Defending Research Misconduct Cases (Part 3) – The Inquiry Stage

February 21, 2019

Close-up shot of microscopeBy: Sara Kropf

In Part 1 of this series, we described the various steps of the research misconduct life cycle. Today, we’re digging deeper into the early stage of a research misconduct case, so you know what to expect. More important, we’ll give you some suggestions about what you should (and shouldn’t) do.

The Assessment Stage

When the allegations are first reported to the university or research institution, there will be an “assessment” of the allegations. That assessment is generally very bare bones and simply determines if the allegations are credible on their face, whether they allege research misconduct and whether the institution has jurisdiction over them.

The policy for Cal Tech has typical language describing the assessment stage. The Research Integrity Officer (RIO) will assess:

any allegation of research misconduct to determine whether the conduct falls within the scope of this policy, whether the allegation, if true, would include conduct that meets the definition of research misconduct, and whether the allegation is sufficiently specific such that potential evidence of research misconduct could be identified.

For example, if someone complains that a researcher drives too fast or pays a housekeeper under the table, the institution will conclude during the assessment that these allegations do not fall within its jurisdiction or are not about research misconduct. Or if someone reports that a researcher is secretly an extraterrestrial, that likely will not make it past the assessment phase.

Even if an allegation doesn’t fall within the RIO’s jurisdiction, the institution may still counsel the researcher or try to work out a resolution. But, more likely, the researcher likely will not ever learn about the allegations at all.

Assuming the allegations survive the assessment stage, the next stage is the “inquiry.”

This is when things get serious.

The Inquiry Stage

The inquiry stage is usually when the institution will give the researcher formal notice that there has been a complaint against him. Back to the Cal Tech policy:

The inquiry begins when the Division Chair or JPL Associate Chief Scientist notifies the respondent in writing of the allegation and of the research misconduct proceeding to follow, or when this is not possible, makes a good faith effort to do so.

During this stage, the RIO will appoint an Inquiry Committee that will conduct an initial review of the evidence. This does not need to be a full review of the evidence and may or may not include an opportunity for the respondent to be interviewed, even if he wants to be.

The Inquiry Committee is usually required to provide a draft inquiry report to the respondent. That report will include information such as (a) the name and position of the respondent; (b) a description of the alleged misconduct; (c) any funding source for the research at issue, such as a federal grant; and, most important, (d) the basis for the decision that the allegations warrant—or do not warrant—a full investigation.

The Inquiry Committee will give the respondent a chance to provide written comments to the draft report. After taking those comments into account, the Inquiry Committee (or Deciding Official, depending on how the policy is drafted) will decide whether a full Investigation should be convened.

What Should You Do at the Inquiry Stage?

Many researchers are convinced that they can explain their way out of the inquiry stage and put an end to the process. They don’t want to hire a lawyer and want to avoid the expense and embarrassment.

But too often, they are wrong and the consequences are severe. Once a matter gets to the investigation stage, there is a certain bias against the researcher. After all, a prior committee has already determined that the evidence is enough to require a full, and expensive, investigation.

So, you want to do what you can to put an end to the process at the inquiry stage. Your best bet is to craft a written response to the inquiry report that will do so.

This is not an easy process.

A few considerations:

First, you need to think through the ramifications of making any concession in your written response. Anything that you say at this early stage—maybe before you even know all of the evidence out there—will be used against you down the road.

For example, if you admit that you used the wrong slide in a publication, but argue that it was an honest mistake, then you will never be able to go back and argue that it wasn’t the wrong slide.

Second, the written response needs to be written clearly and may need to explain what happened to people who are not specialists in your field. The Inquiry Committee usually has someone who knows enough about your field of research to be an “expert” for the committee, but it will also have others outside of your department, who do not know anything about your field. Your written response needs to speak to all of them.

Third, evaluate the Inquiry Committee. The institution will usually notify the respondent of who is on the Inquiry Committee. If there is reason to be concerned about a member, then you can object to her inclusion, with some sort of reasonable explanation. Department politics can be sticky; if your professional nemesis is on the committee, you need to say something.

This is a good reason to retain a lawyer to help you. It may be awkward or uncomfortable to object to a committee member directly. Having someone else there to author the objection may make it easier. You are entitled to a fair and unbiased committee.

Fourth, you need to make sure that your written response is supported by objective evidence. Having a lawyer help you sort through the evidence and make sure it supports your response is critical. When your career is on the line, it can be difficult to judge the strength of your case. Get someone to help you do that—from this very first stage. A lawyer can help you think creatively about where to gather evidence and how to describe that evidence most persuasively.

Fifth, don’t shoot yourself in the foot. Be careful not to do anything to hurt your case down the line. You should not contact potential witnesses in any way that could be viewed as intimidating or influencing them. If your best “witness” is a grad student and you are in charge of her career advancement, then any statements to her about the matter could be viewed as coercive.

You also should not destroy any evidence. This alone could be considered research misconduct, even if it turns out your research was clean as a whistle. Keep those lab books and other records. Don’t delete emails (they are on the institution’s server anyway.)

Finally, don’t be arrogant about the process or certain that you will survive it. You are being judged by a committee of people who are not swayed by credentials or length of tenure or number of publications. The only matter they will consider is the matter in front of them. It is difficult to feel as though your whole career is being questioned by a small group of strangers. But the process will only be more difficult if you assume that they are incompetent.

In the next part of this series, we’ll dig into the investigation stage—the deepest dive into the evidence that happens in this process.

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