In our executive employment law practice we have been privileged to represent the full range of leaders in higher education, from presidents of private and public universities and colleges, some of them well-known, to excellent smaller institutions including some of the nation’s most vital community and tech colleges. All these college presidents are smart, highly educated individuals from varied backgrounds and they all care deeply about the bedrock values of education. They also are fully committed to the success and advancement of their institutional employers.
As a result, it is even more distressing when these clients present us with legal problems which have resulted from, or been made worse by, simple mistakes which could have been easily avoided. Those mistakes are often made with the best will in the world. Indeed, some of these mistakes come directly from the idealistic vision of those same educational leaders, who identify so strongly with the universities and colleges they lead, that they are more ready to take care of the school’s interests than to protect their own.
Here are just five of the completely avoidable mistakes that university and college presidents often make:
1. They Fail to Use an Executive Employment Attorney Specifically Experienced in, and Knowledgeable About, Higher Education Contracts to Negotiate Their Employment Agreements.
Nothing makes our hearts sink lower than when, having been contacted by a college president who is being terminated (or having serious problems likely to lead to termination), we review their contract which has not been negotiated or even reviewed by an experienced and knowledgeable attorney. A bad or inadequate contract puts a college president at a severe disadvantage when the going gets tough. The reasons for him or her not having used a lawyer are legion: lack of experience with lawyers, fear of legal fees, fear of offending the Board by looking too aggressive, and a number of others. But such fears are, frankly, irrational. A college president’s success starts with a good contract, and that good contract starts in collaboration with an attorney who knows what they are doing in the world of higher education. We do, and there are other attorneys who do, too, but there are many attorneys, often excellent in other areas, who do not.
2. They Fail to Develop a Relationship With an Experienced Executive Employment Attorney Who They Can Contact at the First Sign of Trouble or to Whom They Can Take Even Routine Questions.
Smart executives, including university and college presidents, do not wait to seek out the right executive employment lawyer when a troublesome situation blows up in their face, which increasingly happens in today’s fraught landscape of higher education. The prudent college president has an on-going relationship with an attorney and can pick up the phone to that attorney the moment that they receive a hint of trouble as a result of any decision or controversy which could impact their own employment position. Avoiding this mistake will help the president avoid a host of other, increasingly dangerous mistakes before they ever arise. It is simple and easy to form a relationship with the right executive employment attorney and call them before any puzzling or troublesome decision. Better safe than sorry!
3. They Remain Fearful of Letting Their Institutional Masters, Customarily the Board of Trustees or Its Chair, Know That They Are Represented by Competent Counsel and Are Willing to Consult That Counsel or Seek Counsel’s Intervention.
Usually the president’s counsel stays behind the scenes, but there are times when the president gains by making it clear to the Board or its Chair that he or she is represented by counsel and chooses to consult their counsel before making an important decision or deferring to a Board mandate with which they do not agree.
And here’s an important corollary to that rule: the president should not take advice on their personal employment situation (or anything that will affect it) from the university’s general counsel. The general counsel does not represent the president, they represent the institution. Any good, ethical general counsel will advise the president of this, but presidents also should be aware of it themselves. The university’s general counsel may like the president personally, but they cannot be the president’s “legal best friend.”
4. They Fail to Push Back Against Unfair, Erroneous or Misleading Evaluations or Performance Reviews, Often Designed to “Set Up” the President for Failure or Termination.
Do not stand silent. A good executive employment attorney will help the president, with both strategy and tone, find the right way to correct the record in writing if and when the president is confronted with such biased and/or negative reviews. Later on, the president will be glad they did not stand silent.
5. Blindsided by Board Action Designed to Undermine Their Position and Their Employment, They All Too Willingly “Fall on Their Sword” and Agree to Resign Before Consulting Their Attorney.
“Never resign!” is the motto of good executive employment attorneys. There will be time for that once your attorney has negotiated the best possible exit package, one which protects the president’s monetary entitlements, their reputation and their future employment marketability under the circumstances. Far too many presidents, out of fear or surprise, let the Board Chair convince them that “for the good of the school and their own sakes,” they should simply step down quietly and accept a departure which does not “cause trouble” for the Board or the school. Don’t buy it. No president should voluntarily resign until their lawyer agrees that it is in the president’s interest to do so, presumably because adequate departure terms have been agreed to. No matter how blindsided the president is, he or she should always say, “Thank you, I will think about what you have said and will respond after I consult my attorney.”
