Statement of Ben Novak to the Senate Committee on State Government

The following testimony was submissed to the Pennsylvania Senate Committee on State Government on Mar. 3, 2013. A PDF of the complete testimony including appendices can be found here.

When originally contacted to appear before the State Government Committee of the Pennsylvania Senate, it was specified that I was being invited because of my historical knowledge of how Penn State has been governed in the past, and how this may shed light on the issues facing the Legislature regarding proposals of the Auditor General to change Penn State’s governing structure. However, after I was extended an invitation and was making airline reservations, Senator Smucker called me to report that the invitation had to be withdrawn because some people had complained that, since I was a candidate in the election for the Board of Trustees this spring, my appearance before the Committee might give me a campaign advantage. Nevertheless, I was offered the opportunity to submit my testimony in writing.

The subject of these hearings is the special report of the Auditor General, entitled. Recommendations for Governance Reform at The Pennsylvania State University After the Child Sex Abuse Scandal, released in November 2012.

The Auditor General’s Report and these hearings are occasioned primarily by the conduct of the Penn State Board of Trustees in response to the indictments that were handed down on November 4, 2011, and the subsequent scandal that erupted.

Let me first note that, if there had been an inquiry into the governance of Penn State prior to November 2011, I am sure the focus would have been on that Board’s accomplishments over the previous 156 years in building up Penn State from the Farmers High School it began as in 1855 to the premier teaching and research University it is today.

Nevertheless, even before November 2011, there were defects in the governance structure of the University. Many of these, however, became magnified to a catastrophic degree in the course of that scandal. It is, therefore, entirely appropriate for the Legislature to examine that structure.

Background

I have previously published two lengthy essays on the Board that I believe will be helpful to this Committee in its deliberations. The first was published in January 2012 in the Centre Daily Times entitled “Reflections of a Former Trustee: How the Penn State Board of Trustees Really Works,” which may be found on my website. The second was also published in April 2012, also in the Centre Daily Times, entitled “What’s Up with the Board: Understanding Today’s Board of Trustees,” which may be found on my website. These are attached as Appendices I and II.

Review of the Auditor General’s Recommendations 

I have reviewed the Auditor General’s recommendations, and agree with many of them. Specifically, I agree with:

Chapter 1, Recommendations 1-6, regarding the power of the president.

Chapter 2, Recommendation 7-8, regarding the Governor as a non-voting member

Chapter 4, Recommendations 11-13, regarding a quorum

Chapter 5, Recommendations14-16, regarding conflicts of interest, except that I disagree with those statements in Recommendation 14 regarding “appearance of conflict,” since that is exceedingly vague and can easily be used to disqualify someone unfairly in eyes of the media. Rather, I favor the time-out requirement of 5 years as sufficient.

Chapter 6, Recommendations 17-18, with the proviso that the Legislature should adopt this legislation whether or not the Penn State Board of Trustees actively requests these changes.

Chapter 7, Recommendations 19-23, regarding transparency and accountability

I have left Chapters 3, 8, and 9 for further comment, as follows.

Chapter 3, Recommendation 9

Relative to Chapter 3, Recommendation 9, I must add a general comment. I disagree with the Auditor General’s methodology, which seems to compile statistics on other boards and then to argue that Penn State must comply with some mean average. In each case where the Auditor General compiles statistics, there are universities with equal or greater number of Trustees. Failure to meet the average is not a valid critique; each case must be judged individually and with due regard to the historical and other reasons for the size.

Therefore, I feel that that Recommendation 9 is based on invalid reasoning. While there may exist other reasons to reduce the size of the board, the Auditor General Report’s reasoning is insufficient to justify its conclusion.

Chapter 3, Recommendation 10

With regard Chapter 3, Recommendation 10, however, while I strongly agree with it, I must add a special emphasis. By far, the manner of election of the Business and Industry Trustees is the greatest defect in the governing structure identified by the Auditor General—although it is mentioned only at the end of the chapter and in passing.

One of the members of the panel before you today, former Trustee Robert L. Horst, waged a 15-year-long struggle to bring attention to the situation regarding this segment of the Board.  When I asked Mr. Horst, more than a week before this hearing, if he would provide the Committee with all the articles he has published on this issue, he indicated that he was unsure whether he would attach those to his statement or not. However, I believe that they may provide an invaluable historical look at this issue. Since our statements must be submitted a week before the hearing, I am sending to the Committee by mail (since I do not have them in digital form) copies of the 10 articles so that they will become part of this Committee’s record. They will be an invaluable set of materials for this Committee to gain an insight into the character problems of the Board, as well as a major structural problem.

Above, I also mentioned two essays of mine, in the first of which I described how a certain power group had formed and how it was reinforced by other groups (referred to as the Praetorian Guard and the Emeritus Trustees), and acquiesced to sheepishly by the rest of the Board members. That essay is immediately relevant here. The present manner of selecting this set of Trustees is an unhealthy situation. Indeed, few things will improve the functioning of the Penn State Board of Trustees as much as this one, single change.

It is in this framework that I heartily endorse the Auditor General’s recommendation that these Trustees be elected by “geographically disbursed Pennsylvania business and industry associations. At least two of these should represent the fields of engineering, mining, and/or architecture.” (pages 39-40)

Chapter 9, Recommendations 26-30

Regarding Chapter 9, Emeritus Trustees, I oppose all the recommendations and propose a different solution.

Rather than creating a special category of Emeritus Trustees and quibbling about their powers and privileges, I suggest that the University or Legislature create an association for all former Penn State Trustees, with which the active Trustees should be encouraged to meet.

The reasons for this are simple: There may be a great fund of experience, history, and tradition held by former Trustees, which can be accessed by current active Trustees in conversational settings. But there is no more reason to have them sitting in on regular meetings of the Board than there would be for the Pennsylvania Senate to create a category of Emeritus Senators or the House of Representatives to create Emeritus Representatives, and invite them as former legislators to sit in on their sessions as ex officio members.

I further disagree with the Auditor General’s recommendation to award emeritus status based on distinguished service, since this usually turns into political popularity; and it is often the courageous loners who are most needed for advice, rather than those who distinguished themselves by pleasing either the majority or the ruling faction. Further, “distinguished service” on the Penn State Board has often meant fundraising ability among rich donors, something that works against poorer members without wealthy contacts.

Therefore, I recommend that the position of Emeritus Trustee be abolished as a category of awarded title and privileges. Rather, I recommend that an association of all former Trustees be formed, with whom the active trustees may meet and socialize at least annually. The Board may even pay travel and dinner costs. I believe that this alternative will best serve the goal of keeping available the experience, wisdom, and history of older trustees, without the politics, favoritism, special status at meetings, and needless privileges of the current system.

Observation as to the Root Problem

Finally, let me state my opinion, that the root cause of the problems that led to the Auditor General’s Report and this Committee’s hearing do not so much arise out of the structure of the Board, but from what the Auditor General identified on the first page of his Report as “breakdowns in human character.”

I believe that the Board of Trustees of Penn State has long been under the influence of a spirit of governance at odds with the spirit of good government as well as the Penn State spirit. I believe that what the Board needs most of all is a new immersion into, or injection of, the fundamental rules of civic responsibility and organizational care.

I devoted my second essay mentioned above, “What’s Up with the Board: Understanding Today’s Board of Trustees,” which may be found on my website, to attempting to explain why and how the Board has come to think so differently from what normal people expect from it.

An Illustration

I submit that the problem of a “core group” of Trustees wielding inordinate power of the Board can be illustrated by the events telescoped into the first five days of the Sandusky/Penn State crisis—from Friday afternoon, November 4, when the indictments appeared on the internet by a “glitch,” until Wednesday night, November 9.

During these five days, a certain faction of the Board—first reported by Sara Ganim as a “core group,”

and later as a “faction,” “took out” four of the most important officers of the University in an act of plain, old “regime change,” thus utterly decapitating Penn State as it faced the greatest crisis in its history.

The four officers “taken out” were:

  • Graham Spanier, who was told to make no statements in defense of Penn State on Saturday and Sunday evening, November 6
  • William Mahon, vice president for Public Relations, who was displaced by the outside PR firm of Ketchum on Sunday November 6
  • Steve Garban, Chairman of the Board, who stepped aside for John Surma on Monday morning, November 7
  • Joe Paterno, whose press conference at which he intended to explain his actions was cancelled on Tuesday, November 8

These were in addition to the vice president for Business, Gary Schultz, and the Athletic Director, Tim Curley, who withdrew on leave due to the indictments. The horrifying fact, however, is that Penn State went into this crisis with six of its major officers out of commission, including its Board chairman, university president, two vice presidents (one of whom was in charge of public relations!), athletic director, and head coach.

Thus what I am asking this committee to look into is this: not the dramatic firings of Paterno and Spanier that took place on Wednesday night, November 9—these were only “icing on the cake”—a cake that had been baked by a core group of the Board over the previous five days. In effect, this “core group” took out one officer after another, while the media relentlessly repeated theories of conspiracy and cover-up, with all denials of such cover-up specifically prevented by this core group. Yet, each of these silenced officers—Paterno, Spanier, Mahon, Garban, and of course Curley, Schultz—were not part of any conspiracy, and deny that there was any cover-up.

I recall the agony of those five excruciating days as the media charges of cover-up grew into a tsunami—with absolutely no refutation or response coming from Old Main. It is said that there were more than 500 reporters arrived on campus starting Monday. Yet there was no one for them to talk to for five days. Why? Because a faction of the Board had told Spanier he could say nothing to the press; because the Board ordered the cancellation of Joe Paterno’s press conference; and because the Board ordered Penn State’s office of University Relations sidelined for an outside PR firm (Ketchum).

The latter—the displacing of Penn State’s public relations arm—is a fact that has received little notice. Penn State has been criticized for not being “prepared,” and for not having a crisis management plan. Yet, Penn State’s University Relations website both then and now lists “crisis management” as one of its specialties. This would have been the challenge of a lifetime for Bill Mahon. But by Sunday, November 6, the Board of Trustees took the crisis out of their hands, and hired an outside PR firm, Ketchum, which completely displaced Bill Mahon and the UR office.

According to Sara Ganim, president Spanier was preparing to make a major statement on Monday, November 7, which would have been the ideal time in the weekly news cycle for Penn State to present its side of the story. Yet, on Sunday night, Spanier was told by the Board to make no statements—that: “the board will handle this.” Thus although more than 500 reporters and journalists were in State College or on their way, Old Main stayed silent in the face of the most heinous charges.

Then came the worst Board decision of all: the cancellation of Joe Paterno’s press conference. This, too, was later confirmed to be a direct of order of the Board’s acting chairman, John Surma. Let me quote to you what this cancellation brought down upon Penn State. The Patriot News/PennLive reporter wrote: “Now, Penn State faces a public relations fiasco bigger than ever before as the public is awaiting something more from the coach and Penn State President Graham Spanier.” Then he recorded what the other reporters were saying: ‘They are going to get ripped, and they should,” said Jeff Rice, the football reporter for The Centre Daily Times.” “The sharks are already in the water and blood is there,” said Nate Bauer, an editor at Blue White Illustrated….”Venom is on the way.”

Thus, by at least Tuesday, the Board of Trustees had effectively turned the press against Penn State. The press had come to get a story, to do interviews, report on statements and counter statements. Instead they were met by stony silence. They had expected Penn State to stand up for its integrity, its honor—which Joe Paterno surely would have done, and Graham Spanier and Bill Mahon would have done. But on orders from the Board, none of this took place. By its orders enforcing silence in the face of the most heinous charges of conspiracy and cover-up, the Board assured that Penn State would be judged guilty in the court of public opinion.

This Board promised an investigation when this crisis broke. But it never conducted its own investigation. Rather, it outsourced it. The result is the Freeh Report, which is the basis for $60 million in NCAA penalties, which the Commonwealth is spending more in legal fees to fight in court. And still the Board dithers with no real idea of what it is doing. The damage inflicted by this “core group,” this “faction” on the Board, has been incalculable.

An very good account of some of the politics used to achieve the decapitation of Penn State is by former New York Times writer, now ESPN’s sportswriter, Don Van Natta, who sums up what happened at Penn State this way: “The untold story… is about bare-knuckle Pennsylvania politics, old grudges and perceived slights.”

All this is relevant to this Committee’s work in this sense. On page 1 of his Report, the Auditor General states “changing the governance structure can never prevent what happened at Penn State from happening again as long as there are breakdowns in human character.” What I have tried to outline above is a massive breakdown in human character on the Board. Can you imagine what it would be like if a crisis or disaster of similar proportions hit this Commonwealth or the United States, and a similar percentage of its major officers and officials were “taken out,” as was done in the Penn State crisis?

The fact is that, since the inception of this crisis, the Board of Trustees of Penn State has been behaving in a manner that is irrational. I believe that the Legislature has a duty to call in its members and ask them to account for their behavior. Until this crisis of human character is addressed, the problems at Penn State will fester.

A Personal Note

Not long after I was initially elected to the Board of Trustees at Penn State and observed their behavior, I purchased 32 copies of the booklet by Robert K. Greenleaf entitled “Trustees as Servants,” and sent a copy to each of the Trustees. This was done at my own expense (at that time each booklet cost $6). Only one Trustee at that time acknowledged the gift, and no others even mentioned it. But I recommend it for Board members today as much as I did then, and I also recommend it to this Committee and its staff as a basis for understanding the duties of a Trustee. 

Additional Attachment

I am also sending by mail a set of articles with the first page titled: Collected PSU Articles (1996-2011). These comprise 10 articles published by Robert L. Horst regarding the manner of election of the Business and Industry Trustees. I believe they show the problems with this particular issue, the attitude of a major core of the Board, as well as the general problem of human breakdown in following normal organizational norms.