Moral and Economic Incentives of Investigating
& Reporting Allegations of Research Misconduct

Dismissal of research misconduct charges in several high profile cases has resulted in renewed efforts by the federal government to develop uniform policies for all agencies regarding the reporting and investigating allegations of research misconduct. Almost every aspect of this issue is the subject of controversy, including the definition of misconduct, how it should be investigated and who should conduct the investigations. Here we consider how economic incentives impact research misconduct investigations and whether universities are disinterested parties in these investigations.

MORAL AND ECONOMIC INCENTIVES OF DISHONEST RESEARCHERS

The common wisdom is that most researchers who engage in misconduct do so for pecuniary reasons -to secure grant funding, to improve their financial status, i.e., promotion, annual performance assessment, to achieve job security, i.e., tenure or continued salary support, to earn an advanced degree or to secure a job, or to enhance their professional reputations. Dishonest researchers benefit from misconduct by appearing to be more successful than they really are, thus giving themselves a competitive advantage over honest researchers.

The countervailing costs of misconduct are both moral and pecuniary. Misconduct does appear to impose a moral cost on some dishonest researchers. The moral costs of misconduct depend on self-recognition of unethical behavior by the dishonest researcher and the shame resulting from the moral condemnation of peers and others.

The monetary costs of misconduct depend on two factors: the likelihood of detection and the pecuniary consequences of conviction. Because of the moral costs, the pecuniary benefits of misconduct may need to exceed the costs of misconduct by more than just a nominal amount to induce dishonest behavior.

The likelihood of detection of research misconduct depends on the actions of two parties: the whistleblower and the investigating institution. Under current DHHS and NSF policy, the university or other research organization has the primary responsibility for investigating misconduct and for sanctioning dishonest researchers, although additional sanctions may be imposed by these agencies.

CONFLICTING INCENTIVES FOR THE INVESTIGATING INSTITUTION

Universities and dishonest researchers often share a common pecuniary benefit in acts of misconduct. Often the injured parties in an act of misconduct are researchers at other institutions whose efforts to obtain funding are diminished by the unwarranted competitive advantage conferred by the misconduct. Thus, as a practical matter, research misconduct, if successfully executed, should result in pecuniary gains for both the dishonest university researchers and their universities.

Since universities may be reluctant to kill the faculty geese who are laying the golden funding eggs, the economic incentives underlying the current federal policy of entrusting misconduct investigations to the host university are fraught with potential conflicts of interest. Universities have little financial incentive to detect and punish misconduct when the most common external sanction is debarment from submitting grants for some time period - resulting in even more financial loss. Certainly, no university has a financial incentive to be more honest than it perceives its competitors to be, since greater than average honesty would further diminish competitiveness.

University integrity officers charged with investigating allegations of misconduct usually are housed in research administration offices. The main goal of many research integrity officers is to protect the institution from the irresponsible actions (research misconduct) of its faculty, i.e., to protect the relationship between the university and funding agencies.

Were it not for one additional actor, the economics of research misconduct would predict that publicly identified cases of research misconduct would be rare and largely restricted to instances where detection occurred outside the university of the dishonest researcher and therefore could not be covered up - this actor is the whistleblower.

MORAL AND ECONOMIC INCENTIVES OF WHISTLEBLOWERS

Whistleblowers face a set of economic incentives that are the mirror image of those faced by the dishonest researcher. The whistleblower could receive both moral and pecuniary benefits from reporting misconduct; however, pecuniary benefits are rare. According to the survey on the "Consequences of Whistleblowing for the Whistleblower in Misconduct in Science Cases", "Not a single whistleblower reported that their whistleblowing had a positive impact on their careers."1 Whistleblowers in research appear to be primarily motivated by ethics, and thus probably enjoy some moral benefit when the act results in successful resolution of the misconduct-although only about 1 in 6 allegations result in a misconduct finding.

Conversely, whistleblowing clearly has costs; most whistleblowers report at least some disruption to their careers. Significant costs to whistleblowers are not rare, up to and including blackballing, demotion or loss of promotion, adverse working conditions, and job loss. Although some minimal efforts are being made to protect whistleblowers, mostly in the form of whistleblower protection requirements by federal agencies, under current circumstances the average whistleblower can be expected to suffer some pecuniary loss as a result of reporting research misconduct. The majority of individuals making misconduct reports will be either those who are unaware of the costs of whistleblowing or those for whom the moral benefits of reporting misconduct are very high.

INTERACTION OF THE PARTIES

Cases in which both parties perceive each other as unreasonable and even reprehensible need to be handled as impartially and objectively as possible. However, current federal policy places responsibility for conducting an investigation in the hands of the host university which has its own powerful interests. Since the misconduct may result in an unfair competitive advantage that benefits both the researcher and the institution, economic incentives may influence the conduct of the investigating university at two levels, university legal counsel and the integrity officers investigating allegations under Federal Compliance Assurances.

Compounding this potential threat to impartiality is the standard practice of employing an inquisitional model of investigation which relies on a neutral expert panel of peers to conduct an investigation on behalf of the university. The inquisitional model normally abridges the due process rights of the parties by denying the right to call and cross-examine witnesses. The inquisitional model is designed to protect low-status whistleblowers from intimidating cross-examination by high-status respondents or to protect the identity of a whistleblower. Further, the inquisitional model emphasizes scientific judgment over adversarial argument.

The chief weakness of the inquisitional model is that it requires scrupulously fair and impartial panel members, integrity officers and legal counsel. Even in very large universities, it can be difficult to assemble a panel which has both the necessary scientific expertise and is also completely neutral to both of the parties.

Institutional integrity officers choose members of investigating panels. Determinations of conflict of interest are made by the integrity officer, usually without full disclosure of interviews with prospective panel members to the parties. The integrity officer instructs the panel members regarding misconduct investigation procedures in private meetings not attended by the parties, and the integrity officer provides procedural advice usually on a private basis to the panel members over the course of the investigation. Integrity officers usually contact witnesses and prepare them for testimony; these contacts are usually made outside the presence of and without full disclosure to the parties. There are a myriad of opportunities for the integrity officer to modulate the investigation of a misconduct allegation to protect the university's corporate interests. These mechanisms to influence the investigation would be completely absent in an adversarial process or courtroom setting where neither the judge nor the parties' attorneys would be allowed private access

to the jury.

Universities can also influence the process and outcome of a misconduct investigation through the provision of legal advice and the university indemnification policy. Legal advice to panel members and investigation administrators is normally provided by university legal counsel and is given in private, with disclosure to the parties to the misconduct investigation prevented by attorney-client privilege.

University legal counsel may be able to resist the temptation to protect the corporate interests of the university, but instead provide impartial legal advice to the parties in a dispute. When university legal counsel does wish to protect the university's corporate interest, they have a powerful tool to wield-the university indemnification policy. These indemnification policies typically require the participant in some activity that could involve litigation to continuously cooperate with university counsel. University administrators or faculty panel members who believe that the university is acting improperly in handing a misconduct investigation could be faced with the potential liability of securing their own legal counsel in any subsequent litigation because they were not continuously cooperating with university legal counsel.

Federal regulations and most university procedures require that misconduct investigations be conducted confidentially, at least during the early stages. The stated purpose of this confidentiality is to protect the innocent respondent. Confidentiality also protects the reputation of the university and may alleviate some of the resistance to initiating misconduct investigations of university faculty who are producing research funding.

However, confidentiality can be abused in the hands of a self- interested party. Confidentiality can allow university administrators and integrity officers to modulate an investigation to pursue university interests with little risk of disclosure to the faculty governance system or to public bodies. The university has the capacity to sanction any participants in the investigation who disclose information for which the university claims confidentiality.

CONCLUSION

An analysis of the economic incentives faced by the three parties to the misconduct investigation (the whistleblower, the respondent researcher and the university) raises concerns about the current federal policy of placing the primary responsibility for detection and investigation of research misconduct on universities. From a purely economic perspective, universities employing the inquisitional model have both the pecuniary motive and the procedural means to manipulate research misconduct investigations in their self-interest, possibly at the expense of the integrity of the scientific record.