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WVU law professors concerned proposed BOG rule change will affect their ability to provide free representation in challenges to state law

MORGANTOWN – Some WVU law professors are concerned that proposed changes to a Board of Governors rule will create unconstitutional restrictions on their ability to represent plaintiffs or testify in lawsuits filed against the state. They think the changes stem from political pressure from Charleston.

Recent examples of such suits are the ongoing: Hope Scholarship challenge, the suit to block charter schools and the suit to block the Paycheck Protection Act (dealing with withholding of union dues from state employee paychecks).

The rule in question is BOG Governance Rule 1.4, “Ethics, Conflicts of Interest, and Outside Consulting Arrangements.”

Nineteen law professors signed a 12-page providing comments detailing their concerns and objections.

Some believe that the rule was prompted by complaints from state legislators. Professor Bob Bastress, who provided pro bono (free) representation for the plaintiffs in the Paycheck Protection Act suit, said, “I was told some Republican legislators had expressed some disapproval. We think that’s what started this all.”

The professors say in their comments they believe the changes are “the product of political pressure by state lawmakers who disfavor the speech represented in various public interest litigations brought by certain faculty members.”

The spokeswoman for the House speaker said she spoke with the chief of staff, and they are not aware of any discussions about this. Senate President Craig Blair did not return calls. WVU answered a number of questions about the rule but not one about what prompted it, which mentioned the belief about legislator complaints.

The rule

After describing the major change raising concerns we’ll explain why the professors find them concerning.

The first major change is the revised definition of a consulting arrangement.

The current definition is “any outside employment, arrangement, or contract where a full-time faculty or non-classified staff provides their expertise to a non-university third party as an independent contractor and in which the expertise is, directly or indirectly, related to the employee’s employment or job duties with the university.”

The proposed amendment adds the phrase “provision of services” before the word contract, and strikes the phrase “independent contractor.”

The second change adds a definition of the term institutional duties: For faculty members, institutional duties means duties properly considered part of the faculty member’s teaching, research (defined as also including scholarship and creative activity), and service. Provided however, no employee, including faculty members, may count as institutional duties the engagement in activities that may be adverse to West Virginia University and the state of West Virginia.”

A new section covers “Engagements that may be Adverse to the University or the State.”

It says no faculty member may count as part of their institutional duties (and receive credit for) activities that may result in them being adverse to WVU or the state. Such engagements are considered outside consulting arrangements and must be approved by the dean. “Moreover, no state resources may be used in the engagement such activities.”

The new section says these requests should normally be approved unless the engagement would: constitute a conflict of commitment, involve the use of state resources, or create an incurable or unmanageable conflict of interest.

The objections

The 19 professors summarize three main objections: The proposed amendments constitute unconstitutional prior restraint, threaten to interfere with College of Law clinical representation and conflict with accreditation and professional standards.

The changes to the definition of an outside consulting arrangement they say, will now take in their pro bono work, not just paid consulting previously covered. It could cover legislative advocacy, testimony, working on amicus briefs, serving as expert witnesses and providing legal ethics advice.

And the three exceptions listed after “normally approved” are overly broad and vague, they say, allowing for heavy handed application. The proposal “is devoid of any statement confirming a decision maker ‘will not rely on political considerations to deny an outside activity request.’” (They quote here and frequently site a case in which a similar University of Florida rule was found to infringe on a law professor’s free speech by imposing prior restraint.)

The professors say, “The fact of the matter is that faculty participation in public interest litigation poses no conflict of interest, actual or apparent, nor has it ever been shown to be disruptive to university operations.”

The current rule is aimed at paid consulting work, they say, and WVU would be rightfully concerned about divided loyalties. “But voluntary, pro bono, public interest litigation does not raise any such concerns. Faculty engaged in such activity … are participating ‘in matters touching the very heart of the First Amendment.’”

On the topic of clinical representation, they say that the proposal poses the same prior approval process on the clinic. The clinic offers valuable hands-on experience to law students by providing non-university provision of services to non-university clients – not services to the university.

On the professional standards issue, they exclude pro bono service in actions adverse to the state from institutional duties runs afoul of law school accreditation that requires public service.

In a separate comment, law professor John Taylor suggests two revisions to the proposal. One, any prior approval inquiry should be content-neutral and take in only the amount of time the outside consulting will take away from other university duties. And two, there should be a time limit – one or two weeks – for an approval decision.

The WVU Faculty Senate Executive Committee met Aug. 22, discussed the proposed rule changes and approved a resolution urging the BOG to extend the public comment period on the changes, which expired on Friday.

Bastress said WVU General Counsel Stephanie Taylor made a presentation on the proposal and took questions.

Because the rule change was introduced during the summer while many faculty were away, he said, “We felt that slowing the train down would be a good idea. … I did raise questions about why this rule was needed since we’ve had this 60-year history, practically, of law professors participating in litigation against the state in one fashion or another.”

WVU responds

WVU responded to some of the questions about the proposal sent by The Dominion Post.

The amendments were put out for public comment from June 27-July 27.

“Importantly, the proposed rule, as written, does not prohibit a WVU employee from engaging in outside consulting arrangements adverse to the state. Such activity, though, cannot be counted as institutional duties. Further, there is no denial of an employee’s right to sue or represent plaintiffs in lawsuits against the state. In other words, the proposed rule prohibits a faculty member from counting as service and thus part of their job duties — being adverse to the state. But they can still do so all they want on their own time with their own resources.

“Also, this would have no effect on the work of the WVU law clinics.”

WVU said the public comments submitted so far will be publicly posted on the BOG website on Aug. 30. “As we normally do for any Rule, the University likes to reach out to the commenters to discuss their comments and, where appropriate, solicit additional feedback on potential revisions in response to those comments.”

In response to the Faculty Senate Executive Committee request, WVU administration will recommend that the BOG put out a second notice of proposed rulemaking and another 30-day comment period. The BOG will meet Sept. 9.

WVU President Gordon Gee is a member of the law school faculty and offered this comment: “I want our faculty and staff, including my fellow law faculty, to engage in public service – it is an integral part of our land-grant mission. But there are times when that service might be in conflict with the university. In those cases, it is perfectly reasonable that faculty, while free to pursue it, could not count that activity as institutional service or use university resources.”

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