An Ethical Dilemma: Simple Compliance or Sainthood

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An Ethical Dilemma Simple Compliance or
Sainthood?

• Mitchell McCrate
• General Counsel
• University of Cincinnati

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Once upon a time . . .
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The Laws of the State Were Strict

• These included prohibitions against
• Soliciting or accepting anything of value (think
  less than 20) from anyone doing business with
  the state
• Using her position to obtain benefits for
  herself, a family member, or anyone with whom she
  had a business or employment relationship
• Holding or benefiting from a contract with,
  authorized by, or approved by, the institution in
  which she served

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The Laws of the Kingdom were strict as well . . .

• Significant Financial Interests (generally above
  10,000) that could directly and significantly
  affect the design, conduct, or reporting of the
  work funded by the King were required to be
  managed, reduced or eliminated.

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• And even though the researcher did not violate
  either the edicts of the Governor or the King,
  nevertheless she found herself . . .

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Where No Researcher Wants to Be . . .

• the poster child for perceived wrongdoing in an
  emerging national controversy.

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Recognition that Conflict Management Involves
Something More Than Legal Compliance is Nothing
New

• Sarbanes-Oxley
• Federal Sentencing Guidelines
• ACE Working Paper on Conflicts of Interest
  (in many cases conflict management is not
  primarily a question of law, but of ethics)

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The Problem

• How to put the aspirations found in Codes into
  a format that allows us to manage conflicts/risk
• Put differently, how do we apply principles to
  specific conflicted relationships

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The Formulaic Approach

• Conflicts must be
• identified (defined?),
• managed,
• reduced,
• eliminated, or
• proscribed

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Approach du jour Across the Board Disclosure

• Distinguished from an event-driven or
  matter-specific approach
• AAU/AAMC Recommendations
• NIH Advanced Notice of Proposed Rulemaking

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Example (sort of) UCs Web-Base OAR Form
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The Challenges

• Culture
• Compliance
• Consequences
• Training/Recognition of COI
• Review and Accountability
• Overload

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The Next Level Public Disclosure

• So far this is largely a phenomenon of academic
  health centers
• Legislative Initiatives

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How Much Comfort does Disclosure Really Buy You?

• Does disclosure really eliminate conflicts or
  simply a basis for complaint?
• Is the answer different if we are considering
  institutional as opposed to individual conflicts
  of interest?

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What are the Risks to Our Institutions Posed by
Legal but Unethical Conduct?

• Reputational
• Financial
• Objectivity
• Compromise to Mission
• Health and Safety

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Potential Institutional Conflicts

• Most Commonly Cited
• Research financial interest (e.g., gift,
  sponsorship, consulting revenue) in or
  relationship with a company that sponsors
  research
• Financial Interest through a licensing
  relationship
• Vendor Relations gifts or financial interests
  in companies providing products or services to
  members of the University community
• Student loans
• Study abroad
• Official connections status driven conflicts

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Example Affinity Cards

• Is disclosure alone sufficient?