The decision last Friday by the Board of Regents to hire a search firm to find a new permanent President for the University of Minnesota will end up costing the institution — and the taxpayers — around a quarter of a million dollars.
It ought to come from the large pocketbook of departed President Joan Gabel, whose secret deal with another institution and then abrupt abdication from her position here this summer precipitated the expenditure.
The embattled Gabel, who clearly was over-matched at the University — and greedy to boot — fled to a nearly million dollar yearly position as head of the University of Pittsburgh a little over a year after she had signed a lucrative five-year extension of her contract here providing a $1 million-plus figure annual compensation package.
The University now be shelling out $200,000, plus expenses that might amount to another $50,000 or so, to Wittkieffer, a search firm out of suburban Chicago to recommend a replacement to Interim-President Jeff Ettinger. Coming off a hard-fought but successful run last year for Congress in southeast Minnesota, Ettinger’s one-year arrangement ends next summer.
Gabel did what many high-profile college coaches of high revenue-producing football and basketball do: leave for what seems to be better, usually more lucrative positions and a fresh start somewhere else. But many of them, like the ones here at the University, often have buy-back provisions in their contracts requiring them or their successor employers to compensate their outgoing employer for leaving before their agreements expires.
But the University apparently did not have such in its contract with Gabel, leaving her a free pass, literally and figuratively, to depart.
Courts cannot compel
Courts cannot force an employee to perform a contract with employer because it would be uncomfortable, indeed untenable for both sides to be compelled to co-exist when the employee does not want to work there and the feeling often is mutual.
But that hesitation does not restrict courts from awarding monetary damages to an employer when a contractual employee leaves without justification during the pendency of an employment relationship.
The damages suffered by the University due to Gabel’s unforced, but perhaps welcomed departure are fairly easy to calculate: $250,000-plus for the search firm, miscellaneous costs associated with University personnel engaged in the search process, and perhaps any excess salary and benefits paid to the new president beyond what Gabel was getting. Ettinger agreed to accept a mini-$400,000 package for his one-year term, but that amount will be dwarfed by the package for the incoming President next year.
A lawsuit for those damages would seem to be a slam-dunk. It seems so simple that even the poorly-performing Gopher basketball teams, men and women alike, could do it.
But the savants at the McNamara Center apparently has no stomach for that type of action, probably deterred for several reasons. One is the cost that might be involved if the school has to hire outside counsel, who know how to churn out legal bills. The University is reeling from legal fees in the UCare imbroglio, which cost some $2 million, along with fees for the entangling the Fairview arrangement and a myriad of other matters. More significantly, as a practical matter, a lawsuit could be off-putting to future presidential aspirant who be reluctant to pursue an opportunity here at an institution that sues its former leadership.
But even without going to court, the Regents and University’s lawyers should not have let Gabel get away scot-free. Before she left, they should have used the threat of litigation as leverage to work out a compromise pay-back cash settlement in lieu of litigation, a rather conventional process that the University decision-makers were either too shy, scared, slothful, or stupid to pursue. Rather than showering praise upon Gabel at her final meeting last June, the University should have taken steps to get her to pony up some of the costs of her departure.
That it did not is a testament to the old boys/girls network that is alive and well, repeatedly allowing elite administrators and athletic personnel to get away with these schemes and scams. So, Gabel is off to greener pastures, although about the only greenery she’ll see in the Steel City is her nearby million dollar comp package, and the U is going to be out $200,000-plus.
Hopefully, the school will learn from its costly lapses and structure a better contract with its next president that will deter that individual from pulling off what Gabel did without having to pay for the privilege of leaving the University in the lurch. The Regents and their learned counsel out to recall the oft-quoted admonition of philosopher George Santayana: “Those who cannot remember the past are condemned to repeat it.”
Marshall H. Tanick is a University alumni and Twin Cities employment and labor law attorney.
