A Penn State trustee may soon be removed from their seat after the board’s Governing Committee voted unanimously Monday morning to recommend removal due to an alleged conduct violation.
After at least two executive sessions about the matter, the committee recommended the board remove alumni-elected trustee Barry Fenchak from his seat because he “initiated a verbal interaction with a female staff member — witnessed by two other staff members — that violated the Trustee Code of Conduct provisions” on professionalism, ethical conduct, and is inconsistent with the bylaws, according to the approved resolution.
Those bylaws were revised on July 30, including a change that gives existing board members more say over who can be on the ballot for alumni-elected seats.
Another major change included creating a code of conduct for trustees, which expanded on the previous “expectations of membership.” The resolution approved by the Governance Committee Monday stated that when Fenchak “initiated a verbal interaction with a female staff member,” it was in violation of some provisions of the updated Code of Conduct as well as the expectations of membership and the bylaws in effect prior to July 30.
The sections he allegedly violated include newly added sections 2.03 B and D — “Professionalism” and “Demonstrating and Promoting Ethical Conduct.” Those sections state that trustees need to conduct themselves professionally and ethically.
“Trustees shall act in a way that merits the continued trust and confidence of the University’s students, alumni, community, faculty, staff, and other stakeholders,” the professionalism section states, in part.
The ethical conduct part requires trustees to conduct themselves ethically and demonstrate honesty, integrity, fairness, respect and professionalism.
“No Trustee shall provide inaccurate, misleading, false, or fraudulent information with respect to the University or its finances or operations. No Trustee shall make bad faith allegations of wrongdoing, e.g., allegations that are knowingly false, capricious, maliciously motivated or made with reckless disregard for fact,” the section states.
But Fenchak’s attorney Terry Mutchler told the Centre Daily Times Monday afternoon that the board is “attempting to apply new bylaws to old behavior” and viewed the move as retaliation.
“When a member joins the board of trustees and has that privilege — because it’s a great board — they hand out bylaws, not blindfolds,” Mutchler said.
Fenchak has been on the board since July 1, 2022. He’s been outspoken during his tenure and in July filed a lawsuit against the board of trustees stating he cannot provide oversight because the university’s decision-makers have been unwilling to provide detailed financial information.
The July vote to approve the revised bylaws was controversial, with many alumni-elected trustees taking issue with the new election sections of the bylaws. The board voted 27-6 to approve the entirely of the bylaw changes, with Trustees Edward Brown, Fenchak, Christa Hasenkopf, Ali Krieger, Anthony Lubrano, and Jay Paterno voting no.
Fenchak voiced his concern about the changes in his blog, stating “Any governing document that tries to take away (the First Amendment right of free speech) from a member is illegal. For raising issues, requesting information I am legally entitled to, and trying to engage my fellow trustees in honest deliberation I have been stripped of committee assignments, issued a Letter of Censure from the Executive Committee, and had my social privileges revoked. I have had to file a lawsuit to gain access to that information.”
His lawsuit, amended in late August, states he is prohibited from attending any board meetings in person, the “most egregious” of the “retaliatory actions” the board leadership has taken against him, his blog states.
“Penn State’s Board leadership is clearly violating Pennsylvania statues and shredding trustees’ First Amendment rights. They have been disenfranchising all Penn State alumni since they prohibited public comments during open meetings, and recently by taking away alumni’s right to choose their representative trustees,” he wrote in a Sept. 3 post.
Section 2.05 of the bylaws outlines trustee sanction or removal, and the role of the Governance Committee. It states any trustee can share their concerns of another trustee breaching their fiduciary duties to the university, failing to follow the code of conduct, or other various concerns, with the board chair or the chair of the Governance Committee.
The board chair, consulting with the vice chair and chair of the committee, will determine if the matter should be referred to the committee for investigation. After an investigation, the committee makes a recommendation if the alleged violations should result in no action, admonishment, sanction or removal.
In this case, the board and committee chairs — Matthew Schuyler and Daniel Onorato, respectively — are required to give the board a joint proposal that the board take action to remove the trustee. The joint proposal will need to be sent to the board in writing, no less than 10 days before the board will meet to consider it.
The bylaws state that to remove a trustee, it requires two-thirds of the trustees present at the meeting voting in the affirmative. The vote will be public.
If Fenchak is removed from the board, his seat can be filled via appointment by the chair of the board at the request of the majority of the Governance Committee for the unexpired term.
Once a trustee is removed from the board under Section 2.05 of the bylaws, they’re ineligible to run for election or serve as a trustee forever.
Source Agencies
