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Why College and University Presidents Need an Attorney-Negotiated Contract – Part 1

As executive employment attorneys with a concentration in higher education contracts, we have, over the past decade, represented dozens of college and university presidents in negotiating (or helping them negotiate) their contracts when they are hired.

Many of them were first-time presidents, customarily having been selected from the ranks of deans and provosts, usually after a significant national or local presidential search conducted by a professional recruiting or search firm. Others were sitting presidents who were entering into renewal contracts or new contracts upon their move from one school to another.

Here are only some of the reasons why every senior administrator in higher education, including both first-time and sitting presidents, need a qualified and knowledgeable attorney to represent them when they are being hired by a college or university:

1. So as to Make Certain that the Presidential Contract Contains
a Full Set of Those Specific Protections Which Are Both
Customary and Necessary in the Higher Education Context

Every executive employment contract contains each side’s promises, obligations, requirements and entitlements, but frequently, attorneys who do not regularly work in the higher education space are unfamiliar with the types, nature and details of certain important protections for any college or university president which are quite different from those in, for instance, the contract of a Wall Street executive.

As only one example, a feature in all but a handful of college and university president contracts is the grant of academic tenure and the so-called “Retreat Rights” which accompany it. The terms of tenure and Retreat Rights are customarily negotiated in higher education contracts, just as equity grants, options and “Restricted Stock Units” are negotiated in the contracts of finance executives. The various details surrounding tenure and “Retreat Rights” are only one of a number of protections targeted to higher education which must be thoughtfully tailored to the needs of the individual college or university president. There are able and experienced executive employment attorneys who know a great deal about “Restricted Stock Units”, but little or nothing about “Retreat Rights.”

2. So as to Have Knowledgeable Counsel Whose Only Interest Is the Welfare of the Potential President.

A presidential search at the college and university level tends to be a drawn-out process, often taking many months of a nearly year-long presidential hiring cycle. To a potential president who is only one of a number of candidates for this top job, the search can seem to drag on over a considerable period of time. However, once a leading candidate has been chosen by the institution’s Board of Trustees from the finalists, events speed up dramatically. At that point, the search firm — paid by the Board — is only interested in delivering the candidate whom the Board has chosen. This means doing whatever it takes to secure the candidate’s swift acceptance of the offered position and his or her agreement to the terms of whatever initial draft contract the Board has presented to the candidate. The search firm, who has been the point of contact and main source of information to the presidential candidate during the weeks and months of interviews and deliberations which resulted in his or her appointment, has absolutely no interest in making certain that the terms and conditions of the contract contain the necessary protections, let alone being even minimally fair, to the potential new president.

For its part, the Board of Trustees is only interested in the college or university, and, by this time, those (unpaid) Board members involved in the search are usually tired and impatient to see the process completed so that they can issue an immediate public announcement showing that the Board has secured an impressive candidate to lead the institution. The various constituencies of any school — the alumni/ae, donors, existing students, the surrounding community and, if it is a public university, state and local officials as well — are all eager to “get the deal done” and circulate the news of a new leader. The pressure on the chosen presidential candidate to agree to whatever is being offered, even if inadequate or flawed in (or even lacking) the basic terms and protections of all executive employment contracts, and specifically those in higher education, is substantial. Without his or her own executive compensation attorney, no one is looking out for the interests of the new president. Even if there are obvious gaps and imperfections in the proposed contract, no one is going to point them out or get them fixed other than an executive employment and compensation attorney experienced in higher education. Only such an attorney has undivided loyalty to the new president.

And, contrary to any pushback the candidate might receive, good and experienced attorneys do not kill deals. They understand that the prospective president wants the new job and wants to make a prompt deal. Such an attorney immediately can tell what, if anything, is wrong with the contract and rapidly move to fix it to the president’s advantage.

As noted above, the time in which to make these “fixes” is usually fairly tight, so the new president particularly needs an attorney whose experience allows them to rapidly “get up to speed” and act decisively to obtain a better, often meaningfully better, contract for the new president.

(In the forthcoming continuation of this post, we will continue to explore this topic including responding to the most frequently asked questions and concerns raised by presidents and senior administrators in higher education when confronted with a career-advancing contract in connection with a change in employment.)

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.