Last year, I reported that the “Mann Inquiry Committee has probably made about as many procedural errors as it’s possible to make in the compass of a short report”, also noting that not all of them were to “Mann’s benefit”. Wendell Courtney, much in the news this week, advised the Inquiry Committee.
In my earlier post, I was extremely critical of the legal advice that had permitted the Inquiry Committee to make so many procedural errors.
Given the publicity that this case has attracted and will continue to attract, you’d have that the university would have obtained the best possible professional advice on how to handle an inquiry and investigation from the Office of Research Integrity (or their equivalent at NSF). Instead, like Gerry North, they seem to have decided to “wing it” – an unfortunate decision that will do nothing except prolong the melodrama.
Most egregiously, the Inquiry Committee showed almost total disdain for the terms of reference for an inquiry committee, which according to Office of Research Integrity Guidelines, is charged only with determining whether there is a prima facie basis for an investigation and which are not supposed to usurp the duties of an investigation committee. ORI policies state (and see contemporary CA post for a more detailed review):
In general, absent full admissions, inquiries should not be used to make findings on whether research misconduct in fact occurred.
The Inquiry Committee did exactly the opposite. It disregarded Office of Research Integrity Procedures, taking no evidence from critics, while considering defence explanations that should properly have been presented to a properly constituted and resourced investigation committee. The Inquiry Committee deep-sixed the major issues, resulting in the consternation expressed by Lindzen to the later investigation committee when he learned that they weren’t actually investigating the most controversial Climategate issues (e.g. the trick to hide the decline, the email deletion enterprise or longstanding questions about the failure to report adverse verification statistics.)
The total disregard of the Inquiry Committee for required procedures certainly raised questions in my mind about the competence of Penn State counsel, as is clear from earlier post. From the report of the Inquiry Committee, we know that University counsel, Wendell Courtney, attended the January 26, 2010 meeting of the inquiry committee:
On January 26, 2010, Dr. Foley convened the inquiry committee along with University counsel, Mr. Wendell Courtney, Esq. in case issues of procedure arose.
Courtney is very much in the news over the present Penn State scandal, particularly over his apparent failure to notify Second Mile about investigation information about Sandusky obtained in his capacity as counsel to Penn State. Courtney’s role, if any, in concealing the Sandusky scandal is going to be closely examined. Courtney’s denial of any awareness was given little credence by a spokesman for the Attorney General:
He [Courtney] said he did not begin to represent The Second Mile until early 2009 and withdrew as the organization’s counsel on Monday, after two top Penn State officials were charged with perjury in connection with allegations that Mr. Sandusky sexually abused eight children.
Nils Frederiksen, spokesman for Attorney General Linda Kelly, dismissed Mr. Courtney’s claim.
“It’s clear from the findings of the grand jury that Mr. Courtney had direct dealings with both Penn State and The Second Mile and he had knowledge and was aware of the 1998 incident,” he said.
The story goes on to say that Courtney was replaced last year as general counsel when Penn State appointed an in house general counsel:
The university replaced Courtney and McQuaide Blasko as general counsel last year when it hired former Duane Morris partner Cynthia Baldwin—who served as a justice on the Pennsylvania Supreme Court from 2006 to 2008—as its first in-house general counsel
Baldwin’s appointment was announced on January 26, 2010, the very date on which Courtney was counseling the Mann Inquiry Committee on its botched procedure.
Courtney’s failure to ensure that the Inquiry Committee observed required protocols obviously appears in a new light given what we now know of his handling of other situations that might place Penn State in a bad light.