HEADING GOES HERE IN RED UNIVERS CONDENSED BOLD ALL CAPS
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AVOIDING CONFLICT IN FACULTY CONSULTING Judith L. Curry
Associate General Counsel NC State University December 2, 2011
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Board 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.
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Board 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
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NCSU Regulations and Policies NC State Conflicts of Interest
and Commitment Regulation [REG01.25.01]REG01.25.01 Patent and
Tangible Research Policy [POL10.00.01]POL10.00.01
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Consulting 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
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Conflicts of Interest An employee has a conflict of interest
when: Significant Financial Interest Affects or appears to affect
Objectivity in conduct of University duties
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Example: 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
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Testing and Services Agreement Project Coordinator certifies:
No research component NOT WORKING AS CONSULTANT WILL NOT IN FUTURE
CONSULT FOR PURPOSE OF ANALYZING DATA
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Use of University Space and Equipment Generally not permitted
in connection with consulting 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 CommitmentBOG Policy 300.2.2 Conflict of Interest and
Commitment
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Conflicts of Commitment Consulting which involves time
commitment that interferes with employees accomplishing university
duties
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Consulting 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
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Scope of Employment North Carolina Law: Employer may require
assignment unless the invention does not relate to the employers
business or actual or demonstrably anticipated research or
development N.C.G.S. 66-57.1
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Inventions Made with Substantial Use of University Resources
Resources that would not be available to unaffiliated person
Exceptions Minimal office use Library Personal Computer
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Key Terms in Industry Consulting Agreements Confidential
Information/Data Protection Intellectual Property Ownership
Liability Indemnity Choice of Law/Forum Non-Compete
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Stanford 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)
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How Can I Avoid Conflict Between My Consulting and University
Policies? Report NOI/COI Provide copy of University Patent Policy
to company Include language establishing priority of University
obligation (
http://www.ncsu.edu/general_counsel/legal_topics/consulting-
faqs.php )
http://www.ncsu.edu/general_counsel/legal_topics/consulting-
faqs.php Define narrowly and precisely the subject matter of
consultancy
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What Are The Legal Risks To Me Personally In Engaging In
Consulting? Damages for Breach of Contract Indemnification
requirement Liability for misappropriation of state property
(intellectual property) Liability for non-disclosure of conflicts
False Claims Act (31 U.S.C. 3729 et seq.)
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How Can I Minimize The Risk Of Liability For My Consulting?
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 Seek guidance from
SPARCS/OTT