Michigan State Trustee Calls for University’s General Counsel to Resign

Calls for resignations at Michigan State University continue as the university faces continuing criticism about how it handled reports of sexual assault by Larry Nassar, formerly an associate professor of osteopathic medicine, a sports doctor, and a team physician.

Brian Mosallam, a member of the Board of Trustees, demanded on Monday that the university’s general counsel, Robert A. Noto, step down. Noto has served as the university’s chief legal officer for nearly a quarter century.

“Today I met with the MSU General Counsel,” Mosallam wrote on Twitter. “I call for the immediate resignation of Bob Noto followed by an independent review of the legal department’s handling of the Nassar matter.”

Mosallam did not respond to several requests for comment.

His demand follows a weekend story by The New York Times charging that the university’s internal investigation of Nassar was not meant to shed light on the situation, but instead to build a legal defense against the numerous anticipated lawsuits. The university has also come under sharp criticism for how it handled information during and after an investigation by the U.S. Department of Education’s Office for Civil Rights into possible violations of Title IX, the federal law meant to protect against gender discrimination, including sexual misconduct.

Higher-education lawyers said university officials may have erred in how they communicated the purpose of that review and the role of the lawyer hired to oversee it, the former federal prosecutor Patrick Fitzgerald. It’s not clear what Mosallam’s complaints are, but Noto, as the institution’s lead lawyer, would typically be involved in advising the university’s president and board on such decisions.

If Fitzgerald was hired to protect the institution legally, he could not produce a truly independent assessment of the university, said Scott D. Schneider, head of the higher-education practice at the law firm of Fisher Phillips. In that case, Fitzgerald would be ethically bound to defend the university, not to lay out all of its flaws in a public report, Schneider said.

Investigator or Defender?

So far, nine federal lawsuits have been filed representing the complaints of more than 140 plaintiffs, according to Chronicle research. Those figures do not include at least two other lawsuits that have been filed or are expected from women alleging they were raped by members of the university’s football team, said Karen Truszkowski, one of the lawyers who is representing the women.

Nearly a year ago, Michigan State’s trustees announced they had hired two law firms to work with the university to conduct “the factual review necessary to address the allegations being made and to assess Nassar’s former work at the university.”

Fitzgerald, a well-known lawyer with a reputation for prosecuting large corruption cases, was hired to lead the Nassar case for Michigan State and to provide “guidance on how the university can best conduct the factual review so as to not interfere with the separate investigations being led by the U.S. Attorney’s Office and the Michigan Attorney General.”

As the controversy has dragged on, Fitzgerald’s role has come under deeper scrutiny as public and elected officials in Michigan question the extent to which the university was trying to clear its name versus trying to objectively lay out the facts.

To some extent, Michigan State’s own leadership has muddied the waters. In recent months, university officials — including the trustees and Lou Anna K. Simon, who resigned last week as president — have touted findings from Fitzgerald’s investigation that the university had fulfilled its legal obligations in responding to reports of sexual abuse by Nassar. In December, Simon said Fitzgerald had responded to “the Michigan Attorney General’s request for information for our legal defense in civil suits.”

Her prepared statement then quoted a letter from Fitzgerald, saying, “The evidence will show that no MSU official believed that Nassar committed sexual abuse prior to newspaper reports in the summer of 2016.”

Since the conclusion of the trial, some state officials have asserted that Fitzgerald created a conflict of interest by acting as both defender and investigator.

Despite the pronouncements of the university and the expectations of the public and elected officials, Fitzgerald’s December letter was also a reminder that he was not hired to produce a public report.

“The confusion has gotten to the point where a press article can decry the lack of an independent investigation, while casually mentioning — twice — that in fact there was an FBI investigation,” Fitzgerald wrote in December to the state’s attorney general.

The university, Fitzgerald continued, “cannot produce an investigative report for a simple reason: as has been stated publicly before, there is no investigative report.”

Dan Bauman contributed to this report.

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.