As one with a fair amount of experience conducting and advising companies re: internal investigations, here are my thoughts -
First, from a legal standpoint, the ultimate question of whether the accusations are accurate means very little in the context of Boeheim or SU. Its very possible we never know with certainty the answer to that question, but setting that aside...I've seen many comments that JB and Schwartz both went "all in" and one of them will lose their job at the end of this. I do not understand that and legally speaking that does not make sense, absent some additional information coming forward that Boeheim/SU knew or turned a blind eye, etc. I think PSU has caused the nation, and many on this Board, to take an inaccurate view of the extent to which a a staff member's culpability can indict a school or a head coach. So, if others come forward and it appears likely or certain that Fine is guilty, yet it still appears that Boheim had no idea, or reason to know, and was truthful in his opinions given in the last week, he will not have done anything wrong (save some poor judgment in not measuring his words more carefully) and there would be no legal reason to terminate him (perhaps a PR one, though I would not even understand that). Even then this would be nothing like Penn State. Not even close.
Second, with respect to SU, from what I can tell, the school did exactly what an employer should do when it receives a serious complaint like this -- thoroughly investigate. These investigations are often investigated w/o counsel, but for the more serious accusations retaining counsel is normally prudent. It is absolutely inconceivable to me that an investigation led by a reputable law firm would be anything less than thorough or that it would be conducted with a pre-determined conclusion. To the contrary, I expect the law firm has thorough notes of its interviews and its reasoning and conclusions are clearly set out and factually supported. These investigations often require that credibility determinations be made. In this context, it really does not matter if the ultimate conclusion -- that the accuser was not sufficiently credible -- proves incorrect. Employers are not required to reach the correct answer -- that is an impossible standard -- they are required to investigate sufficiently and then take whatever action is dictated by its findings. Two employers with identical facts may reach different conclusions -- and there is nothing wrong with that. So, as with JB, if the only new facts we learn is additional information proving, or at least suggesting, that Fine is guilty, that does not mean SU did not handle this properly. As an aside, I do not understand the questions of whether SU told the police in 2005 if, as I understand, the police told SU in 2003 that the SOL had run. What would be the point in that? Also, these investigations are often conducted with the intention of not asserting an a/c privilege over it -- SU may one day elect to produce this investigative report to show exactly what it did any why it concluded as it did.
Likewise, even if Fine is ultimately shown to be guilty, or likely guilty, that does not change how one should judge Schwartz. His handling of this has been unconscionable, unless he knows more than I understand him to know at this time. If 2 more accusers came out tomorrow, that would be irrelevant to an assessment of whether he handled this properly. Perhaps the fact that the police opened an investigation was enough to give him the green light to go with the story -- that is a question for the journalism experts -- but a common sense view of his actions and his unbelievable effort to persuade the viewers and indict Fine seem way beyond any definition of professionalism.
I do not mean to suggest from any of the above that Fine is likely guilty. I have no idea, and thereline lies the absolutely tragedy to Bernie if he is innocent. It is hard to believe that Bernie is guilty if no one else steps forward, so with each day I become more hopeful he is not, but its also hard to understand why the police are investigating in 2011 allegations they looked into in 2003 simply because a prior witness now says "me too." That does not make sense, but perhaps that is SOP when a victim's claims are corroborated, albeit by one who previously said otherwise.
First, from a legal standpoint, the ultimate question of whether the accusations are accurate means very little in the context of Boeheim or SU. Its very possible we never know with certainty the answer to that question, but setting that aside...I've seen many comments that JB and Schwartz both went "all in" and one of them will lose their job at the end of this. I do not understand that and legally speaking that does not make sense, absent some additional information coming forward that Boeheim/SU knew or turned a blind eye, etc. I think PSU has caused the nation, and many on this Board, to take an inaccurate view of the extent to which a a staff member's culpability can indict a school or a head coach. So, if others come forward and it appears likely or certain that Fine is guilty, yet it still appears that Boheim had no idea, or reason to know, and was truthful in his opinions given in the last week, he will not have done anything wrong (save some poor judgment in not measuring his words more carefully) and there would be no legal reason to terminate him (perhaps a PR one, though I would not even understand that). Even then this would be nothing like Penn State. Not even close.
Second, with respect to SU, from what I can tell, the school did exactly what an employer should do when it receives a serious complaint like this -- thoroughly investigate. These investigations are often investigated w/o counsel, but for the more serious accusations retaining counsel is normally prudent. It is absolutely inconceivable to me that an investigation led by a reputable law firm would be anything less than thorough or that it would be conducted with a pre-determined conclusion. To the contrary, I expect the law firm has thorough notes of its interviews and its reasoning and conclusions are clearly set out and factually supported. These investigations often require that credibility determinations be made. In this context, it really does not matter if the ultimate conclusion -- that the accuser was not sufficiently credible -- proves incorrect. Employers are not required to reach the correct answer -- that is an impossible standard -- they are required to investigate sufficiently and then take whatever action is dictated by its findings. Two employers with identical facts may reach different conclusions -- and there is nothing wrong with that. So, as with JB, if the only new facts we learn is additional information proving, or at least suggesting, that Fine is guilty, that does not mean SU did not handle this properly. As an aside, I do not understand the questions of whether SU told the police in 2005 if, as I understand, the police told SU in 2003 that the SOL had run. What would be the point in that? Also, these investigations are often conducted with the intention of not asserting an a/c privilege over it -- SU may one day elect to produce this investigative report to show exactly what it did any why it concluded as it did.
Likewise, even if Fine is ultimately shown to be guilty, or likely guilty, that does not change how one should judge Schwartz. His handling of this has been unconscionable, unless he knows more than I understand him to know at this time. If 2 more accusers came out tomorrow, that would be irrelevant to an assessment of whether he handled this properly. Perhaps the fact that the police opened an investigation was enough to give him the green light to go with the story -- that is a question for the journalism experts -- but a common sense view of his actions and his unbelievable effort to persuade the viewers and indict Fine seem way beyond any definition of professionalism.
I do not mean to suggest from any of the above that Fine is likely guilty. I have no idea, and thereline lies the absolutely tragedy to Bernie if he is innocent. It is hard to believe that Bernie is guilty if no one else steps forward, so with each day I become more hopeful he is not, but its also hard to understand why the police are investigating in 2011 allegations they looked into in 2003 simply because a prior witness now says "me too." That does not make sense, but perhaps that is SOP when a victim's claims are corroborated, albeit by one who previously said otherwise.
