Friday, March 21, 2014

The merits of internal investigations

One commentator's take:

And my own:

“Be not ashamed of mistakes and thus make them crimes.” --- Confucius
         In 2012 Pennsylvania was the scene of two internal investigations of national, and indeed international, interest.  The Sandusky case heaped shame upon a world-class university and a nationally ranked college football program.  Simultaneously, Philadelphia was the locus of the first child-abuse case in which a senior official of the Catholic Church was convicted for covering up his priests’ criminal conduct.  The mighty fell not because they themselves violated the law in the first instance, but because they covered up their subordinates’ transgressions, thus committing new crimes of their own.
         The Jerry Sandusky case.  Following are excerpts from the Grand Jury’s 2011 indictment of the former Penn State football coach:
The Grand Jury conducted an investigation into reported sexual assaults of minor male
children by Gerald A. Sandusky ("Sandusky") over a period of years, both while Sandusky was a football coach for the State University ("Penn State") football team and after he retired from coaching. Widely known as Jerry Sandusky, the subject of this investigation founded The Second Mile, a charity initially devoted to helping troubled young boys. It was within The Second Mile program that Sandusky found his victims.
Sandusky was employed by Penn State for 23 years as the defensive coordinator of its
Division I collegiate football program. Sandusky played football for four years at Penn State and coached a total of 32 years. While coaching, Sandusky started "The Second Mile" in State College, in 1977. It began as a group foster home dedicated to helping troubled boys. It grew into a charity dedicated to helping children with absent or dysfunctional families. It is now a statewide, three region charity and Sandusky has been its primary fundraiser. The Second Mile raises millions of dollars through fundraising appeals and special events. The mission of the program is to "help children who need additional support and would benefit from positive human interaction." Through The Second Mile, Sandusky had access to hundreds of boys, many of whom were vulnerable due to their social situations. Sandusky retired from The Second Mile in September 2010.
In the fall of 2000, a janitor named James "Jim" Calhoun observed Sandusky in
the showers of the Lasch Building with a young boy pinned up against the wall, performing oral sex on the boy. He immediately made known to other janitorial staff what he had just witnessed.  Fellow Office of Physical Plant employee Ronald Petrosky was also working that evening and recalls that it was football season of 2000 and it was a Thursday or Friday evening, because the football team was away for its game. Petrosky, whose job it was to clean the showers, first heard water running in the assistant coaches' shower room. He then saw that two people were in the assistant coaches' shower room. He could only see two pairs of feet; the upper bodies were blocked. Petrosky waited for the two persons to exit the shower so he could clean it.
He later saw Jerry Sandusky exit the locker room with a boy, who he described as being between the ages of 11 and 13. They were carrying bags and their hair was wet. Petrosky said good evening and was acknowledged by Sandusky and the boy. He noted that the hallway in the Lasch building at that point is long and that Sandusky took the boy's hand and the two of them walked out hand in hand. Petrosky began to clean the shower that Sandusky and the boy had vacated. As he worked, Jim approached him. Petrosky described Jim as being upset and crying. Jim reported that he had seen Sandusky, whose name was not known to him, holding the boy up against the wall and licking on him. Jim said he had "fought in the [Korean] war seen people with their guts blowed out, arms just witnessed something in there I'1l never forget." And he described Sandusky performing oral sex on the boy. Petrosky testified that Jim was shaking and he and his fellow employees feared Jim might have a heart attack. Petrosky testified that all the employees working that night except Witherite were relatively new employees.
       In discussions held later that shift, the employees expressed concern that if they reported what Jim had seen, they might lose their jobs. Jim's fellow employees had him tell Jay Witherite what he had seen.  Jay Witherite was Jim's immediate supervisor. Witherite testified that Jim was "very emotionally upset", "very distraught", to the point that Witherite "was afraid the man was going to have a heart attack or something the way he was acting." Jim reported to Witherite that he had observed Sandusky performing oral sex on the boy in the showers. Witherite tried to calm Jim, who was cursing and remained upset throughout the shift. Witherite told him to whom he should report the incident, if he chose to report it.  Witherite testified that later that same evening, Jim found him and told him that the man he had seen in the shower with the young boy was sitting in the Lasch building parking lot, in a car. Witherite confirmed visually that it was Sandusky who was sitting in his car in the parking lot. Witherite says that this was between 10:00 p.m. and 12:30 a.m. Petrosky also saw Sandusky drive very slowly through the parking lot about 2 to 3 hours after the incident was reported to him by Jim, at approximately 11:30 p.m. to 12:00 a.m. Petrosky recognized Sandusky in his vehicle. Petrosky testified that Sandusky drove by another time, about two hours later, again driving by very slowly but not stopping. The second drive-by was between 2:00 and 3:00 a.m. Petrosky testified that Sandusky did not enter the building either time. The area is well lit and the coaches' cars were known to Petrosky. Jim was a temporary employee at the Lasch Building, working there for approximately 8 months. No report was ever made by Jim Calhoun. Jim presently suffers from dementia, resides in a nursing home and is incompetent to testify. Victim 8's identity is unknown.
         Following the two-year investigation, culminating in this indictment, Sandusky was charged and tried on 52 counts of sexual abuse of boys, spanning some 15 years.  Four counts were subsequently dropped.  He was tried on the remaining 48 counts and on June 22, 2012, was convicted on 45.  In October of last year he was sentenced to 30 to 60 years imprisonment.  The conviction and sentence have been appealed by his attorneys, who claim that were afforded insufficient tome to prepare for trial.
          Four top Penn State officials lost their jobs in the wake of Sandusky’s indictment:  President Graham Spanier, Senior VP-Finance Gary Schultz, Head Football Coach Joe Paterno, and Athletic Director Tim Curley.  The university’s board of trustees engaged former FBI Director Louis Freeh to conduct an independent investigation.  Among the reports findings were the following:
The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims. As the Grand Jury similarly noted in its presentment, there was no “attempt to investigate, to identify Victim 2, or to protect that child or any others from similar conduct except as related to preventing its reoccurrence on University property.”
       Four of the most powerful people at The Pennsylvania State University – President Graham B. Spanier, Senior Vice PresidentFinance and Business Gary C. Schultz, Athletic Director Timothy M. Curley and Head Football Coach Joseph V. Paterno – failed to protect against a child sexual predator harming children for over a decade. These men concealed Sandusky’s activities from the Board of Trustees, the University community and authorities. They exhibited a striking lack of empathy for Sandusky’s victims by failing to inquire as to their safety and wellbeing, especially by not attempting to determine the identity of the child who Sandusky assaulted in the Lasch Building in 2001. Further, they exposed this child to additional harm by alerting Sandusky, who was the only one who knew the child’s identity, of what McQueary saw in the shower on the night of February 9, 2001.
          These individuals, unchecked by the Board of Trustees that did not perform its oversight duties, empowered Sandusky to attract potential victims to the campus and football events by allowing him to have continued, unrestricted and unsupervised access to the University’s facilities and affiliation with the University’s prominent football program. Indeed, that continued access provided Sandusky with the very currency that enabled him to attract his victims. Some coaches, administrators and football program staff members ignored the red flags of Sandusky’s behaviors and no one warned the public about him.
          By not promptly and fully advising the Board of Trustees about the 1998 and 2001 child sexual abuse allegations against Sandusky and the subsequent Grand Jury investigation of him, Spanier failed in his duties as President. The Board also failed in its duties to oversee the President and senior University officials in 1998 and 2001 by not inquiring about important University matters and by not creating an environment where senior University officials felt accountable.
       Once the Board was made aware of the investigations of Sandusky and the fact that senior University officials had testified before the Grand Jury in the investigations, it should have recognized the potential risk to the University community and to the University’s reputation. Instead, the Board, as a governing body, failed to inquire reasonably and to demand detailed information from Spanier. The Board’s overconfidence in Spanier’s abilities to deal with the crisis, and its complacent attitude left them unprepared to respond to the November 2011 criminal charges filed against two senior Penn State leaders and a former prominent coach. Finally, the Board’s subsequent removal of Paterno as head football coach was poorly handled, as were the Board’s communications with the public.
        Spanier, Schultz, Paterno and Curley gave the following reasons for taking no action to identify the February 9, 2001 child victim and for not reporting Sandusky to the authorities:
·            Through counsel, Curley and Schultz stated that the “humane” thing to do in 2001 was to carefully and responsibly assess the best way to handle vague but
troubling allegations. According to their counsel, these men were good
people trying to do their best to make the right decisions.
 ·            Paterno told a reporter that “I didn’t know exactly how to handle it and I was afraid to do something that might jeopardize what the university procedure was. So I backed away and turned it over to some other people, people I thought would have a little more expertise than I did. It didn’t work out that
 ·            Spanier said, in his interview with the Special Investigative Counsel, that he
never heard a report from anyone that Sandusky was engaged in any sexual abuse of children. He also said that if he had known or suspected that Sandusky was abusing children, he would have been the first to intervene.
        Taking into account the available witness statements and evidence, the Special Investigative Counsel finds that it is more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at the University – Spanier, Schultz, Paterno and Curley – repeatedly concealed critical facts relating to Sandusky’s child abuse from the authorities, the University’s Board of Trustees, the Penn State community, and the public at large.
        The avoidance of the consequences of bad publicity is the most significant, but not the only, cause for this failure to protect child victims and report to authorities. The investigation also revealed:
·            A striking lack of empathy for child abuse victims by the most senior leaders of the University.
·            A failure by the Board to exercise its oversight functions in 1998 and 2001 by not having regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University.
·            A failure by the Board to make reasonable inquiry in 2011 by not demanding details from Spanier and the General Counsel about the nature and direction of the grand jury investigation and the University’s response to the investigation.
·            A President who discouraged discussion and dissent.
 ·            A lack of awareness of child abuse issues, the Clery Act, and whistleblower
policies and protections.
· A decision by Spanier, Schultz, Paterno and Curley to allow Sandusky to retire in 1999, not as a suspected child predator, but as a valued member of the Penn State football legacy, with future “visibility” at Penn State and ways “to continue to work with young people through Penn State,” essentially granting him license to bring boys to campus facilities for “grooming” as targets for his assaults. Sandusky retained unlimited access to University facilities until November 2011.
·            A football program that did not fully participate in, or opted out, of some University programs, including Clery Act compliance. Like the rest of the University, the football program staff had not been trained in their Clery Act responsibilities and most had never heard of the Clery Act.
·            A culture of reverence for the football program that is ingrained at all levels of the campus community.

        In November 2012, Spanier, Curley and Schultz were variously indicted on charges of endangering the welfare of children, obstruction of justice, conspiracy and perjury.  Legendary Coach Joe “Papa” Paterno escaped indictment by dying.
          The Monsignor William Lynn case.  In June 2012, the former aide to Catholic cardinals was convicted by a jury of one count of endangering children.  Lynn thus became the first senior Catholic Church official to be convicted in the United States of covering up sexual abuses by priests he supervised.  The conviction came despite efforts by the monsignor’s defense attorneys to play the Nuremburg card by pointing accusing fingers at Cardinal Anthony Bevilacqua and other higher-ups in the Philadelphia Archdiocese.  And, indeed, prosecutors called the archdiocese “an unindicted co-conspirator,” thus more or less endorsing a 2005 grand jury report that blasted Bevilacqua, as well as his predecessor Cardinal John Krol and his successor, Cardinal Justin Rigali, for their mishandling of abuse complaints.
        The 2011 grand jury report that laid the groundwork for the milestone conviction document the testimony of two alleged victims, identified as “Billy and Mark.”  The report went on to find:
         These are sordid, shocking acts. There was at least one person, though, who could not have been the least bit surprised by what happened to Billy and Mark. Monsignor William Lynn was the Secretary for Clergy under Cardinal Bevilacqua. In that position, he acted as the personnel director for priests. It was his job to review all reports of abuse, to recommend action, and to monitor the abuser’s future conduct.
       Before Billy was raped – four years before – Monsignor Lynn learned that one of
Billy’s assailants had previously “wrestled,” “tickled,” and groped another boy during an “overnight.” The priest in question was Father Edward Avery. Avery took the boy to his bed on at least two other occasions and again fondled his genitals. After the abuse was reported, Avery was secretly sent to a sexual offender program run by the Archdiocese. While he was there, Monsignor Lynn told parishioners to disregard any untoward reports concerning Avery’s absence as mere “rumors,” and reassured them that Lynn knew of nothing but compliments about their pastor.
       Avery was discharged from the sex offender program on condition that he have no further contact with adolescents. An “aftercare” team was supposedly set up to watch him. Monsignor Lynn, however, did not send Father Avery far away from boys. Quite the opposite: he recommended an assignment at a parish with a school. Cardinal Bevilacqua then assigned Avery to St. Jerome – the school where Avery later found, and raped, Billy. The “aftercare” team was a farce: Monsignor Lynn was repeatedly advised that the team wasn’t meeting. He didn’t do anything about it. In fact, he never even told St. Jerome School that he had just sent them a child abuser.
        Nor were St. Jerome students the only children at risk from Father Avery. During this period, the Archdiocese actually allowed Avery to “adopt” six young Hmong children. Monsignor Lynn knew about the Hmong “adoption”; he also knew that Avery’s sex offense program had specifically prohibited such conduct. He never did a thing to stop it.
         Indeed the Archdiocese did not get around to removing Avery from ministry until 2003, just three months after the release of the prior grand jury report – but eleven years
after the first documented abuse reports, and seven years after the rape of Billy. Does anyone really believe there were no others?
           As with Father Avery, so it is with Father Brennan, the priest who raped Mark: Monsignor Lynn acted as if his job was to protect the abuser, never the abused. In the years before the assault on Mark, the Archdiocese received repeated complaints about Brennan’s “unhealthy” relationships with boys at the parochial school to which Cardinal Bevilacqua had assigned him. One of the boys even moved into Brennan’s apartment. When Brennan grew concerned that word about his guest was leaking out, he went to Monsignor Lynn – who promptly assured him that the report was just a “rumor” that would never be allowed into Brennan’s file.
            That same summer, Brennan arranged for his sleepover with Mark, and sodomized him. In the years that followed, Brennan was cycled through a variety of assignments, without any restrictions on contact with minors. In one of these posts, he actually crossed paths with Mark again. Brennan, unbowed, commanded the boy to come to him. He was thwarted not because of any action by Monsignor Lynn or the Archdiocese, but only because this time Mark was not too afraid to escape.
         Avery and Brennan were hardly the only two priests whom Monsignor Lynn so favored. The prior grand jury report is full of similar accounts. We summarize several of them below, in the main body of this report. Those cases, however, were long before Billy’s and Mark’s, and the prior grand jury was unable to document any repeat assaults by those particular abusers that resulted from Lynn’s institutional laxness. Not so this time. There is no doubt that Monsignor Lynn’s refusal to curb Avery and Brennan led
directly to the rape of Billy and Mark. We therefore charge William Lynn with the crime of endangering the welfare of a child, a felony of the third degree.
        The grand jury then wrote, “That leaves us with a difficult dilemma: Cardinal Bevilacqua. The Cardinal’s top lawyer appeared before the grand jury and testified that the Cardinal, at 87, suffers from dementia and cancer. We are not entirely sure what to believe on that point. We do know, however, that over the years Cardinal Bevilacqua was kept closely advised of Monsignor Lynn’s activities, and personally authorized many of them. On the other hand, we do not have good evidence about the Cardinal’s actions specifically as to Father Avery and Father Brennan, the two priests whose treatment forms the basis for the endangering charge against Lynn. The documents clearly show what Lynn knew in these two cases and what he did or didn’t do about it. But that direct link is lacking as to Cardinal Bevilacqua. On balance, we cannot conclude that a successful prosecution can be brought against the Cardinal – at least for the moment. New reports of abuse continue to come in.”  
          Bevilacqua, like Joe Paterno, escaped indictment and prosecution by dying.
Meanwhile, on parallel tracks, civil suits are proceeding against both the Archdiocese of Philadelphia and the Pennsylvania State University by the alleged victims of the abuses and cover-ups that led to the indictments and convictions sketched out above. 
         One is left to wonder what the PSU and Catholic Church officials would have done differently, had they seen what awaited them and their precious institutions in 2011 and 2012.
          What ought to have been done.  Some of what should have happened is more than obvious: investigations rather than cover-ups; disciplinary actions, where the investigations supported such; reports to the proper public authorities, where the law was found to have been broken; and, efforts to make the victims whole, so far as this might have been possible. But, beyond these obvious efforts, the devil (as always) lies in the details.  Clearly, in both cases, management’s sins of omission and commission were severe.  They are textbook examples of just about everything an organization’s board and senior management ought not to do.
         Hopefully, your organization will never be faced with similarly severe employee misbehavior.  But even in a “garden variety” case of harassment, dishonesty, or other employee misfeasance --- which faces every organization from time to time --- some basic questions need to be answered and acted upon… promptly.
·      Should you use an internal or an external investigator?
         An in-house investigator brings knowledge of the organization’s culture, procedures and players to the inquiry.  An outsider faces a learning curve but adds an element of objectivity that may otherwise be lacking.  In making the selection, issues to be considered include the possibility that the investigator will one day be a witness in criminal and/or civil proceedings.  Consequently, the company may not want to give the assignment to outside labor counsel, who then might be disqualified from representing the firm at trial.   Note, too, that if the investigation is aimed at avoiding vicarious corporate liability in a sex harassment case, the investigator’s notes will be discoverable, even if that investigator is legal counsel.
           The Freeh Report demonstrates dramatically what can come out, when an external investigator is given free rein.  The board and/or senior management which sets such an inquiry in motion must be prepared to address both the findings and the publicity that potentially may emerge.  Clearly, PSU officials kept matters close to their vests due to Sandusky’s prominence and the potential impact of his conduct, if the accusations proved to be accurate, upon the upon the university’s internationally acclaimed football program.
         But even when far less is at stake, confidentiality is almost always desired.
·      Can confidentiality be maintained?
         Last year, the National Labor Relations Board made it much more difficult for employers to compel confidentiality among employees who participate in internal investigations.  In Banner Health System d/b/a/ Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), which was covered thoroughly in your September 2012 Bulletin, the Board majority held,
To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights. See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) (no legitimate and substantial justification where employer routinely prohibited employees from discussing matters under investigation). In this case, the judge found that the Respondent's prohibition was justified by its concern with protecting the integrity of its investigations. Contrary to the judge, we find that the Respondent's generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent's burden “to first determine whether in any give[n] investigation witnesses need [ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” Id. The Respondent's blanket approach clearly failed to meet those requirements. Accordingly, we find that the Respondent, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act.

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