Conflict of Interest - Law and Higher Education
Conflict of interest, like its sibling conflict of commitment, is a complex and important branch of employee ethics in higher education that can have significant legal ramifications for individuals and institutions. In their most common context, conflicts of interest refer to situations in which the judgment and actions of employees may be influenced by personal financial considerations or the potential to benefit personally from their decisions. As such, conflicts of interest interfere with the ideal of independent, fair, and impartial judgment of employees.
In higher education, conflicts of interest may arise in different contexts, including accepting gifts related to decisions made in connection with employees’ official duties; acting as, or making specific recommendations for, agents or attorneys; using or profiting from confidential information acquired during the course of work; accepting bribes; engaging in nepotism or inappropriate romantic relationships; soliciting for charitable, personal, political, or social purposes; accepting outside employment; using students or state property for personal benefit or the benefit of friends or family members; and improperly influencing the outcome of research for personal gain. Conflicts of interest are not limited to employees’ actions on their own behalf insofar as these conflicts may be created by officers of institutions of higher learning on behalf of their colleges or universities.
Attorneys representing colleges and universities are subject to ethical standards that prohibit conflicts of interest in the client–attorney relationship. The American Bar Association has promulgated a document titled “Model Rules of Professional Conduct in Client–Lawyer Relationship” to help attorneys avoid conflicts of interest in the course of representing multiple clients, engaging in business relationships with clients, using confidential client information, accepting gifts from clients, providing financial assistance to a client, accepting compensation, and engaging in a sexual relationship with a client. Higher education faculty and staff members are generally subject to the same standards as attorneys.
In further attempts to deal with conflicts, states have adopted codes of employee conduct governing situations in which there is a conflict of interest for public employees. Public and private colleges and universities may also rely on state codes, institutional policies, collective bargaining agreements, and contract language to manage faculty and staff members’ conduct and minimize potential conflicts of interest. In addition, federal laws and rules for conflicts of interest may extend to employees of institutions receiving federal funding.
Kaplan and Lee (2006) note that a special area of concern for higher education related to conflicts of interest is the relationships that may arise between colleges and universities, faculty researchers, and corporations that sponsor research. As state and federal funding for research declines, institutions may seek funding from business and industry. Other factors, such as lagging faculty salaries, pressure to meet standards for promotion or tenure, the need for specialized equipment, and demands to place graduate students in corporate positions may lead faculty researchers to form their own collaborations with the private sector.
The high stakes and complex combinations of institutional and faculty researchers’ entrepreneurial relationships with business and industry raise equally complex policy, legal, and managerial issues. Beyond the financial considerations, issues of loyalty and effort give rise to conflicts of commitment. Kaplan and Lee emphasize the need for officials in institutions of higher learning to scrutinize carefully institutional or faculty members’ involvement in such entrepreneurial research relationships. Special care in managing such complex relationships includes devising structural and contractual agreements carefully; appointing highlevel officials to supervise sponsored research, technology transfer, and patent management; assigning trustees to a special committee to oversee the institution’s outside research ventures; securing legal counsel and risk managers with expertise in these esoteric fields; adopting formal written policies governing conflicts of interest, patent ownership, and licensing rights; and keeping a focus on institutional missions to avoid compromising their values and standards.
Strategies for managing conflicts of interest in general include promulgating codes of conduct or ethics for employees, requiring disclosure of personal interests in a manner such as occurs with elected officials, removing decision makers when potential conflicts exist such as when judges recuse themselves, and seeking assurances from an impartial third party such as an auditor with expertise in the area of the potential conflict. Moreover, codes of ethics and conduct, the most common strategy employed by institutions of higher learning as revealed by an Internet search for “conflict of interest,” afford institutional officials and their employees with guidance regarding potential conflicts and constructive notice of behavior that employers will not tolerate.
- American Bar Association, Center for Professional Development. (n.d.). Model rules of professional conduct. Client–Lawyer Relationship, Rule 1.7 Conflict of Interest: Current Clients. Retrieved April 17, 2009, from http://www.abanet.org/cpr/mrpc/rule_1_7.html
- American Bar Association, Center for Professional Development. (n.d.). Model rules of professional conduct. Client–Lawyer Relationship, Rule 1.8 Conflict of Interest: Current Clients: Specific Rules. Retrieved April 17, 2009, from http://www.abanet .org/cpr/mrpc/rule_1_8.html
- Carboni, R. A. (1992). Planning and managing industryuniversity research collaborations. Westport, CT: Quorum Books.
- Davis, M. (1991). University research and the wages of commerce. Journal of College & University Law, 18, 29–38.
- Euben, D. R. (2004, March 5). Faculty employment outside of the university: Conflicts of commitment. Presentation to the National Association of College and University Attorneys, Atlanta, Georgia. Retrieved April 17, 2009, from http://www.aaup.org/AAUP/ protect/legal/topics/conflicts.htm
- Kaplan, W. A., & Lee, B. A. (2006). The law of higher education: A comprehensive guide to legal implications of administrative decision making. San Francisco: Jossey-Bass.