Penn State trustee sues board over decision to keep him off of the alumni trustee ballot
A Penn State trustee is suing the board over its recently amended bylaws and a subcommittee's vote to keep him off of the ballot in the upcoming alumni trustee election.
In a lawsuit filed Tuesday against the Penn State board of trustees, Barry Fenchak argued the board's bylaws, which were amended last summer, violate state law, and a subcommittee's vote to keep him off of the election ballot should be overturned. He's seeking to be on the ballot for the Penn State alumni trustee election that begins April 21.
Fenchak is one of nine alumni-elected trustees and has been on the board since 2022. His term is up this year and he received the required signatures and submitted the appropriate paperwork to be on the ballot. But during a February nominating subcommittee meeting, the members deemed Fenchak 'unqualified' and ineligible to appear on the ballot.
In a controversial decision last summer, the board updated its bylaws and gave the trustees a bigger say in who can appear on the ballot in the alumni trustee election. They created a nominating subcommittee and gave them the ability to review alumni trustee candidates and determine whether candidates are qualified to be on the ballot.
Fenchak was the only one out of 19 candidates to be deemed unqualified and ineligible to be on the ballot. During the Feb. 26 subcommittee meeting, Trustee Daniel Delligatti said he had concerns about Fenchak because his record of service includes eight letters advising him he failed to abide by board standards of conduct. He specifically mentioned one letter, which detailed Fenchak's 'inappropriate behavior' toward a university employee last summer that violated the board's past expectations of memberships and current code of conduct.
The inappropriate behavior refers to an incident after the board's July meeting, when 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' to a female staff member. The board previously tried to permanently remove Fenchak from the board in the fall because of the incident.
When the board tried to remove Fenchak in the fall, the issue went to court as part of a lawsuit Fenchak filed against the board. The judge halted the board from removing him as trustee.
The lawsuit states the subcommittee's vote to keep Fenchak off of the ballot violated the judge's previous ruling that he could not be removed from the board by a vote.
'In doing, so the Defendants bypassed not only the will of the voters, but the very authority of this Court and the rule of law,' the lawsuit states.
A Penn State spokesperson said the university 'generally does not comment on pending litigation.'
The nine alumni-elected trustees serve staggered three-year terms with three seats becoming open each year. Alumni have from April 21 to May 8 to cast their vote in the trustee election.
The lawsuit also asks the judge to void five sections of the amended bylaws, stating they violate Pennsylvania law.
Those sections are about election or appointment to the board and term of office, qualifications for membership, the trustee code of conduct, the role and responsibilities of the trustees and trustee sanctions and removal.
The trustee code of conduct section states in part that trustees must support the majority decisions of the board and cannot make negative or critical public statements about the board or university. Fenchak's lawsuit claims this is a violation of his, and every other trustee's, right of free speech.
The lawsuit alleges that some policies have not been enforced equally across the alumni trustees and the board has engaged in a 'longstanding retaliatory campaign' against Fenchak and have only enforced policies against him alone.
'For instance, Defendants have repeatedly chosen to ignore serious misconduct by other trustees, including threats against other trustees — clear violations of the Trustee Code of Conduct — while simultaneously wielding the same Trustee Code of Conduct to punish Plaintiff for his free expression concerning policy disputes, or more troubling, his pursuit of critical information (which he is lawfully entitled to) concerning the assets, liabilities of the University,' the lawsuit states.
Fenchak sued the university and the board of trustees chairman last summer to obtain financial information related to the university's endowment and 10-year contract with a ticketing sales agency.
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