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Guidance for Faculty Concerning Consulting and Other External Activities
November 12, 2020
I. Engaging in External Professional Activities
Yale permits faculty to engage in external professional activities on the condition that such activities are consistent with faculty members’ obligations under University policies, all required approvals have been obtained and the activities are appropriately disclosed and reported in compliance with all applicable regulatory obligations. Such activities often provide an opportunity to apply scholarly expertise to socially useful ends, and they often contribute to the faculty member’s teaching and research. Faculty must maintain their overriding professional obligation of all faculty to Yale and its mission, and external professional activities or financial interests that may interfere with this obligation could pose conflicts of interest or commitment that must be avoided.
To prevent a conflict of commitment, Yale requires faculty members to limit the total time devoted to external professional activities to no more than one day per seven-day week on average per semester during the academic year, or in any summer month during which the faculty member is receiving full-time compensation from the University. [Faculty Handbook Section XX.E.4]. Yale requires that faculty not enter into agreements with external entities that may violate their obligation to act in the best interests of the university and must not allow outside activies or financial interests to interfere with that obligation.. [Faculty Handbook Section XX.E.1].
Avoidance of such conflicts and agreements has become more critical as the nature of external professional activities has evolved in recent years. Traditionally, industrial enterprises engaged faculty consultants for their general expertise, seeking to direct this broad knowledge toward the solution of specific problems. Increasingly, however, industry has sought academic consultants because of a specific interest in the techniques or results of a faculty member’s University-based research. The narrowing gap between academic research and commercial development most notable in the biological, medical, and computer sciences has blurred the distinction between University research and external consulting.
In addition, other academic institutions have increasingly offered external appointments, consulting contracts, institutional funding for labs, and other types of grant and non-grant-based support for Yale faculty members to conduct research outside the auspices of the University. These developments have made it particularly important that faculty members be mindful of their obligations to the University and any outside sponsors when entering into private agreements with external entities or institutions.
II. Relevant Provisions of the Faculty Handbook
Faculty members’ external activities must not conflict with their obligations under the Faculty Handbook. See Faculty Handbook Sections III.E and XX.E. for the obligations most directly related to outside interests and employment.
The Faculty Handbook narrowly limits the types of appointments and positions faculty members may accept elsewhere. It provides that, with very limited exceptions, “[n]o one appointed to a ladder and/or full-time faculty position at Yale may simultaneously hold a tenure or tenure-track, ladder-equivalent, or full-time position or the equivalent elsewhere.” [Faculty Handbook Section III.E] This prohibition applies even if the appointment or position is characterized as “consulting” or demands fewer than one day per seven-day week of the faculty member’s time.
While allowing that faculty may hold some kinds of appointments at other institutions, the Faculty Handbook places strict limits on the outside teaching activities of faculty members. It states that “[n]o member of the faculty at any rank employed full-time at Yale may hold a teaching position, whether full-time or part-time, even a visiting one, at another institution during the academic year without special permission from the Provost, and in such cases additional compensation is not permitted. With prior approval from the Provost, a faculty member may accept a temporary visiting appointment at another institution while on an unpaid leave of absence from Yale.” [Faculty Handbook Section III.E]
The Faculty Handbook also circumscribes the roles a faculty member may play on projects another entity supports with grant or contract funds awarded to that entity. It states that “[f]aculty members may not participate as principal investigators, co-investigators or key personnel in projects supported by grant or contract funds awarded to another entity that is directly related to their Yale research. Exceptions are made rarely and only with the prior approval of the Provost.” [Faculty Handbook Section XX.E.3] This restriction does not apply to formal subaward agreements with Yale. The Faculty Handbook provides additional restrictions in stating that a faculty member must refrain from “[d]evoting any measurable effort (paid or unpaid) to projects supported by grant or contract funds awarded to another entity directly related to or in conflict with their Yale research. However, participation in a sponsored project awarded to another entity is permitted for example, when in the role of ‘Other Significant Contributor’ or similar role with no formal effort commitment or expected remuneration.” [Faculty Handbook Section XX.E.3] These prohibitions apply even if the faculty member’s time commitment on the non-Yale grant or contract does not exceed one day per seven-day week.
The Faculty Handbook does not permit faculty “to conduct secret or classified research” [Faculty Handbook Section XX.C.1.b] and “requires that investigators be able to publish the results of their research without prior approval of a sponsor.” [Faculty Handbook Section XX.C.1.c] Thus, as described more fully below, faculty members must ensure that any contracts with outside entities do not call for secrecy or place limits on faculty members’ rights to publish the results of their work at Yale.
Faculty members should refrain from using University facilities more than occasionally and incidentally in performing any external activities. [Faculty Handbook Section XX.E]
Finally, all external activities must comply with Yale’s Patent Policy.
III. External Activities Must Be Disclosed Properly
Disclosure to Yale
Faculty members engaging in consulting and other external activities must comply with all applicable University or sponsor disclosure requirements.
Under Yale’s Conflict of Interest Policy, all faculty members who have appointments of greater than 50%, all faculty members who hold administrative positions; and all faculty members “responsible for the design, conduct or reporting of research” are required to submit an annual external interest disclosure form describing their external activities and financial interests. The Conflict of Interest Policy further requires faculty members to disclose remuneration for an activity that is related to the faculty member’s Yale activity from an entity if, when aggregated, the remuneration is greater than $5,000 where the faculty member has National Institutes of Health (NIH), or is greater than $10,000 in all other cases. Yale generally considers any outside research-associated or teaching activities to be related to a faculty member’s Yale activities.
Disclosure to Sponsors
Faculty members must also ensure that they are complying with all disclosure requirements of sponsors. These requirements may vary from sponsor to sponsor, and faculty members should consult with the Office of Sponsored Projects (OSP) if they have questions about specific requirements.
Applicants for Public Health Service (e.g. NIH, CDC) and NSF funding may need to disclose their external activities in both their biosketch and as “other support” in their applications. Faculty members should include any non-Yale positions or appointments (including visiting, adjunct and honorary appointments) related to research or teaching in the “Positions and Honors” section of their biosketch. External activities may also represent “other support” that faculty members must disclose during the Just-in-Time process, and on progress reports. According to the NIH Grants Policy Statement (GPS), other support “[i]ncludes all resources made available to researcher or senior key personnel in support of and/or related to all of their research endeavors, regardless of whether or not they have monetary value and regardless of whether they are based at the institution the researcher identifies for the current grant.” [GPS 1.2] Therefore, faculty members must disclose any external activities (including consulting) that provide access to resources in support of or related to their areas of expertise. Faculty members should consult with OSP if they have questions about whether specific external activities require disclosure.
IV. Avoiding Scientific and Budgetary Overlap with Existing Sponsored Projects
All federal agencies prohibit overlap between sponsored projects and other funded activities. For example, as NIH states in the GPS, any scientific or budgetary overlap between projects is prohibited. The GPS states that “[s]cientific overlap occurs when (1) substantially the same research is proposed in more than one application or is submitted to two or more funding sources for review and funding consideration or (2) a specific research objective and the research design for accomplishing the objective are the same or closely related in two or more applications or awards, regardless of the funding source.” Faculty members with NIH support must ensure that any funded external activities do not involve the same or closely related research objectives and research designs as their NIH-funded projects, and must provide sufficient detail to allow NIH to confirm that there is no scientific overlap.
NIH also prohibits budgetary overlap. The GPS states that budgetary overlap “occurs when duplicate or equivalent budgetary items (e.g., equipment, salaries) are requested in an application but already are provided by another source.” Therefore, faculty members with NIH support must accurately account for all resources available to them, including those available from external sources, and ensure that duplicative items are not requested from the NIH.
Other sponsors have similar requirements, and faculty members should seek guidance from OSP to ensure that their research program does not involve impermissible scientific or budgetary overlap.
V. Avoiding Conflicts of Commitment
If a faculty member wishes to engage in external professional activities, the faculty member must abide by the requirements in the Faculty Handbook limiting the total time devoted to external professional activities to no more than one day per seven-day week on average per semester during the academic year, or in any summer month during which the faculty member is receiving full-time compensation from the University. [Faculty Handbook Section XX.E.4] Faculty members must assure that any agreements signed with other institutions or entities accurately reflect the expected time commitment and that such commitment does not exceed this general requirement or any specific commitments of time made in connection with grant funded activities at Yale.
VI. Critical Terms of an Agreement with Outside Entities
Many outside entities seeking to engage the services of faculty members require signed written agreements. These agreements take many forms. Some are consulting agreements, in which the faculty member agrees to act as a contractor performing services for the outside entity. Others purport to be employment contracts, in which the faculty member agrees (sometimes unwittingly) to become an employee subject to the direction of the outside entity. Academic institutions are increasingly offering formal employment to faculty members of other institutions, often in the form of “adjunct” or “visiting” academic positions. Faculty members should approach all agreements for external professional services with caution, as they may include terms that are fundamentally inconsistent with faculty members’ obligations to the University, including those described in the Faculty Handbook. However “standard” a proposed agreement may appear, faculty must negotiate changes if these are required to align with Yale policy.
Intellectual Property. Standard forms may contain language that appears to give the company or organization access rights or rights to intellectual property that the faculty member does not own. An invention made by a faculty member in the course of a paid consulting engagement for a company or an employment agreement with an institution may be assigned to the company or the institution only if it is unrelated to the activities for which the faculty member is employed by Yale and it was not made or conceived under circumstances involving University facilities or personnel. In addition sponsors of research at Yale may have rights in intellectual property developed with the support of sponsored funds. Faculty members may not enter into agreements that create claims to intellectual property in conflict with the rights of the University or the rights of sponsors, and all inventions made by Yale faculty members in the course of external professional activity must be reported promptly to the Office of Cooperative Research. [Faculty Handbook Section XX.D, Yale University Patent Policy]
Confidentiality and Proprietary Information. While it may sometimes be essential to gain access to proprietary or confidential information in an external professional engagement, such information should be clearly identified as such and any agreement should identify the period during which information is to remain confidential. Faculty members should consider whether any such confidentiality requirement is antithetical to the University’s fundamental commitment to the free and open dissemination of information. Faculty members must not agree to provide any information that is proprietary to Yale. Such a circumstance might arise if a faculty member’s academic research were likely to produce a patentable result.
To be certain that a faculty member does not enter into an agreement that is contrary to Yale policy, it is advisable to consult with the Office of Cooperative Research or the Office of Sponsored Projects. These offices can answer questions concerning University policy on external professional activities, on patents and copyrights, on the use of university facilities and resources, and confidentiality. If the faculty member wishes to obtain legal advice, the Office of Cooperative Research can furnish, upon request, the names of attorneys familiar with Yale’s policies.