Policy Number: 101.5 (Replaces #66.0)

Policy: Faculty Consulting Policy

Date Adopted: 07/99

Revision Date:

References: MUS 302, 702.1; CBA

Approved By: George M. Dennison, President


I GENERAL PRINCIPLES

The University of Montana-Missoula (hereafter University) recognizes that appropriate consulting activities may be mutually beneficial to the University and University faculty. The benefits include enhancing the knowledge, expertise and experience of the faculty; assisting in maintaining knowledge of practice and applications; opening and expanding contact and communication with other institutions, organizations, industry, governmental agencies and other clients; and fostering public service activities otherwise unavailable. Thus, appropriate consulting activities constitute enrichment and continuing education activities, which enhance the professional development and reputation of faculty. This in turn may result in improved teaching, research, and service. Hence, reasonable participation in consulting is encouraged within the parameters of this policy and any applicable law, Regents or University policy, or collective bargaining agreement. The University further recognizes the faculty's right to engage in such consulting pursuant to the University faculty collective bargaining agreement, as long as the consulting meets applicable cost reimbursement, conflict of interest and other legal requirements; and also as long as the consulting activity is consistent with and reported in a manner consistent with applicable Regents policies and the provisions herein.

Although consulting may make faculty better scholars and teachers, the consulting process has in it the potential for diversion of faculty from their primary activities and responsibilities. The basic principle of this Policy, therefore, is that there are limitations upon University faculty members who undertake consulting. The purpose of the Policy is to state those limitations which apply to all faculty members and the reasons for them. There are limits and requirements related to faculty consulting beyond those limits described there which may apply to faculty members whose work involves the University in a third party relationship. In particular, agencies like the National Science Foundation (NSF) and the National Institutes of Health (NIH) require disclosure of some consulting activities, which may be exempt from such disclosure under this policy. The University and its faculty must conform to these external agencies' policies and requirements in submitting grant proposals and working on or administering grants. The University Research Administration Office should be contacted about these external agency policies.

The limits set forth below are intended to strike a balance between consulting and regular faculty duties within the University and serve to safeguard the interests of all concerned. In cases of ambiguity, the primary guide should be the intention to promote the interest of University education, learning, and research.

II DEFINITION OF CONSULTING

For purposes of this Policy, consulting is defined as professional activity related to the faculty member's field or discipline, where a fee-for-service or equivalent relationship with a third party exists.

There are many types of consulting relations and fee arrangements. The principle is that, in consulting, a faculty member agrees to use professional capabilities to further the agenda of a third party, usually - but not always - in return for compensation. A faculty member serving as consultant may be on the client's payroll, work as an independent contractor, or not be paid at all. Consulting may take many different forms, e.g., service on a board of directors; expert witness testimony; report preparation; etc. Neither the form of compensation nor the capacity in which service is offered defines consulting under this policy. Instead, consulting subject to this policy occurs when a faculty member (a) works to advance the interests of a third party: (b) makes use of some knowledge, skill or experience essential to the faculty member's University position; (c) does not represent the University in the activity; and (d) none of the four categories of exclusion below applies. Several types of faculty activity, other than regular University duty, are not consulting within the scope of this Policy. These are:

1. Publication and creative activity. Scholarly communication in the form of books, movies, television productions, art works, performances, etc., though frequently earning financial profit for a faculty member and for another party (e.g., publisher), are not viewed as consultation. To attempt to distinguish between types of books, to assess the roles of book publication in different disciplines, or to challenge the historical relation between authorship and manuscript ownership would be fraught with danger and confusion. These reservations apply equally to the other types of scholarly communication cited. Consequently included within this category are the activities of faculty in the fine and performing arts as exhibitor, performer, director, or conductor.

2. Professional Service. Under this category fall seminars, service on national commissions, on governmental agencies and boards, on granting agency peer-group review panels, on visiting committees or advisory groups to other universities, and on analogous bodies. Professional service also includes serving as a clinician or adjudicator in the fine and performing arts. The fundamental distinction between consulting and professional service activities (service to which a faculty member's disciplinary expertise is essential) is that in providing professional service, the faculty member acts on the University's behalf; and in consulting, the faculty member acts on the client's behalf. Although an honorarium or equivalent sometimes is forthcoming from professional services, these professional service activities are not undertaken primarily for personal financial gain. Therefore, such service is not consulting with the scope of this Policy.

3. Faculty members may pursue a variety of endeavors for financial profit that are not directly related to their fields or disciplines. These efforts are not considered consulting under this Policy, but such activities may fall within the scope of Board of Regents and University Conflict of Interest Policies, as well as a federal and state laws and collective bargaining agreements, which regulate Montana public employee conflicts on interest.

4. Private Citizen Activities as described in Section 6.100 of the Collective Bargaining Agreement between The University of Montana University Faculty Associaion (UFA) and the Montana University System.

III RESPONSIBILITIES OF FACULTY MEMBERS

Consulting is encouraged, provided the faculty member's primary obligations to the University are met first. The responsibility for adhering to reasonable consulting limits and other aspects of this Policy lies first with each individual faculty member. Faculty members have an obligation to report, fully and currently, their consulting activities. Faculty members should resolve any questions or ambiguities with the appropriate University official before the fact, so that the campus community is not injured by a consulting activity. The University has the right and the obligation to prevent unwarranted costs caused by consulting. In addition, a faculty member's first obligations are to the University; a faculty member therefore may not assist other organizations in competing for research or instruction grants or contracts of the type pursued by the University.

IV USE OF UNIVERSITY NAME, FACILITIES, OR SERVICES

In general, the use of University personnel, equipment, facilities, and materials should be avoided in consulting. When the use of such resources is required, the faculty member's academic dean (or other administrator designated by the University President for this purpose) must provide prior approval and the University must be reimbursed in full for all expenses chargeable to it at rates customarily charged to outside groups for similar use.

Both a faculty member's and the consulting sponsor's use of the University name in connection with private consulting in a manner suggesting University involvement in such consulting is prohibited.

V CONFLICTS OF INTEREST

All consulting activities subject to this Policy shall fully comply with the Montana Board of Regents and The University of Montana-Missoula Conflict of Interest Policies dated December 10, 1997 and December 2006, respectively, and with all applicable laws and collective bargaining agreements.

VI REPORTING OF FACULTY MEMBER CONSULTING

Effective July 1, 1999, each University of Montana-Missoula faculty member who wishes to engage in consulting activities should prepare a Memorandum to the faculty member's academic department chair and dean describing each proposed consulting activity and submit this Memorandum at least fourteen (14) working days before the faculty member begins the proposed activity. This 14-day period may be less where circumstances warrant, such as when an activity sponsor gives the faculty member shorter time to respond to a consulting offer. The Memorandum should state:

1) The sponsor(s) and sponsor(s) nature, i.e., state agency, private company, university, etc.;

2) The amount of time expected to be spent on the activity, along with the specific dates and times when the consulting activity is expected to occur;

3) University facilities and resources needed for the activity (including but not limited to supplies and equipment, secretarial and student time, long distance telephone and fax charges, photocopies, travel and transportation to be charged through University accounts, etc.), and the estimated cost to the University of such resources;

4) An affirmative commitment in the Memorandum that the faculty member will reimburse the University in full pursuant to a specific reimbursement schedule for all such resources used;

5) Any University of Montana-Missoula and other Montana University System employee(s) and/or student(s) likely to be used in the proposed activity, plus a description of the level of any such persons' involvement;

6) Any actual or potential conflict of interest of which the faculty member is reasonably aware when the proposed activity might conflict with any other University of Montana- Missoula or other Montana University System activity, and if so, whether the faculty member has submitted the proposed activity description to the University Office of Research Administration for conflict of interest review;

7) Whether the proposed activity is subject to sponsor(s) request for confidentiality regarding the activity or any aspect thereof, and if so, the specific nature of the confidentiality request should be described;

8) Whether the faculty member has notified or will notify the sponsor(s) by letter, in a form substantially similar to the sample appended hereto as Attachment A, that the faculty member will engage in the proposed activity as a private consultant; The University of Montana is not a party to the consulting agreement and is in no way responsible for the faculty member's performance or the consulting activity itself; and the University name will not be used in connection with the consulting activity absent express prior consent of the faculty member's dean;

9) A description of any intellectual property rights or publication the proposed activity is likely to produce (to be provided for the purpose of identifying any reasonably likely infringement issues before they arise); and

10) A brief description of how the proposed activity will likely benefit The University of Montana, including benefit to the faculty member's own academic and professional development.

The Memorandum required in this Policy may be in the form appended hereto as Attachment B. Once any consulting activity has begun, the consulting faculty member should report any material changes in any of the above Memorandum information to the faculty member's academic dean in timely fashion. In addition, the faculty member should provide a detailed accounting of all University resources used in the consulting activity once the activity concludes.

The University shall maintain in confidence all information for which such confidentiality is requested pursuant to paragraph (7) above to the full extent permissible or required by law. Moreover, nothing in the Policy requires any consulting client identity disclosure prohibited by law (including any professional license ethics rule bans on disclosure); except that in such cases, the faculty members shall provide all information, which may be legally, disclosed.

The faculty member shall have the presumptive right to engage in the proposed consulting activity unless the faculty member's academic dean (or any person authorized by the President to act on behalf of the academic dean) notifies the faculty member within ten (10) days after delivery of the Memorandum that the proposed activity will result in an actual or likely conflict of interest with another University of Montana-Missoula or Montana University System activity; materially interfere with the faculty member's regularly assigned University duties; is contrary to federal or state law or University policy; or unless the Memorandum required to be submitted by the faculty member omits any material information about the proposed activity and the faculty member fails to provide such information in timely fashion. Any faculty member receiving such notification may request immediate UFA-Administration Committee review of the matter through the University Faculty Association to determine whether the proposed activity appears consistent with faculty rights and responsibilities set forth in the faculty bargaining agreement. The burden is on the academic dean or other administrator seeking to deny consulting permission to prove to the Committee that the proposed activity is contrary to Board of Regents Policy 401.1 or any applicable law or collective bargaining agreement. The Committee must generally make its determination with two weeks of a request for review; and shall attempt in good faith to make a determination more promptly when the nature or schedule of the proposed consulting activity so warrants.

Faculty need not file the above Memorandum if the proposed consulting activity will not exceed more than the equivalent of one (1) calendar day per year and there is no reasonable expectation of a continuing relationship. Even if no such Memorandum is required, the faculty member is still responsible for reimbursing the University for all University resources used; and for adhering to all applicable laws and policies, including those prohibiting and regulating conflicts of interest.

Within sixty (60) days following the end of each fiscal year, each academic dean shall prepare and provide to the University Provost a completed Consulting Activities Report (Attachment C) for each faculty member in the academic dean's college or school during the previous academic or fiscal year based on information from the consulting activity Memoranda described above. No report is needed for faculty members who have not engaged in consulting as defined above during the relevant time period.

This Policy does not require a faculty member to report the amount of compensation earned in any consulting activity subject to its provision.

VII APPLICABILITY OF THIS POLICY TO NON-UFA UNIVERSITY PERSONNEL WITH AT LEAST .5 FTE APPOINTMENT

To the full extent practicable, this Policy shall apply to all University of Montana employees with at least .5 FTE University appointments, including administrators, faculty who are not members of the University Faculty Association, and other personnel. Specifically, each employee must prepare and submit the Consulting Reporting Memorandum required in Section VI of this Policy for review by the employee's supervisors (who for non-UFA faculty members shall include department chairs, if any, and academic deans; and for other employees shall include their immediate supervisors plus the University Executive Officer responsible for any disclosing employee's University activity). In addition, any reporting employee's academic dean or Executive Officer subject to this Section shall prepare and provide to the University Provost the annual consulting activities report required in Section VI of this Policy. Any employee subject to this Section shall have the same consulting rights and restrictions as UFA faculty members pursuant to Section VI of this Policy; and whenever a supervisor denies an employee subject to this Section the right to consult after receiving the required Consulting Reporting Memorandum, the employee denied such right may request in writing that the University President appoint an ad hoc committee comprised of persons other than the employee's supervisor to review the denial in a manner similar to the review conducted by the UFA-Administration Committee pursuant to Section VI.

No Applicable Procedure