As a starting point for today’s post, the Office of Research Integrity (U.S. Department of Health and Human Services), like Penn State, has a two-stage inquiry-investigation procedure and states:
In general, absent full admissions, inquiries should not be used to make findings on whether research misconduct in fact occurred.
This seems at odds with what the Penn State Inquiry Committee has done or is perceived to have done. Today I’ll try to examine the difference between an “inquiry” and an “investigation” in academic misconduct cases and see what the Mann Inquiry Committee did or thinks that it did.
Penn State Policy RA-10
Penn State policy RA-10 refers to both “inquiry” and “investigation” stages – a structure consistent with the other U.S. federal academic misconduct procedures. The distinction between the two stages is spelled out in much more detail by the Office of Research Integrity, but it’s clear that Penn State RA-10 had adopted the same two-stage structure as described in more detail elsewhere.
RA-10 section 4 describes the obligations of the inquiry committee if it decides “an investigation was not warranted” – it is obliged to provide a record containing “documentation in sufficient detail to permit a later assessment, if necessary, of the reasons for determining that an investigation was not warranted”, which is to be retained for up to three years and made available upon request to any involved Federal agency. RA-10 section 5 describes the procedures if the inquiry determines that the allegations “warrant further investigation”, i.e. the formation of an investigation committee which is obliged to investigate the matter.
ORI Description of the Two-Stage Procedure
ORI here provides far more detailed definition of the two-stage procedure. They state:
The existing final rule defines a two-stage process that takes place when an institution receives allegations of research misconduct:
(1) An inquiry, or preliminary fact-finding, to determine if the allegation involves PHS supported research and has sufficient substance to warrant an investigation; and
(2) an investigation, which is a thorough review and analysis of all relevant facts to reach a conclusion as to whether research misconduct has occurred, who was responsible, and how serious any misconduct was.
They continue:
Institutions treat the inquiry phase in a widely varying manner, and the distinction between an inquiry and an investigation has caused much confusion. Some inquiries conducted by institutions are largely indistinguishable from investigations. As the OSTP policy adopts a two-stage process, we have retained the current two-stage process but propose to sharpen the distinction between inquiries and investigations by clarifying that the inquiry is only an initial review of the allegations to see if they warrant an investigation.
An “inquiry” (Sec. 93.213) is defined as follows:
Inquiry means preliminary information-gathering and preliminary fact-finding to determine whether an allegation or apparent instance of research misconduct has substance and if an investigation is warranted.
While an investigation (Sec. 93.216) is:
Investigation means the formal development of a factual record and the examination of that record leading to a decision not to make a finding of research misconduct or to a recommendation for a finding of research misconduct or other appropriate remedies, including
administrative actions.
Sec. 93.307(a) sets out criteria warranting an inquiry if the allegation:
(1) Falls within the definition of research misconduct under this part;
(2) Involves PHS supported research; and
(3) Is sufficiently credible and specific so that potential evidence of research misconduct may be identified.
Section 93.307(c-d) describes the purpose of an inquiry as the determination of whether to conduct an investigation:
(c) Purpose of an Inquiry. The purpose of an inquiry is to conduct an initial review of the evidence to determine whether to conduct an investigation. Therefore, an inquiry does not require a full review of all the evidence related to the allegation.
(d) Criteria warranting an investigation. An inquiry’s purpose is to decide if an allegation warrants an investigation. An investigation is warranted if there is–
(1) A reasonable basis for concluding that the allegation involves PHS supported research and falls within the PHS definition of research misconduct; and
(2) Preliminary information-gathering and preliminary fact-finding
from the inquiry indicates that the allegation may have substance.
Sec. 93.105 prescribes time limitations. (I don’t know specifics of the Penn State regime but they might be similar):
(a) Six-year limitation. This part applies only to research misconduct occurring within six years of the date HHS or an institution
receives an allegation of research misconduct.
(b) Exceptions to the six-year limitation. Paragraph (a) of this section does not apply in the following instances:
(1) Subsequent use exception. The respondent continues or renews
any incident of alleged research misconduct that occurred before the six-year limitation through the citation, republication or other use for the potential benefit of the respondent of the research record that is alleged to have been fabricated, falsified, or plagiarized.
ORI has a sort of ‘interpretation bulletin’ (borrowing a phrase familiar to lawyers) on the distinction, which I’ve reproduced in full below, as it is relevant to the present situation:
(21) Inquiry Versus Investigation Stages in Research Misconduct Cases – When examining allegations of research misconduct, institutions have an obligation to conduct an initial inquiry, and, if warranted, a thorough investigation in accordance with PHS Policies on Research Misconduct. 42 C.F.R. Part 93. This article discusses some procedural and substantive considerations in examining allegations of research misconduct in inquiries and investigations.
After receiving a good faith allegation of research misconduct, an institution will usually open an inquiry to gather general information and make initial findings of fact to determine whether the allegation has substance and there is sufficient evidence to warrant an investigation. Sometimes, however, when there is sufficient evidence already at hand, for example as the result of an audit of a clinical trial, the institution may move directly to the investigation stage. If the inquiry uncovers evidence of “fabrication, falsification or plagiarism,” an investigation is warranted. Section 93.307 (d). In general, absent full admissions, inquiries should not be used to make findings on whether research misconduct in fact occurred.
On occasion, ORI receives an inquiry report in which either the committee has conducted the equivalent of an investigation and made specific findings, or which is obviously the result of a negotiated agreement. These reports may violate the PHS regulation and cause substantial difficulties for ORI’s oversight. Findings made at the inquiry stage are all too frequently incomplete because the record has not been fully developed, and negotiated agreements violate the PHS regulation, if made without advance notice to ORI. Both instances may deprive ORI of the facts necessary to determine whether there has been an adverse effect on the PHS sponsored research, and the institution may be required to reopen its case and initiate an investigation.
Instead of short circuiting the process, once an institution has determined that there is some evidence of possible misconduct, a thorough investigation should be conducted in accordance with the requirements explained in Section 93.310. Only after this process is complete should the investigation committee turn to an analysis of whether the charges have been proven by a preponderance of the evidence.
Even if the record is relatively complete at the inquiry stage, the PHS regulation gives respondents the opportunity to have a full investigation unless they admit misconduct and waive the investigation. This multiple stage process has also been endorsed by the Federal Office of Science and Technology Policy which has stated that the investigation is “the formal examination and evaluation of the relevant facts leading either to dismissal of the case or a recommendation for a finding of research misconduct or other appropriate remedies.” Federal Policy on Research Misconduct, 65 Fed. Reg. 76260-76263 (December 6, 2000).
The difference in function between an “inquiry” and an “investigation” is quite clear in this exposition: the purpose of an inquiry is, in effect, to determine whether there is any credible evidence supporting the allegations and whether the allegations, if true, constitute an offence. As I read the ORI procedure, defences and justifications are only relevant at the investigation stage and should not be entered or considered at the inquiry stage, when a full investigation has not taken place. (This is hopelessly jumbled in the Penn State Inquiry.)
ORI has an interesting report auditing inquiry reports for compliance with ORI policies – finding that the majority wre seriously deficient in one aspect or another:
ORI conducted a content analysis of 21 inquiry reports that were not submitted to the Office of Research Integrity (ORI) because an investigation was not recommended and ORI had not previously requested the report. The study addressed the following questions: (1) Were the inquiries being reported by institutions on the Annual Report subject to PHS jurisdiction? (2) Did the institutions sufficiently document the rationale for deciding that an investigation was unwarranted? (3) Did the conduct of the inquiries comply with the regulation? (4) Is more technical assistance needed in the conduct of inquiries?
This study demonstrated that more than half of the institutional inquiry reports that were not submitted to ORI were significantly deficient. Fifty-seven percent of the reports did not contain the information required to establish PHS jurisdiction. Thirty-three percent contained information on no more than four of the nine criteria used to determine whether an investigation was warranted and another 28 percent were marginal, covering only five criteria. Seventy-one percent provided information on only three or fewer criteria for determining compliance with the regulation. And finally, 57 percent of the reports did not contain the detailed information required to justify the decision that an investigation is unwarranted. The analysis was based solely on the content of the submitted reports. Additional information supporting the decision that an investigation was unwarranted may exist in other documents that were not submitted.
The Mann Inquiry Report is a rather odd document, when assessed against ORI procedures.
Obvious issues include (1) whether the “synthetic” allegations presented to the inquiry were sufficiently specific; (2) whether an investigation committee rather than an inquiry committee should have heard Mann’s defences to allegations 1-3.
Questions concerning the inquiry committee go the other way as well. Offhand, I can think of two extremely scoping issues that, in my opinion, should have been resolved at a scoping (inquiry) stage, rather than an investigation stage: (1) is there a statute of limitations on misconduct offences? (2) is conduct at prior employment subject to Penn State jurisdiction? In my opinion, Mann and his lawyer should have insisted on these questions being squarely addressed by the inquiry; they weren’t.
For example, regardless of what thinks of the “trick” – and I yield to no one in criticizing it – it happened 10 years ago at another university. Is it subject to a statute of limitations along the lines of the one referred to above? Does the fact that it happened at another university matter?
The handling (or lack of handling) of these questions by the Inquiry is totally incoherent. For example, they produced the following remarkable pastiche in connection with the “trick”:
While a perception has been created in the weeks after the CRU emails were made public that Dr. Mann has engaged in the suppression or falsification of data, there is no credible evidence that he ever did so, and certainly not while at Penn State. In fact to the contrary, in instances that have been focused upon by some as indicating falsification of data, for example in the use of a “trick” to manipulate the data, this is explained as a discussion among Dr. Jones and others including Dr. Mann about how best to put together a graph for a World Meteorological Organization (WMO) report. They were not falsifying data; they were trying to construct an understandable graph for those who were not experts in the field. The so-called “trick”1 was nothing more than a statistical method used to bring two or more different kinds of data sets together in a legitimate fashion by a technique that has been reviewed by a broad array of peers in the field.
In my opinion, the Inquiry Committee could have said – whatever the rights or wrong of the trick email, it’s past the time of limitations (IF there is an applicable statute of limitations). Or they could have said that it happened at another university (IF that’s the regulation).
However, it’s not open to them to entertain a positive defence (the excuse that the trick is a “good way” of doing something) to an alleged offence that took place ten years ago at another university and then passim use the phrase “let alone Penn State” in their “decision”. (Needless to say, if, as the Office of Research Integrity stated, “inquiries should not be used to make findings on whether research misconduct in fact occurred”, then it was premature of them to purport to make a decision anyway.)
Even though they purported to deal with three allegations, Allegation 4 remains remains on the table. But the Inquiry is silent on whether this allegation is limited to his conduct at Penn State or to his conduct within the last six years. Do the terms of reference for the investigation committee include Mann’s conduct since the beginning of time? This hardly seems fair.
Instead of trying to decide on things that were outside its terms of reference, the Mann Inquiry Committee should have provided decisions on the topics that were within its terms of reference. The Mann Inquiry Committee has probably made about as many procedural errors as it’s possible to make in the compass of a short report – and, as noted above, not all to Mann’s benefit.
Given the publicity that this case has attracted and will continue to attract, you’d have that the university would have obtained the best possible professional advice on how to handle an inquiry and investigation from the Office of Research Integrity (or their equivalent at NSF). Instead, like Gerry North, they seem to have decided to “wing it” – an unfortunate decision that will do nothing except prolong the melodrama.
Climate Audit 
58 Comments
The US Senate’s Committee on Environment and Public Works (where Inhofe is the ranking member) has now sent a letter to the Inspector General of the National Science Foundation requesting a formal investigation.
http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=0b32ab55-8d8a-4d0f-acf2-3aefddf5e261
“Among other laws and regulations, I ask that you investigate compliancee with, or violations of, OMB administrative procedures, 2 CFR Part 251 (OMB Circular A-110), in particular 2 CFR 215.36; Freedom of Information Act 5 U.S.C. 552 (NSF Regulation, 45 CFR Part 612); NSF guidelines implementing OMB information quality guidelines (515 Guidelines); Federal Flase Claims Act, 18 U.S.C. 287, and 31 U.S.C. 3729-33; and Federal False Statements Act, 18 U.S.C. 1001.”
Inhofe concludes by requesting that the investigation reach back to 1999 and include Mann’s time at the University of Virginia.
Unlike Penn State, Inhofe is specific.
Mann should have to come to my house and shovel the 40 inches of snow here, although community service is way too good for him.
Interesting. 18 USC 1001 says:
“(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”
Note the explicit use of the word “trick”. Ouch.
Ouch! Ouch! ouch! it seems the “trick” would not go away. Thank God for Inhofe
There is confusion about the purpose of the inquiry, as well as the way to conduct it, as you have highlighted.
Are they enquiring about the particular research and its reliability or are they enquiring about the conduct of Dr Mann? If the former, there is no time limit. If the latter, there are all sorts of time and other limitations on their powers and controls over the manner in which they carry out the task.
Undeclared pre-employment misconduct is a ground for dismissal and therefore a present employer may enquire into misconduct pre-dating present employment.
The findings of the Inquiry Committee on the 4 “charges” as framed were:
1. – no substance to this allegation—
2. – no credible evidence –
3. – no credible evidence –
4. – could not make a definitive finding whether there exists any evidence –
Mann’s very unlucky to find himself the subject of an Investigation on the basis of no evidence.
By some tortured, and potentially very expensive logic of the Inquiry Committee, he’s to be investigated, not for misconduct, but because he may not have conducted himself in accordance with some aspirational language not included in the definition of misconduct.
To frame a few charges based on the passages excerpted by the Inquiry Committee:
Contrary to Para 1 of Policy AD47 General Standards of Professional Ethics you:
a. Were not guided by a deep conviction of the worth and dignity of the advancement of knowledge
Particulars: at all times you placed advancing your career before advancing knowledge
b. Did not seek to state the truth as you saw it
Particulars: On or about — you published a diagram that failed to distinguish one type of data from another and thereby misled anyone placing reliance upon said diagram.
c. Failed to practice intellectual honesty:
Particulars: between – and — you failed to acknowledge any valid criticism of your published work
d. Allowed subsidiary interests to seriously compromise your freedom of inquiry:
Particulars: Between – and – you gave a higher priority to presenting a policy message through the IPCC AR than to providing a balanced overview of the science.
These are counsels of perfection and we all short of perfection. They were never intended to be the basis for disciplinary proceedings.
The Enquiry Committee have handed an almost impossible task to the Investigation Committee. It’ll be interesting to see how they play a hospital pass.
Yes, the University seems to have set themselves up to pull off the neat trick of claiming he (and thus the university) did nothing substantively wrong, and still “toss him to the wolves” to quiet public opinion if they feel it necessary. Really quite the most wonderful example of bureaucratic have-it-all-ways-ism I’ve seen in the wild recently.
To what extent is Penn State bound by these ORI stipulations? Would ORI be able to ‘delegate’ authority for any investigation to Penn State, and thus avoid ‘awkward’ public involvement? Do the ORI regulations automatically apply when public funds are in question?
As a UK resisent unacquainted to US systems I’d be grateful for enlightment.
This is fairly obvious, but if submissions are allowed and are made, there should be two separate submissions, one dealing only with the time at Penn State and the other dealing with the longer career record.
This confusion might resolve in time via other action cited above.
Also, submissions might well be crafted in two parts, being (a) the effect of the particular actions of the particular person and (b) the effect of the totality of actions on the relevant joint and several fields of research (which I consider to be the whole of Science) as put before the public.
I found this link on Andrew Bolts blog. It seems not all the students at Penn State are happy.
http://psu.campusreform.org/group/81/blog/climategate-is-an-embarrassment
I’ll revise my estimates of college-level writing and analysis. The YAF on campus clearly exhibit superior levels of both to the editorial contributors of the student newspaper. I don’t agree with all of their assessments, but they are clearly capable of constructing coherent arguments and, ahem, organizing paragraphs.
Well, the Enquiry Committee says that they have reviewed the evidence and cannot find evidence of misconduct but that there are still questionmarks over the general conduct of Mann’s research – and as they are administrators and not scientists they do not feel qualified to make that judgement, hence the setting up of an investigation staffed this time by actual scientists (from other disciplines) and not administrators. Seems reasonable to me.
It may seem reasonable, and this may have been the trap into which the Inquiry Committee have fallen. They did not have a general commission to act reasonably.
The University is in a strict legal relationship with its employees, including Mann, part of which enables them to enquire into misconduct on his part and discipline him, but part of which constrains what they can or cannot do. The rules set up for the investigation of conduct are legally binding, not just on Mann, but also on the University.
The Inquiry stage of the research misconduct procedure is, amongst other things, a protection given to Mann against having to answer allegations in investigation when there exists no credible evidence of misconduct. He is entitled to require them to follow their own procedures and thereby afford him that protection.
The Inquiry Committee have found no evidence of research misconduct on his part and he is entitled to require them to discontinue any further proceeding in accordance with their own rules.
But, having found no evidence of research misconduct the Inquiry Committee continue:
“Given that
:information emerged in the form of the emails purloined from CRU in November 2009, which have raised questions in the public’s mind about Dr. Mann’s conduct of his research activity, :
this may be undermining confidence in his findings as a scientist,
:that it may be undermining public trust in science in general and climate science specifically,
the inquiry committee believes an investigatory committee of faculty peers from diverse fields should be constituted under RA-10 to further consider this allegation.”
In other words, they opine that the procedure they are obliged to follow is not suitable to achieve certain ends, which may be desirable but which the procedure is not intended to achieve, so they’ll change it.
This may be a perfectly reasonable view, but it is not defensible or permissible because it deprives Mann of a protection he is legally entitled to rely on.
Worse, it is grossly defamatory. By it’s conduct the University is holding out to the world that there is a prima facie case of misconduct against Mann (which has now been reported around the world in multiple media outlets) when they have found that no evidence of research misconduct on his part exists.
Mann has, foolishly, welcomed an investigation. If he condones such an ill defined investigation who knows what the outcome may be?
If I were him I would be instructing my lawyer to require the University to discontinue the investigation, retract the suggestion that there is a prima facie case of misconduct, apologise and make a suitable payment to a charity as a token of their sincerity and to arrange to publish their action in prominent media outlets.
You’re ignoring the very important word “may”, as in “may be undermining confidence” or “may be undermining public trust.”
There’s a world of difference between “may” and “is” in the world of defamation law.
Mann’s lawyer wouldn’t be able to “require” the University to do anything.
Even if he could, Mann would be stupid to force the issue because he would appear mentally unbalanced to the public – to be suing the university after all the major media outlets reported the inquiry cleared Mann.
There’s no “may” involved here. There is:
1. an unambiguous representation that there is prima facie evidence of research misconduct
2. a finding that there is no evidence of research misconduct.
The media have reported that he’s been cleared of 3 of 4 charges of research misconduct, hence the defamation based on 1 above.
Lawyers do require their opponents to act in a particular way. If he offers options he’s a nice guy not a lawyer.
In my view Mann has nothing to lose by bringing the matter to an end and everything to lose by allowing it to continue. Madness lies in putting your reputation at risk when there is no need.
You said: “Lawyers do require their opponents to act in a particular way. If he offers options he’s a nice guy not a lawyer.”
Funny, where I practice law only courts can ‘require’ a party to do something they don’t wish to do. Where do I sign up for the state bar that lets me ‘require’ others to limit their freedom of speech ?
I’ve met lawyers who are “nice guys” and many who are litigious A-holes, and they all seem to comply with the laws of professional responsibility that govern the practice of law, and that mandate that attorneys “offer options”, where available, so that their clients can make informed choices.
Your argument is nonsense.
The first three charges the committee addressed were allegations of behavior similar to theft or fraud. These charges imply specific intent. One would expect the standard of proof to sustain these allegations to be quite high – something approaching “beyond a reasonable doubt”, because the allegations look like crimes.
The fourth charge looks to be akin to the tort of professional negligence [departing from standards of research]. It doesn’t require bad intent to be proven; on the contrary, negligence typically involves a complete lack of intent – where focus is demanded. One would expect the standard of proof to be much lower, here, something like “more likely than not”.
It is common for people to be found ‘not guilty’ of crimes [murder], and yet liable in tort for the same act [wrongful death] – because of the different standards of proof. Suggesting that this “may” be possible in Mann’s case can hardly be called actionable defamation.
As I posted on the original Mann Report thread (Feb 4, 2010 at 5:24 AM ) , it’s only as a result of artless drafting that there are 4 charges against Mann instead of 3. Standard practice is to 1. Plead the Rule 2. Allege breach 3. Particularise the breach (say how it was done). For example “Contrary to (allegation of breach) S77 FoIA 200 (pleading rule) you did —-(particulars of breach).”
The fourth charge against Mann pleads the rule and charges 1 to 3 particularise the breach, but the way the “indictment” was framed it appears as though there are 4 particulars of breach. This seems to have confused the Inquiry Committee.
Whichever way you cut it, on all 4 charges they found there was no evidence of research misconduct. Whether the criminal or civil burden of proof applies, the absence of evidence will suffice neither to discharge the trial burden of proof nor raise a prima facie case.
You may be correct that different standards of professional courtesy and rigour apply in different legal jurisdictions, however, I hope that in all jurisdictions lawyers would agree that an accused person should be treated fairly and afforded due process. In this instance an unsympathetic character happens to be the victim, but that’s not a reason to abandon fundamental values.
“…I hope that in all jurisdictions lawyers would agree that an accused person should be treated fairly and afforded due process. In this instance an unsympathetic character happens to be the victim, but that’s not a reason to abandon fundamental values.”
Amen. Personally, it troubles me that the investigation of an employee’s conduct is occuring in public. [breach of privacy, rather than defamation… …although Mann did consent to release of the report]
Politics; not university politics but the broader political landscape.
Dr. Mann may or may not have consulted counsel before welcoming the ‘investigation’; or perhaps he was a little hasty in commenting. Good lawyers counsel silence until they have prepared a statement. Anyway, if you are a PhD why consult a person who only has a MLaw or LLB ?
I just finished reading in the current issue of National Review (Feb. 6, 2010) an account of the efforts by you and Ross McKitrick to inject some reason into the global warming hoax. Also in the same issue is a George Gilder report on the book Sonic Boom, written by Gregg Easterbrook, in which Mr. Gilder mentions a Petition Project by Arthur Robinson (a former Caltech chemist and student of and co-worker with Linus Pauling, but who now prints and distributes, by ordinary mail to at least some of the signees of the Petition Project, a monthly newsletter–Access to Energy–from P.O. Box 1250, Cave Junction, Oregon 97523). I am one of the signees, qualified to do so by virtue of a PhD in geology from Stanford University, 1960, and many years of geologic mapping and mineral exploration and I know absolutely that the earth frequently has been much warmer in the past than it is now and I whole-heartedly endorse your efforts.
The student newspaper at Penn State published an editorial today supporting the handling of the inquiry. Disappointing but expected!
http://www.collegian.psu.edu/archive/2010/02/10/handling_of_mann_appropriate.aspx
It has been disappointing here at Penn State as there seems to be little interest in getting to the truth of the matter of Mann and his research behavior.
I don’t know how forgiving I should be about the writing and analytical skills of college students, so I won’t comment directly about the editorial. I’ll merely share this quote:
“…If we can’t trust the inquiry panel for dealing with these issues, then who can we trust? …”
“If you can’t trust your banker, who can you trust?”
Banker (played by John Dehner) in “Maverick” Shady Deal at Sunny Acres (1958)http://www.imdb.com/title/tt0644483/ .
And, see http://en.wikipedia.org/wiki/Shady_Deal_at_Sunny_Acres
Even if Mann invented his trick while in the employ of the University of Virginia, he may have been defending his tricky science and advocating for its use by the Love Guru while at the State Pen, oops, Penn State University.
If championing Mann-made Global Warming while in the employ of Penn State, his reign of error fall within the temporal scope of intrepid Penn State inquirers?
I’ve read the inquiry report, and what can I say? These people clearly don’t know what they’re doing.
At the very least, I would think that they attempt to judge the validity of including an incomplete data point in a time series graph many years ago at another institution for the reasons Mann gave, and explained at the time, is a fairly useless investigatory exercise. Was it a legitimate representation? Likely not. Was it done openly and explained at the time. It certainly seems so, and the proper venue for judging it would be the arena of debate within the scientific community. If the method is nonsense, it is certainly exposed enough to be challenged. I’m not convinced that it could rise to the level of research misconduct, though I will admit that my personal position is that I prefer to address such things in open exchange, not through panels of inquiry with punitive powers.
Now that I have that out of the way, let’s look at their investigative methods. If, as has been previously explained, the inquiry panel’s mission did not include making findings of fact on actual research misconduct, then they have made a complete mess of the evidence gathering process. Of the four questions under consideration:
1. Did you engage in, or participate in, directly or indirectly, any actions with the intent to suppress or falsify data?
2. Did you engage in, or participate in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to AR4, as suggested by Phil Jones?
3. Did you engage in, or participate in, directly or indirectly, any misuse of privileged or confidential information available to you in your capacity as an academic scholar?
4. Did you engage in, or participate in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting, or reporting research or other scholarly activities?
Their evidence gathering techniques appear to have been limited to going through the hacked CRU e-mails, going through Mann’s zipped archive of past e-mails provided BY HIM, and interviewing Mann essentially for his opinion of his conduct and his interpretation of his e-mails. Relying on the subject’s self-report as a sole resource for interpretation has obvious weaknesses that I won’t go into, especially since they were assessing the need for an investigation rather than conducting one. I’ll also bypass question 4, which they judged worthy of investigation and which seems the flimsiest and most subjective of the questions. What concerns me are items 1-3. They clearly weren’t competent to gather evidence to judge these questions and by not concluding their inquiry quickly, AND BY ASKING MANN TO PERSONALLY PRODUCE POTENTIAL EVIDENCE AGAINST HIMSELF, they have potentially made a complete hash of the data gathering process for whomever takes the matter up later.
I notice that one of the investigatory team is from the Department of Computer Science and Electrical Engineering, so there is a chance that someone will have a clue about what they are doing. The moment there was any question about deletion of e-mails or destruction of data, systems administration should have immediately been involved. Whoever administers the mail server should have been immediately engaged regarding archives and backups of e-mail accounts. If Mann’s data is kept on a personal computer, it should have been seized. If, as is more likely, his data is kept on a network resource, his rights should have been restricted to READ ONLY on that resource for the duration of any inquiry and investigation. At no point should he have been responsible for any evidence gathering nor should he have continued to have any MODIFY rights on any storage media that could be subject to investigation.
The members of the inquiry panel clearly did not understand the maintenance and handling of electronic media. Deleted files can be retrieved from hard drives with specialized software utilities. Mail servers may have rolling backup and archive strategies that permanently delete backups after a certain number of weeks or months depending on storage needs. File servers may be handled in the same way. There is always a chance that deleted files and e-mails can be retrieved for analysis, but the storage media must be accessed as soon as the need is identified. Otherwise, the files could be permanently gone depending on maintenance policies. A zipped archive of e-mails from the subject under review and a personal interview are NOT how you determine how data and e-mails were handled. You engage your systems administrator for those things. I am disappointed at the lack of understanding of how to handle their electronic resources. I can understand that part, though I still fault them for not getting IT immediately involved. What I find maddening, and frankly inexcusable, is that they apparently didn’t understand that their electronic media were their primary sources of evidence.
Don’t interpret any of this as a suggestion of guilt on Mann’s part. I have opinions on that, but they are not relevant to the point I have been making. Whatever this process is intended to be, it is, and will remain, wholly inadequate if the people involved are this woefully ignorant about their computer resources.
Addendum: I refer to the investigatory team in the 3rd to last paragraph in my previous post. This is intended to be mean the upcoming investigation panel and does not refer to the inquiry panel. The inquiry panel did not include anyone with a background in Computer Science.
Three years later, but here is an issue that points directly to #3 in the lst of 4 committee tasks. Not saying that the Penn State inquiry even heard about this, I don’t know, but there has been such a growing list of Mann’s dubious (or worse) words and behaviors:
This GRL matter could still be pursued to try to get the journal in the spotlight, re whether and how Mann obtained access to the Eschenbach GRL submissions. Very likely Mann was one of the original reviewers??
45 CFR Part 689 is directly applicable to NSF and is mor appropriate than ORI.
Hotline Intake Form
You can use this web form to submit allegations for review by the National Science Foundation’s Office of Inspector General.
Please provide us with as many details as you can about the alleged misconduct, the people involved, and anyone whom you think can provide or supply more information.
While you can submit this form anonymously, doing so may limit our ability to conduct an investigation if questions only you can answer arise. If you do not provide your email address or some other form of contact information, we cannot respond to you. If you do chose to submit this form anonymously, please be verbose and provide as many details as possible. All fields are optional.
Your Name:
Your Organization:
Your E-mail Address:
Your Phone Number:
Use this area to give us a description of the Complaint:
Related to Recovery Act funded activities? Yes
No
Don’t Know
Type of complaint:
Criminal / Civil
Administrative
Research Misconduct
Description of complaint:
Description and/or location of relevant evidence:
Use this area to give us information about the people involved:
Name(s):
Contact Information:
Other Information:
Use this area to provide us with information about others that can provide more or supporting information.: Name(s):
Contact Information (email address, phone, etc):
Other Information:
http://www.nsf.gov/oig/hotline_form.jsp
This presentation of the Penn Inquiry points out the craziness of many university procedures. Hopelessly complex and arcane, eminently suited to the people who tend to populate these institutions. “Hey, was Mann faking something? Was he lying? Was he incompetent? Was he trying to block the truth?” Just DIG IN and get the facts. It’s not really that hard. Unless obfuscation and protection are really the aim of the exercise.
As I rather verbosely said above, his computer assets should have been immediately frozen and any data retrieval and gathering should have been handled by their systems administrators. Going about it any other way demonstrates that the panel was ignorant or unserious. I suspect both.
I doubt the panel had the authority to do anything like what you suggest.
Very unlikely. The university owns those assets, not Dr. Mann. If the panel itself wasn’t so empowered, the officials responsible for creating the panel certainly were.
This was a panel of faculty tasked to read a set of emails and offer an opinion. The suggestion that they had the power to “seize computer assets” is pure fantasy.
Further, most universities have regulations on academic freedom that prevent administrators from doing what you suggest without a court order.
They can’t and won’t “seize computer assets” simply because someone has accused a professor of bias or malfeasance.
No, it was a panel of faculty tasked to address the following questions:
1. Did you engage in, or participate in, directly or indirectly, any actions with the intent to suppress or falsify data?
2. Did you engage in, or participate in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to AR4, as suggested by Phil Jones?
3. Did you engage in, or participate in, directly or indirectly, any misuse of privileged or confidential information available to you in your capacity as an academic scholar?
4. Did you engage in, or participate in, directly or indirectly, any actions that seriously deviated from accepted practices within the academic community for proposing, conducting, or reporting research or other scholarly activities?
You’re confusing the ownership of Mann’s research with the electronic assets on which it is stored. Mann does not own his university-provided computer, e-mail account, or server on which any of his data is stored. Intellectual property agreements do not extend to university property. I have been involved in this sort of issue both in a university setting and in a corporate setting. Seizure of computing assets for the purpose of conducting investigations is standard policy. Most professional IT administrators will be familiar with the proper procedures as part of doing business. I am not speculating here. I am speaking from experience and knowledge of the IT industry.
I didn’t say anything about intellectual property.
I was talking about policies on academic freedom, specifically the freedom to conduct research without interference from the administration. These policies exist precisely for cases like this, to protect faculty members from being punished or interfered with by an administration bowing to public pressure.
It’s the same reason universities grant tenure.
Unless there is a criminal investigation, nobody at Penn State is going to be seizing anything, unless they want to be sued by the AAUP.
The American Association of University Professors is going to sue over the University’s right to its own physical property? Sorry, it doesn’t happen. I will repeat; it doesn’t happen. I will assert one more time: I HAVE WORKED in a university setting and I HAVE SEEN cases of electronic assets being seized. I am not theorizing here; I am talking about standard procedure.
I can argue that freedom to conduct research without interference does not protect misconduct nor does it grant to faculty property rights to equipment and materials provided by the university. Personal computers, e-mail accounts, and server access are granted at the pleasure of the employer and remain the property of the employer. This is a matter of employment law and contracts cannot contravene that law. All of that is true, but it is irrelevant. I know these things not because I have reasoned them out or constructed a clever argument to support them, but because I have worked in the IT industry for many years, am familiar with the process and have SEEN IT DONE.
Looking up the AAUP to make it sound like you know what you’re talking about was a nice touch.
I worked at a major university for 9 years.
To me, at least is all points to the unworldliness of the academic communities. They, I guess, assumed that if they had an enquiry they could lift the cloud over Dr. Mann and life would go on as usual. Neither in Penn State, nor in the UEA has anyone grasped the enormity of these allegations and the strong prima facie evdidence that a group of scientists, including Dr. Mann, and others in the US had systematically been manipulating the scientific process to advance there political cause. If you are reading these blogs hockeyteamers, which I doubt, these allegations aren’t going to go away any time soon, nor will it be just Jones and Mann that go into the scientific Hall of Infamy. The various national scientific bodies have given their full support to the “science” practised, and for sure it will take a fair time for them to move their opinions, but they will, the evidence of manipulation of the scientific process, the witholding and destruction of data, the manipulation of data, the disrespect for the peer review process, “hiding” declines, selecting data that proves the case while ignoring better data that doesn’t. It was indeed a “folie a plusieurs” nobody conceived that they would get caught, or that if they did there would be any outcome. We shall see, I hope Muir Russell makes a better fist at investigating the CRU than Penn State has of investigating Dr.Mann. One thing for sure, if he does decide on a whitewash it’s going to have to be pretty sophisticated to avoid the kind of uproar Mann’s exoneration has caused.
BTW Steve, OT I know, but there appears to be a co-ordinated attempt, I suppose with information from realclimate to say that the Mc Nemesis paper M&M 2003 has been debunked. Do you know of any debunking?
g
It seems to me that the first stage of the procedures is to establish whether there is prima facie evidence of misconduct. If there is such evidence the second stage is fully to establish the facts and if necessary hold a disciplinary inquiry. If necessary, following the disciplinary hearing impose a penalty and in all cases where misconduct is found, allow an appeal.
It seems to me to be pointless questioning the result of the inquiry. We don’t know the full nature of the complaints sent in to the University and what, if any, evidence of misconduct was adduced in support of the complaint. An inquiry of this kind has to tread a fairly tight line. It cannot be used as a kind of fishing expedition to produce complaints that might otherwise not have been made. It needs to do justice to the complaint without trampling on the rights of the individual against whom the complaint lies.Once the inquiry has done its work, the disciplinary investigation and hearing, if there is one, is likely to look at the issues and the complaint in more depth than the initial inquiry, the task of which is to establish if there is prima facie evidence of misconduct.
Regarding the fourth complaint, it might be that the further investigation may be done by an inquiry team not a disciplinary investigatory team.
A number of people on this blog could have made it easier for the inquiry team (or more difficult to dodge) by setting out clearly all the evidence that Mr McIntyre has carefully established over many years concerning the work of Mann. That can still be done by way of formal complaint. It should IMHO be done. These are important matters.IMHO formal complaints also should be made against Jones and Briffa by bloggers here. Clear evidence needs to be set out.
It is time these matters were properly resolved.(Wegman is still important and can be cited IMHO. Mann is still using bristlecones.)
I’ve read the inquiry report, and from what I can see, the full nature of the complaints and all the evidence used were described in detail. Have you checked the link to the report to see if there are gaps in these areas?
The entire analysis and timeline have been provided in another post. Perhaps it would be useful to compile this into a submission?
M. McIntyre,
Je tiens à vous dire que je lis votre blogue à tous les jours je trouve que vous faites de l’excellent travail.
Merci beaucoup pour votre contribution essentielle au présent débat, et dommage que vous ne recevez pas vos lettres de noblesses dans la belle province. On vous apprécie, et pour moi vous êtes un héros pour les citoyens de ce monde.
Charles Vincent
(Québec, Canada)
Steve: Je ne parle qu’un peu de francais, mais je peux lire OK. If that makes any sense.
I’ll translate this for other readers:
Mr McIntyre,
I wish to tell you that I read your blog every day and a find that you do excellent work.
Thank you for your essential contribution to the current debate, and it’s a pity we do not receive your noble reports here in the Belle Province. We really do appreciate you and you are a hero for the citizens of the world.
Charles Vincent
And Mr McIntyre replies:
I speak only but a little French, but I can reead it OK.
http://www.cce-review.org/FAQs.php
UK’s Climategate inquiries begin – see attached link
http://psu.campusreform.org/group/events/2010-02-08/rally-for-academic-integrity
Strangely Penn State appears to have exactly followed the NSF policy
——————————-
§ 689.2 General policies and responsibilities.
(b) NSF will find research misconduct only after careful inquiry and investigation by an awardee institution, by another Federal agency, or by NSF. An ‘‘inquiry’’ consists of preliminary information gathering and preliminary fact-finding to determine
whether an allegation or apparent instance of research misconduct has substance and if an investigation is warranted. An investigation must be undertaken if the inquiry determines the allegation or apparent instance of research misconduct has substance. An ‘‘investigation’’ is a formal development examination and evaluation of a factual record to determine whether research misconduct has taken place, to assess its extent and consequences, and to evaluate appropriate action.”
————————–
Wonder if it has anything to do with Mann’s research being NSF rather than PHA centered. In short you are pulling the usual Emily Littela
Just a little heads up of an incoming blog war. I am getting the dog sleds up to head into town for popcorn…
Before the CRU email leak the Wegman report was the only independent review documenting the dubious practices of climate scientists. Now it is largely irrelevant with the team’s practices exposed in their own words.
We also have major outlets like the Guardian going on record stating that there is no evidence that SteveMc is anything other than what he says (a retired statistician doing this as a hobby).
I don’t think many people outside of the alarmist echo chamber are going to pay attention to DC claims which really nothing more than accusations of bias (which are extremely ironic given the choice of panel members for the UK review).
Hello Mr. McIntyre
Until I read a recent article by Mark Steyn in Mcleans Magazine I had always wondered how the United Nations could say the science on global warming is overwhelming and irrefutable. It appears now, after closer inspection that what I had believed or wanted to believe about global warming is based on some pretty shoddy research.
However, any discussions that I have with people about climate change, it is believed as common knowledge that the arctic ice cap is melting and this is because global warming is a fact, polar bears are in danger, and that is that.
Where can I find unbiased information about the state of the arctic ice cap and whether it is, in fact, disappearing and if so what would be the most reasonable cause of this?
I realize that this must be a busy time for you, what with the review panel being announced for the IPCC and all. Keep up the pressure.
Best Regards: Andrew McIvor
Alberta CA
I want to congratulate you for checking the data by yourself. I am a mathematical physicist – that is how I got interested in the subject.
A good site for ice cover is maintained by the University of Illinois.
http://arctic.atmos.uiuc.edu/cryosphere/
You can even check by yourself what the ice is doing, from a daily photo of each pole.
Check the N hemispheric anomaly (the ice is now close to the usual level) and the S hemispheric anomaly (ice surface is increasing there, so the total coverage is increasing. Any site where they “forgot” to update the ice cover from 2007 is “ratchet reporting” only the decreases.
Most important, though is the fact that there was a similar Arctic cap meltdown, even more severe, in 1922, well documented e.g.in The New York Times
http://select.nytimes.com/gst/abstract.html?res=F00F13F7395516738DDDAC0A94DA405B838EF1D3
see also
supported by temperature records near the Arctic which show that the weather around 1922 was indeed warmer there than now
http://data.giss.nasa.gov/cgi-bin/gistemp/gistemp_station.py?id=620040630003&data_set=1&num_neighbors=1
Then as in 2007 the northern countries scrambled madly for territorial advantage in the newly ice-free Arctic. And a few years later – as it does now – the Arctic froze back.
And we survived it…
The number of polar bears is according to
http://pbsg.npolar.no/en/status/
the biggest polar bear protection agency, 20000-25000 polar bears now, as many or more than there have ever been estimated
and the satellite measured ocean level trends at
http://tidesandcurrents.noaa.gov/sltrends/sltrends.html
(rising about 1ft/century as it always did, except in the NW US and Canada, where the sea levels go down about 3ft/century.)
For temperatures, the raw database (what people measured with thermometers) is called GHCN raw.
You can download all the existing monthly records free (cca 14MB) from
http://www.ncdc.noaa.gov/oa/climate/ghcn-monthly/
if you like to use Excel. The main problem with this data is that many if not most stations, historically in open fields, are now on parking lots, near air conditioners, etc. and/or in newly urbanized areas.
You can also use the visualizer for GHCN raw at
http://www.climateaudit.org/station-data/
GHCN raw has been adjusted – or manhandled – into GHCN adjusted, NASA-GISS and HADCRUT, among others, with many undocumented changes meant to increase the increase. There are several satellite data sets since cca 1980.
The main point here – try to observe by yourself – is that the global temperature increase and even the shape of the increase between 1970 – 2010 appears to match almost perfectly the period 1910-1950, a total increase of cca. 0.65 C in each. During 1950-1970 the temperature stagnated – if the periodicity happens to continue, one could have a stagnation 2010-2030.
The basic facts were admitted by Phil Jones in the recent BBC interview
http://news.bbc.co.uk/2/hi/8511670.stm
An independent site which aggregates most databases is for instance
http://www.woodfortrees.org/plot/hadcrut3gl/from:1900/mean:36/plot/gistemp/from:1900/mean:36/offset:%20-0.14/plot/uah/from:1900/mean:36/offset:0.04/plot/rss/from:1900/mean:36/offset:0.08
That shows that the current CO2 levels had no measurable effect whatsoever on climate.
An interesting video of a “Climategate” rally at PSU.
“Video: Climategate rally”
http://www.collegian.psu.edu/archive/2010/02/15/video.aspx
Nice to see that this is all actually being discussed by students and citizens of all views out in the open.
And this…
“Mann talks climate change”
http://www.collegian.psu.edu/archive/2010/02/15/mann_talks_climate_change.aspx
Mann seemed confident they would find the SA was significantly colder than the NA during the MWP. Obviously that would undermine the notion that the MWP was W and lend needed support to his hockey stick.
Is there any good research supporting his confidence or is Mann just up to the same old tricks?
Written as I dozed off. How about northern hemisphere (NH) and southern hemisphere (SH)?
The rally was covered by the Collegian:
http://www.collegian.psu.edu/archive/2010/02/15/students_concerned_with_intern.aspx
The rally was also covered by WJAC TV:
http://www.wjactv.com/news/22549717/detail.html
Mann gave a seminar on Friday after the rally: “Climate Change: What Can we Learn from Past Centuries?”
http://e-education.mediasite.com/mediasite/Viewer/?peid=64ff96f905b74f3bab82a5aeec6fdc9a
A group supports the inquiry at Penn State and is calling for an apology from another group that does not.
http://www.collegian.psu.edu/archive/2010/02/17/organization_backs_psu.aspx
An AccuWeather Meteorologist thinks a debate will gets the facts out on the Climategate issue at Penn State
http://www.collegian.psu.edu/archive/2010/02/24/alum_debate_for_climategate_sh.aspx
Mann surfaces with excuses for his actions in his email deleting exchange with Jones.
http://www.centredaily.com/2010/03/29/1880926/mann-explains-e-mail-actions.html
9 Trackbacks
[…] The Mann Inquiry (the first comment is quite interesting) […]
[…] How whitewash destroys a universities credibility, Adjusting the temperature record – the Australian way, Wishful thinking, Looking at the data, […]
[…] The Mann Inquiry Report As a starting point for today’s post, the Office of Research Integrity (U.S. Department of Health and Human […] […]
[…] Steve McIntyre of Climate Audit is the biggest obstacle to the idea that Mann has been exonerated by the Penn State inquiry and puts the argument to rest, in my view. First, he reviews the procedures that should be followed in the type of “inquiry” conducted by Penn State as outlined in the U.S. Department of Health and Human Services’s Office of Research Integrity (ORI), and finds the Mann Inquiry Report failed to follow those procedures. Says McIntyre, “The Mann Inquiry Report is a rather odd document, when assessed against ORI procedures.” He then goes on to outline where the Mann Inquiry Report departs from the ORI, rendering its conclusions suspect. Or perhaps worthless. Those are my words. […]
[…] thing to do to poor Mikey. Now Mann has been “exonerated” by one of the most bogus whitewashes in academic history, and where is your outrage, Judith? Where are the climate scientists trying to […]
[…] McIntyre has interesting analyses here and here. In the latter he highlights issues arising from the fact that this was an inquiry into whether […]
[…] Penn State Inquiry Committee Academic misconduct investigations are supposed to have two stages: an “inquiry” committee, which is sort of equivalent to a grand jury stage, designed only to see whether there are grounds for an “investigation”; and an “investigation” committee, which is charged to investigate counts arising from the inquiry committee and weigh the defence. See a prior CA discussion here. […]
[…] Penn State Inquiry Committee Academic misconduct investigations are supposed to have two stages: an “inquiry” committee, which is sort of equivalent to a grand jury stage, designed only to see whether there are grounds for an “investigation”; and an “investigation” committee, which is charged to investigate counts arising from the inquiry committee and weigh the defence. See a prior CA discussion here. […]
[…] year, I reported that the “Mann Inquiry Committee has probably made about as many procedural errors as it’s […]