Divided Penn State board to meet this afternoon; Trustee legal action a rarity on college boards

The internal battle on Pennsylvania State University's board of trustees that has led to some trustees suing the school is rare – if not unique, according to officials from several national higher education groups.

None of the individuals contacted could think of any other case exactly like it in which sitting trustees had sued their own university for information, though certainly there have been plenty of instances of internal squabbles on university boards. At Dartmouth, the alumni association sued the board over its decision to expand and in effect dilute the power that alumni-elected trustees would have; that suit was eventually dismissed.

"It's such an unusual case. I don't know there's any precedent for it, at least not in the last dozen years or so," Richard Pokrass, a spokesman for the Middle States Commission on Higher Education, said of the Penn State situation.

Penn State reached out to Middle States – which accredits institutions – to make them aware of the situation, Pokrass said. The commission, he said, isn't overly concerned at this point.

"It doesn't appear to be affecting the operation of the institution," he said.

Penn State's board of trustees has weathered conflict since the Jerry Sandusky child sex abuse scandal roiled the campus in 2011 and dissatisfied alumni mounted concerted efforts to get elected as trustees. In 2012, some trustees reported getting hate mail and threats, and Twitter accounts that make fun of trustees have surfaced. Alumni routinely criticize the board during public comment period at meetings, and in the last year, someone in the audience at a meeting yelled "shame on you" at former board member Karen Peetz, who had led the university in the aftermath of the conflict.

Interaction at the board table also has been tense at times with a minority cadre of alumni-elected trustees seeking to exonerate the university in the Sandusky scandal and hold accountable the trustees who presided over the university in the aftermath.

The unrest intensified a couple weeks ago when some alumni-elected trustees filed suit against the university, demanding materials used to prepare the post-Sandusky investigative report by former FBI Director Louis Freeh. Alumni trustees have decried the report, which blamed former Penn State administrators for conspiring to cover up Sandusky's abuse.

The university has declined to make the confidential material available, asserting that employees and others who gave information were promised anonymity.

Alumni trustees recently filed a second suit, seeking information on candidates for open board seats. That matter has since been resolved; the university released the information with a promise by alumni trustees that they would keep it confidential. The board is scheduled to vote on those appointments at its meeting today, which is scheduled to start at 1:30 p.m.

Alumni trustees say they filed their suits out of frustration, after their information requests were repeatedly snubbed. They say they need the information to carry out their fiduciary duties as board members.

But some disagree with their approach.

"I think it's terrible," said Merrill Schwartz, vice president for AGB Consulting Association of Governing Boards of Universities and Colleges, a non-profit that counts more than 1,300 university boards among its members, including Penn State.

Board members should not be using their positions for personal agendas, she said..

"As trustees they accept responsibility to act in the best interest of the whole institution," she said. "…Not everyone is up to the task of serving a larger purpose than themselves."

She doubted that the trustees need the information they've requested to carry out their duties.

Peter McDonough, interim general counsel for the American Council on Education, said he was not familiar with the Penn State case and therefore declined to comment on it, but he said the issue of what constitutes fiduciary duty is being talked about more at the university level.

Trustees have both a "duty of care" and a "duty of loyalty," he said.

"A trustee's duty of care requires the trustee to act in a reasonable and informed way in the board decision-making process, exercising independent judgment, with the care that an ordinarily prudent person in a similar position would believe appropriate under the circumstances," he said. "Being informed means that trustees need to inform themselves of material information reasonably available to them prior to making a board decision. While the board must be reasonably informed, it is not required to be informed of every fact."

"The duty of loyalty," he continued, "requires trustees to exercise their powers in good faith and in the best interests of the corporation, rather than in their own interests or the interests of another entity, constituency, group or person."

The matter has frustrated Penn State President Eric Barron, who earlier this week blasted the alumni trustees – Anthony Lubrano, Barbara Doran, Alice Pope, Bill Oldsey, Ted Brown, Ryan McCombie and Robert Jubelirer - in an email that he then released to the media. On Thursday, Barron said the alumni trustees indicated in their responses to him that they were not happy he chose to speak out.

Doran said she would have preferred to have the discussion in private.

"It pains me deeply to see his response to our efforts to try for a level of transparency and openness that has not always been there on this board," she said. "But it speaks to a level of frustration that is understandable."

Barron said he won't back down – either on the trustees' demand for confidential material used to prepare the Freeh report or on his criticism of their actions.

"My job is to protect the university," Barron said.

Meanwhile board Chair Keith Masser said he backed Barron's actions.

"I share President Barron's sentiments," he said.

Despite the obvious tension, board members on Thursday joked about the conflict several times and did their business without incident.

During a meeting of the board's outreach committee on Thursday, members went around the table and shared opening comments.

"I guess my other good news is I'm not suing anybody," trustee Paul Silvis said, smiling and putting his arm around McCombie, who smiled as well.

Silvis later said: "I'm trying to lighten the atmosphere."

Whether that will continue at today's regular board meeting is uncertain.