Investigating Misconduct in Science: The National Science Foundation Model

Beginning of article

Reports in the popular press,(1) as well as recent studies by scientific organizations,(2) make clear that the problem of misconduct in science(3) is real and persistent. Scientific integrity is not always ensured by science's self-correcting mechanisms.(4) The effects of misconduct go beyond distortion of scientific data. Misconduct can also undermine the proper and fair allocation of federal resources when it involves peer review of grant proposals, a process that depends on honesty and integrity. The public faith in science that is necessary to ensure sufficient funding for the progress of science depends on honest applications for federal funding and honest use of public funds. Therefore, both the government and the academic community need effective procedures for dealing with misconduct in science.

Despite the need for effective procedures for establishing whether misconduct in science has occurred, considerable controversy has arisen over which procedures should be used. Most universities have only recently put in place procedures for dealing with misconduct in science and have not yet fully tested them.(5) According to an American Association for the Advancement of Science survey, scientists lack confidence in university handling of misconduct cases.(6) This article presents our study of the principles underlying NSF's procedures for handling misconduct in science, as well as the results of NSF's experience in handling allegations of misconduct. By presenting the rationale for NSF's procedures, we hope not only to persuade the scientific community of the applicability of these procedures to misconduct in science cases but also to stimulate comment and criticism.

The "Scientific Dialogue" Model

Many early cases of misconduct in science have been handled according to procedures developed at the Public Health Service (PHS) and referred to as the "scientific dialogue" model.(7) This model emulates the peer review process by assembling a panel of scientists who investigate allegations and reach a consensus on whether misconduct has occurred.(8) Although the familiarity of the procedures initially appealed to some scientists, the scientific community itself has criticized handling of cases under the scientific dialogue model for not meeting standards of confidentiality and fairness.(9) Applying methods developed for the evaluation of manuscripts, grant proposals, or tenure qualifications to the determination of ethically acceptable conduct leaves unfulfilled expectations. When proceedings may lead to sanctions, both accused scientists and observers expect certain protections. Nonetheless, some scientists resisted application of traditional American investigative and adjudicative procedures, which offer such protections, to misconduct in science cases. Perhaps this was due to concerns that scientific issues would get lost in such a setting.(10) However, theory and practice in the handling of misconduct cases has brought out the importance of procedural fairness. PHS has shown an increased awareness of procedural protections in handling misconduct in science cases by introducing the opportunity for a hearing.(11)

NSF's Model for Handling Misconduct in Science Cases

Since 1987 NSF has based its policies and procedures for handling misconduct in science cases on well-established administrative, civil, and criminal methods of investigation and adjudication.(12) NSF believes that traditional investigative and adjudicative procedures are appropriate when the issue is culpability for misconduct. These traditional procedures are preferable to alternatives adapted from the process of scientific peer review. Peer reviewers necessarily assume that authors are truthful. Because the central issue to be resolved in a misconduct case is whether an individual has been truthful, a system like peer review is inappropriate because it lacks the investigative, adjudicatory, and due process mechanisms to evaluate that issue accurately and fairly. To address those concerns regarding the applicability of traditional legal procedures to misconduct in science cases,(13) this article generally describes NSF's policies and procedures, and subsequent sections present the rationale supporting its approach.

At NSF, the Office of Inspector General (OIG) is responsible for overseeing the investigation of allegations of misconduct. OIG usually defers primary responsibility for handling the investigation to the institution.(14) When OIG conducts its own investigation, an investigatory panel using trial-type procedures is not used; instead, OIG conducts a nonadversarial investigation to gather information, using a team with scientific, legal, and investigative expertise. After an investigation is completed, OIG may recommend to NSF a finding of misconduct in science. Before NSF can decide that misconduct has occurred, the subject is entitled to an adjudication that is separate from the investigation and provides full due process rights.

This separation of investigation and adjudication, discussed further below, is essential to providing an efficient, confidential and fair resolution of a misconduct in science case. Besides separating investigative and adjudicative phases, NSF separates functions by assigning each phase to different organizations and individuals. The fresh assessment of facts and standards by individuals in independent organizations provides another procedural safeguard for the subject.

Investigations

Purpose of Investigation

The purpose of an investigation is to establish a solid evidentiary basis upon which to determine whether to bring a charge of misconduct in science.(15) The Inspector General Act and the NSF misconduct regulations authorize broad investigatory power, including the power to subpoena information and documents.(16) In a misconduct case, broad investigatory power is essential to glean the evidence upon which the charge and subsequent adjudication of misconduct may be made.

Traditional Approach to Investigations in American Jurisprudence

Investigations at NSF follow the same investigative model used throughout American jurisprudence.(17) In America a hearing, with cross-examination of witnesses and spirited argument on behalf of the government and the accused, is never part of the investigation. Instead, investigations are conducted confidentially and unobtrusively to adduce basic facts without compromising anyone's reputation.

For example, U.S. Attorneys' offices conduct no hearings during their criminal investigations. Instead, investigators from the Federal Bureau of Investigation or other organizations gather information and speak with witnesses privately to determine what occurred, not to establish that there was wrongdoing. If the U.S. Attorney concludes that a crime may have been committed, a grand jury may be impaneled.(18) The grand jury serves as a check on the U.S. Attorney by deciding for itself, following its own review of the evidence, whether a crime may have been committed.(19) Even the grand jury process, however, is not adversarial. The prosecutor presents evidence to the grand jury in confidence.(20) The potential defendant lacks access to this information, and cannot comment on it. Even when the defendant testifies before the grand jury his lawyer cannot comment or ask questions;(21) the defendant has no right to have counsel present during testimony because adversary judicial proceedings have not begun.(22) An adversary hearing, with argument by counsel and cross-examination of witnesses, takes place only if and after the grand jury returns an indictment.

Civil investigations in the United States follow the same model as criminal investigations, though without a grand jury. In civil investigations conducted by a U.S. Attorney, investigators gather information confidentially without an adversarial hearing. The U.S. Attorney alone decides whether to file a complaint. After a complaint is filed, the affected citizen is entitled to review all of the evidence gathered by the government, present other evidence, cross-examine witnesses, and present argument: the "hearing" takes place after, not during the investigation.

These investigatory and adjudicatory processes are at the core of American jurisprudence. They protect individuals whose freedom or even lives are at risk in criminal proceedings and whose reputations may be damaged if investigations result in undue publicity. The American model for investigating is used for analyzing all cases throughout this country -- including those that are complex and controversial. We are not aware of any basis for treating scientists differently from other citizens.(23) This is not to say that standard investigatory practices are never …