Monday, May 25, 2015

A PASCU Chapter at Each PASSHE University - Part 8

As stated in the blog posts of April 27 and May 4, 2015, we filed formal complaints with both the Office of General Counsel (OGC) and the Office of Inspector General (OIG), alleging malfeasance by the PASSHE Board of Governors for failure to preserve or deliver Act 188’s statutory purpose to PASSHE students.
 
In this blog post we will post and then comment upon the responses received from both State agencies.
 
Letter to the Office of General Counsel (OGC)

On May 4, 2015 I sent a formal letter of complaint¹ to the Office of General Counsel.  That letter reads in part as follows:

“The failure to deliver “high quality education” is documented by PASSHE’s own official data on constant dollars of total Educational and General Revenue per FTE student, the same proxy measure used by the “rating magazines” to assess the “quality of the total educational experience” at a college or university.
The failure to deliver a PASSHE education “at the lowest possible cost to the students” is documented by comparisons between the financial aid packages of PASSHE students, with those of students who attend “All Institutions” across America, where 70% of America’s college students attend “public” universities.  

The Commonwealth Attorney’s Act specifies the powers and duties of the OGC, in part, as follows:

“Under the Act, the General Counsel serves as chief legal advisor to the Governor and directs the legal activities of the executive branch.”
 
The allegations in this complaint predate the election of Gov. Wolf, as well as your appointment as General Counsel, and are not a complaint against the current administration but rather a chance to correct the actions, or inactions, of previous OGC attorneys serving as PASSHE Chief Counsels.  (Emphasis added.)
 
If the allegations in this complaint are true, it is too late to “prevent” the alleged misconduct, but not too late for the Office of General Counsel to investigate it and, if appropriate, act to prevent future misconduct.  And that is all that PASCU hopes to gain by submitting this complaint.”
 
Response from the Office of General Counsel

The full response² to my May 4, 2015 letter to the Office of General Counsel was dated May 11, 2015 and, in part, stated that two specific actions would be taken: 1) “Please know that I plan to share your letter with those who advise the Governor on education issues;” and 2) “In addition, please be assured that as the Commonwealth agency principally responsible to serve as PASSHE’s legal advisor, the Office of General Counsel will continue to work with PASSHE leaders and management to assist them in performing their public responsibilities in conformity with law.”
 
Letter to the Office of Inspector General (OIG)
 
Also on May 4, 2015 I sent a formal letter of complaint³ to the Office of Inspector General.  That letter reads in part as follows:
 
I note that: “The Office of Inspector General’s mission is to ensure integrity, accountability and public confidence in Pennsylvania Government by preventing, investigating and eliminating fraud, waste, abuse and misconduct within all agencies under the jurisdiction of the Governor.”  (Emphasis added.)
 
If the allegations in this complaint are true, it is too late to “prevent” the alleged misconduct, but not too late for the Office of Inspector General to investigate it and take action based on its findings.  And that is all that PASCU is requesting by submitting this complaint.”
 
Response from the Office of Inspector General
 
The full response⁴ to my May 4, 2015 letter to the Office of Inspector General was dated May 12, 2015 and included the following key points: 1) “You also delivered a similar letter to the Governor’s General Counsel, Denise Smyler.  By letter dated May 11, 2015, General Counsel Smyler responded to your letter to her;” and 2) “In light of your letter to General Counsel Smyler and her response, no further action on your May 4, 2015 letter to me is required at this time.”  (Emphasis added.)
 
Comments on the Responses Received
 
I found the responses from both the General Counsel and the Inspector General to be very reassuring.

Although the General Counsel did not respond to my not-so-subtle suggestion “to correct the actions, or inactions, of previous OGC attorneys serving as PASSHE Chief Counsels,” she did offer to share my letter “with those who advise the Governor on education issues.”
 
That action alone could be a great step forward because, by giving Gov. Wolf an opportunity to set the matter straight at the beginning of his term, it is possible that he will take advantage of that opportunity and correct the grave injustice inflicted upon PASSHE students, parents and alumni donors since 2002.
 
Also reassuring were the following words from the General Counsel: “The Office of General Counsel will continue to work with PASSHE leaders and management to assist them in performing their public responsibilities in conformity with law.” 
 
The response from the Inspector General was also reassuring in that he was aware of my letter to the General Counsel and her response to me.  And although he declined to conduct an investigation into the allegations of malfeasance contained in my complaint—which would involve looking back at actions taken, or not taken, during the Rendell and Corbett administrations—his response suggested to me that the assurances from the General Counsel would be sufficient to correct the matter going forward.
 
The fact that he states that “…no further action on your May 4, 2015 letter to me is required at this time” really says it all.  We will soon know if the Wolf administration is taking this matter seriously.
 
To be continued.      
 
¹ https://www.keepandshare.com/doc/7573739/pascu-letter-to-office-of-general-counsel-may-4-2015-202k.
² https://www.keepandshare.com/doc/7573740/hp0096-letter-from-general-counsel-denise-j-smyler-may-11-2015-pdf-141k.
³ https://www.keepandshare.com/doc/7573738/pascu-letter-to-the-office-of-inspector-general-may-4-2015-pdf-183k.
https://www.keepandshare.com/doc/7573881/hp0097-letter-from-inspector-general-may-12-2015-pdf-158k.

Monday, May 18, 2015

A PASCU Chapter at Each PASSHE University - Part 7

The Relationship between PASSHE and PASCU
 
In recent blog posts we have been trying to identify every option available to citizens whose elected officials fail to enforce a law that would benefit them—if enforced—but whose failure to enforce the law harms them greatly.  
 
The Pennsylvania State System of Higher Education (PASSHE)

PASSHE is the 14-University system of taxpayer-supported institutions of higher education that includes Bloomsburg, California, Cheyney, Clarion, East Stroudsburg, Edinboro, Indiana, Kutztown, Lock Haven, Mansfield, Millersville, Shippensburg, Slippery Rock and West Chester Universities.

PASSHE’s statutory purpose, and the most important reason for its existence, is “To provide high quality education at the lowest possible cost to the students.”
The Pennsylvania Association of State Colleges and Universities (PASCU)
 
PASCU is a non-partisan, non-profit association of citizens founded in June of 2012 that is committed to preserving the historic purpose of public higher education in Pennsylvania so that individual students, communities, and society at large may be enriched in perpetuity.

PASCU’s Mission is: “To ensure that the statutory purpose of public higher education in Pennsylvania as specified by Act 188 of 1982: ‘High Quality Education at the Lowest Possible Cost to the Students,’ is indefinitely preserved and faithfully delivered.”


PASCU’s Challenge - Redux

A comparison of PASCU’s mission with PASSHE’s statutory purpose reveals that PASCU seeks to preserve and deliver something already mandated by law!  And while PASCU’s mission might then seem redundant at first, the facts that elected and appointed officials who control PASSHE have neither preserved nor delivered Act 188’s statutory purpose since 2002 make PASCU’s existence and mission extremely necessary, rather than redundant, for many affected citizens.      
 
PASCU’s challenge is to answer this question:  "What options exist for those citizens whose elected officials, aided by their political appointees, choose to ignore the law as written, to the detriment of those citizens?"
 
So far we have looked into legislative censure or impeachment, as well as the filing of complaints with the Office of Inspector General and the Office of General Counsel, both of which report directly to the Governor of the State who may in fact be directly involved in the malfeasance being alleged against the other officials who control PASSHE.
 
For that reason, we will now look at two State agencies that do not report to the Governor and are, in fact, directed by independently elected State officials.  I refer to the Offices of Auditor General and Attorney General.

The Office of Auditor General
According to its website: 
The Pennsylvania Department of the Auditor General is the chief fiscal watchdog of the commonwealth.  It is responsible for using audits to ensure that all state money is spent legally and properly.

The auditor general was created by an act of the General Assembly in 1809. The auditor general was appointed by the governor until 1850, when it became an elected office. The auditor general can serve a maximum of two, four-year terms.  Eugene A. DePasquale is Pennsylvania’s 51st elected auditor general.

The mission of the Department of the Auditor General is to serve the people of Pennsylvania by improving government accountability, transparency, and the effective use of taxpayer dollars.
What we audit

The department is responsible for three types of audits:
Financial Audits – Help ensure the reliability of financial information on which much of the state government operates.
Performance Audits - Gauge whether or not government programs and activities are meeting stated goals and objectives, and if tax dollars are being spent efficiently and effectively.” (Emphasis added.)

The fact that PASSHE is not currently meeting its statutory purpose of “high quality education at the lowest possible cost to the students” would seem to fall under the Performance Audit responsibility of the Office of Auditor General.    
The Office of Attorney General
 
According to the Office of Attorney General website:
 
“The Commonwealth Attorneys Act establishes the Attorney General as the chief legal and law enforcement officer of the  Commonwealth and provides [in part] the following fundamental duties and responsibilities of the Office of Attorney general:
 
·         To be the Commonwealth’s chief law enforcement officer charged with the responsibility for the prosecution of organized crime and public corruption.  This law enforcement program includes a criminal investigations unit and drug law enforcement program as well as direction of Statewide and multi-county investigating grand juries and a Medicaid Fraud Control Section.

·       To represent the Commonwealth and all Commonwealth agencies and upon request the Auditor General, State Treasurer and Public Utility Commission in any action brought by or against the Commonwealth or its agencies; to furnish upon request legal advice to the Governor or the head of any Commonwealth agency.

·         To review for form and legality all proposed rules and regulations for Commonwealth agencies.  (Emphasis added.)
 
The fact that PASSHE has enacted rules and regulations that contradict its statutory purpose of “high quality education at the lowest possible cost to the students” would seem to indicate that the Office of Attorney General has both the authority and the responsibility to challenge the legality of those PASSHE rules and regulations which may be contrary to PASSHE’s official statutory purpose as specified by Act 188.

For the above reasons, PASCU will contact both the Office of Auditor General and the Office of Attorney General to alert both offices to the failure of the PASSHE Board of Governors to preserve or deliver the Act 188 statutory purpose of public higher education in Pennsylvania since 2002.  We will provide updates on this blog regarding whatever responses PASCU’s receives, if any, from these State agencies.
 
To be continued. 

Monday, May 11, 2015

A PASCU Chapter at Each PASSHE University - Part 6

Cynical Versus Idealistic Views of Laws in America
 
Recall the two quotes by John Adams (1735-1826) and Frank Zappa (1940-1993) about laws in America:

1)      “A government of laws, and not of men.”  (Adams)

2)      “The United States is a nation of laws: badly written and randomly enforced.”  (Zappa)
 
I learned and believed early in my life that Adams’ view of laws in America represented the truth.
Regrettably, I have come to believe that Zappa’s more cynical view is much closer to the actual truth.
 
John Adams, America’s second president, helped to establish a nation.  Frank Zappa, a rock musician with a background in classical music, helped to establish a satirical view of that nation.  He possessed an incredibly quick mind as shown in the following exchange with an aggressive TV interviewer, Joe Pyne, a World War II veteran who had lost a leg in combat:
 
Pyne: "So I guess your long hair makes you a woman."
Zappa: "So I guess your wooden leg makes you a table!"

 
Frank Zappa’s sharp wit and provocative insights deserve more respect and attention than is normally granted to counter-culture satirists of Americans’ beliefs and lifestyle choices.
 
Badly-Written Laws

Zappa’s first assertion about “badly-written laws” comes as no surprise to many Americans today since numerous loopholes have been discovered in many laws as written.  Merriam-Webster defines a “loophole” as “an error in the way a law, rule, or contract is written that makes it possible for some people to legally avoid obeying it.”  Laws with loopholes obviously qualify as “badly written” laws.
 
To see how common it is for bills passed by legislatures and signed into law by chief executives to contain loopholes, just Google the term “legal loopholes” and you will discover that such loopholes occur so frequently that multiple cottage industries within law firms have evolved to benefit certain taxpayers who have been inadvertently blessed by one particular loophole or another.
 
Skeptics have reason to believe that some of the loopholes found in laws were put their intentionally to favor a group of beneficiaries totally different from the ones the law is ostensibly intended to help!
 
Consider, for example, the Commonwealth of Pennsylvania SUNSHINE ACT, billed as “An act requiring public agencies to hold certain meetings and hearings open to the public,” which includes these words:
 
Section 708. Executive sessions

(a) Purpose. An agency may hold an executive session for one or more of the following reasons:

(1) To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. (Emphasis added.)
It is clear from Section 708 of the Sunshine Act that, if a State agency plans to conduct an “executive session” (i.e., a meeting closed to the public) to discuss employment matters, including termination of employment, the individual employee whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting.  (Emphasis added.)
 
The underlined statement appears to offer real protection to an employee whose employment status is about to be questioned in an executive session to which the employee would not be invited to attend.  Such a closed meeting denies the employee an opportunity to hear the allegations or to rebut any falsehoods.

Unfortunately, the Pennsylvania Sunshine Law, as written, doesn’t require the State agency to notify the employee in question that the planned executive session will concern his or her employment status!
 
And without a legal mandate for the State agency to provide such notice, there is no way for the employee in question to exercise his or her option of requesting an open meeting in place of a secret meeting!

One clear consequence of this gigantic loophole in the Pennsylvania Sunshine Act is that it provides State agencies with an easy way to discuss the employment status of any employee in a secret meeting without having to be concerned that the affected employee might appear and rebut false accusations.   
 
Randomly Enforced Laws

The issue of “randomly enforced laws” would seem to apply more at the level of individual persons than at the level of entire State agencies such as PASSHE, with some 11,000 employees.   For example, while many drivers on an interstate highway at any given time may in fact be speeding, State police tend to focus attention on the most flagrant violators.  It is said that, for practical reasons, police have no choice but to engage in “selective enforcement” of the speeding laws.
 
A Quest for More Options
 
We now return to the question of what options are available to citizens whose elected officials fail to enforce a law that would benefit them if enforced, but harms them by not being enforced as written.
 
In addition to the two State offices we have already discussed—the Office of Inspector General (OIG) and the Office of General Counsel (OGC)—there are two other State offices with the potential authority to ensure that State agencies such as PASSHE, obey the laws of the Commonwealth of Pennsylvania:   The Office of Attorney General, and the Office of Auditor General. 

To be continued.

Monday, May 4, 2015

A PASCU Chapter at Each PASSHE University - Part 5

Still More Options for Dealing With Malfeasance
 
In last week’s blog post, we looked at two different State offices with responsibility for ensuring that State agencies, such as PASSHE, obey the laws of the Commonwealth of Pennsylvania:  the Office of Inspector General (OIG), and the Office of General Counsel (OGC).
 
Based on declarations prominently displayed on their respective websites, it appears that both offices have roles in preventing before the fact, or correcting after the fact, any malfeasance in Pennsylvania’s state agencies. That would include the instant case we have been discussing regarding the failure of the PASSHE Board of Governors (BOG) to preserve or deliver the Act 188 statutory purpose of public higher education in Pennsylvania: “High quality education at the lowest possible cost to the students.”
 
The two offices have somewhat different missions, however.
 
The Office of Inspector General (OIG)
 
The mission of the Office of Inspector (OIG) is “to prevent, investigate, and eradicate fraud, waste, abuse, and misconduct in the programs, operations, and contracting of executive agencies under the Governor’s jurisdiction.”  The Commonwealth Attorney’s Act identifies PASSHE as one such agency.
 
The data show that the alleged BOG misconduct in the instant case has been happening since 2002, and continues to happen today, with no end in sight.  This means that prevention efforts by OIG are already too late, and that the only options that remain for OIG at this point are ‘investigation’ and ‘eradication.’
 
The complaint to the OIG cited last week, alleging malfeasance by the Board of Governors for failure to preserve or deliver Act 188’s statutory purpose to PASSHE students, was sent earlier today.
 
The Office of General Counsel (OGC)
 
According to its website, the Office of General Counsel (OGC) is “Pennsylvania’s Law Firm,” whose purpose is “…providing the Governor and the Executive Branch with expert, responsive, and cost-effective legal services necessary to support the administration of Pennsylvania’s government for the benefit of the public.”
 
With OGC acting as “Pennsylvania’s Law Firm,” one would expect its attorneys to provide sound legal advice to the Governor and all of Pennsylvania’s executive agencies, including PASSHE.   As part of that expectation, one would assume that the OGC attorneys assigned to advise PASSHE executives would be both competent and successful in ensuring that major policy decisions by the PASSHE BOG would align fully with law, especially Act 188, the law that created PASSHE and statutorily controls the actions of the PASSHE Board of Governors, the Office of the Chancellor, and the operations of the 14 Universities.
 
One would certainly expect that the OGC attorneys working inside PASSHE would be able to prevent misconduct by the PASSHE Board of Governors, before it happens, by speaking up when proposed BOG policy decisions under discussion will clearly violate one or more aspects of Act 188.
 
The complaint to the OGC cited last week, alleging malfeasance by the Board of Governors for failure to preserve or deliver Act 188’s statutory purpose to PASSHE students, was sent earlier today.
 
High Quality Education at the Lowest Possible Cost to the Students
 
Most shocking of all is the fact that between 2002 and 2014, spanning two terms by Gov. Rendell and one term by Gov. Corbett, PASSHE Chief Counsels during that 12-year period apparently remained silent while the PASSHE BOG pursued two policy goals diametrically opposed to the mandate of Act 188: “High quality education at the lowest possible cost to the students.”  Instead, the BOG acted by:  1) Choosing to erode half of the hard-earned educational quality gains of the previous 19 years; and 2)  Choosing to raise the “bottom line” cost to PASSHE’s least affluent students by focusing on the “lowest possible tuition,” instead of on the “lowest possible cost to the students,” i.e., “bottom line,” as per Act 188.
 
Those two decisions, both of which fly in the face of the Act 188 statutory purpose of the PASSHE system, have buried PASSHE students from the least affluent families with crushing student-loan debt, while providing students from the most affluent families with unneeded state subsidies. 

PASSHE’s “low tuition for all” policy, in effect since 2002, is failing on both ends of the financial need spectrum.
 
Not only do these BOG decisions constitute bad policy, they contradict Act 188, the enabling legislation that created the PASSHE system of 14 Universities in 1982.  These policy decisions are illegal on their faces and, one should expect that PASSHE’s Chief Counsel, reporting to the Governor’s General Counsel, would not have remained silent while allowing those patently illegal policies to be enacted.  But if they were silent in the past, one can only hope that they will no longer be silent in the future.   
 
Hope on the Horizon
 
The recent election of Gov. Wolf has resulted in a new Inspector General and a new General Counsel.  One can hope that these new officials will work to remedy a terrible injustice, which can be remedied very quickly—by insisting that the PASSHE Board of Governors simply obey the law, Act 188, as written. 
 
The current appalling situation was not created by Gov. Wolf nor his new Inspector General or General Counsel.  It was created by the administrations of a two-term Democratic Governor, and a one-term Republican Governor.  We can only hope that Gov. Wolf and his new appointees in the OIG and OGC will work to correct a grave injustice for PASSHE’s Majority Stakeholders—the 100,000+ students, the 200,000+ parents/guardians, and the 500,000+ alumni and their families who reside in Pennsylvania.

Nothing more than that is required; and nothing less than that is acceptable.
 
To be continued.

Monday, April 27, 2015

A PASCU Chapter at Each PASSHE University - Part 4

Other Options for Dealing With Malfeasance
 
In earlier blog posts we described in detail the failure of the PASSHE Board of Governors—consisting solely of elected officials and appointees of elected officials—to preserve or deliver the Act 188 statutory purpose¹ of public higher education in Pennsylvania: “High quality education at the lowest possible cost to the students.”
 
We began last time by looking at options available to citizens whose elected officials fail to enforce a law that would benefit them—if enforced—but whose failure to enforce is instead harming them greatly.  
 
The first option we looked at was legislative censure or impeachment of a sitting governor for a failure to follow the law.  We concluded that neither punishment was likely to occur in the instant case for at least two reasons: 1) the legislative branch of State government also benefits from the status quo, and is unlikely to want to see it changed; and 2) the absence of a public outcry over a failure to follow the law allows the executive and legislative branches to safely ignore the issue, and yet preserve the status quo.
 
In this blog post we will look at two State offices that have been given responsibility for ensuring that the laws of the Commonwealth are followed: the Office of Inspector General; and the Office of General Counsel.  It is possible that one or both of these offices might help to change the status quo that is now harming the Majority Stakeholders—PASSHE students, parents and alumni—who are providing 75% of PASSHE’s annual revenue but who continue to be denied the Act 188 statutory purpose of public higher education in Pennsylvania:  “High quality education at the lowest possible cost to the students.”
 
The Office of Inspector General (OIG)

On April 6, 1987 Governor Robert P. Casey issued an Executive Order creating a State-wide Office of Inspector General.  The duties² of the Office of Inspector General are listed on its website as follows:
 
”The Pennsylvania Office of Inspector General was created in 1987 by Executive Order 1987-7 to protect the interests of the Commonwealth and its citizens. The Office of Inspector General’s mission is to prevent, investigate, and eradicate fraud, waste, abuse, and misconduct in the programs, operations, and contracting of executive agencies under the Governor’s jurisdiction. The Inspector General is a cabinet-level official who is appointed by, and reports to, the Governor. Additionally, since 1994, the Office of Inspector General has been investigating welfare fraud and conducting collection activities for public assistance programs administered by the Pennsylvania Department of Human Services.” (Emphasis added.)
 
Protect the Interests of the Commonwealth and its Citizens

This aspect of the executive order signed by Governor Casey in 1987 clearly applies to the instant case in which the interests of the citizens that we call PASSHE’s Majority Stakeholders—the 100,000+ students, 200,000+ parents/guardians, and 450,000+ living alumni who reside in Pennsylvania—are currently not being protected. 
 
Also, since the failure of the PASSHE Board of Governors to preserve and deliver the statutory purpose of public higher education in Pennsylvania meets the Dictionary.com definition of “malfeasance,” which is a synonym for “misconduct by public officials,” it seems clear that the OIG’s mandate “to prevent, investigate, and eradicate …misconduct in the… executive agencies under the Governor’s jurisdiction”  would apply in the instant case because, according to the Commonwealth Attorney’s Act, PASSHE is one of thirty-six executive agencies under the Governor’s jurisdiction.
 
The Office of General Counsel (OGC)

According to its website:  “The Office of General Counsel is committed to providing the Governor and the Executive Branch with expert, responsive, practical and cost-effective legal services necessary to support the administration of Pennsylvania's government for the benefit of the public.” 
 
The Commonwealth Attorney’s Act³ specifies the powers and duties of the OGC, in part, as follows:
 
“Under the Act, the General Counsel serves as chief legal advisor to the Governor and directs the legal activities of the executive branch.”
 
In the case of OGC, just as with OIG cited above, PASSHE is considered a “State agency” which, under the Commonwealth Attorney’s Act, receives its legal advice from attorneys reporting to the Office of General Counsel which, in turn, reports directly to the Governor.
 
The Mission of PASCU

Recall that:  “The Mission of the Pennsylvania Association of State Colleges and Universities (PASCU) is to ensure that the statutory purpose of public higher education in Pennsylvania as specified by Act 188 of 1982: ‘High Quality Education at the Lowest Possible Cost to the Students,’ is indefinitely preserved and faithfully delivered.”
 
Recall also that PASCU’s primary goal is: “To promote the legal rights of that segment of society which includes all PASSHE students, parents and donors, primarily alumni who, as a group, have contributed the  majority of the annual funding to the PASSHE universities in Pennsylvania since 1992 and continuing to the present time.”  
 
For the above reasons, PASCU will contact both the OIG and OGC and will use their standard complaint forms to alert both offices to the failure of the PASSHE Board of Governors to preserve or deliver the Act 188 statutory purpose of public higher education in Pennsylvania since 2002.  We will provide updates on this blog regarding whatever responses PASCU’s receives, if any, from these two State agencies.
 
To be continued.  

¹https://www.keepandshare.com/doc/6772880/act188-pdf-405k.
²http://www.oig.state.pa.us/portal/server.pt/community/oig_home/3772.
³http://www.portal.state.pa.us/portal/server.pt/community/about_the_office/3252/commonwealth_attorneys_act/425242.
http://www.pascu.net/

Monday, April 20, 2015

A PASCU Chapter at Each PASSHE University - Part 3

                                                                              John Adams (1735-1826)

America’s second president, John Adams, is often cited for the above quote, which I learned in school as a 12-year old.  The implication of those words was that not only were all men created equal, but the laws of our government would be applied equally—a very comforting thought.
 
It never occurred to me until forty years later, as a PASSHE University president, that not only were there cases where laws weren’t applied equally, there were actually cases where laws weren’t applied at all!  This latter failure was something I had never seen before, but the evidence for it was so plentiful and undeniable that it introduced me to the word “malfeasance.”
 
Malfeasance

From Dictionary.com, “Malfeasance is the performance by a public official of an act that is legally unjustified, harmful, or contrary to law.”  If a group of public officials decided to ignore the law, without a public explanation of any kind, what could be more contrary to law than that?
 
And that is exactly the situation the evidence was forcing me to face—public officials plainly ignoring a law that hundreds of thousands PASSHE students, parents and alumni were seriously counting on.
 
                                                                                             Frank Zappa (1940-1993)
 
In the two centuries between the births of John Adams and Frank Zappa, much had changed in America.  Sadly, Zappa’s cynical modification of Adams’ quote appears recently to be all too true.
 
In previous blog posts we have described the failure of the PASSHE Board of Governors—consisting solely of elected officials and appointees of elected officials—to preserve or deliver the Act 188 statutory purpose of public higher education in Pennsylvania: “High quality education at the lowest possible cost to the students.”  Our goal in this blog is not to rehash the evidence but, instead, to itemize and discuss the options available to citizens whose elected officials ignore the law.       

Legislative Censure and Impeachment

Example 1: The Federal Level.  United States’ presidents take an oath of office to support and defend the Constitution of the United States which, it is said, also contains an implicit obligation for every citizen, including the president, to obey the duly enacted laws of the land.  The U.S. Constitution gives Congress the power to censure or to impeach a president for alleged misdeeds.
 
Censure is a public rebuke of the president which can come from either the House or Senate while impeachment, which is an indictment emanating from the House, leads to the president’s trial in the Senate and, upon conviction, would result in the removal of the president from office.
 
President Richard Nixon, for example, was impeached on three counts:  Obstruction of Justice; Abuse of Power; and Contempt of Congress.  Nixon resigned as president on August 9, 1974 thereby avoiding trial in the Senate where his removal from office was widely anticipated.      
 
Example 2: The State Level.  State governors also take oaths of office to support and defend the State’s constitution and, in a manner similar to that at the Federal level, various States enable impeachment of their governor by the legislature according to their respective constitutions.
 
Illinois Governor Rod Blagojevich was impeached on a single count of “Abuse of power” originating in the House and was subsequently convicted by the Senate in a unanimous (59-0) vote and was removed from office and barred from holding future public office in Illinois.     
 
In both of the above examples, the public outrage that accompanied news reports of their alleged misdeeds was so intense that legislators were strongly motivated to impeach and convict both men.
 
Only three U.S. presidents have ever been impeached: Andrew Johnson, Richard Nixon and William Clinton.  Johnson and Clinton were both acquitted by the Senate, and Nixon resigned from office before his trial in the Senate could begin.   
 
Twelve governors have been impeached between 1862 and 2009 and all but two were removed from office or resigned under threat of removal.  Allegations of public corruption were the most common reason for the impeachment of State governors.  
 
The Instant Case

The failure of the PASSHE Board of Governors to preserve and deliver the statutory purpose of public higher education in Pennsylvania is not likely to result in a legislative censure, much less impeachment, of a sitting Pennsylvania governor for at least two reasons: 1) the policy of ignoring the Act 188 statutory purpose of the 14 PASSHE Universities appears to have solid support by Pennsylvania’s elected officials, both Democrat and Republican, in the Legislature and in the Governor’s mansion; and 2) there has so far been no public outrage over the failure of those elected officials to obey the mandate of Act 188: "High quality education at the lowest possible cost to the students."
 
PASSHE has a total of 174 seats on its governance boards.  Five of twenty seats on the Board of Governors are held by elected officials; the remaining fifteen, plus all 154 trustees spread across the 14 Councils of Trustees are appointed through the normal Harrisburg patronage system in which the political supporters of elected officials routinely receive those appointments.
 
The Majority Stakeholders (PASSHE students, parents and alumni donors) provide 75% of PASSHE’s annual revenue; the Minority Stakeholder (the State in the person of its elected and appointed officials) provides 25% of PASSHE’s annual revenue.

The Bottom Line

1.       PASSHE’s Majority Stakeholders currently get saddled with “75% Pay and 0% Say;”
2.       PASSHE’s Minority Stakeholders currently enjoy “25% Pay and 100% Say.”
3.       At private universities, individuals get on governance boards by making donations to universities!
4.       At PASSHE universities, individuals get on the governance boards by making donations to politicians!
 
To be continued.

Monday, April 13, 2015

A PASCU Chapter at Each PASSHE University - Part 2

The Nature of PASCU’s Challenge
 
Last week’s blog post compared PASCU’s Mission with PASSHE’s Statutory Purpose and revealed a peculiar irony:  PASCU seeks to preserve and deliver something which is already mandated by law!
 
Doesn’t that make PASCU somewhat redundant, if not totally unnecessary?  Let’s see.
 
Recall that, according to Act 188, the purpose of the PASSHE System of 14 Universities shall be: “To provide high quality education at the lowest possible cost to the students.”
 
From Merriam-Webster, “When found in laws, the word shall is used to express what is mandatory.”
 
For that reason, PASCU’s Mission sounds easy to fulfill—provided only that we assume that things mandated by law must already be happening—without PASCU’s or anyone else’s help.
 
Under that assumption, of course, there would be no need for a non-partisan, non-profit group such as PASCU, because the mandated statutory purpose of the PASSHE System of 14 Universities—unless the law were repealed or amended—would already be in effect.
 
Unfortunately, despite being mandated by Act 188, the elected and appointed officials who control PASSHE have neither preserved nor delivered the statutory purpose of the PASSHE Universities to the students since 2002!  As shocking as this assertion may be, the evidence for it is overwhelming.
 
Specifically, the failure of the Board of Governors to provide high quality education¹ is found in Chart 9; and its failure to provide it at the lowest possible cost to the students² is found in Chart 20.
 
But the truth of the above assertion—that the leaders of PASSHE have neither preserved nor delivered its statutory purpose since 2002—gives PASCU its most troubling challenge: How to deal with the apparent malfeasance by PASSHE officials?
 
From Dictionary.com, “Malfeasance is the performance by a public official of an act that is legally unjustified, harmful, or contrary to law.”
 
Malfeasance in this case is easy to document because the flawed actions by the elected and appointed officials in question violated not just the spirit but the letter of the law!
 
The term “high quality education” is given meaning primarily through a number of proxy measures.

For example, average faculty salaries have been used extensively by “rating magazines” as a proxy measure for academic quality.  Those magazines have also used E&G Revenue/FTE Student as a proxy measure for the quality of the educational experience, which includes academic quality but goes on to include other educationally enhancing amenities such as technology, travel, internships, facilities and equipment—all of which, just as with faculty salaries—require financial resources. 
 
In 2011, financial aid packages for students at “All Institutions” across America contained 51% Grants and 42% Loans; while for typical PASSHE students they contained 27% Grants and 65% Loans.

By 2013, financial aid packages at All Institutions across America had improved to 52% Grants and 39% loans; while at typical PASSHE schools they had regressed even further to 25% Grants and 66% Loans.
  
While it is clear that fewer grants and more loans than the average of All Institutions across America can only mean that PASSHE students are not getting their education at anything like the lowest possible cost to the students, the actual dollar differences can be shocking.
 
If PASSHE financial aid packages were improved just enough to meet the average—which is not even close to the lowest possible cost to the students—PASSHE students would save on average $1,433/semester and $11,500 over four years, a truly substantial saving.  

Opportunities for Involvement

The officers at each of the individual PASCU Chapters will be invited to accept governance seats within PASCU’s statewide governance structure, which includes a Board of Directors, a Student Leadership Council, a Parent Leadership Council, and an Alumni Leadership Council.  PASCU’s four governance bodies are designed to draw equal representation from each of the 14 PASSHE Universities. (See below.) 
   
To better understand why students, parents and alumni donors from each one of the fourteen PASSHE Universities should get involved with PASCU by creating, launching and maintaining a PASCU Chapter at each PASSHE University, one must first appreciate the challenge faced by every law-abiding citizen who realizes that their elected and appointed officials are simply choosing to ignore the law that promises them something which they both care about and are largely paying for by themselves:  “High quality education at the lowest possible cost to the students.”
 
Their challenge is PASCU’s Challenge, and we will return next week to a discussion of the ways in which to deal successfully with the challenge of elected and appointed officials who choose to ignore the law.  

PASCU’s Governance Goal

PASCU’s governance goal is to identify and place PASSHE Majority Stakeholders (students, parents and alumni) into PASCU governance seats with equal representation from across all 14 PASSHE universities.

PASCU’s Governance Structure

·         On the Board of Directors

Ø  One student from each university = 14

Ø  One parent from each university = 14

Ø  One alumna/alumnus from each university = 14

·         On the Student Leadership Council

Ø  Three students from each university = 42

·         On the Parent Leadership Council

Ø  Two parents from each university = 28

·         On the Alumni Leadership Council

Ø  Two alumni from each university = 28

Summary
 
PASCU has governance openings for a total of 14+42=56 PASSHE Students

PASCU has governance openings for a total of 14+28=42 PASSHE Parents

PASCU has governance openings for a total of 14+28=42 PASSHE Alumni

When every PASCU governance seat is filled, a total of 56+42+42 = 140 Majority Stakeholders would be serving on PASCU’s Four Governance Boards.  This level of representation will go a long way in passing the “legal standing” test that PASCU will need to pass to be recognized as the Voice of—and represent the interests of—PASSHE’s Majority Stakeholders, a group that now includes approximately 100,000+ students, plus 200,000+ parents/guardians, plus 500,000 PASSHE alumni who live in Pennsylvania.
 
To be continued.

¹ https://www.keepandshare.com/doc/6794551/privatization-without-a-plan-chart-9-and-caption-january-23-2014-pdf-387k.

² https://www.keepandshare.com/doc/6802256/privatization-without-a-plan-chart-20-and-caption-january-29-2014-pdf-390k.