ADVISORY OPINION 03-06

 

Application of the Ethics in Public Service Act’s Financial Interests Provisions to Non-Federal Grants 

 

References:  RCW 42.52.030, Financial interests in transactions; RCW 42.52.901, Construction

 

ISSUES

 

            Do the alternate conflict of interest provisions provided for higher education in the Ethics Act’s financial interests in transactions section apply to both federal and non-federal grants or contracts? 

 

OPINION

 

            Yes – The alternate conflict of interest provisions under RCW 42.52.030(2) generally apply to research grants and licensing contracts, including technology transfer agreements, funded with both federal and non-federal sources, such as foundations, industry, state and local governments, and other private sources. 

 

FACTS

 

            The federal agency guidelines that are referenced in RCW 42.52.030(2) [National Science Foundation (GPM 510) 1995 and Public Health Service regulations, 42 C.F.R. Part 50 and 45 C.F.R. Subtitle A] apply to grants and contracts associated with research activities.  The University of Washington applies the federally mandated administrative procedure to three types of grants and contracts related to research:

 

1.      Grants and contracts from federal sources for research.  The bulk of research funding at the University comes in the form of grants and contracts with federal agencies.  In FY2002, for example, approximately $620 million (77%) of the $809 million received in research funding came from federal sources. 

 

2.      Grants and contracts from non-federal sources for research.  The University also receives research funding from foundations, industry, state and local governments, and other private sources.  In FY2002, funding from these sources accounted for 23% ($189 million) of the total research funding received.  The vast majority of the projects funded from these sources are parts of larger research programs that are also supported by federal sources.

 

3.      Contracts for technology transfer.  Under the terms of the Bayh-Dole Act (PL 96-480; codified at 35 U.S.C. §§200 et seq.), universities and colleges were granted rights to inventions resulting from federally sponsored research and required to pursue patenting and licensing activity.  Consequently, the University enters into licensing contracts with commercial entities with the goal of bringing the fruits of research to market.[1]  Although the Bayh-Dole Act applies only to patentable inventions developed under federal funding, the technology transfer procedures it requires are generally applicable to other forms of intellectual property (such as copyrights and biological materials) and to non-federally sponsored research.  In FY2002, the University filed 100 patent applications, executed 93 licensing agreements, and received $17.2 million in gross revenue from previous technology transfer contracts.

 

Occurrence and Nature of Beneficial Interests in Research-related Activity

 

            Very few of the roughly 5,000 research-related grants and contracts entered into each year at the University raise questions of beneficial interests by its employees.  The number of cases the University reviews each year under federal guidelines is small in comparison to the total grant and contract activity; typically 55-65 cases per year. 

 

The financial interests that are subject to review under federal guidelines are:

 

1.      Salary or other payments for services (e.g., consulting fees or honoraria).

2.      Equity interests (e.g., stock, stock options or other ownership interests).

3.      Intellectual property rights (e.g., patents, copyrights, and royalties from rights).

4.      Royalties from the University.

 

            The most common situation involves cases relating to consulting fees or honoraria from research sponsors for activities that are not directly related to the research contract in question.  A faculty member may, for example, receive an honorarium from a pharmaceutical company for a continuing medical education talk on kidney disease and then be named as an investigator in a research study that is sponsored by that same company.  Although University employment obligations are primary, the University recognizes that a limited amount of outside consulting activity is beneficial both to the University and to the state as a whole.  These activities provide faculty "opportunities to disseminate expert information outside of the traditional university employment structure while simultaneously providing individuals additional experiences, augmenting their ability to carry out their University responsibilities" (University Handbook, Policy on Outside Professional Work). 

 

Written Administrative Procedure

 

            The administrative procedure for reviewing and managing financial interests in research and licensing contracts is embodied in the University's Grants Information Memorandum 10 (GIM 10).  The process requires disclosure of financial interests, review by one or more levels of the University, and the institution of a plan for eliminating or managing potential conflicts of financial interest.  These plans typically include provisions for public disclosure of financial interests as well as review and oversight of research and administrative activities by independent parties.  In order to avoid conflicts of financial interest, the University may also remove financially involved parties from sensitive research and administrative roles, require divestiture of financial interests, or severance of relationships that create conflicts of interest.  The reviews are conducted by the Associate Vice Provost for Research with assistance and advice from others within the University community, and with the added assistance in non-routine cases of a Conflict of Financial Interest Advisory Committee.

 

            These procedures are subject both to state audit and to federal oversight.  In the last three years, for example, specific contracts have been audited by the state and the University’s overall program has been federally reviewed by the National Institutes of Health and by the General Accounting Office.

 

ANALYSIS

 

            The Ethics Act prohibits state officers and employees from holding a beneficial interest in certain contracts or grants made by, or under the supervision, of the officers or employees.  In 1996, the Legislature amended the Ethics Act to exempt some officers and employees of certain institutions of higher education from these provisions.  RCW 42.52.030(2) provides:

 

(2) No officer or employee of an institution of higher education or of the Spokane intercollegiate research and technology institute, … , may be beneficially interested, directly or indirectly, in a contract or grant that may be made by, through, or is under the supervision of the officer or employee, in whole or in part, or accept, directly or indirectly, any compensation, gratuity, or reward from any other person beneficially interested in the contract or grant, unless the institution of higher education or the Spokane intercollegiate research and technology institute has in effect a written administrative process to identify and manage, reduce, or eliminate conflicting interests with respect to such transactions as adopted pursuant to the national science investigator financial disclosure (GPM 510) 1995 and the public health service regulations, 42 C.F.R. Part 50 and 45 C.F.R. Subtitle A as each of those regulations existed on June 6, 1996, and the state employee or state officer has complied with such policy.

 

            When proposed to the Legislature in 1996, the amendments to RCW 42.52.030 were intended to allow the state’s institutions of higher education to compete for and implement technology transfer agreements, including those under the Bayh-Dole Act.  The University, however, receives a significant amount of research grants and contracts from non-federal sources such as foundations, industry, state and local governments, and other private sources.  The issue before the Board is the scope of the provisions provided under RCW 42.52.030(2), which do not specifically address the source of the applicable grants and contracts. 

 

            In resolving issues of first impression when the Ethics Act is either silent or unclear, the Board is guided by RCW 42.52.901, which provides that “(t)his chapter shall be construed liberally to effectuate its purposes and policy and to supplement existing laws as may relate to the same subject”.  In this matter, it appears that the exemptions were enacted to reconcile differences between federal and state conflict of interest laws regarding university research grants in favor of the federal statutes.  The amendments also simplify the rules under which the state’s institutions of higher education administer research grants and contracts.  While the Ethics Act is silent as to the source of grants and contracts, a narrow interpretation limiting the application to federally funded grants would undermine the purpose of these provisions.  Specifically, a narrow interpretation would require the University to implement separate conflict of interest policies depending on the funding source of a research grant or contract.

 

            Accordingly, the Board finds that the alternative conflict resolution procedures described in RCW 42.52.030(2) may be broadly applied to research grants and licensing contracts, including technology transfer agreements, funded with both federal and non-federal sources.

 

            The Board’s advisory opinion is based on the general facts as stated above.  The Board does not investigate the facts.  Please be aware that modification of the facts, or knowledge of more specific facts or circumstances, might cause the Board to reach a different conclusion.  In addition, Board advisory opinions are narrowly drawn to interpret the Ethics in Public Service Act.  They do not address whether the proposed action is prudent, good public policy or effective management practice.

 

 

Approved by the Executive Ethics Board, this 10th day of October 2003.

 

 

 

___________________________________

Brian R. Malarky

Executive Director



[1] Licensing agreements are explicitly included under the definitions for "contract" and "grant" in RCW.42.52.010(7).