Penn State’s Protection Racket, 19: Conflict of Commitment

Even with this critique we have not got to the bottom of Penn State’s policy treatment of conflict of interest/commitment as a covert IP policy. Conflicts of interest and/or commitment “exist” when someone has “preferential access” to knowledge or university resources “for personal gain.” This is getting very silly. What knowledge? Whose knowledge? Who gives preference? If anyone can walk into a research laboratory, is preferential access to that lab impossible? If a faculty member uses a database subscribed to by the university’s library “for university use only,” to write a textbook, is it a conflict of interest that the publication of the textbook might result in personal gain? Are we far enough along this line of reasoning that any use of the university’s “resources” for “personal gain” is verboten?

The University of Washington administration has already gone that route–arguing that any sort of research might increase a person’s knowledge and that in turn is a personal gain that’s not allowed unless the knowledge (“know how”) is owned by the university and any personal gain comes as a share of whatever university administrators can make from selling the knowledge behind a licensing paywall. Thus, any research using university resources creates a private gain that must be managed or the gaining person is corrupt and can be taken down, reputation destroyed, career destroyed–all for thinking to benefit from improving oneself through research. See the history of the University of Washington’s approval process for personal consulting. Have a paper bag on your knee.

But this is all reasoning based on an understanding of text. With university policy, such reasoning is to be displaced by administrative assertions taken as formal truths in whatever form university administrators may utter them. If we look at Penn State policy on conflict of commitment, AD77, we’ll see the shape of the conflict of commitment argument:

University employees are encouraged to engage in outside activities when such activities enhance the mission of the University and do not compete with the University.

First, conflict of commitment is actually a non-compete covenant, broadly drawn. Whatever it is the “University” does, an employee cannot compete with it. Thus, obviously, if the “University” determines that it wishes to make a profit by attempting to sell IP positions obtained on the personal property of faculty and students, then anything that faculty and students might do with their personal property–inventions, works of authorship–must compete with the “University.” That’s one heck of a powerful tool, there in the conflict of commitment policy. “You must be so committed to the University that when it declares it wants to profit from your personal property, you must hand that property over or stand in violation of University policy.”

Outside activities shall not adversely affect the University’s interests or mission, or require a significant commitment an [sic] excessive amount of time, that interferes with an employee’s primary University responsibilities, or competes with coursework or services provided by the University.

I guess that employees fluent in Russian can’t tutor anyone in Russian as that might compete with Russian coursework offered by the university. But all this with this provisio:

This policy shall not be interpreted to interfere with any faculty member’s academic freedom (as defined in HR64, Academic Freedom), including his or her freedom to criticize University policies and decisions.

So faculty might tutor in Russian, but not graduate students or “academic employees.” That’s interesting. The drafting strategy here is to control “everything but academic freedom.” Encroaching on (or ignoring) academic freedom takes a separate step, done later.

The policy statement itself in AD77 starts with an argument about the use of resources rather than time commitment to “outside” work:

University resources shall be used only for their intended University purpose (see Penn State Policy FN14 – Use of University Tangible Assets, Equipment, Supplies, and Services).  Use of University resources beyond incidental use requires advance permission and the University shall be appropriately reimbursed.

Who intends a purpose for a “resource”? Sigh. The “University” becomes a sentient being that intends for each resource a purpose. Except, of course, faculty have academic freedom and so perhaps they may be the ones that intend any particular resource in the first place. And, given that a university operates as a massive subvention in support of faculty and students, any university resource is granted to faculty and students for their use unless an administrator has authority to hold it back.

The University reserves the right to determine whether outside activities adversely affect the University mission.  This provision applies throughout the calendar year, irrespective of the actual appointment period and subject to the discretion of the University.

The meaning here is that administrators will decide whether something bothers them. Apparently faculty are not by policy permitted to decide such things, even if they have academic freedom. But the policy is not to be interpreted to interfere with academic freedom, so for faculty how is it possible that university administrators can reserve any right to decide–and how is it that the university can reach beyond an “actual appointment period”? What sort of assertion is that? Totalitarian, somewhat, don’t you think?

The rest of AD77 is taken up with units implementing their own guidelines, restrictions on teaching at other institutions and complying with university policies or regulations (there must be a distinction somewhere):

Employees must comply with all applicable University policies or regulations including, but not limited to, policies or regulations related to intellectual property, conflict of interest, private consulting, use of University’s name or its resources, etc.; related to their employment when participating in outside activities.

The repeated theme of Penn State policies is that each policy insists that it’s an obligation for every employee to follow every policy. One would think that Penn State somewhere in policy might make following policy a requirement for everyone just once, and button it up after that for all the little policy things that get spawned later. All the better, it might help if that master policy statement included specifically that administrators must follow policy in interpreting policy and drafting new policy, and for all that, only administrators that know how to write should be permitted to draft new policy.

Given that it’s next to impossible to make sense of Penn State’s policy claim here–that somehow preferential access to knowledge for personal gain creates a conflict of interest or commitment–I will propose that the wording here is administrative garble-speak for the following:

Administrators are authorized to stop anyone who attempts to exploit his or her own inventions or works of authorship or anything else that may be sold or may create the opportunity to obtain a monopoly that may be sold without cutting the university in on the deal. Administrators may use the terms “conflict of interest” and “conflict of commitment” indifferently to make the actions of anyone who crosses them appear to be immoral, corrupt, unethical, or otherwise detrimental to University interests.

Put simply,

It is a conflict of interest to do anything that competes with the University’s licensing office or denies the University’s licensing office an opportunity to make money.

Take that as a hypothetical translation. One might expect the following if one actually cared about research conflict of interest:

  • A requirement to disclose activities that involve personal payments other than those made through the university–“be forthright.”
  • A limitation on personal payments that would be perceived to influence research funded and reported using one’s university title and affiliation.
  • A requirement that one recuse oneself from certain decisions in which there is the prospect of personal payments that might influence the decision.

Nothing to do with preferential access to knowledge or resources for personal gain–just whether payment is disclosed and whether that payment has the prospect for adversely affecting work that one does using one’s university affiliation. It would appear that IP06 was written by technology transfer zealots, not anyone working with conflict of interest issues. It suggests that technology transfer has misappropriated conflict of interest policy to serve an administrative goal. One might say IP06 represents an institutional conflict of interest.

The appropriate framework for faculty involvement in either commercial or not-for-profit enterprises, including “faculty companies,” has to be evaluated on a case-by-case basis in concert with cognizant University administrators.

We are back now to something “appropriate” but now it is a “framework” and not a “policy.” Suddenly, we see “faculty” appear and not “individual” or “personnel.” What happened to staff? to administrators? Why even have a policy statement if the whole point of it is to say everything is “case-by-case” involving evaluation “in concert with” “cognizant University administrators.” Who is doing the evaluation?–clearly not the cognizant University administrators, as they are involved only by concert. Is it the faculty members themselves? The IP office? Who can say, but who is not telling.

This much is clear: there must be a management plan for any faculty involvement in any “enterprise”:

Mechanisms whereby potential conflicts will be managed must be set forth in a Management Plan approved by the University’s Conflict of Interest Committee and/or the University Conflict of Interest Official per policy RP06Disclosure and Management of Significant Financial Interests.

But that’s already the subject of RP06, so all that IP06 is doing is pointing to RP06 and saying that when faculty are “involved” in an enterprise, they have to follow RP06. Why not just modify RP06? Oh, wait. Perhaps it’s because RP06 already deals with enterprises and “significant financial interest.”

I suppose we have to review RP06 to get anywhere. RP06 is a creature of PHS grant requirements, with a bit of NSF and FDA thrown in as well. The gist is that if one has a “significant financial interest” and that interest “reasonably appears to be related” to one’s “Institutional Responsibilities,” then the interest must be disclosed, conflict of interest folk must review it, and if there’s a problem, then there must be a management plan. RP06 creates its own definitions, however, for significant financial interest and institutional responsibilities. These are, in their way, bespoke.

There are four categories of Significant Financial Interest, more than $5,000 received annually:

  • From publicly traded “entities” (payment plus equity value)
  • From any other “entity” or any equity interest in any other “entity”
  • For intellectual property
  • As travel reimbursements from any entity except a government agency, university, teaching hospital, medical center, or research institute affiliated with a university.

“Entity” is defined as any “business, organization, or association” except governmental agencies (but the policy definition gets long-winded about it–“entity” is used in PHS regulations, but not given a definition; obviously there it is what used to be “person,” that is any individual or incorporated organization). Why the policy can’t just be, “report payments and equity value from each non-governmental source that exceeds $5,000 per year, and report intellectual property for which you receive more than $5,000 per year.” I guess that would be too simple, readable, and crisp. Oh, and it would require reporting of private university and teaching hospital income. Couldn’t have that, so hey, define “entity.”

It’s funny that whatever is paid through the university is excluded as a “Significant Financial Interest.” So you get $100,000 a year as a share of royalties in some lucrative patent licensing scheme. That apparently has no effect on your research, but $5,0001 from a company directly might? At least the university ought to know that it has paid out $100,000–so one would not need to disclose that payment, but it still ought to be a “Significant Financial Interest” and there should be a management plan pertaining to any related research. It’s by this sort of thing that we tease out just how superficial these sorts of policies are.

The upshot of all this mostly worthless policy mongering is that IPo6 is wrong about the framework for conflict of interest in RP06. Involvement in enterprises does not have to be reviewed unless it exceeds an annual personal value of $5,000. There’s no need for “case-by-case evaluation” of such involvement unless there’s a significant financial interest. And when there is, RP06 controls. So what again is the point of IP06 other than as another exercise in badly executed policy drafting?

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