Can things get worse?
Just as we seem to be emerging from two years of the pandemic, and starting to feel that, with vaccinations and new treatments, not every diagnosis of COVID-19 need be a sentence of serious illness or even death, the country has been hit by a variety of new challenges: massive and rising inflation; the first land war in Europe since World War II; terrible acts of violence in our own country, and divisive decisions by the Supreme Court.
By comparison, the employment travails of college and university presidents and heads of schools would seem to be mere ordinary personal setbacks. However, as executive employment attorneys who work regularly in the world of education, we take it seriously when our clients are negatively affected, particularly by events beyond their control.
In that regard, in the past few years we have seen, over and over again, the following depressing scenario:
An able and successful college president or head of school, often in the second or third term of their employment, contacts us. In the past he or she has been praised for a host of accomplishments. These academic chiefs have provided strong leadership, raised meaningful monies for their institutions, built buildings, grown enrollment and/or endowments, and started new and innovative programs.
Then suddenly the institutional climate changes, often dramatically and seemingly overnight. One or more of the leader’s many (and historically conflicting) constituencies have become unhappy. Complaints, frequently anonymous and usually vague, have been filed against the president or head, customarily triggering some type of elaborate and painful investigation. The once supportive Board of Trustees is receiving complaints at their residences, maybe even personal threats, about the school’s leadership. To the trustees, who understandably do not want their (unpaid) services to become the proverbial good deed which does not go unpunished, it becomes far easier to “fire the manager” than to support the president or head in the face of mounting criticism. All past accomplishments are seemingly forgotten. “What have you done for us lately?” becomes the order of the day.
When these academic leaders contact us for legal support, they often are hopeful that things “can be worked out” so that they can remain in place at their schools, which they usually care about deeply.
Such an optimistic view is understandable, but, in our extensive experience as executive employment lawyers, those hopes are usually fated to be disappointed, often with speed and sometimes with unnecessarily rough treatment. Sadly, a parting of the ways, usually sooner rather than later, is almost certainly in the picture. In the words of the legendary wit Damon Runyon, “The race is not always to the swift nor victory to the strong — but that’s the way to bet!”
When we receive inquiries of this type, our first response is to ask to see the client’s underlying contract of employment with his or her school. And, again sadly, more often than not we learn that the president or head of school entered into that contract or accepted that offer letter (which is a type of contract, although customarily less detailed than a fully integrated employment agreement) without having it reviewed by a qualified executive employment attorney knowledgeable about education. (A variant of not using any attorney is to use “the attorney who did my will” or “the attorney who helped me buy a house”.)
The result is a mediocre contract (often worse than that) lacking the fundamental necessary protections to cushion the blow of a termination without Cause. An inadequate contract immediately puts the client and his or her lawyers in a defensive position. Good executive employment attorneys are used to playing the hand they are dealt, but it did not have to be that way.
The moral of this all too common story? The way to avoid or mitigate “sorrow tomorrow” is for college and university presidents and heads of schools to have a lawyer with experience in the academic world review, comment on, and negotiate their employment contracts (whether initial contracts or renewal agreements) so as to provide a number of different protections against the day (which day often comes quite unfairly) when things on campus take a negative turn.
The relatively modest outlay for these initial legal services pays huge dividends when the academic leader is forced to confront the realty of hiring a lawyer to handle their employment termination, and there is a good contract already in place as a basis for negotiation of the termination package.
I wish all our clients, friends and readers a wonderful summer.