Senate Bill 1112-22
UNIVERSITY SENATE
UNVERSITY AT ALBANY
STATE UNIVERSITY OF NEW YORK
Introduced by:
CERS
Date:
April 2, 2012
TITLE OF BILL
IT IS HEREBY PROPOSED THAT THE FOLLOWING BE ADOPTED:
1. That this takes effect for the Fall 2012semester.
2. That this proposal be forwarded to President George M. Philip for approval.
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University at Albany Policy and Procedures on Misconduct
in Research and Scholarship
I.
Introduction
A.
Policy
Maintenance of high ethical standards in research and scholarship is a central and
critical responsibility of the University at Albany (“University”). In keeping with its
commitment to integrity in the conduct of research and scholarship, and in compliance
with its obligations under federal regulations, the University will promptly, thoroughly,
competently, objectively, and fairly respond to good faith allegations of misconduct in
research or scholarship consistent with and in the time limits prescribed by the
procedures set forth herein; ensure that individuals responsible for administering this
policy and these procedures or participating in the proceedings governed hereby are
free from bias and have no real or apparent conflicts of interest with either the parties
involved or the subject matter of any allegation; and protect the rights, reputation, and
confidentiality of all involved individuals including the Respondent and good faith
Complainant.
B.
Scope
This policy and the associated procedures shall be applicable to all University faculty,
researchers, staff, and students engaged in research and scholarship as those terms are
defined herein. While Federal regulations require that institutions applying for or
receiving federal research funding have an established administrative process for
reviewing, investigating, and reporting allegations of research misconduct, the following
procedures outline the University's process for responding to allegations of misconduct
in all areas of research or scholarship regardless of the funding source or whether the
research or scholarship was funded externally or internally. In the case of allegations of
misconduct involving students, except as otherwise required by law, or because of the
involvement of students in cases involving other persons subject to this policy, this policy
shall not apply to academic course work which ordinarily will be addressed under the
University’s policies regarding academic integrity.
II.
Definitions
A.
Allegation means any written or oral statement or other evidence of possible
misconduct in research or scholarship made to an institutional official.
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B.
Complainant means a person who makes a good faith allegation of misconduct
in research or scholarship.
C.
Committee on Ethics in Research and Scholarship (CERS) is the University Senate
committee whose responsibilities include reviewing the implementation of the
policy and procedures on institutional responses to allegations of misconduct in
research and scholarship and recommending to the University Senate revisions
to the policy and procedures, as needed.
D.
Conflict of Interest means the real or apparent interference of one person’s
interests with the interests of another person, where potential bias may occur
due to prior or existing personal, professional or financial relationships.
E.
Deciding Official (DO) means the institutional official who makes final
determinations on allegations of misconduct and any institutional administrative
actions. The University President is the University’s Deciding Official.
F.
Fabrication means making up data or results and recording or reporting them.
G.
Falsification means manipulating research materials, equipment, processes, or
changing or omitting data or results so that the research is not accurately
represented in the research record.
H.
Good Faith as applied to a complainant or witness, means having a belief in the
truth of one's allegation or testimony that a reasonable person in the
complainant's or witness's position could have based on the information known
to the complainant or witness at the time. An allegation or cooperation with a
misconduct proceeding is not in good faith if made with knowing or reckless
disregard for information that would negate the allegation or testimony. Good
faith as applied to a committee member means cooperating with the misconduct
proceeding by carrying out the duties assigned impartially for the purpose of
helping an institution meet its responsibilities. A committee member does not
act in good faith if his/her acts or omissions on the committee are dishonest or
influenced by personal, professional, or financial conflicts of interest with those
involved in the misconduct proceeding.
I.
Inquiry means information gathering and initial fact-finding to determine
whether an allegation or apparent instance of misconduct warrants an
investigation.
J.
Inquiry Committee means the committee that is charged with conducting an
inquiry into an allegation of misconduct.
K.
Institutional Counsel means the University’s Office of General Counsel which
represents the University during misconduct proceedings.
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L.
Investigation means the formal examination and evaluation of all relevant facts
to determine if misconduct has occurred, and if so, the responsible person or
persons and the seriousness of the misconduct.
M.
Investigation Committee means the committee that is charged with conducting
an investigation into an allegation of misconduct.
N.
Misconduct means fabrication, falsification, plagiarism, or other practices that
seriously deviate from those that are commonly accepted within the academic
community for proposing, conducting, reviewing, or reporting research or
scholarship, including artistic expression, and includes misrepresentation of
academic credentials or scholarship in proposing or securing awards, grants, or
professional recognition. It does not include honest error or disagreements,
honest differences in interpretations or judgments of data or disputes among
collaborators about relative credit, or informal presentations, such as classroom
lectures. For there to be a finding of misconduct it must be determined by a
preponderance of the evidence that: (1) there was a significant departure from
accepted practices of the relevant research or scholarly community and (2) the
misconduct was intentional, knowing or reckless. Reckless means evincing
disregard of or indifference to accepted scholarly practices although no harm is
intended.
O.
Office of Research Integrity (ORI) is the federal office located within the Office of
Public Health and Science (OPHS) within the Office of the Secretary of Health and
Human Services in the Department of Health and Human Services (DHHS) which
oversees and directs Public Health Service (PHS) research integrity activities on
behalf of the Secretary of Health and Human Services of the U.S. Department of
Health and Human Services.
P.
Plagiarism means the appropriation of another person’s ideas, processes, results
or words without giving appropriate credit.
Q.
Preponderance of the evidence means proof by evidence that, compared with
that opposing it, leads to the conclusion that the fact at issue is more probably
true than not.
R.
Research means a systematic investigation, including research development,
testing and evaluation, designed to develop or contribute to generalizable
knowledge.
S.
Research Compliance Officer (RCO) is the individual in the Office of Regulatory
Research Compliance (ORRC) charged with the responsibility to provide
regulatory guidance and administrative support for all misconduct proceedings
and to assist the RIO in responding to allegations of misconduct. The RCO, or
designee, shall be present at all inquiry and investigative committee meetings,
interviews, and other proceedings regarding allegations of misconduct. The
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University’s Assistant Vice President for Research/Director of the ORRC is the
University’s RCO.
T.
Research Integrity Officer (RIO) is the institutional official who has primary
responsibility for implementation of this policy including assessing allegations of
misconduct; overseeing inquires and investigations; and fulfilling such other
responsibilities as are outlined in this policy. The University’s Vice President for
Research is the University’s RIO.
U.
Research Record means any data, document, computer file, computer storage
medium, or any other written or non-written account or object that reasonably
may be expected to provide evidence or information regarding the proposed,
conducted or reported misconduct that constitutes the subject of an allegation
of misconduct. A research record includes, but is not limited to, grant or contract
applications, whether sponsored or not; grant or contract progress reports;
laboratory notebooks; notes; correspondence; electronic communication; videos;
photographs; X-ray or other film; slides; biological materials; computer files and
printouts; manuscripts and publications; equipment use logs; laboratory
procurement records; animal facility records; and human and animal subject
records and protocols.
V.
Respondent means the person or persons against whom an allegation of
misconduct in research or scholarship is directed or who is the subject of a
misconduct proceeding.
W.
Retaliation means any adverse action taken against a complainant, witness, or
committee member by an institution or one of its members in response to:
(a)
A good faith allegation of misconduct; or
(b)
Good faith cooperation with a misconduct proceeding.
X.
Scholarship means original contributions or artistic works which constitute
advances or contributions to the individual's discipline or to practice in the field.
III.
Rights and Responsibilities
A.
Research Integrity Officer (RIO)
The University’s RIO will have primary responsibility for implementation of the
procedures set forth in this policy, and shall ensure that all individuals responsible for
administering this policy and these procedures or participating in the proceedings
governed hereby, including, but not limited to, the RIO and the CERS Chair, are free from
bias and have no real or apparent conflicts of interest with either the parties involved or
the subject matter of any allegation. The RIO will, in consultation with the CERS Chair,
appoint the inquiry and investigation committees and shall take all reasonable steps to
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ensure an impartial and unbiased misconduct proceeding to the maximum extent
practicable. Those conducting the inquiry or investigation shall be selected on the basis
of expertise that is pertinent to the matter and, prior to selection, shall be thoroughly
screened by the RIO for any real or apparent personal, professional, or financial conflicts
of interest with the respondent, complainant, potential witnesses, or others involved in
the matter. Any such conflict which a reasonable person would consider to demonstrate
potential bias shall disqualify the individual from selection.
At the time of or before beginning an inquiry, the RIO must make a good faith effort to
notify in writing the presumed respondent(s), if any, of the allegations of misconduct. If
the inquiry subsequently identifies additional respondents, the institution must notify
them.
To the extent allowed by law, the RIO shall maintain the identity of respondents and
complainants and any information obtained during a misconduct proceeding that might
identify the subjects of research securely and confidentially and shall not be disclosed,
except to: (1) those who need to know in order to carry out a thorough, competent,
objective, and fair misconduct proceeding; (2) the applicable federal agency as it
conducts its review of the misconduct proceeding and any subsequent proceedings; or
(3) as otherwise required by law.
The RIO, or designee, will assist the inquiry and investigation committees and all
University personnel in complying with these procedures and with applicable standards
imposed by government or external funding sources. The RIO is also responsible for
securing the research records, maintaining files of all relevant documents and evidence
and for the confidentiality and the security of the files.
The RIO will report to government or other external funding sponsors and ORI as
required by law and keep them apprised of any developments during the course of the
inquiry or investigation that may affect current or potential funding for the individual(s)
under investigation or that the government or other external funding sponsors need to
know to ensure appropriate use of research funds and otherwise protect the public
interest.
The RIO will, upon receipt of an allegation of misconduct, and in consultation with the
CERS Chair and institutional counsel, make an initial assessment of whether the
allegation warrants an inquiry. The RIO shall take all reasonable steps to ensure an
impartial and unbiased misconduct proceeding in accordance with these procedures to
the maximum extent practicable. Upon receipt by the RIO of a timely written objection
to any member of an inquiry or investigation committee or to the RIO or the CERS Chair
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on the basis of a real or apparent conflict of interest, the RIO shall promptly determine,
in consultation with the CERS Chair, whether to replace the challenged member with a
qualified substitute as provided below. The RIO is responsible for maintaining
confidentiality of the misconduct proceedings. Therefore, the RIO shall not disclose any
information regarding the allegations, the proceedings, or the identity of individuals
involved in the proceedings except as may necessary to the proper discharge of her/his
responsibilities hereunder, or as required by law.
B.
Respondent
The Respondent shall be entitled to a prompt, thorough, competent, objective and fair
response to allegations of misconduct. The Respondent will be informed of the
allegations and notified in writing of the final determinations of any inquiry or
investigation of the allegations and the resulting institutional actions, if any. The
Respondent will also have the opportunity to be interviewed by and present evidence to
the inquiry and investigation committees, to review the inquiry and investigation
reports, and to have the advice of an advisor, who may be legal counsel, throughout the
misconduct proceedings. The advisor l for the Respondent, however, may not actively
participate in the misconduct proceedings. If the Respondent is found not to have
engaged in misconduct, the University will make a diligent effort to restore his or her
reputation. The Respondent is expected to cooperate with the misconduct proceeding,
and, except as may be necessary to respond fully to an allegation of misconduct or as
appropriate to restoring his or her reputation after the conclusion of the proceedings,
the Respondent is responsible for maintaining confidentiality of the misconduct
proceedings including all documents and other evidence generated as part of the
proceedings. If the Respondent refuses to cooperate with the misconduct proceeding,
the RIO and any inquiry or investigation committee will use their best efforts to reach a
conclusion concerning the allegations, noting in their reports the Respondent's failure to
cooperate and its effect on the evidence.
If the case becomes public, the University may take such steps as may be appropriate,
consistent with applicable law, to defend its actions.
The Respondent may, within five (5) calendar days of receipt of notice of an allegation of
misconduct or of the initiation of an inquiry or investigation, submit to the RIO or the
CERS Chair a written objection that either the RIO, the CERS Chair, or any appointed
member of an inquiry or investigation committee has a real or apparent conflict of
interest and the basis thereof. The RIO shall, in consultation with the CERS Chair,
promptly determine whether to replace the challenged committee member with a
qualified substitute. Objections regarding the RIO shall be referred to the President, or
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designee, who shall promptly determine whether to replace the RIO with a qualified
substitute. Objections regarding the CERS Chair shall be referred to the Chair of the
University Senate who shall promptly determine whether to replace the CERS Chair with
a qualified substitute. A written record of any decision to replace the RIO, the CERS
Chair, or any member of an inquiry or investigation committee, and the reasons
therefore, shall be made part of the record of the proceeding.
C.
Complainant
The Complainant will ordinarily have an opportunity to be interviewed by the inquiry
and investigation committees, to review portions of the inquiry and investigation reports
pertinent to his/her allegations, evidence, and testimony and to be informed of the
results of the inquiry and investigation and to be protected from retaliation.
The Complainant is expected to make allegations in good faith and fully cooperate with
the misconduct proceeding. If the Complainant refuses to cooperate with the
misconduct proceeding, the RIO and any inquiry or investigation committee will use
their best efforts to reach a conclusion concerning the allegations, noting in their reports
the Complainant’s failure to cooperate and its effect on the evidence. The Complainant
is responsible for maintaining confidentiality of the misconduct proceedings. Therefore,
the Complainant shall not disclose any information regarding the proceedings, or the
identity of individuals involved in the proceedings.
D.
Office of General Counsel
The Office of General Counsel shall serve as legal advisor to the University, the RIO, the
RCO and the inquiry and investigation committees, as needed. The Office of the General
Counsel shall be consulted regarding any question of the application or interpretation of
the provisions of this policy and these procedures. Upon request of the RIO, a member
of the Office of General Counsel shall attend meetings, interviews, and other
proceedings during the inquiry and/or investigation, but will not actively participate in
such meetings, interviews or other proceedings.
E.
Deciding Official
The Deciding Official will receive the inquiry and/or investigation report and any written
comments made by the respondent or the complainant on the draft report. The
Deciding Official will consult with the RIO or other appropriate officials and will
determine whether to conduct an investigation, whether research misconduct occurred,
whether to impose sanctions, or whether to take other appropriate administrative
actions consistent with this policy.
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IV.
Procedure
A.
Confidentiality
All individuals responsible for administering this policy and these procedures or
participating in any misconduct proceeding shall, to the maximum extent practicable
maintain the confidentiality of information regarding a complainant, a respondent and
all participants in any misconduct proceeding. Therefore, disclosure of the identity of
respondents and complainants in research misconduct proceedings is limited, to the
extent possible, to those who need to know, consistent with a thorough, competent,
objective and fair research misconduct proceeding, and as allowed by law. Furthermore,
except as may otherwise be prescribed by applicable law, confidentiality must be
maintained for any records or evidence from which research subjects might be
identified. Disclosure in all circumstances shall be limited to those who have a need to
know to carry out a research misconduct proceeding.
B.
Allegations of Misconduct
1.
All members of the University community are expected to report
observed, suspected, or apparent misconduct. All allegations of research
misconduct from sources inside or outside the University will be
considered.
2.
Allegations should be directed to the RIO, or designee, or the CERS Chair.
However, any member of the University community who receives an
allegation of misconduct shall promptly forward it to the RIO. 1While the
University will fully consider oral or anonymous allegations, written
allegations containing the following information, though not required, are
ordinarily more useful:
a.
Name of Respondent(s);
b.
Name of Complainant(s);
c.
Names of witnesses, if known;
d.
Description of misconduct;
e.
When misconduct occurred;
f.
Where misconduct occurred;
g.
Supporting documentation, if any;
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h.
Grant number or title, if applicable; and
i.
Funding source, if any.
3.
Upon receipt of an allegation of misconduct, the RIO or the CERS Chair, as
the case may be, will promptly and fully inform the other.
4.
To the extent practicable, or as otherwise required by law, the identity of
Complainants who wish to remain anonymous will be kept confidential.
C.
Preliminary Assessment of Allegations
1.
Upon receiving an allegation of research misconduct, the RIO, in
consultation with the CERS Chair, will immediately assess the allegation to
determine whether it:
a.
falls within the definition of misconduct in research or scholarship;
and
b.
is sufficiently credible and specific so that potential evidence of
misconduct may be identified; and
c.
falls within the applicable limitation period set forth below.
2.
An inquiry is warranted if an allegation falls within the definition of
misconduct as provided herein and is sufficiently credible and specific so
that potential evidence of misconduct may be identified. If the RIO, in
consultation with the CERS Chair and institutional counsel, determines
that an allegation warrants an inquiry, then the RIO shall, within fourteen
(14) calendar days of receipt of an allegation, initiate an inquiry, or as
appropriate, an investigation. It is appropriate to initiate an investigation
directly when there is sufficient evidence already available at the
preliminary assessment, for example, as the result of an audit of a clinical
trial. In such instance, the RIO shall prepare a written record of the
decision to move directly to an investigation, which shall be made part of
the proceeding record.
3.
The RIO, or designee, shall, on or before the date on which the
Respondent is notified or the inquiry begins, whichever is earlier,
promptly take all reasonable and practical steps to obtain custody of all
the research records and evidence needed to conduct the research
misconduct proceeding, inventory the records and evidence, and
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sequester them in a secure manner, except that where the research
records or evidence encompass scientific instruments shared by a
number of users, custody may be limited to copies of the data or
evidence on such instruments, so long as those copies are substantially
equivalent to the evidentiary value of the instruments.
4.
The RIO shall prepare a written record of the basis for the decision of
whether to initiate an inquiry or investigation, as the case may be,
including whether the CERS Chair concurred with the RIO’s determination
and the reasons therefor, all of which shall be made part of the record of
the proceeding.
5.
If no inquiry or investigation is initiated, the RIO shall notify the
Respondent, Complainant, and CERS chair that the allegation did not
warrant an inquiry or an investigation, as the case may be, under these
procedures.
D.
Inquiry
1.
The purpose of an inquiry is to determine whether an allegation warrants
an investigation. An investigation is warranted if the allegation falls within
the definition of misconduct in research and scholarship, and preliminary
information-gathering indicates that the allegation may have substance.
The inquiry phase may draw on testimony or written statements of the
Complainant, Respondent, and key witnesses, if necessary, to determine
whether there is sufficient evidence of possible misconduct to warrant an
investigation. An inquiry does not require a full review of all the evidence
related to the allegation. The purpose of the inquiry is not to reach a final
conclusion about whether misconduct occurred or who was responsible.
The inquiry shall be completed with sixty (60) calendar days of its
initiation unless circumstances clearly warrant a longer period. If the
inquiry takes longer than 60 days to complete, the inquiry record shall
include documentation of the reasons for exceeding the 60-day period.
2.
To initiate an inquiry, the RIO shall:
a.
within ten (10) calendar days of the determination to initiate an
inquiry, or as soon thereafter as practical, provide a written
notice to the Respondent which shall include a description of all
allegations of research misconduct made against the Respondent,
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a list of the members of the inquiry committee, an explanation
and documentation of the University's policies regarding
allegations of misconduct, and which shall inform Respondent of
his/her obligations of cooperation and confidentiality;
b.
take all reasonable and practical steps necessary to obtain
custody, inventory, and secure all original research records and
evidence relevant to the allegation at the time or before the
Respondent is notified of an allegation. University students,
faculty and staff including but not limited to the Complainant and
Respondent, shall promptly provide all available records and
data, including primary research material identified as relevant to
the allegation. Copies of such records and data will be returned
to individuals who supply the same to the RIO except for
materials not amenable to copying. All reasonable steps,
consistent with time constraints and other obligations imposed
by federal regulations, shall be taken to eliminate or minimize any
disruption that might be created for ongoing research efforts by
such requirements to produce documentation;
c.
appoint, within ten (10) calendar days after the determination to
initiate an inquiry, or as soon thereafter as practical, and in
consultation with the CERS Chair, an inquiry committee consisting
of normally three (3), but not more than five (5) individuals who
do not have real or apparent conflicts of interest in the
proceeding. The members may be from within or outside the
institution. The inquiry committee, which shall elect its own chair,
shall include at least one (1) member of CERS, but shall not
include the CERS Chair or the RIO;
d.
provide a written notice to the Complainant that an inquiry has
been initiated, which shall include a copy of the University's
policies regarding allegations of misconduct and which shall
inform the Complainant of her/his obligations of cooperation,
good faith and confidentiality; and
e.
prepare a charge for the inquiry committee that describes the
allegations and any related issues identified during the allegation
assessment and that states the purpose of the inquiry. 2
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3.
At the inquiry committee’s first meeting, the committee will elect a chair
and the RCO will review the inquiry committee’s charge, discuss the
allegations and any related issues, outline the purpose of the inquiry,
i.e., to determine whether the allegation warrants an investigation,
review the appropriate procedures for the conduct of the inquiry,
answer any questions raised by the committee, and otherwise assist the
committee in the planning and conduct of the inquiry.
4.
In the conduct of the inquiry, the committee shall interview the
Respondent, and, if necessary, the Complainant and other key witnesses
and shall examine relevant records and other evidence. Interviews of all
witnesses interviewed by the committee shall be transcribed or
recorded. The committee shall evaluate the testimony and other
evidence and shall determine whether there is sufficient evidence of
possible misconduct to warrant an investigation.
5.
The committee shall ordinarily complete its inquiry and submit a final
report of its findings to the RIO within twenty one (21) calendar days of
the date of its first meeting unless the RIO grants an extension for good
cause. The RIO shall prepare a written record of the decision of whether
to grant an extension which shall be made part of the record of the
proceeding. The RIO shall notify the CERS Chair, the Respondent, and the
Complainant of the reasons for any delay.
The committee shall prepare and submit to the RIO, an inquiry report
that includes: the name and title of the committee members and
experts, if any, the allegations, the sponsor support, if any, a summary of
the inquiry process used, a list of the evidence reviewed, summaries of
any interviews, a description of the evidence in sufficient detail to
demonstrate whether an investigation is warranted, and the committee's
determination as to whether an investigation is recommended and
whether any other actions should be taken if an investigation is not
recommended.
6.
The RIO shall, within five (5) calendar days of receipt of the report from
the committee, or as soon thereafter as practical, provide the
Respondent with a copy of the inquiry report, and, concurrently, a copy
of, or supervised access to, the evidence on which the report is based,
for comment and rebuttal, and will provide the Complainant with those
portions of the draft report that address the Complainant’s testimony
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and evidence. Within ten (10) calendar days of their receipt of the report
or the portions thereof as the case may be, the Respondent and the
Complainant may provide their comments to the committee. The
comments shall be made part of the record of the proceeding, and the
committee may revise its report based upon the comments as
appropriate. Institutional counsel shall review the report for legal
sufficiency.
7.
Within ten (10) calendar days of receipt of comments on the report by
the Complainant and Respondent, or as soon thereafter as practical, the
committee shall submit a final inquiry report along with a copy of the
record of the proceeding to the RIO who, in turn, shall promptly submit
the report and proceeding record to the University President.
8.
The University President will, within ten (10) calendar days of receipt of
the final inquiry report and proceeding record, or as soon thereafter as
practical, make a final determination, in writing, of whether the findings
of the committee provide sufficient evidence of possible misconduct to
justify conducting an investigation. The President may also return the
report to the inquiry committee with a request for further information or
analysis. In such event, the President’s reasons therefore shall be set
forth in writing and included in the proceeding record. The time for the
President’s determination hereunder may be extended by the President
for good cause and the reason therefor recorded in the record of the
proceeding.
9.
The inquiry is completed when the President makes the determination
of whether the findings of the committee provide sufficient evidence of
possible misconduct to justify conducting an investigation. The RIO shall
thereafter notify the Respondent and the Complainant in writing of the
President’s determination, and shall notify the CERS Chair.
E.
Investigation
1.
The purpose of the investigation is to explore the allegations of
misconduct in detail, to examine the evidence in depth, and to determine
specifically whether the respondent has committed misconduct. The
investigation may also determine whether there are additional instances
of possible misconduct that would justify broadening the scope beyond
the initial allegations. The investigation, including conducting the
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investigation, preparing the report of findings, providing the draft report
for comment and sending the final report to the President, and ORI if the
matter involves federal research support, shall be completed with one
hundred twenty (120) calendar days of its initiation unless circumstances
clearly warrant a longer period. If the investigation takes longer than 120
days to complete, the inquiry record shall include documentation of the
reasons for exceeding the 120 day period. The CERS Chair, the
Complainant, and the Respondent will be notified of the reasons for the
delay.
2.
To initiate an investigation, the RIO shall:
a.
within ten (10) calendar days of the determination to initiate an
investigation, or as soon thereafter as practical, provide a written
notice to the Respondent which shall include a description of all
allegations of research misconduct made against the Respondent,
a copy of the inquiry report and proceeding record, the
President’s determination, a list of the members of the
investigation committee, an explanation and documentation of
the University's policies regarding allegations of misconduct, and a
description of the Respondent’s obligations of cooperation and
confidentiality;
b.
take all reasonable and practical steps necessary to obtain
custody, inventory, and secure any additional original research
records and evidence relevant to the allegation at the time or
before the Respondent is notified that an investigation has been
initiated. The need for additional sequestration of records may
occur for any number of reasons, including the institution's
decision to investigate additional allegations not considered
during the inquiry stage or the identification of records during the
inquiry process that had not been previously secured. University
students, faculty and staff including, but not limited to, the
Complainant and Respondent, shall promptly provide all available
records and data, including primary research material identified as
relevant to the allegation. Copies of such records and data will be
returned to individuals who supply the same to the RIO except for
materials not amenable to copying. All reasonable steps,
consistent with time constraints and other obligations imposed by
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federal regulations, shall be taken to eliminate or minimize any
disruption that might be created for ongoing research efforts by
such requirements to produce documentation;
c.
appoint within ten (10) calendar days after the determination to
initiate an investigation, or as soon thereafter as practical, and in
consultation with the CERS Chair, an investigation committee,
which may include one or more members of the inquiry
committee, normally consisting of no fewer than three (3), but not
more than five (5) individuals, no more than two (2) of whom
may be members of the inquiry committee, who do not have real
or apparent conflicts of interest in the proceeding and have the
necessary expertise to evaluate the evidence and issues related to
the allegation, interview the principals and key witnesses, conduct
the inquiry, and they may be individuals from within or outside
the institution. The investigation committee, which shall elect its
own chair, shall include at least one (1) member of CERS, but shall
not include the CERS Chair or the RIO. 3The Respondent may
submit a written objection to any appointed member of the
Investigation Committee based on perceived bias or conflict of
interest within ten (10) calendar days of notice of the initiation of
an investigation. Upon receipt of such an objection the RIO will
promptly determine, in consultation with the CERS Chair, whether
to replace any challenged member(s), and if so determined, will
appoint a qualified substitute;
d.
provide a written notice to the Complainant that an investigation
has been initiated which shall include a description of the
Complainant’s obligations of cooperation, good faith and
confidentiality; and
e.
prepare a charge for the investigation committee that describes
the allegations and any related issues identified during the inquiry
and that states the purpose of the investigation.
3.
At the investigation committee’s first meeting, the committee will elect a
chair and the RCO will review the charge with the committee, discuss the
allegations and any related issues, review the appropriate procedures for
the conduct of the investigation, answer any questions raised by the
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committee and otherwise assist the committee in the planning and
conduct of the investigation.
4.
In the conduct of the investigation, the committee ordinarily will
interview the Complainant, the Respondent and other key witnesses and
examine relevant records and other evidence. Interviews of all witnesses
interviewed by the committee shall be transcribed or recorded. The
committee shall evaluate the testimony and other evidence and shall
determine whether, based upon a preponderance of the evidence,
misconduct has occurred.
5.
The committee shall prepare and submit to the RIO an investigation
report that shall include: a description of the policies and procedures
under which the investigation was conducted; a description of how and
from whom information relevant to the investigation was obtained; a
statement of the findings of the investigation, including whether or not
misconduct has been found for each allegation; an explanation of the
basis for the finding, recommendations of the committee for correcting
the public record; and any recommendations for an institutional
response. The report also shall include the actual text or an accurate
summary of the testimony of any individual(s) found to have engaged in
misconduct.
6.
The RIO shall, within five (5) calendar days of receipt of the report from
the committee, or as soon thereafter as practical, provide the Respondent
with a copy of the report for comment and rebuttal, and will provide the
Complainant with the Complainant’s allegation and testimony as
contained in the report. Within ten (10) calendar days of their receipt of
the report or the portions thereof as the case may be, the Respondent
and the Complainant will provide their comments to the committee. The
comments shall be made part of the record of the proceeding, and the
committee may revise its report based upon the comments as
appropriate. Institutional counsel shall review the report for legal
sufficiency.
7.
Within ten (10) calendar days of receipt of comments on the report by
the Complainant and Respondent, or as soon thereafter as practical, the
committee shall submit a final report along with a copy of the proceeding
record to the RIO who, in turn, shall promptly submit the report and
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proceeding record to the University President, and the CERS Chair along
with a written recommendation.
8.
The University President will, within ten (10) calendar days of receipt of
the final investigation report and proceeding record, , or as soon
thereafter as practical, make a final determination, in writing, whether to
accept the investigation report, its findings, and the recommended
institutional action. The President may also return the report to the
investigation committee with a request for further fact-finding or analysis.
The time for such determination may be extended by the President for
good cause, and the reason therefor shall be recorded in writing in the
proceeding record.
9.
If the President does not accept the investigation report, its findings or
the recommended institutional action, the President may consult with the
investigation committee before finalizing the determination. The
investigation is completed when the President makes a determination of
whether to accept the investigation report, its findings and the
recommended institutional action. The RIO shall thereafter notify the
Respondent and the Complainant in writing of the President’s
determination, and shall notify such other institutional officials of the
determination as may be appropriate.
10.
When the investigation report has been accepted, the RIO shall forward,
as appropriate, copies to the responsible federal agencies.
11.
The RIO will undertake appropriate efforts to restore the reputation of
the Respondent if an allegation of misconduct is unsubstantiated, and to
protect the Complainant, as set forth below.
F.
Institutional Administrative Actions
1.
The University will take appropriate administrative actions against a
respondent when an allegation of misconduct against them has been
substantiated. If the President determines that the alleged misconduct is
substantiated by the findings, he or she will decide on the appropriate
actions to be taken. Such administrative actions may include, but shall not
be limited to:
a.
appropriate steps to correct the research record;
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b.
public disclosure;
c.
counseling and/or disciplinary action in accordance with the
provisions of the applicable collective bargaining agreement;
d.
withdrawal or correction of all pending or published abstracts and
papers emanating from the research where research misconduct
was found;
e.
removal of the responsible person from the particular project;
f.
special monitoring of future work; and
g.
restitution of funds as appropriate.
2.
The University will take appropriate administrative actions against any
person found to have violated the confidentiality provisions of this policy.
Such administrative actions may include, but shall not be limited to,
counseling and/or disciplinary action in accordance with the provisions of
the applicable collective bargaining agreement.
V.
Reporting Requirements
A.
A decision to initiate an investigation involving allegations of misconduct
involving federally-funded research and proposals submitted to federal agencies
for research funding, must be reported in writing to ORI or the applicable
sponsor, on or before the date the investigation begins and to the Research
Foundation of the State University of New York. At a minimum, the notification
should include the name of the person(s) against whom the allegations have
been made, the general nature of the allegation as it relates to the federal
sponsor’s definition of research misconduct, and the sponsor applications or
grant number(s) involved. The RIO must also be notified of the final outcome of
the investigation and must be provided with a copy of the investigation report.
Any significant variations from the provisions of the institutional policies and
procedures should be explained in any reports submitted to the sponsor.
B.
If the University intends to terminate an inquiry or investigation of misconduct
involving federally-funded research and proposals submitted to federal agencies
for research funding for any reason without completing all relevant requirements
of the sponsor’s regulation, the RIO will submit a report of the planned
termination to the sponsor, including a description of the reasons for the
proposed termination.
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C.
If the University determines that it will not be able to complete the investigation
of misconduct involving federally-funded research and proposals submitted to
federal agencies for research funding in 120 calendar days, the RIO will submit to
ORI, or the applicable sponsor, a written request for an extension that explains
the delay, reports on the progress to date, estimates the date of completion of
the report, and describes other necessary steps to be taken. If the request is
granted, the RIO will file periodic progress reports as requested by the ORI or the
applicable sponsor.
D.
When external funding or applications for funding are involved and an admission
of misconduct is made, the RIO will contact ORI or the applicable sponsor as
appropriate for consultation and advice. Normally, the individual making the
admission will be asked to sign a statement attesting to the occurrence and
extent of misconduct. When the case involves external funds, the University will
not accept an admission of misconduct as a basis for closing a case or not
undertaking an investigation without prior approval from ORI or the applicable
sponsor. Admissions must be fully documented in the proceeding record using
the terms of the misconduct definition (falsification, fabrication, or plagiarism)
and acknowledging that the action constituted misconduct.
E.
The RIO will, as appropriate, notify ORI or the applicable sponsor and take such
interim administrative actions as may be necessary at any stage of a misconduct
proceeding if:
1.
There is an immediate health hazard involved;
2.
There is an immediate need to protect Federal funds or equipment;
3.
There is an immediate need to protect the interests of the person(s)
making the allegations or of the individual(s) who is the subject of the
allegations as well as his/her co-investigators and associates, if any;
4.
It is probable that the alleged incident is going to be reported publicly;
5.
The allegation involves a public health sensitive issue, e.g. a clinical trial;
or
6.
There is a reasonable indication of possible criminal violation.
Interim actions may include, but shall not be limited to, additional monitoring of
the research process and the handling of external funds and equipment,
reassignment of personnel or of the responsibility for the handling of external
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funds and equipment, additional review of research data and results or delaying
publication.
VI.
Other Notifications
The President shall decide which concerned parties should be notified of the final
determination of the misconduct proceeding. In addition to the Respondent and Complainant,
typically this would include the Provost, the CERS Chair, the Investigation Committee members,
Inquiry Committee members, and other parties with a legitimate need to know the outcome of
the proceedings. In addition, appropriate members of the research and scholarly community
may be informed, so as to correct the public record. The University will also notify relevant
federal or other external granting agencies and partnering institutions, where applicable and in
accordance with regulatory requirements. In addition, the RIO will determine whether law
enforcement agencies, professional societies, professional licensing boards, editors of journals
in which falsified reports may have been published, collaborators of the respondent in the work,
or other relevant parties should be notified of the outcome of the case. The RIO is responsible
for ensuring compliance with all notification requirements of funding or sponsoring agencies
VII.
Annual Report to CERS
The RIO shall provide an annual report to CERS with information on misconduct proceedings
and their disposition. The report will contain no specific information on individuals, but will
contain sufficient information to enable CERS to fulfill its responsibilities for reviewing the
implementation of the policy and procedures on institutional responses to allegations of
misconduct in research and scholarship and recommending to the University Senate revisions to
the policy and procedures, as needed. The report shall also contain a summary of training of
CERS members and of University researchers. Prior year reports shall be provided to the new
CERS committee. The outgoing CERS Chair and RIO shall provide to the new CERS Chair all
information available to the outgoing chair about all ongoing cases.
VIII.
Other Considerations
A.
Termination of Institutional Employment or Resignation Prior to Completing
Inquiry or Investigation
1.
The termination of the Respondent's University employment, by
resignation or otherwise, before or after an allegation of possible
misconduct has been reported, will not preclude or terminate the
misconduct proceedings.
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2.
If the Respondent, without admitting to the misconduct, elects to resign
his or her position prior to the initiation of an inquiry, but after an
allegation has been reported, or during an inquiry or investigation, the
inquiry or investigation will proceed.
3.
If the Respondent refuses to participate in the process after resignation,
the committee will use its best efforts to reach a conclusion concerning
the allegations, noting in its report the Respondent's failure to cooperate
and its effect on the committee's review of all the evidence.
B.
Destruction or Absence of Records
The destruction, absence of, or a respondent's failure to provide records adequately
documenting the questioned research is evidence of misconduct where it is determined
by a preponderance of the evidence that the Respondent intentionally, knowingly, or
recklessly had research records and destroyed them, had the opportunity to maintain
the records but failed to do so, or maintained the records, but failed to produce them in
a timely manner, and that the Respondent's conduct constitutes a significant departure
from accepted practices of the relevant research community.
C.
Restoration of the Respondent's Reputation
In proceedings where it is determined that no misconduct occurred, the University will,
if requested, and as appropriate, take reasonable and practical efforts to protect or
restore the Respondent's reputation.
D.
Protection of the Complainant and Others
1.
Regardless of whether the institution or ORI, as the case may be,
determines that misconduct occurred, the RIO will undertake reasonable
and practical efforts to protect complainants who made allegations of
misconduct in good faith and others who cooperate in good faith with
inquiries and investigations of such allegations.
2.
Upon completion of a misconduct proceeding, the University will, if
requested and as appropriate, take reasonable and practical efforts to
protect or restore the position and reputation of any complainant,
witness, or committee member and to counter potential or actual
retaliation against those complainants, witnesses and committee
members.
E.
Allegations Not Made in Good Faith
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If relevant, the President will determine whether the Complainant’s allegations of
misconduct were made in good faith. If an allegation was not made in good faith, the
President will determine whether any administrative action should be taken against the
Complainant. Such administrative actions may include, but shall not be limited to,
counseling and/or disciplinary action in accordance with the provisions of the applicable
collective bargaining agreement.
F.
Limitations Period
Ordinarily, allegations of misconduct in research or scholarship occurring more than six
(6) years prior to the University’s receipt of the allegation of misconduct will not be
pursued unless:
1.
It is determined that a prompt, thorough, competent, objective, and fair
investigation of an allegation occurring more than six (6) years prior to
the University’s receipt of an allegation of misconduct may be undertaken
based upon data/or research records that have been published or are
otherwise in the public domain;
2.
The University, in consultation with the funding agency, if any, determines
that the alleged misconduct, if it occurred, could possibly have a
substantial adverse effect on the health or safety of the public; or
3.
The Respondent continues or renews any incident of alleged misconduct
that occurred before the six-year limitation through the citation,
republication or other use for the potential benefit of the Respondent of
the research or scholarly record that is alleged to have constituted
misconduct.
A determination whether to pursue an allegation of misconduct in research or
scholarship occurring more than six (6) years after receipt of such allegation shall be
made by the RIO only after consultation with institutional counsel and CERS Chair.
IX.
Record Retention
The RIO will prepare and maintain in a secure manner all records of research misconduct
proceedings as that term is defined in applicable federal regulations for seven (7) years after
completion of the proceedings or the completion of any PHS proceeding involving the research
misconduct allegation.
