Court forces turnover in Paterno salary case

Pennsylvania high court rules that state must reveal the legendary football coach’s earnings despite university objections.

From the Winter 2008 issue of The News Media & The Law, page 14.

By Scott Albright

When veteran newspaper reporter Jan Murphy decided to push for the release of salary-related information from Penn State University five years ago, she faced an obstacle as intimidating as any Nittany Lion offensive lineman: Joe Paterno’s reputation.

A beloved figure who has coached Penn State’s football team for 42 years, Paterno’s old-fashioned modesty, his generosity in giving back roughly $4 million over the years to the university and his 372 wins have earned him a degree of fan loyalty that is arguably unmatched in college sports.

Such protective dedication became particularly evident when some fans perceived Murphy’s attempts to obtain university financial information that included Paterno’s salary as an irreverent breach of the 80-year-old coach’s privacy. After the Pennsylvania Supreme Court ruled on Nov. 20 that the state’s Right to Know Act mandated the information’s disclosure, the Patriot-News [Harrisburg] reported Paterno’s base salary to be $512,664 in 2007.

"Shame on you, Patriot-News," one reader, identified only as "GT," commented online after reading about Murphy’s story as reported by the Chronicle of Higher Education. "You should be raising this man upon your shoulders instead of the. . .proverbial flag pole!"

Paterno’s salary had been a closely guarded secret for decades. But after the Pennsylvania State Employees’ Retirement Board (SERS) agreed to release Paterno and other university officials’ salaries to the Patriot-News, the university sued to prevent the disclosure — and lost at every state court level.

The salaries were ultimately revealed after the state’s high court found the information to be public because it was submitted voluntarily through a contractual agreement as part of the state’s taxpayer-backed pension program. The court found that the salaries were integral components of the pension plan, thereby fitting into one of the state’s primary definitions for what constitutes a public record: "an account, voucher or contract dealing with the receipt or disbursement of funds by an agency."

Responding to reader criticisms, both Murphy and Craig Staudenmaier, an attorney who represented the Patriot-News in the litigation, emphasized that the newspaper’s intention was never to single out or embarrass Paterno. Rather, the real goal was to shed light on how taxpayer funds were generally being spent by the university, which received $349 million in state legislature-appropriated funds last year alone.

Operating in a state with a notoriously inhibitive open records law, Penn State has a reputation of being particularly secretive when it comes to disclosing financial information, Staudenmaier said. Similar information, including football coaches’ salaries, is easily available at other big-time football schools such as Iowa, Oklahoma, Alabama and Florida, according to a USA Today report.

And because the head coaches’ salaries at these schools are all above $3 million per year, Paterno’s salary of just over $500,000 seems ironically miniscule, given the public records fuss and coach’s stature as a proverbial living legend. The USA Today story noted that the average salary of the nation’s 120 major college football coaches is near $1 million.

"By today’s standards, [Paterno’s salary is] a bargain," the Philadelphia Inquirer wrote in November. "So why the big secret all these years?"

Murphy and Staudenmaier noted that SERS had readily been disclosing pension-related information about other state employees, but was seemingly applying a different standard when it came to Penn State figures.

"This case was never about Joe Paterno specifically," said Staudenmaier, who represented the Patriot-News in the lawsuit. "What the case was about was the disparity and unequal treatment under open records law."

Paterno’s base salary was just one of several released through the disclosure, but public reaction to the Patriot-News‘ persistence and the court’s decision on the issue consistently focused on Paterno.

Reader comments submitted to the various news Web sites covering the story and then e-mail messages to Murphy herself often assumed that the disclosure effort was a personal attack on Paterno and otherwise an invasion of privacy to anyone who might have to reveal salary information. Some of the comments were not only critical – but downright nasty.

"I hope that jerk reporter is happy," wrote "Tom. C" on the Chronicle of Higher Education site. "Come on she thought JoePa was in the milions (sic) per year HA, HA I love it!!!"

Even Penn State President Graham B. Spanier, in a June address to a Pennsylvania state Senate committee looking into public records law reforms, chastised the "prurient interests of newspaper editors who are looking for a headline about how much Coach Paterno makes," according to a transcript of Spanier’s remarks posted on the university’s Web site.

As a thick-skinned veteran with 27 years of journalistic experience, Murphy ignored the emotional insults and emphasized that her newspaper’s goal was simply to track expenditures of public funds.

Perhaps most importantly, Murphy said the salary disclosure enhanced the public debate on the issue.

"Some said it made Penn State look better in some people’s eyes because it wasn’t paying salaries to these folks in the million-dollar range," Murphy said. "Others said these individuals are well worth what they get paid. Others who reacted negatively apparently thought they were better off not knowing."

"But the point is they [now have] a choice of knowing it or not," she said. "Before The Patriot-News forced the issue about opening up these records, they didn’t."

Murphy cited a recent scandal involving the Pennsylvania Higher Education Assistance Agency (PHEAA) that was exposed as a result of an open records request filed by multiple news organizations in the state, as a good example of why open records laws are essential to good, honest government.

In that case, financial records revealed that PHEAA executives were receiving relatively exorbitant salaries and lavish benefits, such as luxury retreats featuring perks that included spa treatments and falconry lessons.

The PHEAA scandal combined with other recent high profile issues, such as a state legislator and judge pay raise controversy, helped push open records law reform to the forefront this year in Pennsylvania, which many open government advocates view to have some of the most deficient access laws in the nation.

As of press time, the reforms to the state’s "Right to Know Law" were awaiting passage in the Pennsylvania House of Representatives after passing the Senate on Jan. 29. The most significant change in the law, Staudenmaier said, is that all state agency records would be presumed available for disclosure unless they fit into narrowly defined statutory exceptions.

The law had previously offered a much more limited two-prong approach in determining what agency records must be disclosed.

Pennsylvania universities, such as Penn State, will not be greatly affected by the reforms, Staudenmaier said. Universities will have to annually release a statement by May 30 similar to the federal IRS form 990 that reports basic expenses and contributions, as well as listings of officers, directors and "key" employees, among other financial details, he said. In addition, the universities will have to list their 25 highest paid employees — a list that should include Paterno in Penn State’s case.

Penn State officials, meanwhile, have said releasing salary figures would make it more difficult to hire and maintain high-quality employees, arguing that disclosing salaries could create a "bidding war" for the best teaching and coaching talent not only between Penn State and other universities, but between separate colleges within PSU’s university system.

Beyond those arguments, the university simply believes its employees’ salaries are inherently private information that should only be released upon an employee’s approval, said PSU spokeswoman Lisa Powers.

"Most people don’t choose to release salaries, and there’s a reason for it," Powers said. "Most people do believe that it’s very personal."

The university has also noted that its football program easily generates enough revenue to support itself and many other programs. The $349 million the school received from the state represented just 9 percent of the school’s 2007 budget, Powers said.

But Murphy argued that $349 million is $349 million — a lot of money regardless of the university budget’s total size. Moreover, Staudenmaier noted that the pension program into which some Penn State employees contribute is guaranteed by taxpayer money should the program’s investments ever fail.

By checking up on Penn State’s use of taxpayer funds, the newspaper is simply performing its important watchdog role, Murphy said.

"This is just about telling people, ‘This is your money and this is how it is being spent,’" she said.