Although many issues arose from the panel investigation of the Heather Bresch retroactive degree, the most serious problem appears to be the altering of her transcript by placing grades on the transcript for specific classes she did not take.  The “Report of the Special Investigative Panel For Review of Executive MBA Program Records,” contains a specific subheading “Record Modification” in which it details the modification of Ms. Bresch’s transcript.  The Report is redacted so that one can only guess at the specific grades or classes that were modified.  However the following is obvious from the Report:

             1)        In at least one course that she did not actually complete, she was given a grade that “was simply pulled from thin air.”

             2)        The grade modification forms bear only the signature of Dean Sears and “[a]ppropriate faculty and division chairs were neither consulted nor asked to sign these forms.”

             3)        “[O]ver Dean Sears’ signatures rather than the requisite course instructors’ and department chair’s signatures (as required by WVU standard operating procedures), grade modification forms were prepared and filed to add to her transcript credit for (redacted) hours of (redacted) that the principals all knew that she had not taken.”

             4)        The amended transcript now reflects her completion of some courses that she did not in fact complete, and reflects a number of grades that she did not in fact earn.

             Could the modification of the transcript result in criminal charges?  Ultimately, this will be up to a prosecutor, but it is certainly an interesting question.  The pertinent portion of the criminal statute which may apply, West Virginia Code § 61-5-22, states as follows:

 If any clerk of a court, or other public officer, fraudulently make a false entry, or erase, alter or destroy any record in his keeping and belonging to his office, … he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State.

             Assuming the findings of the Report are true, it would seem that a record was altered.  However, the statute only applies to a “public officer.”  Apparently, the modification forms bore the signature of Dean Sears and only Dean Sears.  Is he, as a professor and Dean at West Virginia University, a “public officer”?  Because West Virginia Code § 61-5-22 does not define “public officer” and I could not locate any other Code section that applies its definition of “public officer” to this specific statute, I looked at the case law.

             In 1901, the West Virginia Supreme Court of Appeals held that “it is clear that a professor [at West Virginia University] is not an officer, but an employee under contract to fill a chair of learning.”  See Hartigan v. Board of Regents of West Virginia University, 49 W.Va. 14 (1901).  Therefore, unless the governing structure of WVU has changed in some significant manner regarding the appointment of the Dean of the school of business and economics, the statute probably does not apply.  Alternatively, if the prosecutor can prove that some other higher ranking official at WVU participated in the altering of the record, he may be considered a public official and subject to criminal prosecution.

             A person who is not an officer may be criminally liable only if he or she steals, fraudulently secretes, or destroys a public record per West Virginia Code § 61-5-23.  The fraudulent altering of a public record is not criminal if it is not done by a public official.  It does not appear that Dean Sears could be successfully prosecuted because he is not a public official and did not steal or destroy a public record.  Dean Sears would have an additional argument that he did not alter the transcript fraudulently.     

            All of the public employees involved are subject to the West Virginia Governmental Ethics Act.  The Act does not address this specific situation with the exception of the general provision that a public employee may not knowingly and intentionally use his or her office for the private gain of another person.  Difficult to say that this provision applies based upon the limited information available to the public.  With Ms. Bresch refusing to disclose her transcripts to the public, the public will probably never get the complete details of the transcript modification.  On the other hand, if the prosecutor determines that an investigation is warranted, she could subpoena documents and witnesses before a grand jury.

             In the end, resignation will likely be the limit of punishment for Dean Sears.

 Tom Peyton