Misconduct Office Vows To Keep Actions Secret

The new HHS unit resists pressure to reveal the names of the biomedical scientists it has found guilty of wrongdoing NEW ORLEANS -- The year-old Office of Scientific Integrity Review - responsible for resulting the cases of federally funded biomedical researchers accused of scientific misconduct - has meted out punishment to more than a dozen such researchers so far. But the head of that office said last month that he has no intention of making information pertaining to these cases available to the public. The issue of scientific misconduct is a contentious topic within the scientific community and in Congress. The debate has featured a long-running battle among the National Institutes of Health, Massachusetts Institute of Technology molecular biologist David Baltimore, and Rep. John Dingell (D-Mich.) over an investigation into allegations of improprieties in a 1986 Cell paper on antibody expression coauthored by Baltimore. Last August the Department of Health and Human Services (HHS) published final regulations on how grantee institutions are expected to handle allegations of misconduct (The Scientist, Sept. 4, 1989, page 1), and organizations such as the Association of American Universities and the American Association of Medical Colleges have been working for several years to improve practices among their member institutions. So it came as something of a surprise to participants at a symposium held during last month's annual meeting here of the American Association for the Advancement of Science (see related coverage on page 8) to learn that HHS had imposed a blackout on information relating to scientists who are found guilty of misconduct. Neither the National Science Foundation nor NIH - whose Office of Scientific Integrity generates the reports that OSIR reviews - follows such a policy, and both funding agencies have complied with past requests from the public and the press for detailed information on specific cases of misconduct once a decision has been reached. "We have so far been successful in denying FOIA [Freedom of Information Act] requests for completed copies of an investigation, as well as for a list of current investigations being conducted by the Public Health Service," explained Lyle Bivens, director of OSIR, which was created last April. "And a notice of proposed rule-making is being developed to exempt OSIR from requirements under the Privacy Act that would require disclosure of the results of investigations because of our fear that it could jeopardize the status of the whistle-blower." Two weeks after the event, and after several meetings with NIH officials, Bivens appears to have modified his stance. "All closed cases in which there is a finding of misconduct would be subject to a FOIA request," he now says. At press time The Scientist had not yet received an answer to its request, which Bivens said was the first of its kind since his office was created, for such information. His comments prompted an uproar from his audience and fellow panelists at the AAAS session on "maintaining integrity" in science. "Are you saying that you've completed investigations and no one is going to get access to that information?" asked Patricia Woolf, a sociologist from Princeton, N.J., and a speaker on the panel who has written extensively on the issue. "How are universities supposed to improve the process [of investigating allegations of misconduct] if you don't release information on the cases?" Gregory Simon, a staff member on the investigations and over-sight subcommittee of the House Science, Space, and Technology Committee and a member of the audience, was equally shocked. "The government is required to report bad physicians," said Simon, who noted that the committee is working on legislation to protect such whistle-blowers against retaliation by the institution being investigated. "Why not bad scientists as well?" he asked Bivens. Expanding on her reaction after the meeting, Woolf said, "I thought it was an astounding remark for him [Bivens] to make. When OSIR was set up, I and most of the community assumed that the information would be made public. It's especially troubling in cases where sanctions have been applied." Likewise, Simon wondered after the session if Bivens was implying that scientists should be treated differently from other professionals who break federal laws. About 15 scientists have received such sanctions in the past 10 months, according to Bivens, and there are another five whose punishments are awaiting a final sign-off within the department. In a summary of the first 10 cases (involving 11 scientists) handled by his office, Bivens reports that four were found guilty of plagiarism, three of fabrication of data, and four of falsification of data. Those three areas correspond to the categories spelled out in the federal rules adopted last summer that govern the definition and handling of cases of scientific misconduct. Bivens also provided his audience with the first accounting of the sanctions that have accompanied these findings of misconduct. (Many of the scientists are subject to more than one type of punishment.) Eight of the 11 scientists have been prohibited from serving on advisory panels that help NIH and other federal health agencies decide which grants to fund, Bivens said. The sanctions generally run for three to five years, he said. The department has also recommended that five of the 11 scientists be debarred from receiving federal funds for a specified length of time, he said, normally three years. In five cases the scientist's home institution has been asked to certify that any future application for federal funding from that scientist is based on work that meets the highest standards of scientific integrity. And in three cases, Bivens said, the relevant federal advisory panels have been told to conduct "a special review" of any subsequent applications submitted by the guilty parties. Bivens believes that what he calls "a sanitized version" of the misconduct, stripped of the name of the accused, the institution, and other identifying features, is sufficient for any university that faces a similar allegation of misconduct. "I would hope that anyone who needs more information about how to proceed would contact OSI," he says. Asked if he thought that disseminating more information would allow universities to talk directly with each other, he replied, "It's certainly part of our job to make these issues known. But I don't feel that we need to help one university get in touch with another university." But many scientists disagree. The details of misconduct - who did what, where, and to whom - are crucial to a better understanding of the nature and extent of the problem, they say, and imposing a veil of secrecy just confounds the issue. "To gain the experience that the scientific community needs to deal with this issue properly, we need more facts about what situations are precarious," says Woolf. "I find it very curious that, on the one hand, people argue that instances of misconduct are so rare that most universities have little experience dealing with it and, on the other hand, that the information shouldn't be released so that those universities can learn from the experiences of others." Bivens acknowledges that describing infractions in general terms could lead some people to exaggerate minor violations and make the problem appear more serious than it actually is. For example, he notes, the category of falsification covers everything from "pumping up your bibliography to shaving data." And Paul Friedman, a radiologist at the University of California, San Diego, who has helped set up what is viewed as a model system of handling investigations into alleged misconduct at his university, believes that the severity of the crime is a significant factor in what should be disclosed. "If the sanctions are intended to make somebody sit up and fly right," he says, "then you don't want to do anything to prevent that person from ever performing his job again. In some ways, disclosure constitutes an additional punishment." Woolf disagrees. "I'm convinced that scientists who betray the public trust [by committing misconduct] forfeit their right to privacy on this matter," she says. Even Bivens says he doesn't think that the government should go too far to protect the miscreant once misconduct has been committed. "Our first obligation is to ensure that government funds are used appropriately," he says. "Being found guilty of serious misconduct would seem to me to be so devastating to a scientist that the chances of rehabilitation would seem to be remote." Although most people agree on the importance of providing whistle-blowers with adequate protection, finding the right mechanism isn't easy. Panelist Daniel Koshland, Jr., editor of Science, urged government officials not to "grant blanket immunity" to those whose claims turn out to be "unfounded and malicious." The House committee drafting legislation on the subject, says Simon, is seeking a way to compel institutions to behave fairly toward such informants. And Woolf believes that the word itself should be dropped, noting that the term focuses on how the institution responded rather than on what the person did. But many scientists believe that the issue is more a theoretical than a practical one. "It doesn't come up very often," says Suzanne Hadley, acting director of NIH's Office of Scientific Integrity, about problems in preserving whistle-blowers' privacy. "Most of the time they have already come forward." Her office would withhold the information, she adds, if "the individual had requested it or if we judged it to be in their best interest." Another aspect of Bivens' brief presentation at the AAAS meeting that caught observers by surprise was his announcement that OSIR has recommended the debarment of five scientists out of its first 10 cases. Four of the scientists have accepted their fate, he says, while the fifth has protested the decision and requested a hearing before the department's appeals board. The board is currently gathering information on the case, says Neil Steyskal of the department's division of grants management and oversight. The process is adversarial, he says, with each side having legal counsel. The process can be slow, he notes - one case took 10 months to complete - because the board lacks the power to subpoena witnesses, and "it's sometimes hard to round up all the relevant parties." There have been fewer than a dozen such debarments since the process was created in 1978, he says, and most of them have occurred in the past few years. It appears likely that the question of how much information to disclose will continue to be controversial. The human resources subcommittee of the House Government Operations Committee, chaired by Rep. Ted Weiss (D-N.Y.), is preparing a report on OSI and OSIR that is due out this spring. "We're interested in seeing how they go about conducting their investigations," says staff member Diana Zuckerman, "and what has changed in the past two years." And Hadley says that she has talked with Bivens about how the two offices can improve the flow of communications to the public. "I think that the scientific community needs to know what we're doing," she says. "That's an important part of our job."

Misconduct Office Vows To Keep Actions Secret

Mar 18, 1990

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