Legalistic or Inspirational? Comparing University Conflict of Interest Policies

Abstract

In response to growing public and policy concern about conflicts of interest (COI) in university research, academic institutions in North America and Europe have introduced policies to manage COI. However, depending on their form and content, COI policies can be more or less helpful in the effective management of COI. In this paper, we examine and compare the design and content of COI policies at two Canadian research universities (the Université de Montréal and the University of Waterloo), which we suggest, exemplify two general categories or poles on a spectrum of policy approaches. We describe (1) a legalistic approach that promotes a concise but rigid structure, and (2) an inspirational approach that encourages principle-based deliberation and wider interpretation. Each of these approaches has its particular strengths and weaknesses. We conclude with some recommendations to help administrators and policy makers improve the quality, utility and effectiveness of university COI policies.

Appendices

Appendix A: Université de Montréal

Université de Montréal — Official Guidelines, Policies and Procedures

Number: 10.23 Conflict of Interest

Adoption (French version) 1993-06-01 CU-361-9

The document hereinafter does not confer any right to any person in any manner and does not constitute a legal interpretation.

Only the French version of the said document is legally binding.

Preamble

Members of the University personnel are likely to be placed in conflict-of-interest situations in the performance of their duties or in the pursuit of extramural activities.

To ensure transparency and integrity while at the same time respecting the autonomy of the University, the Université de Montréal has decided to adopt regulations for avoiding conflict-of-interest situations and, where necessary, protecting both university staff and the institution itself. These regulations require all members to disclose activities from which real, potential or perceived conflict-of-interest situations may arise. The regulations also stipulate procedures for dealing with these disclosures.

Article 1 Application

1.1. The present regulations shall apply to all teaching and non-teaching personnel.

Article 2 Rules

2.1. All university personnel shall avoid any situation which may entail choosing between personal interests, monetary or other, and those of the University.

2.2 All teaching personnel shall be obligated to disclose to the committee created for this purpose, any real, potential or perceived conflict-of-interest situation so that appropriate measures may be taken to safeguard the interests of the University.

2.3 All non-teaching personnel shall be obligated to disclose to the Head of their unit, any real, potential or perceived conflict-of-interest situation so that appropriate measures may be taken to safeguard the interests of the University.

2.4 All members of personnel who consider themselves to be in conflict of interest with a member of the Unit Committee or the Head of Unit, as the case may be, may disclose directly to the Appeals Committee any real, potential or perceived conflict of interest so that appropriate measures may be taken to safeguard the interest of the University.

Article 3 Conflict of interest

3.1. Without limiting the general scope of these Regulations, conflict of interest may arise in cases where a member of the personnel:

• a) directly or indirectly has monetary or other interests in an external enterprise that deals or is likely to deal with the University;

• b) enters into an agreement with an external enterprise in which the member directly or indirectly has monetary or other interests;

• c) gears his or her research activities at the University so as to cater to the needs of an external enterprise in which the member, directly or indirectly, has monetary or other interests;

• d) conducts teaching or research activities for an external enterprise without regard for the rights of the University;

• e) conducts activities, professional or other, which, because of their time commitment, are likely to interfere with or prevent the performance and the member's duties at the University or compete with University activities;

• f) accepts a gift or favour in any form from an external enterprise that deals with the University;

• g) uses for personal purposes, or for the benefit of a third party, University resources or time, which, according to the member′s definition of duties, should be devoted to the University;

• h) uses the name, emblem or insignia of the University, as well as the name of its associations or organizations to serve personal interests;

• i) participates in the employment or promotion, at the University, of members of his or her family or other persons with whom the member is associated;

• j) uses for personal for personal purposes or for the benefit of a third party confidential information acquired as a result of the member's duties at the University.

Article 4 Procedures for disclosure

4.1. Every year, on the date determined by the person responsible for the application of these Regulations, members shall complete the prescribed form to disclose, if necessary, any real, potential or perceived conflict-of-interest situation in which they may be involved.

4.2 During the year, members shall complete a new disclosure form if a conflict of-interest situation arises that had not been foreseen at the time of the annual disclosure.

4.3 The forms shall be submitted, within the prescribed time limits, as the case may be, to the immediate superior or to the Appeals Committee.

Article 5 Treatment of disclosures

5.1. Teaching Personnel

Unit Committee

Each non-departmentalized faculty, department, school, institute and research centre shall create a committee composed of the Head as chair and two professors appointed by for a Unit assembly a three-year term.

This committee shall deal with the disclosures made by the teaching staff of the unit.

5.2 Non-teaching Personnel

Each head of unit shall deal with the disclosures made by staff members under his or her supervision and shall inform the person responsible for the application of these Regulations of the measures taken to resolve conflicts of interest.

Article 6 Appeals Committee

6.1. The Appeals Committee shall be composed of five members including at least one member of the non-teaching personnel. The University Council and the University Assembly shall each appoint two members to said committee for a three-year term. These members shall appoint a fifth member who shall chair the committee.

6.2 This Committee shall rule on cases submitted to it in writing, within 30 days of the decision rendered by the Unit Committee or the Unit Head, as the case may be.

6.3 This Committee shall also receive, in the first instance, the statements from any member who considers himself or herself to be in conflict of interest with a member of the Unit Committee or the Unit Head, as the case may be.

6.4 This Committee may also, of its own initiative, suggest methods of resolving the conflicts of interest and, to this end, may obtain any information relating to the measures taken to resolve these conflicts or any relevant information.

Article 7 Application of regulations

7.1. The Rector, or the Vice-Rector designated by the Rector, shall be responsible for the application of these Regulations. He or she, in concertation with the Appeals Committee shall report to the University Assembly and the University Council three years after the implementation hereof and shall suggest, where necessary, amendments hereto.

Article 8 Coming into force

8.1. These Regulations shall come into force on the day following their adoption by the University Assembly and the University Council.

Appendix B: University of Waterloo

Policy 69 — Conflict of Interest

Established: 2 April 1991

I. Preamble

A conflict of interest [1], or a potential conflict of interest, exists when a member of the University is or may be in a position to use research, knowledge, authority or influence for personal or family gain or to benefit others to the detriment of the institution.

II. General Philosophy and Procedures

The University acknowledges a commitment, as part of its overall mandate, to transfer knowledge, discoveries and technology to society for its benefit. Interaction of members of the University with external entities is desirable and encouraged when the activity is beneficial to the professional standing of the individual, the reputation of the University or provides a community or professional service. Whatever the nature of the external activities or relationships, the University expects each of its members — faculty, staff, student or officer — to act in a manner consistent with a high standard of integrity and ethical behaviour. Accordingly, the University of Waterloo obligates its members and officers acting on its behalf to avoid ethical, legal, financial or other conflicts of interest which may impede or compromise their University responsibilities or the mission of the institution.

This policy is meant to protect both the individual and the institution. Its fundamental tenet is that members should, of their own volition, take the initiative in disclosing conflicts or potential conflict of interest situations. The mere existence of a conflict or a potential conflict does not necessarily imply that the activity concerned should cease. Indeed, conflicts may cover a broad spectrum from those that are minor and easily controlled to those whose consequences could be very serious. There are situations sufficiently complex that judgments may differ as to whether a conflict exists. Accordingly, any member of the University community with a conflict or potential conflict should seek the counsel and advice of her/his immediate supervisor and disclose the details to that individual. A disclosure form (see next page) is available for this purpose.

The immediate supervisor (in consultation with her/his supervisor, when appropriate) will determine whether a conflict, real or potential, exists. In the event that a conflict exists or will exist, the immediate supervisor and the member will agree on a course of action to monitor or avoid the conflict, after which written documentation of the agreement will be held by both the member and her/his immediate supervisor. In the event that agreement cannot be reached, the case will be referred through the appropriate line management channels for resolution, up to and including the Vice-President, Academic & Provost, if necessary.

It is assumed that those with academic or employment supervisory authority who detect what they believe to be violations of this policy will act promptly to provide or initiate the appropriate remedial or disciplinary measures as set out in other University policies, procedures and agreements (including 18, 33, 36, 62, 71 and the Memorandum of Agreement).

III. Examples

The following list of examples, while not comprehensive, is illustrative of situations which may lead to an indirect or direct conflict of interest:

Favoring of outside interests for personal gain:

• Entering into a research contract with a company in which the faculty or staff member, or a member of her/his immediate family, has a financial or other interest.

• Directing the faculty member's government-sponsored research programme to serve the research or development needs of a private firm in which the faculty member has a financial or other interest.

• Influencing the purchase of equipment or materials for the University from a company in which the faculty or staff member has a financial or other interest.

• Accepting significant gifts or special favours for personal gain from private organizations with which the University does business.

• Entering into a licensing agreement for the development of intellectual property, generated as a result of University research, with a company in which the faculty or staff member has a financial or other interest.

Inappropriate use of university personnel, resources or assets:

• When a supervising faculty or staff member uses University students or staff on University time to carry out work on her/his own behalf for a company in which he/she has a financial or other interest.

• Unauthorized and non-reimbursed use of University resources or facilities to benefit a private concern in which the faculty or staff member has a financial or other interest.

Inappropriate use of information:

• Using for personal gain, or other unauthorized purposes, privileged information acquired as a result of the faculty or staff member's University-supported activities; such information might include knowledge of forthcoming developments requiring contractor or sub-contractor selection, bulk purchases, etc.

• Unreasonably delaying publication of research results (e.g., thesis research) or premature announcement of research results to secure personal gain.

Conflict of commitment:

• Undertaking external consulting, professional or other activities which, by virtue of their time commitment, prevent the faculty or staff member from fulfilling her/his obligations to the University.

• Involvement in external organizations which bring a faculty or staff member into a position of divided loyalty between the mission of the University and the interests of the external organization.

Inappropriate involvement in appointment processes:

• Participating in the appointment, promotion or hiring of a person with whom the faculty or staff member has a marital, familial or sexual relationship.

Disclosure forms

(Disclosure forms are available on the web and/or from the Secretariat.)

Background Re: Development of guidelines and procedures on conflict of interest

Preamble

The potential for conflict of interest has always existed in university communities because of the diverse interactions of faculty, staff and graduate students with external organizations. However, the increasing complexity of society and the changing role of universities in that society, the multiplicity of interuniversity, university–industry and university–community relations have created a new awareness of the need for guidelines concerning conflict of interest. Few will argue that while the basic mandate of universities — education, research and scholarship and public service — remains, each institution is struggling to define its own distinctive role and to cope with the reality of a new financial environment. Rapid developments in science and technology over the past two decades, and the realization that transfer of technology from universities to the private sector can contribute significantly to international competitiveness, have generated pressures and financial incentives to engage in cooperative research ventures, consulting or external business relationships. More than ever before, faculty, staff, graduate students and administrators are being asked to engage in a diverse range of economic development activities which carry the potential for conflict of interest. Unless such conflicts are identified and monitored, the very essence of the university mission may be compromised.

Defining conflict of interest

Conflicts of interest may be individual or institutional. An individual conflict can be defined as any external activity or undertaking which places an individual in a position which:

A. influences University research, education or business for personal gain, or

B. interferes with or prevents the discharge of her/his University responsibilities, as defined by the individual's employment contract; this is, in reality, a conflict of commitment.

The overall thrust of this definition is that the best interests of the University may be compromised to the personal benefit of the individual employee.

Individual conflicts of interest often derive directly or indirectly from opportunities to participate in externally funded research and in a subsequent interplay between the results of the research and a faculty member's personal or financial interests. Such situations frequently place faculty and staff members in a position to manage contracts, select equipment and supplies, involve graduate students in sponsored research or play administrative roles which demand the utmost in integrity and honesty. Even the appearance of an apparent conflict can have a negative impact on the University and the individual in the eyes of the community.

Institutional conflicts of interest may occur when the University enters into contractual relationships with external bodies, usually private corporations but sometimes government agencies, which bring it into potential conflict with its mandate, with the personal activities of its Board of Governors or even its status as an educational institution. These potential institutional conflicts must be monitored by its governing bodies.

Ethical principles

In drafting a conflict of interest policy for the University, the Committee was cognizant of both the positive and negative aspects of that part of the University's mission which can be described as ‘service to society’. On the one hand, the University has an implicit obligation to transmit knowledge and the results of research to society for its benefit. On the other hand, the financial incentives and pressures to contribute to economic and societal well-being have, in the minds of some, distorted University priorities and led to an erosion of autonomy and independence. In this changing environment, it is of paramount importance that the institution has in place a code of ethics which obligates its faculty, staff, students and officers acting on its behalf to avoid ethical, financial or legal conflicts which prejudice the best interests of the University. Thus, a policy on conflict of interest should be an integral component of an entire matrix of policies on ethical behaviour in general at the University of Waterloo.

Policy type

Clearly, defining the entire spectrum of potential conflict of interest situations, both individual and institutional, would be a daunting task. Furthermore, the generation of an exhaustive list of restrictions designed to eradicate conflicts would most certainly compromise the ability of the University to create an environment conducive to the discovery and dissemination of knowledge, the search for truth and understanding, the quality of life and the needs of society. The Committee became convinced that the best interests of the institution would not be served by a restrictive ‘do not’ policy. Such a rigid approach would run counter to the freedom to innovate and the spirit of entrepreneurship which have characterized the University of Waterloo throughout its brief history. Accordingly, the Committee opted for the disclosure route in defining a conflict of interest policy.

Identifying potential conflict situations

One of the keys to any conflict of interest policy relying on disclosure is the ability of individual employees in the institution to recognize possible conflict of interest situations so that they can, in good faith, be recorded and managed. The Committee felt that it would be very useful to provide a list of situations which may be of concern in order to alert employees to potential problem areas. This list can be found in the ‘Examples’ section of the policy on Conflict of Interest.

[1] Statements pertaining to conflict of interest situations are contained in other UW policies, including: 33 (Ethical Behaviour); 40, 44, 45, 48, 50 and 68 (re Academic Administrators); 41 (Contract Research); 49 (Extra-University Activity); 52 (Private Corporations); 62 (Conflict of Interest in Employment & Supervision of Personnel); 66 (Use of University Resources and Affiliation); 77 (Tenure and Promotion).