What college presidents must do before the axe falls

Why presidents and other senior executives can benefit from seasoned counsel

The higher education press has been filled recently with stories about abrupt firings of presidents and other senior executives at universities and colleges across the nation. What was once an infrequent occurrence now seems a weekly, almost daily event.

Speculating on the reasons for this trend—financial pressures, decreasing enrollment, board dissension or the injection of modern human resources practice (the “hire slow, fire fast” mentality)—is probably a futile exercise.

The president facing termination, or who actually has been fired, can better spend his or her efforts preparing to cushion the blow, both for themselves and their families.

What can senior academic executives do to protect themselves in an axe-happy environment? Quite a lot, as it turns out.

1. Get professional advice.

College presidents and other senior executives often have a sixth sense that they may be terminated in the near future. They are usually correct. When that thought first crosses the president’s mind, it is time to retain a knowledgeable executive employment attorney—but not just any executive compensation lawyer.

Higher education “C-Suite” employment operates in a unique and nuanced environment. Presidents and deans are far better served by someone who has substantial experience in negotiating top-level academic contracts, both “on the way in” (when the executive is being hired) as well as “on the way out” in the event of a president’s untimely termination.

Why call before termination actually occurs? Every experienced lawyer knows that the earlier legal assistance is sought, the more effective it is. Indeed, legal action taken before the actual termination can pave the way for a “soft landing.”

2. Don’t discuss your situation with anyone except your lawyer.

The less the administrator shares with anyone—other than his or her lawyer, spouse or domestic partner—the better. The academic community is an endless rumor mill, which is never helpful to an executive whose head is on the block.

And, if the goal is to achieve a negotiated resolution, the maintenance of strict confidentiality on both sides is almost certain to be a condition of such an agreement.

The first thing an executive employment lawyer will tell an academic client in the midst of a termination is—not to put too fine a point on it—“Please shut up.”

The executive can ask his or her attorney about specific exceptions to this rule—for example, “Can I speak in confidence to a sympathetic president or dean of another higher ed institution who has been through the experience of being terminated?” But ordinarily, the answer will be “No, just keep quiet.”

3. Don’t fall prey to sentimental illusions.

When the board of trustees has decided to terminate a president, past relations with individual trustees mean little or nothing. Trustees of nonprofit organizations in higher ed (and elsewhere) usually are not compensated for their service other than by community prestige or their personal pleasure in being connected to an institution they care about.

No matter how friendly they have been to a president when in office, it is unlikely they will speak up against the majority. Their efforts, even if they are willing to make them, are rarely useful and might actually backfire, hurting the president’s position.

It would be far better to retain their goodwill so the president’s attorney can, for example, obtain more severance or a better letter of recommendation.

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.

George Birnbaum is New York-based attorney specializing in the academic, finance and media sectors.

George Birnbaum
George Birnbaum
George Birnbaum is a lawyer in private practice who provides executive employment counsel to top-position candidates in higher education, media and financial services. For more info, visit www.gbirnlaw.com.

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