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What College Presidents Must Do Before the Axe Falls: Part 2

For Points #1-3, please see Part 1 of this article

4. Don’t try to do it yourself.

Board members sometimes blindside presidents, deans and other academic executives by asking to discuss a termination package before anything has been put in writing.

Despite the board’s desire to “get this done quickly, quietly and amicably,” no president or administrator should make any substantive response before reviewing the terms of the separation proposal with an attorney who can actually conduct—or at least guide the executive in—the negotiations to follow.

By responding hastily and without counsel, a president can get locked into disadvantageous terms that will control what is a momentous transition in the personal and professional life of any higher ed executive. Experience shows that something like “buyer’s remorse” often follows, but by then there may be little or nothing that can be done.

College and university presidents are a highly educated and intelligent group, and they often have experience in financial and management oversight, but this does not mean that they can or should represent themselves in the emotional and volatile atmosphere of a job termination.

Remember that this is an employment law situation, not an academic matter.

5. Start with a good and protective employment contract.

The days when a surprising number of college and university presidents and other executives worked without a written employment agreement—carefully negotiated by experienced counsel and tailored to the executive’s individual needs and situations—are over.

Indeed, any school should question the sophistication of an executive eager to take on the extraordinary range of tasks demanded of today’s top administrators, but who is willing to work without the important protections of an employment agreement.

If a president or dean can’t protect themselves, what kind of a job will that person do protecting the college or university?

The first thing a president or other executive facing termination should do is pull out the agreement that has been carefully crafted to protect against just such an eventuality.

That should not be the end of the exercise, however. It now becomes incumbent on the president’s executive employment attorney to make certain that the college or university is observing the letter and the spirit of the contract.

That person must also determine whether the contract terms, as they exist, are still sufficient to meet the president’s needs in light of the particular facts at issue.

Finally, it is the attorney’s job to negotiate an increase in the president’s severance compensation as well as to strengthen other, non-monetary protections as part of the president’s termination package.

If the president or dean did not obtain a particularly good or protective agreement at the time of hiring, all is not lost. Various additional protections, including enhanced severance and other protections—as well as the public management of the executive’s departure—may still be negotiated.

Legal counsel with experience in senior academic employment will know which questions to ask.

For example:

  • What are the facts surrounding the president’s performance and termination?
  • Was the termination the result of illegal discrimination or retaliation?
  • Does the president have academic tenure or some other form of continuing retreat rights?
  • Are there other specific issues that need to be addressed—such as the wording of an announcement, mutual non-disparagement, continuing or new indemnification, references and recommendations, or confidentiality?

These and other important details must be addressed in any termination settlement. Getting terminated from any executive position, particularly the highly visible position of a college or university presidency, is a major and often traumatic life upheaval.

Having the proper counsel by the president’s side can go a long way toward easing the transition and enhancing the president’s future career prospects.

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.