A Centre County judge has stopped the Penn State Board of Trustees from voting on the removal of one of its members for an alleged code of conduct violation.
Judge Brian Marshall on Wednesday granted alumni-elected trustee Barry Fenchak’s request for a preliminary injunction, one day before a planned board meeting to vote on his removal.
Fenchak claimed that the board used a “self-deprecating” joke he made as pretext to remove him from his position as retaliation after he filed a lawsuit against the university over access to financial information.
“Granting this injunction serves the public interest by preventing the potentially retaliatory termination of a Trustee based on that Trustee’s inquiries regarding the operation of the public university he serves,” Marshall wrote. “Denying the injunction and allowing [Fenchak’s] removal would re-cast a shadow over the financial operations of Defendants, to the detriment of every PSU stakeholder except those at the very top of PSU’s hierarchy.”
The injunction, which came after an evidentiary hearing on Tuesday, is in effect until Fenchak’s lawsuit against the board over access to financial information is resolved, his elected terms have ended or until it is otherwise lifted by the court.
Fenchak sued the board and Chair Matthew Schuyler on July 16 after his requests for information about the Penn State’s $4.6 billion endowment, as well as a 10-year athletic department deal with ticketing and fan engagement vendor Elevate, 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.”
Following the conclusion of the board’s regular meeting on July 19 — three days after he filed his lawsuit — at the Altoona campus, Fenchak was speaking to three university staff members when he referenced a line from the movie “A League of Their Own.” Noting that he liked the baseball hat a junior female staff member had, Fenchak said that when he wears ball caps his wife tells him that, as Tom Hanks’ character uttered in the film, he “looks like a penis with a little hat on.”
The junior staff member and witnesses reported that Fenchak then asked to try the hat on and said something to the effect of “see, penis?” according to an investigation memorandum filed with Penn State’s opposition to the injunction. She and two witnesses said Fenchak did not mention the movie when he made the remark.
She filed a complaint with the university’s Office of Ethics and Compliance on Aug. 19, saying Fenchak made her feel uncomfortable and that she felt stuck in the conversation because of his position as a trustee.
Fenchak told the university’s investigator, and reiterated in court filings, that while the joke was meant to be self-deprecating, it was ill-advised and he regretted that he made someone feel uncomfortable.
“lt certainly does not rise to the level of harming or endangering the PSU community,” his attorney wrote.
Fenchak argued that the board used its updated code of conducted, which was amended after the incident, to retroactively punish him. The board, however, contended that the “inappropriate interaction” was a possible breach of his fiduciary duties under the standards in place at the time it occurred.
He was prohibited from attending board meetings in person and a committee voted on Sept. 9 to recommend that he be removed from the board. A full board meeting to vote on removal was scheduled for 5 p.m. on Thursday.
Marshall wrote that while the court “does not condone” Fenchak’s remark and “takes allegations of sexual harassment seriously,” it “was not presented with evidence from which it can conclude that Plaintiff poses a meaningful risk to anybody…” Marshall added that he was not suggesting Fenchak should not face repercussions, but noted steps have already been taken to sanction him, including prohibiting his in-person attendance at meetings and revoking his “social privileges” as a trustee, and measures have been implemented so that the employee will not be required to interact with him again.
Fenchak met every requirement necessary to be granted a preliminary injunction, Marshall wrote. Among those is that his removal from the board would cause “immediate and irreparable harm,” because Fenchak would be “unable to effectively defend his claims related to July 19, 2024, and prosecute the underlying lawsuit in this case,” according to the order.
Fenchak is also “likely to prevail on the merits,” Marshall wrote.
“Plaintiff has testified to and provided uncontradicted evidence of retaliatory behavior that he has faced at the hands of Defendants since he joined the Board in July 2022,” Marshall wrote. “Since joining the Board, Plaintiff has made repeated requests for information that he has the right to request and likely has the right to receive as a Trustee….
“Rather than provide Plaintiff with the information that he has requested, Defendants repeatedly denied the requests and sought an opportunity like the July 19, 2024 interaction that would provide the basis to remove the Plaintiff and permanently end his probing inquiries into the health of the endowment and other university business for which he has a responsibility.”
No future hearings have yet been scheduled in Fenchak’s case against the board.
The Penn State Board of Trustees next regular meeting is scheduled for Nov. 7-8 at the University Park campus.
