The Penn State Board of Trustees could potentially vote to remove a current member before his term expires and bar him from serving on the board in the future following a judge’s decision to lift a preliminary injunction.
Centre County Judge Brian Marshall on Friday ordered the dissolution of preliminary injunction preventing the board from voting on Trustee Barry Fenchak’s removal, which had been in place since October. Fenchak, one of nine alumni trustees on the 36-member board, did not win a second term in this spring’s election after he was disqualified from appearing on the ballot by a nominating subcommittee and his current term is scheduled to end on June 30.
In an opinion accompanying the order, Marshall wrote that the injunction was granted last fall after Fenchak showed evidence the board was trying to remove him because of his repeated requests for documents related to the university’s endowment and a long-term athletic department deal with ticketing and fan engagement vendor Elevate.
Fenchak has since been given the information he sought and “can no longer maintain that he is subject to removal from the Board in retaliation to these specific requests,” Marshall wrote.
It was not yet clear if the board would now move to oust Fenchak, which would require a two-thirds vote in favor and if successful would prohibit him from serving as a trustee again.
Marshall concluded his opinion by rejecting a contention made by the university at a May 12 hearing that Fenchak is “obsessed” with the board.
“To the contrary, throughout the course of this litigation, Mr. Fenchak has demonstrated himself to be a dedicated member of the PSU community, who at all times has held a good faith belief that his work on the Board of Trustees is for the greater good of the institution and the students that it serves,” Marshall wrote.
The ruling is the latest round in a legal and internal battle between Fenchak and the university’s governing body.
Fenchak filed a lawsuit against the board and then-Chair Matthew Schuyler last July after he said his requests for information about the management of the university’s $4.6 billion endowment and its rising administrative fees, as well as information about Penn State’s 10-year agreement with Elevate, were repeatedly denied. He argued the documents are necessary to his fiduciary oversight as a trustee, while the board claimed they were not, and that much of what he sought was protected by confidentiality agreements.
The two sides eventually reached an agreement for Fenchak to access the documents, but in the interim and afterwards, the contentious relationship continued.
After Fenchak’s initial lawsuit was filed, the board attempted to remove him when it received a complaint from a junior female staffer about a remark he made following a trustees meeting in July at the Altoona campus, just days after he filed the lawsuit. Fenchak asked the staff member about her hat and in what he later said was a reference to a line from the movie “A League of Their Own,” Fenchak remarked that when he wears a ball cap, his wife says he “looks like a penis with a little hat on.”
A subcommittee recommended the full board vote on his removal, but Marshall issued the preliminary injunction the day before the vote was scheduled to occur, writing that Fenchak had “provided uncontradicted evidence of retaliatory behavior” against him by board leadership.
In February, Fenchak garnered the necessary 50 nominations to be eligible for the ballot as he sought a second three-year term as an alumni trustee. But a new nominating subcommittee, created among several bylaw changes last year, with the power to deem candidates “unqualified” and ineligible to be listed on the ballot voted to disqualify Fenchak.
At the nominating subcommittee’s meeting on Feb. 26, where Fenchak was the only candidate disqualified, trustee Daniel Delligatti cited the incident with the staff member, noting that Fenchak had been advised of seven other “failures to abide by board standards of conduct.”
Fenchak sought an emergency order to be placed on the ballot and in first position, arguing that the board had used the nominating subcommittee to circumvent the injunction and that the bylaw changes violated state laws governing nonprofits and freedom of speech.
Penn State countered that the July 2024 incident was part of a “pattern of inappropriate behavior.” Attorneys for the board wrote in a filing that Fenchak has a “bottomless desire for attention” and a “predilection for misogynistic conduct,” citing social media posts that denigrated the board as a whole and specific members.
Marshall ruled in the board’s favor, writing that nominating subcommittees are not uncommon among institutions of higher education nor are restrictions on conduct and speech among board members, which “have for years served the necessary purpose of ensuring efficient and effective operations.” Fenchak had in fact already accepted restrictions on speech related to the board when he ran for and won election in 2022, Marshall wrote.
He added that the bylaw changes “are inoffensive and likely not inconsistent with law” and by intervening the court would be unnecessarily involving itself in university governance.
Fenchak ran a write-in campaign and finished 15th among 18 candidates for three alumni trustee seats that were up for election from April 21 to May 8.
“Together we have, in [Penn State President Neeli] Bendapudi’s words, brought ‘transformational change’ to Penn State and I hope that these newly elected trustees will commit to engaging in responsible governance,” Fenchak wrote on Facebook after the election results were announced. “I will remain engaged in advocating for a better Penn State, led by a thoughtful, transparent, and deliberative Board.”
