As executive employment attorneys, in addition to our representation of executives in finance, industry and media, one of our concentrations is the negotiation of contracts for university and college presidents, provosts and senior deans in charge of major academic departments.
Some of these negotiations naturally involve the first contract in such new academic positions: for example, a provost or senior dean has been recruited to fill a vacancy in the presidency at their own or another college or university. This almost always represents an exciting and important job advancement in academic administration, bringing with it a significant increase in duties, responsibilities and, hopefully, compensation.
This first presidential contract also raises many questions which are the particular purview of executive employment lawyers.
The very first such question is usually: “Should I negotiate this first contract at all, or merely accept what I am being offered by the board of the college or university?” Behind this one question, of course, are a host of other questions and fears: “Will the Board be put off if I negotiate over the terms of my first contract?” “If I negotiate, do I look greedy or suspicious of the Board’s intention to treat me appropriately?” “If I involve a knowledgeable executive employment and compensation attorney for college and university presidents, either to advise me or negotiate on my behalf, will I alienate the Board or its Chair or the head of the search committee who selected me from the group of “finalists” for the position?” “My success as president will certainly be affected by my relationship with the Board of Trustees and its Chair. Would inserting a lawyer into that mix right at the beginning actually sour that relationship, or at least get things off on the wrong foot?” And there is always the concern that if the candidate does not promptly and immediately accept the first set of employment terms offered, the Board might turn to one of the other “finalists” for the position.
Moreover, the search firm which has been hired by the Board of the college or university to find and vet candidates for the key leadership position is aggressively pressing to “get the deal done.” The point person for that search, who often has been the candidate’s primary contact and source of information, keeps stressing that the Board, having made its choice, wants to be done with the search and is eager to announce the candidate’s appointment.
There is some truth in these statements. The individuals on the Board are not being monetarily compensated for their Board service; they have no doubt spent a meaningful amount of time on the search for a new president and are eager to get the details of the appointment concluded and the contract “inked.” Almost certainly the constituents of the college or university community, including faculty, students, donors and alums, are all aware that there is going to be a new president and they are eager to find out who has been chosen. Nonetheless, despite the fact that there are some legitimate reasons not to drag out the process, it is also true that some of this pressure comes from sources which have no reason to be mindful of the prospective president’s own best interests.
Frequently Asked Questions
1. Q: “My closest contact in this presidential search has been the individual recruiter from the search firm, and he or she is advising me to accept what the Board has offered without raising any questions. Doesn’t the search firm represent me and my interests?”
A: No. The search firm represents the college or university not the prospective president. The search firm has been hired and paid by the Board to deliver the candidate which the Board has selected from among all the candidates the search firm has presented. The search firm has been hired and paid handsomely to give the Board “cover” if the appointment does not work out. Once the search is concluded and the Board has chosen a candidate to be the next president of the college or university, the only interest of the search firm and its recruiters is to “deliver” that candidate (i.e., get the candidate to accept the position and agree to the Board’s terms).
2. Q: “The recruiter has told me that I do not need a lawyer. Is that correct?”
A: No. Our experience is that at the conclusion of a presidential search, the recruiter’s only interest is in “getting the deal done” as quickly as possible on whatever terms the Board wants. Unlike a lawyer who represents the potential president, the search firm has little or no interest in the actual terms of the prospective president’s employment.
3. Q: “I am worried that the lawyer I hired will be a “deal killer.” Is this a legitimate concern?”
A: Any executive employment attorney who is a “deal killer” does not stay in business very long. This is another mis-perception designed to prevent the president from being appropriately represented and protected in what is a critical contract not only for the immediate job, but for the president’s future career.
In a future post, we will discuss why failing to hire a knowledgeable executive employment attorney for the president’s first contract is so important and why the failure to do so can actually diminish the president’s stature in the eyes of the Board.
George Birnbaum
