REPORT TO THE BOARD OF TRUSTEES OF SYRACUSE UNIVERSITY REGARDING THE UNIVERSITY’S RESPONSE TO ALLEGATIONS MADE IN 2005 BY ROBERT DAVIS AGAINST BERNIE FINE
A SPECIAL COMMITTEE OF THE BOARD OF TRUSTEES Deryck A. Palmer, Esq. (Chair) Richard L. Thompson, Esq. Hon. Joanne F. Alper Paul, Weiss, Rifkind, Wharton & Garrison LLP (Counsel to the Special Committee) Theodore V. Wells, Jr. Mark F. Pomerantz Michele Hirshman Roberto Finzi Kira A. Davis
Table of Contents EXECUTIVE SUMMARY ................................................................................................ 1 I.
The Establishment and Mandate of the Special Committee ................................... 8 A.
Events Leading to the Appointment of the Special Committee .................. 8
The Special Committee’s Composition and Mandate ................................ 9
The Engagement of Paul, Weiss as Counsel............................................. 10
The Special Committee’s Review ......................................................................... 11 A.
Procedures To Ensure Independence ........................................................ 11
Interviews Conducted ............................................................................... 11
Material Reviewed .................................................................................... 13
Expert Consultation .................................................................................. 14
Factual Findings of the Special Committee .......................................................... 15 A.
2002 & 2003: The Media Investigates Davis’s Allegations Against Bernie Fine ................................................................................................ 15
Davis’s 2005 Complaint to the University................................................ 20
The Anonymous Complaint ...........................................................20
The Initial Response to Davis’s Allegations ..................................20
BSK’s Investigation .................................................................................. 22 1.
BSK’s Prior Representation of the University ...............................22
Witness Interviews .........................................................................23
BSK and the University Do Not Contact Law Enforcement .........29
The Decision Not To Include in the Report Allegations that Laurie Fine Had Engaged in a Sexual Relationship with Both Davis and Basketball Players ................................................30
The Conclusion of the Investigation and BSK’s Written Report ............. 32
Conclusions ........................................................................................................... 33 A.
The University Responded in Good Faith to Bobby Davis’s Allegations ................................................................................................ 33
The Shortcomings in the University/BSK Response ................................ 35 1.
The Decision To Treat Davis’s Allegations as an Employment/Human Resources Problem ......................................35
The Decision Not To Contact Law Enforcement ..........................39
Weaknesses in the Investigation and the Written Investigation Report .......................................................................41
The Chancellor Did Not Notify Any Trustees of Davis’s Allegations or the Results of BSK’s Investigation ........................46
Recommendations ................................................................................................. 47 A.
Policies Concerning the Involvement of Minors in Any UniversitySanctioned Activities ................................................................................ 48
Policies Concerning Reporting of Alleged Serious Criminal Conduct ..................................................................................................... 49
Record-Keeping Practices with Respect to Allegations of Wrongdoing by Students, Staff, and Faculty ............................................ 50
Training for Faculty/Employees on New and Existing Policies ............... 50
CONCLUSION ................................................................................................................. 51
EXECUTIVE SUMMARY In November 2011, the media began to report allegations that Bernie Fine, then the Associate Head Coach of the Men’s Basketball team at Syracuse University, had sexually molested Robert “Bobby” Davis for many years, beginning when Davis was a child. Although certain media outlets had been privy to Davis’s allegations against Fine for almost ten years, they were not made public until late 2011. Immediately upon hearing the allegations, and upon learning that Davis had made the University aware of these allegations in 2005, the Syracuse University Board of Trustees formed a Special Committee to review the University’s 2005 response to Davis’s allegations of child molestation. As part of its review, the Special Committee retained Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul, Weiss”)—a law firm with no pre-existing professional relationship with either Syracuse University or the members of the Special Committee—to assist and advise the Special Committee in its work. The Special Committee’s mandate was limited. The Special Committee was not asked to decide whether Davis’s allegations were true or false. Law enforcement agencies are now actively considering that issue, and this Report expresses no opinion on it. Rather, the Special Committee was charged with reviewing the adequacy of the University’s response to Davis’s allegations when they were brought to the University’s attention. The Special Committee’s job was to decide whether the University had acted in good faith, and whether it could or should have done anything differently when it learned of Davis’s complaints. The Special Committee also has considered how the University might improve its policies and procedures, both to prevent sexual abuse of minors in connection with its programs, and for responding to sexual abuse allegations if and when they are made.
For reasons set out in detail in this Report, the Special Committee concludes that the University’s 2005 response to Bobby Davis’s allegations was prompt, appropriate, and undertaken in good faith and without any effort to conceal or “cover up” any conduct. Nevertheless, when viewed in hindsight, the process was imperfect, and some of the judgments made could have been better. We do not conclude, however, that a better process would have led to a different outcome. The basic facts are as follows: In 2002-2003, at least two University employees learned of Davis’s allegations in the context of inquiries being made by the Syracuse Post-Standard (the “Post-Standard”) and ESPN, and, in one case, when Davis himself reported to a then-Strength Coach (in response to Fine’s decision to remove Davis’s access to a University weight room) that he had been molested by Fine. Then, in September 2005, Davis sent an e-mail to Chancellor Nancy Cantor. In that e-mail, Davis, without identifying himself, stated that he had been the victim of molestation at the hands of an unidentified coach at Syracuse University. Despite the anonymous nature of the complaint, the University responded immediately, asking the complainant to identify himself and his alleged assailant. Shortly thereafter, Davis provided his own name and identified Bernie Fine as the person he claimed to have molested him. After the University determined that Davis was not and had never been a Syracuse University student, it viewed Davis’s complaint as raising primarily human resource and employment issues as to Bernie Fine. Following a procedure it had used in other such matters, the University asked its regular outside counsel, the law firm of Bond, Schoeneck & King, PLLC (“BSK”), to work with the University’s Office of Human Resources to investigate Davis’s allegations. Over the next two months, BSK, assisted by a
member of the University’s Office of Human Resources, interviewed Bobby Davis and six other people, including Bernie Fine and Laurie Fine. All of the people interviewed (except Davis and Bernie Fine) had been identified by either Davis or Fine as persons who could corroborate or refute Davis’s allegations. On December 1, 2005, BSK provided Chancellor Cantor with a written Investigation Report (the “BSK Report”). The BSK Report concluded that Davis’s allegations were “unsubstantiated.” The matter was not referred to law enforcement, and the Board of Trustees was not informed of either the allegations or the ensuing investigation and BSK Report. By letter dated January 3, 2006, Davis was informed that the University’s investigation had not substantiated his allegations, and that the University therefore considered the matter closed. With respect to the University’s intentions generally, the Chancellor immediately began what she considered to be a genuine and substantial effort to find out whether Davis’s allegations were true, and to act accordingly. There was no effort to prejudge Davis’s claims or to “sweep them under the rug.” At the outset, the Chancellor made the correct and commendable decision to engage outside counsel to look into the matter. Reputable outside counsel then investigated Davis’s claims, and later reported to the Chancellor that there were reasons to believe that Davis was untruthful and that Davis’s claims were not substantiated. Put simply, the lawyers believed that Davis was not telling the truth. The Chancellor reasonably relied on outside counsel’s conclusions in taking no further action, and she was not aware and had no reason to be aware of the weaknesses we identify and discuss below.
The weaknesses we discuss below have been identified with the considerable benefits of time, additional outside expertise, and hindsight. We discuss them at some length so that the University can improve its processes and learn whatever lessons can be learned from how the Bernie Fine matter was handled. However, we do not suggest that the University should or should not have reached a different conclusion, or that a more thorough investigation would have “proven” whether or not Davis was telling the truth. That issue remains unresolved—and bitterly disputed—to this day. We can and do conclude, however, that the University’s response to the 2005 allegations could have been better in several respects. In particular, BSK’s investigation, and the BSK Report, could have been more thorough, and other steps should have been taken in light of the serious nature of Davis’s allegations. First, the University should have made direct contact with law enforcement. We do not know whether law enforcement would have engaged with the University in 2005, but contacting law enforcement might have allowed the University and its counsel to take into account exactly what Davis already had told the police about Fine’s alleged molestations, to learn why the police declined to act in response to Davis’s information, and to determine whether the police had any other information relevant to Davis’s allegations against Fine. It also would have given the police, with their additional resources and expertise, another opportunity to follow up on Davis’s complaint—something they may have considered doing if the referral had come from the University. Whether the police would have done a further investigation, and what they would have discovered had they done so, is of course speculative. However, because the University never approached law enforcement, there is no way to know what might have happened.
Responsibility for not making contact with law enforcement lies primarily with outside counsel. While BSK noted in its Report that it had not contacted law enforcement, it did not recommend, or even discuss with the Chancellor or others at the University, the possibility that the University might want to contact law enforcement. Davis told BSK that he had already been to the police and that the police had declined to act because the complaint was so old. BSK then placed weight on the fact that the police had been made aware of the allegations and had taken no action. But if law enforcement failed to act because the molestation was too dated, and not because they had done an investigation and had concluded that Davis’s claims were unfounded, then little if any weight should have been placed on the police inaction. In any case, by approaching the matter only as an internal “human resources” issue rather than as a potential law enforcement issue, the University and its counsel left the University open to criticism if Davis’s allegations resurfaced or turned out to be true. The University would have been better served had it been advised in 2005 to refer Davis’s allegations directly to the law enforcement community. Second, the University’s counsel did not alert the Chancellor to allegations that emerged during the investigation to the effect that student athletes may have had sexual encounters with Laurie Fine while playing for the Syracuse University Men’s Basketball team. While we do not know whether those allegations are true, and though they are not directly related to the molestation allegations made by Bobby Davis, we believe that these allegations in and of themselves created reputational risk to the University, and that the Chancellor should have been made aware of them, either through the BSK Report itself or, if not deemed relevant to the scope of that report, through a separate communication or conversation.
Third, there are aspects of the BSK investigation that—again with the acknowledged benefit of hindsight—were less thorough and careful than they could have been. We are mindful that it is easy to criticize any investigative process after the fact, that BSK did not have the power to subpoena documents or testimony, and that the law firm also had to be concerned that it not impugn Bernie Fine’s reputation or expose the University to scandal in the effort further to investigate allegations that BSK did not credit based on the work that it did do. Nevertheless, in light of the serious nature of the alleged molestation, more could have been done. BSK did not have expertise in investigating or responding to allegations of child molestation, and it did not employ an expert who had specialized knowledge in this area. We do not suggest that an expert always must be employed. In these circumstances, however, an expert could have provided helpful insights regarding the nature and structure of the investigation. Among other things, BSK interviewed Bobby Davis only one time in person (for approximately two hours) about many years of alleged repeated sexual abuse. That interview did not fully plumb the depths of Davis’s claims. We discuss this and other matters below, but we need to emphasize here that there is no basis for believing—and we do not believe—that BSK “pulled its punches” to avoid reaching any particular conclusion. BSK’s work was well-intentioned and professional, but imperfect. Fourth, and as the Chancellor herself has forthrightly acknowledged, in hindsight she should have told someone on the Board of Trustees about Davis’s allegations and the conclusion that the BSK lawyers reached. There is no reason to believe that Chancellor Cantor had any intention or desire to conceal any aspect of this matter from the Board. She simply felt that, in light of BSK’s conclusion that Davis’s allegations were
unfounded, it was not necessary to circulate them more broadly. We note that the Chancellor was operating without some pieces of information that did not appear in the BSK Report and that were otherwise not known at the time, but in any event we share the Chancellor’s belief that, in retrospect and in light of the serious nature of Davis’s allegations, it would have been better had she alerted one or more members of the Board to the issue. Finally, by focusing narrowly on the question whether Davis’s allegations could be “substantiated,” the University and its counsel did not consider broader issues raised by Davis’s claims. A broader focus would have inquired whether the University—regardless of the outcome of this particular investigation—ought to be considering measures designed to better understand and evaluate areas in which there were interactions with underage boys and girls in connection with University athletic programs and otherwise. Children come in contact with University personnel and facilities in many ways. Bobby Davis, as an example, was a Men’s Basketball team “ball boy,”1 and he attended basketball summer camp at Syracuse. The University could have used this opportunity to examine the desirability of a protocol governing interactions with children. Similarly, whether or not Davis’s claims were supported by other evidence, the University could have used this opportunity to examine the need for policies to ensure that allegations of serious criminal conduct are reported “up” within the University, and ultimately referred to law enforcement. We believe that these issues deserve additional attention now, and it would have been better if they had been identified and addressed in 2005, when the University administration first became aware of Bobby Davis’s allegations of molestation, and indeed as early as 2002 or 2003, when certain University employees first learned of Davis’s claims. 1
There was no official “ball boy” program at Syracuse. The so-called “ball boys” were simply friends and acquaintances of the coaches or their families, and they were unofficially allowed access to the practices and games.
This Report proceeds as follows: In Parts I and II we describe the appointment and composition of the Special Committee, the mandate it received from the Board of Trustees, its selection and retention of counsel, and the work performed as part of its review. In Part III we set out the facts as we have learned them. In Part IV we describe our conclusions with respect to the adequacy of the University’s response. In Part V we make recommendations as to areas in which the University should study the need for new or updated relevant policies and practices, and note areas in which improvements are already underway. We reiterate that this Report does not make any finding or reach any conclusion with respect to whether Bernie Fine engaged in the sexual molestation of Bobby Davis, Michael Lang, or anyone else. We were not asked to make that determination. Davis and Lang filed a civil defamation lawsuit—since dismissed and now on appeal—against the University that touches upon that issue, and law enforcement authorities continue to investigate whether there is any basis for criminal charges against Bernie Fine relating to the sexual abuse of minors. In light of these ongoing civil and criminal matters, the Special Committee has reviewed only the adequacy of the University’s response to Davis’s claims when they first came to the Chancellor’s attention in late 2005. I.
The Establishment and Mandate of the Special Committee A.
Events Leading to the Appointment of the Special Committee On November 17, 2011, ESPN reported that Bobby Davis, a former “ball
boy” with the Syracuse University Men’s Basketball team, and his step-brother, Michael Lang, had accused Bernie Fine, then the team’s Associate Head Coach, of sexually abusing them when they were children. Later the same day, the Syracuse Police Department (“SPD”) 8
confirmed that it was investigating sex abuse allegations made against Bernie Fine, and the University placed Bernie Fine on administrative leave. Fine was terminated on November 27, 2011, after the University learned about a tape-recorded conversation between Bobby Davis and Laurie Fine appearing to allude to a sexual relationship between Davis and Bernie Fine. When Davis’s allegations resurfaced in 2011, and the Board of Trustees learned that University administration had considered them in 2005, the Board established this Special Committee in order to review the adequacy of the University’s 2005 response to Davis’s allegations. On November 18, 2011, the day after Davis’s allegations were first aired by ESPN, the Special Committee retained Paul, Weiss to represent the Special Committee in connection with its review. B.
The Special Committee’s Composition and Mandate The Special Committee is composed of three members: (1) Deryck A.
Palmer, the Special Committee Chairman and a member of the Executive Committee of the Board of Trustees; (2) Richard L. Thompson, the Chairman of the Board of Trustees; and (3) the Honorable Joanne F. Alper, Vice-Chair of the Board of Trustees. Mr. Palmer is a Senior Partner at the law firm of Pillsbury, Winthrop, Shaw & Pittman LLP; Mr. Thompson is Senior Counsel at the law firm of Patton Boggs LLP; and Judge Alper is a Circuit Court Judge for the 17th Judicial Circuit in Arlington, Virginia. The Special Committee’s mandate was to review the adequacy of the University’s response to Mr. Davis’s allegations, and to identify relevant University policies and procedures that might be implemented or improved in the future. The Special Committee was not charged with reaching any conclusions about the truth or falsity of Davis’s allegations, or those of his step-brother Michael Lang. Several law enforcement 9
agencies have investigated or are currently investigating the underlying sexual abuse allegations, including the Syracuse Police Department, the Pittsburgh Bureau of Police, the Onondaga County District Attorney’s Office, and the U.S. Attorney’s Office for the Northern District of New York (assisted by the United States Secret Service). The Board of Trustees limited the Special Committee’s review in order to avoid interfering with any ongoing law enforcement investigation. Investigating agencies are in any event far better suited to address the merits (or lack thereof) of Davis’s allegations than the Special Committee, in that the Special Committee does not have powers available to law enforcement, including the power to compel witness testimony or the production of documents, and the power to request or issue search warrants. C.
The Engagement of Paul, Weiss as Counsel The Special Committee engaged Paul, Weiss on November 18, 2011. The
scope of Paul, Weiss’s engagement was co-extensive with the mandate given to the Special Committee. Neither the Special Committee nor the Board imposed constraints on Paul, Weiss’s engagement, and Paul, Weiss was promised and received the full cooperation of the Special Committee, the full Board, the University, and BSK. The Special Committee selected Paul, Weiss as its counsel because the firm had no pre-existing professional relationship with the University, the Board of Trustees, or members of the Special Committee, and because Paul, Weiss has extensive experience in conducting internal investigations. Three of the Paul, Weiss lawyers assigned to the matter were former federal prosecutors, and Paul, Weiss engaged an expert in the investigation of claims of child molestation.
The Special Committee’s Review A.
Procedures To Ensure Independence The Special Committee had full authority to interview all present and former
University employees, BSK lawyers, and any other individuals involved in the events being reviewed. The Special Committee also had unfettered access to any pertinent documents from the University and from BSK’s files. The Special Committee’s investigation occurred independently of the University’s response to law enforcement investigations of this matter and the University’s subsequent defense of civil defamation proceedings brought against it and Head Coach Boeheim by Davis and Michael Lang. The Special Committee received full cooperation from the University and from BSK during all stages of its review. Additionally, the Special Committee and Paul, Weiss received the full cooperation of Debevoise & Plimpton LLP (“Debevoise”), the University’s outside counsel with respect to these matters, which arranged for many of the interviews of current University employees and assisted with document collection and review. To avoid repetition and to reduce the disruption to the University’s day-to-day functioning, many of the Special Committee’s interviews were conducted jointly with Debevoise, but neither the University nor Debevoise had any control over the Special Committee’s choice of witnesses to be interviewed or the questions asked of those witnesses during the interviews. The Special Committee was free at all times to conduct its review independently of Debevoise, and it did so. B.
Interviews Conducted In connection with its review, the Special Committee interviewed the
following individuals (many more than once) either in person or by telephone: 11
Current and/or Former Title
Director of Diversity and Employee Relations, Syracuse University
Men’s Basketball Office Coordinator / Secretary, Syracuse University
Head Coach, Men’s Basketball, Syracuse University
Deputy Chief, Department of Public Safety, Syracuse University
Chief, Department of Public Safety, Syracuse University
Chancellor, Syracuse University
Former Athletics Director, Syracuse University
Assistant Director of Athletics for Communications, Syracuse University
Thomas S. Evans
Senior Vice President and General Counsel, Syracuse University; Senior Member, Bond, Schoeneck & King, PLLC
Athletics Director, Syracuse University
Assistant Coach, Men’s Basketball, Syracuse University
Peter A. Jones
Member, Bond, Schoeneck & King, PLLC
Joseph O. Lampe
Former Chair, Board of Trustees, Syracuse University
Louis G. Marcoccia
Executive Vice President, Syracuse University; Chief Financial Officer, Syracuse University
Director of Athletic Communications, Syracuse University
Assistant Chancellor, Syracuse University
Former Executive Director, Office of News Services, Syracuse University; Executive Director, External & Public Affairs, Syracuse University
Kenneth “Buzz” Shaw
Former Chancellor, Syracuse University
Neil B. Strodel
Former Chief of Human Resources, Syracuse University
Former Senior Vice President for Human Services and Government Relations, Syracuse University; Former Secretary, Syracuse University Board of Trustees
Philip J. Zaccheo
Member, Bond, Schoeneck & King, PLLC
The Special Committee was not able to interview several persons who were at the focus of BSK’s 2005 investigation. Bobby Davis and Michael Lang, through their counsel, declined to be interviewed in connection with this review, citing their litigation against the University and Coach Boeheim. Bernie and Laurie Fine likewise declined requests for meetings with counsel for the University and the Special Committee. In addition, a few individuals with smaller roles in the events of 2005 either declined requests for interviews or did not return calls seeking to arrange interviews. C.
Material Reviewed As part of its review, the Special Committee and its counsel collected and
reviewed a broad range of documents. Those documents included: •
BSK 2005 Davis Complaint Investigation File. This file contains BSK’s investigation report, drafts of the report, emails and correspondence, interview notes and statements, and attorney notes and other work product generated during BSK’s investigation into Davis’s 2005 complaint.
Other BSK/University Investigation Files. These files contain BSK investigation reports and work product generated in connection with other investigations BSK has undertaken on behalf of and with the University. None of the files in this category relate to allegations against Bernie Fine or persons associated with the Syracuse University Men’s Basketball program.
BSK Billing Documents. The Special Committee received and reviewed BSK’s billing records in connection with its investigation and report regarding Davis’s 2005 complaint.
Documents Produced to Law Enforcement. The Special Committee received copies of documents that were produced to law enforcement agencies in connection with those agencies’ investigations of allegations of sexual misconduct against Bernie Fine.
Documents from the University’s Office of Human Resources. The Special Committee also received a number of other hard-copy and e-mail documents obtained from the Human Resources department and from the files of other University employees, some relating to the investigation into Davis’s allegations, and others relating to unrelated complaints and/or investigations.
Documents Related to a 1993 Complaint Regarding Alleged Activities Taking Place at the Fine Household. This file contains an anonymous complaint related to conduct at the Fine home by others, not involving allegations of sexual misconduct by the Fines. The file also contains University memoranda regarding steps taken upon receipt of the complaint.
Board of Trustees Materials. The Special Committee received documents reflecting the minutes from Board of Trustees and Executive Committee meetings held in 2002, 2003, 2005, 2006, and 2011.
Cabinet Meeting Agendas. This file contains the agendas from select meetings of Chancellor Cantor’s cabinet in 2005 and 2011.
Documents from the Office of the Chancellor. The Special Committee received emails collected from Chancellor Cantor’s and select staff members’ archives that relate to Davis’s complaint. The Special Committee also received Chancellor Cantor’s electronic calendar from 2005.
Fraternity Materials. This file contains University documents related to a fraternity for which Bernie Fine served as an advisor. None of the documents in this file relate specifically to Bernie Fine.
Policies and Procedures. The Special Committee received numerous policy and procedure documents from the University, the Department of Athletics, and the Department of Public Safety (“DPS”). D.
Expert Consultation To assist in its work, Paul, Weiss retained and consulted Kenneth J. Lau,
LCSW-R, an expert in matters related to investigating child sex abuse and allegations of child sex abuse. Mr. Lau has worked in the field of child abuse trauma for over forty years, and for more than thirty years has specialized in working with children and families with histories of sexual abuse trauma. He regularly serves as a consultant to law enforcement, educators, caseworkers, and mental health care providers on the investigation and treatment of victims of sexual abuse; and he has trained thousands of case workers, law enforcement personnel, prosecutors, and mental health therapists on the investigation and treatment of child sexual abuse. In addition, Mr. Lau has worked with state and federal entities to provide assessments of sex offenders and to provide treatment services to sex offenders. Mr. Lau has 14
also provided expert testimony regarding the assessment and treatment of sex offenders in state courts in both New York and Connecticut, has served as a faculty member at several universities, and has authored publications on the topics of child sexual abuse and forensic interviewing. The Special Committee and its counsel consulted with Mr. Lau on a variety of topics, including, among other things, the techniques used in the 2005 investigation of Davis’s allegations. Mr. Lau reviewed interview outlines, interview notes, witness statements prepared during BSK’s investigation, and the final BSK Report. He and counsel analyzed the sources on which the investigators relied, the structure and scope of interview questioning, the order in which witnesses were interviewed, the presence or absence of follow-up interviews with certain witnesses, the decision not to interview or otherwise contact law enforcement personnel, and decisions about whether to include certain facts or allegations in the final BSK Report. Mr. Lau also consulted with counsel for the Special Committee on potential future policy improvements and initiatives. III.
Factual Findings of the Special Committee A.
2002 & 2003: The Media Investigates Davis’s Allegations Against Bernie Fine According to stories published in 2011 by the Post-Standard,2 Davis contacted
a Post-Standard reporter in September 2002, claiming that Bernie Fine had molested him. The Post-Standard conducted a six-month investigation into Davis’s claims, but ultimately did not run any stories, and did not bring the allegations to the University for comment or review. During their investigation, two Post-Standard reporters questioned numerous
See, e.g., Mike McAndrew, The Bernie Fine Chronology, Syracuse Post-Standard, Nov. 27, 2011, available at http://www.syracuse.com/news/index.ssf/2011/11/the_bernie_fine_chronology.html (last visited June 29, 2012).
individuals about Bernie Fine. Perhaps because the reporters asked their questions in a manner designed to protect against spreading information that they did not know to be true, it is not clear whether (or which) persons interviewed became aware of the allegations Davis had made against Fine. In June 2003, after the Post-Standard declined to run the story, Davis took the allegations to ESPN. ESPN also looked into the allegations, but it too declined to run the story until eight years later—in 2011. The Special Committee’s review did not produce reliable evidence that any University administrator became aware of these media inquiries in 2002 or 2003, or at any point before Davis sent his September 2005 e-mail to the University that triggered the BSK investigation. It is clear that Bernie Fine himself knew of the media inquiries, in that he told a BSK lawyer in 2005 that he had been contacted by the press some years earlier. However, without Fine’s cooperation (which the Special Committee did not receive), we could not determine who Fine may have told about the media inquiries. Coach James Boeheim informed us that he did not learn of the media inquiries until 2005, when Fine told him about those inquiries in the context of the University’s investigation of Bobby Davis’s allegations.3 According to Coach Boeheim, Fine did not tell Boeheim in 2002 or 2003 that the press was inquiring into whether Fine had molested Bobby Davis. Assistant Coach Michael Hopkins acknowledged knowing about the media inquiries in 2002, telling us that at that time a Post-Standard reporter had asked him whether he had seen any inappropriate contact between Fine and Davis, and whether Fine had ever touched him (Hopkins)
Evans, without having any recollection of the details (or any notes with which to refresh his recollection) told us that he took from a 2005 conversation with Boeheim that Boeheim had known of the media inquiries when they took place, and had therefore known of them for several years. Unlike other interviews conducted in the course of BSK’s investigation, Evans’s conversations with Boeheim were not memorialized in a statement. Coach Boeheim has a clear recollection that he learned of the allegations against Fine for the first time in 2005.
inappropriately. Hopkins denied any knowledge of any such contact, and told Fine of the reporter’s inquiries, but he did not otherwise report them, either to Coach Boeheim, to the then-Athletics Director (Jake Crouthamel), or within the University generally. Hopkins strongly believed that Fine had done nothing improper, based on his extensive experience with both Fine and Davis, and he explained that he was not aware of any requirement that he tell others about the media’s inquiry.4 In fact, no explicit requirement existed. In addition, the BSK Report reveals that Bobby Davis, in the context of a dispute with Fine about Davis’s access to a University weight room, told Corey Parker, a former University Strength Coach, that Davis had been molested by Fine. Parker also told BSK that he had been aware of investigations being conducted by ESPN and by the Post-Standard, but that he had never witnessed any sexual misconduct by Fine.5 All of the other witnesses interviewed as part of the Special Committee’s review stated that they did not recall learning of the 2002 and 2003 media inquiries until 2005 at the earliest. While as a general matter it is difficult to believe that the media inquiries never came to the attention of the University administration during 2002 or 2003, we did not uncover any evidence to establish that the administration knew of those inquiries at the time. The former Chancellor, Kenneth “Buzz” Shaw; the former Athletics Director, Jake Crouthamel; and Coach Boeheim, who was Bernie Fine’s direct supervisor, each informed us that they did not know of the media’s inquiries in 2002-2003. While Michael Hopkins was approached by a Post-Standard reporter in 2002 regarding Bobby Davis and his relationship 4
Hopkins explained further that Davis had visited with Hopkins’s family in California, and that Davis had lived with Hopkins and two other men in Syracuse. Hopkins told BSK that in Syracuse, Davis had failed to pay rent, which led Hopkins to evict him. He said that he believed Davis had stolen personal property from him and had lied to him and to others. Hopkins also said that he and others, including Michael Lang, had spent significant time at the Fine residence, and he had never observed any sexual misconduct.
Parker, who did not make himself available for an interview with Counsel for the Special Committee, told BSK in 2005 that he did not recall what, if anything, he did regarding Davis’s allegation.
with Bernie Fine, no policy or procedure required that Hopkins report the contact “up” the chain, and he told us that his own experiences with Fine and Davis provided no basis to believe that Fine had been involved in acts of sexual molestation. Nevertheless, Hopkins should have alerted the Head Coach or the Athletics Director to the fact that he had been approached by a reporter and asked questions about Bernie Fine and alleged sexual misconduct. Although we were not able to speak to Parker in the course of this review, the facts suggest that he too should have reported Davis’s allegation, as well as his knowledge of the ESPN and Post-Standard investigations. We appreciate that allegations of sexual misconduct, and especially misconduct with minors, are sensitive and embarrassing. We also appreciate that when the press began making their inquiries, Fine was a long-time colleague and mentor of Hopkins, no other allegations had been made against Fine during his long tenure, and Hopkins believed Fine to be innocent. Nevertheless, such allegations are extremely serious, and they involve potential crimes. Their prompt and careful review is essential to protect the community, the University’s reputation, and its personnel. A failure to report allegations like these to proper authorities within the University may be understandable in human terms, but the failure constituted an error in judgment. As set forth in more detail below, we believe that the University should adopt policies making it clear that any information involving allegations that an employee may have been involved in serious criminal conduct must be reported “up” and must be shared with the University’s central administration. This policy is particularly important as it relates to the operation of the University’s athletic programs. There is a general perception that athletics at major universities sometimes operate independently of administration oversight,
and it has been suggested that at some schools there is a relaxed, “laissez faire” tolerance of a separate culture and separate rules that apply to athletic programs as opposed to academic programs. We do not believe that this is the case at Syracuse University. However, the Chancellor’s ongoing efforts to ensure that athletic programs are fully integrated into the operation of the University as a whole must continue, and these efforts must be subject to the undiluted oversight of the University’s Board of Trustees. Accordingly, allegations like the ones that the press was investigating in 2002 and 2003 regarding Bernie Fine must be made known to the University’s administration, and the University should take steps to make this point crystal clear in the future. We note in this respect that the University and the Board have already taken steps to update and improve relevant policies through a Joint Working Group charged with reviewing policies related to sexual conduct, campus culture, and safety. As discussed in greater detail below, that initiative, and others, have already begun taking many of the steps that the Special Committee formally recommends here. Looking backward, however, neither the Post-Standard nor ESPN ran a story on Davis’s allegations, and we found no evidence that any University administrator was aware of Davis’s allegations prior to 2005. There had been no other allegations of sexual misconduct as to Fine from any other person.6 When Davis made his complaint to the University in 2005 (described below), the Chancellor knew only that Fine was a long-time employee against whom no other allegations had been made.
University records reflect an anonymous complaint made in 1993 about activities at the Fine home. The complaint does not concern alleged sexual conduct by Bernie or Laurie Fine.
Davis’s 2005 Complaint to the University 1.
The Anonymous Complaint
On September 8, 2005, Chancellor Cantor received an anonymous e-mail. In it, the author claimed that as a boy he had been sexually molested by an unnamed coach at the University for several years; that he had gone to the police, who told him that they could do nothing because he was now older; and that he believed that the unnamed coach had done bad things to other young boys. Within three hours of receiving the anonymous e-mail, the Chancellor forwarded it to Assistant Chancellor Trudy Morritz, and asked Ms. Morritz to discuss it with Anastasia Urtz, then Dean of Students, and anyone else needed to formulate a response. Ms. Urtz responded to the anonymous e-mailer the next morning, noting that in order to investigate the matter, the University needed the author’s name, the name of the alleged abuser, and a written statement detailing the alleged wrongdoing. Three days later, on Monday, September 12, Bobby Davis responded to Ms. Urtz in another e-mail, which this time provided his name and identified his alleged abuser as Bernie Fine. Davis also provided additional details regarding the alleged abuse, stating that he had been a young boy when the abuse started, that it had continued until he was 26 years old, that he had travelled with the basketball team as a “ball boy,” that on those trips he had been alone in hotel rooms with Fine, and that Fine’s wife and others may have “swept this under the rug.” 2.
The Initial Response to Davis’s Allegations
Because Davis was not and had never been a student at the University, the Dean of Students (Urtz) referred the complaint to the Human Resources department, where it was treated as an employment/employee misconduct matter as opposed to a student affairs or 20
faculty matter. Although they did have some experience in dealing with allegations of sexual misconduct, none of the people involved in making this decision had any prior experience investigating allegations of child sexual abuse. On the day after Davis sent the e-mail that provided his name and identified Fine as the alleged abuser, Neil Strodel, then the head of Human Resources, forwarded Davis’s e-mails to Thomas Evans and Peter Jones at BSK, the University’s regular outside law firm.7 Evans was a senior partner at BSK, who functioned at the time as the University’s de facto general counsel. Jones was a more junior partner, who had previously worked on human resources investigations for the University. Jones had preliminary discussions about the Davis allegations with Curlene Autrey, the Director of Diversity and Resolution Processes (a position within the Human Resources department). Jones and Autrey recommended to Evans and Strodel, their respective superiors, that they follow up with Davis immediately to get dates, details, the names of potential witnesses, and the names of other potential victims. Autrey and Jones also recommended that Fine be told that a complaint had been made against him, and they recommended that Fine not be interviewed until other interviews had been completed. On the following day, September 14, 2005, Evans, Jones, and Strodel spoke by telephone to discuss an investigation plan. Contemporaneous e-mails reflect that Evans and Strodel decided that: [t]he matter will be treated as an investigation into employee misconduct because, to our knowledge, Davis was never an SU student and the investigation will likely be broad, possibly involving investigation of conduct away from the University. BSK will lead the investigation with strong assistance from HR. 7
In 2006, Evans formally became General Counsel to the University pursuant to a three-party agreement between Evans, BSK, and the University that provided for Evans’s secondment to the University while retaining his BSK partnership interest for certain purposes.
The Chancellor was informed of—but did not participate in—the decision to treat the investigation as one involving “employee misconduct,” and the decision about who should follow up on Davis’s allegations was made by people without any particular experience in investigating claims of child abuse, and without any significant discussion about potential exposure to the University. Jones took the lead for BSK, and Autrey for the University’s Office of Human Resources. The group consisting of BSK lawyers and Human Resources personnel also decided that Autrey would contact Davis to begin the process of setting up an interview. Eleanor Ware, the University’s Senior Vice President for Human Services and Government Relations and Secretary to the Board of Trustees, was informed of the plan, and she in turn informed the Chancellor. Later on September 14, Autrey sent an e-mail to Davis, who had provided his e-mail address, and explained that the University would investigate Davis’s allegations. She informed Davis that the investigation would be led by Jones, acting as the University’s legal representative, and that Jones would contact Davis to set up a time to speak. Davis responded quickly by e-mail, and told Autrey that while he no longer lived in the area, he would be visiting Syracuse from September 15 through September 18. Autrey and Jones then set up a meeting with Davis for Friday, September 16. From this point on, and as agreed at the outset, the investigation was led by BSK, with Autrey serving in a supporting role. C.
BSK’s Investigation 1.
BSK’s Prior Representation of the University
BSK for decades has acted as outside counsel to the University, representing Syracuse in the majority of its legal matters. BSK has handled many human resources and 22
other employment matters for the University, including a number of sensitive internal investigations. While BSK had previously conducted investigations involving allegations of sexual abuse and rape, no member of the investigation team, either from BSK or the University, had any prosecutorial or law enforcement experience. The format used in the Fine investigation—witness interviews, leading to signed witness statements, followed by a report based on the attached witness statements—was a format that BSK had used in prior investigations done on the University’s behalf. The BSK lawyers involved have told us that they viewed their mandate narrowly: to look into Davis’s allegations and to determine whether they could be substantiated. 2.
The first witness was Bobby Davis, who was interviewed on Friday, September 16, 2005, at the University. The interview—the only occasion on which anyone from the University or BSK spoke to Davis in person—lasted for approximately two hours. Jones conducted the interview; Autrey was also present, taking notes and asking clarifying questions. Later, Jones prepared a witness statement for Davis, which Jones discussed with Davis by telephone and which Davis revised. Davis then signed the revised statement. That witness statement, like others generated in the course of the investigation, was incorporated in, and attached to, the final investigation report. Davis told Jones and Autrey that Bernie Fine had started to abuse him sexually when Davis was in the sixth or seventh grade, and that he had been abused hundreds of times over many years. Davis described the abuse as Fine molesting Davis without ever seeking reciprocal sexual contact from Davis. Davis said that he had been a “ball boy” on the basketball team, and that he had sometimes traveled with the team. He reported that on multiple occasions on these trips 23
he had stayed in Fine’s hotel room, and that he frequently had gone on vacation with the Fine family. Davis said that he had spoken with Laurie Fine about Bernie Fine’s conduct (though he made no mention of a tape-recorded conversation), and that Laurie Fine had witnessed Bernie Fine abusing Davis on one occasion. Davis also explained that he had gone to the Syracuse Police Department with his allegations, and had spoken to Detective Fox, who told him that the statute of limitations for child abuse had expired. At his interview, Davis provided the names of two individuals who Davis believed also may also have been victims: Ludwig Vita, who reportedly had told Davis that Fine had abused him, and Davis’s step-brother, Michael Lang. An outline of questions prepared in advance of the Bobby Davis interview indicates that Jones planned to ask Davis about any physical evidence that would corroborate his claims, and both Jones and Autrey recall asking Davis about the existence of corroborating evidence. There is no indication that Davis, either in response to these questions or at any other time, told Jones or Autrey about a tape recording of a conversation he had with Laurie Fine in 2002, in which the two appeared to discuss Bernie Fine’s conduct.8 Davis also did not mention the tape in his written statement, which he otherwise edited and signed. Davis did not speak to the Special Committee, so we do not know whether he recalls being asked for corroborating evidence, and, if so, why he did not share the tape recording (or mention its existence) with Jones and Autrey. If Davis had alerted Jones and Autrey to the existence of the tape recording, the progress and outcome of the inquiry might have been dramatically different. The
According to the Post-Standard, on October 8, 2002, “Davis secretly record[ed] a phone call with Fine’s wife, Laurie.” Mike McAndrew, The Bernie Fine Chronology, Syracuse Post-Standard, Nov. 27, 2011, available at http://www.syracuse.com/news/index.ssf/2011/11/the_bernie_fine_chronology.html (last visited June 29, 2012).
Davis/Laurie Fine tape-recorded conversation alluded to Laurie Fine’s knowledge of a sexual relationship between Bernie Fine and Bobby Davis, and if the tape was authentic and not contrived—matters about which we express no opinion—it would have provided at least some “substantiation” for Davis’s claims that BSK otherwise found lacking. When Chancellor Cantor became aware of the existence and contents of the tape recording in 2011, she decided to fire Bernie Fine immediately. However, no one—including Davis himself or anyone associated with the press, which evidently had possession of the tape recording— brought the existence of the tape recording to the University’s attention between the time it was made in 2002 and the time its existence was revealed publicly in late 2011. Davis later signed a witness statement broadly summarizing what he said at his interview about Bernie Fine’s abuse of him. The signed statement, however, did not include all of the details that Davis provided to Jones and Autrey at the interview. Notes taken by Jones and Autrey reflect that, during the interview, Davis reported that Laurie Fine had had sex with unnamed members of the Syracuse Men’s Basketball team, and that Laurie Fine had slept with Lang and had tried to sleep with Davis.9 In a subsequent phone call, Davis told Jones that in fact he had slept with Laurie Fine. This information was not included in the final investigation report given to the Chancellor. Although Jones had a few additional telephone conversations with Davis over the next three months, the September 16, 2005 meeting was the only in-person meeting between Davis and either BSK or other University representatives, and the only occasion on which Davis was asked to provide details regarding Bernie Fine’s alleged abuse of him. 9
These allegations were recently made public in the context of a civil defamation lawsuit brought by Davis and Lang against the University and Coach Boeheim. Laurie Fine has denied them in the context of her separate lawsuit against ESPN. As with allegations regarding Bernie Fine, the Special Committee was not charged with reaching any conclusion as to the truth or falsity of the allegations relating to Laurie Fine, and we express no view on those allegations.
On September 22, 2005, six days after interviewing Davis, BSK interviewed Bernie Fine. The interview again was conducted by Jones and Autrey. Fine was represented by counsel at the interview. When questioned, Fine categorically denied that he had abused Davis. According to the witness statement later prepared by Jones and signed by Fine, Fine admitted that Davis had lived with him for a time, and that, as a “ball boy,” Davis had travelled with the basketball team and had stayed in Fine’s hotel room with Fine’s family. An early draft of the Fine witness statement, and handwritten notes of the interview, reflect that although Fine first said that Davis may have stayed alone with him in his hotel room on occasion, this fact was removed from the final witness statement at the request of Fine’s counsel. Jones told us that he permitted the change because he had told Fine (as well as all other witnesses) that he could edit his statement, and because the initial statement was not unequivocal—Fine had said only that Davis “may” have stayed alone with him. During his BSK interview, Fine explained that he had earlier had a falling-out with Davis. According to Fine, Fine had loaned Davis $6,000 when Davis went to play basketball in Europe. After Fine made several requests that Davis repay the loan and Davis refused, Fine asked a University Strength Coach (Corey Parker) to revoke Davis’s weightlifting privileges.10 According to Fine, Parker later told Fine that when Parker revoked Davis’s privileges, Davis told Parker that Fine had abused him.11
The BSK Report does not reflect the date of Fine’s loan to Davis, of their ensuing “falling out,” or of Davis’s complaint to Parker. 11
Parker declined to be interviewed for this Report, and the statements made here are based on his 2005 telephone interview with BSK. We are not aware of any evidence that Parker reported Davis’s allegations to anyone other than Fine.
At his interview, Fine raised the Post-Standard’s and ESPN’s earlier investigations into Davis’s allegations, and told BSK that neither media outlet had run a story. In the course of the interview, Fine also used his cellphone to play what he said was a voicemail message previously left for him by Davis. In that message, Davis apologized to Fine for unspecified reasons. He said that what he had done was wrong, but did not identify what he had done. BSK listened to but did not make a copy of the voicemail message, and never sought any explanation from Davis as to the details of Davis’s apology. Fine was not asked about Davis’s allegations that Fine’s wife had slept with (or attempted to sleep with) Davis or that she had sexual relationships with Mike Lang and various Men’s Basketball players. Fine likewise was not asked whether he had reported Davis’s allegations to anyone at the University. BSK also interviewed Assistant Basketball Coach Michael Hopkins, Laurie Fine, Corey Parker, Ludwig Vita (identified by Davis as another victim of Fine’s alleged abuse), and Paul Missigman, who had been present at a dinner in Florida at which both Davis and Fine had been present. Autrey attempted to speak to Lang on a number of occasions, and left messages for him at several numbers, but Lang did not respond to these efforts and therefore could not be interviewed. In addition, Tom Evans spoke to Head Coach Jim Boeheim, though no witness statement was prepared for him. Evans told us that no statement was prepared for Boeheim because neither Davis nor Fine had identified Boeheim as a “witness.” Boeheim told Evans that Davis’s allegations could not be true. Boeheim also stressed to Evans that the 2002-2003 media inquiries had not resulted in any stories. Evans took from his conversation with Boeheim that the coach had known of the media inquiries
back when they had taken place. Boeheim, however, informed the Special Committee that Evans’s understanding was incorrect, and that in fact he learned of the 2002-2003 media inquiries only in 2005, when Fine told him about them. Ludwig Vita told BSK that he had never been sexually molested by Fine, and he denied ever saying that to Davis. Hopkins told Jones and Autrey that he had never seen or heard of Fine engaging in inappropriate sexual conduct. Hopkins had been aware of an earlier PostStandard inquiry because he had been contacted by the Post-Standard. Autrey’s notes from the Hopkins interview reflect the statement that “Bobby Davis was sleeping with Bernie’s wife.” Notes taken by Jones also indicate that Hopkins reported hearing that Laurie Fine had engaged in sexual activity with at least one member of the Men’s Basketball team, although Hopkins later advised counsel for the Special Committee that he did not believe that the “rumor” was true. Neither statement (that Davis had slept with Laurie Fine or that Laurie Fine was rumored to have slept with basketball players) was reflected in the witness statement prepared for Hopkins, included in the BSK Report, or otherwise conveyed to the Chancellor. Laurie Fine told Jones and Autrey that she had never seen Bernie Fine engage in any sexual conduct with Davis or with any other minors. Laurie Fine said that Davis was a pathological liar. She was not asked about either the allegations that she herself had had a sexual relationship with Davis or the rumors that she had slept with members of the Men’s Basketball team. On November 11, 2005, Jones interviewed Corey Parker by telephone. Parker confirmed that he had revoked Davis’s weightlifting privileges at Fine’s direction, and that
Davis, in response, had accused Fine of molesting Davis. Parker told BSK that he had never seen any inappropriate conduct by Fine. Parker could not recall what, if anything, he did with Davis’s allegations. Parker also reported to Jones that he recalled the Post-Standard and ESPN investigations. Finally, also on November 11, 2005, Jones interviewed Paul Missigman by telephone. Missigman confirmed that he attended a dinner in Florida that both Davis and Fine had attended, thereby refuting Davis’s claim that he had not seen Fine at any time while he (Davis) was away at college. Missigman otherwise had no relevant information. 3.
BSK and the University Do Not Contact Law Enforcement
On a number of occasions during its investigation, BSK considered whether to contact SPD Detective Doug Fox, who Davis had identified as the person to whom he had previously made his allegations. Detective Fox appears in one set of BSK’s notes as a possible witness. Nevertheless, BSK did not speak to Detective Fox or any other law enforcement officer as part of its investigation, and did not advise the University to consider reporting the matter to the police. Counsel for the Special Committee asked BSK about the decision not to contact law enforcement. Jones explained that BSK did not believe that an interview with Detective Fox would add anything to the investigation, presumably because according to Davis, Fox had done nothing in response to Davis’s complaint. With respect to the decision not to report Davis’s allegations to any law enforcement agency, or to raise that question with the University, Evans explained that he saw no reason to do so. Evans noted that Davis had already gone to the police and had been told that the police could do nothing. Evans viewed the issue of contacting law enforcement as a client decision, and he and Jones both observed that the BSK Report mentioned in two 29
places that the police had not been contacted as part of the BSK inquiry. Evans and Jones acknowledge that the topic of reporting the allegations to law enforcement was never explicitly discussed with the Chancellor or others in the University administration, or indeed with anyone who had any law enforcement experience. 4.
The Decision Not To Include in the Report Allegations that Laurie Fine Had Engaged in a Sexual Relationship with Both Davis and Basketball Players
During the course of their work, both Jones and Autrey heard references to Laurie Fine’s purported sexual relationships with Bobby Davis and with unnamed members of the Syracuse Men’s Basketball team. Their respective supervisors, Evans and Strodel, were both informed of the references. Jones and Evans consulted with a BSK partner about whether this conduct, if true, implicated NCAA rules regarding providing athletes with an unauthorized “benefit.” They concluded that the conduct, even if it had occurred, would not have implicated NCAA rules. BSK did not refer to these allegations in its report, because BSK believed that the allegations did not relate to whether Fine had abused Davis. Recollections differ as to whether the Laurie Fine allegations, though not mentioned in the BSK Report, were otherwise discussed within the University administration. Evans believes that Jones discussed the allegations with the Human Resources department (presumably Autry or Strodel). Evans said that he and Jones ultimately concluded that the allegations were not relevant to the investigation into Bernie Fine’s alleged misconduct, and therefore did not need to be included in the BSK Report. Evans also believed that because the Human Resources department was aware of the allegations, it could handle them as it deemed appropriate. Despite the fact that the allegations involved conduct with and by students, Evans did not recommend further followup regarding the Laurie Fine allegations, both because Human Resources had the necessary 30
information and because he did not believe that the allegations, even if true, implicated violations of the University’s Code of Conduct. Evans did not have any additional discussions with Autrey or Strodel about whether to pursue allegations involving Laurie Fine and Men’s Basketball players. Jones recalls discussing the Laurie Fine allegations with Evans, but he does not recall whether they followed up other than on the issue of potential NCAA violations. Jones does not know whether he discussed the allegations with the University, but he knew that Autrey was present for the interviews and so clearly was aware of the allegations. Jones did not believe that the allegations were relevant to Laurie Fine’s credibility, or otherwise relevant to the allegations against Bernie Fine. Autrey also does not recall any specific discussions about whether to include the allegations in the BSK Report, and does not know why they were not included. She agrees with the assessment that they were not relevant to the allegations against Bernie Fine. Finally, Strodel recalls that he was told of the allegations, although he does not remember by whom. Strodel did not act on the allegations, but simply assumed that the allegations were being investigated. He would have expected that the allegations would have been included in the BSK Report. Although notes reflect that Strodel read a draft of the report, he apparently did not notice (or comment on) the fact that the allegations regarding Laurie Fine were not included. There appears to have been no discussion among the investigative team about whether the allegations regarding Laurie Fine should have been “reported up” separately and aside from their impact on the investigation into Davis’s allegations. Ultimately, no one
reported the Laurie Fine allegations to Chancellor Cantor, and she did not learn of them until after Davis’s allegations re-surfaced in 2011. D.
The Conclusion of the Investigation and BSK’s Written Report Once the interviews had been completed, Jones began drafting the BSK
Report. Jones and Autrey did not re-interview Davis, who had followed up on several occasions to ask about the status of the investigation, and who had offered the names of two additional persons whom he believed (but did not know) may have been abused by Bernie Fine. Jones prepared the first draft of the BSK Report, which was circulated to Evans, Autrey, and Strodel. Evans and Autrey both made a few small changes, while Strodel made none. None of the changes was substantive. The final BSK Report summarized the witness statements created in connection with the interview process, and the witness statements also were annexed to the report as exhibits. The BSK Report was provided to Chancellor Cantor on December 1, 2005. As indicated, BSK did not include in the report any information relating to Laurie Fine’s alleged sexual relationship with Davis or others. The Report specifically stated that Davis had contacted the police, and that BSK had not done so. It did not raise the question of whether that contact should be made. The BSK Report concluded that Bobby Davis’s allegations were unsubstantiated. BSK based this conclusion “primarily” on its investigation, and “secondarily” on the fact that the allegations had been raised with the Post-Standard and ESPN and that neither had reported on the matter. BSK recommended advising Davis by letter that his allegations had not been substantiated, and recommended that Fine and his attorney be notified of the results of the investigation. Finally, BSK recommended that 32
Coach Boeheim and the Athletics Director, Daryl Gross, be informed that the investigation was complete and that the charges had not been substantiated. BSK made no recommendation, either in its report or otherwise, about reporting the results of the investigation to the Board of Trustees. The final BSK Report, dated December 1, 2005, was sent to Chancellor Cantor, Eleanor Ware, Neil Strodel, and Curlene Autrey. Apparently no one else at the University received a copy. On December 5, an administrator, without any substantive comment, conveyed to Evans, Jones, Autrey, and Strodel that the Chancellor agreed with BSK’s recommendations. Strodel was tasked with sending a letter to Davis, which he ultimately did on January 3, 2006. Autrey notified Fine of the outcome, BSK notified Fine’s attorney, and Evans notified Gross and Boeheim. There is no record of—and there does not appear to have been—any discussion or deliberation, formal or informal, about the results of BSK’s investigation, either within the University or between the University and anyone at BSK. IV.
The University Responded in Good Faith to Bobby Davis’s Allegations The Special Committee concludes that Chancellor Cantor and the University
responded in good faith to Davis’s 2005 allegation that he had been molested by Bernie Fine. The Chancellor took immediate action to respond to Davis’s first, anonymous e-mail, and the University wasted no time in contacting BSK and in developing a plan to conduct an investigation. While BSK did not have particular expertise with child abuse allegations, there were compelling reasons to engage BSK. The law firm was familiar with the University, its structure, and its personnel, and therefore could respond quickly—as it did. BSK had rendered long and valuable service to Syracuse, and had handled many important 33
and delicate matters for the University in the past, including investigations involving alleged sexual misconduct and other serious wrongdoing by University personnel. The law firm and its partners had the confidence of the Chancellor and others, and there was no substantial reason to go elsewhere. In particular, there was no reason to believe that BSK would be less than thorough and impartial in its review of the matter. The Special Committee has seen no evidence, and has no reason to believe, that any limitations were placed on BSK’s ability to conduct its investigation. BSK received unfettered access to all University material and personnel. Nobody put constraints on its use of resources, or made any unreasonable or inappropriate demands on the firm. The reasonable expectation was that BSK would do a prompt and professional job. There were no conversations, and no understanding—explicit or implicit—that it would be good for the University if Bernie Fine were exonerated, or that he should get the benefit of any doubt, or that a child abuse scandal should be avoided in the interest of sparing the University’s reputation. Based on the entire record of what was done, we believe that University personnel and the BSK lawyers tried to use a sound process and to reach sound conclusions. Nevertheless, the investigative process was imperfect, and we believe it should have been more thorough. We do not suggest that a more thorough investigation should or would have reached a different conclusion. Nothing in this Report should be read to suggest that Davis’s allegations were true or false. Irrespective of the merits of Davis’s claims, it is important to provide a full accounting of the University’s response and the BSK investigation, so that best practices can be followed in the future and appropriate lessons can be learned.
The Shortcomings in the University/BSK Response 1.
The Decision To Treat Davis’s Allegations as an Employment/Human Resources Problem
Shortly after learning Bobby Davis’s name, the University and BSK decided that the matter would be handled as an employment/human resources issue. That decision, apparently driven by the fact that Davis was not a current or former student and that Bernie Fine was not a faculty member, affected the ensuing investigation in terms of how it was staffed, how it progressed, and why the allegations were not reported to law enforcement. The Special Committee believes Davis’s allegations should have been viewed from the outset as involving serious alleged crimes, and therefore presumptively a matter that required law enforcement involvement. The conduct alleged involved the repeated sexual exploitation of a child. Treating the matter solely as a human resources issue understated its seriousness and underestimated the risk to the University and to potential victims. We do not suggest that the University’s Human Resources department should not have been involved, or that Davis’s complaint did not raise a “human resources” issue as an administrative matter. But the decision to treat the allegations exclusively as a human resources problem led to unintended consequences. As an example, the decision may have resulted in the adoption of an investigation plan that was poorly suited to probing the facts in a case involving the alleged sexual abuse of a child. Following standard protocol for other human resources investigations, BSK and the University interviewed the complainant and the alleged perpetrator, and asked them to identify other witnesses who could either corroborate or refute Davis’s allegations. The focus then shifted to the other identified witnesses, who were interviewed in turn. The result was an unduly narrow inquiry that framed the analysis in terms of the presence or absence of other witness testimony or corroborating evidence.
This approach also resulted in a particular focus on Davis’s general credibility and reputation for honesty. Of course, the presence or absence of other witnesses and corroboration, and a complainant’s general credibility, are important and relevant matters. In this case, it was significant that, as the BSK lawyers observed, the witnesses that Davis himself had identified did not corroborate his claims. However, in cases involving allegations of child sexual abuse, the lack of corroboration may not be dispositive. If the BSK lawyers had employed an expert with experience in investigating criminal cases involving child sexual abuse, they presumably would have been told—as we were—that child sexual abuse often takes place when others are not around, and the lack of eyewitnesses is commonplace. Similarly, in sexual abuse cases an alleged victim’s general reliability may not be dispositive as to the truth or falsity of particular allegations. Child molesters frequently select as their victims those who are unreliable, vulnerable, or troubled. They look for victims who are less likely to be believed should they come forward to make complaints. By approaching Davis as though he were making a personnel complaint about Fine, and by using an investigation protocol that focused on the presence or absence of “substantiation” for Davis’s claims, BSK defined the issue too narrowly. In our judgment, the investigation should not have stopped at whether Davis could “substantiate” his claims, but should have considered whether his allegations were sufficiently serious and credible that the University should have taken some additional action to protect the University community, including potential victims, as well as the University’s reputation. While the BSK investigation did not produce corroboration for Davis’s claims, it also did not provide a definitive basis for concluding that Davis was “making it
up.” Although the BSK lawyers advised that they did not believe Davis, their inquiry did not establish that he was lying, and their final report indicated only that his claims were unsubstantiated. Absent proof that Davis had fabricated his allegations against Fine—and there was no such proof—the University and BSK ought to have considered more broadly whether there were additional steps that could have been taken to protect the community and the University notwithstanding the lack of evidence to corroborate Davis’s claims. One alternative would have been to consider whether to implement policies or procedures further to ensure the safety of underage boys and girls who come in contact with University programs. The BSK inquiry reflected the fact that Bobby Davis had been a “ball boy” for the Men’s Basketball team and had attended the basketball summer camp. Fine acknowledged that Davis had gone on trips with him and the basketball team, and that Davis may have stayed alone with Fine in his hotel room on one occasion (though this detail was omitted from the final BSK Report). Davis’s claims of molestation, which were not substantiated but also were not proven false, arguably put the University “on notice” of a potential risk going forward. This issue was not considered, because the inquiry was framed in terms of whether there was independent proof that Davis was telling the truth. Not finding such proof, BSK recommended simply that the case be closed. Accordingly, there appears to have been no consideration whether to revisit or address issues relating to interactions between underage persons and the University’s athletic and other programs. As discussed below, even the modest precaution of referring the matter to law enforcement was never brought forward for the Chancellor’s consideration. Rather, the issue was viewed as a human resources problem, and the presence or absence of “substantiation” became the touchstone for taking or not taking any action.
In our view, that focus was too narrow. BSK viewed its mandate as extremely limited—to determine whether there was evidence proving or disproving Davis’s allegations. According to Evans, BSK was not asked to consider what other steps the University could take to protect itself or the community, and whether—notwithstanding the lack of corroboration—Davis’s allegations required some further action. Likewise, BSK was not charged with reviewing any allegations against Laurie Fine, or with questioning why the earlier media inquiries had not been reported to the University’s administration. Evans viewed his mandate as simply to review and report on Davis’s allegations, and he saw all other issues as being questions for the University to consider on its own, absent some further request directed to him. This limited view of the BSK mandate was not the result of any explicit conversations or limitations that were discussed between the Chancellor and BSK, or between anyone else and BSK. Presumably, it was a reflection of a general conservative point of view that a lawyer should not overstep his or her role, and should not risk intruding on a client’s prerogatives. In our judgment, however, it was reasonable for Chancellor Cantor to expect more from BSK in these circumstances. She was entitled to assume that the lawyers not only had looked at the facts, but had considered generally how to protect their client, and whether the client should have done more in response to or as a result of Davis’s claims. When the BSK Report recommended simply that Davis be told that the matter was considered “closed,” she reasonably believed that the whole issue had been fully vetted and that the lawyers had concluded that nothing more should be done. In hindsight, there should have been a robust discussion about going to law enforcement, about whether to limit or modify Fine’s dealings with minors, about the Laurie Fine allegations, and about why the
earlier media inquiries had not been reported “up” the chain. Those discussions did not take place because the lawyers viewed their mandate too narrowly, and the Chancellor understandably believed that she was being told by her legal experts that nothing more needed to be done. Another reason that the broader discussions did not take place relates to the process that was employed. After Davis’s complaint was received, everything was left to the handling of subordinates. There was no meeting to discuss the findings of the BSK investigation, and no formal review of the BSK Report or its conclusion. The report was received and the matter was deemed closed. We believe it would have been desirable to have had a senior-level meeting following the completion of the investigation to discuss the whole situation, including the risks that Davis’s claims presented, the manner in which the University could better protect itself and its constituents, and the broader implications of Davis’s allegations. 2.
The Decision Not To Contact Law Enforcement
BSK’s narrow view of its mandate, and the decision to treat the case as an employment matter rather than a potential criminal matter, likely contributed to BSK’s failure to advise the University to contact law enforcement. The BSK lawyers, with hindsight, acknowledge that it would have been better to have done so. Evans and Jones have stated that they did not view this question as particularly important because Davis had informed them that he had already reported the allegations to the police. They also have explained that they viewed the question whether to involve law enforcement as something for the client to have considered on its own. The fact that Davis said he already had reported Fine’s abuse of him to law enforcement was not a good reason for the University not to contact the police or the District 39
Attorney. No one knew precisely what Davis had told the police, and Davis had provided the names of other potential victims, including Michael Lang, who did not respond to repeated efforts to contact him. Police and prosecutors have tools to locate and confront witnesses, and to develop leads aggressively, that private lawyers simply do not have. As an example, if BSK and the University had requested that law enforcement pursue Davis’s allegations, Davis might have been induced by the authorities to place a monitored telephone call to Bernie Fine, which could have provided important evidence either confirming or discrediting Davis’s claims. Additionally, the BSK Report relied at least in part on the fact that the police had been notified of Davis’s allegations but had taken no action. If the failure of police to act was entitled to any weight in this process, it would have been prudent to learn what they had been told, whether they had done any investigation (about which Davis might have been ignorant), whether the police regarded Davis’s allegations as credible, and whether any other alleged victims had ever come forward.12 Law enforcement personnel may not have shared any information, but the better practice would have been to ask them. On a more fundamental level, the decision not to contact law enforcement represented a lost opportunity for the BSK lawyers to have better protected their client. Whether or not the course of the BSK investigation would have been different if law enforcement had been contacted, the lawyers should have recognized that the University’s receipt of detailed and specific allegations of serious felony offenses committed by an
BSK’s express reliance on the fact that neither ESPN nor the Post-Standard had reported on the story in 2002-2003 was similarly questionable. We understand and appreciate that BSK may have been concerned that contacting either ESPN or the Post-Standard may have created a media story of its own. But without asking why nothing was reported, it was not possible to know with certainty what the media had concluded. We note the view, expressed by several witnesses, that the press would have run the story if it had credible evidence, but this speculation was not entitled to substantial weight absent direct contact with the press.
employee merited reporting to the authorities irrespective of whatever Davis had done on his own. At a minimum, making that report would have protected the University from criticism that it failed to contact law enforcement out of a desire to protect Bernie Fine or the Men’s Basketball program. That Davis’s claims were “unsubstantiated” did not mean that they might not be true. To this day, their veracity remains contested. If they turned out to be true, then the failure to have approached law enforcement at best exposed the University to harsh criticism, and at worst allowed a child molester to remain in place in the community without being called to account. And, since Davis said he had already reported his allegations to law enforcement, there should not have been a significant concern that the University’s contacting law enforcement would have inflicted unnecessary, incremental damage to Fine or to the University’s reputation. Under the circumstances, calling the authorities would have been the right thing to do. We do not agree that the question whether to contact law enforcement was a client decision requiring no advice from lawyers. Although the ultimate decision belonged to the client, the Chancellor and the University should have received advice on the issue. At a minimum, the issue should have been raised and “teed up” for a decision. BSK was functioning as the University’s de facto general counsel, and knew or should have known that no one else was likely to raise the issue. 3.
Weaknesses in the Investigation and the Written Investigation Report
The investigation—and the written report it produced—suffered from several weaknesses. It is not clear whether a more thorough investigation and report would have made a difference in terms of the University’s conclusion or its decision to take no further
action in 2005. However, and again with the benefit of hindsight, the entire process could have been stronger in the following respects: (a)
The Investigators Spent Insufficient Time Speaking to Bobby Davis
There are no rules on the amount of time that an investigator can or should spend with any witness, but the nature and scope of Bobby Davisâ€™s allegations make it unlikely that they could be covered adequately in a single two-hour meeting. Davis told the investigators that Bernie Fine had molested him for more than fifteen years, involving perhaps hundreds of alleged sexual acts. A more searching effort to probe and assess those allegations would have warranted more detailed questioning than what took place. Spending additional time with Bobby Davis, drilling down into the details of the alleged abuse, might have led to the development of additional facts tending to establish or refute his claims. We note, in this regard, that the Davis interview did not elicit from him the fact that he had recorded a conversation with Laurie Fine that, if genuine, arguably corroborated his claims and suggested that Laurie Fine knew that her husband sought out sex from boys. We credit the recollection of both Jones and Autrey, corroborated by Jonesâ€™s outline notes, that they asked Davis whether he had any corroborative evidence. We do not know whether Davis understood the question, whether he viewed the tape recording as corroborative, whether he had possession of the recording in 2005, or other details. Plainly, though, spending more time speaking with Bobby Davis might have led to the discovery of the recording, which likely would have changed the direction of the inquiry. BSKâ€™s limited interactions with Davis also included a failure to go back to Davis to question or confront him about conflicting versions of events. So, for example, Davis was never asked about the voicemail message in which he is alleged to have 42
apologized to Fine. In failing to re-interview Davis on this and other points, the investigators missed an opportunity to “confront” Davis with possible discrepancies or inconsistencies in his account. Deciding how much time to spend with Bobby Davis was a point at which the investigation would have benefited from expert advice. An expert with experience in investigating alleged child abuse would have emphasized the need to develop a rapport with the victim, and would have recognized that this cannot be done in a single sitting. Although Davis was no longer a child, the abuse he claimed to have suffered began when he was a young boy. If it happened, it was traumatic, and eliciting the details from him warranted more than a single questioning session. Further, it would have been appropriate to have given Davis the opportunity to respond to some of the attacks made on his credibility by the Fines and others, particularly because the investigation yielded no compelling explanation for why Davis would go to such great lengths to incriminate Fine in a way that some could consider potentially uncomfortable for Davis himself. Simply put, there should have been one or more follow-up interviews with Davis. (b)
The Investigators Should Not Have Questioned Davis’s Version of Events Based on the Nature of His Allegations
Notes from the BSK file reflect some skepticism about Davis’s account of the nature of Fine’s alleged sexual abuse of him. Davis claimed that Bernie Fine repeatedly attempted to gratify Davis in a sexual manner without demanding reciprocating conduct. It is not clear whether this skepticism impacted BSK’s conclusions. But notes from BSK’s files suggest that this is another example of where it would have been useful to have consulted with an expert in the investigation of sex crimes. We have been informed that the pattern described by Davis—a pattern of “unilateral” contact—is not unusual, and should not have 43
provoked any skepticism about the allegations. The investigators likewise expressed some skepticism based on the fact that the alleged conduct had taken place many years earlier (and had gone unreported for many years), and the fact that Davis was alleging that the sexual conduct had continued well past his own age of majority. An expert would have advised the investigators that sex crimes, and particularly those committed by men against boys, often go unreported for many years.13 (c)
The Investigators Should Have Followed Up on Allegations Relating to Laurie Fine
The investigators heard from Bobby Davis that he had slept with Laurie Fine, and that Laurie Fine also had had sex with members of the Syracuse University Men’s Basketball team. Michael Hopkins recounted a rumor that Laurie Fine had slept with team members. We believe that the Laurie Fine allegations should have been discussed in the BSK Report or otherwise raised with the Chancellor. We recognize that the alleged conduct may not have been illegal, and did not relate directly to Bernie Fine’s alleged molestation of Bobby Davis when Davis was a child. But the Laurie Fine allegations created sufficient issues in their own right that the Chancellor should have been informed of them. Evans and Jones have acknowledged that it would have been better to have done so. In addition, Laurie and Bernie Fine should have been confronted with these claims. The investigators viewed these claims as independent from Davis’s allegations as to Bernie Fine’s molestation of him, and viewed any misbehavior by Laurie Fine as outside the 13
We note also that sex crimes investigators who work with victims who come forward years after alleged abuse has taken place may seek permission to speak with a victim’s treating psychologist or counselor in order to better understand the person’s motives for coming forward, and to obtain more information about prior consistent (or inconsistent) statements. Although Davis specifically mentioned to BSK that he was seeing a counselor based at least in part on Fine’s alleged actions, BSK made no effort to obtain permission to speak to that counselor in this case.
scope of their investigation. But questions relating to Laurie Fine’s conduct, and specifically her conduct as it related to Davis, were directly relevant to Laurie Fine’s credibility in describing Davis’s character. The BSK Report noted that Laurie Fine described Davis as a pathological liar, and it was important to know if she was concealing her own misbehavior by maligning Davis’s character. By eliciting the Fines’ characterizations of Davis’s truthfulness without challenging the Fines’ credibility (and Laurie Fine’s relationship with Davis), the investigators left themselves open to a claim that their approach to the Fines was not thorough. (d)
The Investigators Failed To Interview All Available Witnesses
After Davis met with the investigators, he provided them by e-mail with the names of two other men (brothers of each other) who Davis believed may have been additional victims. Davis explained that while he was not certain that anything had happened to the brothers, he had seen some similarities between how Fine treated him and how Fine treated these two. There was no follow-up conducted with respect to these two names, and the investigators made no effort to contact these two potential witnesses. Particularly in light of the significant weight that the BSK Report placed on Davis’s credibility and the lack of any corroborating evidence, it would have been better to have done so. There was no good reason not to make the effort to contact the two men, even if the investigators thought it unlikely that they would have significant information. We accept the point that the BSK lawyers made a good-faith professional judgment that no further inquiry was required. But we believe that it would have been a better decision to have contacted the witnesses.
BSK Allowed Bernie Fine To Edit His Witness Statement To Eliminate a Suggestive Fact Without Noting the Change in Its Report
During his interview by Jones and Autrey, Bernie Fine acknowledged that there may have been an occasion when Bobby Davis had stayed alone with him in a hotel room (though, according to Fine, nothing untoward had taken place). That information— originally included in a draft witness statement that Jones prepared—was removed at the request of Fine’s counsel. Jones recognized that the new version of Fine’s witness statement omitted this detail, but he permitted the change and did not note in the BSK Report that Fine had previously said that Davis may have stayed alone with him in his hotel room. Jones viewed the detail as insignificant, since Fine had denied any wrongdoing, and Jones had told Fine and Fine’s lawyer that the draft witness statement could be modified to ensure its accuracy. It would have been better not to have omitted the reference to Fine’s original admission. If nothing else, Jones could have noted in the BSK Report that Fine first acknowledged the possibility that Davis had stayed with him in his hotel room, but had later stated that this had not happened. While this is a small detail, such details could be significant in assessing the relationship between Davis and Fine. The mere fact of the changed recollection also was relevant to an assessment of Fine’s credibility, and some reference to it in the BSK Report would have been appropriate.14 4.
The Chancellor Did Not Notify Any Trustees of Davis’s Allegations or the Results of BSK’s Investigation
The Chancellor did not report either the existence of the allegations or the conclusions reached by BSK to the Board of Trustees or to any member of the Board,
It also would have been advisable to produce a written statement for Boeheim.
including its Chairman. With the benefit of hindsight, the Chancellor herself has acknowledged that she should have done so. We agree. We believe that both the Chancellor and the University would have been better served if the Chancellor had consulted more broadly with some member or members of the Board of Trustees. We appreciate the sensitive nature of matters such as this, and the desire not to create damaging rumors until the facts have been investigated. And once the Chancellor had received the BSK Report, which opined that Davis’s claims were unsubstantiated, she was entitled to conclude that it would be unfair to give Davis’s claims any more circulation or currency. But, as the Chancellor herself recognizes, the truth in matters such as this one is elusive. It would have been better practice to have alerted the Executive Committee of the Board, or at least the Chairman of the Board, that a witness had come forward in person to accuse a University coach of extremely serious conduct involving the alleged abuse of at least one boy, and possibly others. We should emphasize that there is absolutely no evidence that either BSK or Chancellor Cantor was seeking to conceal the allegation from the Board of Trustees. Each member of the Special Committee has worked with the Chancellor, and knows that she is a person of the utmost integrity who is open in her dealings with Trustees and others. It simply would have been better had the Chancellor apprised the Board or its Chair of the allegations, the investigation by the University’s lawyers, and the conclusion that Davis’s allegations lacked substantiation. V.
Recommendations In conducting this review, the Special Committee identified several areas
where the University should consider the implementation of new or updated policies. In making these recommendations, we note that none of the members of the Special Committee 47
are experts in the prevention, reporting, or investigation of crimes involving the sexual abuse of minors. We also note that some of these areas are already the subject of active review. We have been told and are confident that the University is receiving and will continue to receive expert advice as needed in these areas, consistent with its role as an institution of higher learning and a foundation for the entire Syracuse community. A.
Policies Concerning the Involvement of Minors in Any UniversitySanctioned Activities According to Bobby Davis, he was abused during the time that he was a “ball
boy” for the Men’s Basketball team. There is no official position as a “ball boy.” Basketball games are simply one University setting in which adults interact with children outside of the family. In the course of our work we have learned that other organizations, such as the Boy Scouts of America, have adopted policies concerning non-familial interactions between adults and children. The University should canvass the settings in which children and adults interact in connection with University programs, and decide whether to promulgate policies to clarify the “dos” and “don’ts” of child-adult interactions in those settings. As noted above, the Board of Trustees and the University have already established a Joint Working Group charged with reviewing and enhancing policies, identifying gaps, and making recommendations for improvements in the areas of sexual conduct, campus culture, and safety. New rules and policies have already been implemented regarding programs at the University in which minors are involved, including, for example, new notification and reporting protocols for abuse allegations for summer programs, and new procedures for mandatory background checks for persons involved in programs involving minors. The Department of Athletics has also already adopted new policies for Fall 2012 regarding assistance by minors at Men’s Basketball games, including policies requiring 48
supervision of the minors at all times by a designated program staff member and clear policies regarding permissible and impermissible travel. Thus, while the Special Committee notes here the need for policies governing the treatment of minors in all University-sanctioned activities, many of the necessary policy changes have been made already or in progress as a result of the work of the Joint Working Group and others at the University. B.
Policies Concerning Reporting of Alleged Serious Criminal Conduct The Special Committee also recommends that the University review its
policies, and, if necessary, create new policies and training regarding the reporting of alleged serious criminal violations of law to the Universityâ€™s central administration and DPS and to law enforcement authorities. Most of the University personnel with whom we spoke were unable to articulate any standard for when and whether allegations of serious criminal conduct should be reported to superiors or to law enforcement. Though DPS currently operates under a policy that requires DPS to report most allegations of criminal conduct, including sex offenses, to the SPD, the University personnel with whom we spoke (other than DPS personnel) were unaware of this policy. More importantly, the DPS policy applies only once those allegations have come to DPSâ€™s attention, and does not mandate the reporting of allegations to DPS. In undertaking its review, to the extent that it has not done so already, the University should not necessarily rest on the reporting requirements imposed by state and federal laws such as the Clery Act. Again, it is our understanding that much of this work has already been begun by the Joint Working Group and others at the University. Certainly we do not suggest that every minor transgression, or that crimes committed by unknown persons, should result in a criminal referral. But the University 49
should consider whether there should be a presumption, expressed in a formal policy, that allegations with respect to certain crimes and certain persons should typically to be referred to DPS for further reporting to law enforcement. To the extent that such a policy is adopted, steps should be taken to make sure that it is distributed to and known by all members of the University community. C.
Record-Keeping Practices with Respect to Allegations of Wrongdoing by Students, Staff, and Faculty The University should examine its recordkeeping practices with respect to
allegations and reports of wrongdoing. In our review we learned that the Universityâ€™s current record-keeping system does not include sufficient procedures to ensure that allegations of misconduct by students, staff, or faculty can be located at a later date, in large part because there is no central repository. While we are mindful of the privacy issues involved, we believe that the current decentralized system may risk allowing complaints received from different offices to be treated separately, without the ability to compare similar allegations made by different constituents over the course of time. The University should consider whether there are procedures that it can adopt that will ensure complaints can later be located in an efficient manner. D.
Training for Faculty/Employees on New and Existing Policies Finally, we recommend that the University review the ways in which it trains
faculty and staff on new and pre-existing policies. In our review, we found several instances in which existing policies were either unknown, or were misunderstood, by University personnel. While the dissemination of existing and new policies will always be a challenge in large organizations like ours, the effectiveness of any University policy depends on our ability to communicate it to those to whom it applies. Again, it is our understanding that the
University has already begun new training and has plans for additional regular training, an effort we wholeheartedly support. CONCLUSION As of the writing of this Report, the allegations of child molestation against Bernie Fine remain both uncharged and unproven. Our task was not to determine where the truth lies, but to consider whether Syracuse University responded appropriately when it learned of Davis’s claims. For the reasons we have stated, our answer is a qualified “yes.” The Chancellor, and the lawyers who were charged with looking into the matter, made a prompt, diligent, and sincere effort to determine whether Bernie Fine had abused Bobby Davis. That effort was imperfect, and mistakes were made that we have identified and discussed with the considerable benefit of hindsight. Hindsight is not always to be avoided. If it permits us here to learn lessons, and to improve the manner in which we respond to circumstances like these, then this effort will have been valuable. It also bears emphasis that while the University made mistakes, it was not the only organization to have received Bobby Davis’s information. The media spoke with Davis in 2002 and 2003, and never shared its information with the University or with law enforcement, until publicly reporting on the allegations in 2011. Likewise, Davis apparently brought his information to the police prior to 2005, and law enforcement never approached the University to determine whether Bernie Fine should remain a basketball coach, even if it was too late to prosecute him, or whether others had raised similar allegations. This is a case in which it could fairly be said that everyone recognized the importance and sensitivity of the allegations, and everyone decided that the allegations should be closely held. To some extent, this is understandable. Unverified allegations of sexual abuse of minors are extremely sensitive and potentially ruinous to careers and 51
reputations. But sensitivity does not always require secrecy. Perhaps one lesson to be taken from these events is that there are times when collaboration and communication are also necessary. Dated: July 5, 2012
A SPECIAL COMMITTEE OF THE BOARD OF TRUSTEES OF SYRACUSE UNIVERSITY Deryck A. Palmer, Esq. (Chair) Richard L. Thompson, Esq. Hon. Joanne F. Alper