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6 Frequently Asked Questions About Contract Negotiations by College and University Presidents, Other Senior Academics and Heads of Independent Schools

As executive employment attorneys who concentrate on negotiating the contracts for college and university presidents, deans and provosts, and the heads of independent schools, we hear many of the same questions by these academic leaders as they prepare for contract negotiations. They highlight certain repeated concerns which we are pleased to address.

Here are some of those “Frequently Asked Questions” (FAQs) and our answers, which are the result of our experience in the educational arena:

1.     Q.     “I have just been offered a job as a first-time university or college president or head of school. Do I have to accept what I am offered?”

A.     The simple answer is, “No, of course not,” but a more accurate answer is, “You can certainly negotiate, but what to negotiate for depends on the context.”

When the Board of any educational institution has chosen a new leader who is moving into a higher position for the first time (e.g., provost or dean to president, head of the upper school to overall school head) and is offering a base salary of “x” dollars, anyone who tries to negotiate for “2x” is highly unlikely to receive anything other than shock and animus. This does not mean, however, that there is no point to negotiation over the offer to a first-time presidency or head.

In fact, there is often meaningful room for some improvement in fundamental terms like base salary, but, far more importantly, there is almost always room to negotiate other important (some crucial) terms of a first contract which are often overlooked by lawyers who are not familiar with education contracts.

Additionally, some essential terms may be missing from the initial draft of such an agreement, for example, a proper definition of Cause, including that part of Cause which requires giving the executive written notice and an opportunity to cure; tenure or faculty “retreat” rights; housing and moving expenses; and more.

Finally, the initial contract offer may lack key protections for the new executive leader, including, for instance, proper indemnities or adequate severance protection if the president or head is terminated without Cause. A knowledgeable executive employment attorney will know what is missing or needs to be changed.

2.     Q.     “But won’t the Board of my new employer be put off by my using an attorney in connection with my first appointment as president or head of school?”

A.     This presents an excellent opportunity for the new president or head to get a good read on the job he or she will be taking. Any educational institution which pushes back against a new leader’s use of an executive employment attorney experienced in the world of education with respect to his or her contract — the key document which will govern all the leader’s entitlements and protections for the next three to five years — unwittingly offers an important piece of information to the leader in assessing whether this is the right job to take in the first place. No school or Board of any sophistication objects to the new leader having adequate representation.

3.     Q.     “Don’t I have some protection from the search firm which has been my principal contact in the college president or head of school search process?”

A.     Absolutely not. The search firm has been hired and paid by the institution, and its only interest is in delivering the school’s chosen candidate once he or she has been selected. The search firm cares not at all whether the candidate will be fairly compensated, fully informed about the job, or adequately protected by contract. Don’t let anyone tell you differently.

4.     Q.     “Will the college or school pay any part or all of my legal fees?”

A.     Some will, and some won’t, although we are not hesitant to ask for them, usually at or near the conclusion of the negotiation. Note, however, that we do not make our engagement contingent on the school picking up the legal fees. We never want to be conflicted in our advice to the prospective president, or fearful that the only way we will get paid is if the president or head takes a job or accepts a contract which we deem unsuitable or inadequate.

5.     Q.     “If I hire an experienced educational executive employment lawyer, who actually handles the negotiation?”

A.     This depends both on the situation and on our client’s preferences. Some clients only want us to point out the discrepancies and problems in the contract they are being offered, and then, armed with that knowledge, carry on the negotiation themselves with the Board Chair or head of the search committee. Other clients want to “stay above the fray” and have us negotiate directly with the lawyer for the Board who drew the contract.

6.     Q.     “Are there differences between the first contract of a college president or head of school and a renewal contract after that same president or head is approaching the end of a successful first term?”

A.     Absolutely. It is in the renewal contract process when an executive employment attorney can often achieve significant new or increased entitlements, but those differences will have to be the subject of a separate series of FAQs.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.