Penn State trustees heard university’s diversity plan in secret 2021 gathering

A version of this story first appeared in Talk of the Town, a weekly newsletter by Spotlight PA’s State College regional bureau featuring the most important news and happenings in north-central Pennsylvania. Sign up for free here.

STATE COLLEGE — Former Penn State President Eric Barron and members of the university’s Board of Trustees may have violated Pennsylvania’s open meetings law in early 2021, according to a “confidential” document obtained by Spotlight PA.

According to the document — allegedly penned by one or more anonymous trustees at the time — Barron presented his diversity, equity, and inclusion recommendations to the board Jan. 11, 2021.

Barron’s plan was the result of months of work by the Select Penn State Presidential Commission on Racism, Bias and Safety — a project that the president later said involved more than 6,000 employees and students — after the police killing of George Floyd in May 2020.

The trustees’ website has no record of any presentation, call, or meeting on that date. The board’s governing documents require it to provide public notice at least three days before a regularly scheduled meeting and 24 hours prior to a special meeting.

The board is also required to make available the minutes for all public meetings, including those of committees and subcommittees.

Barron, during a Jan. 26, 2021, meeting of the university’s Faculty Senate, said the trustees had “held a discussion” on the select commission’s report and his proposals. The president did not offer additional information at the time.

Shannon Harvey, director of Penn State’s Office of the Board of Trustees, confirmed the date of the presentation and told Spotlight PA in an email that Barron’s presentation was not a meeting but rather a “conference” as defined under the state’s Sunshine Act.

Conferences, according to the state law, can only take place in limited circumstances, primarily as a “training program or seminar, or any session arranged by State or Federal agencies organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.”

The Sunshine Act requires government bodies to make their meetings open to the public and provide advance notice before such meetings whenever there will be deliberation or official action. These groups are not allowed to deliberate during conferences.

A citizen’s guide to the state’s open meetings law created by the Widener University Commonwealth Law School, and based on case law, states that deliberation occurs when the majority of a group’s members discuss a topic and the conversation informs a decision on the matter.

“Simply discussing an issue to familiarize oneself with it can qualify as a deliberation, so long as a majority of the agency’s members are present,” the guide reads.

Reporting by Spotlight PA earlier this year raised questions about how Penn State trustees interpret the state’s open meetings law after the newsroom learned the board’s executive committee had regularly been meeting in secret conferences for more than a decade. The board has maintained that it is in compliance with the law, but media law experts have questioned trustees’ use of the provision.

Experts told Spotlight PA it is hard to know if trustees violated the law during the January 2021 gathering without more information about what occurred.

Melissa Melewsky — media law counsel with the Pennsylvania NewsMedia Association, of which Spotlight PA is a member — said the Sunshine Act is difficult to enforce because it requires proving an agency knowingly violated the law.

The law allows for fines ranging from $100 to $1,000, plus the cost of prosecution, for a first offense. The fine increases to $500 to $2,000 for subsequent offenses.

Melewsky questioned why the board’s January 2021 gathering needed to occur without the public’s knowledge. Barron had publicly discussed his plan in weeks before the board gathering, including during a December 2020 town hall, multiple university news releases, and at least twice before the Faculty Senate.

The board’s private session does not make sense from a public policy or public relations perspective, Melewsky said.

“It does nothing but create the appearance of impropriety,” she said.

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