for a period of time, so he might not have been a party to this action.)


Dereliction of Fiduciary Duty
Commonwealth Court Judge Pellegrini opined that the Board's failure to challenge the NCAA's sanctions and also to supervise Rodney Erickson (who acquiesced to the sanctions without a vote by the Board) constituted dereliction of fiduciary duty. http://www.pacourts.us/assets/opinions/Commonwealth/out/1MD13_4-9-14.pdf?cb=1, page 37, labeled DRP-5


"The majority appears to arrive at this outcome because it is bewildered, as I am, by how the Board of Trustees of PSU could have approved or allowed to be executed a “Consent Decree” involving the expenditure of $60 million of PSU funds when the Consent Decree specifically states that the matter “ordinarily would not be actionable by the NCAA.” If, as the majority suggests, the NCAA did not have jurisdiction over conduct because it did not involve the regulation of athletics, then the expenditure of those funds is problematic, given that PSU is a non-profit corporation as well as being tax-exempt as a charitable organization, and that Boards of Directors of non-profit charitable corporations have a fiduciary duty to ensure that funds are only used for matters related to its charitable purpose – in this case, the students of PSU. See 15 Pa. C.S. §5712. Moreover, the majority position is understandable given the lax supervision by those responsible for insuring that non-profit and charitable organizations operate as non-profit and charitable organizations as well as their failure to take action against Boards of Directors and Officers who use funds of a non-profit and/or charitable entity to pay funds that they are not legally obligated to pay and/or expend funds not related to their charitable purpose or who no longer act as a charity."


The clarity we have from Judge Pellegrini's opinion is that the same Trustees who lied about the circumstances of Coach Paterno's dismissal, or tolerated the lie by allowing themselves to be made parties to it, not only failed to perform their fiduciary duty but orchestrated or tolerated the misuse of University communication resources and the University's name to make false public statements about the handful of Trustees who did perform their fiduciary duty.


Conclusion
The Board's clear, obvious, and gross ethical failures have brought nothing but discredit on Penn State and the Board itself during the past several years. The Board's inner circle has nonetheless stepped up to implement a new rule to require other Trustees to support reckless, irresponsible, and dishonest decisions such as those that have plagued Penn State during the past years. We therefore need to make some things very clear to the Board and the entire Penn State community.


· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to a dishonest act such as scapegoating a subordinate and then publishing a defamatory falsehood about the circumstances of the subordinate's dismissal. One must, in fact, refuse to be a party to a dishonest act by denouncing it or saying he does not support the dishonest statement.

· Nobody is obligated to allow his or her superior, or the group to which he belongs, to make him a party to dereliction of fiduciary duty as practiced by this Board regarding its failure to challenge the NCAA's illegitimate sanctions. A Trustee, in contrast, has a duty to perform his or her fiduciary duty regardless of peer pressure or directives to the contrary.



Regards,




William A. Levinson B.S. '78
.
Well said !
 
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psrurock

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Jun 9, 2015
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I enjoy sitting on the sideline, cheering on men of integrity continuing the battle for truth, wishing I could do more, but thankful you have the fortitude to soldier on. for this sir I thank you!
 

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