STATE COLLEGE — Penn State University investigated two outspoken alumni-elected trustees in recent months for alleged violations of its code of conduct, according to disclosures this week and a recently filed lawsuit.
Both trustees — Barry Fenchak and Anthony Lubrano — are in legal fights with Penn State as the university’s board moves toward formally removing at least one of them.
Lubrano, in a lawsuit filed in Lackawanna County, alleges Penn State investigated him in retaliation for his failed attempt to name the university’s football field after former coach Joe Paterno and public comments he made. The trustee wants Penn State to cover his legal expenses to defend himself in the university’s investigation.
Neither Lubrano nor his lawyers could be reached for comment.
A university spokesperson told Spotlight PA that Penn State does not comment on pending litigation.
In court filings, the university said its investigation into Lubrano was not retaliatory and argued the trustee is capable of paying his own bills.
That legal fight comes as the university’s board begins the process of formally removing Fenchak. On Monday, a board committee recommended the action, which will be considered by all trustees at a later date.
Fenchak sued Penn State in July for withholding financial information he requested about the management of the university’s $4.6 billion endowment. He later alleged in court filings that recent changes to the board’s bylaws amounted to retaliation.
Terry Mutchler, a lawyer with Obermayer Rebmann Maxwell and Hippel who represents Fenchak, said Penn State’s board is sending a message by steamrolling the two trustees.
“I think it’s a very, very, very big red flag to any other board member that says if you ask questions and try to meet your fiduciary duty, you better be careful,” Mutchler said.
Lubrano’s allegations
In January, the board held two closed-door meetings to discuss naming the university’s football field after Paterno, who holds the NCAA record for most wins and was fired by the board in 2011 amid the fallout from the Jerry Sandusky child sex abuse scandal. Holding these meetings in private — a practice Penn State defended — was a potential misuse of Pennsylvania’s open meetings law, a media law expert told Spotlight PA at the time.
Some trustees were visibly uncomfortable during the board’s public meeting in February when Lubrano proposed “Paterno Field at Beaver Stadium.” The trustee rescinded his proposal after Joseph “Jay” Paterno Jr., the former coach’s son and an alumni-elected trustee, said President Neeli Bendapudi and her administration did not support the idea at that moment.
In the aftermath, board chair Matthew Schuyler and vice chair David Kleppinger accused Lubrano of creating a “public spectacle” and releasing “confidential information.” In a letter, the board leaders suggested Lubrano should have kept the matter in the board’s executive session, another action that might have run afoul of the state’s open meetings law.
Lubrano’s recently filed lawsuit alleges that Penn State retaliated against him for the field naming effort and subsequent media appearances. The university began investigating the trustee around March, according to court filings, though Lubrano was not informed of the investigation until July 18. The records do not disclose the nature of Penn State’s investigation.
According to the suit, prior to learning of the investigation Lubrano notified Bendapudi and board leadership of two potential problems. The first was whether Penn State needed to notify an oversight body about a “compliance concern.” The second, the lawsuit says, involved possible interference by an unnamed “high-profile University employee” in the board’s 2023 alumni elections.
Lubrano filed his lawsuit on Sept. 4, two days before the board planned to discuss the internal investigation into the trustee, according to the filing. The Lackawanna County Court of Common Pleas ruled on Sept. 5 that Penn State could not continue its investigation until the court decided whether the university must cover his legal expenses.
The university argued Lubrano could afford to pay his lawyers since he is “well known to be a person of substantial financial means and a significant donor to the University.” Penn State cited Lubrano’s $2.5 million gift in 2002 to its baseball facility, which is partly named after the trustee.
Penn State’s board discussed possible trustee misconduct in several executive sessions this month. However, the trustee in question was alumni-elected trustee Fenchak, not Lubrano.
Fenchak, who joined the Penn State board in 2022, sued it in July for allegedly withholding information about the university’s $4.6 billion endowment, including about administrative fees. Fenchak, a licensed investment advisor, argued the information was vital for him to carry out his fiduciary responsibility as a trustee.
Penn State, in its court filings, said the information Fenchak requested does “not materially impact the overall financial health of the endowment.” Fenchak is one of 38 trustees, and the university argued his ability to change Penn State’s operations with the information would be “minimal at best and unequivocally not substantial.”
About two weeks after Fenchak filed his lawsuit, the board updated its bylaws to expand the possible bases for removal of trustees and created a committee that decides who can appear on the alumni election ballot, among other changes.
Fenchak and Lubrano were among six trustees — all of whom were elected by alumni — who voted against the changes. Fenchak said the board changed its governing documents as retaliation for his endowment-related requests, according to court filings. The case is ongoing.
On Sept. 9, the board’s governance committee voted unanimously to remove Fenchak from the board, citing a “verbal interaction with a female staff member” that violated the trustee code of conduct. The university spokesperson declined to answer questions on the topic, saying that it was a personnel matter.
The board’s bylaws require a two-thirds vote to remove a trustee. Trustees are scheduled to meet next in November.
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