Subject: FW: Concerns (2)
To: "'Rob Horner'" <robh@uoregon.edu> Add to address book...
Cc: "'Peter B Gilkey'" <gilkey@uoregon.edu> Add to address book...
From: "John E Bonine \(UO\)" <jbonine@uoregon.edu> Add to address book...
Date: Sun, 18 Jan 2009 19:28:11 -0800
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Dear Rob (and Peter, and others, when forwarded),

Thanks for your additional thoughts. I have some reactions, which I have
interpolated below, in your text. By way of summary, let me mention a few
things that I describe below in more detail, in response to some of your
points:

1. The draft UO policy covers many more faculty members than required
by regulations.

2. The draft UO policy is much more draconian than the Stanford and
Oregon State policies.

3. Most faculty members will have to fill out the long form (unlike at
Stanford or OSU).

4. The draft UO policy will require immense work in the ORCR, leading
to work likely being done poorly.

5. Disclosure does not provide protection to faculty members, as
assumed.

6. The disclosures called for in the UO draft policy are far more
intrusive than at Stanford or OSU.

7. The requirement for an undefined "management plan" places
unwarranted power, for the first time, in the hands of administrators, to
the potential detriment of academic freedom of individual professors.

8. The "trigger" for Level 4 (complex) review is not a trigger, but a
grant of unchanneled discretion.

9. I didn't mention this below, but will here: Conflict of interest
policy is important where it is needed, and is an important concern not only
of an Administration but of the faculty. It is, however, worse than useless
if replaces a faculty culture with a top-down management culture. Attempts
to implement overly complex policies that sweep a dragnet across the campus
will drive away excellent faculty members.

10. This is a matter for faculty governance.

My specific comments are below.

John

-----Original Message-----
From: Rob Horner [mailto:robh@uoregon.edu]
Sent: Sunday, January 18, 2009 12:39 PM
To: jbonine@uoregon.edu
Cc: 'Peter B Gilkey'
Subject: FW: Concerns (2)

John
I want to both respond to your well-reasoned queries...and comply
with Peter's request that we do these discussions through him...so I have
copied him on this.

1. Disclosure Form (first four questions)
a) It is a good question to determine what proportion of individuals
can answer "no" to all four of the first four questions. In the College of
Ed, most faculty would answer "yes" to at least one question, but most
research and support staff would not.

### JOHN: I would think that research staff would ALSO
have outside interests in the community (question 1),
or spouses with outside activities (question 2) or
Principle Investigator status, wouldn't they? If so,
they would also have to file the long form.
###

### JOHN: If most faculty would answer yes, as you say,
and go to at least part of the long form, then my figure
of likely 90% involvement in the long form is a reasonable
one.
###

### JOHN: If most answer "yes" to at least one question
and we extrapolate that estimate, we have 1,800 disclosure
forms for Lynette or an assistant to review, in a time
period amounting to 42 8-hour working days (Feb. 1 to
April 1). I work that out to be average of about 40+ long
forms per day, or 5 per hour, which is 12 minutes per
form, non-stop. If there are 3,600 long forms to review,
the available time drops to 6 minutes. If she has two
persons, the time increases back to 12 minutes. That may
well lead to superficial busy-work, which could better be
spent on reviewing forms of fewer persons who put the
University at particular risk: Principal Investigators
(or co-PIs) on outside-funded activities.
###

b) Note that my understanding is that answering "yes" to one of the
first four questions does not mean you answer all the questions in the long
form, only the "expanded" questions for that question. So if you answer
"yes" for Question 1" my read is that you only answer the expanded questions
for "1.1, 1.2, etc").

### JOHN: True, but the Expanded Questions for
question 1 are nearly 5 pages long; and if you have
a professional spouse, that's another 2-3 pages.
###

2. Value of Disclosure
a) My understanding is that a core feature of the process is that if
activity is "disclosed" then there is some level of protection that is not
provided to non-disclosed activity.

### JOHN: I am almost certain that this is NOT true.
If a federal or state regulation required nothing more
than disclosure, then disclosure would be enough to
protect the faculty member. But if there is a
prohibition against conflicts of interest, disclosing
one does not act to absolve one of the violation.
###

### JOHN: If the University's General Counsel or the
State Attorney General's Office has written a legal
memo to that effect, I would like to see it.
###

You would know more about this than I do, but an important theme in this
process (like the IRB process) is that
doing nothing carries high risk.

### JOHN: Well, doing nothing is a risk if something
must be done, but not if nothing is required. We
have to ask (1) when must something be done; and
(2) what is the "something" that the regulations
actually require?
###

This is important because the natural response of a university faculty will
be to avoid ANY COI/COC activity. Unless people are clear that COI/COC (like
the IRB process) is requirement we cannot avoid, there will be a natural
disinterest in moving forward.

### JOHN: Well, if the premise of the argument is
wrong (because actually disclosure for disclosure's
sake does nothing to protect most faculty members),
then there is no reason for those persons to "move
forward" and every justification for them to avoid
record-keeping, disclosure, and management burdens.
###

3. Levels of Review
a) My message about 90% of people finding this process simple and
efficient is based on assessing the "basic" level of review, not just the
first four questions.

### JOHN: No human could complete Expanded Questions
1.1 through 1.11 in the five minutes that you
mentioned earlier.
###

If for example a 1.0 FTE faculty member (a) received less than $10k
from external sources, (b) spent fewer than 40 days away from campus on
consulting (e.g. non-grant or non-assigned activities), (c) had less than 5%
equity in an external business, (d) did not employ people who were also
his/her students, and (e) did not employ people who were also his/her staff
members... then ... their disclosure is all that is needed.

### JOHN: But "their disclosure" is not a trivial
matter as a matter of time required and intrusiveness
into private activities by professors. The draft UO
policy requires extensive disclosures from even a
person having less than $10,000 from external
sources. See para. 4.4 of the draft policy ("nearly
all outside activities require . . . approval");
there is no $10,000 exemption. See Expanded Question
1.2, which requires probing disclosure without any
minimal $10,000 floor. This goes far beyond, for
example, the requirements in Stanford University's
policy, found in the white binder.
###

### JOHN: Stanford University's policy requires
no disclosure below a $10,000 floor and ONLY requires
disclosure when the $10,000+ income comes from an
outside entity that is doing business with Stanford,
sponsoring research at Stanford, etc.
###

### JOHN: Stanford does not require any
disclosure AT ALL involving an "outside entity"
unless Stanford is contemplating approval of
"proposed arrangements between such entities and
Stanford" or the outside entity supports a faculty
member's "University teaching or research program."
See Stanford's Research Policy, "Outside Consulting
Activities by Members of the Academic Council
(RPH 4.3)," found at http://rph.stanford.edu/4-3.html
and also in the white binder in the Stanford section
under "Document 4.3," on its 5th page ("Conflict of
Interest").
###

### JOHN: Similarly, Oregon State University does not
require moving from its short form to its long form
UNLESS a faculty member's outside activity involves
"a business enterprise or entity that funds or
sponsors your university-based research or scholarly
activity" or "does business with the University" or
if the faculty member himself or herself believes
there may be a conflict of interest. The draft UO
policy differs dramatically from this common-sense
approach. I have attached OSU's short form, found on
the web at http://oregonstate.edu/research/ori/coi/shortfrm.doc
###

They have formal approval to continue without additional advanced approval
for a year, and neither the department or university are involved in further
review. The process for submitting this disclosure (especially if
the timing is matched to submission of taxes should be marginal, especially
after doing it once).

b) the proportion of individuals who require "standard" or "complex"
review will be based on the other triggers, and while the process will be
more extended (e.g. there will be a need for administrative approval
(dean/dept head), our experience is that if people know the limits they can
adjust to make this fit. Throughout the College of Education I believe we
will end up with only one person who adjusted their activity based on this
process (NOTE: Thus far we have only done 9 people...and this remains an
empirical question).

### JOHN: The old term "standard" review (now called
"Level 3 Review") is triggered by exceeding $10,000,
which requires a written "management plan." But there is
absolutely nothing in the draft UO policy that says
what a written management plan consists of, except that
it may include "monitoring, reduction and elimination."
That places vast, unchecked power in the hands of a Dean
or department head who might, intentionally or
inadvertently, not use it with sensitivity and fairness.
In addition, all management plans must be approved by
a Vice President or Vice Provost, who can revise them.
###

### JOHN: There is not actually a "trigger" at all for
"complex review" (not called Level 4 review). The ORCR
is simply given undefined and limitless power to decide
that a situation is "complex."
###

### JOHN: Adopting a plan for 1,800 employees, based
on a test run involving 9 employees in a single
department (Education) is adventurous and a train
wreck waiting to happen. I think we agree on that.
###

4. Prior Approval
a) The wording of the policy is functionally impractical and a
potential major time cost. More importantly, this would essentially create
a barrier to the external activity that is essential for the University to
be an effective player on the level of an AAU institution. So I agree that
the concept of prior approval is unwise.

That said... note that once you have submitted a disclosure and
obtained approval...you have received "prior approval" for all "similar"
activities for the next 12 months. I have gone through the COI/COC approval
process, and have NOT needed to obtain prior approval for any external
activity I have engaged in this year (given that my activities have been
fairly consistent).

### JOHN: Prior approval is among the
features of the draft UO policy that arouse
the most resentment and proper concern among
UO faculty. But management plans are also
right up there in terms of interference with
the normal functioning of this University.
###

5. Additional Information
a) Your point is well taken, and not one we have addressed in
Education. I believe adding reasonable limits would be a good addition to
the policy and something that would not be resisted. The University needs to
be able to provide a policy that documents they are monitoring us well
enough to avoid major atrocities. As long as the University is protected, I
think the policy can be modified to avoid the black hole you identify.

### JOHN: The University is NOT required to
monitor all faculty members. The policy
should be limited to what is required or
what faculty members would agree in their
Senate to be important for the integrity
of academic activities.
###


6. Standard and Complex Management Plans
a) Note that the triggers for Standard and Complex management plans
indicate if (1) the college/department must sign off (Standard) or if (2)
the college-department AND ORCR must sign off.

b) I agree that more precision in the form of the management plans
would be useful...but this is exactly what we should strive to provide
through (1) implementation with the whole College of Education, (2)
extension to Architecture and IMB.... and perhaps Law.

### JOHN: Starting to implement a requirement
for management plans is no substitute for
defining what is meant and what limits a
Dean or department head must observe. In
addition, limiting management plans to
situations that Stanford and Oregon State
cover (self-dealing by a professor with
university research and his or her outside
entity) would eliminate much of the
potential for mischief-by-management-plan.
###

7. Revisions
a) I think there are many ways we can make this policy more
transparent, efficient and effective.
b) I believe an important consideration is the extent to which we
believe this is needed. I have been convinced by Lynette's presentations
and my reviews with colleagues in other universities that this is a process
we cannot avoid, and as such we should engage to make it as logical and
efficient as possible.
c) I have found Lynette and her office to be very responsive... but
in many ways caught between pressure for urgent implementation, and a
university community looking at yet another significant sink of time/energy
into an activity that is perceived as unnecessary.
d) If we not only look at what we do not like, but clearly suggest
revisions, I think we can make this work.

8. Committee
I see the committee as having three functions
(a) Assist the University in notifying the university community that
this COI/COC is an issue we must address together (note: part of this will
be defining a timeline that allows everyone to anticipate what will be
required, and when),
(b) providing a dignified forum for submitting comments and
recommendations, and
(c) working directly with Lynette's office to implement revisions
that meet both our requirements for accountability and our commitment to
efficiency, transparency and respect for UO employees.

### JOHN: I see the ad hoc committee as
having a role in faculty governance, not
as a mere advisory committee. Any final
conflict-of-interest policy involving
financial matters should be adopted with
the assent of the University Senate, just
as the Senate did for the "conflict-of-interest
policy" (and that was its name) that the
Senate approved in 1997 involving sexual or
romantic relationships with students.
###


I have not seen these functions defined, so my perception of the
committee may be inaccurate. Personally, I am convinced we need a
disclosure process. I worry that Lynette's office has insufficient
resources to do this clearly and efficiently. I think this process should
be rolled out in stages with revisions following each stage (e.g. Let's
identify three units of the university to trial the process and report). I
think we can improve the policy and triggers, but I do not see this as
draconian an event as some. I manage a research unit with approximately a
$5 million annual budget. We are part of the $35 million annual external
funding recruited by College of Education faculty/staff. My recommendation
is that Education, Architecture and the Institute on Molecular Biology be
the first units to trial the process. From these three we should be able to
see most adaptations that are needed.

I also remain very worried about the Tech Transfer office
involvement. My experience with Chuck and Dan has been extremely positive,
but I worry about the inconsistency and evolving standards they are being
asked to implement. We are building standards that I believe punish (or at
least remove the incentives for) faculty to write books, invent new
products, establish software tools. This will have major long-term damage
for the University. I hope we look at this process to ensure that
incentives for innovation and scholarship continue.

I also think we will find it more difficult than we think to
separate conflicts of interest from conflicts of commitment (but I am
willing to give it a shot).


In conclusion: I appreciate your sense of concern and urgency. My hope is
that the comments above provide my informal understanding of where we stand.
I think we need to allow Peter and the committee to coalesce. I think we
should go through Peter per his request. Making sure all members of the
committee are operating from the same content base will be important for us
to build consensus and do our task.

Again, thank you for your concern... please let me know if and how I can be
helpful

Rob






-----Original Message-----
From: John E Bonine (UO) [mailto:jbonine@uoregon.edu]
Sent: Sunday, January 18, 2009 12:13 AM
To: 'Rob Horner'
Subject: RE: Concerns (2)

Dear Rob,

Continuing with my thinking about all this . . .

I am interested in the cut-off or trigger levels used for moving up from one
level to another, in the current and former logic tables, which you worked
out with Lynette. I am also interested in what happens for all the people
who go beyond level 1 (which I expect to be practically every faculty member
in the University.)

NUMBER OF PEOPLE WHO MUST FILE LONG FORM

I didn't suggest that 90% of people would be exempt because they could
answer "no" to Questions #1-4. I meant that if the policy were to cover
only those working as PI or co-PI on a federally funded activity, 80-90% of
people might be able to avoid submitting any information.

If the policy covers everyone, not just those with federal funds, then I
would expect that 90% of people will have to answer "yes" to questions 1
and/or 2 and must file the longer form. Question 1 requires a "yes" answer
if a faculty member earns as little as one dollar from ANY outside source of
any kind whatsoever. Thus, if a faculty member gets $50 for an op-ed piece,
$200 in royalties from textbooks, or no money at all but just an airline
ticket to speak at a conference, he or she must go to the long form.
Question 2 requires a "yes" answer for anyone who has a partner, parent,
child, brother, or sister who works in a field "related to" one's "field of
academic expertise." Apparently any law professor married to a lawyer would
be caught by Question 2, for example.

In fact, serving on the board of directors of the Eugene Opera would require
a history professor to file the long form ("significant relationship" with
an "outside entity"). I am quite certain that 95% of faculty members would
have to file the long forms.

DISCLOSURES REQUIRED IN LONG FORM

Filing the long form elevates faculty members to at least "Level 2 Review,"
which requires what the logic table calls "formal 'prior approval'"). Thus
even a person with much less than $10,000 in non-UO income -- for example, a
person who had travel reimbursed by another university or who made $500 in a
consultation -- would have the ORCR go over the name of, and amount received
from, every outside client, as well as the nature of the activity.

APPROVALS

Although for some purposes, ORCR plans to approve activities on a routine
(almost rubber-stamp) basis, the draft policy is quite explicit that an
activity cannot take place without such approval: "Nearly all outside
activities require . . . approval . . . prior to initiating the activity."
(Page 5.) That is a stunning change in University culture.

ADDITIONAL INFORMATION; INTERFERENCE WITH ACADEMIC FREEDOM

ORCR could request additional information from the faculty member beyond the
disclosure already made. However, there is no limitation or guidance
whatsoever on what ORCR could ask for; there is no practical protection
against further information being asked of those who take politically
controversial positions in the university, or who irritate members of the
Administration or outside persons in Oregon who have an axe to grind.

WRITTEN PLANS AND UNDEFINED "COMPLEX" ACTIVITIES

$10,000 in non-UO income bumps a person up to Level 3 review, which involves
a written management plan. Furthermore, "highly complex" outside activities
require that the management plan be reviewed by a separate committee. (The
logic table broadens this to be "complex" outside activities.)
Unfortunately, the draft policy does not explain what this term means and
leaves it entirely in the hands of ORCR to decide that an outside activity
is "complex."

-------------

I really do seek your guidance and understanding on these things. Have I
made some mistakes in this analysis?

Thanks,

John

> -----Original Message-----
> From: Rob Horner [mailto:robh@uoregon.edu]
> Sent: Saturday, January 17, 2009 8:00 PM
> To: 'John E Bonine (UO)'
> Subject: RE: Concerns (2)
>
> John
> Peter has asked that we do these discussions as a group... These
> are
> great questions on your part, and I look forward to working with you on
> this. As a start, I agree that 90% or more of the people being asked
> to
> disclose will not need to do more than question 1-4... a 5 min task.
>
> Thanks again for building the list of concerns
>
> Rob
>
> -----Original Message-----
> From: John E Bonine (UO) [mailto:jbonine@uoregon.edu]
> Sent: Saturday, January 17, 2009 7:01 PM
> To: 'Rob Horner'
> Subject: RE: Concerns (2)
>
> Dear Rob,
>
> Let me talk about the four questions in the basic form. We eliminate
> #4
> since it is about COC, not COI.
>
> Next, let's focus for a moment on just those persons who are involved
> in
> receiving or performing under federal grants or contracts. Since those
> are
> the persons I want to think about first, I would say that Question #3
> in the
> disclosure form (Were you the PI or co-PI on any UO sponsor funded
> activity?) would be changed to whether a person was a PI or co-PI on
> any
> UO-related activity involving federal grant or contract funds. That
> question would, furthermore, become a preliminary question, separate
> from
> all others.
>
> If the answer is no, then Questions #1 and #2 are irrelevant for
> initial
> screening purposes, and there is no need to certify. That may
> eliminate 80%
> or 90% or 95% of university faculty members from going past revised
> Question
> #3.
>
> One could then go further, and not require annual certifications frm
> those
> persons at all. In that instance, a person involved in a UO-related
> federal
> grant or contract as a PI or co-PI would simply be informed that he or
> she
> has an annual certification duty at the time of contract or grant
> award. In
> addition, to help the University keep its skirts clean, such persons
> would
> receive an annual reminder that their certifications are due.
>
> Getting rid of annual certifications (except perhaps for those with
> federally derived research funding), it seems to me, would eliminate a
> huge
> workload at ORCR (and consequent need for expanded staff there) and
> would
> eliminate a huge amount of the controversy in the University.
>
> If, as Lynette says, our first concern must be with not getting
> involved in
> horrific federal audits and potential federal fines, then it would make
> a
> lot of sense to address that immediate problem first on a university-
> wide
> scale. In other words, the concept of annual certification would be
> test-driven across all university departments, rather than only in
> Education. Why wouldn't that make a lot of sense?
>
> John
>
> >

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