I look forward to our meeting today, even though my participation will be by
speakerphone. I am in Texas, headed for San Diego after the call.
I have been trying to sort through in my mind the issues involving what
policies the University of Oregon should adopt regarding "conflicts of
interest" and "conflicts of commitment." Here are some preliminary
thoughts.
- 1. "Conflicts of interest" are different from "conflicts of commitment"
and should be handled differently. I believe that we should have two
separate policies: one for "conflict of commitment" (COC) and one for
"conflict of interest" (COI). These are quite separate things and I intend
to start to referring to them separately, rather than with the combined term
"COI-C." Lumping them together creates confusions regarding appropriate
disclosures by professors, regarding appropriate restrictions, and regarding
who should be empowered to make decisions within the university. I will
address these matters more in a later paragraph.
- 2. Professors and their schools and departments (that is, the
faculties), as well as external funders, do have an interest in ensuring
that individual university faculty members and administrative staff not have
improper "conflicts of interest" that may improperly influence research
activities or the administration of the university.
(Note that I refer to the collective interest of the faculty, rather than to
the interests of an abstraction called the "university" or even the
management or "administration" of the university. I believe that professors
are as invested in preventing improper conflicts of interest or commitment
as are persons in the Administration.)
- 3. At the same time, individual faculty members have a protectable
interest in their own autonomy regarding teaching and research. That
autonomy is at the core of academic freedom. It can be imperiled by
improperly drawn policies on conflicts.
The AAUP's document, "Faculty Employment Outside of the University:
Conflicts of Commitment (2004)" (updated 2006),
http://www.aaup.org/AAUP/protect/legal/topics/conflicts.htm?PF=1, written by
then-AAUP Counsel Donna R. Euben, contains much useful analysis and many
references.
- 4. Sensitive and effective policies must reconcile or mediate between
collective faculties' (and outside funders') interests in preventing
improper conflicts and the academic freedom and autonomy interests of
individual faculty members. I do not see that the proposed draft policy
does that, instead seeking a primarily managerial goal for the sake of
centralized administration of the university. An important aspect of
faculty governance in our university is that professors are inclined to pay
attention to both sets of interests.
- 5. Some additional interests are "hard-wired," so that a policy seeking
to reconcile or mediate between (1) the faculty's collective interests (and
those of funders') and (2) the individual faculty members' interests cannot
be allowed to result in violation of policies protecting those interests.
These additional interests include, for example, state laws and policies
protecting confidential information of individual faculty members.
Improperly drawn policies on conflicts can violate those laws and policies
protecting individual privacy and confidentiality.
- 6. Policies regarding conflicts of commitment also cannot be allowed to
result in violation of other state policies -- such as the state policy that
completely exempts work done on personal time from coverage of university
policies.
- 7. It is essential that the legal requirements on all sides be clearly
set out and understood, before moving into the realm of reconciliation or
mediation between the University's (and funders) interests and those of
individual faculty members.
- 8. As mentioned above, it is also essential that certain key values
(such as academic freedom, accountability, and devolution of decisionmaking
to the lowest level) be identified before designing conflict of interest or
conflict of commitment policies.
- 9. Conflict of commitment: One important aspect of keeping conflict of
interest policy separate from conflict of commitment policy is that they
should be handled in different ways. Conflict of commitment policies
probably do not need to have anything to do with money at all, whereas
conflict of interest policies do.
I cannot imagine any reason whatsoever for having a centralized office for
"responsible research" to be responsible for keeping track of whether we are
devoting the necessary amount of time and attention to our various
university duties. This is a matter best handled within individual schools
and departments that understand the culture of the particular discipline.
Whether we are "committing" our time inappropriately such that it impairs
our performance of university duties can best be judged by departmental
faculties and their deans, not by some person with no faculty experience.
For that reason, reporting our consumption of "faculty time" for outside
activities to a generic research office somewhere on campus makes no sense
at all. I will give one example: it is the culture of law faculties that
publishing textbooks is a normal scholarly activity. But those who drew up
the policy said that writing textbooks was not appropriate unless
"specifically required" by an employment contract. That level of thinking,
even if we excise the words from the policy, might well be applied in
reviewing reports. That, in turn, will pile obligations on deans or faculty
members to dispute those judgments, which might end up going in front of a
committee that doesn't understand law school faculty culture and
expectations at all. There is just no reason for such judgments to be made
outside the law school in the first place.
- 10. Conflict of interest: Many of the same considerations for devolution
and effective administration suggest to me that conflict of interest
policies also need not involve a centralized office that monitors every
professor in the university.
As for details, although I understand the need to take account of how money
can improperly affect a faculty member's research agenda, I wonder whether
we should consider how authorized funding can ALSO have such an effect. I
would go further and note that the work that people do is shaped as much by
their ideology and social contacts as by their financial interests. Should
a geology professor take trips to Monaco with the head of a coal company,
even if each pays her and his own way? Should she have to disclose even if
the company president with whom she spends time cavorting on the beach is
different from the one funding her department? What about biology
professors who accept the companionship of the golf course or Caribbean
cruise and talks with chemical company scientists about risk analysis, in
which the company scientist emphasizes that dioxins are everywhere, so why
not spend time on REAL issues of social importance such as cigarette smoking
instead of futzing around researching adverse health effects of dioxins?
- 11. As an alternative to annual "certification" by each faculty member
that he or she is engaged in no conflicts of commitment or conflicts of
interest, I am thinking that deans and department heads should issue an
annual reminder to their own faculty members that they should not engage in
outside consulting during the work week (M-F) that takes up more than 20% of
their time, and that such outside work should be supportive of their
functions in teaching, scholarship, or university service. This would
adequately respond to the request (and it was nothing more than a suggestion
from them) of the Internal Audit Division of the state's higher education
system for filing annual disclosure forms. (The Director of the Internal
Audit Division already told me that this suggestion did not have to be
followed by the University.) So in order to have a response that provides
SOMETHING annually, I would put the burden on the deans and department
heads, rather than the professors, and make it a reminder instead of a
self-reporting and certification requirement.
These are some preliminary thoughts. I hope that we may look at these
policies afresh, examining fundamental assumptions, and not merely tinker
around the edges of the proposed draft.
John
**************************************
John E. Bonine
Professor of Law
Dean's Distinguished Faculty Fellow
1221 University of Oregon
Eugene, OR 97403 USA
+1-541-346-3827