Initial assessments: a tool for institutions looking to “get tough” on misconduct

By Elizabeth McEvoy, Esq.

You are a research compliance officer and you receive an anonymous complaint: A member of your faculty has allegedly fabricated data featured prominently in a recent publication that is sponsored by a National Institutes of Health grant held by your institution. Not good. When you read the complaint, however, you observe that it lacks detail and contains only a general contention, which is belied by your personal knowledge that the lab in question maintains scrupulous lab practices. Given your mandate, you have no choice but to launch a formal misconduct proceeding to sort out the allegations, right? Wrong. Institutions have another tool at their disposal: an initial assessment of evidence.

Revamping the initial assessment

Although real-life concerns aren’t quite as black and white as this hypothetical, research integrity officers and compliance officials across the nation can no doubt relate to the sentiment. While identifying and preventing true misconduct is not only critical to preserving scientific integrity but a condition of receiving the grant money, a formal proceeding is a huge undertaking for any institution. An incoming complaint will trigger a year-long (at least) process conducted by none other than the institution and its already overburdened staff and faculty. Institutions must dedicate the same level of resources to all allegations that move forward, including those where the allegations are found to have no merit. With complaints of misconduct – fueled by a myriad of motivations – on the rise, institutions face the difficult reality of expending tremendous resources in response to every complaint that comes in the door, heightening the risk that real misconduct may not receive the attention it deserves.

By performing a thorough initial assessment, institutions can respond scrupulously to reports without adopting a one-size-fits-all approach. During this stage, institutions can sufficiently review the factual contentions to determine whether they support an allegation of misconduct or allege other transgressions that fall outside the definition. This process is not a novel one, but it is rarely used. Even institutions that have policies on the books that require some preliminary evaluation rarely carry out this process with any vigor. The numbers paint a compelling picture: In the over 50 cases our firm has handled from the pre-inquiry stage at institutions across the country, we have yet to see an initial assessment that resulted in dismissal of a complaint, even where the inquiry ultimately concluded that the complained-of conduct did not constitute research misconduct.

Most institutions have adopted policies that indeed require the research integrity officer or her designee to dismiss a complaint, or decide not to pursue an unmeritorious claim, if it is unsubstantiated after the completion of an initial assessment. In most cases the institution must decide whether the complaint is “sufficiently credible and specific so that potential evidence of research misconduct may be identified.” While this verbiage is almost universal, it is practically a foregone conclusion that all complaints, regardless of the plausibility, accuracy, or tether to the definition of research misconduct, prompt a formal inquiry. Even an inquiry will trigger weighty faculty obligations, time, and resources.

Not just a problem for accused wrongdoers

Failing to use the initial assessment tool to weed out unsubstantiated complaints is a problem not only for individuals accused of misconduct. The lack of a thorough vetting process has serious negative effects on the institutions as well. This is particularly true in those instances where an institution’s decision to move ahead to an inquiry misses a critical opportunity to rid itself of meritless complaints and preserve precious resources – not the least of which is keeping intact the reputation of the accused researcher representing the institution on the national stage. For research integrity officers, the initial assessment should be viewed as a tool to weed out unsubstantiated claims and focus instead on taking a hard line against true allegations of misconduct. Conducting an initial assessment has many collateral benefits for those involved, as well as alleviating many of the headaches that go hand-in-hand with initiating an inquiry, such as assembling a qualified and objective panel and carving out time to oversee busy faculty schedules.

External pressures to find that misconduct has occurred.

Why have institutions not already embraced this concept? It is not for a lack of written authority. Recent trends toward adopting a “no tolerance” stance on all unethical lab practices, especially those with a hint of misconduct, may be to blame. External forces and public policy put considerable pressure on institutions to simultaneously foster innovative research and to regulate that research. These pressures encourage institutions to “get tough” on all reported instances of misconduct by conducting a complete inquiry to ensure that no claims – no matter how undeveloped – are overlooked. Institutions, however, should not take the bait. They are well-equipped to address those complaints that meet the definition of misconduct that come in the door. Weeding out other complaints, or complaints brought in bad faith, can help research integrity and ethics officials hone in on substantiated claims that may pose a threat to the public.

In the end, institutions must strike a delicate balance. On the one hand, they must take every complaint seriously and identify potential misconduct so they can continue to fulfill their respective obligations to the funding agencies and to the institutional members. On the other hand, institutions should not “just pass go.” They must perform a thorough assessment of the evidence, carefully applying the federal and institutional definitions, and keep eyes wide open as to the myriad of ulterior motives that drive misconduct reports. Striking this balance will help institutions better allocate their resources and personnel and avoid the greater risk of undue reputational harm to the respondent, often a named recipient of federal funds.