Allegations of Employee Misconduct
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Lessons Learned from Penn State: Allegations of Employee Misconduct Diane Marshall-Freeman Terilyn Finders Fagen Friedman & Fulfrost Sources The Grand Jury Report – 23 pages The Freeh Report (Internal Penn State Investigation) – 267 pages Louis Freeh Statement – 7 pages 2 3 Lessons Learned From Penn State “Evil flourishes when good men do nothing. And at Penn State, a lot of men — good or not — did nothing when one of the greatest evils imaginable was perpetrated against some of the most defenseless among us.” (Quote from Tracee Hamilton, Washington Post Sports, November 11, 2010.) 4 Key Facts Gerald “Jerry” Sandusky employed at Penn State for 23 years as the defensive coordinator. In 1977, Sandusky starts “The Second Mile” program, a charity dedicated to helping children with absent and dysfunctional families. Through Second Mile, Sandusky has access to hundreds of boys. The Second Mile Camp was held on the Penn State campus. 5 Key Facts Ten victims, ages ranging between 7 – 13. Gifts – golf clubs, gym clothes, shoes, Philadelphia Eagles games, Penn State football games, dinners . Serial sex abuse of minors, including oral copulation, rape, and fondling. Sandusky convicted of 45 of 48 criminal counts. 6 Lesson #1 - Failure to report 7 Victim 2 March 1, 2002, a Penn State graduate assistant, Michael McQueary, witnessed a 10 year old student being subjected to anal intercourse in the showers of the football building by a naked Sandusky. McQueary immediately telephones his father. 8 Victim 2 March 2, 2002 – McQueary tells Coach Paterno. March 3, 2002 – Coach Paterno tells Tim Curley, Penn State Athletic Director. Later in March – Curley convenes a meeting with McQueary and Gray Schultz, senior vice president of finance and business. Curley and Schultz state they will “look into” the incident. 9 Victim 2 On or about March 27, 2002 – Curley tells McQueary that Sandusky’s locker room keys have been taken away and the matter has been reported to The Second Mile program. Curley later advised Graham Spanier, President of Penn State, of the information he had received from the graduate assistant and the steps he had taken. 10 Victim 2 McQueary is never questioned by university policy and no other entity conducts an investigation until the graduate assistant testifies during grand jury proceedings in December 2010. 8 YEARS LATER! 11 Report Child Abuse! “An oral report should have been made to Centre County Children and Youth Services but none was made. Nor was there any 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. The failure to report is a violation of the law which was graded a summary offense in 2002, pursuant to 23 Pa.C.S. §6319.” Grand Jury Report, p.12. 12 Report Child Abuse! School districts are not guarantors of student safety from sexual predators. However, once a district knows (or should know) of improper conduct, it has a duty to stop it and prevent it from recurring. 13 Lesson #2 Failure to Know the Law/Policies Pennsylvania Child Sexual Abuse Reporting Requirements The Federal “Clery Act” – requires the University to collect and report of crime statistics AD 39 – Minors Involved in University Sponsored Programs HR 99 – Background Check Process University Child Protection Policies Use of University Facilities by Third Parties for Youth Program 14 Sound Familiar? § 6311. Persons required to report suspected child abuse. (a) General rule.--A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. 15 What is Child Abuse? California Law Physical abuse Sexual abuse Neglect Emotional abuse 16 What is Physical Abuse? Physical injury or death inflicted by other than accidental means Willful harming or injuring of a child Willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering Willfully causes or permits child or child’s health to be endangered (Pen. Code § 11165.3) 17 What is Physical Abuse? Unlawful corporal punishment Willful infliction of cruel or inhuman corporal punishment or injury resulting in traumatic condition (Pen. Code § 11165.4.) 18 What is Sexual Abuse? Sexual assault Sexual exploitation Rape/statutory Child pornography rape/“gang rape” Child prostitution Incest (Pen. Code § 11165.1(c).) Sodomy Lewd or lascivious acts upon a child Oral copulation Sexual penetration Child molestation (Pen. Code § 11165.1(a)&(b).) 19 What is Neglect? Negligent treatment of maltreatment of a child by a person responsible for child’s welfare indicating harm or threatened harm to child’s health or welfare Includes acts and omissions (Pen. Code § 11165.2.) 20 What is Neglect? Severe neglect Negligent failure of caregiver to protect child from severe malnutrition or medically diagnosed nonorganic failure to thrive Caregiver willfully causes or permits child or child’s health to be endangered, including intentional failure to provide adequate food, clothing, shelter, or medical care (Pen. Code § 11165.2(a).) 21 What is Neglect? General neglect Negligent failure of caregiver to provide adequate food, clothing, shelter, medical care, or supervision No physical injury to child has occurred (Pen. Code § 11165.2(b).) 22 What is Emotional Abuse? MAY report knowledge or reasonable suspicion of serious emotional damage or substantial risk of serious emotional damage, including Severe anxiety, depression, withdrawal, untoward aggressive behavior (Pen. Code § 11166.05.) 23 Who Are Mandated Reporters? Teachers Instructional aides Teacher’s aides/assistants employed by district Classified employees Administrative officers Supervisors of child welfare/attendance Certificated pupil personnel employees Administrators or employees whose duties require direct contact and supervision of children (Pen. Code § 11165.7.) 24 What is the Standard for Reporting Child Abuse and Neglect Knowledge Reasonable suspicion “Objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate on his or her training and experience, to suspect child abuse or neglect.” (Pen. Code § 11166(a).) 25 What is Reasonable Suspicion? Does not require certainty Does not require specific medical indication Does not require investigation When in doubt, report! 26 Reporting Police or sheriff department; or But not school district police/security County welfare department; or (Child protective services) County probation department If designated by county to receive reports Reporting to employer, supervisor, principal, school counselor, coworker, or anyone else is NOT enough! (Pen. Code § 11166(i)(3).) 27 How and When Do You Report? By phone Immediately or as soon as practicably possible AND written report Within 36 hours of phone call Send, fax, or electronically transmit written follow up report (Pen. Code § 11166(a).) 28 Consequences of NOT Reporting Failure to report Guilty of a misdemeanor Up to six months in county jail, or fine of $1000, or both (Pen. Code § 11166(c).) If abuse/neglect results in death or great bodily injury, up to one year in county jail, or fine of $5000, or both (Pen. Code § 11166.01(b).) Intentional concealment of failure to report known abuse or severe neglect Continuing offense until agency discovers offense (Pen. Code § 11166(c).) 29 Consequences of NOT Reporting Supervisors impeding/inhibiting reporting Up to six months in county jail, or fine of $1000, or both (Pen. Code § 11166.01(a).) If abuse/neglect results in death/great bodily injury, up to one year in county jail, or fine of $5000, or both (Pen. Code § 11166.01(b).) 30 Lesson #3 - Failure to Train Staff “Mr. Paterno said 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.’” – Excerpt from the Freeh Report 31 Remember – Condition of Employment California Law Mandated reporters must sign statement that he/she has knowledge of duties and will comply. Statement must inform employee that he/she is mandated reporter, inform employee of his/her reporting duties and of his/her confidentiality rights. District must provide copy of Sections 11165.7, 11166 and 11167 to employees. District must retain signed statement (Pen. Code § 11166.5(a).) 32 Lesson #4 – No “Unfettered” Access Victim 1 terminated contact with Sandusky in the Spring of 2008, when he was a freshman at Clinton County High School. Sandusky routinely had contact with Victim 1 where the school administration would call Victim 1 out of activity period/study hall to meet with Sandusky. No one monitored these visits. Sandusky had “unfettered access” to the school. Sandusky assisted with coaching