UTS 180

Prof. Brian L. Evans
Engineering Foundation Professor
Chair, 2012-2013 Committee of Counsel on Academic Freedom and Responsibility
The University of Texas at Austin

May 9, 2014

Comments herein are my own opinion. I am speaking for myself.

Prelude

Faculty members are engaged in fostering critical thinking, and developing and disseminating new knowledge. Having academic freedom in teaching, research, and expression enables a faculty member to critique accepted truths and search for new knowledge, even when it disrupts the status quo. Academic freedom safeguards of tenure, due process, and faculty governance allow faculty members to serve the common good without being controlled by public opinion.

Faculty and staff working at a public university have full constitutional rights in the workplace and have full constitutional rights in their roles as residents of the United States.

Introduction

As a response to the directives from The University of Texas Board of Regents contained in the changes to Regents Rule 30104 adopted on July 11, 2012, The University of Texas System initially developed and approved UT System Policy 180 on January 15, 2013. Since then, many drafts have been developed, and they are discussed in the subsequent sections.

Under UTS 180, The University of Texas System will put all disclosures and permission requests into a publicly accessible and searchable database. Moreover, an employee must first receive permission from The University of Texas to engage in compensated and many uncompensated activities. Failure to comply with the new policy is grounds for termination. Student academic employee positions are not subject to UTS 180.

Prior to UTS 180, the University of Texas System has had policies on outside employment and conflict of interest going back long before 1996. Since at least 1996, each faculty member has to declare to UT Austin the employer, employment dates and number of hours worked per week for all professional consulting work during each academic year.

UT Medical Branch Faculty Council Discussion on February 11th

At the February 11, 2013, meeting of the UT Medical Branch Faculty Senate, Dr. Carol Wiggs (Chair) gave the following update:

"UTS 180: This system wide policy was approved on January 15, 2013 and considered in effect as of February 1, 2013. A question was raised at the UT SysFac regarding the range of compensation (page 7). It is broader than the research reporting and may have a negative impact. The persons involved at the UT System level were asked to revisit the compensation ranges. In addition, there was an issue with the disclosure forms as well and they have been asked to go back and revisit the way the forms are treated."

Minutes, UT Medical Branch, Feb. 11, 2013.

Criticism of March 5th Draft

The March 5th draft of UT System Policy 180 on Conflict of Interest, Conflicts of Commitment, and Outside Activities requires salaried employees to

disclose the type and amount of all personal and professional compensated activities outside of work, and
request permission to engage in any volunteer activity involving leadership.

The following cases are relevant to the March 5th draft:

Case #1. A faculty member requests approval from UT Austin to volunteer as a troop leader for a large local girl scout troop. UT Austin declines the request. The faculty member volunteers as the girl scout troop leader anyway, and is subsequently fired according to UTS 180.

Case #2. A staff member requests approval to volunteer as a campus organizer for the Texas State Employees Union. Even though none of the volunteer effort will occur during the staff member's official work hours (Monday-Friday 8am-5pm) or use any of the university's resources, UT Austin declines the request. Feeling strongly about protecting worker rights and improving working conditions, the staff member volunteers as a campus organizer anyway. The staff member is subsequently fired according to UTS 180. In addition, because the request for approval is in publicly accessible and searchable database, the former staff member faces constant harassment by anti-union groups.

Case #3. A faculty member requests approval to volunteer for the National Rifle Association Institute for Legislative Action. Even though none of the volunteer effort will use university resources, UT Austin declines the request. Feeling strongly about advocating for Second Amendment Rights, the faculty member volunteers for the NRA-ILA, and is subsequently fired according to UTS 180. In addition, because the request for approval is in publicly accessible and searchable database, the former faculty member has been continually harassed by anti-gun groups.

If the March 5th draft of UTS 180 is adopted, UTS 180 will intrude on civil liberties and academic freedom and have extremely negative consequences for recruiting and retaining faculty, staff and other salaried employees. Adoption of UTS 180 would make a wide range of non-work activities public, which will subject salaried employees to unwarranted harassment for their beliefs. UTS policies currently in force already require salaried employees to declare possible conflicts of interest.

Here is an excellent criticism of conflict of commitment policies by the American Association of University Professors (AAUP) dated March 5, 2004:

AAUP Faculty Employment Outside of the University: Conflicts of Commitment

UT Dallas Faculty Council Discussion on April 3, 2013

At the April 3, 2013, meeting of the UT Dallas Faculty Council, Prof. Murray Leaf (Speaker) writes the following for the meeting agenda concerning UTS 180: "The Board of Regents are requiring full disclosure of all group or board memberships, personal and professional. This includes not just academic and professional boards, but also religious and political memberships, paid and unpaid. Faculty have inalienable rights to such associations, recognized in American law and international conventions. The Board has no right to limit or 'approve' them. If they cannot act on the information they also ought to have no right to demand it."

"Agenda Academic Council Meeting", April 3, 2013.

UT Austin Faculty Council Discussion on April 15, 2013

At the UT Austin Faculty Council Meeting on April 15, 2013, Dr. Stephanie Huie (Vice Chancellor, UT System) and Mr. Daniel Sharphorn (Assoc. Vice Chancellor and Deputy General Counsel, UT System) presented UTS 180 and patiently took questions and comments.

Faculty took turns for an hour criticizing UTS 180 as an overreach. The exchange of opinions on UTS 180 begins on line 13 of page 21 and ends on line 5 of page 79 of the

Minutes from the April 15, 2013, UT Austin Faculty Council meeting

Here is one such comment:

"UTS 180 does not cleanly separate professional activities from personal activities. Our professional norms as faculty include academic freedom in teaching, research and expression. UTS 180 violates the academic freedom safeguards of tenure, due process and faculty governance. First, it allows termination of tenured faculty for noncompliance. Second, the only due processes are one level of higher review, which is vague, and standard faculty grievance procedures, which are primarily if not exclusively for allegations of violations of state and/or federal law. Other options for due process, e.g. review by the academic freedom committee, are not included. Further, the president has to approve the merits of a grievance for it to proceed to a hearing. Third, faculty governing bodies are not part of the oversight of this policy. Beyond academic freedom, an employee at a public institution has the full rights of expression and privacy guaranteed by the US Constitution in the way she carries out her work. These rights also apply to her as a private citizen. Yet, UTS 180 intrudes on rights of freedom of speech, freedom of religion, and privacy, in both professional and private activities. Please scrap UTS 180."

Response by UT System Chancellor on April 17, 2013

On April 17, 2013, two days after the UT Austin Faculty Council Meeting on UTS 180, UT System Chancellor Francisco G. Cigarroa, M.D., published the following memorandum announcing a delay in the implementation of UTS 180 from May 1, 2013, to September 1, 2013:

Chancellor's Update Related to UT System Policy: UTS 180 regarding Conflict of Interest, Conflict of Commitment and Outside Activity.

The above memorandum states the basis for UTS 180 lies in changes to Regents Rule 30104 adopted July 11, 2012:

The University of Texas Board of Regents Rule 30104

Response by UT Austin Faculty Council on May 6, 2013

At the May 6, 2013, meeting of the UT Austin Faculty Council, the following motions were discussed and voted on:

Faculty Council Executive Committee, "Resolution Regarding UTS 180: 'Conflicts Of Interest, Conflicts Of Commitment, And Outside Activities' Policy", April 23, 2013. Resolution passed by Faculty Council on May 6, 2013.
Prof. Ehud Ronn, "Resolution of the General Faculty of the University of Texas at Austin on the matter of Regents UTS 180 Policy", May 6, 2013. Resolution not passed by Faculty Council on May 6, 2013.

Updated Draft of UTS 180 on July 4, 2013

The updated draft of UTS 180 dated July 4, 2013 makes a number of important positive changes to the March 5th draft.

Updated Draft of UTS 180 on July 31, 2013

The updated date of UTS 180 dated July 31, 2013, makes many of important positive changes to the March 5th and July 4th drafts. Most of the incursions into one's personal life and civil liberties in the March 5, 2013, draft are gone. For example, the three example applications mentioned above no longer apply.

That said, many concerns remain with the July 31st draft, and these include the following:

Graduate student academic employees (TA, RA, AI) regardless of the number of hours have disclosure requirements under UTS 180. They fall under Section 6.2(b) Part-Time Employees. We have about 5,000 TAs/RAs/AIs at UT Austin.
A big issue is that full-time faculty and staff may have to disclose the amount of outside compensation under certain conditions (above $5,000 cumulative over one year and if it creates a conflict of interest or conflict of commitment). It is possible to legally block the disclosure of the amount of outside compensation through a non-disclosure agreement between the individual and the outside entity.
The following footnote on page 4 is disturbing: "When in doubt in determining whether an activity or interest should be disclosed, the individual should resolve the doubt in favor of disclosure."
Anything declared under UTS 180 could be made public, and likely will be made public due to Freedom of Information Act requests.
Members of The University of Texas Board of Regents do not have to comply with their own rules. A justification is that they aren't paid a salary for their work.
The definition of "Outside Board" is too broad. Academically-oriented non-profit societies who use the "Board" in the title of committees should be exempt from disclosure. For example, in my professional society, the IEEE Board of Governors should be exempt. Service is voluntary and professional.

Each component institution in the UT System has a lot flexibility in how it implements UTS 180. In particular, each institution may expand the list of pre-approved activities, which will greatly simplify the implementation and reduce the number of disclosures under UTS 180.

Updated Draft of UTS 180 on September 30, 2013

Here are my initial thoughts on the September 30th draft of UTS 180:

Good news #1: UTS 180 no longer intrudes on most civil liberties. After much pushback, we regained the ability to exercise our constitutional rights of freedom of speech, freedom on assembly, freedom of religion, etc.

Good news #2: Many of the most common external activities for a faculty member, e.g. reviewing papers/manuscripts, attending/presenting talks, and volunteering for a professional/scholarly society, are automatically pre-approved.

Good news #3: UTS 180 will not apply to student academic employee positions, e.g. graduate TAs, graduate RAs, assistant instructors, undergraduate TAs and undergraduate RAs. This is system wide. Please see Bad news #1 next.

Bad news #1: All students conducting research are subject to UTS 175 Disclosure of Significant Financial Interests and Management and Reporting of Financial Conflicts of Interest in Research.

Good news #4: The amount of external compensation only has to be declared when it exceeds $5,000 in a calendar year from the same source and the funding creates a conflict of interest, unless the amount of compensation is protected by a legally binding non-disclosure agreement. The original UTS 180 wording was that the range of each source of external compensation would have to have been declared whether or not it would have created a conflict or interest.

Bad news #2: Despite the previous "good news", there are still some conditions under which a faculty member would have to report the range of external compensation. This is an overreach. Moreover, this information will be put into a publicly accessible and searchable Web site.

Warning #1: On a faculty annual report, faculty declare (perhaps unintentionally) a lot of activity, including those involving external compensation. Everything on one's faculty annual report is subject to public disclosure under the Texas Public Information Act (a.k.a. Texas open records laws).

Warning #2: Any approval request or disclosure filed under UTS 180 is subject to public disclosure under the Texas Public Information Act (a.k.a. Texas open records laws).

Updated Draft of UTS 180 on October 1, 2013

Although the October 1, 2013, draft of UTS 180 was not publicly available, the October 15, 2013, Draft of the UT Austin Implementation of UTS 180, is publicly available. The UT Austin Implementation of UTS 180 dated October 15, 2013, is based on the October 1, 2013, draft of UTS 180.

UT Austin Implementation of UTS 180 as of January 2014

Here are the updated documents:

UTS 180, January 27, 2014
UT Austin Implementation of UTS 180, January 6, 2014

Voice Your Opinion

Please let the following know of your opinion concerning UTS 180:

Prof. Hillary Hart (Chair, UT Austin Faculty Council, 2013-2014)
Prof. Martha Hilley (Chair, UT Austin Faculty Council, 2012-2013)
Dr. Stephanie Huie (Vice Chancellor, UT System)
Prof. Gregory Fenves (Provost, UT Austin, 2013-2019)
Prof. Bill Powers (President, UT Austin)
Mr. Daniel Sharphorn (Assoc. Vice Chancellor and Deputy General Counsel, UT System)

Idea for Keeping Amount of Consulting Income Private

When arranging employment as a consultant, one can put the amount of the compensation under a non-disclosure agreement. This will prohibit (by law) disclosure of the amount of compensation to third parties.

Articles on UTS 180

Jordan Rudner, "Faculty member threatens departure as Faculty Council prepares to vote on disclosure policy", The Daily Texan, May 3, 2013.
Erin Zlomek, "UT Faculty Up in Arms Over New Disclosure Policy", Bloomberg Business Week, May 8, 2013.

The above May 8, 2013, article from Bloomberg Business Week mentions Columbia Business School policies for disclosure:

"The [Columbia] business school considered and rejected requiring faculty to inform the dean about how much they received from outside sources, Johar said. 'It's pretty intrusive,' Johar said. 'There's a limit to what you can require without getting into privacy issues'."
Source: "Columbia Toughens Faculty Conflict Rules", Bloomberg, Sep. 21, 2011.

Other Resources

Matthew W. Finkin and Robert C. Post, For the Common Good: Principles of American Academic Freedom, Yale University Press, 2011.

Mail comments about this page to Prof. Brian L. Evans at bevans@ece.utexas.edu.