C. Misconduct in Scholarly Activity

C. Misconduct in Scholarly Activity

(Note: OLPM sections on this page may be cited following the format of, for example, "UNH.II.C.1.1". These policies may be amended at any time, do not constitute an employment contract, and are provided here only for ease of reference and without any warranty of accuracy. See OLPM Main Menu for details.)

1.   Introduction and Guiding Principles

1.1   One of the University of New Hampshire's (UNH) primary missions is to support the creation and dissemination of knowledge. The UNH community must hold itself accountable for the conduct of any scholarly activity undertaken in fulfillment of this mission. In particular, all members of the community are expected to exercise appropriate supervision of themselves and those under their direction so as to ensure the integrity of the scholarly process. The UNH community's obligations in this regard should be seen as part of higher education's responsibility to promote and sustain public confidence in the value of scholarly inquiry. Several key principles inform the policy and procedures set forth below.

1.2   First, the reputation of UNH and the reputations of its scholars are equally vital to the health of UNH; and actions that might jeopardize this health should not be tolerated.

1.3   Second, in the event of an allegation of scholarly misconduct, the confidentiality of all parties involved should be maintained to an extent consistent with UNH's obligations to inform the scholarly community in a timely way and, if such is the case, any sponsoring agency.

1.4   Third, each party involved should have an equal chance to present its case; in particular, the subject of any allegation of scholarly misconduct should have the opportunity to respond to the complainant's allegations during the proceedings.

1.5   Fourth, decisions and actions taken during the proceedings should be based on the best and most accurate information and evidence available, and vigorous effort should be made to obtain such material consistent with the concerns for confidentiality engendered in this policy.

1.6   Fifth, all information and evidence gathered, including oral and/or written testimony, should be subjected to the impartial judgment of individuals possessing the relevant expertise, with the "preponderance of the evidence standard" applied as the measure of proof during an investigation.

2.   Definitions

2.1   Allegation: Any written or oral statement or other indication of possible scholarly misconduct made to a UNH official and identified as a possible allegation of scholarly misconduct.

2.2   Complainant: A person who makes an allegation of scholarly misconduct.

2.3   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 prior or existing personal or professional relationships, including financial connections. Members of an investigation team are not deemed to have a conflict of interest solely because of their role at UNH and the relationship that such role creates with the respondent or the complainant (e.g., a college Dean is not deemed to have a conflict merely because he/she is the Dean of the college of a respondent who is a faculty member).  Examples of problem situations include having: 

2.3.1   A family relationship with the respondent or complainant; 

2.3.2   A professional relationship with the respondent or complainant, e.g., as a consultant or collaborator on the work in which scholarly misconduct has been alleged; 

2.3.3   A known personal relationship with the respondent or complainant, either as close friends or open antagonists; or

2.3.4   Having collaborated recently on a project related to the work in which scholarly misconduct has been alleged. 

2.3.5   If there is a question as to whether a conflict of interest exists, the RIO may consult the Deciding Official.

2.4   Deciding Official: The UNH official who makes final determinations on allegations of scholarly misconduct and any responsive institutional actions. This person is the Senior Vice Provost for Research, Economic Engagement and Outreach (SVPREEO).  If the SVPREEO is considering recusing themself for conflict of interest or other reasons, the Deciding Official will be the UNH Provost.

2.5   Fabrication: Making up data or results and recording or reporting them.1

2.6   Falsification:  Manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.2

2.7   Good faith allegation: An allegation made with the honest belief that scholarly misconduct may have occurred. An allegation is not in good faith if it is made with reckless disregard for or willful ignorance of facts that would disprove the allegation.

2.8   Misconduct:

2.8.1   Fabrication, falsification, or plagiarism in proposing, performing, or reviewing scholarly activities, or in reporting results from scholarly activities; or

2.8.2   Retaliation of any kind against a person who has brought forth an allegation of scholarly misconduct or who has provided information about a suspected case of scholarly misconduct because of their participation in the processes articulated in this policy.

2.8.3   This definition is consistent with that used by federal funding agencies such as the National Science Foundation (NSF) and the Public Health Service (PHS).  Examples of scholarly misconduct include, but are not limited to:

2.8.3.1   Misappropriation of the ideas of others, including the unethical use of privileged and/or confidential information;

2.8.3.2   Misrepresentation of the results of scholarly activity or scholarly credentials; and

2.8.3.3   Lack of appropriate attribution of sources in scholarly products.

2.8.4   Scholarly misconduct does not include honest error or differences in interpretations or judgments with respect to scholarly issues that are inherent in the scientific and creative process. Furthermore, this definition should not be construed to stifle academic freedom.

2.9   ORI: The Office of Research Integrity, the office within the U.S. Department of Health and Human Services (DHHS) that is responsible for the scientific misconduct and research integrity activities of the U.S. Public Health Service.

2.10   PHS: The Public Health Service of the U.S. Department of Health and Human Services, and any components of the PHS to which the authority involved may be delegated, including the National Institutes of Health (NIH).

2.11   Plagiarism:  The appropriation of another person's ideas, processes, results, or words without giving appropriate credit.3

2.12   PHS regulation: The Public Health Service regulation establishing standards for institutional investigations into allegations of scientific misconduct, which is set forth at 42 C.F.R. Part 50, Subpart A, entitled "Responsibility of PHS Awardee and Applicant Institutions for Dealing With and Reporting Possible Misconduct in Science."

2.13   PHS support: PHS grants, contracts, or cooperative agreements or applications thereof.

2.14   Preponderance of the evidence: The quantity and quality of evidence which, when fairly considered, produces the stronger impression, and has the greater weight, and is more convincing as to its truth than the evidence in opposition. Note: This standard of proof is consistent with that applied by federal funding agencies such as NSF.

2.15   Research Integrity Officer (RIO): The UNH official responsible for assessing allegations of scholarly misconduct, determining when such allegations warrant a stage one investigation, and for overseeing investigations.  This person is the Director of Research Integrity Services or his/her designee.

2.16   Research record: Any data, document, computer or digital file, 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 that constitutes the subject of an allegation of scholarly misconduct. A research record includes, but is not limited to, grant or contract applications, whether funded or 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 patient research files.

2.17   Respondent: The person against whom an allegation of scholarly misconduct is directed or the person whose actions are the subject of a stage one or a stage two investigation. There can be more than one respondent in any charge of scholarly misconduct.

2.18   Retaliation: Any action by UNH of an employee that adversely affects the employment or other institutional status of an individual that is taken because the individual has in good faith, made an allegation of scholarly misconduct or of inadequate institutional response thereto or has cooperated in good faith with an investigation of such allegation.  Retaliation does not include action taken for reasons other than the impacted individual’s participation in the procedures articulated by this policy.

2.19   Scholarly activity: Includes, but is not limited to, laboratory, clinical, and field research, educational innovation projects, theoretical investigations, observational studies, experimentation, research and scholarship in the humanities and artistic and other forms of creative expression.

2.20   Stage one investigation:  Gathering information and initial fact-finding to determine whether an allegation or apparent instance of scholarly misconduct warrants a stage two investigation.

2.21   Stage two investigation: The formal examination and evaluation of all relevant facts to determine if scholarly misconduct has occurred, and, if so, to determine the responsible person and the seriousness of the scholarly misconduct.

3.   Scope and Applicability

3.1   This document sets forth the UNH policy on Misconduct in Scholarly Activity and details the process for dealing with an allegation of such misconduct. The policy applies to all UNH faculty, staff, and graduate students, and to UNH undergraduate students with respect to scholarly activities that are part of federally-funded research projects. Furthermore, for UNH faculty, staff, and graduate students, this document does not distinguish between funded and unfunded efforts, except where it reflects specific requirements of a sponsoring agency, for example the notification of an agency that an investigation of an allegation of scholarly misconduct has commenced. The Office of the Senior Vice Provost for Research, Economic Engagement and Outreach (OSVPREEO) shall be responsible for administration of this policy and its procedures. Changes in the policy must be approved by the UNH President.

3.2   Misconduct in scholarly activity (hereinafter referred to as "scholarly misconduct") is a specific instance of impropriety within the broader domain of personal and professional conduct. Allegations of misconduct outside the scope of this policy should be directed to the cognizant chair, dean, director, vice president, or other UNH official. The process of investigation and reporting obligations may differ from those required for cases covered under this policy.

3.2.1   Allegations of plagiarism  made against undergraduate or graduate students are not intended to be covered by this policy with respect to their completion of normal course assignments to the extent those assignments do not entail published work. Such cases are subject to the policies of the Office of the Senior Vice Provost for Student Life with respect to student conduct, as outlined in the "Student Handbook on Rights, Rules, and Responsibilities."

3.2.2   Graduate student research, including master’s theses, capstone research projects, and doctoral dissertations, are subject to this policy.

3.2.3   This policy applies to scholarly activities conducted by undergraduate students when the project of which they are a part is federally funded, in whole or in part.

3.3   This policy should not be construed to limit the rights of any member of the UNH community, including those of UNH faculty as outlined in their collective bargaining agreement, staff as detailed in the University System of New Hampshire (USNH) Policy Manual and relevant handbooks, and graduate and undergraduate students as outlined in their document on rights, rules, and responsibilities. The collective bargaining agreement will control in any conflict with this policy for cases involving UNH faculty.

4.   Requirements for Findings of Scholarly Misconduct

4.1   A finding of scholarly misconduct requires that:

4.1.1   There must be a significant departure from accepted practices of the research community; and

4.1.2   The scholarly misconduct be committed intentionally, knowingly, or recklessly; and,

4.1.3   The allegation be proven by a preponderance of the evidence.

5.   Evidentiary Standards

5.1   The following evidentiary standards apply to findings made under this policy:

5.1.1   A UNH finding of scholarly misconduct must be proved by a preponderance of the evidence.

5.1.2   UNH has the burden of proof for making a finding of scholarly misconduct. The destruction, absence of, or respondent's failure to provide records adequately documenting the questioned scholarship is evidence of scholarly misconduct where UNH establishes by a preponderance of the evidence that the respondent intentionally, knowingly, or recklessly had records and destroyed them, had the opportunity to maintain the records but did not do so, or maintained the records and failed to produce them in a timely manner and that the respondent's conduct constitutes a significant deviation from accepted practices of the relevant scholarly community.

5.1.3   The respondent has the burden of going forward with and the burden of proving, by a preponderance of the evidence, any and all affirmative defenses raised. In determining whether UNH has carried the burden of proof imposed by this part, the finder of fact shall give due consideration to admissible, credible evidence of honest error or difference of opinion presented by the respondent.

5.1.4   The respondent has the burden of going forward with and proving by a preponderance of the evidence any mitigating factors that are relevant to a decision to impose administrative actions following a misconduct proceeding.

6.   Rights and Responsibilities

6.1   Research Integrity Officer (RIO)

6.1.1   The RIO will have primary responsibility for implementation of the procedures set forth in this policy. The RIO will be a UNH official who is well qualified to handle the procedural requirements involved and is sensitive to the varied demands made on those who conduct research, those who are accused of scholarly misconduct, and those who report apparent scholarly misconduct in good faith.

6.1.2   The RIO will appoint the investigation teams as provided in this policy and ensure that necessary and appropriate expertise is secured to carry out a thorough and authoritative evaluation of the relevant evidence in an investigation. The RIO will attempt to ensure that confidentiality is maintained.

6.1.3   The RIO will assist investigation teams and all UNH personnel in complying with these procedures and with applicable standards imposed by government or external funding sources. The RIO is also responsible for maintaining files of all documents and evidence, and for the confidentiality and the security of the files.

6.1.4   The RIO will report to ORI as required by regulation and keep ORI apprised of any developments during the course of the stage one or stage two investigation that may affect current or potential DHHS funding for the individual(s) under investigation or that PHS needs to know to ensure appropriate use of federal funds and otherwise protect the public interest.

6.2   Complainant

6.2.1   The complainant will have an opportunity to testify before the stage one investigation team, when applicable, and the stage two investigation team, to review portions of the investigation report(s) pertinent to their allegations or testimony, to be informed of the results of the investigations, and to be protected from retaliation. Also, if the RIO has determined that the complainant may be able to provide pertinent information on any portions of the draft report(s), these portions may be given to the complainant for comment.

6.2.2   The complainant is responsible for making allegations in good faith, maintaining confidentiality, and cooperating with an investigation.

6.2.3   The complainant does not have any personal right or interest in the outcome of the MISA process.

6.3   Respondent

6.3.1   The respondent will be informed of the allegations when a stage one investigation is opened and notified in writing of the final determinations and resulting actions. The respondent will also have the opportunity to be interviewed by and present evidence to the stage one investigation team and the stage two investigation team, to review the draft investigation reports, and to have the advice of counsel (subject to limitations as set forth in this policy).

6.3.2   The respondent is responsible for maintaining confidentiality and cooperating with the conduct of an investigation. If the respondent is not found to have committed scholarly misconduct, they have the right to receive institutional assistance in restoring their reputation.

6.3.3   The respondent does not have any personal right or interest in the outcome of a stage one or stage two investigation, other than as specifically set forth in this policy.

6.4   Deciding Official

6.4.1   The Deciding Official will receive the investigation report(s) and any written comments made by the respondent or the complainant on the draft report(s). The Deciding Official will consult with the RIO and/or other appropriate officials and will determine whether to conduct a stage two investigation, whether scholarly misconduct occurred, whether to impose sanctions, and/or whether to take other appropriate administrative actions (see section 14. Administration of Sanctions).

7.   Policy Statement

7.1   UNH does not condone and will not tolerate any act of scholarly misconduct by a member of its community. Violation of this policy is grounds for administrative sanction. UNH strives to ensure that all members of its community understand and uphold this policy.

8.   Process

8.1   An allegation of scholarly misconduct shall be handled through several procedural stages: reporting, assessment, stage one investigation, stage two investigation, and determination, and administration of sanctions if warranted. The reporting stage initiates a formal process designed to consider an allegation with the seriousness it is due. During the assessment, a decision is made whether the allegation falls within the scope of the policy. If so, in the stage one investigation, preliminary fact finding takes place to substantiate or refute the allegation. If the allegation is found to have substance, then a stage two investigation is undertaken. Following the investigation and a determination of whether scholarly misconduct occurred, administrative sanctions may be applied as appropriate.

9.   Reporting

9.1   All members of the UNH community, including administrators, faculty, staff, and graduate and undergraduate students are strongly encouraged to report without delay any suspicion of scholarly misconduct to the RIO or to the SVPREEO. Causes for suspicion include, but are not limited to, direct observation, inferences based on data or research practices, or specific reports or statements received from knowledgeable individuals and/or organizations within or outside the UNH community.

9.2   UNH encourages community members to consult with the SVPREEO or the RIO if they are aware of inappropriate conduct but uncertain whether it constitutes scholarly misconduct.

9.3   In addition, the SVPREEO should be alerted promptly if any of the following circumstances detailed below are discovered during the reporting stage or any of the subsequent stages (stage one investigation, stage two investigation and determination, or administration of sanctions):

9.3.1   An immediate health hazard;

9.3.2   An immediate need to protect federal, state, local, or UNH funds or equipment;

9.3.3   An immediate need to protect the complainant, the respondent, their associates, or a witness;

9.3.4   Likelihood that an alleged incident of scholarly misconduct will be reported publicly;

9.3.5   The allegation involves a public health sensitive issue (e.g., clinical trial); or

9.3.6   A reasonable indication of possible criminal violation.

9.4   If these emergency situations arise in connection with scholarly activity that is externally sponsored, UNH may, and in some cases must, notify sponsoring agencies directly and immediately. UNH may also take interim administrative (not disciplinary) action as necessary to protect funds, equipment, and/or the purposes of the sponsored grant or contract that may be involved. Notifications and any actions taken in this regard will be coordinated by the DO.

9.5   UNH shall use reasonable efforts, consistent with the due process rights of the accused, to keep confidential the identity of the complainant(s) during the stage one investigation, unless that person (or persons) consents to the disclosure of their identity.  UNH will not tolerate any acts of retaliation against the complainant or any person who participates in the investigation of alleged scholarly misconduct, and disciplinary action may be taken against the individual engaging in such acts, in accordance with appropriate UNH policies. The RIO will monitor the treatment of individuals who bring allegations of scholarly misconduct or of inadequate institutional response thereto, and those who cooperate in investigations. Individuals should immediately report any alleged or apparent retaliation to the RIO.

9.6   Further, UNH will protect to the maximum extent possible the privacy of those who report scholarly misconduct in good faith. For example, if the complainant requests anonymity, UNH will make an effort to honor the request during the allegation assessment or stage one investigation within applicable policies and regulations and state and local laws, if any.  The complainant will be advised that if the matter is referred to a stage two investigation team and the complainant’s testimony is required, anonymity may no longer be guaranteed. UNH is required to undertake diligent efforts to protect the positions and reputations of those persons who, in good faith, make allegations.

9.6.1   If the RIO determines that it is necessary to maintain anonymity of the complainant in order to protect that individual or that the identity of the complainant is not necessary to the stage one investigation, UNH will be deemed the complainant. The RIO may also designate UNH as the complainant in circumstances when the identity of the complainant is unknown or he/she is unwilling to file a complaint, but the evidence of scholarly misconduct is substantial.

9.7   Investigations will be conducted in a manner that will ensure fair treatment to the respondent(s) in the investigation and confidentiality to the extent possible without compromising public health and safety or thoroughly carrying out the investigation.

9.8   UNH employees accused of scholarly misconduct may consult with legal counsel or a non-lawyer personal adviser (who is not a principal or witness in the case) to seek advice. Employees may forward to their personal legal counsel all written communications or documents provided in connection with this policy. Personal legal counsel should communicate any concerns directly to UNH counsel.

9.9   UNH employees will cooperate with the RIO and other UNH officials in the review of allegations and the conduct of investigations. Employees have an obligation to provide relevant evidence to the RIO or other UNH officials on scholarly misconduct allegations.

9.10   Upon receiving an allegation of scholarly misconduct, the RIO will immediately assess the allegation to determine whether there is sufficient evidence to warrant a stage one investigation, whether external funds are involved, and whether the allegation falls under the definition of scholarly misconduct.

9.11   If the respondent, without admitting to scholarly misconduct, elects to resign their position at UNH prior to the initiation of a stage one investigation, but after an allegation has been reported, or during an investigation, the investigation will proceed. If the respondent refuses to participate in the process after resignation, the stage one and/or stage two investigation team will use its best efforts to reach a conclusion concerning the allegations, noting in its report the respondent's failure to cooperate and its effect on the stage one and/or stage two investigation team's review of all the evidence.

10.   Records and Evidence

10.1   UNH has an obligation to ensure that it maintains adequate records for a scholarly misconduct proceeding.

10.2   Either before or when UNH notifies the respondent of the allegation or investigation, UNH will promptly take all reasonable and practical steps to obtain custody of all the records and evidence needed to conduct the scholarly misconduct proceeding, inventory the records and evidence, and sequester them in a secure manner, except that where the records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments.

10.3   UNH will give the respondent copies of, or reasonable, supervised access to the records, subject to the need for confidentiality and the due process rights of all parties.

10.4   UNH will undertake all reasonable and practical efforts to take custody of additional records or evidence that are discovered during the course of a scholarly misconduct proceeding, except that where the records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments.

10.5   UNH will maintain the research records and evidence as required by this policy.

10.6   In PHS-supported activities, ORI or other authorized DHHS personnel will be given access to records upon request.

11.   Assessment

11.1   Conducting the assessment

11.1.1   Following receipt in the OSVPREEO or by the RIO of an allegation of scholarly misconduct, the RIO will determine whether the allegation is frivolous or for other reasons does not warrant a more thorough inquiry. If the determination is that the allegation is frivolous or for other reasons does not warrant a more thorough inquiry, within 10 (ten) working days of receipt, the RIO shall submit a written finding to the Deciding Official and the assessment will end. If the determination is that the allegation warrants a more thorough inquiry, the RIO shall notify the respondent, in writing, that a report of alleged scholarly misconduct has been made and that it will be referred to a stage one investigation.

12.   Stage One Investigation

12.1   Conducting the stage one investigation

12.1.1   Within 10 (ten) working days, following receipt in the OSVPREEO or by the RIO of an allegation of scholarly misconduct that in the assessment phase has been determined to warrant more thorough inquiry, the RIO will appoint a stage one investigation team. The team will consist of the supervisor of the respondent, the next higher administrative officer of the respondent, and an appropriate staff, faculty, or UNH official4. If an individual on this team has a conflict of interest with the case, then the next higher administrative officer for the individual in conflict (or other such individual as the RIO may designate at their discretion) shall serve instead. Under no circumstance may the complainant be a member of this team.

12.1.2   The RIO will prepare a charge for stage one investigation team that describes the allegations and any related issues identified during the allegation assessment, and states that the purpose of the stage one investigation is to make a preliminary evaluation of the evidence and testimony of the respondent, complainant, and key witnesses to determine whether there is sufficient evidence of possible scholarly misconduct to warrant a stage two investigation. The purpose is not to determine whether scholarly misconduct definitely occurred or who was responsible.

12.1.3   At the stage one investigation team’s first meeting, the RIO will review the charge with the team, discuss the allegations, any related issues, and the appropriate procedures for conducting the stage one investigation, assist the team with organizing plans for the stage one investigation, and answer any questions raised by the team. At this meeting, members will elect a chair. The RIO and a representative from the University System of New Hampshire’s (USNH) General Counsel’s Office will be present or available throughout the stage one investigation to advise the team as needed.

12.1.4   Following this initial meeting, the stage one investigation team will report the allegation in full and in writing to the respondent in a timely way, remind the respondent of their right to legal counsel, and provide a copy of this policy. This initial communication must explicitly remind the respondent of their obligations under section 5.1.2  to maintain the integrity of any records that may subsequently be used in a stage two investigation of the allegation. The stage one investigation team will then engage in preliminary fact-finding and preliminary information gathering, to ascertain if there is cause for a stage two investigation into the case. The stage one investigation team will consult with the RIO throughout its proceedings and in the production of its draft and final reports. The stage one investigation team should strive to gather and consider available evidence in a manner that does not incriminate or cast suspicion on the respondent. The respondent should be encouraged to provide a written response to the allegation and submit their view on the alleged action(s) or deed(s). The stage one investigation team will use its best efforts to interview the complainant and the respondent, and may also interview others in the community who have knowledge of aspects of the case. The respondent should also be encouraged to suggest individuals to interview. It should be recognized that damage to the reputation of the respondent might result from soliciting information from their peers and colleagues, even if complete confidentiality is requested. Thus, the team should exercise circumspection in conducting its business.

12.2   Communication of findings

12.2.1   Within 30 (thirty) working days of receipt of the allegation in the OSVPREEO or by the RIO, unless extended for good cause by the RIO on the basis of a written finding that it is infeasible to complete the necessary work within the prescribed time frame, the stage one investigation team shall reach a decision as to whether there is or is not cause to pursue a stage two investigation into the case and issue a written report.  In consultation with the RIO, the stage one investigation team will issue a final report that documents this decision. The report will include, but is not limited to:

12.2.1.1   Name and title of the stage one investigation team members;

12.2.1.2   The allegations;

12.2.1.3   Any funding;

12.2.1.4   A summary of the stage one investigation process used;

12.2.1.5   A list of the research records reviewed;

12.2.1.6   Summaries of any interviews;

12.2.1.7   A description of the evidence in sufficient detail to demonstrate whether a stage two investigation is warranted; and

12.2.1.8   The team’s determination as to whether a stage two investigation is recommended or whether any other actions should be taken if a stage two investigation is not recommended.

12.2.2   UNH legal counsel will review the draft report for legal sufficiency.  

12.2.3   The RIO will provide to the respondent a copy of the draft stage one investigation team report for comment and rebuttal. Concurrently, the RIO will provide the complainant, if identifiable, with portions of the draft stage one investigation team report that address the complainant’s role in the stage one investigation. If UNH is deemed to be the complainant, the draft report may be given to individual(s) designated by the Deciding Official who have sufficient knowledge of the allegations to provide meaningful review of the draft report on behalf of UNH.  The RIO may establish reasonable conditions for review to protect the confidentiality of the draft report.

12.2.4   Within 10 (ten) working days of their receipt of the draft report, the respondent and the complainant will provide their comments, if any, to the RIO. Any comment that the respondent and complainant submits on the draft stage one investigation team report will become part of the final stage one investigation team report and record. Based on the comments, the stage one investigation team may revise the report as appropriate.

12.2.5   The RIO will transmit the final report to the Deciding Official, who will make the determination of whether findings from the stage one investigation provide sufficient evidence of possible scholarly misconduct to justify conducting a stage two investigation. The stage one investigation is completed when the Deciding Official makes this determination, which will be made within 30 (thirty) working days of the first meeting of the stage one investigation team, unless extended for good cause by the RIO on the basis of a written finding that it is infeasible to complete the necessary work within the prescribed time frame. Any extension of this period will be recorded in the stage one investigation file.

12.2.6   When PHS support is involved and an admission of scholarly misconduct is made, the RIO will contact ORI for consultation and advice. Normally, the individual making the admission will be asked to sign a statement attesting to the occurrence and extent of scholarly misconduct. When the case involves PHS support, UNH cannot accept an admission of scholarly misconduct as a basis for closing a case or not undertaking an investigation without prior approval from ORI.

12.2.7   If UNH plans to terminate a stage one investigation in PHS-supported activities for any reason without completing all relevant requirements of this policy, the RIO will submit a report of the planned termination to ORI, including a description of the reasons for the proposed termination.

12.3   Conclusion of the stage one investigation

12.3.1   If the Deciding Official finds that there is no cause to undertake a stage two investigation into the alleged scholarly misconduct, the RIO will promptly write a letter of exoneration to the respondent and the matter will be considered officially closed. This letter of exoneration shall be included with the final report of the stage one investigation team. The complainant shall also be notified of this decision. Any individuals interviewed during this stage or otherwise involved in the proceedings may also be notified by the RIO that the matter is officially closed. The RIO will provide the final report of the findings of the stage one investigation team to both the respondent and complainant.

12.3.2   If the Deciding Official finds no cause to undertake a stage two investigation into the alleged scholarly misconduct, after consulting with the respondent the RIO will undertake reasonable efforts to restore the respondent's reputation. Depending on the circumstances, the RIO may consider notifying those individuals aware of or involved in the stage one investigation of the final outcome, publicizing the final outcome in forums in which the allegation of scholarly misconduct was previously publicized, or expunging all reference to the scholarly misconduct allegation from the respondent's personnel file. Any institutional actions to restore the respondent's reputation must first be approved by the Deciding Official.

12.3.3   If the Deciding Official, the RIO, or the stage one investigation team suspects that the allegation of scholarly misconduct was not made in good faith, UNH shall initiate an inquiry. Improper behavior of this type falls under the purview of the more general USNH (USY V) and UNH (UNH V) policies regarding personal and professional conduct and the relevant procedures will apply.

12.3.4   If the Deciding Official concludes that a stage two investigation into the case is warranted, then the RIO will promptly identify the complainant (if known) to the respondent and in consultation with the stage one investigation team oversee the formation of a stage two investigation team to undertake an investigation to determine if scholarly misconduct has taken place. (See below for composition and selection of the stage two investigation team.)  Once the stage two investigation team is formed, the RIO will provide the final report of the findings of the stage one investigation team to the respondent and portions of the report that address the complainant's role in the stage one investigation to the complainant. The RIO will remind both the respondent and the complainant of their obligation to cooperate with the stage two investigation.

12.3.5   The stage one investigation team chair will collect all notes and other documentation compiled during the course of the stage one investigation and submit them to the RIO for retention in a secure and confidential manner in the OSVPREEO for at least seven years past the submission of the stage one investigation team's final report. The records may be kept in an appropriate electronic format. If the scholarly activity in question is a funded effort, the records shall be retained for seven years past the submission of the principal investigator's final project report to the sponsoring agency (or seven years past the submission of the stage one investigation team's final report, whichever is greater). In the event that legal action arises from the allegation, the records shall be retained until the matter is resolved (or three years past the submission of the principal investigator's final project report to the sponsoring agency, or seven years past the submission of the stage one investigation team's final report to the Deciding Official, whichever is greater).

12.3.6   The RIO will adhere to any requirements from sponsoring agencies supporting the scholarly activity in question to notify them that an allegation of scholarly misconduct has been brought, that a stage one investigation has found cause to undertake a stage two investigation, and that such an investigation is to begin.

13.   Stage Two Investigation and Determination

13.1   Conducting the stage two investigation

13.1.1   The purpose of the stage two investigation is to gather, examine, and evaluate the evidence of the case, establish the facts of the activity in question, analyze these facts to determine whether scholarly misconduct has occurred, and recommend sanctions if there is a determination that scholarly misconduct has taken place. The stage two investigation will also determine whether there are additional instances of possible scholarly misconduct that would justify broadening the scope beyond the initial allegations. This is particularly important where the alleged scholarly misconduct involves potential harm to human subjects or the general public, or if it affects research that forms the basis for public policy, clinical practice, or public health practice. The findings of the stage two investigation will be set forth in an investigation report.

13.1.2   The RIO will immediately sequester any additional pertinent research records that were not previously sequestered during the stage one investigation. This sequestration should occur before or at the time the respondent is notified that a stage two investigation has begun. The need for additional sequestration of records may occur for any number of reasons, including UNH's decision to investigate additional allegations not considered during the stage one investigation or the identification of records during the stage one investigation that had not been previously secured. The procedures to be followed for sequestration during the stage two investigation are the same procedures that apply during the stage one investigation.

13.1.3   The stage two investigation shall be conducted by a stage two investigation team comprised of five individuals, appointed, and provided with a formal written charge by the RIO, in consultation with the stage one investigation team. The RIO will appoint and charge the stage two investigation team within 30 (thirty) working days of receipt of the Deciding Official's decision that a stage two investigation is warranted.

13.1.4   The RIO and the stage one investigation team members will identify a slate of prospective stage two investigation team members, which may include individuals from outside the UNH community. The respondent should also be encouraged to identify one or more individuals for inclusion on this slate. Development of this list of potential stage two investigation team members should be in compliance with UNH and USNH policies on non-discrimination. In addition, a number of factors may also be considered that reflect sensitivity to a range of issues including a candidate's professional background and its relevance to the case in question, reputation for personal integrity, supervisory experience, and/or other relevant professional and personal characteristics.

13.1.5   No member of the stage one investigation team (see section 12.1.1  above) or individual who reviewed the stage one investigation draft report on behalf of UNH (see section 12.2.3  above) may serve as a member of the stage two investigation team. Furthermore, no member of the stage two investigation team may have any significant personal or professional connection with the respondent or the activity in question. Thus, individuals who are approached to serve on the stage two investigation team must also receive a clear statement of disqualifying conditions. Upon recognizing a conflict of interest, the individual must immediately recuse themself from the remainder of the proceedings. This action should be clearly documented in writing and should become part of the final report of the stage two investigation team.

13.1.6   Individuals on this list should first be contacted regarding their willingness and ability to serve, without revealing the identity of the respondent. Those willing to serve will be asked to provide an up-to-date curriculum vitae. At this point the respondent shall have the opportunity to indicate in writing concerns they may have regarding the potential membership of the stage two investigation team. The RIO, in consultation with the stage one investigation team, will then appoint the stage two investigation team, taking into account the concerns raised by the respondent. If the respondent has supplied a list of potential members of the stage two investigation team who are otherwise qualified to serve, one member of the stage two investigation team shall be appointed from among those on the respondent's list who have indicated a willingness to serve and who do not possess a conflict of interest. Since the identity of the respondent will also be revealed at this time to the members of the stage two investigation team, another check for conflicts of interest will be made. If necessary, replacement members of the stage two investigation team will be chosen in the manner described above.

13.1.7   The RIO will consult with the members of the stage two investigation team and designate one to be chair of the team. Upon establishment of the stage two investigation team, the RIO will define the subject matter of the investigation in a written charge to the stage two investigation team that describes the allegations and related issues identified during the stage one investigation, defines scholarly misconduct, and identifies the name of the respondent. The charge will state that the stage two investigation team is to evaluate the evidence and testimony of the respondent, complainant, and key witnesses to determine whether, based on a preponderance of the evidence, scholarly misconduct  occurred and, if so, to what extent, who was responsible, and its seriousness. The RIO will inform both the respondent and complainant in writing of the formation, purpose, and membership of the stage two investigation team.

13.1.8   During the stage two investigation, if additional information becomes available that substantially changes the subject matter of the investigation or would suggest additional respondents, the stage two investigation team will notify the RIO, who will determine whether it is necessary to notify the respondent of the new subject matter. The RIO will notify any individual who is added as a respondent.

13.1.9   A representative from the USNH General Counsel's Office shall advise the stage two investigation team on procedural and legal matters, and it is expected that the stage two investigation team will work closely with the RIO to develop a stage two investigation plan which can serve to professionalize, depersonalize, and rationalize the process. At a minimum this plan should include:

13.1.9.1   A clear statement of what information is needed and how it should be obtained;

13.1.9.2   What evidence is to be collected;

13.1.9.3   A protocol for conducting interviews and for providing opportunity for the respondent to respond to the substance of these interviews;

13.1.9.4   A plan for data collection and preservation with steps to secure such material, as well as other physical evidence that might impinge on the case; and

13.1.9.5   A discussion of the distinction between fact-finding and deliberative components of the stage two investigation. The investigation plan should also include how decisions regarding the internal operations of the stage two investigation team will be reached (e.g., voting vs. consensus), and provision for all parties involved in the case to receive regular progress reports.

13.1.10   The stage two investigation team should be prepared, if necessary, to seek additional expertise to carry out its investigation plan. In its evaluation of the evidence and deliberations, the stage two investigation team shall use a preponderance of the evidence as its standard of proof for a finding of scholarly misconduct. This standard is consistent with that used by federal agencies.

13.1.11   The stage two investigation will normally involve examination of all documentation including, but not limited to, relevant research records, computer and digital files, proposals, manuscripts, publications, correspondence, memoranda, and notes of telephone calls. Whenever possible, the stage two investigation team should interview the complainant(s), the respondents(s), and other individuals who might have information regarding aspects of the allegations.  Interviews of the respondent should be audio recorded or transcribed. All other interviews should be audio recorded, transcribed, or summarized. Summaries or transcripts of the interviews should be prepared, provided to the interviewed party for comment or revision, and included as part of the investigatory file.

13.1.12   When PHS support is involved and an admission of scholarly misconduct is made, the RIO will contact ORI for consultation and advice as required by regulation. Normally, the individual making the admission will be asked to sign a statement attesting to the occurrence and extent of scholarly misconduct. When the case involves PHS support, UNH cannot accept an admission of scholarly misconduct as a basis for closing a case or not undertaking a stage two investigation without prior approval from ORI.

13.1.13   If UNH plans to terminate a stage two investigation in PHS-supported activities for any reason without completing all relevant requirements of this policy, the RIO will submit a report of the planned termination to ORI as required by regulation, including a description of the reasons for the proposed termination.

13.2   Communication of findings

13.2.1   Within 120 (one hundred and twenty) working days of its first meeting, unless extended for good cause by the RIO on the basis of a written finding that it is infeasible to complete the necessary work within the prescribed time frame, the stage two investigation team shall provide a final report of its investigation to the Deciding Official via the RIO5.

13.2.2   The RIO will provide the respondent with a copy of the draft stage two investigation report for comment and rebuttal. The RIO will provide the complainant, if identifiable, with portions of the draft stage two investigation report that address the complainant’s role and opinions in the investigation. In distributing the draft report, or portions thereof, to the respondent and complainant, the RIO will inform the recipient of the confidentiality under which the draft report is made available and may establish reasonable conditions to ensure such confidentiality. For example, the RIO may request the recipient to sign a confidentiality statement or to come to their office to review the report. Personal legal counsel for the respondent shall be included within any confidential access that applies to the respondent.

13.2.3   Within 10 (ten) working days of their receipt of the draft report, the respondent and the complainant will provide their comments, if any, to the RIO. The findings of the final stage two investigation report should take into account the respondent’s comments in addition to all the other evidence, and the report may be modified, as appropriate, based on the complainant’s comments.

13.2.4   The stage two investigation report should contain sufficient detail to enable an assessment of the decision as to whether or not misconduct occurred. This document should:

13.2.4.1   State the allegation in full;

13.2.4.2   Describe the facts of the case as found during the investigation;

13.2.4.3   Carefully detail the steps taken to collect data, materials, and any other physical evidence relevant to the case;

13.2.4.4   Summarize the interviews conducted;

13.2.4.5   Clearly state the conclusions reached and the reasons for these findings; and

13.2.4.6   Indicate the stage two investigation team’s decision as to whether scholarly misconduct occurred.

13.2.5   The report should provide sufficient information to permit the appropriate UNH official(s) to determine what disciplinary action, if any, should be taken. If it chooses to do so, the stage two investigation team may include as part of its report a set of recommended sanctions to be applied, but these are not binding.

13.2.6  UNH legal counsel will review the draft stage two investigation report for legal sufficiency.

13.2.7   After comments have been received and the necessary changes have been made to the draft report, the stage two investigation team should transmit to the Deciding Official through the RIO the final investigation report with attachments, including the respondent's and complainant's comments.  Based on a preponderance of the evidence, the Deciding Official will make the final determination whether to accept the stage two investigation report, its findings, and the recommended institutional actions.

13.2.8   For PHS-supported research, if the Deciding Official’s determination varies from that of the stage two investigation team, the Deciding Official will explain in detail the basis for rendering a decision different from that of the stage two investigation team in UNH’s letter transmitting the report to ORI. The Deciding Official's explanation should be consistent with the UNH definition of scholarly misconduct, UNH’s policies and procedures, and the evidence reviewed and analyzed by the stage two investigation team. The Deciding Official may also return the report to the stage two investigation team with a request for further fact-finding or analysis. The Deciding Official's determination, together with the stage two investigation team's report, constitutes the final stage two investigation report for purposes of ORI review (for PHS-supported research).

13.2.9   When a final decision on the case has been reached, the RIO will notify both the respondent and the complainant in writing. In addition, the Deciding Official will determine whether law enforcement agencies, professional societies, professional licensing boards, editors of journals in which falsified reports may have been published, collaborators of the respondent in the work, or other relevant parties should be notified of the outcome of the case. The RIO is responsible for ensuring compliance with all notification requirements of funding or sponsoring agencies6.

13.3   Conclusion of the stage two investigation

13.3.1   If the Deciding Official determines that no scholarly misconduct occurred, then the RIO will promptly write a letter of exoneration to the respondent and attach the stage two investigation team final report, and the matter will be considered officially closed. This letter of exoneration shall be included with the final report of the stage two investigation team. The complainant shall be notified of this decision and provided with a summary of the final report from the stage two investigation team. Any individuals interviewed during the stage two investigation or otherwise involved in the proceedings may also be notified by the RIO that the matter is officially closed. Notification of this decision shall be sent to any sponsoring agencies, as appropriate, along with a copy of the letter of exoneration. In addition, action may be taken by UNH to help maintain or restore the reputation of any parties involved in the case. This process should be coordinated through the OSVPREEO.

13.3.2   If the Deciding Official determines that no scholarly misconduct occurred but recommendations to address a respondent’s behavior are made, the Deciding Official will work with the respondent’s supervisor to determine an appropriate course of action. They may consult the RIO and chair of the stage two investigation team.

13.3.3   If the Deciding Official determines that no scholarly misconduct occurred, and for PHS-supported activities ORI concurs, after consulting with the respondent, the RIO will undertake reasonable efforts to restore the respondent's reputation. Depending on the circumstances, the RIO should consider notifying those individuals aware of or involved in the stage one investigation of the final outcome, publicizing the final outcome in forums in which the allegation of scholarly misconduct was previously publicized, or expunging all reference to the scholarly misconduct allegation from the respondent's personnel file. Any institutional actions to restore the respondent's reputation must first be approved by the Deciding Official.

13.3.4   If the Deciding Official, the RIO, and/or the stage two investigation team suspect that the allegation of scholarly misconduct was not made in good faith, inquiry shall be initiated by UNH. Improper behavior of this type falls under the purview of the more general USNH (USY V) and UNH (UNH V) policies regarding personal and professional conduct, and the relevant procedures will apply.

13.3.5   The stage two investigation team chair will collect all notes from interviews and meetings, as well as all documentary evidence compiled during the course of the stage two investigation and submit them to the RIO for retention, along with the final stage two investigation report from the stage two investigation team, in a secure and confidential manner in the OSVPREEO for at least seven years past the submission of the stage two investigation team's final report. The records may be kept in an appropriate electronic format. If the scholarly activity in question is a funded effort, the records shall be retained for seven years past the submission of the principal investigator's final project report to the sponsoring agency (or seven years past the submission of the stage two investigation team’s final report, whichever is greater). In the event that legal action arises from the allegation, the records shall be retained until the matter is resolved (or seven years past the submission of the principal investigator's final project report to the sponsoring agency, or seven years past the submission of the stage two investigation team's final report to the DO, whichever is greater). In addition, a copy of the final stage two investigation report shall be sent to sponsoring agencies if relevant.

13.3.6   Regardless of whether the Deciding Official, or for PHS-supported activities ORI, determines that scholarly misconduct occurred, the RIO will undertake reasonable efforts to protect complainants who made allegations of scholarly misconduct in good faith and others who cooperate in good faith with investigations of such allegations. Upon completion of a stage two investigation, the Deciding Official will determine, after consulting with the complainant, what steps, if any, are needed to restore their position or reputation. The RIO is responsible for implementing any steps the Deciding Official approves. The RIO will also take appropriate steps during the stage one and stage two investigations to prevent any retaliation against the complainant.

14.   Administration of Sanction(s)

14.1   If the Deciding Official determines that scholarly misconduct has occurred, sanctions may be administered as appropriate and consistent with USNH and UNH policies on disciplinary action and any applicable collective bargaining agreement as may apply to the respondent. These sanctions range from oral warning, to the issuance of official letters of reprimand, withdrawal or correction of all pending or published abstracts and papers emanating from the activity where scholarly misconduct was found, up to and including restitution of funds as appropriate, suspension without pay, termination of employment or dismissal from UNH. The final report of the stage two investigation team shall be forwarded to the appropriate staff, faculty, and/or UNH official(s)7 who will determine what disciplinary action is to be taken. In determining disciplinary action, the appropriate staff, faculty, and/or UNH official(s) should consult with the chair of the stage two investigation team, the RIO, and the Deciding Official. In the case of faculty, any action with regards to suspension without pay or dismissal from UNH must respect the relevant terms and conditions as set forth in the current collective bargaining agreement. Cases involving either graduate or undergraduate students will also be subject to the policies covering the student judicial process.

14.2   The UNH officials charged above with determining disciplinary action may decide in consultation with the chair of the stage two investigation team and the Deciding Official that, in order to ensure the integrity of UNH as a seat of higher learning and scholarly inquiry, additional measures must be taken beyond the application of internal UNH disciplinary action. Such measures may include public disclosure that scholarly misconduct has taken place, retraction of articles or other publications pertaining to the activity in which scholarly misconduct occurred, and notification to the relevant scholarly community and any sponsoring agencies that results obtained as a result of the activity in which scholarly misconduct occurred may be of questionable validity.

14.3   Information about all sanctions that are eventually applied should be appended to the final stage two investigation team report.

14.4   Finally, sponsoring agencies, such as PHS and NSF, retain the right under their policies to administer additional sanctions beyond those invoked by UNH, if the agency finds it necessary.

15.   Grievance Procedures

15.1   If the respondent believes that they have been judged improperly, grievance procedures may be initiated in accordance with USNH and UNH policies. For a faculty member, these terms are set forth in the current collective bargaining agreement, for a staff member the relevant sections of the USNH policy manual hold, and for a graduate or undergraduate student the current "Student Rights, Rules, and Responsibilities" document should be consulted.

 

Endnotes

1 Office of Science and Technology Policy.  Federal Policy on Research Misconduct. http://www.gpo.gov/fdsys/pkg/FR-2000-12-06/html/00-30852.htm. 

2 Office of Science and Technology Policy.  Federal Policy on Research Misconduct. http://www.gpo.gov/fdsys/pkg/FR-2000-12-06/html/00-30852.htm.

3 Office of Science and Technology Policy.  Federal Policy on Research Misconduct. http://www.gpo.gov/fdsys/pkg/FR-2000-12-06/html/00-30852.htm.

4 The appropriate staff, faculty, or UNH official is the Provost, if the respondent is an administrator; the Chair of the Faculty Senate Committee on Professional Standards, if the respondent is a faculty member; the Chair of the Operating Staff (OS) Council, the Professional, Administrative, and Technical (PAT) Staff Council, or the Extension Educator (EE) Council if the respondent is a staff member; the Dean of the Graduate School, if the respondent is a graduate student; or the Senior Vice Provost for Student Life and Dean of Students, if the respondent is an undergraduate student

5 For PHS-supported activities, if UNH determines that it will not be able to complete the investigation in 120 days, the RIO will submit to ORI a written request for an extension that explains the delay, reports on the progress to date, estimates the date of completion of the report, and describes other necessary steps to be taken. If the request is granted, the RIO will file periodic progress reports as requested by ORI.

6 UNH must notify ORI of the final outcome of the investigation and must provide ORI with a copy of the investigation report.  Any significant variations from the provisions of UNH policies and procedures should be explained in any reports submitted to ORI.

7 For cases involving administrators, the appropriate UNH official is the Provost. In the case of a faculty member, the Provost and the Chair of the Faculty Senate Professional Standards Committee will determine disciplinary action. For a staff member, the Chief Financial Officer and the relevant Chair of the PAT, OS, or EE Council will determine disciplinary action. If a graduate student is involved, the appropriate UNH and faculty officials are the Dean of the Graduate School and the Department Chair of the respondent. For a case involving an undergraduate student, the Senior Vice Provost for Student Life and Dean of Students and the student's Department Chair will determine disciplinary action (if the student is an undeclared major, the student's College Dean will serve).