Centre County judge halts Penn State board of trustees from removing outspoken trustee
Penn State’s board of trustees may not go forward with a vote to permanently remove one of its most outspoken members, a Centre County judge wrote Wednesday in a decision that was critical of the board’s “broad pattern of retaliatory behavior.”
An attorney for trustee Barry Fenchak told the Centre Daily Times the ruling from Centre County Judge Brian Marshall sends a “very powerful message” to the university’s board.
“I think it’s time for the board of trustees to do some deep self-reflection on what their legacy will be and what their mission is at this institution,” attorney and Penn State alumna Terry Mutchler said. “... The bottom line is they cannot hand trustees a blindfold. They’re supposed to hand them a copy of bylaws and I think that there needs to be some transparency that is injected into this.”
Penn State did not offer an immediate response. The university was reviewing the decision, spokesman Wyatt DuBois wrote in an email to the CDT.
Penn State’s board was set to vote Thursday on whether to remove Fenchak for what it said was a code of conduct violation. A board subcommittee unanimously recommended his removal last month.
After the board’s July meeting, Fenchak loosely repeated a quote from the PG-rated movie “A League of Their Own” in which Tom Hanks’ character told a baseball umpire he looked like a “penis with a little hat on.”
Penn State’s attorneys wrote in court documents that Fenchak repeated the line to a junior female staff member who later reported feeling uncomfortable.
Fenchak expressed regret during his testimony Tuesday for making anyone feel uncomfortable, saying he meant it as a self-deprecating joke.
In his 12-page opinion, even Marshall wrote the comment was “thoughtlessly made” and made worse given Fenchak’s position when compared to a junior staff member. But the judge also wrote that he could not ignore Fenchak’s often undisputed claims of retaliation by the board.
Fenchak’s remark came just three days after he filed a lawsuit against the board, and using that incident as the basis for the first-ever removal of a trustee is “suspect,” Marshall wrote.
“I think a 12th-grade civics student could have figured out that this was retaliation and we’re extremely glad that the judge saw it that way,” Mutchler said.
Marshall also brushed off Penn State’s claim that blocking the board from removing Fenchak would stop the university from holding its trustees accountable, writing that its argument was “unconvincing.”
As a result of the inappropriate interaction, Fenchak is now required to attend board meetings via Zoom rather than in person and has had his social privileges as a trustee revoked.
An investment adviser by trade, Fenchak also alleged the board tried to have him removed because of his repeated requests for detailed information about the university’s at least $4 billion endowment.
Rather than share the information, Marshall wrote that the board “sought an opportunity” like Fenchak’s remark to the female staffer to “permanently end his probing inquires into the health of the endowment” for which he has a responsibility.
“Allowing (Fenchak’s) removal would recast a shadow over the financial operations of (Penn State), to the detriment of every PSU stakeholder except those at the very top of the PSU hierarchy,” Marshall wrote.
The injunction will remain in place unless it is removed by Marshall, until Fenchak’s lawsuit is resolved or until his three-year term expires in 2025.
Fenchak is one of two outspoken alumni-elected trustees embroiled in legal disputes with the board.
A Lackawanna County judge ruled earlier this month 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 characterized it as “retaliation for his exercise of his First Amendment rights,” a charge the university denied.
As litigation involving both trustees moves forward, Penn State will likely face renewed questions about its transparency and the way it which its board carries out its business.
“The real threat here is the fact that Penn State continues to do their work behind a curtain, and that’s got to end,” Mutchler said. “My great hope is, that as we move forward in the overall case, that will end here. What they were doing was obvious and it just didn’t even pass the laugh test.”
This story was originally published October 9, 2024 at 6:37 PM.