Penn State top lawyer to oversee ethics too, for now · Spotlight PA State College

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STATE COLLEGE — Penn State’s recent appointment of a new general counsel gives the same person temporary oversight of the university’s legal division and its ethics and compliance office, a setup that may create a potential conflict of interest.

Tabitha Oman, the university’s chief ethics officer since March 2022, started as vice president and general counsel on Aug. 21. In its news release announcing the decision, Penn State said Oman would continue leading the university’s ethics office until a replacement is hired.

There are differing opinions within the compliance industry on whether having the legal and compliance roles overlap creates problems. While some argue the structure saves money and improves communication, others say the two positions can have competing interests — one protecting the organization by limiting liability and the other taking action on potential problems, which could involve notifying outside groups.

Defending its decision, the university noted that Oman will not permanently hold dual roles. In an email to Spotlight PA, a university spokesperson wrote: “This is a temporary measure and we ask that you not draw conclusions or speculate when this arrangement covers a temporary time period.”

The university did not provide a timeline for when it plans to hire a new chief ethics officer, though the spokesperson said the process is “moving forward aggressively.” In the previous two searches, the university took between eight and 12 months to fill the role that oversees university ethics training and manages the office that handles Penn State’s misconduct reporting hotline.

The Penn State spokesperson said Oman serving in both capacities does not create a conflict of interest because “in both cases the interests of the university are paramount.” (Read the university’s complete response here.)

The university’s Office of General Counsel provides “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 unit also oversees licensing, real estate, land use, affirmative action, accreditation, and federal contracts, among other topics, according to a university statement.

Greg Triguba, an attorney with expertise in corporate compliance and ethics, told Spotlight PA in an email that an organization’s ethics officer is “meant to be an independent, objective position that has authority to escalate issues wherever needed (both internally and externally) without bias and hesitation.”

“Conversely, the [general counsel’s] role and first position is to protect the organization (within legal limits), and because of this, it can sometimes create a conflict for them to be fully objective and unbiased in certain situations,” Triguba wrote in the email.

At the federal level, officials have advised against a dual role setup. In March 2023 guidance to prosecutors considering whether to investigate a corporation, the U.S. Department of Justice instructed lawyers to question whether an organization’s compliance unit has “sufficient autonomy from management.”

In settlements with health care providers that don’t involve prosecution, another federal agency, the U.S. Department of Health and Human Services Office of Inspector General, frequently requires that an organization’s compliance officer neither be, nor be subordinate to, the organization’s legal officer.

However, the Association of Corporate Counsel, a professional group based in Washington, D.C., does not believe there is a conflict in the same person serving both roles, said spokesperson Dan Weber.

A 2023 survey of nearly 900 chief legal officers by the association found that 78% of legal officers oversee a compliance unit and 47% oversee the ethics unit at their respective organizations.

Penn State’s Ethics and Compliance Office was created a decade ago in the wake of the Jerry Sandusky child sex abuse scandal and is tasked with overseeing the university’s compliance with internal, state, and federal policies, as well as helping investigate potential wrongdoing. But in recent years, the office’s former leader faced repeated allegations of misconduct and retaliation.

University-sponsored surveys in the past decade of the campus community have shown widespread distrust in Penn State’s compliance system. The 2022 version of the survey found that nearly 40% of Penn State employees who responded to the survey said they strongly agree or agree with the statement, “those who violate policies still get rewarded.” Less than half of faculty and staff who responded to the survey believe that Penn State does not retaliate against people who report misconduct.

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· Spotlight PA State College

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