Conflict of Commitment Scenarios
CONFLICT OF COMMITMENT SCENARIOS
Scenarios to Accompany The UCLA CALL, Appendix 19
Planning a sabbatical, Professor Apia writes to her close friend Professor Bolton who teaches at Crump University with whom she has had a continuous and productive intellectual dialogue since graduate school (sharing manuscripts, editing each other’s work, brainstorming new ideas). Professor Apia asks if Professor Bolton can arrange for her to be in-residence during her quarter sabbatical. Professor Bolton responds enthusiastically that he will get her access to the Rare Books Library where manuscripts that will be relevant to her work are housed, and that it would be wonderful if she would present a colloquium to Professor Bolton’s colleagues while there. He further indicates that he thinks he can get his University to pay airfare and ground transportation for the talk she will give; and perhaps a week of per diem expenses if she will be available for a week of consultations with various graduate students interested in her work.
Comment: Being “in-residence” at another University, using their unique research materials there, and giving one or several talks as a freestanding lecturer or as a guest in a class that serves Professor Apia’s own sabbatical intellectual goals is fine and consistent with the sabbatical. Reimbursement for actual travel is permissible. Please note all this as an addendum to your sabbatical plan.
Professor Bolton calls back to say that there are three graduate students who have studied Professor Apia’s recent book and that it would be mutually advantageous if she would teach a semester methodological seminar to this group for credit; others would probably enroll as well. Professor Bolton indicates that he can arrange to have her paid $7,500 to defray living expenses while in-residence but that IRS, Social Security, and accounting rules require that it be paid as wages rather than as a lump sum reimbursement of living expenses. Professor Apia responds that all this would be excellent and will help advance her own scholarly plans so she agrees but does not inform anyone in her department.
Comment: Teaching a seminar as the instructor of record or as a co-teacher is not consistent with a sabbatical and APM 025. Because it may further her academic goals for the sabbatical, Professor Apia may seek APM 025 prior approval and chancellorial approval as to this change in sabbatical plans. APM 740-19 on sabbaticals provides that:
“sabbatical leave shall not be used as a means of augmenting personal income. Except as provided in APM 025 and 740-18, an individual shall not accept gainful employment during a sabbatical leave...”; except this does not apply to “the acceptance of a fellowship, personal grant or government sponsored exchange lectureship…if such acceptance promotes the accomplishment of the purpose of the leave and is approved in advance by the Chancellor” (here a fellowship is “in recognition of the individual’s distinguished achievement without stipulation as to work or service”).
When Crump University’s paperwork for her teaching appointment arrives two weeks before Professor Apia’s sabbatical begins, it provides that (1) Professor Apia will be given a title “Scholar-in-Residence;” (2) in any publication resulting from the research she conducts while in-residence, she must identify her primary affiliation as Scholar-in-Residence at Crump University; and (3) she must sign Crump University’s standard intellectual property agreement (which may or may not have substantial consequence as her work involves copyright, but were she a scientist would create a clear conflict with UC’s patent policies). Professor Apia goes to her Chair, chagrined at the problem that has now been created with her good friend Professor Bolton because she did not earlier seek prior approval.
Comment: (1) Intellectual Property: UC enforces its intellectual property rules and a faculty member may not sign another institution’s intellectual property agreements without review by the UCLA Office of Intellectual Property and Industry Sponsored Research.
(2) Attribution: Under APM 025, a faculty member must identify UCLA as his or her primary appointment.
(3) Title: Under APM 025, any title at another institution must convey that it is not the faculty’s primary title. “Visiting” works best.
II. No Teaching Quarter
Your department requires that you teach four classes a year. Because you teach essential introductory and advanced sequenced courses, you have to teach in the fall and spring quarters; and by teaching two classes each in the fall and spring you have arranged for a non-teaching quarter in the winter. In addition for that year, you have two doctoral candidates one of whom is aiming to submit and defend her dissertation in April for a June graduation. In addition, you are on your department’s Graduate Admissions Committee which has its busiest work in the winter quarter. Faculty meetings in the last two weeks in January are scheduled to take up a Departmental Eight Year Review as well as the proposed appointment of a tenured faculty member in your field. In addition, a long-time collaborator in Paris also has the winter quarter off and has proposed that you travel to his lab in the winter to complete a long-term project that the two of you have been working on and that you expect will constitute a major advance in your field.
Comment: Under APM 025, you have an obligation to be in-residence on campus in every quarter and to satisfy your obligations in teaching and service to the department and University. You believe that developments in electronic communications in the last fifteen years, permitting daily email and voice/face interactions from Europe, should alter the meaning of “in-residence.” Nonetheless, to be absent from campus for more than a week, you will need to seek a Leave of Absence from your department under APM 758. In order to fulfill your obligation to your colleagues, you plan to attend the faculty meetings in person. To fulfill your obligations to your graduate students, you establish a plan to Skype with them weekly or more often. To fulfill your obligations to the Graduate Admissions Committee you discuss with the Committee Chair the possibility of reading applications online and arranging Skype interviews; when this proves impractical you discuss with your Departmental Chair the possibility of your chairing that committee next year and this year substituting on the committee another qualified colleague (who served last year as well) who is agreeable. With this plan in place, you submit a Leave of Absence form for a Leave with Pay under APM 758 for your trip to Paris, to your Chair for approval and forwarding to the Vice Chancellor Academic Personnel.
III. Training of Others
Using your knowledge from your field of research, you agree to teach over spring break in a one week course offered by some entity, Monday to Friday 9am to 9pm each day. The entity may be a governmental program that trains officials and NGO’s, a company that provides continuing professional education credits, a medical instrument device company that trains others in the technical use of a machine, etc. etc. You are paid nicely; you are away only during an intercession; you are listed in the brochures as being a UCLA professor; you don’t generate any new intellectual property; your expenses are all paid to a beautiful lake resort, where the class is held. Which category is this and what reports do you fill out? While persons may disagree over how to categorize this activity (teaching, industry workshop etc.), it is easiest to treat this as consulting. List it on your year-end report, and subtract the number of days spent (five work days) from your 39 day limit (as a 9-month employee).
IV. Founding a Company
A faculty member and his colleagues disclose a new invention to the Office of Intellectual Property & Industry Sponsored Research (OIP-ISR). OIP-ISR evaluates the invention, decides there is commercial potential, and proceeds with seeking intellectual property protection. Then one of the two alternatives follows:
A.1 The faculty member becomes part of a team that is interested in forming a new company to further develop the technology and bring it to market. The team engages an attorney to incorporate the company (or form an LLC) and the faculty member and the other team members receive shares in the company. A representative from the company (not the faculty member or other UC employee) approaches OIP-ISR to secure a license to the University’s intellectual property. The faculty member uses his or her scientific expertise to provide input on developing the company’s business plan, attends meetings with potential investors and partners, and helps in the writing of an SBIR/STTR (Small Business Innovation/Tech Transfer) grant for the company.
Comment: The faculty member needs prior approval under APM 025 as a Founder.
A.2. An entrepreneur approaches UCLA with interest in commercializing the technology, meets with the faculty member, and suggests that they should form a new company to further develop the technology and bring it to market. The entrepreneur approaches OIP-ISR to secure a license to the University’s intellectual property. The entrepreneur engages an attorney to incorporate the company and the faculty member receives shares in the company in exchange as consideration for his or her future equity involvement, including providing input on the business plan, attending meetings with potential investors or partners, and helping the company in writing an SBIR/STTR grant.
Comment: If the time commitments involve “sustained involvement,” prior approval would need to be obtained. Founding or co-founding a company to bring to market the product of your research is consistent with various UC entrepreneurially-oriented initiatives. Nonetheless it represents an undertaking that can create substantial time demands on a faculty member and may interfere with teaching, research, and service (such as obligations to be on campus and engaged with colleagues and students). During the start-up period, time demands can be substantial so prior approval in founding a company must be obtained with a plan submitted that will minimize demands on time etc. But, in the alternative, because there may be a period in which all that happens is an occasional meeting with a lawyer and the filing of incorporation or other founding papers, the APM 025 FAQ’s require prior approval only for active and sustained involvement. Any ongoing effort to interest investors would satisfy that standard. Once a company is operating however, the demands of a company can be minimized by hiring administrative officers such as CEO, CFO, and Chief Scientific, Medical, or Information Officer. In addition to resolving a prior approval requirement to serve in such an administrative capacity, it might also make it easier to comply with the 39 day/48 day limit.
A faculty member decides to incorporate a company to commercialize a new invention that he/she has conceived. The faculty member doesn’t initially disclose the invention to OIP-ISR, wishfully believing that it wasn’t developed with the use of UCLA funding or resources, and falls outside the scope of University employment. [Note: as a condition of employment, UCLA employees must disclose all potentially patentable inventions to OIP-ISR]. When the University finds out, it makes a determination that UCLA has rights in the invention; and the new company negotiates an option to license the University’s intellectual property. The company is virtual, having no facilities of its own to develop the invention. Rather than the company sponsoring research in the faculty member’s laboratory, either directly or via a sub-award on a SBIR/STTR grant (subject to COI review), the faculty member uses other UC administered funding and resources to further advance the technology.
Comment: This constitutes a serious breach of policy as it involves impermissible use of public resources for private gain and conflict of interest.
V. A Faculty Member’s Engagement in an International Collaboration and UC International Agreement
Teaching or engaging in research at institutions abroad involves many of the same principles and policies as doing so in this country. But differences can arise. Often special opportunities to collaborate or to access unique resources at a foreign institution require more extended or formal university relationships, greater amounts of money if stipends are given, and different and possibly less flexible (at least upon initial inquiry) ways of structuring a relationship, including titles and intellectual property issues.
While sometimes the relationship through which the faculty may collaborate is individual, at other times there may be a UC interest in fostering an exchange or relationship with a particular foreign institution. Sometimes this UCLA interest is inchoate and a faculty member seeks an affiliation preliminary to a more formal institutional relationship or submits an individual application for grant or contract support. But sometimes the proposed relationship serves the express interest of the University and is with the encouragement of a department or ORU; and sometimes it is expressed in a UCLA-adopted memorandum of understanding, in which case the terms of the MOU establish the terms of the faculty member’s relationship.
Alternatively, faculty may enter into a Category II consulting relationship with an international institution as an Outside Professional Activity. But such a relationship cannot involve an academic title or involve teaching, or administrative or managerial responsibilities. The time involved may not exceed the allocated consulting days under APM 025. And it may not involve extended trips during the school term when a faculty member must be in-residence.
Comment: Given the multiple issues here, please contact your Chair, Dean, or APO to discuss relationships that may give rise to a Conflict of Commitment as well as other issues related to international agreements, licenses and special permissions, national security information, and visas.
VI. Creative Productions
Professor Flora Bydesine is a member of the Theater Department, specializing in set design for musical theater. To advance in her field, she needs to show, among other things, that her work is recognized through commissions for well-reviewed shows. Recently she has been asked to design the set for a major production, in London, of a new show by Stephen Soundalot, the most respected composer/lyricist in musical theater. Her compensation for this commission will be considerable. Professor Bydesine proposes to do most of the work during the summer and has sought one ninth summer support from her school; but she will have to fly back and forth to London regularly as opening day approaches on December 1st. She will do a fast turnaround on one of these trips over the Veterans Day holiday weekend, requiring her to reschedule one class; but one of those trips will require that she be away from campus for at least 10 days, leading her to alter her syllabus to eliminate one week of class. In October, as she is about to purchase her plane tickets via UCLA Travel Services, she pauses to wonder what are her obligations under APM 025 etc.?
Comment: As an historian needs an archive and a particle physicist needs a cyclotron, a set designer may need an opera or other production to stage her work and to obtain external professional evaluations of her work. While Universities may offer such productions themselves, they are often driven by student educational needs and they don’t offer the opportunities for external critical evaluation. That Professor Bydesine will be well paid for the expression of her creative work (essential for her academic appointment) is, under the revised APM 025, irrelevant. While early conceptual development of set design may, arguably, be a Category III activity (APM 025-10.a(3)d (“Developing scholarly or creative works”), the implementation constitutes consulting activity (APM 025-4.d “Outside consulting is one type of Outside Professional Activity. It is defined as professional advice or services related to the faculty member’s field or discipline, whether compensated or uncompensated, that furthers the interests of an entity outside of the University of California”) and as such is a Category II activity (APM 025-10.a(2)(c) [“Providing outside consulting services or referrals or engaging in professional practice as an individual or through a single-member professional corporation or sole proprietorship”]). Accordingly, she must report on her year-end APM 025 report, the number of days she has spent on this project and they may not exceed (in addition to any other Category I and II activities she engages in) 39 days during the academic year and one day/week over the summer (if she is receiving a ninth summer pay).
With respect to the time away, to be away from campus for less than one week, a Chair under APM 752 can grant the leave “to attend a professional meeting or for University business.” However for more than 7 calendar days, she will need to apply to her Chair for a Leave of Absence under APM 758 for leave for good cause or, for a longer leave, under APM 759.
As to shortening the syllabus or eliminating classes, this is not permitted; she will need to schedule make up classes, teach a class by Skype, or find a faculty member to fill in for her in class (but the class may not be turned over to a TA or student to oversee).
Web page updated 6/2/15