ENVIRONMENTAL PROTECTION (GENERAL); ENVIRONMENTAL PROTECTION DEPARTMENT; HIGHER EDUCATION; RESEARCH AND DEVELOPMENT;

ENVIRONMENTAL PROTECTION, CT DEPT OF; SCIENCE AND TECHNOLOGY;

You asked, in reference to the investigation of data manipulation at the University of Connecticut’s Environmental Research Institute (ERI) (1) if deliberate manipulation of test data violates any state criminal law, (2) whether test results were mischaracterized as safe chemical concentrations when they were in fact hazardous, and (3) what steps the university has taken to notify clients whose data was manipulated. The Office of Legislative Research is not authorized to issue legal opinions, and this should not be construed as one.

SUMMARY

We could find no law specifically making it a crime to intentionally manipulate test data. However, it appears that a charge of second-degree forgery may apply in this case. To be guilty of second-degree forgery, the ERI researcher at issue, intending to defraud or deceive another, must have falsely made, completed or altered a written document, or issued or possessed a written document he knew was forged. This document must have been (1) a public record, (2) filed with a public office or public servant, or (3) officially issued or created by a public office, public servant or government instrumentality. Second-degree forgery is punishable by up to five years in prison, a maximum $ 5,000 fine, or both (CGS § 53a-139).

Other laws that may apply include tampering with or fabricating physical evidence (CGS § 53a-155) and second-degree false statement (CGS § 53a-157b). However, the former would apply only if the falsified records were to be used as evidence in an official proceeding, and the latter would require that the statement be made under oath or on a form warning that false statements are punishable.

University of Connecticut legislative liaison Alvin Wilson states that the university has notified potentially affected grantors and research sponsors that scientific misconduct occurred in ERI’s Volatile Organics Laboratory between January 2000 and April 2002. According to Wilson the university is reviewing each ERI grant and contract to identify any report or work that may have incorporated falsified data. He said this process will take a few months to complete. However, in response to an inquiry, the university apparently has notified the Windham Water Commission that a recent study of the water quality of the Fenton River is not affected by the university’s findings of misconduct.

BACKGROUND ON ERI

ERI, established in 1987 and located on the University of Connecticut’s Mansfield Depot campus, is a center of basic and applied environmental sciences and engineering within the university. It conducts research for state and federal agencies, industry and educational institutions. According to ERI’s web site (http: //www. engr. uconn. Edu/eri) it has 40 affiliated UConn faculty members from eight academic departments, and a research staff of 45 with expertise in environmental and chemical engineering, analytical chemistry, hydrology and other environmental fields. (Note: A 2003 attorney general’s interim report on allegations of ERI mismanagement states that the lab has 50 affiliated faculty members staff from 17 different academic departments).

ERI’s clients include governmental agencies, such as the Department of Environmental Protection (DEP), the U. S. Information Agency, the U. S. Army Corps of Engineers, the Army Research Department, and the National Aeronautics and Space Administration; educational institutions, such as the Massachusetts Institute of Technology, the University of Vermont, and Northeastern University; and private companies, such as Duracell, Fujitsu, and Hamilton Standard.

The ERI Investigations

State and federal agencies began investigating allegations of financial wrongdoing and scientific misconduct at ERI in July 2002. University police began investigating the lab after receiving an anonymous whistleblower complaint alleging scientific misconduct, misuse of the federal visa process, and theft. Besides university police, other agencies and offices investigating ERI have included the state attorney general, and at the federal level, the Environmental Protection Agency (EPA), U. S. Attorney, FBI, Defense Department, Army, and Immigration and Naturalization Service

The police investigation led to the arrest in December 2002 of two ERI employees on charges they defrauded foreign researchers who worked at the lab. University police charged laboratory director Shili Liu with first degree larceny and conspiracy to commit first-degree larceny, and ERI director of operations Robert J. Carley with conspiracy to commit first-degree larceny in connection with a scheme to collect rent from visiting international students housed at a university facility that ERI provided and paid for. Police found $ 62,000 in cash in the ERI offices, which they said was a portion of the illegally collected rent. Further information can be found in the attached OLR Report (OLR Report 2003-R-0036).

The university placed Liu and Carley on administrative leave in December 2002, and did not renew their annual contracts. Criminal cases against them are pending. ERI executive director George Hoag resigned that post in December 2002 and returned to his position as a full professor in UConn’s School of Engineering. UConn also transferred ERI researcher Jianshi Kang to another job after reviewing his work (see below). Kang has since retired.

In its interim report on ERI mismanagement, the attorney general’s office concluded that Hoag assigned his supervisory duties to unqualified subordinates and collected about $ 1. 38 million in private consulting fees without the university’s knowledge and in violation of university policies.

The attorney general recommended that UConn consider appropriate disciplinary action against, and seek compensation from, Hoag. The complete attorney general’s report can found on-line at http: //www. cslib. org/attygenl/press/2003/other/erireport. pdf

The university conducted its own investigation, and, in an August 29, 2003 report, found numerous instances of intentional data manipulation, compounded by sloppy or nonexistent supervision.

UNIVERSITY’S FINDINGS OF INTENTIONAL MANIPULATION OF TEST DATA

The Ad Hoc Investigation Committee for Alleged Scientific Misconduct at ERI looked into allegations of unethical research practices made by an anonymous complainant against Kang. The complainant alleged that Kang artificially manipulated data for air, soil and water samples for DEP-funded projects so that unacceptable levels of a toxic compound would become acceptable.

The committee reached its conclusions after studying data collected from ERI’s Volatile Organics Laboratory for the period between January 2000 and April 2002.

The committee found numerous examples of “clearly intentional” scientific misconduct, but concluded that they were “not necessarily” of the precise nature the anonymous letter described. (Although university investigators could not attribute the data manipulation to specific individuals, the report said Kang admitted engaging in this practice. ) The report also found Liu neglected his supervisory duties.

University investigators found numerous examples of manipulated data, the intent of which “was clearly” to allow the quality assurance and quality control parameters to fall within an acceptable range and avoid the need to retest air, water and soil samples.

“Manipulations of this sort are unacceptable and resulted in false statements in final reports,” the report stated. The investigators were unable to determine if the “misconduct actually compromised the accuracy of data reported…” but said they believed this “relatively common practice led to more egregious forms of data manipulations” that “undoubtedly resulted in erroneous data being reported. ” Some of the conditions used to generate the data, the report said, “were often so absurd that no trained scientist would find them acceptable. ”

The investigating committee said the lab delivered reports containing falsified data to many clients, including at least one state agency. The report did not identify the state agency.

Investigators concluded that the manipulations it evaluated “were not the result of carelessness, but were intentional efforts that resulted in the falsification of data. ”

The investigating committee found that ERI’s insufficient record keeping procedures made it impossible to determine if individuals other than Kang were responsible for unethical data manipulations. Investigators concluded that it was possible for “any individual at ERI to manipulate data fields without his/her name being associated with that activity” because of inadequate chain-of-custody procedures. But the committee said an evaluation of logbooks currently in EPA custody may provide additional information regarding individuals involved in research misconduct.

Although the committee could not determine whether more than one person manipulated data, it found the lack of oversight or review “provided an environment that allowed such practices to go undetected for well over a year. ”

Recommendations of the Ad Hoc Investigation Committee

Neither Kang nor Liu is currently employed by UConn, making it impossible for the university to take any further disciplinary action against them. But the report recommended that the university place reprimands in their personnel files and that it not rehire Kang “under any circumstances. ”

The committee also recommended that the university embargo all data not yet released from the Volatile Organics lab until an audit can establish its accuracy and that an independent, outside audit of the data determine if the university needs to retract any reports, publications, or other ERI documents.

The attorney general’s report notes that ERI has developed and implemented quality assurance/quality control protocols under the direction of Hoag’s successor to ensure against artificial manipulation of data. In addition, ERI successfully completed four different lab review/audits in 2003. The university also significantly restructured financial management, implemented direct oversight of ERI’s business office, and has discontinued ERI’s Visiting Scholar program.

PF: ts