Alumni Trustees Take Legal Action In Bid To Obtain Freeh Material
When a group of seven alumni-elected trustees threatened legal action if the university didn’t provide source material from the Freeh Report, they weren’t bluffing. Just three days after the university rejected the trustees’ latest attempt to obtain privileged material from the Freeh Report, the group filed a petition in the Centre County court on Monday afternoon in an effort to compel the university to provide the requested documents.
The trustee behind the joint filing are Ted Brown, Barbara Doran, Robert Jubelirer, Anthony Lubrano, Ryan McCombie, William Oldsey, and Alice Pope. They requested all Freeh Report-related documents on April 15 in a formal request to board chairman Keith Masser and university president Eric Barron, but received a rejection letter from university counsel on April 17.
“Our decision to take this action comes only after repeated futile requests over many months,” Oldsey said in a press release. “In fact, Trustee Lubrano first formally requested access to the Source Material in the Spring of 2013, more than two years ago.”
The university has offered the trustees all unprivileged material if they agree to sign a confidentiality agreement, but they aren’t willing to accept a compromise that doesn’t include all Freeh interviews and material. The court petition cites the Pennsylvania Nonprofit Corporation Law, which compels corporations to provide directors with all material necessary to the proper performance of their jobs. The law goes on to say that directors — in this case, the trustees — can petition a court to compel the dissemination of all relevant documents if the corporation — in this case, the university — refuses to do so.
The petition claims that the Freeh Report source material is “reasonably related to the performance of the duties of the university trustees.” Among a laundry list of explanations for the request material are the pending litigation against the university that involves the Freeh Report, Barron’s review of the report, and the fact that the Freeh Report “profoundly impacts the finances, operations, educational opportunities, personnel, policies, administration, reputation and very culture of the university.”
The trustees’ petition says they need the material to implement a strategic plan to restore Penn State’s “world-class reputation”, assess whether the source material supports the report’s conclusions, and properly determine how to allocate money for costs including potential legal settlements.
“We made a good faith effort to reach a compromise but we were simply unsuccessful. To suggest, as Chairman Masser and President Barron did yesterday in their joint statement, that we are unwilling to sign a Confidentiality Agreement is misleading and plainly untrue,” Lubrano said. “We are very willing to sign an appropriate Confidentiality Agreement as the Petition filed today states. It is now time for the Court to compel the inspection of these materials that directly relate to our core duties as Trustees and to vital interests of the University. Transparency begins with the Board of Trustees.”
While it certainly looks bad at face value for the university to deny the trustees’ request, the legal right to privacy of those interviewed by Freeh needs to be taken into account here. Interview subjects were promised confidentiality, and releasing the source material to the full board could be seen as a breach of the privileged nature of their interviews. On the other hand, it seems reasonable that members of the governing body of a corporation, as fiduciaries, should have access to all materials that are important to that governing body’s business. One thing is for certain: It’s unfortunate that a squabble between the university’s board and its administration couldn’t be handled without involving the court.
At the time this was published, the university had not responded to requests for comment. We will continue to provide updates as this story develops.