Law firm finds no evidence MSU officials or employees leaked name of Tucker accuser

EAST LANSING — No Michigan State University official or employee leaked the name of the woman who accused former football coach Mel Tucker of sexual harassment, an investigation paid for by the university found.

MSU hired the law firm Jones Day to conduct the investigation in September, following reports that accuser Brenda Tracy's identity had been leaked to reporters, a disclosure that could violate university confidentiality rules.

During a December Board of Trustees meeting, Trustee Dan Kelly said Jones Day had completed its investigation, and the school would make a public report of its findings. The school did not announce a timeline to provide the report.

While Jones Day conducted the inquiry, MSU also hired a second law firm, Quinn Emanuel Urquhart & Sullivan, to represent board Chair Rema Vassar, the State Journal confirmed.

Vassar did not respond to interview requests after the December trustees meeting, but said during the meeting that she's "gratified" that the Jones Day investigation "fully exonerated" her.

The report released Friday noted that seven of the eight trustees agreed to be interviewed and turned over their cell phones for the law firm to examine, with the exception of Trustee Dennis Denno, a Democrat.

Tracy, a prominent national advocate for sexual assault survivors, filed her complaint against Tucker in late December 2022. MSU did not announce the investigation and Tucker continued to work as MSU's football coach. Tracy has said that she did not intend to make her case public before an October hearing scheduled by the school. In a previous statement, her attorney said an "outside source" leaked Tracy's identity, leading USA TODAY to publish an investigative report that detailed allegations against Tucker.

In October, the outside Title IX investigator hired by the university determined that Tucker, who has denied wrongdoing, sexually harassed Tracy. MSU suspended Tucker without pay the day the USA Today story published, and weeks later fired him for cause.

No leak identified

The law firm gave the board an oral presentation summarizing the investigation and its findings to the board on Dec. 14. Jones Day said the factual findings of the investigation were “presented in greater detail” to trustees than the report MSU released Friday during the school's holiday break.

“In sum, investigators, utilizing a preponderance of the evidence standard, have been unable to identify any Trustee, administrator, or employee of MSU who made an unauthorized disclosure of confidential information that led to the media’s awareness of the OIE Investigation or the complainant’s identity,” investigators wrote.

“Investigators did learn that Tracy herself spoke with several members of the media, including at least one reporter who was the first to pursue a possible story about the OIE Investigation. Thus, while we cannot conclude that there was a leak emanating from anyone within MSU, there is evidence that some members of the media became aware of this matter through the complainant.

“Additionally, investigators found no evidence that any MSU Trustee knew Tracy’s identity as the complainant prior to USA Today’s publication of her name, thus tending to show that the Trustees did not even have the ability to make an unauthorized disclosure of the complainant’s identity to an outside party. Further, Jones Day could not corroborate the allegation that Trustee X was involved in or instigated a chain of communication divulging the complainant’s identity to the local media prior to September 10, 2023. Rather, Jones Day uncovered evidence tending to refute that allegation.”

Jones Day confirmed that 44 people at MSU, including all eight members of the board, "had some level of awareness of the OIE Investigation prior to the September 10, 2023, media reports." The law firm said every MSU employee it interviewed, "with the exception of a small number who admitted to telling their spouses that there was an investigation of Tucker," denied disclosing confidential information about the OIE investigation to anyone outside MSU.

Close to 60 interviewed

The law firm did 59 interviews with 52 witnesses, including seven of the eight trustees. It said no one in the MSU administration refused a request for an interview. It said most of the 20 reporters Jones Day staff tried to interview declined, and none were willing to share “details about the background sources for their reporting (though a few confirmed that their sources were not from within MSU).”

Those interviews included seven trustees, with the exception of Denno.

The law firm noted that while it does not have evidence or reason to believe Denno's phone contains evidence a trustee knew of or leaked Tracy's name to anyone outside MSU, the “phone may contain evidence relevant to our investigation” concerning evidence about a person the firm refers to as “Trustee X” and one person outside MSU who the firm found learned of the investigation prior to the publication of USA Today’s story. It said the other person outside MSU also declined to be interviewed.

A message was left with Denno.

The law firm said it does believe someone associated with MSU leaked a draft statement from Tracy's attorney, Karen Truszkowski. Truszkowski shared a draft of her statement with MSU General Counsel Brian Quinn on Sept. 11, but later modified that statement before releasing it to the media.

"Quinn shared the earlier draft statement with just 12 people — the eight Trustees, the Board Secretary, and three individuals in MSU’s Administration (interim President Theresa Woodruff, her Chief of Staff Michael Zeig, and MSU Spokesperson Emily Guerrant). Quinn’s email was marked 'Attorney-Client Privilege' with instructions to 'Please Do Not Re-Circulate.'

"It appears more likely than not that one of the 12 recipients of Quinn’s email provided it to Alex Walters, a reporter at the student-run State News publication. Based on witness interviews and the circumstances surrounding the reporting from the State News, it appears unlikely that Truszkowski or Tracy leaked the prior draft statement. We thus find it more likely than not that this unauthorized disclosure originated from within MSU."

Truszkowski released a statement Friday evening.

"Ms. Tracy is not surprised that MSU’s internal investigation failed to definitively identify the leak. We do note that, contrary to some reports, Jones Day did not exonerate the university as the source of the leak. Jones Day simply could not prove the source of the leak by a preponderance of the evidence," she wrote.

"This is not a surprise considering that Trustee Denno refused to cooperate with the investigation. Indeed, Jones Day confirmed that an affiliated person (Individual A), did have knowledge of Brenda Tracy’s identity before her name was disclosed publicly. Jones Day also confirmed that a confidential email sent to the MSU General Counsel was disclosed to the State News, and that the source of that leaked email could be narrowed to 12 people. Clearly there is a leak. We look forward to conducting a thorough, independent, investigation to identify the source of the leak."

Months of legal costs

The university has declined to discuss legal costs associated with the inquiry, but they have been significant. Both law firms began their work on the same day, Sept. 12, according to invoices obtained through a public records request.

For September and October, the investigation's first two months, two law firms billed the university for a combined $513,276.

Attorneys representing Vassar billed the university $208,750 for two months. And their hourly rates were nearly double what the attorneys conducting the leak investigation were billing, records show.

MSU has not released legal bills for November and December.

Quinn Emanuel attorneys’ rates started at $990 an hour and rose to $1,865.

The Quinn Emanuel rates far exceed the 95th percentile of hourly rates charged by Michigan attorneys, according to the 2023 Economics of Law Survey from the State Bar of Michigan.

According to the State Bar survey, the 95th percentile of hourly rates for partners at a law firm is $730 or $700, depending on whether they're also an equity partner. The rates charged by two Quinn Emanuel partners are more than double that high end.

Two partners at Jones Day have billed for work to investigate the leak, and there were $990 an hour and $967 an hour, about half what Quinn Emanuel attorneys billed but still higher that the 95th percentile.

Board response

The board released a statement attributed to Vassar.

“The Board of Trustees takes OIE investigations seriously and this report demonstrates the Board’s commitment to privacy that is essential to that process,” Vassar said. “Now, we again fully devote our energies and attention to the roles and responsibilities articulated to shared governance that the board approved at the December meeting. We will continue listening to the Spartan community and holding ourselves accountable to the transparency that is necessary for a safer, more welcoming Michigan State University.”

Reporter Matt Mencarini contributed to this story.

This article originally appeared on Lansing State Journal: Law firm finds no evidence MSU officials or employees leaked name of Tucker accuser