Published by the National Science Foundation, Office of Inspector General on 2012-10-18.

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: Al1060042                                                                        Page 1 of 1

                   We investigated a new NSF program officer 1 for reviewing of a proposal 2 for which she
           appeared to have a conflict of interests. The program officer at the time she arrived at NSF had been
           engaged in several concrete steps to move forward in a collaboration with the PI3 on the proposal.
           These steps continued after the program officer was assigned responsibility for the review of the
           proposal. The program officer did not notify NSF management of the appearance of the conflict.
           Based on the facts developed during our investigation, we referred the matter to NSF (attached) for
           appropriate action with respect to the program officer and NSF's review of its policies and
           procedures. NSF responded (attached) noting that the program officer had left NSF, and that it
           would consider our recommendation for modifying its conflicts of interest training for new program

                     This case is closed.

NSF OIG Form 2 (11 /02)

                                  4201 Wilson Boulevard

                                   Arlington, VA 22230

                                     (703) 292-8060

                                     August 6, 2012

TO :   Alan F. Boehm, Assistant Inspector General for Investigations

FROM : Karen Santoro Designated Agency Ethics    Official~--~
SUBJECT: Report of Investigation {OIG Case No. A 11060042)

The attached Investigation Report concerned a new program officer who was found to have
failed to disclose an appearance of a conflict of interest (COl). The report recommended
administrative actions be taken with respect to her. I have been advised that the program
officer (who was the subject ofthe report) is no longer with NSF, so the recommendation
regarding her conduct is moot.;

However, the Report made two additional recommendations aimed at the NSF's COl training
program in general. These recommendations are addressed below:

Recommendation# 1: Ensure new employees complete their annual CO/ training requirement
prior to conducting proposal review activities or at a minimum within 3 months of their start

The requirement to receive annual COl training on a calendar year basis is contained in U.S.
Office of Government Ethics (OGE) Government-wide Standards of Ethical Conduct for
Employees of the Executive Branch at 5 CFR 2638, Subpart G. OGE only requires that the
training be completed by the end of the calendar year.

Nonetheless, OGC is scheduled to provide the annual COl training to new program officers as
part ofthe NSF Academy's planned Core Course entitled "Merit Review Basics" in August,
September, and October of 2012 . NSF is considering whether this Core Course should be
required for all new program officers within three months of their NSF start date.

Recommendation #2: Review Manua/15 and division level guidance for consistency with the
controlling regulations regarding the appropriate handling of appearances of CO Is.
Manual15 is consistent with the OGE regulations and consistent with the NSF supplemental
regulations approved by OGE in 1966. A recent audit by OGE, including a review of Manua l 15,
did not note any discrepancies between Manual15 and OGE's regulations, and we agree with

OGC concurs with the recommendation to review division level guidance for consistency with
OGE' s regula tions. We recently met meet wit h our divisional conflicts officials on June 28, 2012 .
At that meeting, OGC specifically requested that any divisional documents on appearances of
COl be sent to us for review. Only DEB responded . OGC has reviewed their guidance and it now
has been revised to reflect -     s longstanding practices. OGC will follow-up with the divisional
conflicts officials to ensure no other divisional level guidance exists.


cc:    Cora Marrett, Deputy Director

        Allison Lerner, Inspector General

                          Division Director,

                          Office of the Directo r' s Liaison to OIG

        Lawrence Rudolph, General Counsel

; It is important to note that the OIG recommendation regarding the program officer was based
on the impartiality regulations in Government-wide Standards of Ethical Conduct fo r Employees
of the Executive Branch. 5 CFR 2635.502(b)(1). OIG found that the program officer failed to
disclose a co llaborator relationship with a PI who submitted a proposal she was asked to review.
The program officer and the PI had exchanged e mails about a joint project. That finding failed
to consider the NSF Supplemental Standards of Ethical Conduct, which state that "An employee
has a covered relationship, within the meaning of 5 CFR 2635.502{b)(1}, with ... [a] person who is
an investigator ... and with whom the employee has ... [c]ollaborated on a project, book, article,
report, or paper within the last 48 months."     5 CFR 5301.102(a)(3)(ii)(C). "Collaborated" is past
tense, and there must be or have been a project, book, article, report, or paper on which the
two individuals collaborated. OGC's longstanding interpretation is that plans to collaborate do
not fall within this regulatory restriction . Thus, the program officer was not required to disclose
mere plans to collabo rate in the future which may or may not come to fru it ion.
               National Sdeuce Foundation • Office of the Inspector General
               4201 Wilson Boulevard, Suite II-705, Arlington,Virginia 22230

                                        MAY 22 2012


To:                  Sant~r
                        , De ignated Agency Ethics Official
                     . Boel   ,   s1stant Inspector General for Investigations

Subject:       Report of Investigation (OIG Case No. A11060042)

Please note: The attached report contains confidential personal information and it should be
disclosed only to individuals who must have knowledge of its contents to facilitate NSF's
assessment and resolution of this matter. Unauthorized disclosure may result in personal
criminal liability under the Privacy Act, 5 U.S.C. § 552a(i)(l). This cover memorandum does not
contain confidential personal information and may be disclosed (separated from the attached
repmi) as needed to address its recommendations.

        The attached Investigation Report concerns a new NSF program officer who failed to
disclose the reasonable appearance of a conflict of interests (COl) when recommending the
disposition of a colleague's pending NSF proposal. Our report contains a recommendation with
respect to the program officer's conduct with respect to handling her colleague's proposal.

        In addition to the recommendation directly related to the program officer's conduct, we
also recommend that the Foundation take additional actions to strengthen its COl training
program. Currently a new employee may take up to one year to complete an initial full COl
training ·session, while having substantial involvement in the award making process. Also, NSF
internal guidance on COis, such as Manual 15 or division level guidance such as the document
used by the program officer's division, do not appear to address adequately the intention of the
regulations with respect to appearances of COIs. We therefore recommend that the Foundation:
(l) ensure new employees complete their annual COl training requirement prior to conducting
proposal review activities or at a minimum within 3 months of their start date; and (2) review
Manual 15 and division level guidance for consistency with the controlling regulations regarding
the appropriate handling of appearances of CO Is.
C ONFIDENTIAL                                                                     CONFIDENTIAL

       National Science Foundation
        Office of Inspector General

                 Report of Investigation
                Case Number A11060042
                              May 22,2012
                This Confidential Report of Investigation is provided to you
                                 FOR OFFICIAL USE ONLY.
It contains protected personal information, the unauthorized disclosure of which may result in
personal criminal liability tmder the Privacy Act, 5 U.S.C. § 552a. This report may be further
disc1osed within NSF only to individuals who 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 of Information and Privacy Acts, 5 U.S.C. §§ 552 &
552a. Plea<>e take appropriate precautions handling this confidential report of investigation.

                                                                           NSF OlG Form 22b (n/o6)
COl\TFIDENTIAL                                                                      CONFIDENTIAL

                                       Executive Summat·y
         We reviewed an allegation that a new NSF Program Officer (the Subject) handled the
review of a proposal (the Proposal) 2 from a PI 3 with whom she had ongoing collaborative
activities and therefore an actual or apparent conflict of interests (COl). After interviewing the
Subject and reviewing email correspondence, we conclude that the preponderance of the
evidence shows that the Subject took several concrete and substantive steps to collaborate with
the PI, which created an appearance of a COI that she knowingly failed to disclose to NSF. We
recommend NSF take appropriate steps to counsel the Subject and review her proposal
assignments for possible undisclosed COIs.


       Federal employees, including NSF rotators, have a basic obligation of public trust that is
enunciated in Executive Order 12731 and codified in 5 C.P.R. part 2635. In particular,
§ 2635.101(b)(l4):

               Employees shall endeavor to avoid any actions creating the
               appearance that they are violating the law or the ethical standards
               set forth in this part. Whether particular circumstances create an
               appearance that the law or these standards have been violated shall
               be determined from the perspective of a reasonable person with
               knowledge of the relevant facts. [Emphasis added.]

The regulation discusses in more detail impartiality in official duties in § 2635.501 - .503
(Subpart E). Although much of the analysis described in Subpart E involves covered          .
relationships premised on financial benefits, the regulation encompasses more broadly those
situations that would cause a reasonable person to question impartiality.4 The Office of
Govenunent Ethics' (OGE) comments in promulgating part 2635 provide additional guidance in
evaluating appearances:

              Section 2635.502(a)(2) is intended to alert employees to the fact
              that covered relationships described in §2635.502(b)(l) are not the
              only relationsrups that can raise appearance issues and to
              encourage employees to use the process set forth in §2635.502 to
              address any circumstances that would raise a question
              regarding their impartiality. These could well include an
              employee's assignment to a particular matter to which a boyfriend,
              girlfriend, or other close friend is a party. [51[Emphasis added.]
     CONFIDENTIAL                                                                                    CONFIDENTIAL

              On arrival at NSF, permanent and temporary staff members attend a New Employee
     Orientation (NEO), which customarily includes a briefing by the Office of General Counsel
     (OGC) 6 alerting them of their responsibilities to declare actual and apparent CO Is. OGC
     generally informs the NEO attendees that each division has an appointed, experienced conflicts
     official to address COI issues at the division levee A hardcopy of NSF Manual15 "Conflicts of
     Interest and Standards of Ethical Conduct" 8 is included in the materials OGC provides to new
    staff at this briefing. Manual 15 is a compilation of statutory and regulatory language applicable
    to NSF staff. All new NSF staff members are automatically granted 1 hour of official duty time
    to read Manual 15, wruch provides NSF-specific guidance in the application oftbe government-
    wide ethics rules. The OGC briefing is customarily followed by an OIG briefing in which the
    new employees are reminded of the importance of consulting with the NSF Designated Agency
    Ethics Official (DAEO) about possible CO Is. Furthermore, each new employee must complete a
    full COl training session administered by the DAEO before the end of the calendar year oftheir
    start date. Thus, new employees entering early in the calendar year (e.g., January) may take up
    to almost one year to complete that training.

         The Subject's division 9 provides its program staff with a four-page document entitled "A
rough guide to avoiding conflicts of interest when selecting panelists and ad hoc reviewers" (The
Rough Guide). 10 This document is of analogous use in this case because, although it is intended
for application to panelists, the COI principles are the same. 11 It is primarily a highly condensed
version ofNSF Manuall5, but it is more detailed than the NSF Fonn 1230P 12 used during panel
review. The Rough Guide includes explanatory material to assist program officers in evaluating
apparent and actual COis of the reviewers they select, which provides more detail on some
matters than does Manual 15. Of analogous relevance to the present case, The Rough Guide
states that an "intellectual COI" involves:

                     an intellectual relationship with the PI, co-PI, or other named
                     person; such a relationship is defined as having co-authored any
                     pub}jcation in the last 48 months, having co-edited a book or co-
                     organized a symposium within the past 24 months, or having an
                     active research collaboration. [DJ

This is a restatement of the guidance in Manual 15. The Rough Guide further describes
examples of situations of appearances of COIs that are not deemed actual CO Is, including:

     We note that such a briefing does not always occur; for example, no OGC staff presented at the 9 April20 12 NEO.
  Specific guidance for the Divisional COl officials is found in NSF Manual 20, Tab 1 at 44-55.
  Tab 1 at L-43, NSF Manual15 "Conflicts oflnterest and Standards of Ethical Conduct." NSF conflicts officials
have additional guidance for assessing CO Is in NSF Manual20 (Tab I at 44-55). Throughout this report we refer to
the OIG-generated page numbers which appear in the lower right corner preceded by the case number. The page
                       from Tab 1       Tab 6.

   Tab3 .
   It was the Subject who brought this document to our attention to support her assertion that an intent to collaborate
is not a conflict.
   Tab 2, NSF Form l230P .
   Tab 3 at 60.

     CONFIDENTIAL                                                                                  CONFIDENTIAL

                   a potential collaboration between the panelist/reviewer and the PI
                   was discussed but never established in any concrete way. [t 4J

                                                OIG Investigation

         The Subject entered NSF as a rotator on 28 February 2011 and attended the NEO. When
 we interviewed her on 4 November 2011, she recalled attending the OGC portion of the NEO on
 that day and stated that she had read NSF Manual 15 within her first 2 months of service at NSF.
 She also stated she had a COI discussion with her division director. According to OGC, the
 Subject was scheduled for her first annual full COI training on 28 June 2011, but she did not
 attend that session. The Subject completed the COI training on 13 December 2011, over 9
 months after her entry date.

           In the months leading up to and following her arrival at NSF, the Subject was engaged in
 email correspondence with two researchers, each at a different institution in different Western
 states. 15 One of these researchers was the PI on the Proposal. These emails discuss their plans
 for preparing a joint proposal for submission to either the National Institutes of Health (NIH) or
 NSF. These emails demonstrate the Subject:

              )>   contacted her division about submission of the planned proposal and had been
                   referred to her division conflicts official (email dated 14-18 January 2011); 16

              )>   contacted an NIH program office, including a project summary with the other two
                   researchers identified by name, to assess whether the planned proposal would fit
                   within the NIH program's next funding cycle (email dated 18-20 January 2011); 17

              )>   told the two researchers she would soon be a rotator at NSF (email dated
                   20 January 2011). 18

An email the Subject sent to the two researchers on 2 March 2011- her 3rd day at NSF-
contained the subject line "Arizona grant proposal trip" and discusses how best to structure her
travel to discuss the work on a joint proposal. 19•20 The following day her division assigned the
Proposal to her. 21

    Tab 3 at 61.
    Tab 6.
    Tab 6 at 139-141.
    Tab 6 at 72-74 and 142.
    Tab 6 at 72.
    Tab 6 at 88.
    Our review of NSF travel records for the PO identified only one NSF-funded IR1D trip to the PI's state. The trip
appeared reasonably related to the PO's ongoing NSF award for wlllch an appropriate substitute negotiator had been
approved by NSF. There is no indication IR!D or other NSF funds were used solely for a proposal preparation trip.
    Tab 5 at 69.

     CONFIDENTIAL                                                                        CONFIDENTIAL

         On 7 March 2011, the other researcher22 declined to participate further in the planned
 proposal. The Subject's response described her intentions to move forward with the PI in
 finding a substitute third partner, noting that she was "still keen on the f_proposal] idea" and "still
 very interested in developing a proposal sooner rather than later, even if we want to return to
 [another] idea next year ifNSF" has an applicable program. 74 This other idea involved changing
 the species to be studied to the one which the PI proposed to study in the Proposal.

         After receiving notificatien that NSF had declined the Proposal, the PI learned that the
 Subject served as the cognizant program officer. He emailed the Division Director,25 stating "the
program officer to whom this proposal was ultimately assigned had a clear conflict of interest
with it ...." We note the PI did not identify the Subject as a collaborator on his biographical
sketch in the Proposal, although he provided an extensive list of collaborators. In his email to
the Division Director, the PI explained that he had not previously collaborated with the Subject,
who did not initiate the collaboration with him until after the Proposal was submitted.28 The
Proposal has a submission date of 10 January 2011 ,29 ten days before the Subject' s email alerting
the PI to her pending arrival at NSF.

        Although the Subject was the "Managing Program Officer" for the Proposal,30 she told us
that she did not influence the Proposal's rating with the review panel. The panel ranked the
Proposal in the "Do Not Fund" group, the lowest of the three groups. She also stated that the
recommendation to decline was a group decision·between her and the other three program
officers in her division. There are no indications that the panelists' written reviews or the panel
summary had been improperly influenced.

        The Subject asserted her understanding that the COI rules and specific guidance within
her division did not treat an "intent to collaborate" as a COL The Subject stated her belief that
collaboration does not exist until there is a submitted proposal or an exchange of lab personnel.
The Subject provided a highlighted copy of The Rough Guide to support this assertion.
Specifically under the heading "Cases where there is an apparent conflict of interest," she
highlighted in support of her assertion the following example "where there appeared to be a
conflict but in fact there was not":

                    If a potential collaboration between the panelist/reviewer and the
                    PI was discussed but never established in any concrete way.

       We identified no evidence of direct and predictable financial relationships as defined in
§ 2635.502 that would create an actual COL


     Tab 6 at 83.
   Tab 7 at 143.
   Tab 4 at 68.
   Tab 7 at 143.
   Tab 4 at 65.
   As indicated on the declination letter and the proposal assignment log in eJacket.

     CONFIDENTIAL                                                                  CONFIDENTIAL


         From the perspective of a reasonable person with knowledge of the relevant facts, we
  conclude that the evidence supports finding the Subject had an appearance of a COI that she ·
 knowingly failed to disclose to NSF. Despite her assertion that an intention to collaborate is not
 a COI, the highlighted text in The Rough Guide the Subject offered in her defense in fact
 undermines her defense. While not an authoritative source of the ethics rules, the highlighted
 text in The Rough Guide as quoted above describes a set of circumstances that create an
 appearance of a COI. Furthermore, the specific language of§ 2635 .101(b)(14) directs federaL
 employees to "endeavor to avoid any actions creating the appearance" of a cor as "determined
 from the perspective of a reasonable person with knowledge of the relevant facts. " OGE' s
 comments in promulgating part 2635 note OGE's position that relationships other than those
 described in the regulation "can raise appearance issues" that may "raise a question regarding
 their impartiality."

        In her reliance on The Rough Guide, the Subject asserted that no collaboration had
formed because she and the PI did not submit a proposal jointly, and no joint work had
commenced in each ot~er ' s lab. The Subject maintains that absent either of these events, no
collaboration formed, and therefore her intent to collaborate was not a COL However, the
evidence demonstrates that the Subject went beyond an abstract intention to collaborate and
carried out significant; concrete steps to move the effort forward. These steps included
scheduling a meeting necessitating travel, inquiring about funding opportunities under all three
names, and crafting a project summary that she included in her inquiries about suitable programs
at NIH and NSF.

         It is unlikely under the present facts that the Subject had sufficient sway over both the
panel and the other program officers to demote the Proposal out of consideration for funding.
Further, given the Subject's interest in pursuing the collaboration with the PI, including a
possible change in the collaboration project to the same species involved in the Proposal, would
just as likely have resulted in her promoting the Proposal toward a recommendation for funding.

        Regardless, the Subject's failure to disclose the relationship prevented NSF conflicts
officials from properly managing the appearance of a COL The 9-month period of time the
Subject was given under NSF's current policy for full COl training for new employees somewhat
mitigates the Subject's culpability in this matter but does not absolve her of her failure to


       We recommend that NSF take appropriate administrative action with respect to the
Subject including additional counseling and a complete COl review of the proposal portfolio
assigned to her. 31

     5 C.F.R. § 2635.106 authorizes disciplinary and corrective action.