Office of the Provost

Conflicts of Interest and Conflicts of Commitment

Standard Practice Guide 201.65-1 -- Frequently Asked Questions

General Questions about the Policy

Q: What constitutes a COI or COC?

A: It is neither possible nor necessary to define precisely what interests or activities will constitute a COI or COC in all circumstances. Instead, the Standard Practice Guide (SPG) requires disclosure of potential COIs or COCs, as defined in the SPG and in school, college, or unit implementing policies. Potential COIs and COCs are inevitable and are not, in and of themselves, problematic. Rather, it is important for faculty and staff to disclose potential COIs and COCs so that they can be evaluated and, if necessary, managed.

As defined in the SPG, a potential COI exists whenever personal, professional, commercial, or financial interests or activities outside of the University have the possibility (either in actuality or in appearance) of: (1) compromising a faculty or staff member’s judgment; (2) biasing the nature or direction of scholarly research; (3) influencing a faculty or staff member’s decision or behavior with respect to teaching and student affairs, appointments and promotions, uses of University resources, interactions with human subjects, or other matters of interest to the University; or (4) resulting in a personal or family member’s gain or advancement at the expense of the University. A potential COC exists when a faculty or staff member’s external relationships or activities have the possibility (either in actuality or in appearance) of interfering or competing with the University’s educational, research, or service missions, or with that individual’s ability or willingness to perform the full range of responsibilities associated with his or her position.

Each school, college, and unit (with faculty consultation and approval) is required to have procedures to evaluate disclosures of potential COIs or COCs to determine whether a potential conflict exists under the circumstances at issue, and if so, how to manage that potential conflict.

Some examples of potential COIs that might be disclosed, but may or may not require further action include, but are not limited to, situations in which: (1) a researcher conducting sponsored research expects to receive a large consulting fee from the pharmaceutical company whose product is being tested; (2) a faculty member is in a position to direct University business to his or her spouse’s company; (3) a faculty member expects to receive an honorarium for a lecture that the faculty member will be giving at a conference sponsored by a for-profit business; and (4) a staff member uses University resources to promote outside business interests. After the faculty member or staff member discloses a potential COI, under the unit's implementation policy the appropriate University administrator(s) would evaluate the potential conflict and, if necessary, develop a plan to manage or eliminate the conflict.

Some examples of potential COCs that might be disclosed, but may or may not require further action include, but are not limited to, situations in which: (1) a faculty member intends to devote effort to preparing course materials for use at another university; (2) a staff member seeks to accept a position in an outside business; and (3) a faculty member wishes to engage in external research that would ordinarily have been conducted within the University. Again, following disclosure the appropriate University administrator(s) would evaluate the potential conflict and, if necessary, develop a plan to manage or eliminate it.

Q: Why does the SPG require faculty and staff to reveal a potential COI or COC?

A: Disclosure is important for several reasons. Disclosing and managing potential COIs or COCs, as needed, helps preserve the University’s and the individual faculty or staff member’s reputation for integrity within the higher education community. It also responds to the legitimate expectations placed upon a public university.

Disclosure may help protect a faculty or staff member from liability where federal or state law imposes an obligation to manage COIs or COCs. For example, federal law imposes such an obligation for federally sponsored research and disclosure in this area is already required. Because failure to comply with this obligation can jeopardize the University’s eligibility for federal funding, disclosure is in the best interest not only of the individual faculty or staff member involved, but of other members of the University community and the University itself.

Q: Why does the University want to know how I spend my time on weekends or vacation? Isn’t this an invasion of my privacy?

A: The University does not want to know how a faculty or staff member spends his or her time on weekends or vacations unless those activities or interests may, either in appearance or in actuality, interfere with, compromise, or bias the faculty or staff member’s fulfillment of his or her University obligations, or otherwise conflict with the University’s interests.

For faculty members, the obligation to disclose potential COCs stems not only from SPG 201.65-1, but also from Regents’ Bylaw 5.12. That Bylaw states that a “full-time member of the faculty shall not during the academic year be employed for remuneration by other agencies than the University except with approval of the proper University authorities” and that “[w]henever outside employment is permitted in connection with a ‘part-time’ appointment, the portion of time which is engaged by the University shall be stated in the appointment notice and in the budget.”

Q: Does this mean the University wants faculty and staff to cut back on their external activities?

A: The University encourages external activities and relationships that enhance the mission of the University. In fact, the SPG specifically recognizes the right of faculty and staff members to acquire and retain outside interests of a professional, personal, or economic nature. The SPG also acknowledges, however, the importance of ensuring that faculty and staff members’ outside interests are not in conflict with University interests or with the individual employee’s commitment to the University, to the University’s students, sponsors, patients, donors, or to other parties to whom the University has a duty. 

Q: What steps does the University expect me to take to determine whether any of my family members are involved in activities that cause me to have a potential COI or COC with the University?

A: The SPG requires disclosure when faculty or staff members are aware of relevant family activities that create a potential COI. It is up to the unit to determine whether and when further inquiry is appropriate. The steps a faculty or staff member should take will depend on the circumstances. For example, where the potential conflict is significant, additional inquiries may be necessary to ensure that a faculty or staff member has made full disclosure of family interests or activities that may constitute a COI.

Q: What if a faculty or staff member is uncertain whether a given situation constitutes a potential COI or COC?

A: The faculty or staff member does not need to decide whether there is a conflict. Instead, whenever there is any possibility of a conflict, the individual should discuss the matter with the person designated by the unit to handle potential conflicts. That person may decide there is no potential conflict, that any potential conflict can be easily managed, or that a more ambitious management plan must be adopted.

Q: What if, as a faculty member or staff member, I don’t disclose a potential COI or COC in a timely manner because I was not aware a potential conflict existed? How will the University respond?

A: The faculty or staff member should disclose the potential conflict as soon as he or she realizes that disclosure may be warranted. The dean, director, or his or her designate will consider the circumstances in deciding how to respond. In many cases, he or she will find the faculty or staff member’s lack of awareness to be reasonable and understandable. In some cases, he or she may require that the faculty or staff member receive additional training or counseling. Where there is a serious actual conflict and the faculty or staff member’s failure to disclose appears unreasonable, appropriate disciplinary action may be taken.

Q: As a faculty member or staff member, if I disclose a potential COI or COC will I have a say in the plan that is developed to “manage” this conflict? Is the management plan “negotiable”?

A: The SPG states that the appropriate administrator(s) will develop a plan to manage a COI or COC “in consultation with the faculty or staff member.” Also, each unit must include procedures in its implementation policy for considering any concerns a faculty or staff member has about the scope or details of the conflict management plan. These procedures could involve a standing faculty committee and/or use existing dispute procedures.

Q: As a faculty member or staff member, what if I have questions? Whom can I contact for information?

A: For general questions, faculty and staff can contact the relevant deans' offices of the Office of the Provost and Executive Vice President for Academic Affairs. If you would like to suggest adding a question to the FAQ that is not answered here, please contact Catherine Shaw, Assistant Vice Provost (cashaw@umich.edu or 647.9981).

For questions regarding publications and sponsored project funding, faculty and staff can contact the Office of the Vice President for Research.

Disputes and Appeals

Q: As a faculty member or staff member, can I dispute a determination as to whether a potential COI or COC exists, and, if so, to whom can I dispute that determination?

A: A faculty or staff member can dispute any action or decision related to a potential COI or COC. The appropriate forum for dispute will depend upon existing University policies for handling faculty and staff disputes, as supplemented by any dispute procedures that the unit has developed. These unit dispute procedures must coordinate with, and cannot substitute for, existing University policies for handling disputes.

Q: As a faculty member or staff member who believes I have been wrongly accused of failing to adhere to a conflict management plan, is there a grievance procedure available to me?

A: A faculty or staff member can appeal actions or decisions related to COIs or COCs using existing University dispute or grievance policies for faculty and staff. Faculty or staff who wish to dispute decisions or actions of one of the two established COI committees – the Office of the Vice President for Research Conflict of Interest Review Committee and the Medical School Conflict of Interest Board – must follow the processes established by that committee. If a school, college, or unit has developed additional procedures for responding to disputes or appeals relating to COIs or COCs, those procedures must coordinate with, and cannot substitute for, existing University policies for handling disputes.

Q: As a faculty or staff member who has been disciplined for allegedly violating the COI/COC policy, how can I appeal the disciplinary action?

A: A faculty or staff member can appeal a disciplinary decision underexisting University policies for handling faculty and staff disputes. If an individual school, college, or unit has adopted additional procedures for handling COI or COC disputes and appeals, the additional procedures must coordinate with, and may not substitute for, existing University policies for handling disputes.

Confidentiality of Records and Freedom of Information Act (FOIA) Questions

Q: If I disclose a potential COI or COC, will the information I provide be treated as confidential?

A: University administrators must respond appropriately to all potential COIs or COCs that arise under this policy. Within this context, they must make every reasonable effort to preserve confidentiality and protect the privacy of all parties in the course of investigating and managing a potential COI or COC. (See Regents’ Bylaw 14.07 Privacy and Access to Information and Standard Practice Guide 201.46 Personnel Records – Collection, Retention, and Release.)

In some cases, an administrator must disclose a potential COI or COC to others. For example, if a conflict exists within the context of a federally sponsored project, the University must disclose the existence of that conflict (without providing identifying information) to the federal government and must indicate whether it has managed that conflict. Also, the University may need to disclose certain information when responding to requests for information under the Michigan Freedom of Information Act (FOIA).

Q: Are all unit implementation policies across the University the same?

A: No. Because the University is so decentralized, a one-size-fits-all unit implementation policy is not feasible. Therefore, each unit has tailored its guidelines to the mission and activities of that unit. For example, attending business lunches may be an important part of some staff members’ responsibilities in certain units—but not in other units. Even where such lunches are part of a staff member’s responsibilities, the unit may have procedures in place to ensure that the staff member doesn’t improperly influence University decisions.

Q: Are written communications related to potential or actual COIs and COCs (e.g., email messages, memoranda, and written management plans) subject to release through FOIA?

A: FOIA permits persons to make requests to review or receive copies of University documents. While there are various exemptions to FOIA’s disclosure requirements, the courts have interpreted the exemptions narrowly. When no exemption applies, the University must provide the requested documents.

Because of its commitment to employee privacy, the University considers every reasonably applicable exemption to maintain confidentiality. This practice would, of course, apply to information generated by the implementation of COI/COC policies and procedures. The University would, for example, invoke an exemption for documents that contain private information that is personal in nature, as well as for communications within the University that discuss the proper approach for managing the conflict under consideration. Because the courts have interpreted FOIA exemptions narrowly, however, it is unlikely that the University will be permitted to protect all information pertaining to potential COIs and COCs. For example, courts typically require disclosure of information that is strictly factual in nature (e.g., the names of the principals of an entity doing business with the University), that is otherwise publicly available from another source (e.g., stockholder disclosure forms available through the Securities and Exchange Commission website), or that is received from third parties (e.g., vendor disclosures to the University through IRS Form W-9).

Questions Related to the Development of School, College, and Administrative Unit Implementation Policies

Q: How long do I need to keep records related to disclosures and conflict manage plans?

A: Often the documentation related to a potential conflict disclosure and its management fall into multiple record categories. For example, some of the documents may be “Business and Financial records” governed by the document retention requirements of SPG 604.01. This SPG mandates a 7-year retention period when the particular documents relate to sponsored research, and sets other retention periods for other types of business and financial records. Other documents may fall into the category of “Personnel Records” governed by the document retention requirements of SPG 201.46, although generally this would not be the case. See SPG 201.46 ¶ II.A.2.g. Rather, records related to the disclosure of potential conflicts of interest and conflicts of commitment would in general be considered “Operating Unit records.” See SPG 201.46 ¶ II.E.2.

Currently there is not a University-wide standard for retention of Operating Unit records. However, after discussions with Human Resources and the Office of the General Counsel, the Provost recommends retaining Operating Unit records related to a potential conflict of interest or commitment that do not fall under SPG 201.46 or 604.01 for a period of 3 years after the potential conflict no longer exists.

Once the retention period for a document has expired, the recordkeeper (generally, the unit conflict of interest/conflict of commitment manager) should purge the records from the files. Because the information within these records will usually be personal, private, and confidential, the records should be destroyed by shredding or other appropriate means to help ensure that the unit maintains confidentiality.

Q: What COI/COC related documentation should the schools, colleges, and administrative units maintain in their files (e.g., in personnel files)? Is a written record always necessary or appropriate?

A: The dean, director, or designate may decide on a case-by-case basis whether documentation is appropriate. This decision will depend upon such considerations as the nature of the potential or actual conflict under review; the University employee’s role at the University and with any external entity; and how long the potential conflict is expected to exist. As a general rule, the unit should record and retain information that documents the disclosure, the evaluation of that disclosure, and any plan developed to manage a potential conflict.

Questions from Academic Leaders and Supervisors

Q: What are the ways in which deans, directors, or supervisors can “manage” COIs or COCs?

A: The dean, director, or designate will select an appropriate means of managing a particular potential COI or COC. A non-exhaustive list of actions that he or she might take, depending on the circumstances, include:

  • Deciding that no action is necessary;
  • Documenting that the faculty or staff member disclosed a potential COI or COC and the dean or director (or his or designate) investigated the circumstances and decided no significant problem exists;
  • Following up on potential COIs or COCs by making appropriate disclosures inside and outside the University;
  • Modifying or limiting the faculty or staff member’s duties to minimize or eliminate the conflict;
  • Securing the agreement of the faculty or staff member that he or she will modify or suspend outside activity, use of University resources, or other activities that create the potential conflict; or
  • Prohibiting certain outside activity as inconsistent with University obligations.

Q: What type of sanctions can a dean of a school or college or a director of an administrative unit issue to a faculty member or a staff member who has violated the policy by failing to disclose a conflict? By failing to abide by a conflict management plan?

A: Violations of the policy may be considered misconduct and could lead to the full range of disciplinary sanctions, as the dean or director deems appropriate under the circumstances.

Q: As an administrator, what if I have questions? Whom can I contact for information?

A: For general questions, faculty and staff can contact the relevant dean’s offices or the Office of the Provost and Executive Vice President for Academic Affairs. If you would like to suggest adding a question to the FAQ that is not answered here, please contact Catherine Shaw, Assistant Vice Provost (cashaw@umich.edu or 647.9981).

For questions regarding publications and sponsored project funding, faculty and staff can contact the Office of the Vice President for Research.

Questions Related to Coordination with Other University and External Policies

Q: The SPG procedures require the unit-level implementation procedures to address standards for the solicitation and acceptance of gifts. Which University policy covers gifts?

A: Regents’ Bylaw 2.16 Gifts to Regents and University Employees, states: “No Regent or University employee will accept any gift of substantial value from any student, or any person having business relations with the University, or anyone else based upon the Regent's or employee's position at the University.”

Q. How does the University’s COI and COC policy compare with the requirements of external agencies?

A: The University’s approach to addressing COIs and COCs is in compliance with agencies such as the National Science Foundation and the National Institutes of Health. Links are provided below to just a few such agency conflict policies:

National Science Foundation Grant Policies Manual, Section 510 Conflict of InterestPolicies:

http://www.nsf.gov/pubs/manuals/gpm05_131/gpm5.jsp#510

National Institutes of Health (NIH) Conflict of Interest Information andResources:

http://www.nih.gov/about/ethics_COI.htm

U.S. Food and Drug Administration (FDA) Draft Guidance on Disclosure of Financial Interest:

http://www.fda.gov/oc/guidance/advisorycommittee.html

Q: How will the process of disclosing a COI or COC dovetail with the University’s policy and procedures for sponsored projects?

A: Two faculty committees – the Office of the Vice President for Research Conflict of Interest Review Committee and the Medical School Conflict of Interest Board – with established procedures already exist to review disclosures of investigators’ significant financial or management interests in sponsored research and in intellectual property licenses to faculty start-ups. The SPG does not change the function of these committees. Although the SPG does not require academic units to establish additional faculty committees to review and manage disclosures, units may have chosen to do so.

Q: Some conflict of interest situations require Regental approval. What are they?

A: Under state law most contracts (direct and indirect) between the UM and a UM employee require Regents approval, including contracts for purchasing good and services.

As an example of a direct contract, if the UM wanted to purchase a product that a current UM employee manufactures in his or her basement, a Regents Action Item that informs the Regents of the proposed purchase would be required before the UM could finalize the contract. As an example of an indirect contract, if the UM wanted to purchase a product from a corporation for which a current UM employee has sole ownership or is an officer of, a Regents Action Item would be needed because the contract would be with the UM employee, albeit indirectly.

University Procurement (Purchasing, Stores, and Business Services (http://www.umich.edu/~purch/) handles Regents Action Items for contracts for the purchase of goods and services. The Office of the Vice President for Research (http://www.research.umich.edu/) handles Regents Action Items for contracts involving sponsored research or licensing of University copyright and patent rights.

Procurement Services

Q: Suppliers ask me what they need to do to comply with the University’s COI Rules. What should I tell them?

A: Under state law, the University may not contract, directly or indirectly, with its employees without Regent approval. The University interprets the definition of “indirect contracting” broadly, to include being an employee of an outside company, owning large amounts of stock in an outside company, being a member of the outside company’s board of directors, and having any other close relationship with an outside company.

The University relies upon each employee to comply with University and departmental policies limiting gifts from vendors and prohibiting employees from using their University positions for their own personal gain.

In addition, all potential and new suppliers and vendors must complete the University’s Vendor Certification Form, which Accounts Payable sends directly to them upon request. Among other things, the potential supplier or vendor must complete accurately the portion of the Form that requests disclosure of any potential for conflict. This portion of the form is a simple series of check boxes that asks the company to provide the name of any individual who both is a UM employee and is an owner in the company, is employed by the company, or serves as a member, trustee, or officer of the company’s board.

COI issues that arise in a contracting context require more information-gathering to identify the proper procedures to follow. When Procurement Services learns of a possible conflict in a proposed contract between the University and an outside entity, the designated staff member gathers the relevant information regarding the contract. If the director of Procurement Services or his or her designate decides that a potential conflict exists, the office must submit a Regent Action Item seeking Regent approval of the proposed contract. If Procurement Services is unclear whether a conflict exists, that office seeks advice from the Office of the General Counsel.

For more information regarding Payables and eBilling, see (http://www.procurement.umich.edu/howtopay.html); for information regarding how Procurement Services handles potential COIs, see the office’s conflict of interest policy (http://www.procurement.umich.edu/files/conflict_of_interest_policy.pdf).