1. Definition of Misconduct
   "Misconduct means (1) fabrication, falsification, plagiarism, or other serious deviation from accepted practices in proposing, carrying out, or reporting results from research; (2) material failure to comply with Federal requirements for protection of researchers, human subjects, or the public or for ensuring the welfare of laboratory animals; or (3) failure to meet other material legal requirements governing research" (NSF Guidelines, Federal Register, Vol. 52, No. 128, July, 1987). At the University of Hawai’i, "accepted practices" mean those practices and standards defined by the major professional societies of the disciplines within which the research falls.
2. Applicability
   The purview of the Review Panels (see Section C,1) shall be confined to allegations of unethical conduct in scholarship and research where such alleged misconduct is violative of explicitly ethical standards governing the conduct of academic research and scholarship. In determining whether such misconduct has taken place, the Review Panel shall limit its investigation to the following:
   1. Conduct that violates ethical standards articulated in research-related regulation promulgated by federal, state, local, or university agencies, including guidelines for:
      • Protection of human subjects
      • Protection of animal subjects
      • Use of recombinant DNA
      • Use of radioactive material
      • Use of hazardous chemicals or biologicals
      • Conduct of classified research
   2. Conduct that violates research and scholarship-related ethical standards as expressed in relevant codes of conduct promulgated by professional associations and learned societies within the various disciplines.
   3. Conduct that falls under the following descriptions:
      1. Falsification of Data: dishonesty in reporting results, ranging from sheer fabrication of data and improper adjustment of results to selective reporting or omission of conflicting data for deceptive purposes.
      2. Plagiarism: taking credit for someone else's work and ideas, stealing others' results or methods, copying the writing of others without acknowledgment, or otherwise taking credit falsely.
      3. Abuse of Confidentiality: taking or appropriating confidential or private information without proper authority or releasing or disclosing to others, without proper authority, ideas, data, or other information given in the expectation of confidentiality.
      4. Property Violation: stealing, maliciously destroying, or altering without proper authority the research-related papers, data, supplies, equipment, or other products of research or scholarship.
      5. Improper Assignment of Authorship: listing as an author any person who a) did not contribute significantly to the published research, b) does not stand behind the research results or c) has not carefully examined the manuscript, or allowing oneself to be so listed.
      6. Misappropriation of Funds: using research or scholarship-related funds for purposes that are in clear and substantial violation of the terms of a grant or readily available regulations and policies.
      This policy and these procedures apply to all faculty, researchers, and other staff members, including without limitation graduate student research assistants, graduate student teaching assistants, undergraduate students employed in research or other scholarly activity, postdoctoral fellows and postdoctoral research associates, visiting faculty or staff, faculty or staff on sabbatical leave, adjunct faculty when performing University work and faculty or staff on leave without pay. However, these procedures apply to students only when they are acting in their employment or service capacity, not as students per se.
      
      If the accused is no longer employed by the University, these procedures may nevertheless be used, at the discretion of the appropriate dean or director and upon the advice of legal counsel of the University, as a means of ascertaining the culpability of the accused.
      
      Furthermore, the procedures below apply to members of Bargaining Unit 07 and recognize the competing needs to protect the rights of those who are accused of misconduct and to protect those bringing forward information suggesting possible misconduct. Allegations of unethical conduct are serious charges that can ruin professional careers. These procedures provide mechanisms to screen unfounded complaints while minimizing damage to the innocent accused. Once a formal charge is rendered, the procedures further provide due process rights, to assure that the final recommendations of the committee rest on evidence fully and fairly assessed. Where it is necessary to weigh the concerns of the accused against the interests of the others, including witnesses, this procedure errs on the side of providing maximum due process to the accused. The accused has the most to lose in the case of unfounded charges. Thus, while the first stage remains confidential, the right of notice applies at the second stage, and the right to a public hearing applies at the third stage. It is particularly important in cases of politically-motived and other improper charges that the accused have the right of public confrontation and cross-examination of witnesses. While negative publicity may harm the university, there is a greater potential harm that false charges and the sanctions that flow from them will escape proper scrutiny. Thus the accused may -- but need not -- demand an open hearing.
      
      In addition to protection for the accused, the procedures take into account the plight of those who suspect misconduct. Given the power relationships in any university and the well-understood history of retaliation against whistle blowers, these procedures work to encourage the reporting of misconduct by limiting the burdens and risks on those who bring forward information. The committee itself -- not the informant -- bears the burden of going forward with the investigation and charge. To the greatest extent possible, the statement initiating the procedures remains confidential in the initial stages. In cases where the committee decides investigation is not warranted, the accuser retains a record of efforts to call attention to misconduct, should it later develop that unethical violations were indeed occurring. The accuser is thus spared later charges of complicity or cover-up. Furthermore, in cases where the accuser is uncertain whether violations are taking place, the initial stage provides the opportunity for confidential consultation with peers.
3. Administrative Procedures
   It is essential that all aspects of handling allegations of misconduct or fraud in research or scholarly activity, and subsequent inquiries and investigations, if any, be conducted in strict confidentiality. Breaches of confidentiality, including even inadvertent indiscretions, will be regarded with the utmost seriousness by the University.
   1. Ethics Committee.
      An Ethics Committee shall be established to serve the university in evaluating alleged violations of ethical standards. The Ethics Committee shall have 12 members: a Chairperson, and 11 other members. A sub-group of five members of the Ethics Committee -- referred to as a Review Panel in this document -- conducts procedures during Stages One and Two following the receipt of any statement suggesting possible misconduct. Members of the Review Panel are required to attend all sessions: only those who have attended all sessions can participate in formal decisions at Stages One and Two. The Senior Vice President for Research and Dean of the Graduate Division shall appoint: (1) the Chairperson of the Ethics Committee from a reasonable number of faculty nominated by faculty senates, and (2) eleven other Committee members from a reasonable number nominated by faculty senates. Nominees may include faculty, APT's and civil service personnel from all campuses of the University. Each member shall typically serve for three years. Members shall be appointed on a rotating basis to guarantee continuity. Members may be reappointed for additional three-year terms.
   2. Reporting Possible Misconduct.
      Every member of the University is obligated to respond appropriately to any evidence of potential irregularities as described or indicated herein to the administrator responsible for the actions of the person or persons suspected or accused of misconduct or fraud in research or scholarly activities as defined above. Reports of possible misconduct may be made, either verbally or in writing, to a member of the Ethics Committee rather than to the administrative supervisor of the accused. Such a statement is not a complaint or a charge — charges may only be made by the Review Panel at the conclusion of Stage Two (investigative stage). Faculty making such statements shall have no responsibility to gather evidence or in any other way to substantiate suspicion. Such responsibility under these procedures falls upon members of the Ethics Committee. The function of the Review Panel at this stage is to screen out allegations that are groundless or capricious. All other allegations will be referred to a Stage 1 investigation.
      
      No disciplinary proceeding in which unethical conduct in research or scholarship is alleged shall be commenced except pursuant to the requirements of Stage One (inquiry): Informal inquiry and Stage 2: Formal Investigation as set forth in this Executive Policy.
      
      Persons reporting such well-founded suspicions and providing pertinent information will be accorded full protection against potential retaliation.
   3. Inquiry (Stage One ).
      A member of the Ethics Committee receiving a statement of misconduct covered by the above definitions shall submit a written account of the matter to a Review Panel, consisting of the Committee Member receiving the statement and at least four other members of the Ethics Committee, one of whom shall serve as Panel Chair for all meetings convened to review aspects of the matter reported. The Chairperson of the Ethics Committee is to be informed of the statement received by the member of the Committee who has received the statement unless that chairperson is implicated in the case. The Chairperson and the Committee member receiving the statement will determine the composition of the Review Panels, bearing in mind the paramount need to ensure that members of each review panel have no direct or indirect interest in the subject matter of the case or ties with any of the parties who may be involved. Of equal importance is the requirement that the persons selected to conduct the inquiry (Stage 1) have the necessary expertise to conduct a thorough and well-informed evaluation of the validity of the allegations. It is the Chairperson’s responsibility to ensure that the expertise of the review panel is sufficient for conducting an inquiry. As a further safeguard against conflict of interest and insurance that necessary expertise is made available to evaluate the matter, the membership of the Review Panel will be subject to the approval of the Senior Vice President for Research and Dean of the Graduate Division (SVPRDGD). In addition, it will be the responsibility of the SVPRDGD to inform the relevant Dean(s) or Director(s) that an inquiry has been initiated if those administrators have not been involved in the chain of events leading to the initiation of the inquiry.
      
      In a case where the Chairperson may have a conflict of interest the Committee member receiving a statement will, instead of informing the Chairperson, report to the Senior Vice President for Research and Dean of the Graduate Division who will, with the advice and consent of the President of the Manoa Senate, appoint a faculty member as a Special Chairperson for that case.
      
      If the allegations are initially made to the administrative supervisor of the accused or to any other administrator of the unit (school, college, institute, or center),that administrator will submit the allegations to a member of the Ethics Committee and the process outlined in this section above will begin.
      
      Should the accused be the unit's dean or director, this responsibility will fall on the office of that dean's or director's administrative supervisor. Similarly, should that supervisor be the person accused, responsibilities for inquiry and subsequent action, if deemed necessary, shall belong to that person's administrative supervisor. This entire policy is to be understood as assigning these responsibilities to the UH Faculty Senate Ethics Committee and/or, as appropriate, the University's administrative hierarchy, beginning with the deans and directors, one level at a time, up to and including the Office of the President. In accomplishing an administrative inquiry, at least three senior faculty members or senior administrators shall be selected by the administrative supervisor to comprise an ad hoc committee. They will be individuals who, in the judgement of the administrative supervisor have no conflict of interest and have the necessary expertise to conduct a thorough and well-informed investigation.
      
      The inquiry will consist of gathering information and determining basic facts so as to decide whether an allegation or apparent instance of misconduct warrants an investigation. The following steps will be taken. “University” denotes the University of Hawai#i and “ORI” denotes the Office of Research Integrity of the Public Health Service (PHS) of the U.S. Department of Health and Human Services(HHS). Sentences and phrases in quotes were derived from the PHS Regulation 42 CAR Part 50, Subpart A.
      1. Barring exceptional circumstances, no more than 30 days should elapse between the report of an instance of possible misconduct and the completion of an inquiry. If 60 days elapse before the written report of inquiry is completed then justifications for the delay must be included in the report. As a minimum, the written report is to include a description of the evidence which was examined, an account of the interviews conducted and conclusions of the ad hoc committee or Review Panel.
      2. If a Review Panel of the Ethics Committee has conducted the inquiry then it will make the decision as to whether a formal investigation (Stage Two) is to occur. If an ad hoc committee appointed by an administrator has conducted the inquiry then the ad hoc committee will make the decision as to whether to proceed with a formal investigation. Although such decisions will be made on a case-by-case basis, they will require an assessment of some or all of the following:
         1. The accuracy and reliability of the source of information about the possible misconduct;
         2. The seriousness of the possible misconduct;
         3. The scope of the incident(s) and the context in which it (they ) became known;
         4. Explanations, if any, provided by the subject(s) of the inquiry; and
         5. Other information developed during the inquiry.
      3. The Review Panel or ad hoc committee referenced above shall maintain complete written records of the inquiry and its results. If the complaint is dismissed, the Review Panel or ad hoc committee shall then file a report with the Ethics Committee.
      4. If the Review Panel decides that the case has substance or merits further investigation, these findings will be forwarded in writing to the SVPRDGD and the Chair of the Ethics Committee. In administrative inquiries conducted by an ad hoc committee, the responsible administrator will forward the findings to his supervisor for action.
      5. If at any time during the inquiry or investigation, it appears that any criminal acts might have occurred, the inquiry or investigation will immediately be suspended, the SVPRDGD will be notified, and (s)he will notify the Office of Attorney General of Hawai'i.
      6. Upon completion of an inquiry, "the individual(s) against whom the allegation was made shall be given a copy of the report of inquiry. If they comment on that report, their comments may be made part of the record."
      7. For both inquiries and investigations, in those cases where allegations are not confirmed, every reasonable effort will be made "to restore the reputations of persons alleged to have engaged in misconduct when allegations are not confirmed, and also (undertake) diligent efforts to protect the positions and reputations of those persons who, in good faith, (have made) allegations."
      8. For both inquiries and investigations, if extramural funding from a state or federal agency is involved, the SVPRDGD will notify ORI of HHS, or the comparable office of the agency from which the funding is derived, "if he/she ascertains at any stage of the inquiry or investigation, that any of the following conditions exist:
         1. There is an immediate health hazard involved;
         2. There is an immediate need to protect Federal funds or equipment;
         3. There is an immediate need to protect the interests of the person(s) making the allegations or of the individual(s) who is the subject of the allegations as well as his/her co-investigators and associates, if any;
         4. It is probable that the alleged incident is going to be reported publicly;
         5. There is a reasonable indication of possible criminal violation. In that instance, the institution must inform (ORI if HHS is involved or the comparable office if another agency is involved) within 24 hours of obtaining that information. (ORI or equivalent federal office) will immediately notify the Office of the Inspector General."
      9. For both inquiries and investigations, at any time during an inquiry or investigation, administrative measures may be taken if such are deemed necessary "to protect Federal funds and insure that the purposes of the Federal financial assistance are carried out."
      10. For both inquiries and investigations, if the University "plans to terminate an inquiry or investigation for any reason without completing all relevant requirements in this policy, a report of such planned termination, including a description of the reasons, for such termination, shall be made to (ORI or equivalent office). The University will maintain "sufficiently detailed documentation of inquiries to permit a later assessment of the reasons for determining that an investigation was not warranted, if necessary. Such records shall be maintained in a secure manner for a period of at least three years after the termination of the inquiry, and shall, upon request, be provided to authorized HHS personnel" or comparable personnel if another agency is involved as the source of extramural funding.
   4. Investigation.
      Stage Two (investigation) will be initiated "within 30 days of the completion of the inquiry, if findings from that inquiry provide sufficient basis for conducting an investigation." This stage commences with formal written notification by the chair of the Review Panel of all individuals involved in the matter under review that the Review Panel has determined that there is a reasonable basis to believe that a formal investigation is warranted to determine whether there has been unethical conduct in research or scholarly activity. At a minium, notice shall be conveyed to any individual who might be found after investigation to have engaged in unethical conduct, to the party who reported or suggested the possibility of misconduct to the Ethics Committee, and to the Senior Vice President for Research and Dean of the Graduate Division at UH. This written notification shall, as specifically as possible, indicate the ethical standards that may have been violated and the conduct that may have violated the standards.
      
      Among the factors influencing the procedures for conducting a given investigation are these:
      • the nature of the allegation/ evidence;
      • the source(s) of information;
      • relations with the sponsor, if any, of the activity, and/or other aspects of the grant or contract under which the activity may be supported;
      • the kind and amount of publicity associated with the case;
      • the involvement, existing or potential, of law enforcement agencies. These factors will vary from one instance to the next, and it is therefore to be expected that the details of procedures employed will also vary from one investigation to another.
      When the decision has been made to initiate an investigation, the accused individuals must be notified, in writing, at once, according to the procedures of Section E of Article VIII of the University of Hawai#i Professional Assembly and the Board of Regents of the University of Hawai'i (UHPA-BOR) Agreement. The protection afforded by the procedures of Articles VIII and XVII of the UPHA-BOR Agreement shall be extended to any accused individual. The unit head shall also notify the Chancellor or the appropriate Vice President at the University of Hawai'i-Manoa (UH).
      
      Even if such an instance of ethical misconduct has already been confirmed, an investigation may be conducted to ascertain the extent of the instance's effects and ramifications.
      
      The investigation will be carried out by the five members of the Review Panel. It is understood that the expertise of the Review Panel members was determined to be adequate prior to the inquiry. Likewise, it is understood that there is no conflict of interest on the part of members of the Review Panel. The function of the Review Panel at this stage is broadly prosecutorial. Acting as an investigating magistrate/grand jury, its purpose is to gather and assess evidence pertinent to a possible charge of unethical conduct. In cases where a statement is initially conveyed to the chairperson of the Ethics Committee, the chairperson shall not be a member of the Review Panel.
      1. Should the research or scholarly activity in which the alleged misconduct or fraud is alleged to have occurred be supported by an external sponsor, and should the inquiry into the allegation(s) result in a decision to initiate an investigation, the sponsor of the activity will be so informed by the SVPRDGD. The investigation must be completed, and its results reported to the sponsor, within 90 days of its initiation. In addition, the following third parties may be informed: research subjects or external institutions possibly adversely affected by the misconduct, funding agencies considering supporting research of the person(s) alleged to have engaged in ethical misconduct, and journals to which have been or may have been submitted compromised research results. In particular, where required by Federal Law or regulation, the funding agency shall be notified of the charge and the progress, within time limits specified by the law or regulation. Where not specified by the funding agency, the list of parties to be contacted, the information to be disclosed to the parties and the stage or stages at which such parties are to be contacted will be determined by the SVPRDGD in consultation with the Review Panel.
      2. The Review Panel shall have the authority to require as needed the submission to it of relevant papers, notebooks, records, reports, and other documents or evidence pertinent to its investigation.
         
         The Review Panel shall have the authority to request written statements from individuals who have been involved in any way in the conduct under investigation. Individuals who receive such requests shall have 15 days to reply. Any individual who wishes to prepare such a statement may submit it to the Panel for review and inclusion in the record.
         
         The Review Panel shall have the authority to question and interview any individual who may have information pertinent to its investigation. All materials gathered during Stage Two shall be carefully retained by the Chair of the Review Panel, confidential materials gathered in the course of research under review shall be appropriately protected, interviews shall be recorded with the consent of the interviewees, and the recordings secured.
      3. Stage Two terminates with the Review Panel’s determination whether there is a sufficient evidentiary basis for a formal charge of unethical conduct. If the Review Panel determines that there is no basis, it will prepare a formal report to that effect for distribution to all those it has formally notified. If the Review Panel determines that there is a basis for such a charge, it will present its written findings, all the evidence it has gathered, and its conclusion to the SVPRDGD.
   5. Stage Three: Charge, Hearing and Disposition
      1. Stage Three commences when the SVPRDGD to whom the Review Panel has presented its findings, evidence, and conclusions initiates the procedures set forth in Article XVII of the UHPA-BOR Agreement for Unit 7. The statement required to be filed shall be of sufficient specificity to enable the person to prepare his or her defense to the charges.
         1. The accused person may file an answer to the charge with the President or his/her designee within fifteen (15) days. If the accused person fails to answer within fifteen (15) calendar days, the employer may proceed with the appropriate disciplinary action. Such action shall be final and binding if the accused is not a member of any collective bargaining unit. Such action shall also be final and binding if the accused is a member of BU 07, in accordance with [Section B.3] Article XVII of the UHPA-BOR Agreement. If the accused is a member of BU 08, the action shall be considered a disciplinary action under Article 15 of the Hawai'i Government Employees Association (HGEA) BU 08 Contract. If the accused is a member of BU 03, the action shall be considered a disciplinary action under Article 8 of the HGEA BU 03 Contract.
         2. If the accused files a rebuttal to the charges, then procedures stated in Article XVII.B.3-7 will apply.
            
            If an investigation is conducted pursuant to paragraph XVII.B.3 of the UHPA-BOR Agreement, the committee appointed to conduct the investigation shall provide to the person charged with unethical conduct, in addition to the rights set forth in said paragraph, the right to counsel of her or his choice, the right to cross-examine witnesses, the right to present witnesses, and the right, if requested, to a public hearing except with respect to examination of witnesses who are or have been research subjects in the matter under investigation and who have requested confidentiality.
         3. The following will also hold:
            1. The ORI or equivalent office in an agency other than HHS will be kept "appraised of any developments during the course of the investigation which (discloses) facts that may affect current or potential" governmental funding for the individuals(s) under investigation or that the funding agency "needs to know to ensure appropriate use of funds and otherwise protect the public interest."
            2. "The final report submitted to the (ORI or equivalent office) will describe the policies and procedures under which the investigation was conducted, how and from whom information was obtained relevant to the investigation, the findings, and the basis for the findings, and include the actual text or an accurate summary of the views of any individual(s) found to have engaged in misconduct, as well as a description of any sanctions taken by the (University)."
            3. During and following an investigation, "documentation to substantiate the investigations’s findings" will be prepared and maintained. It is understood that this documentation will be "made available to the Director, (ORI or equivalent office) who will decide whether that Office will either proceed with its own investigation or will act on the (University’s) findings.

CONSISTENCY WITH EXISTING AGREEMENTS

The process for conducting an investigation and for imposing sanctions shall be that described in Article VIII and XVII of the agreement between the University of Hawai'i Professional Assembly and the Board of Regents of the University of Hawai'i; Articles 15 and 16 of the HGEA Bargaining Unit 08 Contract; and Articles 8 and 11 of the Bargaining Unit 03 Contract.