oversight

Intellectual Theft

Published by the National Science Foundation, Office of Inspector General on 2014-03-06.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                                 NATIONAL SCIENCE FOUNDATION
                                                  OFFICE OF INSPECTOR GENERAL
                                                    OFFICE OF INVESTIGATIONS

                                            CLOSEOUT MEMORANDUM

Case Number: A10110084                                                                       Page 1 of 1



                 Our investigation determined that the Subject 1 intentionally plagiarized from a
         confidential NSF proposal. NSF made a finding of research misconduct by the Subject; sent a
         letter of reprimand to the Subject; required the Subject to submit certifications to the Assistant
         Inspector General for Investigations (AlGI), NSF OIG for three years; required the Subject's
         employer to submit assurances to the AlGI of NSF OIG for three years; prohibited the Subject
         from serving as a reviewer ofNSF proposals for three years; and required the Subject to provide
         certification to the AlGI that she has completed a course on the responsible conduct of research.

                 This memo, the attached Report of Investigation, and the letter from NSF with a finding
         of research misconduct constitute the case closeout. Accordingly, this case is closed.




NSF OIG Form 2 (11102)
     National Science Foundation
       Office of Inspector General




               Report of Investigation
              Case Number A-10110084
                              July 29, 2013
                      This Report of Investigation is provided to you
                              FOR OFFICIAL USE ONL.Y.
It contains protected personal information, the unauthorized disclosure of which may result in
personal criminal liability under the Privacy Act, 5 U.S.C. § 552a. This report may be further
disclosed within NSF on{v to individuals wl10 must have knowledge of its contents to
facilitate NSF's assessment and resolution of this matter. This report may be disclosed
outside NSF only under the Freedom ofinformation and Privacy ActR, 5 U.S.C. §§ 552 &
552a. Please take appropriate precautions ltandling this report of investigation.
SENSITIVE                                                                          SENSITIVE


                                     Executive Summary

The University's investigation concluded that:

   •   the Subject copied a figure from a confidential NSF proposal that she reviewed and used
       it in a presentation without attribution;
   •   the Subject committed plagiarism that was a significant departure from accepted
       standards of the community; and
   •   the Subject's actions were intentional, knowing, and reckless.

OIG's investigation established that:

   •   the Subject plagiarized a figure from an NSF proposal she reviewed;
   •   the Subject violated the confidentiality agreement of NSF reviewers by sharing copies of
       NSF proposals with her students; and
   •   the Subject violated the NSF agreement with reviewers by retaining electronic copies of
       NSF proposals that she reviewed.

OIG concludes that:
  • Acts: The Subject plagiarized from a confidential NSF proposal, and violated NSF's
      confidentiality agreement for reviewers.
  • Intent: The Subject acted intentionally.
  • Standard of Proof: A preponderance of the evidence supports the conclusion that the
      Subject's plagiarism from a confidential NSF proposal was a significant departure from
      the standards of the research community, and therefore constitutes research misconduct.

OIG recommends that NSF:
      • Send the Subject a letter of reprimand notifying her that NSF has made a finding of
         research misconduct.
      • Require the Subject complete a responsible conduct of research training program and
         provide documentation of the program's content within 1 year ofNSF's finding. The
         format should be an instructor-led course and specifically include topics such as
         reviewer confidentiality and plagiarism.

For a period of 3 years from the date of NSF's finding:
        • Require for each document (proposal, report, etc.) to which the Subject contributes
           for submission to NSF (directly or through her institution),
               o the Subject to submit a certification to the AlGI that the document does not
                   contain plagiarism, falsification, or fabrication.
               o the Subject to submit assurances from a responsible official of her employer to
                   the AlGI that the document does not contain plagiarism, falsification, or
                   fabrication.
        • Bar the Subject from participating as a peer reviewer, advisor, or consultant for NSF.




                                                                                                  2
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                                                    OIG Inquiry

       We assessed an allegation that the Subject 1 used a figure, taken from a National Science
Foundation (NSF) proposal 2 that she reviewed, in two public presentations without attribution.
We confirmed that the individual reviewed the proposal, and that the figure appears in the
proposal. We confirmed the appearance ofthe figure (as part of a larger figure) in two
presentations on which the Subject is an author, both of which occurred after proposal was
reviewed by the Subject. Accordingly, we wrote to the Subject to invite her explanation. 3

         In her response 4 to our letter of inquiry, the Subject admitted that she copied the figure
from the NSF proposal. The Subject described her use of the figure as a placeholder in her first
overview presentation, 5 stating that she used it because she was rushed in preparing the
presentation. The reuse of the Figure in a second later presentation 6 occurred when a slide from
the first was reused in a presentation composed by others. The Subject stated that she forgot that
the placeholder figure was still there when she provided the slides to be re-used. The Subject
described the figure as "common knowledge." 7

        The Subject's response did not dispel the allegation of plagiarism, and raised a concern
about her compliance with the NSF agreement with reviewers, given the admission that she kept
an electronic copy of the proposal after the review process was complete. Accordingly, we
referred an investigation to the university. 8 The Research Integrity Officer concluded that there
was sufficient substance to convene a university investigation committee (IC).

                                             University investigation

        We received a copy of the university investigation report. 9 The investigation committee
(IC) reviewed documents provided by our office, interviewed the Subject, and provided a
transcript of the Subject's interview. The Subject was accompanied by counsel 10 for the
interview.
      In her interview with the IC, the Subject distinguished two types of information in an
NSF proposal: 1) information generally available to the public; and 2) confidential information. 11




8
     Tab 3.
9
     Tab 4.
10
     Subject's counsel is
11
     Subject interview transcnpt, page 1 (included in the materials at Tab 4).




                                                                                                       3
SENSITIVE                                                                              SENSITIVE


The Subject asserted in her interview that the figure that she took from the reviewed proposal
constitutes information generally available to the public, that NSF does not restrict the use of
public information found in proposals, 12 and that the figure cannot be "attributed as another
person's idea, process, result, or works." 13 The Subject contended that any information provided
within the background section of a proposal submitted to NSF is publicly available. 14 Finally,
because the figure cannot be attributed to another person, the Subject asserted that her actions do
not constitute plagiarism. 15 The Subject additionally claimed that since use of the figure in her
presentations was not part of proposing or performing research funded by NSF, then her action
cannot constitute research misconduct as defined by NSF. 16 The Subject then claimed that issues
                                                    17
of pattern of behavior and intent are thereby moot.

        Although the Subject asserted that the figure she copied is common knowledge, 18 she
admits in the interview that she "personally [doesn't] even know" what the values in the copied
figure mean. 19 Asked by the IC how she could conclude that the figure was public information
when she did not understand its details, the Subject explained that the type of computational
problem that the figure exemplified was public information. 20 The Subject stated that she
searched the web for appropriate illustrative figures to use in her presentation, but she could not
find anything satisfactory. She then remembered the figure in the proposal, and since she had
retained an electronic copy of the proposal after the NSF panel review, she copied the figure from
             21
the proposal. The Subject explained to the IC how the copied figure appeared in a second
presentation when the slide was reused by others, and how the copied figure was replaced in a
proceedings publication with a figure that she later created. 22 In answer to a question, the
Subject stated she would have required 30 or 40 minutes to create a figure equivalent to the one
she copied from the NSF proposal. 23

          The Subject stated:

          So I do understand that I should not have done and copied the figure and copy and
          paste. It was really an honest mistake. So I really just feel sorry about that. 24

                                                  ***


12
     Subject interview transcript, page 13.
13
     Subject interview transcript, page 14.
14
     Subject interview transcript, page 38.
15
     Subject interview transcript, page 14.
16
     Subject interview transcript, page 16.
17
     Subject interview transcript, page 17.
18
     Subject interview transcript, page 39.
19
     Subject interview transcript, page 39.
20
     Subject interview transcript, page 43-44.
21
     Subject interview transcript, pages 44-47.
22
     Subject interview transcript, page 57.
23
     Subject interview transcript, page 70.
24
     Subject interview transcript, page 31.




                                                                                                  4
SENSITIVE                                                                                 SENSITIVE


          I'd like to apologize. I know that it was several mistakes made on my part. I
          know that some of them have been due to the style, the work style that I have. It's
          very carelessly done, no intention. I literally sleep four, five hours only, and many
          of these mistakes would be carelessly done and I really apologize. Personally I
          know how busy all of you are, and I apologize to NSF and the PI of the
                     25
          proposal.

        The Subject described her process for review of NSF proposals. She stated that she first
downloaded proposals through Fastlane. She claimed at first that NSF does not require any
confidentiality agreements prior to download, 26 but then admitted that she did not remember if
NSF did or not have a confidentiality agreement in place. 27 The Subject agreed that she signed a
confidentiality agreement at the end of her service on an NSF review panel, 28 but stated that she
did not read the agreement. 29

        During her interview, the Subject stated she provided copies of NSF proposals to her
students, and asked them to review the proposals. 30 An IC member pointed out that the NSF
confidentiality agreement explicitly states that the proposals are not to be shared; the Subject
responded that she did not read the agreement at the time she downloaded the proposals, 31 and
did not read the agreement until she received the inquiry letter from NSF OIG. 32 The Subject
admitted that she placed electronic copies of the proposals onto a university server so as to
provide access to them by her students, 33 and explained to the students that the proposals were
              34
confidential.     The Subject did not know if students made copies of the NSF proposals placed
on the server. 35

        The IC concluded that the Subject's actions constituted plagiarism, 36 were a significant
                                    37
departure from accepted practices, and were committed intentionally, knowingly, and
recklessly. 38 The IC concluded that the Subject's actions were an isolated event, although the IC
did not investigate whether material from confidential NSF proposals appeared in the Subject's
other presentations, proposals, or publications. The IC did not interview the Subject's students,
and did not investigate whether the proposals were copied by the students or whether they still
resided on the university server. The IC concluded that the Subject's actions had no significant
impact.

25
     Subject interview transcript, page 86.
26
     Subject interview transcript, page 18.
27
     Subject interview transcript, page 19.
28
     Subject interview transcript, page 19.
29
     Subject interview transcript, page 22.
30
     Subject interview transcript, page 26 and page 28.
31
     Subject interview transcript, page 26.
32
     Subject interview transcript, page 27.
33
     Subject interview transcript, page 29.
34
     Subject interview transcript, page 29.
35
     Subject interview transcript, page 81.
36
     IC report, page 7
37
     IC report, page 8.
38
     IC report, page 8.




                                                                                                     5
SENSITIVE                                                                                SENSITNE


        The IC recommended that the Subject apologize to NSF and to the PI of the proposal
from which the figure was copied, take actions to remove copies of the presentation from public
websites, and take action to remove stored copies of confidential NSF proposals from devices
she controlled. The IC recommended that the Subject receive training in the responsible conduct
of research, and should train her current and future graduate students in the responsible conduct
of research. 39

        The Subject provided comments on the university IC report through her counsel. The
Subject denied that she committed plagiarism, because the copied figure appeared in a
presentation that did not present her research, and the figure represented common knowledge. 40
Accordingly, the Subject asserts that her actions do not fit within the definition of plagiarism
used by the university or by NSF. The Subject denied that her actions were intentional, knowing
or reckless because she was unfamiliar with NSF conditions of confidentiality in the review of
proposals. 41

        The university Vice Chancellor accepted the IC report, its findings, and the recommended
actions. The Vice Chancellor instructed the Subject to 1) apologize to NSF and the PI of the
proposal from which the figure was taken, 2) contact the relevant organizations to remove public
access to the two presentations that contain the copied figure, and 3) remove electronic copies of
previously reviewed NSF proposals from devices under her control. In addition, the Vice
Chancellor directed that appropriate responsible-conduct-of-research training be completed by
the Subject.

                                                    OIG's Assessment

        We concluded that the university investigation report was fundamentally accurate and
complete, and that the university followed reasonable procedures. We wrote to the Subject and
her counsel to invite comment on the university inquiry report. Subject's counsel responded, 42
inter alia, that the Subject's actions do not fit the federal definition of plagiarism: "appropriation
of another person's ideas, processes, results or words without giving appropriate credit" since the
copied figure was "simply an example of a symbol or visual tool. She could have replaced that
figure with countless alternative figures, charts, symbols, etc. The underlying resource is
irrelevant." 43

       The preamble to the federal research misconduct policy specifically addresses the issue of
material taken from proposals during the merit review process:




39
      IC report, pagelO.
4
41
    ° Counsel's response appears as Appendix Kin the university report.
      Counsel letter, page 6 (Appendix K).
42
      The response is essentially identical to that provided to the university.
43
      Response letter, page 4 (Tab 5).



                                                                                                     6
SENSITIVE                                                                                            SENSITNE


        Issue: A number of commenters interpreted the definition of plagiarism to imply
        that using material gathered during the peer review process was acceptable as long
        as it is cited.

        Response: The policy is intended to address the problem of reviewers who take
        material from the peer review process and use it without attribution. This
        constitutes plagiarism. We have deleted the phrase "including those obtained
        through confidential review of others' research proposals and manuscripts" to
        avoid any appearance of condoning a breach of confidentiality in the peer review
                 44
        process.

The definition of research misconduct is:

        Research misconduct means fabrication, falsification, or plagiarism in proposing
        or performing research funded by NSF, reviewing research proposals submitted to
        NSF, or in reporting research results funded by NSF. 45

An act of plagiarism linked to the review ofNSF proposals is therefore within the scope of
NSF's research misconduct regulation, which provides the basis for our investigation and
assessment, and for our recommendations. In addition, copying a figure falls squarely within the
definition of plagiarism, notwithstanding the Subject's efforts to characterize a figure as a mere
"tool" rather than the expression of the creator's particular ideas, processes or results. Finally,
the Subject's contention that although she signed the reviewer agreement she should not be held
to it, because she did not read it, is unpersuasive on its face. Further, assuming she didn't read it,
she was still presented with a slide on confidentiality that instructs reviewers to destroy all copies
of proposals. Downloading proposals to her own computer, sharing them with students and
posting them on websites is a far cry from destroying them, as she had been instructed to do.

       A finding of research misconduct by NSF requires that 1) there be a significant departure
from accepted practices of the relevant research community, that 2) the research misconduct be
committed intentionally, or knowingly, or recklessly, and that 3) the allegation be proved by a
preponderance of the evidence. 46

                                                     Acts

        The Subject copied a figure from the confidential NSF proposal, and used it without
attribution in her presentation. She gained access to the figure by reviewing a proposal submitted
to NSF. Although the figure was part of a larger image, the Subject's copying was facilitated by
the fact that the Subject improperly retained copies of the NSF proposals she reviewed. The NSF


44
   Executive Office of the President; Federal Policy on Research Misconduct; Preamble for Research
Misconduct Policy, 65 FR 76260 (Tab 6).
45
   45 C.F.R. §689.l(a).
46
   45 C.F.R. §689.2(c).




                                                                                                            7
SENSITIVE                                                                             SENSITNE


reviewer agreement 47 states that materials from proposals cannot be re-used by reviewers, and
that the proposals cannot be shared with others without notification to the NSF program officer
and the Subject signed this agreement.

        The Subject's curriculum vita 48 1ists extensive experience in research and education, and
appointments at a national laboratory complementing her university appointment. In each of the
scientific communities in which she is involved, plagiarism is a violation of the standards of
scholarship. NSF's reviewer agreement is clear on the confidentiality of the review process, and
the Subject's actions are contrary to the standards of the reviewer community. We conclude the
Subject failed to ensure adequate attribution to words written by others, and the Subject
committed acts of plagiarism that significantly departed from accepted standards of the relevant
research community.



       The Subject admitted to retrieving a saved electronic copy of the proposal she reviewed,
and copying a figure from it into her presentation. The admission established her level of intent
as purposeful or intentional.

                                        Standard o(proo(

        We conclude that direct comparison ofthe figure in the proposal with that in the
Subject's presentation, and the lack of attribution for the figure, establish the Subject's
plagiarism by a preponderance of the evidence. Because these actions represent a significant
departure from accepted practices, and were intentionally committed, we conclude that the
Subject's plagiarism constitutes research misconduct.


                                OIG's Recommended Disposition

       When deciding what appropriate action to take upon a finding of misconduct, NSF must
consider: (1) how serious the misconduct was; (2) the degree to which the misconduct was
knowing, intentional, or reckless; (3) whether it was an isolated event or part of a pattern;
(4) whether it had a significant impact on the research record, research subjects, other
researchers, institutions or the public welfare; and (5) other relevant circumstances. 49

                                            Seriousness

       To admittedly conserve her time and effort, the Subject intentionally took advantage of a
resource to which she had unique access through her participation in the NSF review process.


47
     NSF Form 1230P (Tab 7).
48
     Tab 8.
49
     45 C.F.R. § 689.3(b).



                                                                                                     8
SENSITIVE                                                                               SENSITIVE


Her actions undermine the trust that proposal authors must have in that process, specifically, that
text, figures, ideas and research plans presented in proposals are treated in confidence.

                                                       Pattern

        The Subject asserts that she has not improperly copied any other material. The IC report
stated that it found no evidence of a pattern.

                                        Impact on the Research Record

        We did not identify any significant impact on the research record.

                                         Other relevant circumstances

       The Subject's plagiarism is linked to her service as a reviewer for NSF. The NSF
reviewer confidentiality agreement is signed by each reviewer, and the topic of confidentiality is
covered in the presentation given to all of them. The agreement states specifically that material.
from the proposals is confidential, that proposals are not to be shared, and are not to be retained.
The Subject's stated failure to read the agreement as a first-time reviewer for NSF does not
excuse her disregard for the stated requirements. The Subject admitted to retaining electronic
copies of proposals, and sharing them with her students, both violations of the agreement she
signed. Finally, she then used the proposal as a source from which to copy a figure to use in her
presentation. The Subject's violations are relevant to NSF's decision and actions in this case.

                                           OIG's Recommendations

         We recommend that NSF:
         • Send the Subject a letter of reprimand notifying her that NSF has made a finding of
            research misconduct. 50
         • Require the Subject complete a responsible conduct of research training program and
            provide documentation ofthe program's content within 1 year ofNSF's finding. 5 1
            The format should be an instructor-led course and specifically include topics such as
            review confidentiality and plagiarism.

For a period of 3 years as of the date of NSF's finding:
       • Require for each document (proposal, report, etc.) to which the Subject contributes
           for submission to NSF (directly or through her institution),
               o the Subject to submit a certification to the AlGI that the document does not
                   contain plagiarism, falsification, or fabrication. 52



50
   A Group I action 45 C.P.R. 689.3(a)(l)(i).
51
   This action is similar to Group I actions 45 C.P.R. 689.3(a)(l).
52
   This action is similar to 45 C.P.R. 689.3(a)(l)(iii).




                                                                                                       9
SENSITIVE                                                                                 SENSITIVE


                  o the Subject to submit assurances from a responsible official of her employer to
                       the AlGI that the document does not contain plagiarism, falsification, or
                       fabrication. 53
           •   Bar the Subject from participating as a peer reviewer, advisor, or consultant for
               NSF. 54

          Certifications, assurances, and certificate of attendance should be sent to the Assistant
      Inspector General for Investigations for retention in OIG's confidential file.




53
     A Group I action 45 C.F.R. 689.3(a)(l)(iii).
54
     A Group III action 45 C.F.R. 689.3(a)(3)(ii).



                                                                                                      10
                                 NATIONAL SCIENCE FOUNDATION
                                      4201 WILSON BOULEVARD
                                     ARLINGTON, VIRGINIA 22230




                                                                                JAN 13 2014
    OFFICE OF THE
   DEPUTY DIRECTOR




CERTIFIED MAIL --RETURN RECEIPT REQUESTED




       Re:     Notice of Research Misconduct Determination


Dear

       You copied a figure without attribution from a proposal submitted to the National
Science Foundation ("NSF") into two public presentations you conducted. As documented in the
attached Investigative Report prepared by NSF's Office of Inspector General ("OIG"), your
misconduct constitutes plagiarism.

Research Misconduct and Proposed Sanctions
        Under NSF's regulations, "research misconduct" is defined as "fabrication, falsification,
or plagiarism in proposing or performing research funded by NSF, reviewing research proposals
submitted to NSF, or in reporting research results funded by NSF." 45 CFR § 689.l(a). NSF
defmes "plagiarism" as "the appropriation of another person's ideas, processes, results or words
without giving appropriate credit." 45 CFR § 689.l(a)(3). A finding of research misconduct
requires that:

       (1) There be a significant departure from accepted practices of the relevant research
           community; and
       (2) The research misconduct be committed intentionally, or knowingly, or recklessly;
           and
       (3) The allegation be proven by a preponderance of evidence.

45 CFR § 689.2(c).

       Your presentations contained a figure copied from a proposal that you reviewed in
conjunction with NSF's merit review process. By preparing a presentation that copied the ideas
                                                                                             Page 2
or words of another without adequate attribution, as described in the OIG Investigative Report,
you misrepresented someone. else's work as your own. Your conduct unquestionably constitutes
plagiarism. I therefore conclude that your actions meet the definition of"research misconduct"
set forth in NSF's regulations.

        Pursuant to NSF regulations, the Foundation must also determine whether to make a
finding of misconduct based on a preponderance of the evidence. 45 CFR § 689.2(c). After
reviewing the Investigative Report, NSF has determined that, based on a preponderance of the
 evidence, your plagiarism was committed recklessly and constituted a significant departure from
accepted practices of the relevant research community. I am, therefore, issuing a finding of
 research misconduct against you.

        NSF's regulations establish three categories of actions (Group I, II, and III) that can be
taken in response to a finding of misconduct. 45 CFR § 689.3(a). Group I actions include
issuing a letter of reprimand; conditioning awards on prior approval of particular activities from
NSF; requiring that an institution or individual obtain special prior approval of particular
activities from NSF; and requiring that an institutional representative certify as to the accuracy of
repQrts or certifications of compliance with particular requirements. 45 CFR § 689.3(a)(l).
ofo~'II actions include award suspension or restrictions on designated activities or
expenditures; requiring special reviews of requests for funding; and requiring correction to the
research record. 45 CFR § 689.3(a)(2). Group III actions include suspension or termination of
awards; prohibitions on participation as NSF reviewers, advisors or consultants; and debarment
or suspension from participation in NSF programs. 45 CFR § 689.3(a)(3).

        In determining the severity of the sanction to impose for research misconduct, I have
considered the· seriousness of the misconduct, and our determination that it was committed
intentionally. I have also considered the fact that your misconduct was not part of a pattern of
misconduct, and had no significant impact on the research record, as well as other relevant
circumstances. 45 CFR § 689.3(b).

       After assessing the relevant facts and circumstances of this case, I am taking the
following actions against you:

        (1) Until December 1, 2016, you must provide certifications to the OIG that any proposal
            orreport you submit to NSF as a PI or co-PI does not contain plagiarized, falsified, or
            fabricated material;

        (2) Until December 1, 2016, you must submit assurances from a responsible official of
            your employer to the OIG that any proposal or report you submit to NSF as a PI or
            co-PI does not contain plagiarized, falsified, or fabricated material;

        (3) Until December 1, 201(), you are prohibited from serving as a peer reviewer, advisor,
            or consultant for NSF; and
                                                                                          Page3
       (4) By December 1, 2014, you must attend a responsible conduct of research training
           program and provide documentation of the program's content to the OIG. The format
           should be an instructor-led course and specifically include topics such as review
           confidentiality and plagiarism.

       The certifications, assurances and training documentation should be submitted in writing
to OIG, Associate Inspector General for Investigations, 4201 Wilson Boulevard, Arlington,
Virginia 22230.

Procedures Governing Appeals
        Under NSF's regulations, you have 30 days after receipt ofthis letter to submit an appeal
of this decision, in writing, to the Director of the Foundation. 45 CFR § 689.10(a). Any appeal
should be addressed to the Director at the National Science Foundation, 4201 Wilson Boulevard,
Arlington, Virginia 22230. If we do not receive your appeal within the 30-day period, this
decision will become final.

       For your information, we are attaching a copy of the applicable regulations. If you have
any questions about the foregoing, please c a l l - , Deputy General Counsel, at (703) 292-
8060.



                                                    Sincerely,




                                                    FaeKorsmo
                                                    Senior Advisor


Enclosures
   Investigative Report
- 45 C.F.R. Part 689