Embattled Pennsylvania State University trustee Barry Fenchak’s time on the board may be nearing an end: A subcommittee voted Wednesday that he was “unqualified and ineligible” to run again.
Fenchak is one of nine trustees on the 36-member board who are elected by alumni. His term is set to expire at the end of June. But Fenchak—who is already locked in litigation with Penn State over what he considers its lack of fiscal transparency—plans to fight the decision.
“This is completely in line with Penn State’s long-standing pattern with regard to trying to maintain their secrecy, and myself and our legal team will be evaluating these recent actions by Penn State and taking the appropriate actions in the court,” Fenchak told Inside Higher Ed.
The outspoken trustee has been at the center of controversy for nearly a year as he has sought to obtain more details on the university’s rising endowment management fees, even filing a lawsuit for that information. Penn State initially refused to provide the financial details that Fenchak, an investment adviser, said he needed to perform his fiduciary duties; he argued that endowment management fees inexplicably climbed from 0.62 percent in 2013–14 to 2.49 percent by 2018–19. Eventually, as a result of his litigation, he was able to obtain the requested documents, he told Inside Higher Ed.
His lawsuit is one of two brought against the university last year by trustees alleging a lack of transparency by the board. A local media outlet has also sued for alleged violations of open meetings laws.
Efforts to Remove Fenchak
Fellow trustees previously tried to boot Fenchak from the board last fall after he made a crude joke to a female staff member. Paraphrasing the PG-rated Tom Hanks movie A League of Their Own, Fenchak—who is bald and had just received a Penn State baseball cap as a gift at a university event—joked that it made him look like “a penis with a hat on,” according to court records.
Fenchak’s remark prompted the board to call a meeting in October in an effort to remove him. However, a judge intervened, halting the board’s attempt to oust Fenchak.
In his opinion granting the preliminary injunction, Centre County Court Judge Brian J. Marshall wrote that while he “is not suggesting that plaintiff should not be sanctioned,” the court had been “presented with credible and, in many instances uncontroverted, evidence that Plaintiff has been subject to ongoing retaliation by Defendants.”
The judge also noted that Fenchak had sued Penn State just three days before the remark that the board used as justification for his removal.
Now, months later, the board landed on a new tactic to remove Fenchak: The nine-member nominating subcommittee voted 8 to 1 last week to bar him from running for re-election.
Daniel Delligatti, vice chair of the subcommittee, argued that Fenchak had been warned multiple times about “inappropriate behavior” and that he failed to live up to the board’s code of conduct.
Fenchak’s attempt at humor made staff members feel uncomfortable, Delligatti said, and his candidacy for a second term was not in “alignment with Penn State’s mission and values.”
Trustee Jay Paterno was the sole dissenting vote. He argued that “the process” as he understood it was “outside the scope of our review.”
Fenchak attended the virtual meeting but was denied an opportunity to speak on his own behalf.
Deliberations on blocking Fenchak from running for re-election were largely confined to a closed executive session meeting of the nominating subcommittee, which preceded the deciding vote.
A Legal Fight
Though a judge halted Penn State’s initial efforts to remove Fenchak, the board and the university’s legal team are again trying to oust him. The same day that the nominating subcommittee shot down Fenchak’s re-election bid, the university filed a motion to dissolve the preliminary injunction that allowed Fenchak to remain on the board as his lawsuit proceeded.
Fenchak alleges the motion was filed mere minutes after the subcommittee’s decision, which would prevent him from finishing his current term as well as serving another one.
Penn State officials did not provide a comment on the situation.
In response to a request for an interview with trustees, Shannon Harvey, assistant vice president and secretary for the board, referred Inside Higher Ed to a video of the subcommittee’s virtual meeting.
As of publication, Fenchak had not filed a legal response. But he noted one is coming. Beyond the impact on him personally, he also has broader concerns about the board’s process to bar trustees from re-election, which was adopted over the last year as he pressured the university to release financial documents.
“Forget about my specific situation. This process disenfranchises and essentially steals the vote from our alumni,” Fenchak said. “That’s a right our alumni have had for 150 years, and now we are telling those alumni who they can and who they cannot vote for to represent them on the board. Frankly, that’s unconscionable. As a Penn Stater, it’s heartbreaking.”
Changes to the way alumni trustees are elected have also caught the attention of state lawmakers.
At a Feb. 20 Pennsylvania House Appropriations Committee hearing, Republican representative Marla Brown questioned Penn State president Neeli Bendapudi about the change. Brown said she had fielded complaints from constituents and seemed skeptical about the new processes.
“I can tell you that people are not happy about it, and the optics on it are not good. As I’m sure you’re aware, it looks like a conflict of interest that the board is mainly concerned with picking and choosing the muscle in which the candidates will be serving on the board,” Brown said.
Asked why Penn State made the change, Bendapudi noted it was a board decision.
“Did you support the change?” Brown asked.
“I report to them and I have no say in it one way or the other,” Bendapudi answered.
