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Legal Watch: Search Engine: Legal and Practical Issues in Conducting a Presidential Search

6/6/2014

 

​By Ada Meloy

A college or university president’s role is as complex as it is crucial to the success of the institution. It includes, at a minimum, overseeing academic affairs and campus operations, executing the strategic vision of the institution, and serving as an ambassador for the entire campus community. A well-designed presidential search is essential to finding a skilled leader able to navigate the intricacies of administration and successfully fulfill the institution’s academic mission. The search process should be clearly defined, efficient, and in place well before any vacancy occurs so as to avoid any legal challenges, maintain the institution’s reputation, and satisfy the needs of campus stakeholders. There are several issues to take into consideration when outlining a presidential search process. Determining a plan for each of these issues will be invaluable in finding an outstanding president.

Establishing a Search Committee

Among the first steps in any presidential search, establishing a well-balanced search committee is one of the most important. The membership, structure, and processes of the search committee in large part determine the success of a presidential search.

In virtually every institution, the board of regents or trustees is the body that ultimately decides whom to hire as president or chancellor. Having board representation on the committee can be a good practice. Selecting the right person or persons from the board can be challenging, but the goal should be to include someone who will engender trust and respect, and who will be a welcome voice. The individual should be familiar with the institution, shared governance, and legal prohibitions on discrimination in hiring and employment. Both knowledge and personality should be considered in appointing any board members.

Whether it is prudent to include administrators or other campus constituencies will depend on the size, campus culture, and mission of an institution. Some campus groups may view the inclusion of administrators as a sign that the outgoing administration is playing too big a role in the selection process. However, these individuals can be instrumental in outlining the institution’s strategic plan and determining the best candidates who fit this plan.

Adding student, faculty, or campus department representatives can be an important signal that the search is inclusive and values the viewpoints of campus constituencies in determining both the future direction of the institution and the right individual to lead the institution toward its goals. However, this inclusiveness must be balanced with an efficient and focused search committee. A committee’s effectiveness decreases as the number of members increases. Including too many seats at the table could reduce the ability of a search committee to come to a consensus as to the institution’s optimal candidate.

Colleges and universities should consider their campus’s culture, size, and goals in determining the membership of the presidential search committee. Search committees can vary in size—commonly they are anywhere from 10 to 30 members. In forming the committee, an institution should seek to create a body that embraces the needs of the community yet is flexible and can come together on a vision for the institution’s future.

Whether to Engage a Search Firm

Search firms can provide several benefits to presidential search committees. First, search firms can assemble a larger candidate pool and can provide in-depth analysis of candidates’ backgrounds. Second, search firms can identify a broader range of candidates than a search committee may be able to do on its own, which leads to a more diverse candidate pool. For example, experienced firms may identify candidates that have backgrounds that are atypical of presidents or chancellors but who could be strong candidates and great fits for the institution. Finally, firms bring greater organization and provide much-needed structure to presidential searches. Firms will keep careful track of and update candidates, as well as keep them engaged during the process. A search firm can be a valuable asset in selecting a new president, handling many logistical aspects of the search.

Still, engaging a search firm may not be the best option for all institutions. Retaining a firm can be expensive, and with tightening budgets, search committees should thoroughly explore their needs and capabilities before doing so. Some institutions have successful presidential searches without the help of search firms. The goal is to find a firm that understands the college’s or university’s specific needs and has experience with similarly situated institutions.1 Search committees should be reluctant to hire search firms that only have experience with corporate candidates. Also, firms can be reluctant to broaden the search outside their standard candidate list unless the committee is proactive in emphasizing the need to expand the search. This can lead to choosing a “safe” candidate when a different one may have better suited the institution’s needs.

If the committee decides to retain a search firm, the relationship between the firm and the committee should be clearly defined in a contract, which should detail the expectations of the firm and a clear set of deliverables. Legal counsel should prepare or review the contract.

Whether to Hold a Public or Private Search

One of the biggest legal considerations in choosing a new college or university president is compliance with applicable freedom of information or “sunshine” laws regarding the confidentiality of the presidential search, especially for public institutions. Improperly keeping the identities of presidential candidates secret could put the institution at legal risk. Search committees should consult the institution’s legal counsel and state laws regarding open meetings before determining whether to make candidate names public or private.

Many institutions seek to keep candidates’ information confidential not only to protect the candidates’ privacy but also to ensure that the best candidates are included in the search. Public searches may have the effect of scaring away the most qualified candidates. Most top presidential candidates are presidents, chancellors, or provosts at other institutions, and their positions could be compromised if it were revealed that they were considering a position at another institution. Such a revelation could adversely impact the reputation of the candidate and his or her institution, the candidate’s employment, and ongoing fundraising efforts. Candidates and institutions feel that maintaining confidentiality can lead to a more qualified candidate pool and ultimately the selection of a better president.

However, many states recognize a significant public interest in knowing the identities of candidates being considered for a public institution’s presidency, considering that taxpayers are paying that president’s salary. This knowledge allows the public and the press to investigate the candidates’ backgrounds and voice concerns and opinions before a final decision is reached. It is also argued that public knowledge of candidates gives the community oversight in the process, which in turn prevents discrimination and cronyism, and ensures that minority and female candidates are seriously considered.

Given the various judicial opinions, state laws, and best-practice guides on this issue, institutions generally choose to utilize a hybrid approach. Often this includes having an initial, confidential portion of the process in which the committee identifies and interviews candidates privately. Once the committee creates a final list of three to five candidates, it reveals their identities and brings them to campus for interviews and public forums. These hybrid processes help identify the most qualified candidates without infringing on the public’s right to be involved with the selection.

The search committee should be made aware of the interests and rights of the campus, the press, and the public, and alerted to which parts of the search will be made public and which should remain confidential.

Conclusion

In addition to these issues, an institution of higher education should use its presidential search as an opportunity to reevaluate its academic mission and articulate its strategic priorities. Indeed, determining which candidates are ideal is impossible without a clear conception of what mission they will work toward or what goals they will be asked to achieve. Thus, the search committee should engage in a candid discussion of the institution’s strategic plan and what kind of candidate would be best equipped to execute that plan. Yet the goal of a presidential search is more than simply finding a highly qualified candidate to lead; rather, the search must be conducted in a manner that incorporates the needs and opinions of the campus community in the decision. Careful consideration of these issues will increase the likelihood that the institution finds a highly qualified candidate who fits the strategic vision while ensuring that the campus community feels valued and informed during the process of selecting its next leader.

Notes

See “Picking the Right President,” by Andrea Warren Hamos, Shelly Weiss Storbeck, Elizabeth A. Neumann, and Ellen Heffernan, Spring 2014 issue of The Presidency, pp. 24–26.

Ada Meloy is the general counsel of ACE. She thanks Dylan Hoffman, legal intern in the Office of the General Counsel, for his assistance with this article.



 

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