A Penn State trustee who is suing the university over access to financial information has asked a Centre County judge to stop the board from holding a vote on his removal until the litigation is resolved.
Alumni-elected trustee Barry Fenchak on Monday filed an emergency motion for a preliminary injunction, in which he claims the board used a “self-deprecating” joke he made as pretext to remove him from his position in retaliation for his lawsuit.
Fenchak sued the board and Chair Matthew Schuyler in July after his requests for information about the Penn State’s $4.6 billion endowment were repeatedly denied by university leaders and fellow trustees. Fenchak says he is legally entitled to the information as part of his fiduciary oversight as a trustee. Penn State argued in preliminary objections that the information “is not reasonably related to” his role as a trustee and that much of what he requested “is protected by confidentiality agreements.”
Since filing the lawsuit, Fenchak says the board “has engaged in further retaliatory conduct with an ever increasing severity of sanctions,” including prohibiting him from attending meetings in person and culminating with a committee’s vote on Sept. 9 recommending that he be removed from the board. The full board is scheduled to vote on his removal, which will require a two-thirds majority, at a special meeting at 8 a.m. on Oct. 10, according to the filing.
The move to oust Fenchak stems from a joke from the movie “A League of Their Own” that he repeated following the board’s meeting in July at the Altoona campus, his attorneys wrote. When board members were given gift bags that included baseball hats, Fenchak said he usually doesn’t wear hats because he looks, as Tom Hanks’ character uttered in the film, “like a penis with that little ball cap on.”
An unnamed female university employee reported that she was made uncomfortable by the joke, and the board launched an investigation in conjunction with Penn State’s Office of Ethics and Compliance.
The investigation, Fenchak’s attorneys wrote, was an opportunity for the board to “bootstrap their pre-conceived plan to remove [him] from the board (as punishment for his prior information requests) to a purported ‘safety’ concern,” according to the filing.
The joke, according to the filing, was intended to “bring levity to an otherwise serious and stressful atmosphere that often surrounds board meetings.”
“There are no grounds to reasonably conclude that [Fenchak’s] utterance of a self-deprecating bad joke has rendered him a danger to others, or that he has otherwise engaged in abusive or harassing behavior,” his attorneys wrote. “At most, [Fenchak’s] recitation of a line from a PG-rated movie was an ill-advised attempt to be humorous, and he regrets that it resulted in someone feeling uncomfortable. lt certainly does not rise to the level of harming or endangering the PSU community.”
The board contends Fenchak violated its updated code of conduct, which was amended on July 30, 11 days after the joke was made, and that the remark was “also inconsistent with the expectations of membership and the bylaws in effect prior” to the amended version, according to the Committee on Governance’s resolution recommending removal.
But, Fenchak argues, the basis for removing him is entirely grounded in the amended bylaws he says the board is trying to retroactively impose, and that the removal standard in place at the time of the incident was “breach of fiduciary duties.”
Neither Fenchak nor his attorneys have received a copy of the complaint. The OEC, “whose authority to investigate an alleged violation of the Board’s Code of Conduct is a mystery,” did interview Fenchak and several others, according to the filing.
The investigation, according to Fenchak, “was highly flawed,” because the board was actively involved, “undermining its integrity and undercutting any argument that the it was conducted fairly, independently, and without bias,” his attorneys wrote.
The attempt to remove him from the board, they contend, is “wholly improper.”
“The fact of the matter is that the Defendants have admitted that their decision to move for [Fenchak’s] removal from the Board is not based solely on the incident giving rise to their investigation, but instead is based on [his] ‘well documented behavior,’” his attorneys wrote. “This cumulative behavior that the Board complains of is that [Fenchak] asks questions, asks the right questions that the Board does not want to divulge.”
Granting the injunction to halt the removal vote is necessary, in part, Fenchak argues, to prevent irreparable harm that could not be compensated by damages.
“The defendants cannot be permitted to circumvent these legal proceedings and bypass litigation of [Fenchak’s] claims, particularly a statutory claim, by summarily removing him from the Board, let alone permanently remove him from the Board under a pretext,” his attorneys wrote.
No hearings are currently scheduled in the case, as of Tuesday afternoon.
Fenchak isn’t the only outspoken trustee being investigated by the university. Alumni-elected trustee Anthony Lubrano alleges the board began investigating him in March in retaliation for his unsuccessful proposal to rename Beaver Stadium “Paterno Field at Beaver Stadium.”
Lubrano is suing Penn State for legal expenses to defend himself in the investigation. A judge in Lackawanna County, where the suit was filed, ruled earlier this month that the university could not continue the investigation until the matter was decided.
