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Handbook of Operating Procedures
Chapter 10 - Research
Publication Date: August 15, 2011
Responsible Executive: VP for Research


10.02 Misconduct in Research or in Other Scholarly Activities


POLICY STATEMENT


All persons who are engaged in or support research or scholarship at The University of Texas at San Antonio (UTSA) or on behalf of UTSA have an affirmative duty to ensure the integrity of such research or scholarship and act in Good Faith in all matters associated with it. They are encouraged to report (a) Allegations of research or scholarly Misconduct (which is more specifically defined herein as “Misconduct” and includes fabrication, falsification, or plagiarism) and (b) instances of retaliation against those who, in Good Faith, report such Allegations or cooperate with or participate in such investigative processes or related proceedings. Finally, they also have a primary responsibility for (a) responding to any such Allegations, and (b) cooperating with any investigative processes or other proceedings relating to the Allegations, including, without limitation, testifying in any Misconduct proceeding.


RATIONALE


UTSA is committed to promoting a research and scholarly community whose members faithfully adhere to high ethical standards of honesty and integrity. The university seeks to do this without inhibiting the productivity and creativity of the academic community.

Misconduct is contrary to the interests of science, the State and Federal Government, the health and safety of the public, and is a significant violation of policy at UTSA. Misconduct not only damages the reputation of the scientist or scholar but also the reputation of the entire research and scholarly community. Therefore, it is the responsibility of every member of the academic community at UTSA to avoid such Misconduct and to assure integrity in the collection of data, storage of records, reporting of research or scholarship results, and proper assignment of credit in publication. In particular, faculty engaged in scholarly activities, which are not subject to the record retention requirements found in the UTSA Handbook of Operating Procedures (HOP) policy 10.09, are encouraged to retain documents and materials that reflect the source of or otherwise relate to the creation of their scholarly works.    

Anyone determined to have violated this policy may be disciplined and subject to all appropriate sanctions, including, without limitation, one or more of the following: retraction or correction of publications, formal reprimand, mandatory training, termination of employment, or dismissal from their academic program.


SCOPE


This policy applies to Allegations that relate to alleged research or scholarly Misconduct and that also meet all three of the following criteria:

  1. The alleged Misconduct involves a person who met the definition of a Covered Person at the time of the alleged Misconduct.
    AND

  2. The alledged Misconduct is either associated with research as described in (a) below or associated with scholarship as described in (b) below.
    1. Research Misconduct relates to the following:
      1. The applications or proposals (whether actually funded or not) concerning research, research training, activities related to the research or training, or activities related to other sponsored programs so long as such research, training or activities were conducted at UTSA or on behalf of UTSA; or
      2. the performance of or the review of such research, training or activities; or
      3. the reporting of results associated with such research, training, or activities.

        [For example and by way of illustration only, here are some situations that could constitute research Misconduct:  a researcher provides false credentials in a grant proposal, and a researcher inaccurately lists the salary of an employee in the grant budget.]

    2. Scholarly Misconduct relates to the creation or use of scholarly works, including, but not limited to, journal articles, books, musical compositions, architectural renderings, and other copyrightable expression.
      AND
  3. Because of the inherent unfairness and the difficulties presented by any attempt to assess stale evidence, the alleged Misconduct must be based on events that occurred:
    1. within six years of the date when the Allegation was reported to UTSA; or
    2. six or more years before the Allegation was reported to UTSA only if:
      1. the alleged wrongdoer has cited, republished, or otherwise used the allegedly tainted scholarly work or research record for his or her potential benefit, or
      2. UTSA or the Sponsor determines that the alleged Misconduct, if proven to have actually occurred, would possibly have a substantial adverse effect on the health or safety of the public.

This HOP policy is based on the Public Health Service (PHS) policies on research Misconduct found at 42 CFR Part 93 and so it has been specifically designed to govern research Misconduct associated with PHS research, research training and activities relating to such research and training. Other federal agencies, such as the Department of Agriculture and the National Science Foundation, also have regulations that govern the handling of Misconduct associated with research proposals submitted to and research, training and activities funded by such agencies. Nevertheless, this HOP policy will apply to all research, training and activities (including, but not limited to, activities associated with sponsored programs) that are funded by such other federal agencies or other sponsors to the extent that these HOP policy provisions can be harmonized with any research Misconduct policies or processes mandated by such agencies or sponsors. If section(s) in this HOP policy or its associated procedures conflict with such agency’s or sponsor’s mandatory research Misconduct policies or procedures, then the agency’s or sponsor’s policy or procedure will apply.


This HOP policy does not apply to Misconduct allegedly committed by a student unless such Misconduct is related to research and covered by section 2 (a), immediately above. [Note:  UTSA HOP policy 2.37, Scholastic Dishonesty, governs students charged with scholastic misconduct.] Additionally, some actions associated with research may not constitute Misconduct, but may violate other UTSA policies, including, but not limited to, misuse of university funds, facilities and resources, misuse of human subjects, breach of confidentiality, conflicts of interest, conflicts of commitment, misuse of animals, etc. If a researcher violates other UTSA policies and then falsely claims compliance in research records or proposals, then the researcher may be charged with Misconduct and be subject to processes and sanctions associated with the underlying violation. [For example, and by way of illustration only, if a researcher conducts human subject research and falsely states in a grant proposal or other research record that the research protocol has been approved by the Institutional Review Board (IRB), then this researcher may be sanctioned for failure to obtain IRB approval and the misrepresentation in the record should be treated as an Allegation of research Misconduct.]  


WEBSITE ADDRESS FOR THIS POLICY


http://www.utsa.edu/hop/chapter10/10-2.html


RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS


UTSA or UT System Policies or the Board of Regents Rules & Regulations

  • UTSA HOP policy 2.27, UTSA Intellectual Property
  • UTSA HOP policy 9.32, Sponsored Programs Administration
  • UTSA HOP policy 10.04, Guidelines for Research Centers and Institutes
  • UTSA HOP policy 10.09, Research and Other Sponsored Projects Data or Record Ownership and Retention
  • UTSA HOP policy 2.42, Research Space Utilization
  • The University of Texas System (UT System) Board of Regents' Rules and Regulations Series 30103

Other Policies & Standards


CONTACTS


If you have any questions about HOP policy 10.02, Misconduct in Research or in Other Scholarly Activities, contact the following office:

Office of Research Integrity (ORI)
210-458-6587


DEFINITIONS


Key Players in Misconduct Proceedings

Complainant: A person who makes an Allegation of Misconduct.

Covered Person: Any person employed by, paid by, under the control of, subject to the rules and policies of, or affiliated with UTSA, including but not limited to faculty, scientists, trainees, fellows, technicians, support staff, guest researchers, subawardees or other collaborators at UTSA, and students who are charged with research Misconduct.

Deciding Official: The Vice President for Research (VPR) is the deciding official who makes final determinations on Allegations of research Misconduct and responsive institutional actions, except for those related to disciplinary action against a Covered Person. The Provost and Vice President for Academic Affairs (Provost) or at his designation, the Executive Vice Provost, is the deciding official who makes final determinations on (a) Allegations of scholarly Misconduct,(b) any responsive institutional actions relating to scholarly Misconduct and (c) disciplinary action taken against a Covered Person in response to any Misconduct Proceeding. 

Respondent: The person against whom an Allegation of Misconduct is directed or the person who is the subject of a Misconduct proceeding. There can be more than one respondent in any inquiry or investigation.

Research Integrity Officer (RIO): The assistant vice president for research integrity (AVP-RI) is the Research Integrity Officer who is responsible for administering this policy and overseeing all Misconduct Proceedings.

Sponsor: The governmental or non-governmental entity funding the research or other scholarly activity that is the subject of a Misconduct Proceeding or the governmental entity that has oversight responsibility for the alleged Misconduct. For Misconduct covered by the PHS Regulation, the Sponsor is the Office of Research Integrity (ORI) of the U.S. Department of Health and Human Services.

Key Terms/Concepts in Misconduct Proceedings

Allegation: Any written of oral statement or report of suspected Misconduct.

Conflict of Interest: The real or apparent interference of one person’s interests with the interests of another person, where potential bias may occur due to financial interests, or prior or existing personal or professional relationships.

Evidence: Any document, tangible item, or testimony offered or obtained during a Misconduct Proceeding that tends to prove or disprove the existence of an alleged fact.

Good Faith: As applied to a Complainant or witness, Good Faith means that the Complainant or witness believes that the Allegation made or the testimony given is true based on the facts, as that individual understands them at the time. An Allegation is not made in Good Faith if it is made with reckless disregard for or willful ignorance of facts that could disprove the Allegations. As applied to a committee member or others involved in a Misconduct Proceeding, Good Faith means carrying out duties associated with the Misconduct Proceeding impartially.

Inquiry: Preliminary information-gathering and fact-finding to determine whether an Allegation or apparent instance of Misconduct warrants an Investigation.

Investigation: The formal development of a factual record and examination and evaluation of all relevant facts to determine if Misconduct has occurred and, if so, to determine the responsible person and the seriousness of the Misconduct.

Misconduct: Fabrication, falsification, or plagiarism, as are further described below. (See also item 2 in the Scope Section, which subdivides Misconduct between research and scholarly Misconduct.)
Misconduct does not include honest error or differences of opinion, including, but not limited to, Good Faith differences in interpretations or judgments of data and Good Faith differences in personal, political, moral, ethical, or professional opinions. To constitute Misconduct, the behavior must (1) represent a significant departure from accepted practices of the relevant research community, and, (2) be committed intentionally, knowingly, or with reckless disregard for the integrity of the research; and (3) be proven by a preponderance of Evidence to have occurred.

  • Fabrication
    Making up data or results and recording or reporting them.
  • Falsification
    Manipulating research or scholarly materials, equipment, or processes, or changing or omitting data or results such that the research or scholarship is not accurately represented in the research or scholarly record.
  • Plagiarism
    The appropriation of another person’s ideas, processes, results, or words without giving appropriate credit; provided however, that plagiarism will not include disputes between co-authors or collaborators regarding who should properly receive credit unless one of the co-authors or collaborators is a UTSA student.

Misconduct Proceeding: All actions related to the handling of alleged Misconduct, including, but not limited to, Allegation assessments, inquiries, investigations, and applicable external oversight reviews and processes (for example, ORI oversight applies to research Misconduct Allegations covered by the PHS Regulation).

PHS Regulation: The Public Health Service regulation set forth at 42 Code of Federal Regulations (CFR), Part 93 that establishes standards for institutional inquiries and investigations into particular Allegations of research Misconduct.

Record: Any data, document, computer file, computer diskette, 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 research or scholarship that constitutes the subject of an Allegation of Misconduct. For an Allegation of research-related Misconduct, the record may include, but is not limited to, grant or contract applications, whether funded of unfunded; grant or contract progress and other reports; laboratory notebooks; notes; correspondence; videos; photographs; X-ray film; slides; biological materials; computer files and printouts; manuscripts and publications; equipment use logs; laboratory procurement records; animal facility records; human and animal subject protocols; consent forms; medical charts; and subject research files.

Retaliation: Any action that adversely affects the employment or other status of an individual that is taken by an institution or an employee because the individual has, in Good Faith, made an Allegation of Misconduct or of inadequate institutional response thereto, or has cooperated in Good Faith with a Misconduct proceeding. 


RESPONSIBILITIES


Also see Appendix for responsibilities at each phase of a Misconduct Proceeding.

Complainant

  • Makes an Allegation of Misconduct.
  • Cooperates fully in all requests associated with Misconduct Proceedings as described in this policy.

Deciding Official – Vice President for Research         

  • Makes final determinations on Allegations of research Misconduct and any responsive institutional actions, except for disciplinary action taken against a Covered Person for research Misconduct. 

Deciding Official – Provost and Vice President for Academic Affairs

  • Makes final determinations on disciplinary action taken against a Covered Person for scholarly or research Misconduct and on allegations of scholarly Misconduct and any responsive institutional actions associated with scholarly Misconduct.   

Covered Person

  • Should report, via written or oral mechanisms, Allegations of research and other scholarly Misconduct promptly to the RIO.
  • Cooperates fully in all requests associated with Misconduct Proceedings as described in this policy.

Inquiry Committee

  • Gathers necessary information during an Inquiry and prepares report(s) to the RIO.
  • Provides recommendation to proceed with an Investigation or close the Misconduct Proceedings.

Investigation Committee

  • Responds to Allegations of Misconduct and cooperates in Misconduct Proceedings. There can be more than one respondent in any inquiry or investigation.

Research Integrity Officer (RIO) - The Assistant Vice President for Research Integrity (AVP-RI)

  • Administers this policy.
  • In consultation with Institutional officials (including, but not limited to, legal counsel for UTSA) as appropriate, oversees all Misconduct Proceedings.

Sponsor

  • Funds the research or other scholarly activity that is the subject of a Misconduct Proceeding or is the governmental entity that has oversight responsibility for the alleged Misconduct. For Misconduct covered by the PHS Regulation, the Sponsor is the Office of Research Integrity (ORI) of the U.S. Department of Health and Human Services (HHS).

PROCEDURES


The Appendix to this HOP policy 10.02 consists of a detailed table (a) that is subdivided into each of the potential phases or stages in a Misconduct Proceeding and (b) that briefly describes the key actions, deadlines, decisions and some of the roles, rights and responsibilities of key players in each such stage or phase. This Appendix is an integral part of this policy.  This “Procedures” section primarily contains overarching principles and key duties of UTSA staff that will apply to every phase or stage of a Misconduct Proceeding.

Reporting Misconduct and Retaliation
Acting in Good Faith, all Covered Persons are encouraged to report observed, suspected, or apparent Misconduct in research or other scholarly activities to the RIO. If an individual is unsure whether a suspected incident falls within the definition of research or scholarly Misconduct, he or she may meet with or contact the RIO. Acting in Good Faith, all Covered Persons or other individuals associated with the university will also report observed, suspected, or apparent Retaliation associated with the making of an Allegation or the participation in a Misconduct Proceeding to the RIO.

  • If the UTSA Fraud and Abuse Hotline, any UTSA administrative official, or any other Covered Person who acts in a supervisory capacity receives such a report, he or she must promptly contact the RIO.
  • If an Allegation is identified in the course of another university process, such as an audit, it should immediately be reported to the RIO who will promptly initiate a Misconduct Proceeding regardless of the conduct or outcome of the other process.
  • Reports of alleged Misconduct may be made on an informal (oral) basis. Reasonable efforts will be made to review and resolve informal reports of alleged Misconduct; however, such reports will not be processed through the procedures set out in this policy unless they are subsequently submitted in writing or confirmed separately through available Evidence.
  • Reports of alleged Misconduct may also be made on a formal (written) basis. Formal Allegations should be submitted in sufficient detail to permit a preliminary inquiry into whether an investigation is warranted.
  • Allegations found to have not been made in Good Faith may subject a Complainant to disciplinary action as deemed appropriate by the Deciding Official. Any Complainant who knowingly and intentionally files a false Allegation, provides false information, or makes false statements in the course of a Misconduct Proceeding may be subject to disciplinary action up to and including dismissal from the university.

Protecting Persons Associated with a Misconduct Proceeding

  1. Confidentiality: To the extent possible, all Covered Persons participating in any way in a Misconduct Proceeding should limit disclosure of the identity of Respondents and Complainants to those who need to know, provided that this limit is consistent with a thorough, competent, objective, and fair Misconduct Proceeding and with the law. Except as may otherwise be prescribed by applicable law or UTSA policy, or as may be necessary to conduct a Misconduct Proceeding, confidentiality must also be maintained (e.g., through the use of redaction) for any records or Evidence from which research subjects may be identified. The RIO will inform a Respondent’s Dean and/or Chair of the filing of an Allegation when necessary to aid in the prompt sequestration of potential evidence relevant to the Misconduct Proceeding or to help select faculty members with the appropriate academic or scientific expertise to serve on the misconduct committees.
  2. Protect Reputations and Prevent Retaliation: All actions undertaken pursuant to this policy will be conducted with due regard for the reputations and rights of all persons involved. UTSA, acting primarily through the RIO, will take all reasonable and practical steps to protect the positions and reputations of Good Faith Complainants, witnesses and committee members and protect them from Retaliation by a Respondent or others. 
  3. Restore Reputation: If requested, UTSA will make reasonable efforts to restore the position and reputation of an exonerated Respondent (including, but not limited to, making diligent efforts to make known the outcome of the Misconduct Proceeding to appropriate individuals and organizations identified in consultation with the Respondent).

Handling Allegations in a Competent, Fair, Objective and Timely Manner

  1. Timelines: All actions associated with Misconduct Proceedings will proceed promptly and, unless an extension is granted, within the time periods prescribed by PHS Regulation or established in this policy. All such time periods are noted in Appendix A. Given that many UTSA faculty members have only nine-month appointments, extensions may be needed, especially for Allegations made in the late spring.   
  2. Objectivity and Fairness: All individuals responsible for carrying out any part of the Misconduct Proceeding will act in Good Faith. Precautions will be taken to ensure that they do not have any Conflicts of Interest with the Complainant, the Respondent, or witnesses.
  3. Composition of the Inquiry and Investigation Committees:
    • The Inquiry Committee will consist of one or more individuals, each of whom shall have the scientific or scholarly expertise or experience needed to understand the nature and subject matter of the Allegation.
    • A majority of the members of each Inquiry Committee will be chosen from a panel of tenured UTSA faculty designated by the Faculty Senate. The panel will consist of two designated faculty members from each college. The designated faculty members shall serve on such panel for a period of at least one year, shall be required to take relevant Federal Office of Research Integrity training, and shall be available to serve on an Inquiry Committee year round. Faculty members who have either admitted to committing research or scholarly Misconduct or who have been found to have committed such Misconduct may not serve on such panel.
    • The Investigation Committee will consist of at least three individuals with the scientific or scholarly expertise or experience needed to understand the nature and subject matter of the Allegation. Members of the Inquiry Committee may also serve on the Investigation Committee.
    • As reflected in Appendix A, Respondents will be given five (5) business days to raise objections to the members of the Inquiry Committee and Investigation Committee based on alleged Conflict(s) of Interest.     
  4. Notice to Respondent and Respondent’s Rights to Counsel and to Provide Comments: As required by PHS Regulation or as described in the table found in Appendix A of this policy, Respondents shall be given written notice of key actions and determinations associated with his/her Misconduct Proceeding and opportunities to provide comments relating to such actions and determinations. Respondents may retain and consult with legal counsel to seek advice relating to any aspect of the Misconduct Proceeding. Such legal counsel may also accompany Respondents to interviews or meetings associated with the Investigation Phase of the Misconduct Proceeding; however, legal counsel retained by Respondents may not represent or speak for Respondent at such an interview or meeting. If legal counsel accompanies Respondents to such an interview or meeting, UTSA legal counsel must also be present. Therefore, Respondents must notify the RIO in writing at least two (2) business days prior to such interview or meeting if Respondent’s legal counsel will be present at such interview or meeting in order to guarantee the presence of UTSA counsel.

Securing and Preserving Evidence and the Record

  1. Taking Custody of Evidence and Records. With the cooperation of Covered Persons as needed and throughout a Misconduct Proceeding, the RIO will take reasonable, practical, and prompt steps to obtain custody of, inventory, and securely sequester all Records and Evidence required to conduct any phase of the Misconduct Proceeding. If this includes data on instruments shared among a number of users, copies of that data may be secured instead, provided that those copies are substantially equivalent to the evidentiary value of the instruments.
  2. Handling Interviews. All persons who have been reasonably identified as having relevant information, including Respondent(s) and Complainant(s), should be interviewed sometime during the course of a Misconduct Proceeding. Such interviews should be recorded and transcribed. Each person interviewed should be provided with a copy of their transcribed interview and be given at least five (5) business days make corrections to the transcript.   

Taking Intermediary and Interim Actions throughout a Misconduct Proceeding

  1. Reporting and Responding to Sponsors: As required by PHS Regulation or a Sponsor’s regulations or contract terms, the RIO shall provide the Sponsor, as applicable, written notice of key actions and determinations associated with a Misconduct Proceeding.  Without limiting the foregoing, the RIO shall immediately notify the ORI if the Misconduct is covered by PHS Regulation and if one of the following also apply:
    • there is an immediate need to protect federal funds or equipment;
    • there is an immediate health hazard involved;
    • there is an immediate need to protect the interests of the Complainant(s) or of the Respondent(s) who is the subject of the Allegations, as well as his/her co-investigators and associates, if any;
    • it is probable that the alleged incident is going to be reported publicly;
    • the Allegation involves a public health sensitive issue; or
    • there is reasonable indication of a possible federal criminal violation. In this instance, the RIO must inform ORI within 24 hours of obtaining that information.
  2. Referring other Violations: When warranted by the Evidence, the RIO should refer any other possible violations or law, Regent’s Rules, UT System policy or UTSA policy identified during the Misconduct Proceeding to the appropriate UTSA official for appropriate action.
  3. Taking Interim Action: The RIO will ensure that interim administrative actions are taken by UTSA, as appropriate, to protect federal or state funds or resources, to protect public health, and to see that the objectives or purposes of the Sponsor’s research can be carried out if practicable.

Supplementing HOP policy 10.02
If necessary to aid in the construction or implementation of this HOP policy 10.02, the RIO may apply principles or guidelines found in the following resources so long as the Respondent, Complainant and others involved in the Misconduct Proceeding are given reasonable, advance written notification of the application of such principles or guidelines.

  • Public Health Service Policy on Scientific Misconduct
  • Office of Research Integrity, Handling Misconduct
  • Office of Research Integrity, ORI Model Policy and Procedures for Responding to Allegations of Scientific Misconduct
  • On Being a Scientist: A Guide to Responsible Conduct in Research, National Academy of Sciences, National Academy of Engineering, and Institute of Medicine, Third Edition, 2009.

APPENDIX


Misconduct in Research or in Other Scholarly Activities Appendix

 

Editorial Amendment: September 26, 2013