Penn State must pay trustee’s legal fees amid controversy, Lackawanna County judge rules
A Lackawanna County judge ruled earlier this week that Penn State must continue to halt its internal investigation into alumni-elected trustee Anthony Lubrano until it pays his legal expenses.
The legality of the investigation — which was made public in Lubrano’s lawsuit last month — is not currently at issue, although Lubrano’s attorneys have characterized it as “retaliation for his exercise of his First Amendment rights,” a charge the university denies. What is at issue is whether the board’s bylaws require the university to pay Lubrano’s accompanying legal costs to defend himself in that investigation.
Judge James A. Gibbons ruled Monday that, based on the language in Penn State’s own bylaws, the university remains obligated to advance Lubrano’s legal fees. At different points in his memorandum, the judge chastised the university’s opposition to paying such fees, describing the university’s reading of its bylaws as “strained and contrived.” At another point, he called another Penn State argument “somewhat disingenuous.”
“The bottom line here is that the Bylaws require advancement of Lubrano’s fees and the testimony and exhibits in the record compel the clear conclusion that that is the only way Lubrano stands a chance to get that to which he is entitled,” Gibbons wrote.
The university initially offered a $10,000 advance to Lubrano prior to the filing of his lawsuit, not because it acknowledged it was required to, but “in an effort to minimize disputes.” It’s not known how much Lubrano’s total legal expenses are — but, in the footnotes of a mid-September filing, Penn State’s attorneys acknowledged that Lubrano claimed $140,000 in expenses at that time.
It also isn’t clear why the lawsuit was filed in Lackawanna County and not Centre County, which is home to the University Park campus. But Lubrano’s attorneys argued they had jurisdiction in Lackawanna because a commonwealth campus, in addition to thousands of alumni, are located there.
How we got here
The exact nature of the internal investigation into Lubrano is not fully known. But, in an email from one of Lubrano’s attorneys, sent to Penn State and published in court documents, the investigation is characterized as being “based on anonymized complaints submitted by several other trustees relating to the Paterno resolution and Mr. Lubrano’s public statements concerning The University and its programs and finances.”
In February, Lubrano introduced — and then withdrew — a controversial resolution that sought to name the field at Beaver Stadium after Joe Paterno. He withdrew it partly at the request of Jay Paterno, Paterno’s son and a fellow trustee.
Lubrano, who is currently serving his fourth term on the board, went on to conduct some media interviews afterward. In those, he acknowledged in the lawsuit, he also expressed opinions involving the rising cost of university tuition and unfunded costs of capital building projects.
He said he was reprimanded nearly six weeks later, on March 28, by the board chair and vice chair. And he was told in July he was being investigated, with the investigation having started around March.
Lubrano did not disclose what the “factual findings” of the investigation were because, he said in the lawsuit, he was threatened with sanctions if he did. In its court response, Penn State acknowledged that the university trustees were scheduled to hear a presentation at the Sept. 6 executive board meeting involving the “investigatory findings” on Lubrano. But Lubrano filed his lawsuit and emergency petition on Sept. 4.
That “suggests Mr. Lubrano’s injunction is aimed at delaying resolution of the complaints against him, rather than ‘abating’ the indemnification dispute,” the university wrote.
Lubrano stated in the lawsuit that he’s committed to repay any funds if it’s later determined indemnification is not permitted.
News of the university’s investigation into Lubrano came on the heels of a trustees committee last month recommending the removal of another trustee, Barry Fenchak, who was investigated for a potential code of conduct violation. (The full board could vote on his potential ouster at a special meeting Oct. 10. Removal requires at least a two-thirds majority.) Fenchak sued the board in July, alleging it withheld important financial information.
According to Fenchak and court filings, Fenchak’s potential violation occurred when the trustee joked he can’t wear baseball hats because his wife says he looks like the umpire in the PG-rated movie “A League of Their Own” — the one who was told by actor Tom Hanks’ character that he looks like “a penis with a little hat on.”
Penn State’s bylaws were revised in late July.
Fenchak and Lubrano are both seen as arguably the two most outspoken trustees on the board. They were both elected by alumni, and alumni-elected trustees make up nine of the 38 board positions.
What’s next for Lubrano?
Like Fenchak, Lubrano’s concern is that he could be “irreparably harmed” by being removed from the board of trustees, as described in court documents.
It’s unclear if Penn State might appeal the judge’s latest ruling. But, if the university chooses to accept it and pay Lubrano’s legal fees, then — barring additional lawsuits or filings — the university could then share the findings from its internal investigation with the board of trustees.
With Fenchak, once the findings were shared, a trustees committee recommended his ouster — which led to the Oct. 10 special meeting, where his removal could potentially be voted on.
It’s unclear how quickly any such special meeting involving Lubrano might move. When asked how soon that might happen, and if it would happen this calendar year, a Penn State spokesperson simply responded by saying the university does not comment on pending litigation.
The next regularly scheduled board of trustees meetings, meaning outside of the virtual meeting Oct. 10, are scheduled for Nov. 7-8.
This story was originally published October 3, 2024 at 5:28 PM.
