MSU trustees weigh independent probe into Nassar scandal

Kim Kozlowski
The Detroit News

As the fallout from the Larry Nassar sex abuse scandal lingers at Michigan State University, the Board of Trustees may pursue the path that General Motors followed to move past a massive safety recall.

Officials at the state's largest public university are considering whether to authorize an independent investigation into how Nassar's decades of molestation and assaults were allowed to occur.

The hope is that such a probe could satisfy demands for a full accounting while protecting sensitive information from public dissemination — similar to how GM resolved the crisis surrounding a faulty ignition switch that was blamed for causing at least 12 deaths.

Dan Kelly, vice-president, MSU Board of Trustees

The independent investigation is being discussed by the trustees' Committee on Audit, Risk and Compliance, chaired by board Vice Chairman Dan Kelly, who said after the last board meeting Feb. 15 that he hopes such an inquiry will occur.

"There needs to be more done in terms of public disclosures," Kelly said.

Board Chairwoman Dianne Byrum added, "There (are) multiple conversations going on about how we can assist the survivors in their healing. 

"Everything is on the table right now for discussion."

Trustee Brian Mosallam, who has long called for an independent investigation, said last week that nothing is finalized but there are active discussions about the nature and scope of a possible independent investigation.

He said he has made numerous statements that an independent investigation is needed for "public consumption for a number of reasons."

In May, he wrote a statement called "New Day at MSU" that said: "We must immediately begin an independent internal review of the Larry Nassar matter to demonstrate to our courageous survivors, their families and all other MSU stakeholders (and government and regulatory authorities) that drastic voluntary remediation is better late than never."

The issue is heating up as MSU faces criticism from Nassar victims and state investigators for withholding more than 6,000 documents from the Michigan Attorney General's Office, citing attorney-client privilege. That probe has resulted in criminal charges against three former MSU officials, including ex-president Lou Anna Simon, but many say a deeper, broader inquiry is needed.

Those critics argue the AG's investigation is limited in scope and is not enough for MSU to understand what happened, to make changes and to ultimately allow victims, their families and the community to create a better culture.

"We need to look at what happened and why it happened," said Rachael Denhollander, the first woman to publicly accuse Nassar of sexual assault. "If we don’t find out those answers, it will be very difficult in looking forward."

GM, the nation's largest automaker, found itself in a similar situation five years ago, as scrutiny mounted over what the company knew and when it knew it about the defective ignition switches used in its Chevrolet Cobalt compact cars.

At the time, the automaker had known for more than a decade about the problems and faced several investigations, yet hadn't begun three recalls of the affected cars until January 2014.

CEO Mary Barra, who had been on the job for two months, apologized shortly after the recalls, emphasized it had taken too long and added she had told Anton Valukas, a former U.S. attorney who was leading GM's internal review, that there would be no roadblocks or "sacred cows."

Two and a half months later, Valukas delivered an independent report that found a "pattern of incompetence and neglect" led to the delay of the recalls by nearly a decade. In response, GM fired 15 employees, disciplined five others and made major changes at the company to identify, elevate and train around safety issues. 

 "We failed these customers," Barra told employees during a town hall meeting in June 2014 after the report was released. "We must face up to it and learn from it. To that end, on behalf of GM, we pledge that we will use the findings and recommendations from this report as a template for strengthening our company."

Experts say an independent investigation is often the first thing an entity will do to resolve an issue and demonstrate transparency.

"It looks good to the outside world to have a third-party investigator," said Michelle Krebs, a Detroit-based executive analyst for Autotrader, a car shopping website operated by Cox Automotive. "Internally, it allows them to do it in a way that internal politics can’t get in the way. It is indeed a third party, not someone in the company who has bias."

Krebs noted that Ford Motor Co. announced last month that employee concerns prompted an outside investigation of whether incorrect computer modeling might have caused it to misstate fuel economy and emissions for government testing.

She also pointed to a 2010 third party investigation conducted as Toyota recalled millions of vehicles after reports of unintended acceleration that were suspected in the deaths of at least 89 people.

"You need to get out in front of it, fast," Krebs said. "Because then you get it over with more quickly. Then you can get on with your business; otherwise, it’s this cloud that hangs over the company, the institution, longer than it needs to and it delays putting into practice new processes to prevent it from ever happening again."

That's exactly what MSU needs, Denhollander said. Nassar was enabled in his crimes by conduct at MSU that was not necessarily illegal, such as reporting failures, communication silos and training shortfalls, she said.

"This is a healthy step that many organizations have taken much faster than MSU," Denhollander said. "We want to know what went wrong so we can deal with it."

Many have called on Michigan State to do an independent investigation since the earliest public allegations against Nassar in September 2016. But until now, the idea has faced resistance from many university leaders.

Then-university spokesman Jason Cody addressed it in November 2017. 

"As for the call for an independent investigation, the FBI and MSU Police Department conducted a joint investigation earlier this year to determine whether any university employee other than Nassar engaged in criminal conduct," Cody said. "The results of that investigation were sent to the U.S. Attorney for the Western District of Michigan. We have no reason to believe that any criminal conduct was found." 

More recently, former interim President John Engler addressed an independent investigation days before he was forced to resign under pressure In January, saying that such a probe had already been done by Husch Blackwell, a Kansas City law firm that examined MSU's Title IX process.

"There are some people who want to continue to investigate and inquire into lots of things," Engler said. "I wouldn't support any more. ... We're trying to get rid of lawyers and consultants now. We're trying to go back to work."

In January 2018, MSU trustees asked then-Attorney General Bill Schuette to do an investigation into the university's role in the Nassar scandal in the wake of testimony by more than 150 women about the former sports doctor's crimes. The university promised it would cooperate.

MSU handed over reams of documents, including some that had nothing to do with the Nassar investigation.

Officials at the attorney general's office, under Schuette and his successor, Dana Nessel, have alleged that MSU blocked its investigation by withholding documents under attorney-client privilege. Part of MSU's argument for doing so is that the university is still in litigation with insurance companies.

As lawyers in the Attorney General's Office went to court to have a judge review the withheld documents, Nessel said in January that it appears her office is not going to see the majority of those documents because MSU has "fought this office every step of the way."

Proponents of an independent investigation at MSU say an outside investigator could review the privileged documents to see what's in them and include them in a final report without making attorney-client discussions public. 

"We want answers. All the answers," said Sterling Riethman, who was among the scores of gymnasts and other athletes assaulted by Nassar. "To get those, we need both an independent investigation and the remaining documents to be turned over to the AG’s office. 

"If MSU wants to show us that they’ve truly turned a corner, the solution is simple: Engage and encourage the independent investigation we’ve been advocating for, and release the remaining documents to the AG’s office."