CAUT | ACPPU
Canadian Association of University Teachers
Services
Model Clause on Fraud and Misconduct in Academic Research and Scholarly Activity
1
Definition
1.1
Factors intrinsic to the process of academic research and scholarly activity such as honest error, conflicting data, or differences in interpretation or assessment of data or of experimental design or practice do not constitute fraud or misconduct.
1.2
Fraud and misconduct in academic research and scholarly activity means:
(a) fabrication, falsification, or plagiarism;
(b) failure to recognize by due acknowledgement the substantive contributions of others, including students, or the use of unpublished material of others without permission, or the use of archival materials in violation of the rules of the archival source;
(c) failure to obtain the permission of the author before making significant use in any publication of new information, concepts or data obtained through access to manuscripts or grant applications during the peer review process;
(d) attribution of authorship to persons other than those who have participated sufficiently in the work to take public responsibility for its intellectual content.1
(e) submission for publication of articles originally published elsewhere except where it is clearly indicated in the published work that the publication is intended to be a republication;
(f) unauthorized and intentional diversion of the research funds of the university, federal or provincial granting councils or other sponsors of research;
(g) material failure to comply with relevant federal or provincial statutes or regulations for the protection of researchers, human subjects, or the health and safety of the public, or for the welfare of laboratory animals;
(h) material failure to meet other relevant legal requirements that relate to the conduct or reporting of research and scholarly activity;
(i) failure to reveal material conflict of interest to sponsors or to those who commission work, or when asked to undertake reviews of research grant applications or manuscripts for publication, or to test products for sale or for distribution to the public;
(j) failure by those involved in a research project to reveal to the employer any material financial interest in a company that contracts with the employer to undertake research, particularly research involving the company's products or those of its direct competitors, or to provide research-related materials or services. Material financial interest includes ownership, substantial stock holding, a directorship, significant honoraria or consulting fees but does not include routine stock holding in a large publicly traded company.
1.3
Nothing in article 1.02 shall be construed to restrict the academic and artistic freedom of creative artists.
2
Retention of research and scholarly activity materials
2.1
Employees shall only be responsible for providing an arbitration board access to research and scholarly activity materials which are in their possession and not for research materials which may be stored in archives, libraries or other institutions which the employer may consult at its expense and according to the rules of the host institution.
2.2
(a) Normally, employees shall retain research and scholarly activity materials that are within their personal control for five years.
(b) No disciplinary action may be taken in respect of any research or scholarly activity if such disciplinary action is initiated more than five years after the date upon which such activity was completed.2
2.3
(a) If there are non-trivial financial costs involved in its retention, these costs shall be borne by the employer.
(b) The employee shall be indemnified by the Employer for any material loss resulting from the search or seizure, change of supervisory personnel, or access by third parties to or the use of his/her research and scholarly activity materials in the course of any investigation, inquiry or arbitration.
2.4
Ownership of research and scholarly activity materials collected, created or otherwise assembled by an employee shall be vested in that employee unless ownership of such materials had been vested in a person other than the employee or the employer prior to such creation, collection or assembly.
3
Procedures
3.1
Any discipline imposed on an employee for fraud or misconduct in research and scholarly activity shall be subject to article X (the grievance and arbitration article of the collective agreement) except that cases involving allegations of fraud or misconduct in research and scholarly activity shall proceed directly to arbitration. All allegations of fraud or misconduct in research and scholarly activity shall be in writing, with documented evidence, signed, dated and directed to the President. The President may refer the allegations to a designate.3
3.2
The President or designate shall investigate the allegations promptly, fairly and judiciously and in a confidential manner. All those contacted by the employer in the course of this investigation shall be explicitly informed that the process is confidential.
3.3
Before an investigation begins, the employee(s) named in the allegations shall be informed in writing of the investigation with a summary thereof sufficiently detailed to permit him/her a fair opportunity to respond if he/she wishes to do so, and of his/her right to be represented by the Faculty Association at any meetings between the employee and the employer or its designates. Any statements made by the employee during such meetings shall be without prejudice.
3.4
No person consulted by the employer concerning the case shall be appointed an arbitrator in any subsequent arbitration dealing with these allegations.
3.5
A statement from the employer that an employee was guilty of fraud or misconduct in research and scholarly activity, with or without any formal sanctions, constitutes discipline and may be arbitrated.
3.6
If the matter is referred to an arbitration board, the employer shall bear the onus of proving just and sufficient cause. Any matter referred to arbitration shall be heard de novo and the report(s) of any previous inquiry into such matters shall not be admitted into evidence.4 The arbitration board shall have the power to vary the penalty imposed by the employer.
3.7
Any finding of fraud or research and scholarly activity misconduct shall require clear, cogent and convincing proof of deliberate deception.
3.8
If the employer decides after investigation not to take disciplinary action against the employee named in the allegations or if an arbitration board decides in his/her favour, the employer shall remove all documentation concerning the allegations from the employee's official file, and shall, at the sole discretion of the employee, destroy the documentation or transfer it to the employee, except that it shall retain any arbitration report which shall be a public document.
3.9
The employer shall take such steps as may be necessary and reasonable to:
(a) protect the reputation and credibility of employees wrongfully accused of fraud or misconduct in research and scholarly activity, including written notification of the decision to all agencies, publishers, or individuals who were informed by the employer of the investigation.
(b) protect the rights, positions and reputations of employees who in good faith make allegations of research and scholarly activity misconduct, or whom it calls as witnesses in an investigation. Such protection shall include, as a minimum, legal counsel and other legal costs should the employee be sued for their participation in any investigation or in arbitration proceedings.
(c) minimize disruption to the research of the person making the allegation and of any third party whose research may be affected by the securing of evidence relevant to the allegation during the course of the investigation; and
(d) ensure that any disruption in research, teaching or community service resulting from allegations of fraud or misconduct does not adversely affect future decisions concerning the careers of those referenced in (a-c) above.
3.10
The university shall take disciplinary action against employees or students who make unfounded allegations of fraud or research and scholarly activity misconduct which are reckless, malicious or not in good faith.
3.11
If the employer's investigation or the arbitration board sustains an accusation of fraud or misconduct in research, and if that research is funded by an outside agency or has been published or submitted for publication, the President shall inform the agency or publisher concerned of the decision, as well as the faculty association and the complainant and respondent. In any event, if the outside agency or publisher has been informed of the proceedings before a judgment has been rendered, the President shall send a copy of the decision of the university administration to the agency or publisher concerned.
Endnotes
1. Purely formal association with the research project such as the headship of a laboratory or faculty where the head or dean had no direct research involvement may be noted as an acknowledgement but not as authorship. General supervision of the research group is also not sufficient for authorship but may be acknowledged. Technical help, data collection or critical reviews of the manuscript prior to publication may be acknowledged in a separate paragraph.
2. After the passage of time, it becomes less and less possible to locate the necessary evidence for such cases. This does not, however, preclude public discussion and criticism of the research or scholarly activity after the time limit on discipline has been reached.
3. There have been cases where the employer has set up a formal committee of inquiry to investigate allegations of fraud or misconduct. Any disciplinary action by the employer arising from the findings of such a committee shall be subject to the provisions of this article.
4. See British Columbia Institute of Technology (Pacific Marine Training Campus) and British Columbia Government and Services Employees' Union (BCGSEU), Robert B. Blasina, Arbitrator, February 22, 1995.
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