Prosecutor pores
over book deals

By MATT CHITTUM
THE ROANOKE TIMES

A Lexington prosecutor's investigation into the Virginia Military Institute superintendent's use of state resources to write two books isn't complete, but it's already brought reactions from the highest echelons of state government.
The first resistance came when an assistant attorney general who is a VMI graduate issued a letter that questioned Commonwealth's Attorney Gordon Saunders' pursuit of the matter.
Then on Thursday night, the State Council of Higher Education of Virginia passed a resolution reaffirming its support for state college faculty members who publish scholarly works.
Both actions came after Saunders said on Sept. 17 that he was looking into the books - for one of which Josiah Bunting III was paid $50,000 personally.
Saunders said Bunting used state telephones and shipping services to deal with his publisher and agent, and used institute staff to type and edit his manuscripts.
The assistant attorney general, Ashley Taylor, said the law clearly allows what Bunting did. Taylor's informal opinion was requested by the president of VMI's board of visitors.
The Council of Higher Education's resolution encouraged college faculty "to research and publish, and to use their support staff in advancing such scholarly and laudable activities." The resolution cited state law that directs each state college to set its own policy regarding the use of resources.
The resolution was "not directed at the Bunting thing in and of itself," said Paul Nardo, a spokesman for the Council of Higher Education, but it was prompted by news of Saunders' investigation.
"That kind of got them exercised," Nardo said. Council members were concerned the investigation could have a chilling effect on scholarly research and about public understanding that academics publish books using college resources all the time.
The resolution was introduced by Tom Farrell, vice president of Virginia Power, who first disclosed that he is married to the sister-in-law of Richard Cullen, the former attorney general who is Bunting's attorney.
Two other higher education council members who are lawyers at Cullen's firm, McGuire, Woods, Battle & Boothe, recused themselves from the vote, Nardo said.
Saunders declined to comment on the resolution.
The council's resolution also notes that it's public policy in Virginia for public colleges to encourage their faculty to research and write books and articles, and it's common for the authors to retain the copyrights.
Scholars stay on top of their field by writing about it, defenders of the practice say. Whatever resources scholars use, colleges are repaid several times over in prestige from having their faculty publish books.
"Bunting's reputation is a jewel in the crown for VMI," said Larry Sabato, University of Virginia professor, political pundit and author of 21 books. "He's published a good deal. That's free publicity for VMI."
But it's difficult to place Bunting's books squarely within the bounds of academic publishing.
The $50,000 Bunting received, for a book documenting his idea of the Utopian American college, is extraordinary in academic publishing. Most academic books are on specialized topics and publish only a few hundred copies.
Even for a book with popular appeal, "for an academic to get $50,000 advances is highly unusual," said Bob Denton, an author and communications professor at Virginia Tech. "Can the average academic get that? No."
Nancy Essig, director of the University Press of Virginia, which publishes only academic books, said the advances she pays are typically $500 to $1,000.
Bunting's supporters say the book, while not scholarly research, is academic in nature and in line with his job.
Bunting's other book - an as-yet unpublished novel about a prep-school girl who develops an eating disorder - seems less clearly related to his job as head of the college.
On the surface, the books look like cases of using public resources for private profit, but in Virginia, state law gives special privilege to colleges in that regard.
Each college sets its own policy. So whether Bunting did anything wrong is up to the board of directors he serves.
Virginia's law on the matter dates to 1986, and commands each state-supported college in Virginia to promulgate its own copyright and patent policy, based upon guidelines provided by the State Council of Higher Education. It also provides for the state agencies to take a cut of the
profits from scholarly work.
Most college policies on copyrights note that under the Federal Copyright Act, when an employee develops something copyrightable within the scope of his employment, the employer owns it. But the policies go on to state that in most cases, the college will not assert its right of ownership in order to encourage scholarship.
However, the policies typically leave the college the option of asserting its interest under certain conditions.
Generally, if significant college resources were used in producing the book or other publication, and it could potentially have commercial success or generate sizable royalties, the college expects to share in the profits.
The definition of "significant use of resources" varies from college to college. At Radford University, the bar is set at $10,000. At some other colleges, including UVa, it's decided on a case-by-case basis.
At UVa, the university is more interested in patents, which are generally more lucrative, said Dave Hudson, associate vice president for research and public service. It's very rare for UVa to take an interest in a copyright.
UVa has not taken a cut of the profits from Sabato's commercially successful books, "Feeding Frenzy" and "Dirty Little Secrets."
"I suppose we try to err on the side of promoting scholarship, while protecting the university's resources at the same time," Hudson said.
The policy and practice are the same at Virginia Tech. Faculty are free to use college resources as long as what they are doing is within the scope of their employment, spokesman Larry Hincker said. As long as an engineering professor is writing about engineering, there are no problems.
The situation becomes murky, however, when the publication isn't so clearly related to the professor's specialty.
"The university has no reason to expect to own my work if I wrote a brownie recipe book," Hudson said. But in turn, the school wouldn't expect him to use university resources to write the book, he added.
"If I write a novel, they certainly didn't hire me to write a novel, so I probably shouldn't be writing it sitting here at my desk," he said.
Bunting's novel about the girl with the eating disorder would seem to stretch the limits of his job as head of VMI, but Bunting also holds a
position on the faculty as a professor of humanities, and has taught three literature courses at VMI.
"From a public relations standpoint, it can't help but benefit VMI and enhance the image of the school," VMI spokesman Mike Strickler said.
But should VMI expect to own the copyrights or share the profits of that book?
VMI's copyright policy is 10 years old and makes no specific mention of significant use of resources. It provides in general for copyrights to be retained by the author.
There are a few examples of VMI sharing in a royalty or refusing financial resources for the publication of a book.
For a 1978 book by a faculty member, VMI agreed to pay for part of the book's printing and in return took ownership of the copyright and shared the royalties with the author.
In the last few months, VMI unwittingly paid $3,750 to help publish a book by a faculty member, but the faculty member retained the copyright, documents provided by VMI show. VMI's business officials objected and, on the advice a deputy attorney general, recovered the money from the publisher.
A VMI board member has since suggested that VMI set aside funds to help with publications.
Whatever has been the practice at VMI, however, the decision ultimately rests with the board of visitors, which sets the policy.
Board president Bruce Gottwald has made his feelings on the question clear already.
Bunting's "authorship has been consistent with board policy and is in total compliance with state law," he said last week.