CONFLICTS OF INTEREST AND CONFLICTS OF COMMITMENT
“Conflicts of Interest and Commitment”, Chapter 2, Scholarship, pp. 55-60 in Higher Education Law - The
Faculty, by Steven G. Poskanzer., The Johns Hopkins University Press, Baltimore and London, 2002.
Reprinted with permission.
Our discussion of the legal principles applicable to faculty as researchers would be
incomplete without brief mention of these two common snares that scholars seek to
avoid. In the words of the former president of Rensselaer Polytechnic Institute:
Conflicts of interest arise when faculty members have financial or other interests in
a business or organization that mitigate against their making impartial decisions.
Conflicts of commitments are those situations wherein members of the university
community become so involved in a commercial [or outside] endeavor that they can no
longer do justice to their academic responsibilities, either in terms of time, or in terms of
free, open, and complete sharing of scientific information and discovery. 140
Either type of conflict-and sometimes even perceived conflicts-can create legal disputes
between faculty and their institutions and do serious harm to both.
Within a research setting, conflicts of interest arise most frequently in connection with (1)
external funding arrangements and (2) efforts by individuals and institutions to exploit
faculty scholarship for commercial gain. 141
For example, classic conflicts of interest may be presented when a company sponsors
faculty research in areas directly related to its products or if faculty members have direct
financial interests in companies that fund their work (e.g., owning a substantial block of
stock, holding a position as a director or a part-time employee). Of course, the more
controversial the sponsor or the field being studied, or the greater the financial rewards at
stake, the more likely that such relationships will be questioned. Even relatively mundane
scholarship is vulnerable to conflicts of interest, however. Efforts to develop fluffier
popcorn that are funded by a grain company should demand the same scrutiny as research
on the efficacy of gun control laws that is funded by a firearms manufacturer.
The pursuit of research support and commercial profit also create other temptations
properly labeled as conflicts of interest. Is it appropriate for faculty to assign their
graduate students or postdocs to research projects from which the advisor expects to reap
financial rewards, either in the form of future funding streams or higher stock values?
What about using university facilities to conduct scholarship that benefits third parties or
faculty in their "nonuniversity" capacity? One could argue persuasively that both of these
are equivalent to (and present just as much of a conflict as) a researcher receiving a more
generous level of corporate sponsorship. Faculty who are asked to review panels
selecting grant recipients face yet another variety of conflict of interest. If the reviewer
has a direct or indirect financial stake in the review's outcome (for example, if publicizing
a research breakthrough might drive down the value of his own start-up company)
perhaps additional safeguards (disclosure, recusal) are called for.
The underlying fear with any of these conflicts of interest is that the financial links
between scholars and sponsors or between scholars and for-profit businesses will warp
faculty members' research and teaching. The pursuit of more funding or higher royalties
could subtly influence the selection of research topics. At the extreme, research subjects
might even be chosen on the basis of marketability. It is, after all, much easier and
quicker to measure market demand than to gauge true intellectual significance. Conflicts
of interest also threaten the integrity of faculty research. Might not a scholar with a
conflict of interest keep following an unproductive avenue for longer than necessary
(perhaps without even recognizing this) because, if fruitful, it stands to make him and his
sponsor wealthy? Faculty with conflicts of interest may seek to soft-pedal their
conclusions to avoid unnecessarily antagonizing a funding source. Even more
perniciously, they may be tempted to delay or withhold findings that are inconsistent with
their own and their sponsors' financial interests. Fortunately, both educational institutions
and individual scholars are vitally concerned with research integrity. This is why many
conflict-of-interest policies include powerful affirmations of the need for rigor and
openness in conducting research.
It is important to reiterate here that faculty are not alone in trying to avoid or minimize
conflicts of interest. Since research funds and royalties from technology licenses
regularly flow through-and in part to-institutions, as corporate entities colleges and
universities face similar risks of allowing financial arrangements with third parties to
subvert the achievement of their missions. The promise of external funding for future
profit can affect decisions about new programs, the number of faculty slots, salaries, and
promotions just as it can shape a scholar's choice of topics. Sometimes institutional
conflicts of interest are layered on top of individual ones-as when a university and
members of its faculty each own part of a company formed to exploit those scholars
research. If the employer and the employee share the conflict of interest, ordinary
safeguards against biased or flawed decisions (e.g., the decision to reappoint an assistant
professor whose scholarship is undistinguished but whose work is of great value to the
jointly owned firm) may be ineffective.
In recent years federal agencies have also become very concerned about conflicts of
interest involving government-funded research. Both the National Science Foundation
and the Public Health Service now require all institutions receiving federal funds to have
in place written financial conflict-of-interest policies and enforcement procedures
meeting detailed criteria, such as obligatory disclosures by "investigators" (the definition
of which includes the employee's spouse and dependent children); the designation of
institutional officials responsible for collecting and reviewing faculty disclosure
statements and determining whether conflicts exist; the specification of actions the
college or university will take to manage, reduce, or eliminate conflicts; comprehensive
record-keeping requirements; and provisions for agency access to such institutional
records. Given tight federal; funding for science and the government's understandable
desire to account fully for all expenditures, it is safe to assume that federal efforts to
avoid conflicts of interest in sponsored research will escalate.
Beyond the direct harm done to the work of individual scholars and institutions by
financial conflicts of interest, the potential damage from the mere appearance of
impropriety must also be noted. As highly visible (and inevitable controversial) charitable
institutions, colleges, universities, and their denizens must pay careful attention to public
perceptions of their activities. Even if no monetary gain actually results from a conflict
situation, external audiences will all too readily assume that funding sources or the lure of
commercial opportunities improperly influenced academic decisions. The end result may
be much different than if something untoward had really occurred. Unrealized conflicts
are nevertheless damning because they demonstrate that the institution and the faculty
member in question failed to consider (or worse, didn't care enough to protect) their
reputation.
As distinguished form conflicts of interest, conflicts of commitment have less to do with
financial ties than with appropriate use of one's time and the need to maintain scholarly
focus. Conflicts of commitment arise most frequently in connection with faculty
members' consulting work in the area of their academic expertise (though conflicts are
also created by extensive government service, significant leadership posts in professional
societies, journal editorships, and even moonlighting in an unrelated business). Colleges
and universities try to resist conflicts of commitment because of a conviction-which has
by now become an honored tradition-that faculty owe their primary allegiance to their
home institutions and should carry out the bulk of their professional efforts under its
auspices. Quite understandably, institutions want to get a full salary's worth of time and
effort from their faculty employees.
Institutions typically regulate both conflicts of interest and conflicts of commitment by
promulgating official policies, which then become part of the employee contract with
individual faculty. (Recall here that some minimal legal formalities, such as referring to
these policies in an appointment letter, inclusion of the policies in a faculty handbook,
and notice of any changes in the policies, must be observed in order to make them clearly
binding upon faculty). Faculty who violate such policies can be disciplined (even
dismissed) or sued for breach of contract. Conflict-of-commitment policies, for example,
ordinarily prevent faculty from simultaneously holding tenured (or otherwise
inconsistent) positions at two different colleges or universities.
Courts have unambiguously upheld conflict-of-commitment policies as appropriate and
enforceable provisions of faculty employment contracts. In Kaufman v. Board of
Trustees, a federal trial court upheld a rule prohibiting full-time faculty at the City
Colleges of Chicago form holding concurrent full-time positions with other employers.
The court Opined that such a rule was a rational and legitimate means of ensuring that
faculty "devote their primary loyalty and attention to their duties as employees of the City
Colleges." In Marks v. New York Univ., a clinical professor of business at NYU was
lawfully discharged when, in direct contravention of that university's conflict-ofcommitment/external-employment policies, she began working full-time at Fordham
University. And in Gross v. University of Tennessee, a federal appellate court agreed that
the university's College of Medicine could, in an effort to "limit the faculty's outside
private practice and thus to foster greater devotion to teaching responsibilities," require
faculty to sign written agreements turning over to the institution external earnings above
a certain threshold. Properly adopted and reasonably understandable conflict-of-interest
policies would be accorded similar deference by judicial authorities.
Although conflict-of-interest and conflict-of-commitment policies will of course vary in
scope and content across institutions, it is possible to identify some broad themes that
characterize such rules. One definite trend is for colleges and universities to require
faculty to disclose (to their department chair or even dean) any external relationships or
obligations that might give rise to either kind of conflict. Indeed, well-crafted policies
will urge faculty to make such disclosure whenever they are uncertain about the propriety
of their behavior. In the words of the University of Chicago's policy, "Disclosure is a key
factor in protecting one's reputation and career from potentially embarrassing or harmful
allegations."
Conflict-of-commitment policies typically affirm in sweeping language the benefits to
individual scholars and their institutions of outside work. These would include
opportunities for intellectual regeneration, identifying new research topics, exposure to
"real-world" issues that can improve teaching, and connections that may lead to jobs for
students, in addition to more obvious financial rewards. At the same time, however, most
conflict-of-commitment policies set clear and unequivocal limits on how much time
faculty can spend consulting. One day in seven (i.e., no more than one day per week) is
the traditional industry standard.
In contrast, overt restrictions on conflicts of interest are much less common. Under many
if not most policies, conflict-fraught activities may still proceed with the prior approval of
disinterested superiors. This makes sense because the value to society of the research or
other activity in question may far exceed the dangers associated with the conflict. Once
aware of a conflict, institutional authorities can also minimize its impact-for example, by
publicly disclosing information that might be controversial. Only the most egregious
conflicts (e.g., a faculty member who is conducting clinical trials on a drug also owns
stock in the company that manufactures it) would automatically invoke extra safeguards
or possibly be banned outright. However, institutions have imposed dollar limits on
financial conflicts to minimize both the temptation to make (and the appearance of
having made) improperly motivated decisions. Along these lines, a highly publicized
sponsored biomedical research agreement between Washington University and the
Monsanto Corporation provided that yearly funding from the company could not exceed
7 percent of the medical school's total research budget. Finally, an increasingly common
response to conflicts of interest is the use of independent institutional (or even external)
oversight committees to ensure research integrity. Many conflict policies now explicitly
provide for the appointment of such panels at the discretion of relevant college or
university authorities.
REFERENCES
141. Wygant v. Jackson Bd. Of Educ., 476 U.S. 267 (1986).
142. 78 F.3d 932 (5th Cir. 1996), cert denied, 518 U>S> 1033 (1996).
143. United Steelworkers v. Weber, 443 U>S> 193, 209 (1979).
144. But see Hill v. Ross, 183 F 3d 586 (7th Cir. 1999), discussed infra, for a statistical
argument casting doubt on the use of departmental hiring pools as a valid basis for
affirmative action plans.
145. United Steelworkers, cited in n. 143, at 208.
146 Bakke, cited in n. 140.
147. They may also lack the legal standing to sue, if they have suffered no harm
themselves.
148. Even institutional affirmative action plans are most unlikely to state that clear
preferences will be given to minority candidates.
149. 930 P.2d 730, 735 (Nev. 1997), cert. Denied, 523 U.S. 1004 (1998).
150. Ibid.
151. Wilson v. State Personnel Bd., No. 96CS01082, slip op. (Cal. Super. Ct.
Sacremento County Nov. 30, 1998).
152. P. Schmidt, "Cal. Vote to Ban Racial Preferences Sparks Lawsuits, Protests"
Chronicle of Higher Education, November 15, 1996, A35 and "California Judge Upholds
Law Allowing 2-Year Colleges to Use Hiring Preferences," Chronicle of Higher
Education, December 11, 19987, A52.
153. Ready v. Bd of Regents, No. 97-C-0310-C (W.D. Wis. July 28, 1999), appeal
dismissed, December 27, 1999; A. Scneider, "Federal Judge Rejects Race-Based Hiring
at U. of Wisconsin at La Crosse," Chronicle of Higher Education On-Line, July 30, 1999.
154. Hillv. Ross, cited in n. 144. Note that despite their anti-affirmative-action
outcomes, in neither of these Wisconsin cases was the campus's plan invalidated.
155. Ibid., at 591-92, quote on 592.
156. J. Selingo, "U. of Texas Ends Minority-Hiring Plan," Chronicle of higher
Education, January 15, 1999, A38.
157. S. Nasar, "New Breed of College All-Star; Columbia Pays Top Dollar for
Economics Heavy Hitter," New York Times, April 8, 1998, D1; A. Schneider,
"Recruiting Academic Stars: New Tactics in an Old Game," Chronicle of Higher
Education, May 29, 1998, A12.
158. R. Wilson, "By the Numbers," Chronicle of Higher Education, June 30, 1995, A15
(Mercy College Links salaries to enrollment for one year); K. Magnan,
"Georgetown U. Kills Controversial Program for Setting Medical-Faculty Salaries,"
Chronicle of Higher Education On-Line, March 1, 1999 (plan in effect for almost two
years had tied salaries to amount of grants received).