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Recently university and collegiate employers have been under fire for delegating the recruiting and vetting of key employees to third party search firms who fall short in candidate due diligence. This executive search pool includes, among others, university presidents, athletic directors, Division I football and men's and women's basketball coaches.

 

Division I universities often pay six figure payouts for search firms. Many universities then becomes hands-off in the candidate vetting process. They entrust the search firm to conduct thorough background checks, speak with references, review court filings, call colleagues, confer with the NCAA, consult with prior institution compliance officers, and review social media.

 

Instead, collegiate executive recruiters have come under scrutiny for trying to quickly finalize a deal, relying on "good old boy" networking instead of unearthing critical candidate background information. Neglecting to carefully oversee the Division I executive hiring process can lead to a myriad of issues, including lawsuits, quick terminations, broken contracts, disruption of team, toxic leaders, poor performance, rules violations, and public relations nightmares. Neither the university nor the executive is served.

 

In December 2013, Korn Ferry executive search firm, a company specializing in the collegiate recruiting ranks, assisted the University of Southern California to land head football coach Steve Sarkisian. After a series of alcohol-related incidents during his short tenure, Sarkisian was terminated by USC Athletic Director, Pat Haden. He had lasted just 2 years as USC's head football coach.

 

Haden admitted Sarkisian was not a good fit for the program and admitted he used a search firm to land his head football coach. He also acknowledged that USC did not conduct a public records search. A public records search may have uncovered hundreds of pages of expense reports with excessive alcohol charges incurred during road trips and recruiting trips while Sarkisian was employed by the University of Washington. In addition, reports from numerous Washington football players corroborated that Sarkisian had challenges with alcohol. Such information, if discovered during the recruiting and before the hiring phase, would have alerted USC to potential problems opening the door to informed decision-making.

 

In December 2015, Sarkisian filed a lawsuit against USC alleging fourteen causes of action including breach of contract-related claims, disability discrimination-related claims, improper release of protected medical information, invasion of privacy, wrongful termination, and negligent supervision, hiring, training, and retention. Sarkisian claims USC did not engage in an interactive process with him to determine a reasonable accommodation for his disability (alcoholism) in accordance with the law. USC alleges that Sarkisian denied he ever had a problem with alcohol and never asked for a leave of absence to seek treatment. Sarkisian's attorney has stated that the former USC coach will seek more than $30 million in damages.
Universities should do their due diligence prior to entering into an agreement with a search firm.
 
They should research and interview at least three search firms to ensure selection of a firm that conducts a thorough recruitment and background check process and understands the employer's needs. Employers should ask prospective search firms what methods are used to investigate a candidate's background. A quick deal is not always the best solution. Having a tight relationship with the search firm can also lead to misplaced loyalties.

 

Civil court filings would have been especially useful to the University of Minnesota. It used Parker Executive Search firm to recruit its 2012 athletic director Norwood Teague. Earlier that year, a complaint was filed by Virginia Commonwealth women's basketball coach, Beth Cunningham, for gender discrimination against Teague. Cunningham and Teague worked together at Virginia Commonwealth. Parker claimed that this complaint would not have been available to the search firm given that it was filed after Teague was hired by the University of Minnesota. However, Cunningham, a former Notre Dame basketball standout, was an available reference if approached. She was not.

 

In 2013, Regina Sullivan, the former senior associate athletic director for the University of Minnesota, filed a complaint against the university alleging that Teague fired her after she questioned his commitment to Title IX. In August 2014, Teague resigned and admitted that he sexually harassed two female University of Minnesota employees after inappropriately touching them and texting one of them at a university event. Later, the U.S. Department of Education announced that it would investigate the school's compliance with Title IX.

 

A collegiate executive recruiter specializing in higher education says, "Establishing crystal clear expectations from the start is key." "Searches in academia include a dizzying array of interested parties who want to have a say in the process and about who is chosen. It's imperative for the search committee (and search firm if one is hired) to discuss and set expectations from the start about who key participants will be (especially official spokespersons), what exact process will be used, and what timeline is realistic. A thorough position specification must be developed to guide candidate sourcing before any candidate names are spoken," says the executive recruiter.
 

Examining the highlights and pitfalls of university-hired executive search firms, we've developed the top ten tips. This includes:

1. Make sure the search firm executes thorough background checks and ensure the checks comply with federal and state law.

If the university chooses to use an outside consumer reporting agency to perform background checks on an applicant, federal and state laws impose extensive requirements upon employers. The federal Fair Credit Reporting Act ("FCRA") provides the federal requirements related to background checks. In California, employers must also comply with the California Consumer Credit Reporting Agencies Act.
Universities are prohibited by law from using certain unearthed background check information. This includes, but is not limited to, bankruptcies over ten years old; lawsuits and judgments over seven years old; arrests, indictments, information, misdemeanor complaints or convictions over seven years old; any conviction for which a full pardon has been granted; and any arrest, indictment, or misdemeanor complaint that did not result in conviction.
 

2. Confirm the search firm has checked and confirmed the candidate's employment history and references.

Also, they should consult with individuals with whom the candidate has worked with but not listed as a reference. Parker was recently engaged by the University of Iowa to hire its president, businessman Bruce Harreld. After being hired, it was discovered that Harreld inaccurately listed his then-current employer on his resume and inaccurately listed his publications. Harreld's resume stated that he was employed as the managing principal of Executing Strategy, LLC, in Avon, Colorado. However, that company's business registration expired some time ago and Harreld was self-employed. The misrepresentation resulted in a "motion of censure" by a faculty committee against Harreld for failing to uphold the university's ethical standards.

Speaking to those professionals who do not stand to gain from the hiring of the candidate are often the most candid sources of information. Among other repercussions, failing to conduct the proper background screening could result in a negligent hiring lawsuit.

3. Confirm the executive search firms obtained local and national court and public records, education history, reference checks, compliance reports, NCAA intelligence, prior employment experience, and social media checks.

Find out who they talked to, where they searched and how they came about their information. Also explore any roadblocks the search firm says it encountered as a barrier to accessing candidate information.
It's easy for search committees and search firms to look in plain sight for obvious job candidates. (Who's available? Who is the biggest name we can get?) But oftentimes the most dynamic and diverse candidates are not in plain sight and must be sought out through original, thorough research and sourcing. A firm or committee that "recycles" candidates from other recruitments will not get a full slate of choices nor earn the respect of alums and other stakeholders.

 

4. Ensure the search firm knows the employer's needs in order to secure someone that is right for the program's culture, not just focused on the bottom line. One such example is Steve Patterson, the former Athletic Director of the University of Texas. He resigned due to clashes with the school's fans and donors in September 2015, after 22 tumultuous months. The university was left buying out his expensive contract. He, too, was vetted by a high-priced search firm.
 

5. Double check the search firm's work.

More often, universities are relying on their compliance officers and general counsels to double check the work performed and information obtained by search firms. Compliance officers have relationships with other university compliance officers who get candid responses about NCAA bylaw infractions. Social media will also lead a university to outside the box references who can shed light on issues that the search firm may have overlooked. Universities might also consider claw back deals with search firms, refunding to them a lump sum payment if the executive's contract is terminated before its term.

 

6. Review and revise hiring policies and confirm the search firm is abiding by the updated policies. Generally, hiring policies and procedures should be reviewed and revised annually to ensure compliance with state and federal laws. Hiring policies and procedures should be reviewed and revised to take into account the use of a search firm. Such policies can be used to provide a helpful framework when setting forth the company's expectations of the search firm at the outset of the relationship. They may also serve as an outline for the agreement between the employer and the search firm.

 

7. The university should act quickly if the search firm vetted candidate is selected but not a good fit. At Texas and USC, both high profile candidates lasted less than two years after they were scrutinized through high profile search firms. Oftentimes universities delay terminating bad hires because they made an investment in the search firm, the candidate, and the public relations. More often than not this delayed termination leads to poor performance, morale, and team decline. Overlooking poor leadership in the hopes that wins, results, or public opinion will smooth over defects has become a risky and expensive venture. It also leads to greater leadership liability over time.

 

8. Search firms must balance confidentiality with transparency. "Stakeholders have a right to provide input to the search committee and know how a search is progressing, but confidentiality must be ensured to attract top-notch candidates and maintain the legitimacy of the search," says the collegiate executive recruiter. "Nearly all leading candidates are currently employed and will not put hats in the ring unless confidentiality can be guaranteed until the hiring decision is made. Their reputations and careers are at stake. Knowing what and when to share information with stakeholders, the campus community, and the media is something that must be outlined from the start of a search, and maintained diligently throughout. Good recruiting firms counsel search committees throughout a search on how and when to share information and how to prevent leaks and miscommunications," says the executive recruiter.

 

9. Use the full advisory capacity of the search firm. Thorough search firms do so much more than source and recruit. They evaluate the market, help build meaningful position profiles, assess the leadership abilities and cultural fit of candidates, manage communications and confidentiality, and more. The reason that search firms are hired is to guide the search committee through each key phase and decision in order to increase the likelihood of a great hire.

 

10. Universities should always seek the advice of inside and outside counsel regarding the search firm, process, candidate, and contract. University hires as well as collegiate athletics are multi-million dollar businesses in an ever-changing legal environment. One mistaken hire can costs hundreds of thousands of dollars.
Region: United States
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
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