Update March 4, 2025
We’re catching so much flak, we must be over the target
“… Granting this injunction serves the public interest by preventing the potentially retaliatory termination of a Trustee based on that Trustees inquiries regarding the operation of the public university he serves. Denying the injunction and allowing Plaintiff’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 the PSU hierarchy."
Court of Common Pleas of Centre County, Pennsylvania - October 9, 2024
The status of our lawsuit leading up to the Board of Trustees Nominating Subcommittee meeting, February 26, 2025:
On January 16th Penn State stated in court they would be withdrawing their preliminary objections. On January 7th they had petitioned the Court to force me to sign a confidentiality agreement our legal team objected to. Our key objections were provisions that would have severely limited my ability to speak freely with other trustees regarding the information. On January 29th the Court issued a ruling saying I would not be coerced to sign. Penn State then revised the agreement to reasonable terms we had proposed weeks earlier, including the stipulation that I could discuss the information freely with all trustees. I signed it, and was provided access to the documents I had requested and which I am currently reviewing. I hope that other trustees take advantage of this hard-fought access. This is a layman’s summary, please visit my website for further details: barryfenchak.com/legal.
There remain, however, substantive portions of the lawsuit which have not been settled. Moreover, the retaliatory actions towards me and behavior of the Board leadership have yet to be addressed. To be clear: this lawsuit is not solely about getting access to two specific pieces of information, but to compel Penn State to follow Pennsylvania state law and not put up roadblocks to trustees being provided access to requested information.
Since Penn State has declined to present preliminary objections, the next step in the lawsuit is pre-trial Discovery, which involves our requests for production of documents and taking of witness depositions.
February 26th, 2025 meeting of the Nominating Subcommittee:
On February 26th, the Nominating Subcommittee met for the first time since the new bylaws were adopted in July 2024 to review the alumni trustee candidates who had received at least fifty valid nominations. Nineteen nominees, including myself (running for a second three-year term), submitted the required information and agreed to a detailed background check. The subcommittee met first in executive session, and then at 3 pm met publicly to discuss and vote on all nineteen nominees.
Of these nominees, I was the only nominee struck from the ballot in an 8-1 vote (voting yes: Ali Kreiger, Rob Fenza, Mary Lee Schneider, Dan Delegati, Nick Roland, Robert Beard, Randy Black, and Chris Hoffman; voting no: Jay Paterno). You can watch the video of the meeting here.
The meeting ended at 3:36 pm EST, and at 4:31 pm Penn State notified our legal team that they were filing a Motion to Dismiss the case because I was not going to be permitted to run for my next term, so the case, in their opinion, was now moot. Obviously, we do not agree. Penn State also informed our team that they were adding three more lawyers (in addition to their other counsels of record) from Jones Day. Jones Day is one of the largest law firms in the US, with a multinational presence and more than $2 billion in annual revenue.
You can read the filings here, which were written by the Jones Day lawyers.
Where we are:
As you can see, Penn State has taken steps to try to quash my lawsuit and to remove me from the Board of Trustees. The addition of three more lawyers to their defense team shows that they are pulling out all the stops. The legal fees are staggering on both sides, and significantly disproportionate. Penn State has a nearly unlimited bucket of stakeholders’ money to spend to defeat the alumni and Pennsylvania taxpayers who demand accountability from a public university.
We have won every ruling to date. As the Court noted in the October ruling, “… allowing Plaintiff’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 the PSU hierarchy.”
It seems to me that those at the very top of the Penn State hierarchy will throw whatever it takes, including large sums of tuition funds and state taxpayer money, to avoid disclosure and transparency.
What can you do?
If you are a resident of Pennsylvania, I urge you to contact your state representatives, both House and Senate (click here to find your legislator). This is your tax money and your opinion, whatever it is, deserves to be heard. Several state representatives have already reached out to me for more information, noting that their offices had been talking with constituents. You do not have to be a Penn State alumnus to ask for action.
For those who live outside of Pennsylvania, you might reach out to US Senators John Fetterman and/or Dave McCormick (click on their names to link to their contact information).
Going forward:
I have met with our legal team and we will be responding to last week’s court filings. I will keep you updated.
On a personal note, as I was reading the court filings I was struck by the irony that in defending their actions, the Board of Trustees cites Pennsylvania case law involving a private country club (Stewart v. Monongahela Valley Country Club, Pa. Super. Ct. 1955). For many years, the Board of Trustees has been accused of operating as if they were a private country club, most recently by their updating of the bylaws to give the Nomination Subcommittee the authority to decide which Alumni Trustee nominees would be allowed on the ballot.
I believe university alumni are quite capable of voting for ‘the right kind of people’ to represent them. Their votes have now been stolen, and I will fight like hell to make sure they are returned.
As a supporter messaged me after the vote, “This was the only way they had to stop you. Looks like we’re over the target!”*
*During World War II, bombers knew they were over a valuable target when German anti-aircraft guns fired heavy rounds of tracer, called flak, to defend the sites. Today, when your opponents start attacking you it can be a sign you have touched on a topic that is valuable to them and thus are ‘over the target’.
Please note that because I am involved in ongoing litigation with the Penn State Board of Trustees, I am out of an abundance of caution, circumspect in all my communications. This in no way means I am abrogating my duties as an alumni-elected trustee. My first duty is to the University, and it is my fiduciary responsibility to publicly discuss proposals put to the Board for approval that will materially impact the university, and to voice my support or opposition for these proposals. I also have a duty to the Penn State alumni, who demand to have their voices heard on the Board of Trustees.