- Governance and regulations
- Rules regarding conflict of interest
Rules regarding conflict of interest
The following is a translation of the Swedish document “Jävsregler”. In case of inconsistency or discrepancy between the English translation and the Swedish original, the Swedish original shall prevail.
Regulations on conflicts of interest are ultimately based on the principle of objectivity, described in the Instrument of Government, Chapter 1, Article 9: “Courts of law, administrative authorities and others performing public administration functions shall pay regard in their work to the equality of all before the law and shall observe objectivity and impartiality.” Conflict of interest refers to a situation in which it can be assumed that a decision maker or administrator may lack objectivity in a way that will affect the relevant authority’s position on a certain issue, which in turn calls for disqualification of said decision maker/administrator.
The responsibility for avoiding conflicts of interest ultimately lies with the university management, but in practice, its implementation may be delegated down to an immediate superior. At the same time, anyone who may be assumed to disqualify is under a strict obligation to themselves report this, in accordance with Section 18 of the Administrative Procedure Act (APA, 2017:900): “A person who is aware of a circumstance that can be assumed to disqualify them must immediately notify the authority of this”. The use of “can be assumed” and “immediately” is worth noting; this means that the duty to report has a broad application and that potential conflicts of interest must be handled with speed.
A great deal of the responsibility for avoiding conflicts of interest thus lies on the one hand with individual employees, who are obliged to report potentially disqualifying circumstances and, on the other hand, with managers in the organisation, who decide on conflicts of interest. It can be reasonably assumed that in most cases, managers and other employees are fully capable of determining whether or not there is a conflict of interest. In line with the law, normal procedure is thus that an employee who has reason to believe that they may have a conflict of interest must report this to their immediate superior, who will subsequently decide whether this is indeed the case.
If there is a potential conflict of interest, the employee must not participate in any affected decision. It should be noted, however, that APA specifies two scenarios in which the impartiality requirement may be disregarded: Section 16 states that “[i]f it is obvious that the question of impartiality is of no importance, the authority shall disregard the disqualification”, and Section 17 states that a person who has a conflict of interest may still “perform tasks that no one else can perform without a considerable delay in the processing of the matter”. Section 17 should be resorted to only in exceptional cases; authorities are expected to be staffed in a way that in the vast majority of cases, this section will not apply (government bill 2016/17:180, p. 303). As for Linnaeus University, it can be reasonably assumed that there are extremely few situations in which Section 17 must be exercised.
Conflicts of interest
Potential conflicts of interest constitute a very broad category. Section 16 of the Administrative Procedure Act (APA) states that for a person to be considered to have a conflict of interest, it is enough that there is some kind of special circumstance that suggests that their impartiality may be questioned. This means that the mere suspicion that a person’s impartiality can be questioned is enough to consider disqualification. It is worth noting that a potential conflict of interest is not the same as an actual conflict of interest, and that a conflict of interest investigation does not automatically lead to disqualification. A conflict of interest can furthermore be disregarded if it is clear that it has no bearing on the relevant case (APA, s 16). Section 16 of APA governs what should be considered as a conflict of interest; Section 17 establishes that a person who has a conflict of interest must not be part of the administration of, or any decision on, the relevant case; and Section 18 states that anyone who may have a conflict of interest is obliged to report this. It is also stipulated that the relevant authority must decide on any conflict of interest as speedily as possible; to this end, a decision support may facilitate administration of potential conflicts of interest, for managers as well as for individual employees.
The law
Extract from the Administrative Procedure Act (2017:900):
Disqualification
Section 16
A person who takes part on behalf of an authority in the processing of a matter in a way that can influence the authority’s decision in the matter is disqualified if:
- either they or a person close to them is a party in the matter or can otherwise be assumed to be affected by the decision to a not insignificant extent;
- either they or a person close to them is or has been a representative or counsel for a party in the matter or someone else who can be assumed to be affected by the decision to a not insignificant extent;
- they participated in the final processing of the matter at another authority and have, as a result of this, already taken a position on the questions to be examined by the authority as a superior instance; or
- there is some other special circumstance that means that their impartiality in the matter can be questioned.
If it is obvious that the question of impartiality is of no importance, the authority shall disregard the disqualification.
Section 17
A person who is disqualified must not take part in the processing of the matter and must not be present when the matter is determined either. However, they may perform tasks that no one else can perform without a considerable delay in the processing of the matter.
Section 18
A person who is aware of a circumstance that can be assumed to disqualify them must immediately notify the authority of this.
An authority shall examine a question of disqualification as soon as possible.
The person that the disqualification applies to may only take part in the examination of the question of disqualification if this is required for the authority to be quorate and a replacement cannot be summoned without material delay to the examination.
Decision support in case of potential conflicts of interest
The concept of conflict of interest pertains to the exercise of public authority – including preparation of decisions as well as decision-making. It does not, however, pertain to de facto practice (“faktiskt handlande”) such as teaching – although it does pertain to grading, since this is a form of exercise of public authority. A person must not participate in the administration of, or be present when decisions are taken regarding, cases that may in any way lead to financial or other gain or loss for said person or their loved ones; nor must a person who is themselves party to a case – that is, who is themselves an applicant or complainant, or who are in some other way invested in the case – be part of the administration of, or any decision regarding, said case.[1] Note that the concept of conflict of interest applies only to the exercise of public authority; other kinds of activity, such as matters of reorganisation, departments’ internal work, etc., are not subject to regulations on conflicts of interest.
A conflict of interest exists with close relations. Close relation has a broad application and refers not only to spouses and cohabitants, but also to children, stepchildren, live-apart partners, and the like.[2] Close relations may also include temporary relations and relations in the past. A conflict of interest furthermore exists if a person in an administrative position is clearly friends with, or clearly has something against, a party in a case under their responsibility.[3] The key factor here is the degree of friendship/animosity – something that needs to be determined on a case-by-case basis, by someone with insight into the situation. Being colleagues and using Facebook to congratulate each other on birthdays is hardly grounds for disqualification, whereas getting together every other weekend outside work; being engaged in the same sports team; and borrowing each other’s summer houses without paying most certainly is. The Parliamentary Ombudsmen have repeatedly stated that an official who realises that there is a circumstance that may raise doubts as to their impartiality should give the case to a colleague.
A conflict of interest furthermore exists if someone involved in the administration of a case is in any way clearly in a dependent relationship with a party to the case, or vice versa.
A conflict of interest may also exist in situations where an individual employee represents another person. In such cases, the conflict may apply to both the party to the relevant case and the one representing them. If an employee helps an applicant, for instance with writing an application, said employee should not provide such extensive help that they cannot subsequently assess the case objectively, due to their own prestige or the like.
A conflict of interest may be disregarded if it clearly has no bearing on the case at hand. For instance, whereas a person who has been deemed to have a conflict of interest must not participate in any way in the administration or decision-making of the relevant case (since this constitutes exercise of public authority), they may well execute the resulting decision (since this does not constitute exercise of public authority). Similarly, regulations on conflicts of interest do not apply to purely administrative tasks, such as executing decisions, registering and archiving cases, entering data in Ladok, and the like.
If there is any doubt as to whether there is a conflict of interest, the situation must be brought up for discussion without delay. As already mentioned, a potential conflict of interest is not the same as an actual conflict of interest; rather, a potential conflict of interest must be examined in order to settle the matter. If this is not possible (for instance due to lack of time), the potentially conflicted person should recuse themselves from the matter, just to be on the safe side – unless they are the only person available to administer the case, in which case they may do so. Any official decision on the matter must, however, be taken by someone other than the potentially conflicted person – for instance their immediate superior, or another member of staff in the same office.
[1] In the case of RÅ 1977 ref. no 138, the Supreme Administrative Court reversed a municipal committee’s decision to give a senior post to a person who had been appointed to inform applicants for the position about the application process, despite the fact that he himself was an applicant.
[2] See also LNU’s guidelines on conflicts of interest with close relations (only available in Swedish): https://lnu.se/globalassets/dokument---gemensamma/personalavdelningen/styrdokument/riktlinjer-kring-slakyskapsjav-201222.pdf
[3] In a decision on 21 October 2011 (reg. no 22-565-11), the Higher Education Appeals Board decided that a person engaged as an external expert in the appointment procedure for a senior lecturer could not be considered impartial, since they had been part of one of the applicants’ closest social circle for ten years and had furthermore nurtured a dislike for said applicant during the supposed friendship. In JO 2015/16 p. 412, the Parliamentary Ombudsmen established that being friends on Facebook may be inappropriate and may affect impartiality. In yet another case (JO 2015/16, p. 526), the Parliamentary Ombudsmen considered work-related contact and limited contact on Facebook not to be cause for disqualification.
Secondary employment
Secondary employment may easily lead to conflicts of interest. Employees are required to themselves report both secondary employment and potential conflicts of interest. What determines the existence of a conflict of interest is whether an administrator or someone close to an administrator is a party, or represents a party, to the relevant case, so that they are somehow invested in, or can benefit or suffer from, the outcome of the case. Note that unions constitute a special case in the context (see below).
Researchers’ participation in administration or decision-making of matters regarding research ethics or allocation of external funds from research foundations or the like may constitute grounds for disqualification. The Parliamentary Ombudsmen discuss this at some length in JO 1974, p. 393. The Office of the Chancellor of Justice has also made some general comments on this matter, saying that pushing the impartiality requirement too far may hamper research and the research community, at the same time as the principle of objectivity must nevertheless be adhered to (decisions 941212 and 950327 in cases 3805-92-21 and 4225-92-21). The conclusion that the Parliamentary Ombudsmen and the Office of the Chancellor of Justice draw is that this kind of issue must be settled on a case-by-case basis.
Conflicts of interest in the case of appeals or review
One and the same person must not be part of the administration of, or decision on, a case in different bodies, where a higher-level body reviews a decision made by a lower-level body, for instance in case of an appeal or in connection with a review of the lower-level body.
This kind of conflict of interest does not include situations in which a person at one and the same authority is involved in the processing of a case at different stages of the process, since this does not involve an appeal or a review. Partaking in the administration of a case at an early stage thus does not prevent the same person from being involved again, at a later stage.
No one should wear two hats
A university employee should not hold executive positions at several levels at the same time; that is, one and the same person should not be, for instance, a director of studies, a director, or a head of department at the same time as they serve as the dean or pro dean of the faculty to which the department belongs.
Teaching
A teacher must not be involved in decisions on course reading if they stand to gain financially from it (for instance through authorship);[1] nor should they participate in the administration of associated course syllabi. In their capacity as a subject expert, a teacher may, however, suggest suitable course reading, even if they are themselves authors. Another way of handling this kind of situation is for the syllabus committee (or the equivalent) to specifically ask about the suitability of the choice of course reading in the case of self-authored material. Since it is the dean who ratifies decisions on course reading, it is problematic if a dean has written a textbook that they want to use for a course. In such cases, the decision may be delegated to the pro dean, or to the relevant head of department. A similar issue concerns whether a teacher is allowed to grade students who have been given the assignment to review a book written by that same teacher. In a case regarding this very situation, the Swedish National Agency for Higher Education found that the university needed to review the situation in terms of a potential conflict of interest but did not say anything about what the conclusion should be, other than that the students could very well have considered themselves to have grounds for questioning the teacher’s impartiality. It should be noted, however, that considering oneself to have grounds for something is not the same as actually having grounds for it.
Teaching one’s own children or other close relations does not entail a conflict of interest for a teacher, since teaching does not constitute exercise of public authority. Examining and grading close relations, on the other hand, clearly does entail a conflict of interest, since this counts as exercise of public authority. This includes the creation of exams, examination, and grading (including attestation). Close relations include relations of a sexual nature; the Parliamentary Ombudsmen furthermore concluded in a case where a senior lecturer had examined a student who they had previously tutored privately that the tutor–student relationship constituted grounds for disqualification (JO 1985/86, p. 397).
Teaching in the form of supervision may sometimes include parts that are examining in nature. This is then to be seen as exercise of public authority, which means that each such situation must be assessed in terms of a conflict of interest.
Joint teaching on a course does not normally constitute a conflict of interest.
[1] See also the statement by the Swedish National Agency for Higher Education, reg. no 30-4919-04, 2005-02-24, according to which a teacher should not prepare a decision or decide on course reading that said teacher has authored.
Research and third-cycle education
A close friendship or dependent relationship with a party in the relevant matter constitutes grounds for disqualification. This includes supervision and joint contributions to research projects. It should be noted that doctoral examiners are bound by the same regulations on conflicts of interest as teachers at the first- and second-cycle level. Being affiliated with the same department, knowledge environment, or research centre is, however, not in itself grounds for disqualification.
As is clear from the vice-chancellor’s executive meeting 47, a doctoral student must not be supervised or examined by a close relation.[1]
A supervisor–doctoral student relationship constitutes life-long grounds for disqualification. This approach is not unique to LNU; rather, it is practically a general rule in academia in Sweden, and it is also the approach taken by many research funders, such as, for instance, the Swedish Research Council.[2]
Collaboration and co-production may constitute grounds for a conflict of interest. The Higher Education Appeals Board has pointed to collaboration as grounds for a conflict of interest, in several
different cases. Normally, a period of five years since the last collaboration or co-production is considered a sufficient period of time for any potential conflict of interest to have been eliminated, but if the collaboration was very extensive, went on for a long time, or was recurring, more time may need to have passed. This is practically a general rule in academia in Sweden. In a case (reg. no 223-96) dealing with this kind of situation, the Higher Education Appeals Board concluded that a previous collaboration between an expert reviewer and an applicant did not constitute grounds for disqualification, since almost ten years had passed, and since the collaboration was neither extensive nor long-term.
Editorship of a journal or an anthology does not in itself constitute sufficient grounds for disqualification vis-à-vis contributing authors; rather, the extent of a collaboration must be assessed on a case-by-case basis. Editorship of an anthology or a special issue of a journal is more problematic than regular journal editorship. The more involved the editor is in the production of contributed content, the greater the risk of a conflict of interest. If there is a system to the editorship or the publication of articles/chapters, this may constitute grounds for disqualification.
In the context of third-cycle education, the most important kind of situation to assess in terms of potential conflicts of interest is that of the doctoral or licentiate thesis defence. There must be no conflict of interest between the external reviewer, the examining committee, or the examiner on the one hand, and the supervisor or the author of the thesis on the other.
As specified in Local regulations for third-cycle courses and study programmes (repeated on the form Anmälan om disputation (only available in Swedish)), the following rules apply to the grading of theses at Linnaeus University:
- Research collaboration and co-production that has taken place within the preceding five-year period constitute grounds for disqualification. A co-authored article is enough to count as co-production.
- In the case of a close collaboration, more than five years may need to have passed for the potential conflict of interest to have been eliminated.
- Exemptions from the five-year rule may be made if the collaboration took the form of multi-centre studies. This is assessed on a case-by-case basis.
- Doctoral student–supervisor relations constitute grounds for disqualification regardless of how much time has passed since the collaboration took place.
In addition to the above, significant gain or loss as a result of the outcome of the examination, as well as obvious friendship or animosity – that is, involvement in the matter at hand that is extensive enough to potentially affect impartiality – may also constitute grounds for disqualification.
Considering the seriously adverse consequences that a conflict of interest may have for the individual thesis author after the defence, the university must be careful not to miss any potential grounds for disqualification in the context of the defence.
If there has been a conflict of interest in a research context, so that good research practice has been breached, this should be reported to the Council for Good Research Practice.
[1] https://lnu.se/globalassets/dokument---gemensamma/personalavdelningen/styrdokument/riktlinjer-kring-slakyskapsjav-201222.pdf
[2] https://www.vr.se/english/applying-for-funding/how-applications-are-assessed/how-we-avoid-conflicts-of-interest.html
See also the statement by the Swedish National Agency for Higher Education, reg. no 30-4919-04, 2005-02-24, according to which a teacher should not prepare a decision or decide on course reading that said teacher has authored.
Staff/union representatives
Membership in a union or other organisation that is a negotiating party with the authority is not grounds for disqualification. A board member who is also an elected union representative could have a conflict of interest when processing matters that involve the union, or that are of specific interest to the union. It is, however, clear from Section 14 of the Staff Representative Ordinance (1987:1101) that a staff representative on a board or a staff disciplinary board is not considered to have a conflict of interest in accordance with Section 16, first paragraph, item 4 of the Administrative Procedure Act based only on the fact that they are an elected representative or official in the relevant organisation, or the fact that they have represented the organisation in negotiations in accordance with the Act (1976:580) on Co-Determination in the Workplace.
Nominating committees
A member of a nominating committee should not stay on as a member of the committee if they are nominated for an elected position; in this kind of situation, they should let someone else take their place on the committee.
Employment and promotion
When external experts are appointed for matters of employment or promotion, the question of any potential conflicts of interest must be carefully considered. Again, it is the extent and intensity of any collaboration or co-production that determines whether a conflict of interest exists. Co-authoring within the previous five-year period undoubtedly counts as grounds for disqualification, but even if more than five years have passed, there may still be grounds for disqualification if the collaboration was extensive. Close relations must not partake in any decisions on terms of employment or working conditions.
Consequences of conflicts of interest
Someone who has a conflict of interest must not administer the relevant matter. As a general rule, this includes both preparation and decision-making. The conflicted person may, however, participate in the processing of the matter if there is no one else who can do their work without unreasonable delay. In urgent matters, the conflicted person may even take decisions, if this is necessary considering the urgency. This exemption should only be exercised in highly exceptional cases, and it is primarily meant for, for instance, matters of order and security (government bill 2016/17:180, p. 303). The law assumes that authorities are staffed in a way that this exemption will only need to be resorted to in highly exceptional cases. As for Linnaeus University, it can be reasonably assumed that there are extremely few situations in which this exemption needs to be exercised.
If a person has been disqualified from a matter that is to be discussed at a meeting, they should not only refrain from commenting or voting on the matter; they should also leave the meeting when the matter is to be discussed.
It is primarily the conflicted person themselves who should point out any potential conflict of interest. It is each and everyone’s responsibility to do this. If a potential conflict of interest is brought to the authority’s attention, the authority is obliged to decide on the matter without delay.
Any decision taken despite a conflict of interest is valid until it is potentially revoked as the result of an appeal citing the conflict of interest as the grounds of appeal.
Review of conflict of interest
If a potential conflict of interest has been reported and there is no substitute available for the potentially conflicted person, the authority must make a formal decision on the issue as speedily as possible.
A decision on a conflict of interest may be appealed only in connection with an appeal of the decision on the associated issue of fact. In cases where a decision on the issue of fact cannot be appealed, it is therefore important that a potential conflict of interest is examined before a decision on the issue of fact is made.
Appeal of decision made by person who has a conflict of interest
This section concerns procedures for handling a situation where a conflict of interest is disclosed after a decision on the associated issue of fact has been made. If there is a suspicion of a conflict of interest in the exercise of public authority, it should be reported to the Executive Office – either directly, by the person reporting, or by the unit to which the suspected conflict of interest was reported. If there is a suspicion of a conflict of interest in matters of research, it should be reported to the Council for Good Research Practice, if it constitutes a potential breach of good research practice.
If there is a conflict of interest in the exercise of public authority, certain decisions may need to be reviewed by another instance or be revoked and made again. This only concerns appeals of decisions where a conflict of interest has been given as the grounds for appeal.
Cases dealing with employees’ work tasks, internal allocation of resources, or the like cannot be the subject of a conflict of interest in the eyes of the law since these aspects are part of the authority’s function as an employer. However, having close relations involved in the administration of cases like this is nevertheless a breach of university policy, according to which close relations must not make decisions on working conditions.[1]
As regards decisions on matters of education, it should be noted that many such decisions affect individuals, which means that they must not be revoked or changed in a way that will entail a less beneficial situation for those concerned, even if they were made by someone who had a conflict of interest.
As for decisions on matters of research, on the other hand, these do not affect individuals, since research is conducted as part of the researcher’s employment, to the benefit of the university and society, rather than the individual. This kind of decision may thus be revoked, should a conflict of interest be discovered. However, few official decisions concern research.
Finally, it should be noted that matters regarding thesis defences are treated as matters of education rather than research, since they concern examination of an individual. This means that decisions on, for instance, external reviewers or members of an examining committee cannot be revoked once the defence has been successfully completed, even if a conflict of interest is discovered. A thesis defence thus cannot be redone or adjusted after the event. Considering the adverse consequences that a conflict of interest may have for the author of the thesis after the defence, the university must thus be particularly careful not to miss any potential grounds for disqualification in the context of the defence.
[1] https://lnu.se/globalassets/dokument---gemensamma/personalavdelningen/styrdokument/riktlinjer-kring-slakyskapsjav-201222.pdf