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Handbook of Operating Procedures
Chapter 1 - Administration
Previous Publication Date: September 29, 2020
Publication Date: November 4, 2020
Responsible Executive: VP for Business Affairs


1.33 Conflict of Interest, Conflict of Commitment, and Outside Activities


I. POLICY STATEMENT


It is the policy of The University of Texas at San Antonio (UTSA) to provide a transparent system of disclosure, approval, and documentation of its employees’ activities outside of the University which might otherwise raise concerns about conflicts of interest or conflicts of commitment. This policy ensures compliance with state ethics laws, The University of Texas System (UT System) Regents’ Rules, and UT System policies. This policy does not rescind any policy provided by UT System or UTSA, any departmental policy, any contract provision, any agreement with the Texas Attorney General, or any law or rule that is more specific or more restrictive concerning conflicts of interest, conflicts of commitment and outside activities. UTSA employees are required to comply with the more specific or restrictive policy, contract provision, agreement, law, or rule. 


II. RATIONALE


This policy provides the institutional framework of rules and procedures in place to protect the credibility and reputation of the University and its faculty and staff when those employees are engaged in outside activities. 


III. SCOPE


This policy applies to all UTSA employees.       


IV. WEBSITE ADDRESS FOR THIS POLICY


http://www.utsa.edu/hop/chapter1/1-33.html


V. RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS


UTSA or UT System Policies or the Board of Regents' Rules & Regulations

  1. UTSA HOP policy 4.12 Overtime for Non-Exempt Employees
  2. UTSA HOP policy 3.04 Grievances of Non-Faculty Employees
  3. UTSA HOP policy 10.04 Conflicts of Interest in Research and Intellectual Property
  4. UT System policy 180 Policy on Service on Outside Boards
  5. UT System policy 134 Code of Ethics for Financial Officers and Employees
  6. UT System policy 175 Disclosure of Significant Financial Interests and Management and Reporting of Financial Conflicts of Interest in Research
  7. UT System policy 180 Conflict of Interest, Conflict of Commitment, and Outside Activities
  8. Board of Regents’ Rule 30104 Conflict of Interest, Conflict of Commitment, and Outside Activities
  9. Board of Regents’ Rule 60306 Use of University Resources
  10. UT System HOP policy 1.1.2 Outside Activity Policy

Other Policies & Standards

  1. Texas Government Code 572 Personal Financial Disclosure, Standards of Conduct, and Conflict of Interest
  2. Texas Government Code 574 Dual Office Holding
  3. Texas Constitution, Article 16, Section 40 Holding More than One Office

VI. CONTACTS


Office of Legal Affairs (conflict of interest questions)
(210) 458-4105

Office of Institutional Compliance and Risk Services (for consultation and to report any suspected wrongdoing)
(210) 458-4992

UTSA toll-free hotline (210-458-5365), or via the Hotline form (to anonymously report suspected violations) 

Office of the Provost and Vice President for Business Affairs (for supervisory and management inquiries)
(210) 458-4201

Office of the Vice President for Research, Economic Development and Knowledge Enterprise
(210) 458-6859

University Technology Solutions (for technical issues)
(210) 458-5555


VII. DEFINITIONS


Approval Authorities: The President has appointed the following individuals as the approval authorities under this policy:

  1. For members of the full-time and part-time faculty: their department chair
  2. For department chairs: their dean
  3. For deans: the provost
  4. For vice presidents: the president
  5. For the president: the executive vice chancellor for academic affairs and the chancellor
  6. For staff and others covered under this policy: their supervisor

Note: The Approval Authority for HOP policy 10.04, Conflict of Interest in Research and Intellectual Property, is the Vice President for Research, Economic Development, and Knowledge Enterprise or his/her designee..

Business Entity:  Any entity recognized by law through which business for profit is conducted, including a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, or trust.

Compensation:  Any form of benefit, including but not limited to salary, retainer, honoraria, sponsored travel or reimbursement, intellectual property rights or royalties, or promised, deferred, or contingent interest.
Compensation does not include reimbursement for out-of-pocket expenses or sponsored travel that is usual and customary. Also excluded is travel that is reimbursed or sponsored by a federal, state, or local government agency, an institution of higher education, an academic teaching hospital, a medical center, or a research institute that is affiliated with an institution of higher education.*

Conflict of Commitment: A state that occurs when the time or effort that a UTSA employee spends on an outside activity directly or significantly interferes with the employee’s fulfillment of his or her institutional responsibilities or when the employee uses State property without authority in connection with the employee’s outside employment, board service, or other activity.


Conflict of Interest:  A significant outside interest or activity of a UTSA employee or one of the employee’s immediate family members that could appear to a reasonable person to directly or significantly affect the employee’s performance of his or her institutional responsibilities. A conflict of interest is generally an issue of financial or personal gain.


Gifts: Anything of value, including tickets to entertainment or sporting events, expenses for a trip, and food.


Honoraria: A payment for service for which fees are not legally or traditionally required.


Immediate Family Members: Include the following:
(a) a spouse;
(b) a dependent child or stepchild or other dependent, for purposes of determining federal income tax liability during the period covered by the disclosure statement; and
(c) a related or non-related, unmarried adult who resides in the same household as the individual and with whom the individual is financially interdependent as evidenced, for example, by the maintenance of a joint bank account, mortgage, or investments. 


Institutional Responsibilities: An employee’s professional responsibilities on behalf of UTSA. For faculty, this includes the Researcher’s research, teaching, service, administrative, and other professional activities such as University committee memberships, and other internal or external service activities. For staff, this includes the employee’s responsibilities as related to their job duties and performance expectations.


Nature and Extent:  The “Nature and Extent” of an outside activity (including an outside job/employment) will include a description of major duties to be performed, the anticipated time commitment, and length of time the activity is expected to continue.


Outside Activity/ies: For the purposes of this policy, Outside Activities include (1) those for which UTSA employees receive remuneration while not acting as employees of UTSA (also referred to as “outside employment”) or (2) those which are not considered to be part of their professional performance in their positions and thus not reported on their periodic performance report.


Outside Board Service:  Service on any board, council, or other governing or advisory board of a business, civic, professional, social, or religious organization, whether for-profit or non-profit.


Outside Employment: Any activity performed by an employee, other than fulfilling employment obligations at U.T. System Administration or a U.T. System institution, for which remuneration is received, including distance teaching and consulting. A UTSA employee should not accept other employment that could reasonably be expected to impair his or her independent judgment in performing official UTSA duties. Additionally, a UTSA employee should not accept other employment or engage in a business or professional activity that would require or induce him or her to disclose confidential information required through his or her official position.

Personal Investments: An amount of money that is invested in something by a person, rather than by a company or organization.

Self-dealing/Transactions with Employees: Any business in an official capacity with any business entity of which the UTSA employee is an officer, agent, or member, or in which the employee owns a substantial interest.

Substantial Interest in a Business Entity: For purposes of this policy, means:

  1. A controlling interest;
  2. Ownership of more than 10 percent of the voting interest;
  3. Ownership of more than $5,000 of the business’ fair market value;
  4. A direct or indirect participating interest by shares, stock, or otherwise (regardless of whether voting rights are included) in more than 10 percent of the profits, proceeds, or capital gains; or
  5. Service as an officer.

It does not include investments in mutual funds or retirement accounts, so long as the individual does not directly control the investment decisions made in those vehicles.
  
University Time.  For faculty, this time is defined by the number of hours per week necessary for the performance of job duties, which include teaching, research, and service.  For some staff this time is defined by a work day with set hours, and for other staff this time is defined as a work day with set hours plus on call service as needed. 

*As required by the UT System under UTS 180, the definition of compensation is partially, but not completely, consistent with Public Health regulations and UTS 175 governing conflicts of interest in research (42 CFR Sec. 50.603, definition of “significant financial interest,” at (2 & 3)).

VIII. RESPONSIBILITIES


  1. All UTSA Employees
    1. Accomplishes the duties and responsibilities assigned to one’s position of appointment.
    2. Discloses outside activities as required under this policy through the official electronic disclosure portal.
  2. Approval Authority
    1. Reviews outside activities as appropriate and as described in this policy to identify conflicts of interest and conflicts of commitment.
    2. When there is a conflict of interest: customizes a management plan in consultation with the individual submitting the disclosure; monitors the management plan or designates an individual to monitor the management plan; and submits the management plan to the approval authority’s supervisor for approval.
    3. When necessary, follows the appeals process as described in this policy below in Section IX.A.5.
  3. Approval Authority's Supervisor
    1. When necessary, reviews management plan for approval.
    2. When necessary, addresses appeals within 10 business days as described in this policy.
  4. Vice Presidential Point of Contact or Designee
    When necessary, addresses appeals within 15 business days as described in this policy.

  5. President
    As outlined in UTS 180, Section 9, the president is subject to certain requirements, including the requirement to file a report on Outside Board Service with the Office of the Chancellor at the same time that it is filed with the Ethics Commission.

IX. PROCEDURES


  1. Required Disclosures and Approvals

    A UTSA employee must submit timely disclosure statements as required by law, rule, or policy annually and within thirty days of a change. The UTSA employee’s position with UTSA and the contemplated activity will determine which disclosure statements are required.

    Confidential Outside Activity. If an employee wishes to engage in an Outside Activity for which some or all of the relevant information is confidential, the Approving Authority may nonetheless approve the activity without requiring full written disclosure upon satisfaction that there is a compelling reason to treat the information confidentially and the activity is otherwise fully compliant with this HOP policy and all other applicable laws and UTSA and UT System policies.


    1. UTSA employees are required to disclose annually, or more frequently as needed, the activities below:
      1. A description of the nature and extent of all outside employment or other compensated activity;
      2. A description of the nature and extent of any outside activity, regardless of compensation;
      3. A description of the nature and extent of any outside (onsite or distance) teaching that is in, or related to, the same discipline as one’s area of University teaching responsibilities;
      4. The range of total annual compensation received for any compensated activity, or total annual compensation from a single entity, if it is greater than $5,000;
      5. A description of the nature and extent of outside board service, regardless of compensation;
      6. A description, including the range of compensation or interest, of any substantial interest in a business entity, which should be provided no later than 30 days after acquiring the interest;
      7. A description of gifts over $250 to the individual or his or her immediate family members, related to the employee’s institutional responsibilities or could appear to a reasonable person to be a conflict of interest, which should be provided no later than 30 days after acquiring the gift. Do not include gifts received from: one’s parent, child, sibling, grandparent, or grandchild; or the parent, child, sibling, grandparent, or grandchild of one’s spouse; and
      8. A description of the nature and extent of any activity of immediate family members and a description of any substantial interest of immediate family members in a business entity (as defined above), related to the employee’s institutional responsibilities or could appear to a reasonable person to be a conflict of interest, which should be provided no later than 30 days after acquiring the interest.

    2. Approval requirements
      1. Approval is required prior to engaging in the following activities:
        • all outside employment or other compensated Outside Activities;
        • all Outside Board Service (see Sec. VII, definition of Outside Board Service, for details and exclusions); and
        • any uncompensated activity.
    3. Granting Approval
      1. Approval Authorities will be held responsible for granting approval for Outside Activities, Outside Board Service, and Interests listed on a disclosure if:
        1. the activity, service or interest would not give the appearance of  a Conflict of Interest or, where applicable, a Conflict of Commitment, to a reasonable person; or
        2. no Conflict of Commitment (if applicable) is found and any identified Conflict of Interest  associated with Outside Activities,  Board Service, or Interests has been managed in an approved management plan as described in Section D. below.  
      2. Approval Authorities should also approve the use of any UTSA resources as required and confirm that research data, confidential information or intellectual property of UTSA is being protected. (See UTSA HOP policy 10.04,;Conflicts of Interest in Research and Intellectual Property and HOP policy 10.15, Management, Use and Commercialization of UTSA Intellectual Property).
      3. Approvals are expected to occur in a timely manner.
      4. Prior approval must be received or a management plan must be in place before an employee begins work on the Outside Activity or Outside Board Service unless one of the following applies:
        1. Retroactive Approval:  In rare instances, an Outside Activity or Outside Board Service may be approved retrospectively when the employee is called upon to assist in an emergency or urgent situation where it would be impossible or unreasonable to obtain advance approval.  In such cases, the activity must be fully disclosed and approval sought from the appropriate Approval Authority as soon as reasonably possible.
      5. Prospective Approval:  Some activity may also be prospectively approved, for up to one year, when an employee describes to the Approval Authority as fully as reasonably possible the general Nature and Extent of anticipated, but not confirmed, outside opportunities.
    4. Rescinding Approval
      An Approving Authority may rescind approval of an Outside Activity, Outside Board Service, Substantial Interest in a Business Entity, or a management plan upon receipt of information indicating that the approved activity, board service or Interest is not consistent with this policy or any applicable law or UTSA or UT System policy or the management plan has failed to ensure such consistency with policy and law or is not being followed. This action may also be taken if the employee’s performance declines.

    5. Appealing an Approving Authority’s Decision
      1. If an approval required under this policy is denied or an approval or management plan is rescinded, the employee may request that the Approving Authority reconsider the decision by providing an explanation in writing and submitting any documentation in support of his/her request. After reviewing all information and materials submitted by the employee, the Approving Authority may affirm his/her original decision or grant the employee’s request.
      2. If the Approving Authority affirms his/her original decision to deny approval or rescind a management plan, the employee may send the Approving Authority a written request asking that the decision be appealed. Within 10 business days of receiving this request, the Approving Authority will forward materials submitted by the employee and information relating to the Approving Authority’s decision to the Approving Authority’s supervisor.  This supervisor will review the materials forwarded by the Approval Authority and within 10 business days make a final decision to grant the employee’s request, to affirm the Approval Authority’s decision, or take such other action as he/she determines is in the best interests of UTSA.
      3. If the employee remains unsatisfied with the supervisor’s decision, they may request their Vice Presidential Point of Contact or Designee review the decision.
      4. If the employee remains unsatisfied with the decision, he or she may access standard UTSA grievance procedures. (See UTSA HOP policy 2.34 for faculty grievance procedures and HOP policy 3.04 for grievances by non-faculty employees.)

  2. Time Allocation to Outside Activities and Outside Board Service

    All compensated Outside Board Service and service to a religious organization must be on the employee’s own time using vacation leave, compensatory time (if applicable), or other arrangement approved by the employee’s supervisor. Outside Board Service may be performed on UTSA time as part of the employee’s institutional responsibilities so long as the activity furthers the interest of UTSA; is service to a nonreligious organization; is uncompensated (other than for reimbursement of usual and customary expenses); is approved prior to commencement of the activity; and is disclosed (by any formal university mechanism, including the employee’s periodic performance report or faculty annual report).

    1. Faculty. Members of the faculty have flexibility in using their time to prepare for teaching and to engage in research, service and other scholarly activity.  Other responsibilities, such as presenting lectures, being available to meet with students, and participating on university committees, have more rigid time demands. During time periods in which a faculty member holds a full-time appointment, the faculty member may be permitted to engage in Outside Activities and Outside Board Service that are not included in their UTSA duties so long as such activities and service do not exceed the equivalent of 20 percent of the employee’s full-time obligation. During the time that a faculty member has a part-time appointment, any outside activities must not interfere with the execution of duties related to their part-time appointment at UTSA. During the time in which the faculty member does not have an appointment (e.g., summer for a faculty on a nine month appointment), the faculty member is still required to seek approval for Outside Activities or Outside Board Service. 
    2. Staff. During the period of full-time employment with UTSA, staff members may engage in Outside Activities and Outside Board Service so long as such activities and service do not reduce the full-time obligation to UTSA. Such Outside Activities and Board Service are considered an overload. However, the following exception allows staff members to engage in approved Outside Activities and Outside Board Service on University time ONLY if all of the following criteria are met:  the service is not compensated; the service does not exceed 8 hours per week; the service does not interfere with the staff member’s University duties and responsibilities; and the service clearly contributes to the mission of the University or provides important elements of staff professional development related to their University duties and responsibilities.

  3. Conflict of Interest and Conflicts of Commitment Prohibited
    1. UTSA employees may not have a direct or indirect interest, including financial and other interests, or engage in a business transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of the employee’s duties for UTSA. 
    2. Activities on behalf of outside entities or individuals must not interfere with a UTSA employee’s fulfillment of his/her duties and responsibilities to UTSA. Such Conflicts of Commitment may arise regardless of the location of these work/activities (on or off campus), the type of outside entity (individual, for-profit, not-for-profit, or government), or the level of compensation (compensated or not compensated).
    3. A UTSA employee should not intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised his/her official powers or for having performed his/her official duties in favor of another. If the benefit was given in exchange for an official act, it could constitute the criminal offense of bribery.
    4. A UTSA employee may not transact any business in an official capacity with any business entity of which the employee is an officer, agent, or member, or in which the employee owns a substantial interest. Additionally, before UTSA may purchase any supplies, materials, services, equipment, or property from the UTSA employee, the president or his designee must approve the purchase. The purchase may be made only if the cost is less than from any other known source.
    5. A UTSA employee should not make personal investments that could reasonably be expected to create a substantial conflict between the employee’s private interest and the public interest. This means that a UTSA employee should not have a direct or indirect financial interest in a business that conflicts with interest of UTSA or that might influence how the employee does his/her job. Some financial interests may be so indirect or so minimal that they do not create conflicts of interest, such as ownership of a minimal amount of stock in a company or an investment in a publicly traded mutual fund in which the employee does not exercise discretion regarding the investment of the assets of the fund. Questions about whether a particular investment creates a conflict of interest should be directed to the UTSA’s Office of Legal Affairs.
    6. A UTSA employee may not accept an honorarium for services he or she would not have been asked to provide but for his or her official status. For example, a UTSA employee may not accept a gift or payment for giving a speech if he or she would not have been asked to provide the speech but for his or her official position. However, a UTSA employee may accept meals, transportation, and lodging in connection with his or her services as long as the services are more than merely perfunctory or superficial. Also, he or she may accept a gift of up to $250.
    7. There are two standards under Texas law governing gifts – (1) a general standard of conduct that applies to all employees and (2) a criminal standard that applies only to those persons who make recommendations or decisions about contracts and other financial transactions. Under the general standard, a UTSA employee should not accept of solicit any gift, favor, or service that might reasonably tend to influence the employee in the discharge of official duties or official conduct. This standard applies even if the donor does not ask the employee for anything in exchange for the gift. Acceptance or solicitation of a gift in violation of this standard is not a criminal offense, but is grounds for discipline, including termination. Criminal penalties may apply to employees who make recommendations or decisions about UTSA financial transactions. These employees may not accept a gift from an individual or entity that is interested in or likely to become interested in that transaction, with limited exceptions. Under these exceptions, it is not a criminal offense to accept the following type of gift if the gift is not given in exchange for the employee’s official action:

      1. non-cash items worth less than $250;
      2. a gift from a person such as a relative, friend, or business associate with whom the employee has a relationship independent of his or her official status, if the gift is given on account of that relationship rather than the official status;
      3. and food, lodging, transportation, or entertainment in any amount if the employee accepts them as a “guest,” which means the donor must be present. The law provides additional prohibitions if the donor is a lobbyist registered with the Texas Ethics Commission. It is advisable to consult the Office of General Counsel before accepting a gift from a lobbyist. Note that even though an employee may accept a gift described above without committing a crime, acceptance of the gift may still violate the general standard of conduct and constitute grounds for discipline.

      Additional restrictions apply if the gift is from a student loan lender. The definition of “student loan lender” is very broad and covers entities that may not traditionally be thought of as student loan lenders. Consult UTSA’s Office of Legal Affairs to determine if the proposed gift from the student loan lender is permissible under the Texas Higher Education Fair Lending Practices Agreement. It is important to remember that even though the acceptance of a gift may not constitute a crime, it may appear to the public that a gift has influenced the employee in performing his or her job. Employees should not accept any gift that could appear to influence official conduct, even if the gift is technically legal. 

    8. Substantial relationships between any employee and programs sponsored, funded, directed, or controlled by a foreign government, foreign agency, or foreign institution are prohibited, unless properly and timely disclosed in accordance with an institution’s applicable policy. 

  4. Management Plans
    Management plans must be in place for UTSA employees for Outside Activities and Outside Board Service that may create a Conflict of Interest or a Conflict of Commitment before the activity begins. Management plans will be customized by the appropriate Approving Authority in consultation with the employee and will designate who will be responsible for monitoring the activity to ensure compliance with the plan. Management plans will be presented to the Approving Authority’s supervisor for review and final approval.
  5. Salary Supplement
    In compliance with State of Texas Government Code Section 659.0201, when the University accepts a gift, grant, donation, or other compensation from a person that the person designates to be used as a salary supplement for a UTSA employee, the receiving entity shall analyze the gift, grant or donation for potential conflicts of interest. If a conflict of interest exists, UTSA will use its current processes and procedures to eliminate or manage the conflict. The gift will be posted to UTSA’s website without revealing the employee’s name to whom the salary supplement will be applied.
  6. Use of UTSA Property and Other Resources
    UTSA property and other resources may only be used as appropriate to UTSA’s mission. Use of UTSA property or resources by a UTSA faculty or staff member for any Outside Activity or Outside Board Service must be explicitly approved by the appropriate UTSA Approval Authority. All individuals granted access to or use of UTSA Information Resources must be aware and agree to abide by the requirements in HOP 8.15, Acceptable Use Policy.
  7. Noncompliance with this policy may subject a UTSA employee to discipline in accordance with applicable procedures up to and including termination of employment. Additionally, civil and criminal penalties may apply under certain circumstances.

**When in doubt in determining whether an activity or interest should be disclosed, the individual should resolve the doubt in favor of disclosure.


X. SPECIAL INSTRUCTIONS FOR INITIAL IMPLEMENTATION


None


XI. FORMS AND TOOLS/ONLINE PROCESSES


The Conflict of Interest Portal
https://oric.utsa.edu/

Education and Training materials
http://www.utsa.edu/compliance/COI/COI.html


XII. APPENDIX


None