National Laboratory Perspective
by: Patricia L. Oddone
Lawrence Berkeley National Laboratory
We've heard a lot about the pressures and the rules facing researchers. I would like to
focus on the responsibility of researchers funded by taxpayer dollars to spend money
wisely and ethically, and what has happened in a place like the Lawrence Berkeley National
Laboratory when this has not been the case. Yesterday, you heard from representatives of
the Department of Energy nuclear weapons laboratories, Sandia, Livermore and Los Alamos.
There are 10 other DOE national laboratories that do not work on weapons, and Berkeley is
one, located on University of California land next to the Berkeley campus. We have a lot
of rules and regulations, being managed by the University of California for the Department
of Energy. Nevertheless, the view of our director is that right and wrong are still pretty
clear. He comes from Bell Labs, as do my other two panel members, and he is troubled by
what he describes as an "entitlement mentality" that comes with federal funding.
I want to describe three cases, all occurring in the past two years, to illustrate the
kinds of conflicts that we deal with at Berkeley Lab. The first concerns a violation of
copyright policies, the second a violation of outside business rules, and the third an
example of scientific misconduct. In the first case, the Department of Energy became
suspicious about a particularly successful book containing data, funded by the Department
of Energy, at our lab. A researcher, who for several years had been responsible for
compiling the database, had also contracted with a book publisher on the same data. Under
lab policy, the copyright in such a case would be owned by the laboratory; the researcher
would be entitled to 35 percent of the royalties and the laboratory would keep the rest.
This is the same as for University of California policy on patents, as well as copyrights.
In this case, the researcher, who was a long-time lab employee, claimed that he had
created the data for the book on his own time, even though it's exactly the same thing.
And, in any event, that he had been authorized by the lab to sign the contract. This was,
in fact, the case for earlier editions when the book was not successful; but later, he
didn't follow through.
From the start of the investigation, it was definitely adversarial. The researcher was
uncooperative, refusing to supply information and speaking through an attorney.
Ultimately, the laboratory did not take legal action against him because the amount of
disputed royalties was smaller than we thought. There was also a statute of limitations,
which meant we couldn't get royalties from back years, and there were some lab policy
ambiguities that needed to be cleared up. The reaction of the researcher was one of
righteous indignation and triumph. Since he got away with it, what he did was right. The
lab director, nevertheless, sees it as a clear case of someone taking the government's
money and profiting from it.
Okay, second example. A principal investigator hired someone to work four days at the
lab and the fifth day on his personal business, which was being run out of the lab on lab
equipment. Obviously, we didn't know this at the time of hiring. The subordinate barely
spoke English and feared that he would lose his immigration status if he complained. Some
years went by, but eventually, he did make a complaint, both because he wasn't getting
proper credit for his published work and because the fifth day was really taking all
weekend, a really terrible situation. It was found that the principal investigator had
violated the lab's outside business policy relating to conflict of interest. He had failed
to separate lab and private interests, competed with current and proposed lab projects and
engaged in the outside business using lab resources and equipment. He admitted only
violating the lab's patent agreement. In the end, the principal investigator was
disciplined, but not fired, because of, again, various ambiguities in the rules, which
made the lab's legal team cautious.
The most interesting case is the final one. The particulars may sound familiar, since
the New York Times covered this story extensively. This is the case of a researcher
who eventually left the lab following a finding of scientific misconduct. The hook for the
press was the research area, which was out on the fringe, indicating that power lines may
cause breast cancer. Originally, the scientific misconduct charge was brought by a
demoralized graduate student, who thought that the data were being manipulated. It took
years, literally, during which the lab carefully reviewed the charges, and found that the
data were indeed being falsified. Both the Department of Energy and the National Cancer
Institute had funded the research. I should add here that while the review was under way,
the lab director received protests on behalf of the researcher, one from a prominent UC
faculty member and another from a program manager in the Department of Energy, who
controls the lab's funding, asking that we not stop funding the work.
After scientific misconduct was found, the lab reported this finding to the federal
Office of Research Integrity, which conducted its own investigation and confirmed the
finding. Both the lab and the ORI disciplined the researcher. The researcher entered into
a "voluntary exclusion agreement" as part of his punishment, in which he neither
admitted nor denied misconduct, but agreed not to seek government funds for a three-year
period. This fact was released publicly and attracted press attention, particularly when
the researcher himself began giving interviews on the subject because, of course, he felt
vindicated. He didn't have to admit or deny to the change of misconduct; he just had to
give up funding for three years.
After the New York Times reported this story, it wasn't too long before the
drumbeat began about the government getting its money back. William Safire devoted a
column to the subject and erroneously said that a whistle-blower had alerted the Office of
Research Integrity, when, as I mentioned earlier, the lab had initiated its own
investigation and forwarded the result to the ORI. In due course, the National Institutes
of Health told the lab that it wanted its money back. We had to go to our contractor, the
University of California, to cover legal costs, since one government agency can't sue
another. The University's response? "You just ought to pay up." The amount was
somewhere under one million dollars. Fortunately, the NIH dropped its request a few weeks
later.
Clearly multiple conflicts of interest were present here. The researcher has rights. We
had to do our scientific misconduct investigation very, very carefully. The DOE and the
NIH funded the research. The press and the public want to know about research related to
power lines and breast cancer, and members of Congress, along with the Secretary of
Energy, want to know what's going on, too. The IG investigation affirmed everything that
Berkeley Lab had done, and even criticized its own agency's lack of policies on scientific
misconduct. Of course, what makes news is the fact that an investigation has been
launched, not the later findings that confirm everything you have done.
A chilling recommendation from our point of view, however, was that all current
management contracts, such as those between the Department of Energy and the University of
California for Berkeley, Los Alamos, and Livermore, require the DOE to recover research
funds when scientific misconduct is found. Think about the incentive here for proceeding
with a lengthy inquiry into such charges. In short, the laboratory was rebuked--by the
public, the press, the DOE, the NIH, and even the University of California I am
embarrassed to say--certainly not praised, for persevering in this very complex case.
In all three cases, individuals flouted authority and got away with it. The primary
recourse we have is to tighten the rules and the policies. In each of these, the director
intended that our laboratory would find the truth and do the right thing, no matter what
the pressures were against this. He believes that stronger punishment should have been
given in all three cases.
The perception of the researcher, in these cases, was that he was entitled to use
federal funds as he wished, and to profit personally or to enhance his program and
reputation if he could. We have employment protections that can make it hard to establish
right and wrong, which leads to the sense, in the view of people who are not ethical, that
"it's ethical if you can get away with it." One certainly does not want to
abrogate federally-funded individuals' rights, but these outcomes are not right
either, and at Berkeley Lab, we're continuing to struggle with such issues. I look forward
to the discussion to see how others might suggest that we handle them.
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