Grand Jury Report Sheds Light on McQueary's Whistleblower Status

There has been much debate about whether Coach Mike McQueary is a whistleblower. While the NWC takes no position on the outcome of the investigation, there are two facts that are important to note.

First, McQueary’s initial report as a graduate assistant to his supervisor, Joe Paterno, was a protected disclosure under Pennsylvania law. The Pennsylvania whistleblower law protects employees who “report” wrongdoing “verbally” to their “superior” or to an “agent of the employer.” McQueary also went beyond just reporting it to his supervisor. He reported what he saw to two high-ranking university officials, including a senior Vice President who had supervisory authority over the campus police.

Second, McQueary’s testimony concerning Gerald Sandusky to the grand jury is protected whistleblower speech. The public interest is served when employees provide truthful testimony about their employer’s misconduct.

In my 28 years of experience representing whistleblowers, I have seen employees sit in court and shield their employers, often conveniently forgetting key facts. This appears to have happened in this case. The grand jury found portions of testimony by two key university officials, Tim Curley and Gary Schultz, not credible after they sugar coated and downplayed the abuse that was reported to them by McQueary. According to the grand jury report, Schultz was “very unsure” about what McQueary told him, and he testified that McQueary’s allegations were, “not that serious,” and that there was, “no indication that a crime had occurred.” This type of obfuscation and loss of memory is typical of managers covering up wrongdoing.

McQueary’s statements to the grand jury impeached the testimony of Curly and Schultz and also former Penn State President Graham Spanier. Spanier tried to downplay Sandusky’s apparent crimes by testifying to the grand jury that Sandusky’s rape on campus property was inconsequential and simply made a staff member “uncomfortable.”

Based on McQueary’s testimony, the grand jury was able to pierce the veil of secrecy that Penn State tried to create to protect itself. Although serious questions remain as to what happened between McQueary’s report in 2002 and his testimony to the grand jury, without his testimony the apparent lies of Curley, Schultz, and Graham would not have been contradicted.

The NWC is extremely troubled by the evidence of a culture at Penn State conducive to cover-up. The grand jury report described another instance of sexual abuse that was witnessed by James Calhoun, a janitor at Penn State. Fellow employees described that Calhoun was so disturbed by what he witnessed that he was “crying” and “shaking,” and they feared that he might have a heart attack. The report explains that the employees expressed concern that if they reported the incident, “they might lose their jobs.” Calhoun did tell his immediate supervisor, who simply told him where he could report it, if he chose to do so. Calhoun did not file a report. This is a strong indication of a culture at Penn State that discouraged employees from blowing the whistle.

Most Americans are apathetic to whistleblower rights and the problems that confront employees who have the courage to speak up until the misconduct hits them. The child sex abuse scandal at Penn State is disturbing, but sadly not unique.

The vast majority of people who witness misconduct never report it outside their chain of command, and only 2% of people who witness misconduct take their complaints to any outside source, let alone the police. Some say that child abuse is different, and that one should report directly to the police, but scandals such as those in the Catholic Church and the FBI have repeatedly shown that child abuse is not immune to the chilling effect culture that is pervasive in our society.

In one telling example, the NWC helped former 25-year FBI veteran Agent Jane Turner when she blew the whistle on the FBI’s failure to investigate documented child abuse cases. The FBI failed to prosecute the rape of a 3-year old boy and a serial child molester who was a local celebrity. When Ms. Turner came forward, there was no public outcry. Even though she eventually won her case, her career was destroyed. Her experience demonstrates how hard it is to blow the whistle on child sex abuses cases that negatively affect powerful institutions.

In Jane Turner’s case every manager that covered up the rape of a 3-year old boy was protected and promoted within the system. Our repeated requests for accountability for the child sex crimes program were ignored despite four letters sent to the Attorney General, Department of Justice Inspector General and the FBI Director.

There is no federal law protecting whistleblowers who report violations of child sex crimes. These employees are left to hunt for state laws that provide protection, if any such protections exist at all. There are a surprising number of areas that are “no man’s land” for whistleblowers. For instance, there is no federal law to protect nurses and doctors who uncover evidence of sexual abuse of their patients.

Unfortunately, we live in a society where loyalty to one’s employer is placed above the public interest, even in the most horrendous circumstances. Until there is a culture change, crimes such as those that occurred at Penn State will continue to remain a secret from law enforcement.