Penn State has a 26-person, $11.4-million legal unit. Why does it hire outside law firms?

The Penn State Transparency Tracker is an ongoing effort by Spotlight PA to document and share the ways in which the university is, and is not, being transparent with the community. Due to its special “state-related” designation, Penn State is not subject to open records laws beyond the public disclosure of basic financial information. The goal of the Transparency Tracker is to provide insight not only into Spotlight PA’s reporting process but also how Penn State responds to routine media inquiries.

STATE COLLEGE — During fiscal year 2022, Penn State paid more than $4.3 million to five private law firms — Ballard Spahr, Duane Morris, McGuireWoods, McQuaide Blasko, and Saul Ewing — according to information filed with the Pennsylvania Department of Education.

The university retains private lawyers in addition to having its own 26-member Office of General Counsel tasked with providing “legal advice and representation to the Board of Trustees, the President and other administrators in their capacity as agents conducting University business,” according to the office’s website.

The internal legal unit is operating in fiscal year 2023 with a budget of $11.4 million, according to information filed with the state.

Spotlight PA has previously reported on the lack of transparency in the use of private law firms by former Democratic Gov. Tom Wolf and state lawmakers. For that reporting, the newsroom used open records requests to better understand the practice. However, similar requests to Penn State are not subject to open records laws due to the university’s special status as a “state-related” institution.

Interested in learning more about how Penn State uses private law firms, Spotlight PA asked Penn State the following questions:

1. What are the circumstances in which Penn State pays for outside counsel to represent them or provide legal advice instead of using the university’s Office of General Counsel?

2. What policies govern the approval of contracts between the university and outside organizations? Similarly, in what situations does the Board of Trustees have insight into or decision-making powers over the authorization of contracts with outside organizations?

Penn State responded in an email:

“Management of the University’s legal function is the responsibility of the Vice President and General Counsel, who reports to both the president of the University and the Board of Trustees,” a university spokesperson wrote. “Penn State engages outside counsel on litigation matters and other matters as determined by the Vice President and General Counsel to be necessary or appropriate under the circumstances.

“With 24 campuses, 90,000 students, and nearly 35,000 employees, the services provided by the Office of General Counsel are critical to operations. Like most other universities across the nation, as an example, Penn State’s Office of General Counsel deals with a wide range of legal matters, including licensing, affiliation agreements, insurance, real estate, zoning and land use, intellectual property rights, affirmative action, employment, safety, research, hospital facilities and licensure, accreditation, federal contracts, ADA compliance, conflicts of interest, airport regulations and environmental concerns — to name just a few.”

Seeking clarity, Spotlight PA followed up with this question:

1. What criteria does the Vice President and General Counsel use to determine when outside legal counsel is “necessary or appropriate”?

Penn State responded in an email:

“The Vice President and General Counsel makes these decisions based on his professional judgment after assessment of relevant facts and circumstances,” a university spokesperson wrote in an email.

Later, a university spokesperson sent Spotlight PA a link to the policy governing the Office of General Counsel, which states: “The General Counsel is responsible for determining when certain matters require the retention of outside counsel. Attorneys within the Office of General Counsel will retain and supervise the representation of outside counsel.”

Based on that information, here’s what you need to know:

Decisions about when and how Penn State hires outside law firms are made internally. The public does not have much insight into these decisions, except when an outside firm is named in court filings or when the university files information with the Pennsylvania Department of Education. However, such filings with the department are made at least six months after the private law firms have been paid.

Have an idea for the Penn State Transparency Tracker? Submit tips or questions to wmassey@spotlightpa.org. You can also share documents and other materials to help make our reporting more robust. Read more about sharing such information here.

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