Penn State’s GC was criticized too harshly for her role in the Sandusky scandal

Our in-house expert believes Cynthia Baldwin did her best in an ugly situation

Pennsylvania State University never had a general counsel until January 2010, when then-University President Graham Spanier appointed Cynthia Baldwin, a private practice lawyer and former Pennsylvania Supreme Court Justice, to the position. He made the appointment following a 2009 external peer review, commissioned by then-Senior Vice President of Finance and Business Gary Schultz. Coincidence or not, Baldwin’s appointment came just weeks after Penn State received the first grand jury subpoenas in the criminal investigation of former assistant football coach Jerry Sandusky for child molestation that eventually became a national media story. Baldwin’s tenure ended when she resigned in June 2012, about a week after Sandusky’s conviction.

In November 2011, following the indictment and arrest of Sandusky, the Penn State Board of Trustees hired the law firm of former FBI Director Louis Freeh to investigate how Sandusky had repeatedly molested children for years without being turned in by Penn State administration, and what needed to be changed about university governance to ensure it wouldn’t happen again. In its July 2012, report, Freeh’s firm concluded that Spanier, Schultz, football coach Joe Paterno, and the athletic director had covered up Sandusky’s abuse of children, and that the university board of trustees had failed to understand the seriousness of the situation and the subsequent fallout.

The Freeh report’s claim that Baldwin opposed an internal investigation is based on a single confidential email from Baldwin to Spanier discussing the down side of creating such a body. Just because Baldwin looked at the cons of an internal investigation does not prove that she opposed one. The board of trustees itself never raised the idea of an internal investigation (until the board commissioned Freeh’s firm). Launching a purely administrative investigation on top of an ongoing criminal investigation would not have been a good idea. Dealing with subpoenas and requests for interviews from the attorney general was Baldwin’s first order of business as general counsel.

The report comments in passing that Baldwin failed to engage outside lawyers with experience in addressing criminal investigations or conducting internal investigations when Penn State received the December 2010, subpoenas for Paterno and others to testify. I’m not aware of any rule that says an in-house lawyer has to go running to outside counsel any time trouble shows up at the door. Baldwin had been a trial judge for 16 years and also sat on the PA Supreme Court. She knew something about discovery and criminal procedure.

If there was a written report from the 2009 external peer review leading up to the creation of the GC’s office at Penn State, I haven’t seen it. Nor do I need to see such a report to know that it would not have recommended filling the GC position on an interim basis, or that the position should share university-wide legal responsibilities with a plain vanilla local law firm at Spanier’s direction.

If Cynthia Baldwin is to blame for anything, it’s that she should not have accepted the Penn State general counsel job as the job description had been written. A general counsel needs to have the power to render final judgment on all legal matters impacting an organization, including when and how to use outside counsel. You can share day-to-day legal operations with sales departments, CFO’s, etc. But at the end of the day one person has to own legal decision making authority. We can’t know the full impact that marginalizing the Penn State GC position had on how Baldwin was perceived within Penn State and how that perception factored into Baldwin’s difficulties. The lack of clarity about who the attorney representing Penn State during the investigation was certainly hindered Baldwin.

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Eric Esperne

Eric Esperne is counsel for Dell Services and is located in Canton, Mass. He has more than 15 years experience as in-house counsel for government,...

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