Legal Issue-Spotting in International Collaborations

1. 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

2. OVERVIEW • Policy and Other Threshold Considerations • Spotting Specific Legal Issues • International Recruiting

3. Board of Trustees 2010-2014 Strategic Plan MnSCU 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.

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

5. 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 MnSCU campuses for international clientele

6. Put Globalization into ContextA 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

7. 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

8. 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

9. Considering AgreementsPreliminary 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

10. 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

11. 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

12. 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?

13. 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!

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

15. 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

16. 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)

17. 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.

18. 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.

19. 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.

20. 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?

21. 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?

22. International RecruitmentHow 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 • EducationUSA advisers and centers • Online • Virtual tours • Social media

23. EducationUSA • 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.EducationUSA.info/highered.php

24. 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/Virtual_Toolkit_for_Recruiting_International_Undergraduate_Students/

25. 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

26. 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

27. 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