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Technology & Venture Commercialization (TVC)

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U of Utah consulting guidelines

General

The purpose of this document is to provide helpful advice to faculty and other university employees who have outside consulting arrangements.

Consultation agreements are independent contractual agreement(s) entered into by a university employee, acting outside the course and scope of employment and solely in a personal capacity, for the performance of consulting services, consistent with the University’s consultation policy (Policy and Procedures No. 5-204). When carrying out these agreements, the faculty members or employees will be acting on their own, and if appropriate, may wish to have such agreements reviewed by counsel of their own choosing.

The following guidelines and recommended clauses will aid University employees when entering into and performing consulting agreements.

The policies outlined herein are not and should not be construed as the full text and embodiment of the respective sections of policy and procedure, and are being provided solely to inform the reader of his/her obligations. Further, this document and the guidelines, comments, and clauses should not be construed as legal advice.

Policies

The Primary University of Utah Policies and Procedures relating to faculty consulting activities include the following:

Restrictions on Consulting (PPM 5-204)

Consultation and other services to persons, firms, institutions, and agencies outside the university may be carried on by faculty members as long as the performance of such services does not interfere with the individual's service obligations to the university, subject to the following restrictions.

  1. Faculty members and staff personnel in categories A, B and C (Policy 2-0 IV.V. VI.) are allowed two days a month for either consulting or outside employment, not counting weekends or holidays. Unused consultation time may be accumulated for a period not to exceed six months, i.e., for a total accumulation not exceeding a maximum of 12 days, and may be taken during one consecutive period of time. The university has no obligation to compensate personnel for authorized consultation time that, for any reason, is not actually used.
  2. Use of consultation time should have a demonstrable relation to the professional interests of the faculty member or administrative officer, and to the university's general mission within the community.
  3. Any absence from the university for the purpose of consultation services may be recorded as an excused absence for approved consultation only if the restrictions of this section have been satisfied.
  4. Consultation involving service to individual patients or clients may take place in a faculty or staff member's office or laboratory. Use of university facilities and equipment resulting in clearly identifiable additional cost to the university shall be reimbursed and shall require authorization by the supervisor with direct line authority over the employee.
  5. The individual engaged in consultation activities must arrange in advance, with the approval of the responsible department chairperson, director, or other line officer, for scheduling of classes or other work assignments missed as the result of consultation activities.
  6. Individual exceptions to this policy may be approved by the cognizant vice president upon recommendation of the dean or director, subject to any specific conditions imposed by the vice president.

Responsibilities of University Employees as to Consulting

University employees engaged in consultation services authorized by this policy must assume the following responsibilities to assure compliance with policy and with applicable legal requirements.

  1. University faculty and/or administrators may participate in such corporations as consultants, employees, members of the board of directors or as chairman of the board of directors so long as such outside time and effort do not impair their full and proper execution of their university assignments. see PPM 7-004.III.A
  2. University Faculty and/or administrators who participate in corporations must disclose such activities to the cognizant department chairman, dean or vice president, and shall conform to existing university rules and regulations including the conflict of interest policy in the requirement for disclosure of consulting obligations. see PPM 7-004.III.A
  3. The university employee must advise in writing, on a form provided by, or approved by the university (see addendum to the Consulting Checklist for approved forms), the person, firm, or agency for whom such consultation services are to be performed that (a) the employee, in his/her role as a consultant, is acting solely as an independent contractor, and not as an agent or employee, or under the sponsorship, auspices, or control of the University of Utah, and (b) the university assumes no responsibility whatever, express or implied, for the actions or omissions of the employee in his/her role as a consultant. see PPM 5-204.IV.F.1
  4. The university employee must personally assure that the conditions and limitations upon external consulting activities, as specified in policy 2-26, are fully satisfied, and must be prepared to document that fact if called upon to do so by a responsible university officer. see PPM 5-204.IV.F.2
  5. Before entering into a consultation contract, the university employee must personally determine that the contemplated consultation activities and arrangements will not involve a conflict of interest with the individual’s duties to the university that may be in violation of the Public Officers’ and Employees Ethics Act (http://le.utah.gov/UtahCode/section.jsp?code=67-16 ). see PPM 5-204.IV.F.3
  6. Faculty members must avoid exploiting the university's name or their own relation with the university for personal reasons unrelated to their legitimate academic or professional activities. They must not intentionally create the impression, in public appearances or statements, that they are representing the university, unless in fact, they are. see PPM 6-316.4.D.3
  7. Faculty members may not ask students to perform services unrelated to legitimate academic requirements of a course unless the student is adequately compensated for such services. see PPM 6-316.4.B.6
  8. Faculty members may not limit or curtail the right of a student to publish or otherwise communicate the results of the student’s own scholarly activities. see PPM 6-316.4B(7)

Intellectual Property Issues

  1. Faculty consultants must avoid entering into consulting agreements that are in violation of the terms of their employment by the University.
  2. Policy 6-4 requires all University faculty to abide by the University’s Intellectual Property Policies and Procedures and to assign to the University all rights to intellectual property developed (a) with the use of University facilities or resources or (b) in the field of expertise and/or within the scope of responsibilities covered by their employment/appointment/association with the University. see PPM 7-002.III.B.1
  3. It is inappropriate for faculty consultants to assign University intellectual property to organizations engaging their services. see PPM 7-002.III.B.3
  4. Inventions, discoveries, or improvements shall be presumed University property. see PPM 7-002.III.B.3
  5. University claims no right in or to any invention originated as a result of private consulting services performed in compliance with Policy and Procedure 2-26 and not involving substantial use of University facilities (subject to 6-4.III.B.3). see PPM 7-002.III.B.6
  6. Policy 6-4(B)(4) Each full or part-time faculty and staff member and student employee or student participating in research is expected also to inform promptly the director of the University Technology Transfer Office concerning all inventions, improvements, and discoveries made as a result of University employment, or created through the use of time, facilities, equipment, and/or materials owned or paid for by or through the University or as a result of University employment or participation in research at the University; to cooperate with and assist the director of the University Technology Transfer Office in the handling of such matters. See PPM 7-002.III.B.4
  7. By assigning intellectual property rights to organizations engaging their services faculty consultants may: 1) be prohibited from further activities in that field, 2) limit opportunities to profit from commercial applications or their work, 3) limit opportunities to obtain funding from industry and 4) restrict freedom to publish.
  8. Copyrightable works that may be patented will be governed by Policy 6-4 and presumed to be owned by the University. See PPM 7-003.