I recently had a conversation with independent school attorney Pete Commons, partner at Commons & Commons LLP, to discuss head of school contracts. These agreements should ideally be settled 12 months before the current contract expires—which means schools need to think about them 18 months in advance. Unfortunately, this important fact may not always be on trustees’ minds, as they are volunteers who often have other jobs and commitments. But letting this important work slide could put the school at risk in terms of parent confidence, fundraising, and the strength of the board itself. “In the maelstrom of running your board through COVID-19 and social justice movements and all of the things you have to do month-to-month, year-to-year,” Commons says, “managing the head of school contract is hard to put at the top of the list. But if you have time over the winter break, prioritize the head’s contract.”
With or without the time crunch, many negotiations devolve into anger and frustration. Commons says the most frequent mistake he sees is “people misunderstanding the objective. The goal here is a fair contract and a good relationship.” Tackling contract negotiations with aggression can undermine the board-head relationship.
But it doesn’t have to be that way. Both boards and heads should be thoughtful about their goals, the relationship, and the legal counsel involved. Having the right attorneys can help make the negotiation collaborative and informed. It is important for heads to understand that they have the right to legal counsel in this process. It is equally important that trustees understand this, too—a head with an attorney does not make them contentious; it makes them informed and represented.
When asked about the top things to look for in a fair contract, Commons says, “appropriate compensation, clear and mutually respectful termination provisions, and mutually considerate noncompete and nonsolicitation provisions.” The terms should, after separation from service to the school, permit the head to get another job without moving to another city; conversely, the school should be protected from the head taking relationships, such as employees, parents, and donors, to the next school.
Boards and heads need to think well in advance about contract negotiations. They need to make a plan and partner with the right counsel to ensure the contract is fair and the relationships are strengthened through the process.