http://verdict.justia.com/2014/03/21/internal-investigations-can-resolve-scandals
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.
***
VICTIM 8
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.
[Indictment accessed at http://www.washingtonpost.com/wp-srv/sports/documents/sandusky-grand-jury-report11052011.html]
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 re‐occurrence on
University property.”
Four of
the most powerful people at The Pennsylvania State University – President
Graham B. Spanier, Senior Vice President‐Finance
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 well‐being, 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
way.”
· 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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