A Second Trustee Sues Penn State

Pennsylvania State University is locked in a legal battle with a second trustee who has raised questions about transparency and alleged retaliation from the board for his outspoken manner.

Anthony Lubrano, an alumni-elected trustee, sued Penn State last month alleging the governing board launched a retaliatory investigation after he gave media interviews in which he “expressed his opinions on matters of public concern affecting the university,” according to a copy of the lawsuit. Specifically, Lubrano is demanding the university pay his legal fees for the investigation, which he argues was launched in an attempt to silence him for speaking out about potential violations of open meetings laws, university finances and other issues.

Lubrano’s lawsuit marks the second time a trustee has taken legal action this year.

Barry Fenchak, also elected by alumni to Penn State’s 36-member board, sued the university in July, alleging that officials denied him access to information about rising endowment management fees. Two weeks later, Penn State’s Board of Trustees changed its bylaws to allow the removal of trustees who publicly dissent from a board decision. Last week, the board initiated a process to vote Fenchak off, alleging he violated its code of conduct by engaging in a verbal altercation with a female staff member.

The Lubrano Lawsuit

At the heart of the Lubrano case is a February resolution to name Penn State’s football field after longtime coach Joe Paterno, who won more than 400 games during his 46-year career but was dismissed in 2011 for a sexual assault scandal that happened on his watch.

Lubrano initially introduced the resolution, which he later withdrew at the urging of fellow trustee Jay Paterno—Joe Paterno’s son—who asked him to hold off on the naming effort because the timing wasn’t right. In media interviews about the naming effort, however, Lubrano spoke critically about board decisions and university financial matters, even suggesting that the board was sidestepping open meetings laws.

Board leaders reprimanded Lubrano for the resolution on March 28, according to his lawsuit. When he discussed the reprimand in media interviews later in the spring, he said it led to “further retaliation” by Penn State—including a “covert investigation” spurred by “anonymous complaints.” (Board leaders also accused him of leaking confidential information to media outlets.)

However, he did not find out about the investigation until July 19—one day after he sent a second letter to Penn State president Neeli Bendapudi raising issues of noncompliance. (The legal filings shed little light on the nature of his concerns.)

Lubrano sees the investigation as an effort to silence him for speaking out. He said he aired his concerns “to provide transparency on his views to university stakeholders” because he believes “transparency is essential” for the Board of Trustees to function properly, according to the lawsuit.

Lubrano also believes that the board should cover the legal fees for his defense in the investigation, in accordance with its own bylaws. On Aug. 7, Penn State denied his request to do so, prompting him to file suit.

Penn State lawyers responded in court filings by arguing that the investigation was not retaliatory, that the university is not on the hook for his legal fees and that he is “well known to be a person of substantial financial means” who can easily cover his own legal fees. They cited a $2.5 million donation to the university as an example of his wealth.

Neither Penn State nor Lubrano provided comment to Inside Higher Ed.

Fenchak’s Pending Removal

Fenchak’s lawsuit has seen little movement so far. Rather than respond directly to the complaint, Penn State has raised preliminary objections in an effort to get the lawsuit thrown out.

The university has argued that the management fees that Fenchak, an investment adviser, requested information about “do not materially impact the overall financial health of the endowment,” according to Penn State legal filings.

Even as Penn State fights Fenchak in court, officials are seeking to remove him from the board.

On July 30, two weeks after Fenchak filed suit, the governance committee voted in a tense meeting to change board bylaws to allow the removal of members who publicly dissent from board decisions. Fenchak and Lubrano—along with several other trustees—voted against the move.

At that same meeting, the committee also created a nominating process to determine who can run for alumni trustee positions (one of several ways to get on the sprawling board). Both Fenchak and Lubrano were elected as alumni trustees.

On Sept. 9, the board governance committee voted to recommend Fenchak’s removal from the board, claiming he violated the trustee code of conduct, though the university has not released specific details on the alleged violations. Now a final vote to expel him seems likely at the board’s next meeting in November.

To Fenchak attorney Terry Mutchler, the move is simply intended to shut down a critical trustee. She believes board investigations into Lubrano are driven by the same motive.

“What this says to me is anybody that is a trustee of this board that either asks too many questions or too many of the right questions, they want to push out. It’s as simple as that,” Mutchler said.

She argued that under Pennsylvania law, it is not up to the institution to decide what information can be provided to trustees; Fenchak has a legal right to request financial details that he deems necessary to effectively complete his fiduciary duties at Penn State.

Mutchler noted that she has not seen a complaint about the alleged verbal altercation involving Fenchak. Asked if her client intends to fight his pending removal from the board, Mutchler said, “We’re exploring all options.” She added, “I’m certainly not going to give them our playbook.”

An Uncommon Clash

Experts say it’s unusual for a sitting trustee to sue a university—and an anomaly for two to file lawsuits. But it’s not entirely unheard-of.

Bethune Cookman University, a historically Black university in Florida, was sued twice in 2017 over board-related matters. Former BCU trustee Arthur Ray Brinson filed the first lawsuit, alleging he was kicked off the board in retaliation for raising “numerous questions” about the university’s “expenditures, finances, and obligations” before his term was set to expire. He sued to be restored to the board and ultimately prevailed, winning reappointment in 2018.

That same year, alumni-elected trustee Robert Delancey also sued Bethune Cookman for refusing to seat him on the board, alleging he was banned from meetings in retaliation for raising questions about BCU’s finances. A judge dismissed Delancey’s lawsuit.

Larry Ladd, a senior consultant with the Association of Governing Boards of Universities and Colleges, noted that a trustee getting kicked off a governing board “is rare, but it does happen.”

However, it doesn’t usually play out in such a public fashion.

“Most commonly the board chair talks with the member and they reach an agreement that the member will resign,” Ladd said. “Boards don’t like to have public attention, so that’s often the way it’s handled.”

With Lubrano and Fenchak, it appears that behind-the-scenes conversations failed to resolve their concerns, prompting both to look to the courtroom—rather than the boardroom—for solutions.