Bootleg versions of proposed Conflict of Interest Policy and Procedures

The Senate leadership first heard about these proposals late last week, although they have apparently been under development by the administration for months. The “discussion drafts” below have not been released to the Senate – these are bootleg copies.

These proposals involve substantial changes to current UO policy and procedures regarding outside work for faculty and all UO employees. Among other things they eliminate the default “one day in seven” consulting work allowance, require faculty to notify the administration in advance of much outside work, and give the administration the power to decide whether that work is in the best interests of “the university”, or not.

I do not understand the administration’s motivation for these proposed changes, or their decision to keep their development secret from the Senate. See the bootleg policy here, procedures here, or read the cut and paste versions below.

CONFLICTS OF INTEREST POLICY DRAFT

DISCUSSION DRAFT – 4/2/18

Reason for Policy

To set forth the University’s standards, as required by ORS 352.232, governing outside employment and activities, including actual and potential conflicts of interest, and procedures for reporting and managing conflicts of interest.

Responsible Office

For questions about this policy, please contact the Office of the Provost.

Enactment & Revision History

Approved by University President Michael Schill on _________ __, 2018.

Scope 

This policy applies to all University of Oregon employees, officials, and agents.  It does not in any way alter the requirements contained in the Financial Conflict of Interest in Research Policy.

Policy 

OVERVIEW

Teaching, research, administration, and public service are essential to the mission of the University of Oregon.  This policy recognizes the primary importance of those activities and the value of the application of knowledge outside the institution.  The function of the University may be enhanced by ethical relationships between employees and outside entities, and this policy seeks to protect the academic and personal freedoms involved in choosing those outside activities.  Prompt disclosure of outside activities, and management of conflicts of interests, are essential to protect the interests of the University and to ensure compliance with state and federal law.  To this end, the University encourages employees to engage in outside activities that advance the mission of the University, with the condition that those activities be proactively disclosed, reviewed and, if determined to be a conflict of interest by the University, managed in a manner that protects integrity, ensures legal compliance, and promotes good stewardship of public resources.

Employees, officials, and agents of the University have an individual legal obligation to provide advance, written notice to the University that describes the nature of their outside activities so that the University can make a determination of whether a COI exists.  This policy describes the outside activities at issue, requires the disclosure and review of such activities, and, if appropriate, provides for appropriate action by the University to manage actual, potential or apparent COIs. This policy also provides an appeal process and a process for reporting complaints about COI.

APPLICABLE LAW

Oregon law defines conflicts of interest (“COI”) as any action, decision, or recommendation by a person acting in their capacity as a University employee that would (for actual conflicts) or could (for potential conflicts) have a private financial impact on the person or their relative, or any business with which either is associated.  ORS 244.020(1), (13).

The University may authorize employees to receive outside compensation. However, the University is prohibited from authorizing outside compensation that “does not comport with the mission of the public university or substantially interferes with an officer’s or employee’s duties to the university.”  ORS 352.232(2).

GENERAL GUIDELINES

Employees must generally refrain from having financial interests incompatible with the impartial, objective, and effective performance of duties. University employees, officials, and agents generally may not:

1. Engage in private business interests or other outside employment activities, whether compensated or not, on University time.
2. Make use of University supplies, facilities, equipment, employees, records or any other public resources (other than incidental use) to engage in private business interests.
3. Use information gained as a University employee to obtain a financial benefit for the employee, a relative or member of the University employee’s household or a business with which any are associated.
4. Subject to the review and approval process described herein, participate in making University recommendations or decisions involving the employment, compensation, promotion, leave of absence, grievance adjustment, termination, or in the supervision of a relative or member of their household.
5. Undertake any other outside business or employment activities that substantially interferes with the employee’s duties to the University, or other activities related to University employment, for compensation, that do not comport with the mission of the University.

REPORTING AND APPROVAL

Approval is generally not required for “exempt” activities identified below and described in the Procedures. However, if any these activities does not comport with the mission of the University, substantially interferes with one’s duties to the University, or creates a COI, the employee must disclose the activity in accordance with Sections III and IV below.  The Provost or designee(s) is charged with deciding whether the disclosure constitutes a COI. Employees must err on the side of caution and provide advance disclosure of any such activity.

1. Exempt Activities for Which Prior Approval Is Not Required
2. Exempt Activities Unrelated to University Employment

Employees are generally not expected to disclose outside activities unrelated to their University employment, unless the outside activity may interfere with the employee’s duties to the University (e.g., overlapping time commitments). If there is any doubt whether the outside activity may interfere with the employee’s duties to the University, or may be related to the employee’s University employment, the employee must disclose the activity pursuant to this policy.

1. Exempt Activities Related to University Employment

Employees are not expected to disclose reimbursed or sponsored travel for seminars, lectures, teaching engagements, or service on advisory committees or review panels that a) when aggregated, does not exceed $5,000 per individual entity, or b) is travel reimbursed or sponsored by a federal, state or local government agency, an institution of higher education, an academic teaching hospital, a medical center, or a research institution affiliated with an institution of higher education. In addition, pursuant to this Policy, employees are generally not expected to disclose professional, religious or political associations, appearances and publications related to University employment, and expert witness service related to their academic or professional work. Such activity may be subject to University policies and procedures concerning inventions and educational and professional materials development. This Policy does not in any way alter requirements in those policies. 

1. Activities for Which Prior Approval Is Required

An employee must disclose, pursuant to Section III, non-exempt outside activities.  This includes, for example:

• Consulting related to employee’s University work
  • Outside consulting undertaken on personal time will generally require disclosure if the value of any remuneration received from any single entity in the twelve months preceding the disclosure, when aggregated, exceeds $5,000.
• Closely related enterprises
  • Outside compensation from, or ownership of equity in, an entity (including consulting firms) that carries on activities closely related to the University employee’s area of work and/or field of expertise.
    • This excludes publicly-traded equity unless the employee has a majority ownership in that entity.
  • Managing, or participation in the day-to-day operations of, an entity that carries on activity related to the employee’s University employment.

III.        Reporting Requirements; Reporting Concerns

It is important to record conflicts centrally to assess their impact on the functions of the University.

1. Annual Outside Activity (“AOA”) Disclosure Requirement for University Employees: All employees must submit an AOA disclosure each year. The Provost or designee(s) shall ensure a reminder is sent annually to all employees.
2. Reporting Concerns about Potential or Actual COI of Another: Any University employee who has concerns about the permissibility of an activity on the part of an employee is encouraged to consult with their unit/department head pursuant to the reporting process set forth in the procedures accompanying this policy. Confidential reports can also be made to the Office of Internal Audit using its Fraud & Ethics Hotline.

Approval Process

1. Review Process: The Provost or designee(s) will conduct the Initial Review of all AOA disclosures to determine whether the information disclosed presents an actual, apparent, or potential COI.
2. Requests for Approval: The Provost or designee(s) shall create procedures for the review and management processes, and for the complaint and appeal processes.  Activity that creates an actual or potential COI is subject to a management plan and/or a decision that the activity may not be authorized. The Provost or designee(s) may work with a COI Committee to evaluate AOA disclosures that require further review.
3. Approval Process: In approving or denying requests, the Provost or designee will (1) determine whether the activity constitutes a COI (actual, apparent, or potential), (2) notify the employee if the activity constitutes a COI, and (3) if warranted, develop a management plan, in consultation with the employee and their supervisor/department head, to mitigate the conflict.

APPEALS

Decisions under this policy may be appealed in writing to the Provost or designee within 10 days of the receipt of the decision.

ACCOUNTABILITY

This policy has the force of law pursuant to ORS 352.087.  Failure of a University employee to comply with this policy and its associated procedures will subject the employee to discipline up to and including termination.  Discipline shall be imposed consistent with applicable University policies and/or applicable collective bargaining agreements.

Related Resources

Policies and Procedures Related to this Policy:

• Conflicts of Interest Procedures
• Financial Conflict of Interest in Research Policy
• Family Relationships and Employment Policy
• Financial Irregularities Policy

Contacts

Topic	Office	Phone
Policy and procedure interpretation; reporting of COI concerns; complaints; appeals; general inquiries	Office of the Provost and Academic Affairs	541-346-3186

 

CONFLICTS OF INTEREST PROCEDURES DRAFT

DISCUSSION DRAFT – 4/2/18

As set forth in the Conflicts of Interest (“COI”) Policy, University of Oregon employees, officials, and agents must report all non-exempt outside activities so that the University can make a determination of whether an actual, apparent, or potential COI exists and, if appropriate, help manage that COI. The following procedures outline the disclosure process and the review, approval and management of COI.

These procedures in no way alter the requirements contained in the Financial Conflict of Interest in Research Policy.  Thus, University employees, officials or agents with outside activities that involve design, conduct, and reporting roles in sponsored research will likely be required to provide both disclosures.

I. ACCOUNTABILITY

Failure to comply with the COI Policy includes, but is not limited to, failure to disclose a known non-exempt outside activity, or failure to abide by the terms of a finalized management plan.

II. DISCLOSURE PROCESS

A. Annual Outside Activity (“AOA”) Disclosure

1. Each year, employees shall submit an AOA disclosure. Subsequent AOA disclosures must includes any activity governed by the COI Policy that was not disclosed in prior disclosures.
2. New employees: All employees engaging in non-exempt outside activities shall submit an AOA disclosure annually—within 30 days of the date of hire and on the anniversary of that date. Before engaging in new, non-exempt outside activities, employees must supplement the AOA disclosure.
3. Current employees: The Provost or designee will send notification to all employees to submit an AOA disclosure. All employees engaging in non-exempt outside activities shall submit an AOA disclosure annually—within 30 days of receipt of the Provost’s notification and on the anniversary of that date.
4. AOA disclosures should be completed online at:
5. For questions involving the AOA disclosures please contact [email protected].
6. The failure to report is construed as a representation by the employee that the employee is engaged in no outside activities that give rise to any actual, apparent, or potential COI.

B. Required Disclosures

a. Exempt Activities Unrelated to University Employment

Pursuant to the COI Policy, employees are generally not expected to disclose outside activities unrelated to their University employment. For example, the following would be exempt from the advance disclosure and approval requirements of this policy:

• • College of Arts & Sciences faculty with outside yoga business (unless it is related to their University employment because, for example, the faculty member solicits University students to attend the yoga class);
  • Housing employee who runs youth baseball camps (unless it is related to their University employment because, for example, the employee uses access to University resources to bolster camp enrollment);
  • Employee invests in mutual funds or retirement accounts and does not directly control the investment decisions made in these accounts.

b. Exempt Activities Related to University Employment

Pursuant to the COI Policy, employees are generally not expected to disclose professional, religious or political associations, appearances related to University employment, and expert witness service related to their academic or professional work, including, for example:

• Professional associations 
  • Participation in scholarly, professional, expressive (including performances), and philanthropic activities outside the University (This includes publications and the sale of goods, unless the material is prepared in compliance with University contractual provisions, as a specific University work assignment, or with the use of significant University resources.)
• Appearances related to University employment
  • Seminars, lectures, or teaching engagements sponsored by a federal, state or local government agency, an institution of higher education, an academic teaching hospital, a medical center, or a research institution affiliated with an institution of higher education;
  • Travel to other institutions or conferences for the purpose of:
    • giving speeches, presentations, lectures, performances, etc.;
    • serving as a panelist;
    • leading seminars or workshops;
    • visiting the laboratories of colleagues.
• Service as an expert witness before a court or tribunal

c. Initial Review of AOA Disclosure

1. The Provost or designee(s) will conduct an Initial Review of AOA disclosures to determine whether the information disclosed presents a matter for further review. Pursuant to the COI Policy and state law, ORS 352.232, to make this determination, the Provost or designee(s) will consider whether the activity disclosed may present an actual, apparent, or potential conflict of interest, whether the activity may not comport with the mission of the University, and whether the activity may substantially interfere with an employee’s duties to the University.
2. The Provost or designee(s) will notify the employee if an AOA disclosure reflects a matter for further review. That determination will be documented.
3. If the Provost or designee(s) determines that the AOA disclosure may require approval and/or a management plan, the disclosure constitutes a matter for further review. The Provost or designee(s) will forward AOA disclosures requiring further review to the COI Committee to further review the matter for consideration of steps to eliminate, reduce, or manage the conflict(s). If appropriate, the Provost or designee(s) will, with notice to the employee, develop a draft management plan to be reviewed by the COI Committee.

III. COI COMMITTEE REVIEW AND APPROVAL PROCESS

Reviews by the COI Committee will be conducted by a preponderance of evidence standard.

Timelines

The COI Committee will review AOA disclosures that reflect matters for further review. The COI Committee will conduct its review based on, among other factors, the date of the disclosure, the likelihood of COI and the need to institute a management plan or sever the outside relationship to avoid a violation of law or UO policy. The COI Committee will complete its review within 60 days; however, this timeframe may be extended for good cause.

Criteria for Approval

In conducting the review, the COI Committee will consider whether the activity disclosed presents an actual, apparent, or potential conflict of interest, whether the activity comports with the mission of the University, and whether the activity substantially interferes with an employee’s duties to the University.

In determining the appropriateness of a management plan, the COI Committee may also consider whether the activity is significant (including time commitment and responsibilities), relatedness to University employment (including likelihood of interference with employee objectivity, integrity, and duties to the University, impact on the University, and consistency with the policies and objectives of the University), and adequacy of mitigation measures (including disclosure to supervisor, informed consent, and screening and/or recusal options).

In developing a management plan, the COI Committee will consult with the employee and, as appropriate, with the employee’s supervisor. The management plan, once finalized, will reflect appropriate management of the conflict. The management plan, once finalized, will be adopted by the Provost or designee(s) responsible for reviewing AOA disclosures.

The Provost or designee(s) will be responsible for notifying the employee when the management plan is finalized. The employee must comply with the terms of the finalized management plan. Examples of conditions that may be created by a management plan include:

1. Public disclosure of actual, apparent, or potential COI
2. Disclosure of COI directly to individuals or entities impacted
3. Periodic monitoring of the scope and impact of the activity, including updates from the employee
4. Recusal from University recommendations or decisions that may be directly and significantly impacted by the outside activity
5. Adoption of an interim or modified management plan as circumstances change

All reviews, recommendations, denials, modifications and/or management plans shall be made by following the applicable state ethics law, the University’s COI Policy, and these procedures.

Appeals 

An employee may challenge a decision by Provost or designee(s)  by filing a written appeal with President of designee(s) within ten (10) days of receipt of the decision. The appeal must include a copy of the decision, the grounds for appeal, the issue in dispute, a full statement of the employee’s position related to the grounds for appeal, and any documents supporting the employee’s claim.

Decisions subject to appeal

An employee may appeal a final, written decision:

• that the activity does not comport with the mission of the University;
• that the activity substantially interferes with an employee’s duties to the University;
• that the activity cannot be appropriately managed; or
• setting forth a finalized management plan.

Grounds for appeal

The request for appeal must identify the decision being challenged and state one of the following grounds for appeal:

Procedural error: Failure to comply with the COI Policy and these procedures, such as failure to consult with the employee in the development of a management plan, that would more likely than not (by a preponderance of evidence) have changed the outcome of the decision;

Unreasonable based on the evidence: The decision that the outside relationship must be severed, or the management plan, is unreasonable based on the evidence provided, such as undue hardship to the employee;

New information: New information not previously known to the employee would more likely than not change the decision.

President or designee will notify the employee within 10 days whether the employee has stated grounds for appeal. If President or designee determines that the employee has failed to state grounds for appeal, the decision is deemed final. If President or designee determines that the employee has stated grounds for appeal, President or designee will notify the employee of the anticipated appeal decision date, which will be within 60 days of the appeal.

Before the decision date, President or designee will provide the employee the opportunity to present evidence and to be heard, in person, by telephone, or in writing, at the discretion of President or designee. President or designee may also consult with the COI Committee, the Provost or designee(s), and/or the employee’s supervisor or department head as appropriate.  If President or designee will rely upon information other than that submitted by the employee, the employee will have the opportunity to review the information to be relied upon and to provide a supplemental response to that information. President or designee will inform the employee of the deadline to provide any information to be relied upon, but all information relied upon must be received by President or designee no later than two days before the appeal decision date. President or designee will decide the appeal. President or designee will notify the employee and Provost or designee of the appeal decision, in writing.

Management Plan

COI Committee Review

A. Committee Appointment and Composition:

1. The Provost or designee(s) shall appoint a COI Committee composed of at least one employee in each of the following categories: tenured faculty member, non-tenure track faculty, officer of administration, classified employee, and a representative from Office of the Provost. An attorney from the Office of the General Counsel shall serve as an ex-officio member.
2. The Provost or designee(s) shall designate one of the appointed members to serve as a COI Committee Chair.
3. The Provost or designee(s) shall appoint members for specific terms, generally three years from the date of appointment. Successive terms are permitted.
4. Each COI member shall complete an annual government ethics training.
5. Each COI Committee member shall recuse themselves in any proceeding in any matter before the COI Committee wherein their impartiality might reasonably be questioned.

B. Meetings

The COI Committee shall meet monthly as necessary. A quorum is a simple majority of the COI Committee. A quorum must be convened for the COI Committee to issue a finalized management plan and/or to recommend that any COI cannot be managed.  The committee makes decisions on the basis of a simple majority of those present at the meeting.

C. Responsibilities

The COI Committee will review all actual, apparent, or potential COIs referred to it by the Provost or designee(s). The COI Committee is responsible for:

1. Assessing actual, apparent, or potential COIs in light of the employee’s institutional responsibilities.
2. Making recommendations to the Provost or designee(s) regarding management of actual or potential COI. Steps of a such a plan may include, but are not limited to the following examples:
   1. Public disclosure of employee’s (or relative’s) financial interest;
   2. Use of COI Committee to closely monitor the activity and assist in avoiding conflicts;
   3. Recusal of the employee in any decision making involving the activities described in the AOA disclosure;
   4. Restructuring of University supervisory/management by employee over persons and/or activities described in AOA disclosure (e.g., limiting the employees’ involvement in personnel decisions on behalf of UO;
   5. Reformulation of activities described in AOA disclosure;
   6. Divestment of personal financial interest causing the COI;
   7. Severance of those outside relationships that cannot be adequately managed to prevent actual or potential COI;
3. Taking appropriate action in response to reports of concerns about COI that have been forwarded to the COI Committee by the Provost or designee(s). Such action may include conducting a retrospective review of circumstances and recommending mitigation measures.

IV. Reporting Concerns About COI of Others

Any employee who has concerns about another employee’s potential conflict should consult with Provost of designee. If, after examining the report, the Provost or designee determines that a COI may exist, they shall refer the matter to the COI Committee for further evaluation pursuant to the process set forth above in Section III. Anonymous reports can be made to the Office of Internal Audit using its Fraud & Ethics Hotline.

V. RECORDKEEPING

The University will maintain records relating to AOA Disclosures, and the University’s review and response to such disclosures, for at least three years.

VI. CONFIDENTIALITY

Within the constraints imposed by state law, in order to protect privacy rights, a personally identifiable request by an employee for approval, and the written disposition of that request, may be part of the employee’s personal record, subject to disclosure only to employees who have a demonstrably legitimate need for particular information in order to fulfill their official, professional responsibilities.

VII. DEFINITIONS

Activity Related to the Employee’s University Employment: activity that reasonably appears to be related to the employee’s responsibilities to the University.

Agent: any individual performing governmental functions, which are services provided on behalf of the University, as distinguished from services provided to the University. This may include private contractors and volunteers, depending on the circumstances. It also can be a volunteer.  Volunteers are “public officials” when they are i. Elected or appointed to a governing body of a public body; ii. Appointed or selected for a position with a governing body or a government agency with responsibilities that include deciding or voting on matters that could have a pecuniary impact on the governing body, agency or other persons; or iii. The volunteer position includes all of the following: 1. Responsible for specific duties and 2. The duties are performed at a scheduled time and designated place.

Disclosure: an employee’s formal or explicit statement disclosing outside activity to the University.

Employee: as referenced in the COI Policy and these procedures, employee refers to employees, officials or agents.

Entity: a natural person capable of being legally bound, sole proprietorship, corporation, partnership, limited liability company or partnership, limited partnership, profit or nonprofit unincorporated association, business trust, two or more persons having a joint or common economic interest, or any other person with legal capacity to contract, or a government or governmental subdivision.

Management Plan: the prospective plan for COI mitigation.

Preponderance of the Evidence: proof that leads to the conclusion that the fact at issue is more probably true than not.

Relative:  as defined in ORS 244.020:  (a) the spouse, parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in-law of the employee or official; (b) the parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in-law of the spouse of the employee or official; (c) any individual for whom the employee or official has a legal support obligation; (d) any individual for whom the employee or official provides benefits arising from the employee’s public employment or from whom the employee or official receives benefits arising from that individual’s employment; (e) a member of the employee’s household.