Judith L Curry Associate General Counsel NC State University December 2 2011 Board of Governors Policy Board of Governors Conflict of InterestCommitment Policy Participation of EPA employees inconsulting is an important characteristic of academic employment that often leads to s ID: 775521
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Slide1
AVOIDING CONFLICT IN FACULTY CONSULTING
Judith L. Curry
Associate General Counsel
NC State University
December 2, 2011
Slide2Board of Governors Policy
Board of Governors Conflict of Interest/Commitment Policy:
“Participation of EPA employees in….consulting, is an important characteristic of academic employment that often leads to significant societal benefits, including economic development through technology transfer.”
Slide3Board of Governors Policy
“However, such external professional activities for pay are to be undertaken only if they do not
Create a Conflict of commitment
Create a Conflict of interest
Involve inappropriate use or exploitation of University resources…”
Slide4NCSU Regulations and Policies
NC State Conflicts of Interest and Commitment Regulation [
REG01.25.01
]
Patent and Tangible Research Policy [
POL10.00.01
]
Slide5Consulting Must be Reported and Approved In Advance
Must be reported at least 10 days in advance [NOI]
Department Head Approval
May require update of COI report
Slide6Testing and Services Agreement
Project Coordinator certifies:
No research component
NOT WORKING AS CONSULTANT
WILL NOT IN FUTURE CONSULT FOR PURPOSE OF ANALYZING DATA
Slide7Use of University Space and Equipment
Generally not permitted
Inappropriate use or exploitation of University resources
means using any services, facilities, equipment, supplies or personnel which members of the general public may not freely use.
BOG Policy 300.2.2 Conflict of Interest and Commitment
Slide8TSA or Lab Use Agreement
TSA FORM ON SPARCS website
LAB USE AGREEMENT
OGC website Contract Library
Slide9Conflicts of Commitment
Consulting which involves time commitment that interferes with employee’s accomplishing university duties
Slide10Conflicts of Interest
An employee has a conflict of interest when:
Personal interest
Affects or appears to affect
Objectivity in conduct of University duties
Slide11Example:
Consulting for a company with regard to the same subject matter for which he/she acts as principal investigator under a research agreement sponsored by company
Also may violate N.C.G.S. 14-234(a)(1) which prohibits public employees from deriving a direct benefit from public contracts
Slide12Consulting and the Copyright Policy
Condition of Employment
Copyright
Only Directed Works Must be Assigned
University Shop Right
Slide13Consulting and the Patent Policy
Article 6, Patent and Tangible Research Policy
Assignment to University
University administered funds
Scope of Employment
Substantial Use of University resources
Slide14Scope of Employment
North Carolina Law:
Employer may require assignment unless the invention does not relate to the employer’s business or actual or demonstrably anticipated research or development N.C.G.S. 66-57.1
Slide15Inventions Made with Substantial Use of University Resources
Resources that would not be available to unaffiliated person
Exceptions
Minimal office use
Library
Personal Computer
Slide16Key Terms in Industry Consulting Agreements
Confidential Information/Data Protection
Intellectual Property Ownership (Roche type language)
Liability
Indemnity
Choice of Law/Forum
Non-Compete
Slide17Stanford v Roche
Board of Trustees of the Leland Stanford Junior University v Roche Molecular Systems, Inc., 131
S.Ct
. 2188, 180 L.Ed.2d 1 (June 6, 2011)
Slide18How Can I Avoid Conflict Between My Consulting and University Policies?
Report NOI/COI
Provide copy of University Patent Policy to company
Define narrowly and precisely the subject matter of consultancy
Slide19What Are The Legal Risks To Me Personally In Engaging In Consulting?
Damages for Breach of Contract
Liability for misappropriation of state property (intellectual property)
Slide20How Can I Minimize The Risk Of Liability For My Consulting?
Spell out clearly your responsibilities to the University
Consult personal legal counsel and obtain review of contract
Obtain errors and omissions insurance
Seek guidance from Office of General Counsel if questions about University policies
Slide21Slide22