A Centre County judge this week dismissed a former Penn State trustee’s lawsuit that claimed restrictions in the university’s board bylaws amounted to an unlawful “draconian gag order.”
Judge Brian Marshall ruled that the Board of Trustees bylaws requiring trustees to publicly support majority decisions and restricting negative statements about the university’s governing body “represent the Board’s right to self-governance, which the Board determined to be necessary to operate efficiently and effectively.”
Marshall dismissed former alumni-elected trustee Barry Fenchak’s lawsuit with prejudice, denying him the opportunity to refile.
Fenchak filed the lawsuit in April, alleging that the code of conduct provisions in the bylaws, which were amended last summer, violate the right to free speech in the U.S. and Pennsylvania constitutions.
The frequently outspoken Fenchak — who previously sued the board for access to documents related to the university’s endowment — and his attorney, Terry Mutchler, contended that the bylaw changes were targeted at him and not equally enforced among all members as is required by law.
Mutchler wrote in a filing earlier this month that the board was “obsessed” with Fenchak’s removal for attempting to fulfill his fiduciary duties and fighting “a lip-locked Board
that prides secrecy, uniformity, and uninterrupted rubber-stamping.”
“… [T]he Defendants wanted Mr. Fenchak out of the way and the Board accomplished this by adopting unconstitutional bylaws that not only gag Trustees, but also preclude trustees from criticizing or even thoroughly evaluating decisions,” Mutchler wrote
A nominating subcommittee, which was also created last year and challenged by Fenchak, cited code of conduct violations by Fenchak in keeping him off the alumni trustee ballot and the board voted to permanently remove him in June, days before his term expired. Those actions were mostly based on a complaint from a university staffer about an interaction after a board meeting, an incident trustees have said would have been a violation of the bylaws before they were amended, as well as after.
Board attorney Andrew Stanton wrote in a brief in June that the bylaw provisions are common among peer institutions and that they are “reasonable, necessary and wholly lawful standards for Trustee conduct.”
Fenchak’s “position is practicably unworkable,” Stanton wrote, because it would mean the board had no power to regulate anything a trustee says about the inner workings of the university. Boards are empowered by the commonwealth to pass provisions for managing business, as long as they are not inconsistent with the law, Stanton noted.
“Reasonable speech restrictions are obviously necessary for the ‘efficient and effective’ operation of the University,” Stanton wrote. “This is no different than forbidding law clerks from appearing on the local news to opine on conversations that occurred in chambers or criticize the decisions of the Court.”
In agreeing with the board, Marshall wrote that the challenged bylaws are “inoffensive and are likely not inconsistent with law,” echoing a comment he made in an April ruling denying Fenchak’s request for a preliminary injunction to be placed on the trustee election ballot.
The right to free expression “is not absolute,” Marshall wrote, and just as citizens accept certain limitations on freedoms when they enter government service, so too do trustees when they join the university board.
The burden of caution employees bear with respect to words they speak will vary with the extent of authority and public accountability the employee’s role entails,” Marshall wrote. “Logically, then, a Trustee – holding a position that carries more authority and public accountability than any other – should be held to the highest standard.”
