A Penn State trustee won’t appear on the ballot for election by alumni this spring after a Centre County judge denied his request for a preliminary injunction to overturn his disqualification by a board nominating subcommittee.
In a ruling issued on Monday afternoon, Judge Brian Marshall rejected Trustee Barry Fenchak’s claims that the Board of Trustees violated state laws governing nonprofits and freedom of speech when it altered its bylaws and created the new nominating subcommittee last year. Marshall also wrote that the subcommittee’s decision to keep Fenchak off the ballot did not breach an injunction issued last fall prohibiting the board from removing Fenchak by vote.
Fenchak’s emergency motion had sought to have him placed on the ballot and to appear in first position for the election beginning April 21.
The board adopted several changes to its bylaws in July 2024, including alterations to its code of conduct and the creation of a nominating subcommittee with the the power to deem candidates “unqualified” and ineligible to be listed on the ballot. The subcommittee exercised that power at a Feb. 26 meeting where Fenchak, whose first term on the board ends in July, was among 19 candidates who received at least 50 alumni nominations to be considered and the only one to be disqualified.
Fenchak’s attorneys, Terry Mutchler and Justin Boehret, contended that amendments to the board’s bylaws did not meet the state law’s standards of being “reasonable,” “germane” to the purpose of the university and “equally enforced among all members.” They also claimed that bylaw restrictions on board members’ public remarks prohibiting “negative or critical statements about the board,” violate the right to free speech in the U.S. and Pennsylvania constitutions.
But Marshall agreed with Penn State’s arguments that nominating subcommittees are not uncommon among institutions of higher education — Pitt and Temple among the examples — nor are restrictions on conduct and speech among board members, which “have for years served the necessary purpose of ensuring efficient and effective operations.” Fenchak had in fact already accepted restrictions on speech related to the board when he ran for and won election in 2022, Marshall wrote.
“The provisions in the Amended Bylaws cited by Plaintiff, including the creation of a nominating subcommittee, are inoffensive and likely not inconsistent with law,” Marshall wrote. “Rather than preserve the status quo, the injunction requested by Plaintiff would represent the Court unnecessarily involving itself in the University’s self-governance.”
He noted that Fenchak did not file a challenge to the board’s bylaws until April 1 when the proposed amendments were circulated among trustees well before they were adopted in July and had been discussed by the board dating back to 2023.
Marshall also concluded that keeping Fenchak off the ballot did not violate the preliminary injunction he issued last year preventing the board from removing Fenchak by vote after a meeting on his ouster was scheduled. Fenchak will be able to complete his elected term, can be voted for in the upcoming election by write-in and is not prevented from seeking election in the future, Marshall wrote.
Fenchak had sued the board and then-Chair Matthew Schuyler in 2024 for access to financial information he says was necessary to his fiduciary oversight as a trustee but that university officials refused to provide.
The board subsequently attempted to remove Fenchak when it received a complaint from a junior female staffer about a remark he made following a trustees meeting in July at the Altoona campus, just days after he filed the lawsuit. Fenchak asked the staff member about her hat and in what he later said was a reference to a line from the movie “A League of Their Own,” Fenchak remarked that when he wears a ball cap, his wife says he “looks like a penis with a little hat on.”
At the nominating subcommittee’s meeting in February, trustee Daniel Delligatti cited the incident with the staff member in objecting to Fenchak’s nomination, noting that Fenchak had been advised of seven other “failures to abide by board standards of conduct.”
In a blistering reply to Fenchak’s request for an emergency order to place him on the alumni election ballot, the board alleged the incident was part of a “pattern of inappropriate behavior.”
Fenchak, board attorney Nathaniel Ecker wrote, has a “bottomless desire for attention” and a “predilection for misogynistic conduct.”
“Much like his manufactured ’emergency,’ Barry Fenchak’s ‘victim’ routine is a ruse. He was never the victim of any ‘retaliation,’” Ecker wrote. “To the contrary, Mr. Fenchak has intentionally flouted the Board’s Expectations of Membership and Bylaws over and over again. He regularly engages in public displays of vitriol toward any trustee who expresses views that deviate from ‘Barry’s Opinion,’ a pattern of behavior that began at least a decade before he was elected.”
As one example, the brief cited a Facebook comment by Fenchak in 2016, prior to his election as a trustee, in which he called a female former trustee a “stupid bitch” and a “dried up POS,” adding that he would suggest she shoot herself in the head “but that probably wouldn’t damage any working organs. So please, respectfully, just blow away — like old, dried up dog crap.”
During his tenure as a trustee, Ecker wrote, Fenchak has made a number of public comments denigrating the board, including calling it “an abject clown show” and “Immaculate Deception,” saying that he made the “mistake of thinking that the esteem I have for the Board (as a whole) could not sink any lower.” Fenchak also wrote “an unhinged missive” to trustee leadership “accusing the Board of ‘internet stalking’ for reading his public postings,” a message sent five days after he was privately censured for using social media to attack the board and its integrity, according to the filing.
Fenchak, the board contended, did not state “a single viable claim” in his request for an order to be placed on the ballot and “cannot remotely show irreparable harm” if he were kept off.
Penn State alumni will begin receiving ballots for the trustee election on April 21 and will have until 9 a.m. on May 8 to vote. Results will be announced during the board meeting on May 9.
