Legal Issue-Spotting in International Collaborations Minnesota State Colleges

Legal Issue-Spotting in International Collaborations Minnesota State Colleges and Universities CAO, CASO and Deans Spring Meeting 2013 Kris Kaplan, Deputy General Counsel System Office Minnesota State Colleges and Universities The Minnesota State Colleges and Universities system is an Equal Opportunity employer and educator.

OVERVIEW § Policy and Other Threshold Considerations § Spotting Specific Legal Issues § International Recruiting

Board of Trustees 2010 -2014 Strategic Plan Mn. SCU and the State Operate in GLOBAL Environment Goal 2. 2 requires graduates to have “strong, adaptable, globally competitive and flexible skills. ” Strategic Direction 3: Provide learning opportunities, programs and services to enhance the global competitiveness of the state.

International Activities Long-Established: § Hosting international students and scholars on Mn. SCU campuses; § Study abroad § Faculty-led or 3 d party provider Other types of international agreements and collaborations on the rise. . .

Some Examples of System Internationalization Initiatives § Memoranda of Understanding (MOU) § Faculty/student exchange programs § Institution-wide or program-specific § Joint degree programs § Delivery of courses or training abroad in collaboration with foreign institution § Delivery of courses or training at Mn. SCU campuses for international clientele

Put Globalization into Context A Vision Thing Internationalization Strategy § Goals grounded in college or university mission and core values § Defined benefits for students, faculty, community culture and economic development Internationalization Plan § Study abroad; curriculum development; student recruitment and services § Collaborative agreements

International Agreements § Strategic Framework § Rationales, goals § Priority regions, programs, issues § Alignment with current academic offerings § Program Decisional Guidelines § Further mission, core values § Aligned with internationalization strategy, plan; partnership framework

Take a Hard Look: § “Due diligence” review of proposed collaborator: § Who is this? Private or public? § Have necessary resources to launch and sustain or even expand partnership? § How strong is their commitment? § Track record? § Academic reputation? § Culture, economics, politics of country? Tip: https: //www. educationusa. info/highered. php (register and access info about foreign higher ed institutions via State Department) Code of Conduct – conflict of interest issues in selection process? Remember that service contract procedures apply

Considering Agreements Preliminary Issues § Consistency with college/university education mission § Consistency with current academic priorities § Do you have the resources to sustain a long-term commitment, including knowledgeable campus staff? § Consistency with applicable system and campus policies, e. g. : § System Travel 5. 19 § Risk Management 5. 16

Preliminary Issues § System Procedure 3. 36. 1 § Requires approval of new academic programs and locations § Review of online delivery may apply § Customized training approval process

Preliminary Issues § Code of Conduct 1. C. 0. 1 § Analysis of potential personal conflicts of interest § Unauthorized reimbursements § Unauthorized gifts § Accepting personal benefits § Using position for personal gain

Preliminary Issues § Analysis of long-term operational costs and benefits; indirect costs? § Qualified to do business abroad? § Does the plan contemplate establishing a new entity of some type? Has the OGC/AGO reviewed for legality? § Does the proposed agreement include § Detailed responsibilities § Appropriate dispute resolution/enforceability of contract provisions § Appropriate indemnification/liability language § Do activities raise other legal issues or liability risk concerns?

Areas of Legal Risk in Activities Abroad § Foreign employment/labor issues § Definition of “employee” § Taxes – payroll, Social Security § Benefits § Worker’s compensation § Appropriate visa for entry § Application of US employment laws § E. g. Title VII; ADA; ADEA Do not hire foreign workers without first consulting system legal counsel!

Areas of Legal Risk in Activities Abroad § Real Estate/Facilities § Student housing § Staff housing § Classroom space § Lab/research space § Program offices § Excursion sites

Areas of Legal Risk in Activities Abroad § Visas § Banking/cash management § Legal registration requirements § Consulted with system legal counsel? § Risk management § Insurance requirements – foreign and domestic requirements § Clery Act reporting responsibilities understood? § Transportation risk management § Crisis management planning § Liability waivers obtained

Miscellaneous Risks in Activities Abroad § Economic sanctions or boycotts § Application of US environmental laws § Are activities in conflict with US tax (exempt) status? Taxable abroad? § US penalties for having bank account signing authority without federal filing § Export control laws § International Traffic in Arms Regulations § Export Administration Regulations (EAR)

EAR: Commerce Department Limitations on Exporting US-origin, “technical data” that has dual use in commercial and military applications – broadly defined: § Information necessary for development, production or use of a covered product that is to be “exported; ” includes many types of information such as blueprints, technical drawings, instruction manuals or even intangible information such as police force training in certain foreign countries. § May need license to export.

Foreign Corrupt Practices Act VERY broad prohibition to offer, pay or even promise to pay anything of value to a foreign official for the purpose of doing business or gaining unfair advantage. Would include even a meal if the intent is to influence discretionary decision of foreign official.

IEM Considerations for International Recruitment International recruitment efforts should be part of a larger conversation on internationalization of the campus § One facet of strategic International Enrollment Management (IEM): § Also includes admissions, advising, enrollment and retention of international students.

International Recruitment § What is the institutional rationale for increasing international student enrollment? § Diversity? Financial ? Expand/deepen international collaborations? § What institutional infrastructures are required for retention?

International Recruitment § How will more international students strengthen/affect general campus internationalization efforts? § E. g. , how might their presence change approach to “internationalize curriculum? ” § Are you using current research, information on trends and developments in higher ed worldwide?

International Recruitment How Do You Do It? § Many options: § College/university employees at recruitment fairs § Recruitment tours § In-country counseling and advising providers § Faculty and international alumni outreach § Education. USA advisers and centers § Online § Virtual tours § Social media

Education. USA § US Department of State division with 170 offices worldwide § Promote US higher ed abroad § Provide impartial information to potential foreign students about US higher ed institutions to find good fit § Assist US higher ed community with recruitment and retention plans Get free Log In for access to resources at: www. Education. USA. info/highered. php

Resources on International Recruitment § ACE: American Council of Education July 2008 publication: International Partnerships: Guidelines for Colleges and Universities; Appendices at: www. acenet. org/programs/international/partnerships § NAFSA: Association of International Educators www. nafsa. org § http: //www. nafsa. org/Resource_Library_Assets/Networks/RAMA/Virt ual_Toolkit_for_Recruiting_International_Undergraduate_Students/

International Recruitment § Using foreign-based recruiters § May extend your “reach” but risk of losing control of your brand/message § Relationships critical § Contracts must detail use of college name, logo, retain complete control over promotional materials and message; not exclusive § AIRC, Hobsons International Counselor Network are two groups developing standards of conduct and certifications § The controversy: should US colleges/universities use foreign recruiters that charge a commission? § NACAC: “no” (but currently studying issue) § AIRC, others: “yes” but require standards

Study Minnesota § NEW promotional consortium of MN higher ed institutions § Sponsored by Minnesota Trade Office and US Dept of Commerce Commercial Service § Initial activity will be website: § General information about MN § Direct links to member institutions’ websites Must become member; initial annual fee: $350 First organizational meeting: June 19, 2013 at University of St. Thomas, St. Paul RSVP: David Edmiston at: david. edmiston@trade. gov, or Tim Odegard at Tim. odegard@state. mn. us for more information

Resources (Don’t leave home without us!) § Office of General Counsel § Gail Olson 651 296 -6216 gail. olson@so. mnscu. edu § Kris Kaplan 651 296 -3905 kristine. kaplan@so. mnscu. edu § Mary Al Balber 651 297 -2698 maryal. balber@so. mnscu. edu § Scott Goings 651 297 -3289 scott. goings@so. mnscu. edu