Penn State’s Board of Trustees deliberated Beaver Stadium renovation plans in private meetings, a potentially inappropriate discussion under the state’s open meetings law.
Alumni-elected trustee Anthony Lubrano said the conduct is part of a broader practice by university leadership of subverting Pennsylvania’s Sunshine Act, a key transparency law. Legal observers also questioned the trend.
Board chair Matthew Schuyler disclosed the subject of the trustees’ private meetings during a heated exchange last week. At a May 21 special meeting — during which the board approved an up to $700 million renovation plan for the football stadium — Schuyler asked trustees to limit their comments to two minutes.
Alvin de Levie, an alumni-elected trustee, said the board should not rush the vote and suggested delaying it for several weeks.
Schuyler told de Levie that the trustees “had months and months and months of dialogue on this, and years of discussion.” He later added that the special meeting was “not meant to be point, counterpoint debating.”
De Levie, who said at the time he was not sure how he would vote, told Schuyler he wanted the board to deliberate.
“We’ve had multiple opportunities to deliberate in our executive sessions, as you’re aware,” Schuyler responded.
Deliberation, as defined by the Sunshine Act, is “the discussion of agency business held for the purpose of making a decision.” Governing boards must take official action in public, but they can deliberate during executive sessions.
However, the law mandates that deliberation can happen behind closed doors only for certain reasons — to discuss pending or current litigation, academic standings, employment terms, real estate negotiations, or topics that “violate a lawful privilege” or disclose legally protected confidential information.
At the start of the May 21 meeting, Schuyler said “the board held an executive session prior to this meeting to review and discuss elements of the Beaver Stadium renovation that if conducted in public would lead to the disclosure of information or confidentiality protected by law.”
Tabitha Oman, vice president and general counsel for Penn State, told trustees later in the meeting that “the board may deliberate in executive session.”
Melissa Melewsky — media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member — said Penn State should disclose which law or legal privilege requires confidentiality. For example, if the university board needed to discuss specific students, it could cite the Family Educational Rights and Privacy Act, or FERPA, the federal law that controls access to education records.
Melewsky was skeptical that the Sunshine Act’s executive session exceptions, or other laws mandating confidentiality, would require trustees to deliberate the entire renovation plan in private.
“They are treating the transparency elements of the Sunshine Act as a mere formality,” she told Spotlight PA.
In an email, a Penn State spokesperson said the university could not answer questions from Spotlight PA due to an ongoing lawsuit between the newsroom and the university over alleged violations of the open meetings law by the Board of Trustees.
Spotlight PA, in partnership with the Reporters Committee for Freedom of the Press, sued the trustees in December for alleged violations of the Sunshine Act. The suit — which was amended to include additional alleged violations following the February board meeting — argues the trustees illegally conducted public business in private. The newsroom has documented a decadelong pattern of the board convening behind closed doors.
In its legal response to the allegations, the university said the lawsuit included “unsupported, vague allegations and bald conclusions of law.” The university maintains that it follows the law.
The case is ongoing in the Centre County Court of Common Pleas.
Craig Staudenmaier, an attorney with Cohen Seglias and an expert in Pennsylvania’s transparency laws, told Spotlight PA that he struggled to imagine how the law’s executive session parameters could apply to nearly all of the renovation plans.
Both Staudenmaier and Melewsky said it is difficult to know whether a governing board is abiding by the law during executive sessions because the public is not granted access.
As long as no one in the room discloses what happened, Staudenmaier said, “it’s virtually impossible to prove that they did something incorrect.” He described this as one of the biggest flaws in the state’s open meetings law.
Lubrano told Spotlight PA he remains troubled by how university and board leadership handle transparency with the public, as well as with some trustees.
“This is a problem that has plagued the governance of Penn State for as long as I’ve been on the board — our use and abuse of rules and laws,” Lubrano said.
Trustees typically meet for several hours in executive session the morning before each regularly scheduled public meeting. Lubrano said these morning sessions cover a variety of topics, “some of which are not protected [by law], but they would say they are.”
During the board’s public meeting in February, Lubrano attempted to force a vote on whether to name the football field at Beaver Stadium after former coach Joe Paterno. Afterward, board leadership scolded him in a private letter, suggesting that Lubrano should have raised the matter for deliberation during a private executive session, an action that likely would have run afoul of the open meetings law.
Board leaders have previously suggested that trustees ask questions during private sessions rather than during public meetings, according to internal communications obtained by Spotlight PA. During a May 2023 meeting, when a trustee gave his opinion about university spending, Schuyler responded: “Thank you for coming to life at our public sessions and not mentioning these things at our previous three sessions discussing these matters.”
90.5 WESA partners with Spotlight PA, a collaborative, reader-funded newsroom producing accountability journalism for all of Pennsylvania. More at spotlightpa.org.
