The turn of the year roughly coincides with the conclusion of organized searches for the new leaders of Colleges, Universities and Independent Secondary Schools. These new Presidents, Chancellors or Heads of School, as the case may be, will start their new employment on July 1, the beginning of the academic year.
As executive employment attorneys working in the world of higher and secondary education, this is a busy time. With the end of the search process resulting in a formal offer to a new College or University President or Head of School, the terms of the new leader’s employment contract must be negotiated and agreed on.
But wait a moment: that assumes that the “winner” of the search process actually wants the new job. Sometimes they don’t.
Declining employment potentially can be awkward. The school and its Board of Trustees are excited about their choice of a new CEO, who often has emerged only after a highly competitive (and expensive) search process. The (paid) search firm is impatient to actually “deliver” the Board’s first choice candidate. The lawyers are eager to reach agreement. However, even if the new President or Head is proud of being selected, he or she may not be quite so enthusiastic. After all, none of the other participants in the search process—Board members, search consultants and attorneys—are going to have to do this extremely difficult and often stressful “24/7” job for the next five years.
This reminds me of a favorite joke told by my first law partner. The captain of a Navy battleship receives a telegram that Seaman Smith’s mother has passed away. Although the captain is personally fearless when he is exposed to shot and shell amid the smoke and roar of battle, he finds this sort of personal and emotional human interaction uncomfortable, almost unbearable. So he calls all the sailors on deck, and barks out: “Attention! All you sailors who have mothers still living, take two paces forward (pause) … not so fast Smith!”
Not so fast, indeed.
There can be good reasons, some of them personal and others situational, for not taking an executive job, however lucrative and/or prestigious. Accordingly, this is an area where a lawyer must be sensitive to, and respectful of, the executive client’s wishes and freedom of choice.
We have been involved in a variety of different situations where the chosen candidate for the top job at an institution of higher education decides against taking the offer. They range from the case of one executive who hired us on a Monday, and on Tuesday morning called back to leave a message that (no reason given) they were going to decline the offer, to other situations where a prospective President, with our assistance, worked through a much longer process of deliberation before deciding that the job was not right for them.
The lawyer’s obligation is—but only at the client’s request—to present and discuss factors relevant to the employment decision, while always being careful not to put too much of “a finger on the scale”. Here are some of the questions which may be asked:
Has the executive fully appreciated what the particular job will entail?
Is the compensation being offered commensurate with the difficulty of the job?
Does the job require a substantial physical move which will upend the executive’s family (e.g., a geographical dislocation which may well have looked more feasible when the executive was only one of a number of candidates, and before an offer of employment was a reality)?
Is this institution the right “fit” so that the executive has a reasonable prospect of success in the job? (This consideration is particularly important when the position is a first Presidency or Head of School. Lack of success in a first CEO role can have a negative effect on an executive’s career track; if the institution is having serious financial or enrollment issues, a prospective leader must be extremely realistic about the likelihood of a turnaround, so as not to be tarnished by a perceived failure.)
As the executive and his or her attorney work through these and other considerations, the right personal decision should, hopefully, emerge.
Negative decisions on an actual employment offer remain in the minority, and we do not try to sway executives one way or the other unless their own “gut instinct” is making them hesitate. What is important to remember is, simply, that not every offer of employment is automatically the right one.
Lisa, Terri and I wish all of our readers, clients and friends a healthy and enjoyable 2025!