Investigation and management

A couple of years ago, Germany had no special rules regarding misconduct in science.28-30 There was a complete lack of institutional safeguards for promoting good scientific practice and for dealing with infringements. This did not mean that norms and rules, developed for other types of illegal activities, such as the provisions against fraudulent behaviour, could not be applied to misconduct in science - provided that those immediately affected did not settle the problem in private, as was done in most cases. Rules developed for other types of illegal activities could - and can still -be applied, but this did not ensure that misconduct could always be handled efficiently.

The prosecution of misconduct as fraud, for example, will usually fail except in particularly blatant cases. One reason for this is that the prosecution of minor cases will fail for lack of evidence. It would be very difficult, for example, to prove that a researcher wanted to deceive a funding agency with at least conditional intent, to give rise to an error, and to cause a theft stemming from that error, but unless all this is proved, he cannot be punished for fraud. In a civil procedure, a researcher cannot be sure of being able to prove that he has been wronged, and risks losing the case and having to pay any associated costs. As for plagiarism, the German system has to deal with the problem that papers are protected only against unlawful literal copying. The scientific content - in particular, the research result, and thus that which is most important to the researcher - does not enjoy copyright protection. If a researcher is stimulated to carry out research work of his own by a peer's work that he is reviewing, the researcher who has submitted the manuscript or grant application has no means of protecting himself.

In addition, if one excludes disciplinary action towards civil servants, there is no other opportunity to react to misconduct in a less than major way. A minor manipulation of data, for example, may not be sufficient to give a funding agency the right to end a funding relationship retrospectively. A minor plagiarism may not be sufficient grounds for dismissing a researcher. Thus, employers and funding agencies have no chance of reacting adequately to minor cases of misconduct.

This is the gap intended to be filled by new regulations proposed by two very important German research institutions and funding agencies. Since the Herrmann and Brach case has upset the German scientific community, there is a consensus that the topic "misconduct in science" cannot be shrugged off with a "mundus vult decipi". On the contrary, pressure upon research and funding institutions has grown considerably to deal with such matters properly.

Nevertheless, even before this case, procedures for handling allegations had been drawn up by the most prestigious German funding agency for academic research, the German Research Foundation (Deutsche Forschungsgemeinschaft - DFG31), - in 1992 - and they were then revised in 1999.32 Only months before this, the Max-Planck Society (MaxPlanck Gesellschaft - MPG)33 also presented a set of regulations.34 Subsequently the latter have served as a pattern for the revised procedures of the German Research Foundation as well as for the model procedure35 of the German Rectors' Conference (Hochschulrektorenkonferenz -HRK),36 which its member institutions gradually translate for their own purposes. In addition, the Helmholtz Centers of Research37'38 and some professional associations39-41 are currently addressing the problem. Finally, the German Federal Ministry for Education and Research (Bundesminsterium für Bildung und Forschung (BMBF)) plans to oblige its beneficiaries to accept the standards of good scientific practice.

Most of the new regulations recommend the appointment of one or more experienced members of the academic staff as ombudspersons. These latter are supposed to react to accusations and to pursue on their own initiative any clue of possible academic misconduct. An ombudsperson should also advise whistleblowers confidentially and examine the changes in terms of their credibility. Beyond this, in July 1999 the German Research Foundation appointed an "Ombudsman for Science" with a nationwide responsibility to advise and assist scientists and scholars in questions of good scientific practice and its impairment through scientific dishonesty.42

Most of the new regulations enable special investigative committees to check, in two-stage proceedings consisting of an informal inquiry and a formal investigation, whether or not allegations of misconduct can be upheld or, in the case of professional associations, be used to exclude members on the basis of misconduct.

Unlike for example, Denmark, every institution has its own committee. Thus, the system of dealing with misconduct in science in Germany is strictly local, being neither centralised as in Denmark, nor having a controlling institution such as the Office of Research Integrity in the United States.

The investigative committees have the mandate to establish the facts of the case and to form a reasoned opinion on whether or not misconduct has occurred. If a committee concludes that misconduct is not proved, it closes the case. If it concludes that misconduct has occurred, it informs the leadership of the institution (for example, the rector of the university; the President of the Max-Planck Society), and recommends further action that will then have to be taken by the institution (for example, warning, notice of termination of employment, withdrawal of a degree). An appeal stage is deliberately avoided, because it would extend the time needed to reach resolution. In any case, a scientist to whom sanctions have been applied can always appeal through the courts. Therefore, cases of serious misconduct will invariably end there.

Most of the new regulations deem academic misconduct to have occurred if, in a scientifically significant context, false statements are made knowingly or as the result of gross carelessness; if the intellectual property of another is violated; or if their research activities are otherwise disadvantaged. Examples of misconduct - as given in the regulations - are:

• False statements (for example, invention of data; falsification of data, such as by selecting and withholding unfavourable results, without disclosing this or by manipulating a diagram or illustration; the supply of incorrect information in an application or in a request for funds, including false information regarding the publication body or publications in press).

• Violation of intellectual property (with respect to a copyright work of another person or the significant scientific findings, hypotheses, theories or research methods of others; the unauthorised exploitation involving usurpation of authorship - plagiarism; the misappropriation, particularly in an expert opinion, of research methods and ideas - theft of ideas; the usurping of scientific authorship or co-authorship, or the unjustified acceptance thereof; the falsification of the contents or the unauthorised publishing and making accessible to third persons of work insight, hypothesis, theory or research method not yet published; the assertion of the (co-)authorship of another person without his or her consent).

• Impairment of the research work of others by the sabotage of research work (including damaging, destroying or manipulating research arrangements, equipment, documents, hardware, software, chemicals, or other items required by another person for carrying out an experiment).

• Joint accountability (joint accountability may, inter alia, be the result of active participation in the misconduct of others, of having knowledge of falsification committed by others, of co-authorship of publications affected by falsification, and of gross neglect of supervisory duties. The special circumstances of each are decisive).

Compared with other countries, the circumstances under which research and funding institutions are allowed to appoint a misconduct committee appear to be restrictive:

• According to the ruling of the Federal Administrative Court from 11 December 1996 in the "Lohmann" case summarised above,43 institutions of higher education may call upon the services of a committee to examine the circumstances of a case of suspected misconduct only if there is definite evidence that a scientist may be abusing his academic freedom, or jeopardising or violating the rights of others. Mere scruples about the academic work of a scientist are not sufficient. In the actual case, the university had to deal with mere scruples and therefore did not have the right to set up a committee. Thus primary data that corresponded to the irreproducible results of Professor Lohmann's were lost. Therefore, definite evidence that he used wrong data was missing. The scruples of his colleagues would have had to be the subject of controversial scientific debate, not of the work of a university committee.

• A committee may act only on the matters in question and only if and to the extent that serious charges are brought against a scientist. A serious charge may be that the scientist acted irresponsibly in breach of the fundamental principles of scholarship; that he has abused the principles of academic freedom; or that there is reason to question the academic nature of his work, not only in special regards or according to the definition of a special school, but on a systematic basis.

• The committee is authorised to make an appropriate statement and to criticise the work of the researcher to the extent that he is found undoubtedly to have overstepped the limits of the freedom of science. If, however, the academic seriously endeavours to respect the principles of academic work, and has likewise not violated the rights of others, the committee must not pass judgment on the work in question.

• The supervisor responsible for disciplinary action is to be informed of any disciplinary offence and should then take further action. If the rights of another have been violated, the committee has to take the necessary action to protect those concerned.

• Confidentiality has to be respected. The standards should be those of formal disciplinary proceedings.

The reason for these restrictions is article 5 paragraph 3 of the German Constitution, that stipulates: "Art and science, research and teaching shall be free." According to the interpretations of this article, which have been developed by the Federal Supreme Courts for Administrative, and particularly for Constitutional, affairs over the decades, scientists are given herewith an individual right to honest error and a right to pursue scientific ideas that differ from the mainstream. Any official action (which includes university action or the action of a public funding agency) that might imply censorship of scientific ideas is forbidden. Article 5 paragraph 3 of the Constitution also has to be respected if a scientist is suspected of misconduct - a behaviour, that is itself not protected by Constitutional law - as such a suspicion might well be unjustified. Therefore, special misconduct investigations are allowed only between the boundaries mentioned above.44

It may be a characteristic of the German management of misconduct that German institutions care much about isolating and repairing damage to the research community incurred by scientific fraud.45 To separate truth from lies in the Herrmann and Brach affair, the German Research Foundation and the Mildred Scheel Foundation charged an investigation group with tracing the history of the fabricated data in 550 papers and 80 book chapters. In June 2000, the group concluded that at least 94 scientific publications by Herrmann and 54 publications by Brach contained fraudulent data, and that another 121 Herrmann publications were suspected of containing fictitious data.46 Similarly, the Max-Planck Society required its Institute for Plant Breeding in Cologne to repeat all the experiments reported in papers that had relied on assays that were manipulated.45

To safeguard good scientific practice, reactive measures are indispensable but not sufficient. Preventive measures must also be introduced. To begin with, an attempt might be made to make researchers more aware of the problem of misconduct through workshops and ethics instruction. Thus, in its model procedure, the German Rectors' Conference encourages the faculties to cover the subject of academic misconduct in a suitable manner within the curriculum to raise the awareness of students and young academics to such issues.

In addition, the Proposals for safeguarding good scientific practice47 of the German Research Foundation are an important help for German research institutions and scientific societies that recognise their institutional responsibility and seek to tackle misconduct in science. The Herrmann and Brach case had led the Executive Board of the German Research Foundation to appoint an international commission with the mandate of exploring the causes of dishonesty in the science system; to discuss preventive measures; to examine the existing mechanisms of professional self-regulation; and to make recommendations on how to safeguard the latter. As the result of its deliberations, the commission has put forward the Proposals for safeguarding good scientific practice.

Furthermore, the idea of reducing the pressure to publish by limiting to a low maximum number the publications required for filling the vacancies ("Harvard Scheme") has had some positive response in Germany48 and I hope that this attitude will spread.

Although the German Research Foundation and also the MaxPlanck Society were lucky to have misconduct procedures when the Herrmann and Brach case (respectively, the Seeburg and the technician case) became public, there still seems to be a reluctance in Germany towards accepting misconduct guidelines. Even nowadays, applause is certain for anybody who conjures up the terrors of the notorious bureaucratic overkill;22 the confidence of researchers in the "self-healing powers" of science is still very strong, but the experience of the last years shows that the legendary self-healing powers definitely have to be initiated and guided by special principles.22

Given the multiple sets of misconduct procedures and statements on good scientific practice in Germany over the last few years, there is some hope that misconduct will be successfully tackled. In particular, one hopes that the "spirit" of these guidelines will be accepted throughout the scientific community.

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