For all the talk about conflict of interest in Penn State policies, Penn State does have a policy, HR91, that directly addresses conflict of interest. It’s odd that administrators can’t seem to focus their conflict of interest worries there and instead spread it all around in whatever policy of the moment happens to strike them. The statement of purpose in HR91 is straightforward, if unrealistic:
To avoid the possibility of any misunderstandings concerning the appropriate conduct of faculty and staff members in regard to all transactions touching upon their University duties and the property of the University.
It’s strange that a policy on conflict of interest can’t have as its purpose to identify conflicts of interest and manage or eliminate them. Instead, HR91 is worried about misunderstandings and appropriate conduct–as if the problem is confusion about actions (by anyone, even those given over to confusion about many things) or conflicting moral values, as if Socrates is just confused about Callicles, and gosh it would sure have helped if the both of them just had a university policy on the matter and didn’t have to try to reason things out using dialectic.
It’s unrealistic–no, just foolish–to think that a policy can “avoid the possibility” of misunderstandings–or even avoid the possibility of differences in understandings. Possibilities are just those–things that might happen. Is it realistic to think that one can eliminate differing understandings of conduct by an administrative policy? Hardly.
HR91 restricts the concern for “appropriate conduct” to “transactions”–namely, ones “touching upon … Universities duties and the property of the University.” As typical for hack drafting, we don’t know if “touching upon” controls both “university duties” and “property”–that would mean transactions involving duties and property–or whether the controlling phrase is “appropriate conduct” and the two elements are transactions and property. Who can say? Who cares? I feel like a growly voice in a vast administrative wasteland of drafting and empty feelings about life.
For all the problems with the purpose statement, HR91 is remarkably short. Call it a compact statement of administrative moralization. Here’s the first of four sentences:
Faculty and staff members of the University shall exercise the utmost good faith in all transactions touching upon their duties to the University and its property.
Clearly, here, “transactions” governs both duties and property–that is, the purpose here has to do with “transactions”–one would think, decisions and contracts, perhaps, as instances of “transactions.” But there’s no guidance in policy.
In the state of Washington, a legislative effort undertook to create a conflict of interest policy for purchasing agents, and at some point someone liked it so much that they decided to make it apply to all state employees and call it “ethics in public service.” Because the law was originally drafted to be specific to purchasing agents (cannot receive gifts of flowers–open question whether a gift of a card with flowers on it is included, or whether a gift of paper flowers is the same as cut flowers, or whether a potted plant that might eventually flower is also suspect), it required a bunch of exceptions for everyone else. The upshot is that student workers at University of Washington coffee carts cannot receive tips, as these are determined by the law to be a source of potential corruption. Sigh. Morality is somewhat good until administrative hacks try to make it law.
Anyway, HR91’s key concept is “utmost good faith” (because good faith itself admits of degrees and ordinary good faith just won’t do in the fantasy land called administrators speaking on morality). It’s not at all clear what “touching on” is intended to mean. It would appear to be more general than “involving,” but who can say? “Duties” for faculty would appear to be, again, those reasonable, assigned duties. Here, these are “duties to the University.” I understand how one can carry out duties for another. I understand how one can be assigned duties. I don’t know what “duties to” means. It has the ring of “obligations” or “responsibilities.” But the “to” is strange. It’s one thing to have a legal obligation–a duty under contract. It’s another to have an obligation formed by the nature of a relationship, such as a fiduciary duty (in the case of a corporate director or a guardian) or a duty of confidentiality (as between an attorney and her client).
We might ask, then, whether HR91 is asserting that faculty and staff are fiduciaries in their relationship to the university. That might be the gesture, for instance, in using “utmost goodwill.” HR91 all but asserts that faculty and staff–all employees of a university, apparently–are held to the highest standard of care possible; that is, to the standard of care of a fiduciary. It’s interesting to note that no distinction is made between senior executive officials and the most junior janitor or teaching assistant. Nor are directors or trustees mentioned–perhaps they have their own policy, since they are not employees. But then, faculty for much of their scholarship, including research, also are not employees, even though faculty are also “employed.”
There are many things that are dissonant with the idea that everyone employed is also held to the highest standard of care, simply by the assertion of a policy statement. One would think that there is only one acceptable standard of care, and anything else is disloyal corruption.
Agency is fundamental to the formation of a fiduciary relationship. Here is the definition of agency from The Restatement (Third) of Agency (1.01):
Agency is the fiduciary relationship that arises when one person (a “principal”) manifests assent to another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.
An agency relationship arises only when the elements stated in § 1.01 are present. Whether a relationship is characterized as agency in an agreement between parties or in the context of industry or popular usage is not controlling.
That is, there has to be manifested mutual acceptance of the role before there is an agency relationship. A mere assertion in policy is not sufficient to “manifest” assent (and more Restatement):
A person manifests assent or intention through written or spoken words or other conduct.
It’s interesting, then, to ask just how a university can assert that faculty are not agents (as for research agreements or in their consulting) and yet also assert that somehow faculty are agents of the university (for most anything they might create or invent). It’s a crazy, mixed-up world, I know, and administrators just want to have fun. But really–the policy logic doesn’t work.
We might then ask whether faculty members are agents of the university. Or, perhaps the better question is, Under what circumstances might faculty members be considered to be agents of the university? Universities routinely disclaim the idea that faculty members have authority to sign research contracts or licensing agreements on behalf of the university.
I once worked with a university attorney who was diligent about this sort of thing. Only authorized personnel could sign contracts for the university, he insisted. One day he called me with a problem: the software he had downloaded on his computer (I think it was an update) required someone to press (“I accept”) to agree to the end-user license, and, well, he wasn’t formally authorized to form a contract of this sort for the university. You can see where this goes. Someone for the university would have to hop from computer to computer pressing “I accept” buttons on downloads so that all end user agreements would be properly executed. Or, the university might have to allow that many individuals in the university might act as agents for the university in such matters. Or, the university might have to accept that many individuals act for themselves in installing software on university-owned computers, and this, too, is not a problem, except for administrators with a mania for control who write crazy-ass policy statements.
When the CAFC reviewed on appeal Stanford v Roche, the court determined that the faculty supervisor of the inventor in question acted as an agent of the university–that the faculty supervisor knew the terms that the inventor had agreed to was sufficient to establish that the university knew of these terms and that the silly fiction that the university did not know anything until the technology licensing office heard of it was just that, silly. In the Fenn case, however, the court agreed with Yale’s contention that an invention was not even “made” until it had been reported to Yale’s IP office, and thus the policy that controls an invention is the one in place when Yale’s IP office gets acceptable paperwork, not the policy in place when someone is hired (as the Shaw court ruled, based on the patent agreement) and not the policy in place when the invention is made according to federal patent law–which would make much more sense than what the Fenn court decided.
For liability purposes, too, a faculty member might be considered an agent of the university, though the university might be motivated to disclaim it. That’s Respondeat Superior:
An employer is subject to liability for torts committed by employees while acting within the scope of their employment.
Thus, if a university’s IP policy claims that most anything a faculty member might create is within the “scope of employment,” then it follows that the university is liable for most any action a faculty member might take that damages another. According to the Restatement (7.07):
An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.
Thus, we can see that unless a faculty member’s scholarly work (such as research or doing creative things) is assigned by the university as employer, or is subject to administrative control, then that work is not within the scope of employment. It does not matter that administrators might claim they have assigned faculty to do such “scholarly work” or “use their expertise.” There’s more. Employment requires intention, too:
An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
An employee, to act within the scope of employment, must also have the intent to serve a purpose of the employer. Thus, it’s not sufficient to claim that anything involving electrical engineering a faculty member with a degree in electrical engineering might do is within the scope of employment (or scope of an IP policy’s claim on inventions)–one has to ask whether that faculty member pursued an independent course or whether the work was assigned, and if an independent course, whether the faculty member intended the work to serve a purpose of the university. Here we get to a fundamental condition of faculty “employment.” Faculty are not assigned scholarly work by university administrators without their express consent. They pursue an independent course. Faculty then choose when it is that they take an action to serve a purpose of the university, and when otherwise–to serve their own purpose, or the purpose of a member of the general public, or a purpose of a student, or a purpose of some company or open source community or scholarly journal.
We might postulate, then, that any university IP policy worth anything must start with a requirement that university faculty assign to the university only that IP that they have intended to assign to the university–that they have been expressly commissioned to create for the university, for instance, or that they have promised to assign to the university as a condition of a funding agreement that they wish to gain the benefit of. That is, in any decent, non-Moloch university IP policy, faculty assign IP to the university when they agree to do so. That is the nature of being a member of a university faculty. Policy statements on academic freedom are just one part of it.