Penn State’s Protection Racket, 20: Consulting

Penn State’s policy on entrepreneurial activity, IP06, continues by reciting badly the university policy on consulting, at HR80. Yes, I suppose we have to look, having read the book. HR80 begins with an assertion about faculty duties:

A faculty member is expected to perform his or her University duties in the most effective manner of which he or she is capable.

It’s not clear who is doing the expecting here, but the expectation is utterly ambiguous: “most effective manner of which he or she is capable.” Short of some strange communist worker heroism, how could one possibly know what a faculty member is capable of, and what makes a given duty “effective”? What, for that matter, are “University duties”? We might think that, why, these are the reasonable duties that are assigned, per HR64:

The faculty member agrees, therefore, to abide by the regulations of the University, and to perform to the best of his/her ability such reasonable duties as are assigned by authorized University officials.

Reasonable, assigned duties–not anything a faculty member chooses to do. A faculty member might do any number of things that reflect professional activities, all tolerated if not encouraged by university administrators, that are not assigned duties. This distinction must be kept in mind whenever a policy brings up a claim, such as IP01’s use of “field of expertise”–the employment claim has to be restricted to those reasonable duties “as are assigned by authorized University officials.” Participating in research is, generally, not assigned and thus fails to come within the scope of any university claims to control resulting IP. There may be a sponsored research agreement that establishes control, but then the basis is policy actions that connect the sponsored research agreement terms with the participants in the sponsored project, not an assignment of duties by university officials.

HR80’s opening statement, however, also contains a loyalty demand:

The faculty member’s first duty and first responsibility is to the University.

This statement is something of a duty with regard to duties. Except, ignoring HR64, this duty is not assigned by an authorized university official–it is a general statement made by a faceless policy. Furthermore, this assignment of duty is unreasonable. Where does the university have the authority to demand that a faculty member’s “first duty” is “to the University”? We do not find such a demand in HR64, on academic freedom. We might argue that a faculty member’s “duties” are only those that are assigned, and reasonable. Anything else is of the form of administrative hope or personal choice. Being all Mertonish about it, we might think a faculty member’s most important principle is getting at the truth of things, or teaching worthy stuff to those worthy of knowing, or being unwilling to be bought out by government or corporate or pressure group interests in the conduct of scholarship. But here, apparently, the university asserts that it has already bought out faculty, so that when they conduct research, say, that research should support, say, whatever it is the technology licensing office is trying to peddle for big bucks. That’s the first duty and responsibility, see?

HR80 also distinguishes duties and responsibilities, without any guidance. HR64 discusses only “duties,” which must be assigned to exist. What then is a “responsibility”? Perhaps that’s to follow university policies and regulations and procedures and whatever else is demanded by administrators. But I don’t know. Frankly, I think “responsibilities” is just fantasy assertion made up by the posterior cortex of some low-status totalitarian-minded administrative hack who got to dabble in drafting HR80. But even if true that doesn’t much help us deal with the policy itself, any more than musing on the moral attributes of the low life pointing a gun at us helps us deal with the gun.

A better way of reading this loyalty demand is that it applies only where a faculty member has been assigned a reasonable duty. For anything else, whether consulting or otherwise, a faculty member owes no “duty” to the university; any further commitment the faculty member makes is not assigned, is not a matter of employment, is not work for an administrative master. Again, being Mertonish about it, we might assert as a university “value” that faculty through their actions create a university capable of educating and conducting research and helping the general public, and we might fussily add that if faculty don’t choose well, then the university will be shut down.

The rest of HR80, then, follows from the loyalty assertion:

Outside professional services, or private consulting, should be viewed as a privilege and thus should not be undertaken, with or without pay, if such services or consulting interferes with the discharge of a faculty’s member duties and responsibilities to the University.

“Should be” is weasily. Either consulting is forbidden unless administrators approve or it’s not forbidden. Here’s HR64:

When the faculty member speaks or writes as a citizen, the faculty member shall be free from institutional censorship or discipline, but the special position in the community held by the faculty member imposes special obligations. As a person of learning and an educator, the faculty member is expected to remember that the public may judge the profession and institution by his/her utterances. Hence, the faculty member agrees at all times to be accurate, to exercise appropriate restraint, to show respect for the opinions of others, and to make every effort to indicate that he/she is not an institutional spokesperson.

What is required? Make an effort to indicate that one doesn’t speak for the institution. Otherwise, the faculty member “shall be free from institutional censorship or discipline.” Try to square this with HR80, which aims to prevent “consulting without pay.” What is consulting without pay but a form of “speaking or writing as a citizen”? We might restate HR80, then, on this point to mean:

A faculty member should not speak or write as a citizen if doing so interferes with the discharge of his or her reasonable, assigned duties or prevents him or her from abiding by the regulations of the University.

Aside from whether immoral regulations should be followed, we might think that this restatement is obvious–but only because per HR64, no regulation of the university can prevent a faculty member from speaking or writing as a citizen: “free of institutional censorship or discipline.”

HR80 then makes express the non-compete concern:

University faculty are encouraged to engage in outside activities, as defined below, when such activities enhance the mission of the University, are related to the employees’ field of expertise, do not violate any University policies or regulations, and do not compete with the University.

Notice the strange slip from “faculty” to “the employees'”–where the expected term would be “faculty member’s” and the construction should all be singular: “Each faculty member is encouraged.” Oh, the drafting, the drafting. This sentence uses another typical drafting strategy–make a list and bury the important stuff somewhere in the list, such as, say, a demand that nothing “compete” with the university.

If we consider the grammar, we can see that the statement here is not one of policy but rather of encouragement. Faculty are encouraged to engage for the things in the list. There is not statement to the effect that faculty are forbidden to engage in outside activities not meeting the list of encouraged things. Thus, though participating in a school bake sale might not be related to a faculty member’s field of expertise, but it is not forbidden. And teaching a sunday school class might compete with the university’s own Bible as Literature course (ENGL 104), but that too is not forbidden, we would think.

Perhaps administrators drafting HR80 intended to forbid all faculty engagement in any “outside” activities (to engage is to escape, sort of like military leave, you have to request it from us administrators, who fancy ourselves to be the officers of the institution, and then we will lay out general guidelines when we might approve your leave). But whatever their intention, they didn’t express that intention in their drafting. Instead they drafted an encouragement clause. Sort of like tossing a hand grenade and wanting only to get close enough to cause damage without having to be precise.

We might linger on what it means to “enhance the mission of the University,” but I fear it is just administrative bullsquawk here that can’t have any much meaning. Perhaps “mission” is used for “reputation” or “position with the legislature” or “to help development land a big donation.” Does “enhance” mean “make bigger” (as with some surgeries), or “improve” (since the mission might be stated badly) or “extend” (as in broadening the mission to include more things), or “polish up” or “be consistent with” (which isn’t really enhancing anything). Dunno. Neither do you, I expect.

HR80 gives some “clear” examples of enhancement:

There are a number of outside activities that clearly enhance the University’s mission, such as serving on a peer review boards, serving as a referee for a scholarly journal, attending or presenting at a professional meeting, visiting other sites in connection with accreditation/audits, etc.

Ho-hum, “etc.” And yet, here, “attending a professional meeting” is listed as an “outside activity.” That’s radical. The policy purports to control, as a privilege, whether faculty can attend professional meetings. That’s more than radical, it’s bonker nuts and in violation of HR64.

Of course, university policy is set up for faculty as a “call your own fouls” on administration–see HR76, Faculty Rights and Responsibilities. A faculty member may take to a committee:

1. Any situation in which a faculty member asserts that he or she has suffered a substantial injustice resulting from a violation of: a) academic freedom; b) procedural fairness; or c) professional ethics.

And of course, administrators can use the same committee to stick it to faculty members:

2. Any situation in which an administrator seeks a Committee judgment as to appropriate action toward a faculty member who, in his or her judgment, may be failing to meet his or her responsibilities.

Only faculty get this treatment, with exceptions made for some situations involving “academic employees.” We can see “responsibilities” show up in paragraph 2, but not, oddly, “duties.” What a mystery these “responsibilities” are. Perhaps faculty agreeing in HR64 to speak accurately and with restraint, showing respect for others is a “responsibility” since it is clearly not an assigned duty. Yeah, let’s go with that.

HR80 then defines “consulting, private consulting, or outside consulting” as (briefly, omitting the verbage) “a professional service intended to further the interests of an outside party,” except not teaching which is the subject of AD77 on conflicts of commitment. And except not any “outside activities outside the faculty’s field of expertise.” And we find out that an administrator gets to determine formally a faculty member’s “field of expertise”:

A faculty member’s field of expertise shall be as defined by his/her department head or unit head and/or Dean or cognizant Administrative Officer.

I wonder if the heads have done this defining for each faculty member. Perhaps they get to do this in the moment, when someone asks. In any event, it makes nonsense of IP01’s bit about the scope of disclosure as broad as one’s “field of expertise”–if a head hasn’t defined the field, then there can be no obligation to disclose on that basis. Same for the IP Agreement’s outlandish (but non-functioning) demand for assignment of any invention within that same “field of expertise.”


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