Orientation and Training on Legal Issues

By Steve Dunham    //    Volume 26,  Number 2   //    March/April 2018

In Trusteeship and other publications, AGB has discussed the benefits of orientation for new board members. In past legal columns, I have suggested that orientation should include legal topics. Training and education on legal issues may also help experienced board members fulfill their fiduciary and other duties. While lawyers who conduct orientation and training sessions must tailor their presentations to the individual college or university, I have selected 15 generic topics that might be covered.

  1. What does fiduciary duty law require? This could include discussion of the duties of care, loyalty and obedience (compliance with the institution’s mission and the law), confidentiality, and good faith. (See Trusteeship magazine articles and AGB papers on this important topic.)
  2. What is the legal nature and structure of the particular institution and what are the legal implications? Is it public or private? If public, is it an agency of the state or does it have independent status? Does the institution enjoy sovereign immunity? What state laws (such as open meetings and open records) apply? If private, is it self-perpetuating or does it have a sole member? Is it a 501(c) (3), (a form of government regulation in return for tax benefits)? Is it religiously affiliated and what are the legal consequences?
  3. What are the roles and responsibilities of the college or university lawyer (including an introduction to the licensing rules that regulate lawyers)? To whom does the lawyer report? Who is the client (typically the entity, acting through duly authorized constituents)? What are the lawyer’s professional duties (including competence, confidentiality, conflicts of interest, and compliance with the law)? What is the allocation of decision-making authority between lawyer and client? What is the lawyer’s duty in the face of client misconduct?
  4. What are the legal principles and themes that are unique to higher education law? This could include the legal significance of the mission, institutional autonomy, academic freedom, judicial deference, distributed authority and shared governance, commercialization, and regulated entity status.
  5. What are the main substantive areas of law affecting the college or university? As a partial list, this could include employment law (including the differences between faculty and staff), discrimination, sexual harassment, the Clery Act, Title IX, the False Claims Act, contracts, intellectual property, unions, federal grants and contracts, tax, athletics, compliance, international, privacy and data security, unique faculty issues (such as tenure), constitutional issues such as free speech and due process (if public or otherwise applicable), student legal issues (including FERPA and fraternities and sororities), and endowments.
  6. Compliance and ethics, including the federal sentencing guidelines, the scope of applicable laws and regulations, and the consequences of violations.
  7. Limitation on liability and defense and indemnification of board members, officers, and employees under institutional policies, bylaws, and state law.
  8. Insurance and enterprise risk management (with a focus on legal and liability risks).
  9. What are the key governance documents (including articles of incorporation, bylaws, and board policies)? How do they affect the legal rights and responsibilities of board members?
  10. Conflict of interest policies, including those for board members.
  11. Attorney-client privilege.
  12. Legal issues involving related entities (e.g., foundations, alumni association, health care enterprise).
  13. Crisis management. This topic has significant legal implications when the cause of the crisis is a legal matter (e.g., criminal or other governmental investigation, high-visibility litigation, misconduct by senior executives).
  14. Litigation. The board might consider whether to ask for periodic reports on major litigation.
  15. Policies. Many institutional policies create legal rights and obligations. The board should have a general understanding of the most important policies and how they are developed and managed.

While this list is too long for a single orientation or training session, a board might consider whether to assign certain topics to particular board committees and/or integrate them into its regular meetings on a periodic basis.