Recent events have rightfully damaged public confidence in Penn State’s internal procedures for handling evidence of unethical behavior by members of the university community. How can confidence be re-established? Let’s approach the big question by asking some smaller ones. Consider the interplay between confidence and confidentiality.

It may surprise some readers to learn that the veil of secrecy as regards the practice and outcome of ethics inquiries at Penn State can extend even to the alleged victims and reporters of possible misconduct. Current policy, as I understand it, states that the findings of ethics investigations are held secret by the administration. Disciplinary actions are never shared, and findings of misconduct or lack thereof are not shared with victims unless they are also the reporters. In addition, the reasoning used to justify the conclusions of ethics investigations is not shared, even with those who reported the behavior. Obviously, the Freeh report – shared openly – is a massive exception to this policy. But my understanding is that the policy of secrecy still stands as the default course of action for all other misconduct investigations. (If I am wrong, please send me a note outlining the evidence to the contrary).

Should a victim of an ethics violation be informed of the outcome of ethics investigation, if s/he is not also the reporter? 

Should those who make ethics allegations be informed of the basis for decisions reached in the resulting investigations?

Does a policy of secrecy contribute towards developing public confidence in the quality of Penn State’s ethics decision making?

Confidentiality has costs and benefits to all parties involved: the accused, the accuser, the victim, the institution, the general public. Confidentiality protects from adverse public reactions against reporter (who may be anxious and vulnerable), the accused (who may be wrongly accused) and the decision makers (who may benefit from a lack of public scrutiny of their deliberations). On the cost side of the ledger, decision makers in secret proceedings know that their reasoning will not be subject to public scrutiny and thus weak decisions will not be exposed. Also, wise decisions will neither educate the wider community nor contribute to an institutional or personal reputation for making good decisions. The tradeoff of cost and benefit is complex. Let’s try to clarify the issue by  briefly expanding the scope of discussion from institutional ethics proceedings to the broader governmental criminal and civil justice system, a system with which most people are more familiar.

Would you rather stand accused of misconduct in a country with open court proceedings and public decisions, or in a country with closed proceedings and secret decisions? 

Of course a criminal justice system is different from an institutional ethics system, but perhaps the analogy is enlightening.

Making administrative decisions is difficult and stressful. From the administrator’s point of view, the process would be tidier and more easily managed if the public could not view the progress of investigations or the content of final decisions.Secrecy is thus attractive to the administrative mind, independent of its positive and negative effects on the other parties involved. Where a subtle balance of costs and benefits is involved and the decision-makers themselves individually benefit from secrecy, then policy will naturally skew towards secrecy over time. If the decision-makers are also the policy-makers, then policy on ethics investigations will tend to drift towards excess secrecy in the absence of a sustained, overt institutional effort to counteract this natural tendency. Excess secrecy will then tend to weaken the rigor of the resulting decisions.  This is not malfeasance: every incremental policy decision towards secrecy will have an admirable justification in the conscience of the decider. But the aggregate trend is worrisome and can be damaging to an institution, especially since the worst decisions are sometimes taken by people who convince themselves that they are making good decisions.

Current practice (I do not call it a policy since I don’t think any conscious policy decision was involved here) is that the general members of the Penn State community are educated in proper ethical conduct not from actual decisions at Penn State (which are generally held secret, as discussed above), but from secondary sources such as training materials, media reports, or rumors. High-quality scholarship requires critical analysis and discussion of primary sources, the type of rigorous inquiry that has established Penn State as a leading research university.

Does a practice of hiding primary ethics source material contribute towards developing community understanding of ethical principles and procedures? 

Should faculty, staff and students – and the wider Penn State community – learn of proper ethical conduct from primary or secondary sources?