Protecting Whistleblowers--Tell ORI What You Think!

A postdoc working at the bench across from you publishes data that are "too perfect," and his reported sample size of mice does not match up with the number of animals you know he used. Feeling it is your duty as a graduate student and as a scientist to find out what happened, you first ask him what's going on. When he doesn't give you a rational response, you go through the proper channels at your university to report the incident. But now that a misconduct investigation is in full swing, your adviser won't speak to you anymore and your thesis committee "suddenly realizes" that you don't have enough data to graduate! What's going on? And, more importantly, what can you do about it?

Unfortunately, blowing the whistle on scientific misconduct can often have negative consequences for the informant. According to an Office of Research Integrity (ORI)-commissioned report written by the Research Triangle Institute, 69% of whistleblowers who participated in a survey experienced "negative outcomes," including pressure to drop the allegation, ostracism by colleagues, and being fired. And these retaliatory measures, says the report, most often occur during the active phase of a misconduct investigation.

This is why the ORI has proposed new regulations that not only lay down specific guidelines for handling retaliation complaints, but also aim to prevent retaliation from occurring in the first place. The draft rules, which are intended to supercede current regulations, cover those institutions that receive funds from the Public Health Service, including the National Institutes of Health, the Centers for Disease Control and Prevention, and the Food and Drug Administration. Says ORI director Chris Pascal, the regulations "establish the rules beforehand, are mandatory, and provide significantly more detail." Public comment will be accepted by e-mail or regular postal mail through 29 January 2001 (see regulations). The final policy will take effect after all comments have been considered, possibly several months after the comment deadline, says Pascal.

How can an institution safeguard the rights of whistleblowers and prevent retaliation? The proposed rules start by requiring that "a covered institution must establish written procedures that ... ensure to a reasonable extent that its institutional members do not retaliate against whistleblowers." Also, "each covered institution must provide written information informing all of its members about the ... institution's procedures to implement its requirements and must emphasize the importance of compliance with those procedures."

If writing down the procedures and informing staff and students of their existence does not work and a whistleblower complains of retaliation, the ORI rules state that the first step toward resolving the complaint should be negotiation between the whistleblower and the institution. If this fails, then the institution is obliged to hold an administrative proceeding. "Conflict of interest!" claims Stephen Kohn, chairman of the board of directors of the National Whistleblower Center. Instead of holding an institutionally run proceeding, argues Kohn, ORI "should be required to inform [whistleblowers] of ... the False Claims Act [which] is an extremely powerful whistleblower protection law." Under the False Claims Act, scientific misconduct by a federally funded scientist may be considered misuse of government funds. Pascal acknowledges that with "the way the regulations are set up, the institution would determine the type of hearing up front." However, whistleblowers can indeed pursue protection under the False Claims Act and, as stated in the draft recommendations, the whistleblower is free to choose "any other available remedy provided by law, including remedies under any applicable Federal or State law."

What happens if a claim of retaliation against a whistleblower is upheld? If a whistleblower demonstrates retaliation has occurred "by a preponderance of the evidence," then the ORI recommendations allow for an institutionally appointed "objective decision-maker" to impose a number of different remedies. These remedies might include a new or comparable position (if the whistleblower had been fired), a published exoneration, and/or financial compensation. The decision-maker may also require that the institution keep tabs on the retaliator to guard against future attacks on the whistleblower. Putting some teeth into the regulations, if ORI decides that an institution has retaliated against a whistleblower, or if an institution fails to comply with the regulations, the institution may have to pay back Public Health Service funds and may become ineligible to receive such monies in the future.

But who really pays the price for the retaliation? As Tom Devine, legal director for the Government Accountability Project points out, the regulations do not list disciplinary action against the individual who retaliated (aside from monitoring by the institution) as one of the suggested remedies. The rules do suggest, however, that it may sometimes be necessary to remove the whistleblower from his or her work environment for their own protection. But how can a researcher--graduate student, postdoc, or junior faculty member--simply pick up and relocate? ? Devine says that "depending on the whistleblower's job, that remedy may either be invaluable or superfluous." In fact, at its worst, removal from one's research lab may actually constitute "a renewed act of reprisal," he says. According to Pascal, though, this step must be taken in some cases where retaliation, especially from a superior, is taking place. The whistleblower can be placed in a lab at the institution that is already conducting similar research or they may even be moved to another institution. Pascal notes that this has actually happened in one case, but the offer was declined by the whistleblower.

Now, back to those suspiciously perfect data, too few mice, a committee that's changed its mind since you blew the whistle, and what you should do about this apparent retaliation. What you should do, says ORI's Pascal, is get your accusation filed as soon as possible. "Our experience in individual cases is that you need to resolve these retaliation cases quickly," and there's a 180-day filing deadline. As to where to go at your institution to report your concerns, Pascal notes that although the regulations do not dictate who this person should be, the typical official to contact at a university would be the research integrity officer or the vice president for research.

So, you immediately submit a written complaint to your university's vice president for research. She calls you in for an appointment and explains the institution's procedures--the initial negotiation and the administrative proceedings that will follow if negotiations fail. You agree to press ahead with the accusation, and then. ...

... Well, what happens next depends on a few things. How do the accused retaliators respond to the allegation? And are you and the individuals responsible for the institution's administrative proceedings comfortable with the outcome? Either way, don't be discouraged--you did the right thing by bringing your concerns forward in the first place. The draft regulation has been proposed to give you a chance to speak out and defend yourself against retaliation. Are these rules fair? Tell ORI what you think!

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