Conflict of Commitment

2010-12-15 06:38:24 by admin

Conflict of commitment is a complex and controversial concept with potentially significant legal consequences that generally refers to those workrelated situations in which the outside activities of college and university employees interfere with the time and effort that they are supposed to be providing for their employers. In higher education, conflicts of commitment commonly arise when faculty members or any other employees engage in outside work that, while related to their assigned duties, may reduce their ability to meet their contractual obligations to their primary employers. As such, conflicts of commitment may overlap with conflicts of interest when personal finances are involved; in the broader sense, conflict of commitment refers to conflicts of employees’ time and energy. This entry describes several institutional approaches, reviews some of the main cases in this area, and considers proposals to address ongoing policy issues.

Institutional Policies

Various organizations have begun to address the ethical issues surrounding conflicts of commitment. According to the Association of American Medical Colleges (AAMC), for example, “conflict of commitment” refers to an individual faculty member’s distribution of effort between obligations to his or her academic appointment and his or her commitment to outside activities. The AAMC stipulates that a conflict of commitment exists when outside activities interfere with the employee’s obligations to students, colleagues, and the primary missions of the academic institution at which he or she is employed (AAMC, 1990).

At the same time, guidelines from the Association of Academic Health Centers (AAHC) emphasize the legal obligation of faculty members or other academic staff members to devote their primary effort and allegiance to their employers. The guidelines caution that any effort to divert to other entities or institutions opportunities for research, education, clinical care, or financial support that might come to the employer constitutes an inappropriate conflict of commitment (Euben, 2004).

The American Association of University Professors (AAUP) has not issued a specific statement on conflicts of commitment. However, AAUP policies do address the issue. For instance, in its Statement on Professional Ethics, the AAUP asserts that “Professors give due regard to their paramount responsibilities within their institution in determining the amount and character of work done outside it” (AAUP, 1987, 4). As early as 1965, the AAUP and the American Council on Education recommended that universities develop guidelines to help individual staff members understand how to conduct outside interests that might generate conflicts of interest (“On Preventing Conflicts,” 1965).

Employers in higher or postsecondary education have attempted to manage conflicts of commitment by establishing institutional definitions, policies, and procedures. A simple Internet search of “conflict of commitment” on Google reveals literally thousands of references to institutional definitions, policies, and procedures governing conflicts of commitment at universities and colleges. All of these references include elements of faculty and staff members’ obligations to their students and employers and the need to balance outside activities to permit fulfillment of their work obligations. They also acknowledge employees’ rights to conduct outside work such as consulting, holding public office, publishing, researching, serving on the board of directors of an outside organization, serving as an elected officer of an academic organization, serving as an editor of a scholarly publication, starting an outside company, and teaching. More specifically, employees in institutions of higher learning in some states are prohibited from holding public office at the same time that they hold teaching appointments due to state restrictions against receiving dual compensation from public funding.

Legal Cases

Court challenges to outside faculty activities generally have involved the grounds of constitutional and contractual law. In constitutional cases, the Fifth Circuit upheld the right of two part-time faculty members to work with a legal services group, because their outside work did not hamper their contracted instructional activities (Trister v. University of Mississippi, 1969). The same court also found in favor of a faculty member from a marketing department in upholding his First Amendment right to serve as an expert witness for the defense in a case where the state was suing a tobacco company (Hoover v. Morales, 1998). Further, the Supreme Court of Arkansas was of the opinion that state restrictions on outside consulting were unreasonable when they were based on distinctions among faculty rank (Atkinson v. Board of Trustees of the University of Arkansas, 1977). Yet the Eighth Circuit affirmed a grant of summary judgment in favor of a university in rejecting a faculty member’s claim that officials violated his First Amendment rights to free speech and association, among other charges, when they refused to grant him a salary increase based on research that he conducted at his home laboratory (Day v. University of Nebraska, 1995, 1996).

Courts have rejected claims that institutional restrictions were unconstitutional, including upholding a provision in an employer’s Collective Bargaining agreement that prohibited outside fulltime employment (Kaufman v. Board of Trustees, 1982), institutional restrictions on private practice revenue for medical doctors (Adamsons v. Wharton, 1985; Kountz v. State University of New York, 1983), and a university’s restriction on the amount of outside practice a faculty member could engage in (Gross v. University of Tennessee, 1980).

On another issue, the Supreme Court of Appeals of West Virginia upheld the contractual right of a faculty member to “moonlight” (Graf v. West Virginia University, 1992). Even so, where Contracts and faculty handbooks prohibit concurrent full-time employment at other institutions, courts have ruled in favor of colleges and universities (Marks v. New York University, 1999; Morgan v. American University, 1987; Moshtaghi v. The Citadel, 1994). In addition, failure to disclose a dual appointment has been upheld as just cause for termination (Zahavy v. University of Minnesota, 1996).

Ongoing Policy Issues

Online teaching has created novel issues for employers and faculty members alike, because the faculty member may teach for other institutions while using institutional resources to create, maintain, and deliver the outside online courses. Institutions commonly address this dilemma by enacting policies that restrict the faculty member from teaching online courses for other institutions without first obtaining permission from the employer. Euben (2004) engages in a more thorough review and analysis of issues surrounding Intellectual Property rights and electronic moonlighting.

Euben notes another concern for colleges and universities when faculty members use students in their own outside employment opportunities. In this regard, Euben points out that such relationships can raise questions about so-called student exploitation, the overlapping effects of evaluating student work and classroom performance, the fairness of treatment for students not included in faculty members’ outside activities, the potential effects of student–faculty member relationships that sour, and possible restrictions by the outside activities on the research interests of the students.

In crafting practical solutions to the issues associated with conflict of commitment, Harrington (2001) identifies three basic elements to include in any policy: clear guidance about the minimum requirements of employees, requirements to disclose to employers all potentially relevant outside activity, and appropriate procedures for the review and resolution of conflicts.

Euben elaborates on additional elements, including the requirement of an explanation about how rules can protect faculty members, defining “conflict of commitment” in the context of the institution, differentiating between paid and unpaid outside commitments, distinguishing what activities do not constitute conflicts, articulating to whom policies apply—such as to part-time versus full-time faculty, differentiating the application of policies to the term of employment—such as 12-month versus 9-month employees, explaining how leave options may permit outside activities that otherwise might constitute conflicts of commitment, disclosing the impact that conflicts may have on tenure or promotion opportunities, and stipulating the effects of conflicts on indemnification coverage by employers. Employees and employers in higher education may also receive guidance from organizations that set professional standards for their disciplines, such as disciplinary associations and accreditation and licensing bodies.

Terrence Leas

See also Conflict of Interest

Further Readings

  • American Association of University Professors. (1987). Statement on professional ethics. Retrieved June 3, 2009, from policydocs/contents/statementonprofessionalethics.htm
  • Association of American Medical Colleges. (1990). Guidelines for dealing with faculty conflicts of commitment and conflicts of interest in research. Academic Medicine, 65, 487–490.
  • Boyer, C., & Lewis, D. R. (1984). Faculty consulting: Responsibility or promiscuity. Journal of Higher Education, 55(5), 637–659.
  • 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 protect/legal/topics/conflicts.htm
  • Gregory, D. L. (1991). The assault on scholarship. William & Mary Law Review, 32, 993–1004.
  • Harrington, P. J. (2001). Faculty conflicts of interest in an age of academic entrepreneurialism: An analysis of the problem, the law and selected university policies. Journal of College & University Law, 27, 775–831.
  • Kaplin, 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.
  • On preventing conflicts of interest in governmentsponsored research at universities. (1965). AAUP Bulletin, 51(42–43).
  • Rabban, D. M. (1998). Does Academic freedom limit faculty autonomy? Texas Law Review, 66, 1405–1430.
  • Weston, M. C. (1980–1981). Outside activities of faculty members. Journal of College &University Law, 7, 68–77.

Legal Citations

  • Adamsons v. Wharton, 771 F.2d 41 (2d Cir. 1985).
  • Atkinson v. Board of Trustees of the University of Arkansas, 559 S.W.2d 473 (Ark. 1977).
  • Day v. University of Nebraska, 911 F. Supp. 1228 (D. Neb. 1995), aff’d 83 F.3d 1040 (8th Cir. 1996).
  • Graf v. West Virginia University, 329 S.E.2d 496 (1992).
  • Gross v. University of Tennessee, 620 F.2d 109 (6th Cir. 1980).
  • Hoover v. Morales, 164 F.3d 221 (5th Cir. 1998).
  • Kaufman v. Board of Trustees, 552 F. Supp. 1143 (N.D. Ill. 1982).
  • Kountz v. State University of New York, 450 N.Y.S.2d 416 (N.Y. App. Div. 1983).
  • Marks v. New York University, 61 F. Supp. 2d 81 (S.D.N.Y. 1999).
  • Morgan v. American University, 534 A.2d 323 (D.C. Ct. App. 1987).
  • Moshtaghi v. The Citadel, 443 S.E.2d 915 (S.C. Ct. App. 1994).
  • Trister v. University of Mississippi, 420 F.2d 499 (5th Cir. 1969).
  • Zahavy v. University of Minnesota, 544 N.W.2d 32 (Minn. Ct. App. 1996).