Governing During an Institutional Crisis: 10 Fundamental Principles

By February 8, 2012 March 7th, 2019 Trusteeship Article

On June 19, 1986, University of Maryland basketball star Len Bias died of a drug overdose less than two days after his selection by the Boston Celtics as the second overall pick in the National Basketball Association draft. Two months later, a state prosecutor accused Maryland head coach Lefty Driesell of ordering team members to destroy evidence of Bias’s drug use in a university residence hall. In October of that year, both Driesell and Maryland’s athletic director resigned.

Four months later, a grand jury issued a report strongly critical of the manner in which Maryland’s athletic department, admissions office, and campus police accorded special preferences to student athletes. In 1988, the National Collegiate Athletic Association (NCAA) placed Maryland’s men’s basketball program on threeyear probation, banned the team from television and tournament appearances, and reduced the number of team scholarships.

I served as one of Maryland’s lawyers during the Len Bias era. Bias’s death and subsequent events qualified as a full-fledged campus emergency under any definition of the term. My abiding memory of that period was the extraordinary contrast between calm, private meetings with university officials and unruly rugby scrums with reporters when meetings ended and officials left the administration building for what felt like perp walks back to their own offices. One senior administrator said to me at the time that he did not appreciate how hot television lights burned until he had to answer reporters’ questions under their glare.

Truth to tell, we had it easy a quarter of a century ago compared to the gantlet higher education administrators and board members run today when their campuses confront crises worthy of national news-media coverage. Within the last few months some of the nation’s most distinguished public and private universities have been roiled by major crises. And today’s campus crises bear four closely related hallmarks that distinguish them from those of the past and make them more difficult to manage.

First, they unfold with stunning rapidity. Four months elapsed between Len Bias’s death and the first round of resignations at Maryland; by contrast, only four days passed between the arrest for alleged sexual abuse of minors of former Pennsylvania State University assistant coach Jerry Sandusky on November 5, 2011, and the forced resignations of Penn State’s president and football coach on November 9.

Second, campus crises today are covered incessantly by a news-media corps that has grown substantially in number and now includes—in addition to reporters from local television stations and newspapers— bloggers, Web-site managers, and anyone with a Facebook or Twitter account. Today’s crisis never abates and never goes through lulls because of the 24-hour news cycle and the incessant demand for fresh coverage.

Third, management of a crisis today involves the collection and assessment of far more information due to the proliferation of new technologies that preserve pertinent evidence: e-mail messages, voicemail messages, texts, smartphone videos, and Web pages. Finally, campus crises provide grist for commentators with ideological points of view who spin events in ways that do not always serve the interests of truth and balance.

The Board’s Role in Campus Crises

In today’s world, managing a campus crisis poses special challenges for an institution’s governing board, which may operate some distance removed from the immediate events giving rise to the crisis. In its most challenging form, a campus crisis—a shooting, a natural disaster, a fraternity hazing death, the arrest of a prominent campus figure—arises with little or no warning and precipitates reactive institutional decision making that may not always be shared or discussed with the board in advance. While blame for the underlying event will rarely be placed on the board, pressure will be exerted immediately to find out what board members knew, when they knew it, and what actions the board plans to take in response. The television lights, metaphorically if not literally, will burn bright and hot, and the board may find itself in the atypical and uncomfortable position of having to make decisions that are instantaneously analyzed, dissected, and second-guessed by critics whose primary loyalty is not to the institution.

I offer, then, a checklist of 10 steps for organizing the board’s approach to the management of a serious campus crisis.

1. Immediately—now—before crisis strikes, solidify lines of communication. How long would it take your president or board secretary to make logistical arrangements for an emergency board meeting or conference call? Do you have emergency contact information for every board member and senior administrator, and can trustees be relied on to respond if they receive an e-mail, text message, or voicemail? Now, while things are peaceful, is the time to ensure that board members can be assembled without delay in the event of a crisis.

2. Immediately—now—before crisis strikes, make sure your institution has a functioning crisis-management team and a written crisis-management protocol. The crisis-management team should include, at a minimum, the president, communications director, university counsel, and public-safety director. On many campuses, the president’s cabinet constitutes the crisismanagement team. Although it is by no means a universal practice, some institutions include board representation (most often the board chair) on the team, but even if the chair is not a formal member of the team, he or she should be kept apprised of its key decisions.

In determining who serves on the crisismanagement committee, the institution should strike the correct balance between having a team large enough to reflect every pertinent expertise but, at the same time, sufficiently small so that it can assemble quickly and deliberate efficiently. I favor inclusion, simply to spare senior administrators from wasting precious time at the outset of a crisis determining who should or should not be included.

Crisis-management protocols come in many forms and sizes. The one at Washington & Lee University (http://www.wlu.edu/x37330.xml) is 106 pages long and covers almost every imaginable crisis permutation. The text of Brown University’s (http://brown.edu/Administration/DCAG/cms.html) fits on one medium-sized Web page. Typically the protocol identifies team members, designates the team’s chair and public spokesperson, and establishes lines of communication between the team and other campus officials who may have operational responsibilities in coping with a crisis.

3. At the outset, focus with laser-like intensity on the facts. Finding out what happened is the board’s first and most pressing priority—and one of the most elusive parts of crisis management. Board members may be tempted to react viscerally, angrily, or indignantly to shards of the story gleaned from news-media accounts or other sources. They should refrain from doing so until institutional leaders methodically share everything they know.

The first order of business is for the board—either assembled en masse or through its chair—to receive a complete, well-organized briefing from senior administrators. A briefing serves two purposes. It ensures that all board members start from the same operative set of facts, thus preventing the potential embarrassment of having individual board members making inconsistent statements. Second, it protects the board against the charge that it took actions precipitously or without a full appreciation of the underlying facts.

How to structure a board briefing is a matter meriting careful consultation with legal counsel. On the one hand, administrators and board members should feel comfortable speaking candidly—a consideration that counsels against an open meeting and warrants (for public institutions in states with open-meeting laws) care in ensuring that the briefing can lawfully be conducted behind closed doors. On the other hand, transparency fosters credibility, and the impression that the board is meeting secretly can generate rumors and damaging speculation. If statutes and bylaws permit, the best course of action may be to hold a closed-door briefing, followed by a public report on subjects discussed and next steps to be taken.

4. Speak with one unified voice. If the crisis warrants a public statement from the board, then the board should designate one member to speak in its name (ordinarily the chair or a vice chair who is an experienced lawyer or public speaker), and that voice should be the only one the public hears. It is imperative that other board members resist the temptation to add their own commentary by speaking to the news media or making public statements; reporters are skilled in exploiting a multiplicity of voices for purposes that may not serve the institution’s best interests. The chair must articulate and enforce an absolute rule that only one member speaks for the board.

5. Understand legal parameters and constraints. Contemplated board actions may be constrained by statutory or contractual limitations. To take a generic example, the board may want a university administrator to be terminated, but may not be aware that the administrator has contractual protection against termination except for specified reasons. Board actions should at all times be reviewed by counsel before announcement and implementation, and the board should not hesitate to get briefings from counsel when its actions depend on the interpretation of laws and regulations, including the institution’s own bylaws.

6. At every juncture, choose transparency. The news media, elected officials, campus constituencies, and the general public should be kept as fully informed as humanly possible through the institution’s communications or university relations office, or—if circumstances warrant—through a specially retained public-relations firm skilled in crisis communication. The person in charge of communication should review statements issued in the name of the board. It is generally good practice for the communications office to alert the board, or its designated representative, before any public announcement or statement is issued and to make sure the substance of any public announcement is shared in advance with the board and senior administrators and reflects their input.

7. Identify possible reporting obligations. In the minutely regulated world of higher education, institutions have compliance, regulatory, and reporting obligations with which the board may not be familiar. Depending on the nature of the crisis, the institution may be required to file notices or reports with regional or specialized accrediting agencies, federal or state regulatory agencies, the NCAA, or other external bodies. Once the contours of a crisis are understood, the board should assure itself through consultation with campus counsel that the institution is aware of and has honored its reporting obligations.

8. Think before you write. As sad as it is to relate, you can bet that legal proceedings will follow in the wake of a campus crisis. Lawsuits will be filed; government investigations will be launched; at public institutions, demands will be made under state openrecord laws for minutes of meetings, e-mail messages, and other communications. You should be aware that your communications are likely to see the light of day, and while that fact should never paralyze you, it should prompt you to be judicious in what you write and how you express yourself.

While some board deliberations can be conducted under the cloak of legal privilege and some communications shielded from civil discovery, there can be tension between the temptation to invoke the attorney-client privilege and the desire to be as transparent as possible in dealings with the public. While I may not speak for my fellow lawyers, I do not adhere to the view that the need to minimize litigation exposure automatically trumps transparency. I am uncomfortable with refusing to produce documents or answer questions on privilege grounds, for fear that doing so creates the impression that board members have something to hide. Instead of refusing to produce a document, I would prefer that the document be written prudently and cautiously in the first place—a task that perforce all lawyers must depend on their clients to perform.

If possible, avoid keeping notes and writing e-mail messages during a crisis. If you must write something down, consider objectively whether the words you write could have unintended consequences if released to the public—because, chances are, they will be released.

9. Communicate clearly with the president. A crisis is not the time for mixed signals. Incautious or—worse—uninformed statements by trustees can undermine the ability of the president to manage in crisis. If the board has reservations about presidential decisions, the president is owed the courtesy of hearing them, preferably quietly and privately.

Now may be an appropriate moment to raise the sensitive issue of separate counsel for the board. Lawyers who represent an institutional client owe their ethical duty of loyalty to the institution as a whole, not to any officer or trustee. The existence of possible tension between the board and the president does not automatically mean that the institution’s lawyer cannot simultaneously provide counsel to both. Nevertheless, it is not unheard of for boards to retain their own counsel to assist in managing a particularly nettlesome crisis.

Doing so, however, can create problems of its own. As Sarah Helene Duggin, an experienced higher education lawyer, observed in a 2007 Saint Louis University Law Journal article titled, “The Pivotal Role of the General Counsel in Promoting Corporate Integrity and Professional Responsibility,” boards “are unlikely to obtain the best possible legal advice for the entity without [the general counsel’s] involvement. This is not because they will hire inadequate lawyers, but because lawyers retained in this fashion often lack sufficient knowledge of the way in which a particular matter fits into the overall objectives of the entity.” That said, there may be times when the general counsel, reporting to and serving at the pleasure of the president, may not be ideally positioned to provide dispassionate advice to board members.

10. Give considered thought to the pace of decision making. To borrow a page from Goldilocks and the three bears, the trick is not to take too long, and not to rush, but to time a decision just right. Problems can be compounded by hasty decision making. Critics specialize in creating the impression that every question must be answered immediately. That is not always true. At the same time, indecisiveness carries risks of its own—loss of credibility, encouragement to critics, reduced ability to control the narrative. The essence of strong leadership is taking the time necessary to arrive at the right decision and not passively allowing others to dictate the pace.

In a long career as a higher education lawyer, I have come to believe that no attribute is more important in a leader than knowing how to pace the decision-making process. The board should devote considered attention to that. Whenever a decision must be made, board members should ask themselves whether they know everything they need to know and whether they have questions. The board should determine whether senior administrators support the decision—and, if they are less than unanimous, why. When an action requires a board vote, it’s good practice for the board chair not only to call the question, but also to ask each voting trustee whether he or she feels comfortable that the time for voting has come.

Crises don’t last forever. In the heat of the moment, board members need to make time to pause, put the situation in context, and remind themselves of larger institutional issues and concerns. When the crisis abates, board members should participate in a thoughtful postmortem exercise focusing on lessons learned and pitfalls to avoid.

It is not too soon to start. At regrettably regular intervals, we have all watched campuses caught up in the white-hot spotlight of sustained public attention and news-media coverage in the aftermath of a campus crisis. If a tornado were to hit your campus … if students were shot … if a popular coach were suddenly fired … would your board be prepared? Do you have a crisis-management plan? Can board members be assembled on short notice? Do you know who our spokesperson will be? Are you aware of legal constraints and reporting obligations?

Now—when your campus is peaceful—is the time to consider those questions.