Legal Watch: I Know What You Did Last Year

By Donna R. Euben

Some external arrangements are straightforward, such as when an economics professor serves as a volunteer board member to a local economic development organization. Other arrangements are significantly more complex, such as when a computer science researcher starts an outside business that competes directly with the university. While usually of significant benefit to the institution, outside commitments sometimes raise concerns about the ability of full-time faculty to meet their primary obligations to their institutions in teaching, research, and service. The AAUP's Statement on Professional Ethics recognizes that professors must "give due regard to their paramount responsibilities within their institution in determining the amount and character of work done outside of it." Faculty should be aware of legal and policy issues surrounding outside commitments.

Policies and laws regulating faculty's outside commitments may trigger federal constitutional and state contractual concerns. In addition, outside consulting by faculty at public institutions is often governed by state constitutions and state statutes governing conflicts of interest and ethics for public employees.

Limitations on outside employment should not be so restrictive as to violate faculty academic freedom and the First Amendment. In 1998, a federal appellate court struck down a policy of the Texas A&M University system that prohibited state employees, including professors, from serving as expert witnesses "when doing so would create a conflict with the interests of the state." Faculty challenged the policy, and the court ruled in their favor, finding that "the notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment."

At the same time, many restrictions on the outside employment of faculty are legally permissible, including limitations on outside income. In 1996, a federal appellate court ruled that the University of Tennessee medical school could restrict the income earned by its full-time faculty in their private practices. Two faculty members challenged the medical school's "practice agreement," which collected outside medical earnings by faculty above a certain level. The court found as legitimate the state's interest in "limit[ing] the faculty's outside private practice and thus [fostering] greater devotion to teaching responsibilities," and rejected the faculty's argument that "their courses are an offshoot of their private practice and that a reduced private practice would indeed impair the quality of their teaching."

Faculty members sometimes hold dual appointments with the understanding and approval of each institution. But courts generally uphold faculty handbook provisions-when faculty handbooks are found to be enforceable contracts-prohibiting faculty who have full-time appointments from accepting other full-time appointments. In 1996, a state appellate court ruled that the University of Minnesota properly terminated the appointment of tenured classics professor Tzvee Zahavy for simultaneously holding two full-time appointments. The court held that Zahavy's "conduct had impaired his fitness in a professional capacity" under the University of Minnesota's tenure code. The court found that the professor's absence from his home institution for three days a week "clearly prevented him from applying himself full time to his scholarship and service at the University." Significantly, the court declined to "second guess" the "unanimous and unqualified" decisions of his department (18 to 0), the faculty review committee (6 to 0), and the board of regents.

Institutional policies should provide, in ways that are not too onerous or inhibiting of faculty initiative and creativity, guidance on when faculty should disclose or consult with others about potential outside activities. Faculty, in turn, should devote time and energy to developing workable policies, and should participate in the implementation of such policies by serving on re-view committees when faculty complaints or appeals arise. Institutions should consider creating a matrix of all policies that affect the faculty's outside activities, which might include policies on conflicts of interest, intellectual property, and student research. Further-more, such policies should not only be disseminated regularly at appropriate faculty gatherings, but should also be shared with candidates for faculty appointments so as to avoid unpleasant surprises.

The outside commitments of faculty enrich the academic community in a myriad of ways. We must participate in institutional policy development and implementation to ensure that they do not come at too high a cost to the faculty's primary obligations to students, scholarship, and service.

Donna Euben is AAUP counsel.

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