The UCLA Ombuds Office

A Resource for

Potential Whistleblowers

Ethics in Patient Oriented Research November 16, 2011

Tom A. Kosakowski

Ombudsperson for the UCLA Center for Health Sciences

You’ve Witnessed Misconduct,

Now What?

Most people consider whether to become a whistleblower.

A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities (a violation of a law, rule or policy such as fraud, health/safety violations, and corruption).

Being a Whistleblower

Has Drawbacks A recent study of 26 pharmaceutical

company whistleblowers found that most were not happy with the process. (Aaron S. Kesselheim, et al., N. Engl. J. Med. 2010,

362:1832-1839May 13, 2010.)

For most of the whistleblowers in the study, the triggering event for their report was a career change (starting with a new company or getting a promotion).

Drawbacks (cont.)

The whistleblowers were motivated to report misconduct out of integrity, altruism or public safety, justice, and self-preservation.

Once they made their report, 82% of the whistleblowers reported being subjected to various pressures by the company in response to their complaints.

Many of the whistleblowers reported other related problems, including:

• “Devastating” financial consequences (31%);

• Divorce or had severe marital problems (26%); and

• Stress-related health problems (50%).

Drawbacks (cont.)

In this study, the whistleblowers were entitled to share in the monetary recovery, but they perceived the financial gain to be small in comparison to the vast amount of time they spent on the case, and the damage and disruption to their professional careers.

Drawbacks (cont.)

So What Can You Do?

In light of the fact that whistleblowing could have serious ramifications for your career (as well as those you implicate) experts advise caution. Management consultant Randall Craig says that, before doing anything, “make sure you've got your facts straight.” (Edmonton Journal, “Think before you blow the whistle,” Aug. 5, 2008.)

So What Can You Do? (cont.)

Generally, there are three options available: Ignore the misconduct; Confront the person; or Report the behavior.

In addition, many experts recommend: Using a confidential hotline; and Consulting workplace ombuds.

What is an Ombuds?

The first ombudsman was appointed by the king of Sweden in 1809 to voice citizen‟s concerns.

The first university ombuds office was established at Michigan State University in 1967. UCLA was an early adopter and followed in 1969.

There are two primary kinds of ombuds: advocate (or classical) ombuds and organizational ombuds. Universities generally employ organizational variety; there are almost 300 at present.

Definition of an

Organizational Ombuds

“An organizational ombudsperson is a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver, and a person who helps an organization work for change.”

Mary P. Rowe, “Options, Functions and Skills; What an

organizational ombudsperson might want to know,” 1995.

Albany State University Algonquin College American University of Kuwait Amherst College Arizona State University Ashford University Athabasca University Auburn University Ball State University Baylor University Binghampton University Bishop's University Boise State University Bowling Green State University Brock University Brown University California Institute of Technology California State Bakersfield California State Humboldt California State Long Beach California State Monterey Bay California Poly Pomona California State San Bernardino California State San Diego California State San Jose California Poly San Luis Obispo Camosun College Carleton University Central Connecticut State Central Michigan University Central Washington University Chicago State University The Citadel CUNY Baruch College CUNY Brooklyn College CUNY City College CUNY Graduate Center CUNY Hunter College Claremont Graduate University Clayton State University Clemson University Cleveland State University College of Charleston College of Western Idaho College of William and Mary Colorado State University Colorado Technical University Columbia University Concordia University Cornell University Dalhousie University Dartmouth College Dawson College DePaul University Drexel University Duke University East Los Angeles College Eastern Michigan University Eastfield College Edinboro University Edison State College Elon University Fanshawe College Florida A&M Florida Atlantic University

Florida Gulf Coast University Florida International University Florida State University System Gallaudet University George Mason University Georgetown University Georgia Institute of Technology Georgia State University Guilford College Hamline University Hampshire College Harvard University Idaho State University Illinois Institute of Technology Illinois State University Indiana State University Indiana University Institute of Transpersonal Psychology Iowa State University James Madison University Jefferson Medical College Kansas State University Keio University Kennesaw State University Kent State University Kenyon College Lakehead University Lehigh University Leiden University Lewis & Clark College Louisiana State University Loyola Marymount University Marquette University Massachusetts Institute of Technology McGill University McMaster University Michigan State University Middlebury College Missouri State University Montana State University Montclair State University Mount Holyoke College Mount Royal College Mt. Sinai School of Medicine National-Louis University New Mexico State University The New School North Carolina State University Northern Arizona University Northern Illinois University Northland Pioneer College Oberlin College Occidental College Ohio University Oklahoma State University Ontario College of Art & Design Otis College of Art & Design Pace University Pennsylvania State University Polk State College Portland State University Princeton University Purdue University Rochester Institute of Technology

Rutgers University Ryerson University Saginaw Valley State University Saint Louis University Santa Monica College Savannah College of Art & Design Schoolcraft College Seneca College Simon Fraser University Smith College South Texas College Southern Illinois University Stanford University SUNY Albany SUNY Purchase SUNY Stony Brook Sullivan University Technische Universität Darmstadt Technische Universiteit Delft Tennessee State University Texas A&M Texas State University Texas Southern University Texas Tech University Texas Woman's University Union College Universitat Autònoma de Barcelona Universiteit Ghent University of Alabama University of Alberta University of Amsterdam University of Arizona University of Arkansas UC Berkeley UC Irvine UR Riverside UC San Diego UC San Francisco UC Santa Barbara UC Santa Cruz University of Central Florida University of Chicago University of Cincinnati University of Colorado University of Denver University of Florida University of Girona University of Hartford University of Hawaii University of Houston University of Idaho University of Illinois University of Iowa University of Kansas University of Kentucky University of Lethbridge University of Louisville University of Manitoba University of Maryland University of Massachusetts Amherst University of Massachusetts Dartmouth

University of Massachusetts Lowell University of Medicine & Dentistry of New Jersey University of Memphis University of Miami University of Michigan University of Minnesota University of Missouri University of Nebraska University of New Brunswick University of New Mexico University of North Carolina: Chapel Hill University of North Florida University of North Texas University of Oklahoma University of Ottawa University of Paris 1 Pantheon- Sorbonne University of Pennsylvania University of Puerto Rico University of Rennes 1 University of San Francisco University of South Carolina University of South Florida University of Southern Maine University of Tennessee University of Texas University of Toledo University of Toronto University of Toronto University of Victoria University of Virginia University of Washington University of Waterloo University of Wellington University of West Georgia University of Western Ontario University of Windsor University of Wisconsin Université de Montréal Université de Sherbrooke Université du Québec à Montréal Université Laval Utah Valley University Virginia Commonwealth University Virginia Tech Vrije Universiteit Amsterdam Walden University Washington and Lee University Washington State University Washington University in St. Louis Wayne State University West Texas A&M University Western Michigan University Western State College of Colorado Wilfrid Laurier University Worcester Polytechnic Wright State University Yale University York University Youngstown State University

A Few Other Universities With

an Ombuds Program

An Alternate Definition

“This has to be one of the more ominous sounding job titles out there – possibly because it starts with the same two letters as „ominous,‟ but also because if you need an ombudsman, it probably means some dank, smelly excrement has hit the fan. Whenever you‟ve got a potentially explosive and litigious conflict between two entities, these guys are called in to be the middlemen, the mediators, and the last stop on the train to Lawsuit City. They attempt to resolve conflicts between private citizens and the government, disgruntled students and their university, or between an employee and his or her soul-sucking employer. Fired unfairly? Expelled without due process? Denied federal benefits? Tell it to the ombudsman. * * * We‟ll put this on a list, along with „airline counter employee‟ and „DMV clerk,‟ of Jobs for Masochists Only.” (Mental_Floss Magazine, Sep. 8, 2008.)

Mission Statement

The Office of Ombuds Services is a place where members of the UCLA community–students, faculty, staff and administrators–can go for assistance in resolving conflicts, disputes or complaints on an informal basis. In order to afford visitors the greatest freedom in using its services, the Office is independent, neutral and confidential.

Conflict Resolution Spectrum

Characteristics

Ombuds Assistance

Facilitation/ Mediation

Arbitration/ Grievance

Litigation

- Formality

- Focus

- Process Control

- Outcome

- Relationships

- Cost/Duration

- Privacy

Informal/Voluntary

Identifying Options

Visitor

Understanding

Often preserved

Free/Quick

Confidential

Informal/Voluntary

Explore Interests

Mediator & parties

Mutual agreement

Often preserved

Free/Quick

Mostly confidential

Formal/Mandatory

Contested Issues

Arbitrator

Binding decision

Rarely preserved

Moderate

Limited disclosure

Formal/Mandatory

Legal Standards

Judge

Judgment

Never preserved

High/Protracted

Public

Range of Ombuds’ Services

Listening

Clarifying

Informing

Referring

Coaching

Facilitating

Mediating

Outside the Ombuds’ Scope

Receiving formal complaints

Assigning blame or culpability

Deciding outcome of dispute

Enforcing agreements

Providing legal or psychological advice

Ombuds Ethical Tenets

International Ombudsman Association, Code of Ethics and Standards of Practice

Confidentiality

Neutrality Informality

Independence

Confidentiality

The Ombuds Office

• Doesn‟t keep records; and

• Doesn‟t reveal visitor information.

The Ombuds Office is not a mandated sexual harassment reporter.

Confidentiality &

Sexual Harassment “Each location shall identify confidential resources with whom

members of the University community can consult for advice and information regarding making a report of sexual harassment. These resources provide individuals who may be interested in bringing a report of sexual harassment with a safe place to discuss their concerns and learn about the procedures and potential outcomes involved. These resources shall be posted on the location‟s website and prominently displayed in common areas. Confidential resources include campus ombudspersons and/or licensed counselors in employee assistance programs or student health services. Individuals who consult with confidential resources shall be advised that their discussions in these settings are not considered reports of sexual harassment and that without additional action by the individual, the discussions will not result in any action by the University to resolve their concerns.”

University of California Procedures for Responding to Reports of Sexual Harassment, Dec. 14, 2004

Confidentiality and

Whistleblowing

At UC Santa Barbara, the whistleblower policy specifically states that the Ombuds Office is confidential and not subject to the reporting requirements.

UCSB Implementing Procedures for the

Whistleblower Policy, § II.F., 2008.

Independence

The Ombuds Office reports as a part of the Chancellor‟s office.

Ombuds and are not students or members of faculty.

Neutrality

The Ombuds Office does not

• Take sides in a conflict; or

• Impose a resolution.

However, the Ombuds Office may

• Advocate for fair process; or

• Report on systemic concerns or problems.

Informality

The Ombuds Office provides informal alternatives to formal remedies.

The Ombuds Office can help explain the formal remedies available, but will not participate in any formal processes.

Options An Ombuds May Offer

re Research Misconduct

Discussing sufficiency of evidence

Dealing with feelings about getting involved

• Getting emotional support

• Organizing reasons

Evaluating risks and benefits

Range of Options (cont.)

Obtaining additional information

• Policies and procedures

• Relevant culture

• Additional resources

Developing a plan of action

Facilitating informal conversation

Giving upward feedback

Case Study

A graduate student, Gina Singh, has been working for the past two years in Professor Imhoff‟s laboratory. Also working in the lab are other grad students, staff researchers and a senior doctoral student, Dino Stahl.

Last week, Prof. Imhoff returned Gina‟s final draft of a article on her research. To Gina‟s surprise, she was listed as the third author after Imhoff and Dino.

Case Study (cont.)

Gina had expected the second author position because she had conducted most of the experiments and written more of the paper than anyone else. Moreover, Dino had seemed to be preoccupied with conference presentations and his own thesis and contributed little.

Gina‟s labmates told her that this is standard practice and that she would see better acknowledgment after she had been a member of the lab for longer.

Case Study (cont.)

Gina personally dislikes Dino and is convinced that he has been using lab equipment and funds for personal laptop and travel expenses in violation of university policy and the federal grant.

Gina suspects that Dino has been using the laptop to alter data. According to lab gossip, Dino‟s experiments have been going poorly – reagents apparently have been contaminated and sometimes days of work have been lost. Nonetheless, at lab meetings Dino reports that his project is on track and that he has plenty of data.

Case Study (cont.)

Seeking your advice, Gina admits she could swallow her pride about the authorship issue and may not fully understand Dino‟s research. Still, she strongly believes that Steve should be punished for misusing funds.

She confides that she has decided to leave grad school after this semester to work in industry. She was counting on using this article to demonstrate her abilities to prospective employers.

Case Study (cont.)

Gina wonders whether she can use Dino‟s fraud and suspected research misconduct as leverage to become second author on the paper.

Her long-time boyfriend, a student at the law school, is urging her to hire an attorney if Prof. Imhoff refuses to make a deal. Her mother says she should not make a fuss.

What can she do?

Case Study (cont.)

Consultation with the Ombuds • Complete debriefing by student

Student‟s ethical concerns What relationships are important Possible outcomes

• Review of applicable rules/standards Graduate Student Academic Rights Whistleblower policy

• Consideration of other resources

Informal inquiry by Ombuds - UC Whistleblower Office - Dean‟s Office

Follow-up consultation with Ombuds - Identification of options by Ombuds - Reality testing of options by student - Decision by student - Referral or intervention by Ombuds

Upward feedback by Ombuds

Case Study (cont.)

Potential Interactions You May

Have With Ombuds Office

Consulting the Ombuds directly

Responding to informal inquiries

Referring individuals with concerns

Additional Resources Getting to Yes: Negotiating Agreement Without

Giving In, Roger Fisher, et al. (1991) Difficult Conversations: How to Discuss what

Matters Most, Douglas Stone, et al. (2000) Responding to Research Wrongdoing: A User-

Friendly Guide, Patricia Keith-Speigel, et al. (2010)

The College Administrator's Survival Guide, C. K. Gunsalus (2006)

Mending the Cracks in the Ivory Tower: Strategies for Conflict Management in Higher Education, Susan A. Holton (1998)

Managing Faculty Disputes, Jane E. McCarthy (1984)

How to Succeed in Academics, Linda L. McCabe, et al. (2000)

Office Locations

Main Office Strathmore Building 501 Westwood Plaza, Suite 105 Phone: 310-825-7627

CHS Office 52-025 Center for Health Sciences Phone: 310-206-2427

www.Ombuds.UCLA.edu