Comment Letter on "Standards
for the Protection of Research Misconduct Whistleblowers"
December 18, 2000
Chris Pascal, J.D.
Director
Office of Research Integrity
5515 Security Lane, Suite 700
Rockville, Maryland 20852
Dear Mr. Pascal:
On behalf of the nation's 125 accredited medical schools,
over 400 teaching hospitals, and 91 academic and scientific
societies, the Association of American Medical Colleges (AAMC)
is pleased to comment on the proposed "Standards for
the Protection of Research Misconduct Whistleblowers,"
as announced in the November 28 Federal Register [65 FR 70830].
Through its various guidelines, most notably the 1992 document
Beyond the "Framework": Institutional Considerations
in Managing Allegations of Misconduct in Research, the AAMC
has repeatedly underscored the importance of creating an environment
in which cases of misconduct can be reported and investigated
without retribution upon the witness. This is a responsibility
incumbent upon institutional leadership as a steward not only
of federal funds, but also of research programs whose integrity
is the cornerstone of academic scholarship and essential to
the public's future well-being.
Overall, the Association finds that this notice places appropriate
responsibility on institutions for creating processes that
permit responsible reporting of wrongdoing in research. It
offers reasonable flexibility relative to the various institutional
mechanisms that may be used, while outlining procedural standards
that ensure fairness for all parties. The ORI is to be commended
for this thoughtful approach. That said, we do offer the following
suggestions to enhance specific aspects of the notice:
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The term "whistleblower" - Although
the term "whistleblower" has become a term of
art that is readily understood and was used in the statute
mandating this rule, its use in administrative and legal
proceedings, as well as in formal notices of this sort,
should be discouraged. It has an unnecessarily colorful
and at times pejorative connotation that can undermine
the status of those who report misconduct responsibly.
In addition, the term "whistleblower" is generally
applied only to the originator of an allegation and not
to those who may corroborate facts or otherwise assist
with an inquiry or investigation, and is thus too narrow
in scope. As noted in our Beyond the Framework document,
more suitable descriptors of those who report or provide
information on suspected misconduct are "complainants"
or "witnesses." These terms are more neutral
and better define the role of such individuals in the
investigative process.
-
Standards of proof - In the discussion of standards
of proof (§ 94.420(e)(1) and (2)), a decisionmaker
reviewing a retaliation allegation can order an institutional
remedy if a preponderance of the evidence supports that
the "good faith whistleblowing was a contributing
factor in the alleged adverse action." This section
goes on to say that such an order should not be made if
the institution proves by clear and convincing evidence
that it would have taken the action at issue even in the
absence of the whistleblower's allegation. The use of
two different standards for the same determination creates
a confusing and procedurally uncertain process. The goal
from the outset should be to make a single determination
whether retaliation occurred by application of the same
burden of proof to both parties, be it "preponderance
of the evidence" or "clear and convincing proof,"
as institutional processes dictate. If, during an evaluation
of the facts, the institution or its member can prove
that the actions in question were taken for reasons unrelated
to the complainant's allegation (e.g., a dismissal on
the basis of poor performance or unprofessional conduct),
then a finding of "no retaliation" should be
made. If a causal link is established, then the decisionmaker
should make a finding of retaliation and order remedies
as appropriate.
-
Second-person voice - Subpart B on "Whistleblower
Retaliation Complaints" is written in the second
person, which is distracting and creates ambiguous references
(since "you" refers to the reader, regardless
of that person's status as a whistleblower). A more customary
format for a regulation would be to specify all requirements
in the third person. Once the rule is finalized, ORI could
prepare some interpretative "Q&A" in the
second person as a means of addressing complainants specifically.
-
Responsible whistleblowing - Although the rule
is focused on protecting complainants from retaliation,
it would be useful to add language concerning the responsibilities
of those who bring forth allegations of wrongdoing. Accusations
of misconduct can have life-long repercussions for the
accused, even when an investigation comes to a finding
of "no misconduct." The mere history of such
an accusation can irreparably taint an investigator's
reputation, so complainants must be extremely judicious
in making such claims, and do so only when they are reasonably
certain of the facts. The ORI "Whistleblowers Bill
of Rights," for example, states that "Whistleblowers
have a responsibility to participate honorably in [misconduct]
procedures by respecting the serious consequences for
those they accuse of misconduct, and by using the same
standards to correct their own errors that they apply
to others." Similar language could be added to this
rule, particularly to subpart B.
In summary, the AAMC agrees with the general outlines of
the proposed rule and in particular agrees with the intent
to provide flexibility within the parameters of specific rules
of "fairness." That said, some of the language used
in the rule could be improved to enhance clarity and accord
complainants and witnesses a proper degree of respect. The
Association appreciates this opportunity to comment and invites
you to contact us directly if we can be of further service.
Sincerely,
Jordan J. Cohen, M.D.
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