Letter from Dr. Kay's Lawyer to UofA

[ Home ] [ Write to Arizona Legislators ]

March 13, 1998

Jane L. Eikleberry, Esq.
Waterfall, Economidis, Caldwell, Hanshaw, & Villamana
Williams Centre -- Eighth Floor
5210 East Williams Circle
Tuscon, Arizona 85711

Re: Dr. Marguerite M.B. Kay: CAFT Hearing, March 30 - April 4, 1998

Dear Ms. Eikleberry:

The purpose of this letter is to:

(1) Request that you reconsider the position expressed at page 2 of your February 3, 1998 letter to me, asserting that Dr. Kay is not entitled to unfettered representation by counsel of her choice in defending against the undeniably career-threatening charges currently being leveled against her by the University;

(2) Restate the position already articulated in my February 23rd letter to you that, assuming arguendo a hearing is warranted, the panel being constituted to hear this matter must, in addition to the five (5) elected CAFT members called for in Article IV, Section 9(e) of the Bylaws of the General Faculty of the University of Arizona, be augmented by two faculty members "who have backgrounds related to the area or discipline concerned but who have not been involved in the proceedings and that these additional members should be chosen from the list of individuals proposed by Dr. Kay." (University Handbook for Appointed Personnel, Section 2.13.09 (Second Edition, 1995));

(3) Revisit a number of fatal defects in the procedures followed by the University in its handling of this matter to date; and

(4) Address certain administrative issues raised in and by your recent correspondence.

1. Dr. Kay is Entitled to Unimpaired Representation by Counsel of her Choice.

As we will now discuss at some length, it is our carefully considered legal opinion that the United States and Arizona Constitutions, the Arizona Administrative Procedure Act, the Arizona Board of Regents Policy Manual, and well-established principles of administrative due process all guarantee to persons involved in quasi-judicial administrative proceedings which threaten serious or irreparable harm to their personal and professional reputations or to the pursuit of their chosen careers (as are all clearly the case here), the absolute right to full, unimpaired representation by counsel of their choice. Representation by counsel necessarily includes active participation in oral argument, the submission of evidence, and the cross- examination of adverse witnesses throughout the course of such proceedings.

Please clearly understand that we do not think it can honestly be denied that the charges currently being leveled against Dr. Kay, and the hearing currently scheduled to address those charges, can be characterized as anything less than career threatening. Consequently, if the University continues to deny Dr. Kay her right to full and effective representation of counsel throughout the upcoming proceedings, we fully intended to seek immediate judicial review of the issue. Article 14, Section 1, of the U.S. Constitution and Article II, Section 4, of the Arizona Constitution Guarantee Dr. Kay the Right to be Fully and Effectively Represented by Counsel During the Proposed Hearings Before CAFT. It cannot honestly be denied that "[t]he fourteenth amendment's guarantee of procedural due process applies when a constitutionally protected liberty or property interest is at stake." Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 777 (9th Cir. 1982), citingBoard of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). This is clearly true in quasi-judicial administrative proceedings as well as formal litigation.

Nor can it honestly be denied that the charges of scientific misconduct being made and considered by CAFT include serious attacks on Dr. Kay's personal and professional integrity, her professionalism, and her competence as a scholar and researcher.

Given the seriousness of such charges, and the threat posed even by unproven allegations of such wrongdoing pose to Dr. Kay's position as a Regents Professor at the University, her hard-earned professional reputation, and her entire future as a professor, researcher and publisher of scientific papers, it is clear that her property interest in continued employment at the University and her liberty interest in her personal and professional reputations have been placed at risk of serious and perhaps irreparable harm by both the charges, themselves, and the proposed CAFT hearing.

More specifically, as a tenured faculty member holding a prestigious Regents Professorship, these charges threaten Dr. Kay's constitutionally recognized property rights in her University employment, which are clearly safeguarded by Constitutional guarantees of due process. See, e.g., Board of Regents v. Roth, supra, 408 U.S. at 576-577; Slochower v. Board of Higher Education, 350 U.S. 551, 554-559, 76 S.Ct. 637, 100 L.Ed 692 (1956); and McClanahan v. Cochise College, 25 Ariz App. 13, 18, 540 P.2d 744, 749 (Ct. App. 1975), reh'g denied, 25 Ariz. App 233, 542 P.2d 426 (Ct. App. 1975).

In addition to having a direct bearing on Dr. Kay's future at the University of Arizona, the CAFT charges and hearing may well foreclose or seriously impair Dr. Kay's ability to secure employment at other universities, colleges or research institutions no matter what the eventual outcome of the hearing process.

Because of the enormous stigma associated with CAFT's charges, and the potential for grievous harm to her reputation and ability to practice in her chosen career, Dr. Kay also has liberty interests which, in addition to her property interest in continued employment, are protected by Constitutional guarantees of administrative due process: "[W]here a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Board of Regents of State Colleges v. Roth, 408 U.S. at 558. (citation omitted). "A liberty interest arises where the dismissal imposes upon the employee a stigma or reputational harm which forecloses further employment opportunities or results in a significant damage to the employee's standing in the community." McLeod v. Chilton, 132 Ariz 9, 643 P.2d 712, 721 (Ct. App. 1981), cert. denied, 459 U.S. 877, 103 S.Ct. 1972, 74 L.Ed.2d 141 (1982).

Among other things, this guarantee of administrative due process requires notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Vanelli, 667 F.2d , supra at 779-780, citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct 1187, 14 L.Ed.2d 62 (1965). "[T]he more important the rights at stake the more important must be the procedural safeguards surrounding those rights." Speiser v. Randall, 357 U.S. 513, 520-21, 78 S.Ct. 1332; 2 L.Ed.2d 1460 (1958). According to the Supreme Court, determining the appropriate scope of due process rights in a given setting requires consideration of three factors: (1) The private interest that will be affected by the official action; (2) The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional procedural safeguards; and, (3) The Government's interest, including the function involved and the fiscal and administrative burdens, that additional or substitute procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Because the proposed hearings raise issues tantamount to charges of moral turpitude, and threaten the very livelihood of Dr. Kay, the University of Arizona has an absolute constitutional obligation to ensure that neither the charges being made, nor the hearing itself, deprives her of her fundamental property and liberty interests, including her right to the active representation by counsel of her choice in the course of the proposed hearings. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 270-71, 90 S.Ct. 1001, 25 L.Ed. 2d 287 (1970) (holding that a welfare benefit recipient is entitled to retain counsel to represent him in termination hearings where contested issues of credibility and veracity are at issue).

In Goldberg, 397 U.S. at 270 (citing Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)), the Supreme Court stated this proposition in no uncertain terms:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross- examination. (Goldberg, supra, 397 U.S. at 270, emphasis added.)

In holding that welfare recipients must be allowed to be represented by counsel, the Supreme Court in Goldberg explained, "Counsel can help delineate the issues, present factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient. We do not anticipate that this assistance will unduly prolong or otherwise encumber the hearing." Goldberg, 397 U.S. 254, 270-271.

In the instant matter, Dr. Kay, the University, and the CAFT hearing panel all are being advised by counsel. Moreover, no matter which administrative provisions should actually control the instant proceedings, both the University and Dr. Kay are entitled to present witnesses and evidence, and to cross-examine adverse witnesses. Under these circumstances, direct participation by counsel for both the University and Dr. Kay could not unduly prolong or encumber the hearings, but rather may well both increase the reliability of the hearings and avoid prejudicial error.

Moreover, there is ample federal and Arizona authority for the proposition that, in cases like Dr. Kay's, both federal and Arizona due process requirements guarantee unfettered representation by counsel. In Vanelli, supra, (involving allegations of sexually offensive conduct by a male high school teacher toward female students), the Ninth Circuit held that "standards of fairness required by the due process clause" had been satisfied during the course of a post-termination hearing where, "[a]ppellant's counsel was present, he was permitted to cross examine all the witnesses (except for one who was ill) and was given ample opportunity to rebut all evidence which the school board had heard. . .. " Vanelli, 667 F.2d at 780. Significantly, the Ninth Circuit also held that even a post-termination hearing involving counsel did not suffice under the circumstances of Vanelli, because "even a temporary cloud on appellant's reputation could be sufficient to overcome minimal administrative burdens and to warrant a pre-termination hearing to comport with due process." Vanelli, 667 F.2d at 778, n. 8. Similarly, in Deuel v. Arizona State School for Deaf & Blind, 165 Ariz. 524, 526- 27, 799 P.2d 865 (Ct. App. 1990) (involving allegations of improper attitude, nefficiency and physical assault by a physical education teacher at the Arizona State School for the Deaf and Blind), the Arizona Court of Appeals specified factors necessary for a valid post-termination due-process hearing, which expressly included "the opportunity to be represented by counsel." (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Vanelli v.Reynolds, 667 F.2d 773 (9th Cir. 1982)). See, also, Rouse v. Scottsdale Unified School Dist., 156 Ariz 369, 374, 752 P.2d 22 (due process included representation by counsel to present evidence and cross-examine witnesses).

Here, given the reputation and career threatening potential of the charges being made against her, Dr. Kay merits the fundamental due-process protection of epresentation by counsel before the University decides to deprive her of important property and liberty interests. Peacock v. Board of Regents of the Universities and State Colleges of Arizona, 510 F.2d 1324, (9th Cir. 1975), cert. denied, 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 701 (1975) is instructive regarding circumstances which require full due process representation before Dr. Kay suffers any such deprivation.

In Peacock, although it held that a post-suspension hearing was sufficient regarding reinstatement of a tenured college professor as the Head of the Department of Surgery at the University of Arizona's College of Medicine, the Ninth Circuit also found: (1) No financial interest was involved in that case since the Department Head position was not paid and the appellant continued to receive his full professorship's pay while suspended; (2) Deprivation of the position did not remove the appellant from the "mainstream of his occupation;" and, (3) The proposed termination in Peacock was not for any reason which might stigmatize appellant in the way that a charge of dishonesty or immorality clearly could (as is clearly the case here). Peacock, 510 F.2d 1328-29.

The court in Peacock cautioned:

We emphasize that under different circumstances, involving a more serious intrusion on protected property interest, such as the professorship, or on a "liberty" interest, or an employment relationship in which loyalty and cooperation are less imperative, a pre-deprivation hearing may be required. Peacock, 510 F.2d at 1330.

Unlike Peacock, significant property and liberty interests are already at risk, since even simple, unproven allegations of scientific misconduct have already done, and most likely in the future will do, severe damage to Dr. Kay's career and reputation. Dr. Kay thus merits a pre- deprivation hearing which affords her full due-process rights, including unfettered representation by counsel of her choice. Note that in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, the Supreme Court held that even a security guard who lied on his employment application by concealing a grand larceny felony conviction, was entitled to a due process hearing prior to adverse employment action (in that case, termination).

In Arizona State Dept. of Pub. Welfare v. Barlow, 80 Ariz 249, 296 P.2d 298 (1958), the Arizona Supreme Court determined that failure to honor parents' rights to active participation by counsel in hearings regarding juvenile custody matters denied the parents basic process safeguards provided by the Arizona Constitution:

It has been repeatedly stated under a variety of circumstances that representation by one's duly constituted attorney is fundamental to our system of justice (citations omitted). Barlow, 80 Ariz. at 252-53, citations omitted.

In our opinion the denial of the right to effective participation of counsel constitutes a denial of due process of law so gross as to lack a necessary attribute of a judicial determination. We hold that an order of judgment of a Superior Court which is predicated on a hearing in which a parent is denied the opportunity to be heard by counsel if requested is void. Barlow, 80 Ariz. at 253.

Nor is the right to representation by counsel limited to employment disputes in a university or educational setting. See, e.g., Civil Service Asso. v. San Francisco, 22 Cal.3d 552, 567-68, 586 P.2d 162 (1978) (noting the long-recognized right of public employees to have representation by counsel at disciplinary hearings); Steen v. Board of Civil Service Comm'rs, 26 Cal.2d 716, 726-27 (1945) (finding an arbitrary refusal to allow petitioner's counsel to participate in the proceedings constituted a denial of a hearing, and noting "respondent was so overcome emotionally by the sudden and unexpected confrontation in force by his accusers, that he was unable to defend himself or to say anything in his defense."); and Borror v. Department of Invest. Div. of Real Estate, 15 Cal.App.3d 531, 543 (1971) ("we conclude that in [an]. . . administrative action of a disciplinary nature . . . the respondent is entitled to have counsel of his own choosing . . ..").

Thus, we think it clear that both federal and state Constitutional administrative due process requirements mandate that Dr. Kay be given the right to full and unfettered representation by counsel of her choice in the upcoming hearings.

Under The Arizona Administrative Procedure Act, Dr. Kay Is Also Entitled To Active Representation By Counsel During CAFT Hearings.

The Constitutional and public policy requirements of administrative due process, in general, or in scientific misconduct inquiries, in particular, actually find expression in the Arizona Administrative Procedure Act (the "APA"), which by its express terms applies to boards, commissions, departments officers and other administrative units of the state, to include such public bodies as the Board of Regents and the University. A.R.S. §41-1001(2). Hence, unless expressly exempted from the requirements of the APA, the Board of Regents and the institutions under its jurisdiction, including the University, are governed by the APA.

I readily concede that Articles 2, 3, 4 and 5 of the APA do not apply to the Board of Regents and the institutions under its jurisdiction (A.R.S. § 41-1005(D)). By necessary negative implication, however, Article 6 of the APA, which governs the conduct of hearings such as the upcoming CAFT hearing, does apply both to the Board of Regents and to the University of Arizona. Thus, the proposed CAFT hearing of its own charges of scientific misconduct must comply with Article 6.

Article 6, in turn, provides that, with respect to contested cases of the nature here involved:

Every person who is a party to such proceeding shall have the right to be represented by counsel, to submit evidence in open hearing and shall have the right of cross-examination. (A.R.S. Section 41-1062(A)(1).)

Furthermore, A.R.S. §41-1002 expressly provides that the APA's protections with respect to the conduct of hearings, including representation by counsel, may not be restricted by other statutes, unless expressly provided for by the Arizona Legislature:

A. Articles 1 through 5 of this chapter apply to all agencies and all proceedings not expressly exempted. B. This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes. To the extent that any other statute would diminish a right created or duty imposed by this statute, the other statute is superseded by this chapter, unless the other statute expressly provides otherwise.

C. An agency may grant procedural rights to persons in addition to those conferred by this chapter so long as rights conferred on other persons by any provision of law are not substantially prejudiced. (A.R.S. Section 41-1002(A)-(C)).

Thus, pursuant to the APA, neither the Board of Regents nor the University may deny or diminish Dr. Kay's right to be actively represented by counsel in the upcoming CAFT hearing in the absence of specific legislative authorization to that effect. No such authority has been granted either to the Regents or to the University by the Arizona Legislature and it is thus patently improper for them to arrogate into themselves the power to overturn or emasculate this specific act of the Arizona Legislature.

Needless to say, when the language of a statute is clear and leaves no opportunity for interpretation the statutory language must be followed. Herberman v. Bergstrom, 168 Ariz. 587, 589, 816 P.2d 244 (Ct. App. 1991). In the instant case, the language of the APA brooks no contrary reading and must be complied with.

Moreover, as a general proposition of law, no inferior administrative body or political body may adopt rules or policies which conflict with acts of the Legislature. SeeArizona Attorney General Opinion No. 57-121 ("Question: 3. May any state or political subdivision, board or commission enact rules, regulations or policies which are in conflict with any section of the Arizona Revised Statutes? Conclusion: 3. No." Opinion No. 57-121 further comments, "The answer to Question 3 necessarily must be in the negative, and it needs no supporting authority because it is fundamental in the law that no state or political subdivision, board or commission may enact rules regulations or policies which are in conflict with any section of the Arizona Revised Statutes."). Cf. Odum v. University of Alaska, 845 P.2d 432, 434-435 (1993) (The Alaska Supreme Court held that given the provisions of the Alaska Administrative Procedure Act, which specifically provided for representation by counsel at a pre- termination hearing, University guidelines permitting parties to be advised by counsel, but prohibiting counsel from questioning witnesses or a speaking role, did not meet statutory requirements, "ultimately, if defendant seeks to be exempted from the workings of the APA, it must seek such remedy from the legislature, not this court") (citation omitted); and Ex Parte State Dep't. of Human Resources, 548 So.2d 176, 178 (Ala. 1988) (The Alabama Supreme Court held that a regulation adopted by the Alabama Department of Human Resources to govern the judicial review of agency decisions did not serve to erode or repeal provisions of the state Administrative Procedures Act: "When the legislature established the procedures for appeals . . . it intended that a uniform procedure be established that would apply to and govern all agencies covered by the AAPA; it did not intend to grant, nor did it grant, to the agency any authority to make rules in conflict with those specific sections; rules of agencies should not be allowed to erode or repeal such intended uniformity; variations should occur only through legislation creating 'other law,' not through an agency rule or regulation that conflicts with AAPA provisions.").

Nor may the University of Arizona try to circumvent the requirements of the Arizona APA by arguing that the mere presence of counsel to advise Dr. Kay behind-the-scenes at the CAFT hearing, is the equivalent to counsel having a speaking role and actively representing Dr. Kay during the hearing.

Blacks Law Dictionary, (Sixth Edition, 1990), defines the term "represent": as ". . . To represent a person is to stand in his place; to speak or act with authority on behalf of such person. . . ." Any attempt by the University to limit Dr. Kay's counsel to a mere advisory role would be contrary to the clear meaning of the term "represent" and an impermissible denial of both her due process rights and the clear legislative guarantees in the APA.

Dr. Kay is not only entitled to be advised by counsel during the upcoming hearing, she is entitled to be actively represented by counsel.

In Roberson v. Rome, 69 Ga. App. 429, 432, 25 S.E.2d 925, 927 (App.Ga. 1943), for example, the Georgia Court of Appeal construed the right of an employee to be represented by counsel in a hearing where the Georgia Civil Service Board had denied the attorney the right to argue the law and the facts at the conclusion of the case:

. . . we are of the opinion that the right given by the act to one against whom charges had been filed to employ and be represented by counsel carried with it all the rights connoted by the word 'represent'; i.e., to stand in his place, to act as his substitute; to exercise his right; and that, by virtue of the provision securing him the right of representation by counsel, he had the right to have his counsel conduct his case in the manner that is generally accepted by our courts -- examination of witnesses, cross-examination, argument of the law and the facts. The refusal on the part of the board to allow such argument was error. . . .

Thus, the statutory and case law also support the proposition that Dr. Kay is entitled to the unencumbered representation of counsel.

Moreover, Applicable University Policies and Procedures Expressly Grant Dr. Kay the Right to Active Representation by Counsel During the Proposed Hearings.

At page 2 of your February 3, 1998 letter to me you stated:

Although §6-201(K) states that it applies only to dismissal or suspension without pay proceedings, and there has been no recommendation to dismiss or suspend Dr. Kay, nonetheless it is the procedure of §6-201(K) which will be used because they were adopted as those to be used in cases involving misconduct in research, scholarship or creative endeavor.

Your February 3, 1997 letter thus confirms that the CAFT hearings will not involve dismissal or suspension and it is clear that they do not and could not entail charges of unconstitutional discrimination. But the cited ABOR §6-201 (K) restrictions on representation by counsel specifically pertain only to such proceedings. Consequently, any attempt to apply those ABOR limitations on full representation by counsel in dismissal or discrimination hearings to a CAFT hearing on scientific misconduct (as provided in Section 2.13.09 of the University of Arizona Handbook for Appointed Personnel) is flatly contrary to the express limitation on the application of those provisions to hearings relating to dismissal and suspension without pay, or to charges of discrimination, neither of which are involved in the instant case.

The applicable policies and procedures are set forth in no uncertain terms in the Bylaws of the General Faculty of the University of Arizona, Appendix I to the Faculty Senate Handbook, page B-8:

The General Faculty member has the right to legal counsel or other representative who shall have standing to speak during the hearing . . . Just as the Board of Regents may not unilaterally amend the due process protections set forth in APA by the Arizona Legislature, the University may not apply inappropriate ABOR policies in a fashion directly contrary to clearly applicable policies. I would be happy to discuss this matter further with you, Mr. Thompson, Dr. Glittenberg or any combination thereof at your earliest convenience. However, due to the absolutely critical nature of this issue to my client, to the scientific community and to the public, I must have an answer to this request not later than the close of business in Los Angeles on Friday, March 20, 1998, so that we may pursue whatever other remedies may be necessary to honor these important rights.

2. The Required Composition of a CAFT "Scientific Misconduct" Panel.

I apologize if you were offended by the tone of my February 23rd letter to you proposing the augmentation of the panel with physician/scientists from the list of CAFT professionals who we believe satisfy the high standards of §2.13.09 of the University's General Policies. I did not intend my letter to be offensive or hostile, but rather to bring to your attention that, as you candidly acknowledged in your March 4th letter, you had been misinformed when you made reference to the dispute having been referred to a conciliation committee. I simply tried to point out that no such submission had been made. I, most certainly, was not seeking to impugn your integrity in any fashion.

As to the audit issue (Charge 4), which was initially improperly included in the CAFT charges, shortly after receiving the University's document production, which included highly prejudicial (and inaccurate) materials relating to that claim, I received the enclosed facsimile dated March 10, 1998, from the CAFT Chair, Dr. Cetas, requesting that we delete a document relating to that charge (Tab 1). As I interpret his facsimile, nothing relating to Charge 4 may properly be raised in the hearing, since the University is barred from further pursuing that claim by the settlement agreement, nevertheless, I am most concerned that the new panel has been or may be exposed to materials relating to that charge, which could seriously infect their objectivity. Consequently, I would appreciate receiving appropriate assurances that no member of the panel has knowledge of, or has been or will be provided with, that charge or any materials relating to it.

I also apologize for failing to clearly express my view that §2.13.09 calls for "augmenting" the standard five-member CAFT hearing panel required for "formal" hearings of the nature here involved by adding two individuals "who have backgrounds related to area or discipline concerned." My understanding of the meaning of "augment" is to "make greater, more numerous, larger, or more intense." (See, Websters New Collegiate Dictionary, Merrian- Webster (1980).) Hence, I think §2.13.09 clearly requires the addition of two members conforming to its requirement to the panel, not the replacement of CAFT members of the panel, when claims of scientific misconduct are involved.

More specifically, since the proposed hearing is clearly a "formal investigation", as that term is used in §2.13.09, and since The University Bylaws expressly require "five- member panels to conduct . . . more formal hearings," it seems clear that any panel convened to hear charges of scientific misconduct must contain five elected CAFT members, "augmented" by two outsiders appointed because of their lack of bias and their professional qualifications. I believe you will recall that I also suggested that we choose a third outsider conforming with those special professional requirements to perform as an alternate, "[t]o maximize the likelihood of compliance with §2.13.09." (My letter to you dated February 23, 1998, page 7.)

I continue to believe that course to be the prudent one, especially in light of the fact that your recently produced witness list of forty witnesses makes it highly unlikely, if not impossible, for us to conclude the hearing in the five days currently set aside for the hearing.

Moreover, I feel strongly that filling all three "augmenting" positions with individuals selected from our list of well-published, high respected physician/researchers would, as I wrote in my earlier letter, ". . . be in the best interests of all concerned to insure that each and every member of the panel is as objective and qualified as possible to insure both the quality and objectivity of the final result, and to ensure that every effort has been expended to comply with the requirements of §2.13.09." (Id., at page 6.)

It strikes me as odd, indeed, that no serious consideration has been given to the recommendation of Dr. Kay to add only two or three knowledgeable physician/researchers to the panel now being constituted to hear the charges being brought against her by the very group which now appears to be making those charges, especially since CAFT is expressly charged by Appendix C to the University's Constitution of the General Faculty with the "principal obligation" of protecting Dr. Kay's academic freedom and tenure. Moreover, in our view the basic five-member CAFT panel must be composed entirely of duly-elected members, and may not include appointees, since there has been no showing that CAFT's ". . . case load is so great that undue delay will be experienced in the hearing and disposition . . ." of this matter if appointees are not used. (Bylaws and Constitution of the General Faculty of the University of Arizona, Appendix B to the University Handbook for Appointed Personnel (Spring 1992), 9.b..)

Finally, for reasons I have already expressed, I must once again object strenuously to the presence on the panel both of Dr. Baldwin, due to her junior and appointed status (and whose field of bio-mechanics is far removed from the genetic, immunological and neurological aspects of aging which are the "area[s] or discipline[s] concerned" in the instant proceedings) and of Dr. Kanof, who is neither an elected member of CAFT nor versed in the highly specialized fields dealt with in the scientific papers under attack. In our opinion, their presence on the panel would violate both the letter and the spirit of those portions of § 9 of the Faculty Constitution which guarantee that members of any such panel be the "professional associates [and] peers" of the faculty member "affected." I believe it is most important for all concerned, and especially the University to assure both the appearance and the actuality of objectivity and competence in choosing the panel. It is for that reason, in addition to Dr. Kay's rights to be judged by a panel truly composed of her peers, that I once again raise these concerns. . . .

3. By Reason of Numerous Procedural Defects in the University's Handling of the CAFT Charges Against Dr. Kay, None of Those Charges are Properly Before the CAFT Panel.

It is the thrust of this part of my letter that the University's repeated deviations from, and violations of, clearly specified procedural requirements in the handling not only of its charges of scientific misconduct, but also of its charges of safety violations, laboratory mismanagement, and VA grant mismanagement have so deprived Dr. Kay of her administrative due process rights and have so fatally infected the proceedings that none of the charges currently being pursued are properly before the CAFT Panel.

Charge 1- Scientific Misconduct.

None of the specified charges under the umbrella of CAFT's Charge 1 were ever presented to the UCEC, as expressly mandated by University Handbook for Appointed Personnel 2.13.09. Therefore, the University has clearly violated its own clearly established procedures in the handling of this Charge. Indeed, the charges of scientific misconduct now being leveled at Dr. Kay are entirely different from those initially presented to, and answered by, Dr. Kay.

In simple fact, as we discuss below, UCEC expressly found that the charges originally leveled against her were unsupported by any evidence whatsoever. University Handbook for Appointed Personnel §2.13.09 expressly sets forth the procedures that must be followed in handling allegations of "misconduct." But none of those have been followed with respect to the charges specified in Appendix A to CAFT's Charge 1. To the contrary, they are totally new and different from the charges considered by UCEC.

Section 2.13.09 clearly states that any "charges of misconduct may be made by anyone and should be directed, in writing, to the University on Ethics and Commitment (U.C.E.C.)." In the instant matter, absolutely none of the specified charges now asserted by CAFT in Charge 1 were ever made by a complainant in writing, as expressly required, nor were the charges initially considered by UCEC so documented. Moreover, no such written charges were ever made available to Dr. Kay during the course of the UCEC investigation so that she could properly respond.

In simple fact, the actual source of these two different sets of charges has been cloaked in studied ambiguity throughout the proceedings, perhaps through inadvertence perhaps by design.

Section 2.13.09 goes on to require that if written charges are made then "[a] panel of the U.C.E.C. will conduct an inquiry which will consist of information gathering and fact finding to determine whether an allegation of misconduct warrants an investigation and possible sanctions." In the instant matter, the UCEC did not investigate any of the charges which constitute CAFT's Charge 1, since no written complaint was ever made to begin the investigatory process and since the charges now being made are entirely different from the charges of which Dr. Kay was absolved by UCEC.

Furthermore, the Constitution of the General Faculty of the University of Arizona expressly provides, in Article V, Section 7, that "[t]he Committee on Ethics and Commitment shall deal with questions of misconduct in research, scholarship or creative endeavor . . .." (Bylaws and Constitution of the General Faculty of the University of Arizona (Spring 1992), University Handbook for Appointed Personnel, Appendix B, Article V, 7.) Therefore, the authority to investigate such allegations in the first instance lies only with the UCEC. CAFT has no authority whatsoever to initiate new and different charges nor does CAFT have any authority to bring such charges sua sponte.

By attempting to usurp the prescribed function of UCEC, CAFT has not only violated prescribed University procedures, it has also violated well established principles of administrative due process. No one can be subjected to the kind of "moving target" investigation evident here, where Dr. Kay was effectively exonerated by UCEC respecting the original charges, only to be subjected to a totally different set of charges by CAFT.

The procedure established in §2.13.09 of the University Handbook for the handling of charges of misconduct accords the accused at least some degree of due process. By attempting to bring and hear new and different charges without following the proper procedures, not only has CAFT breached the University's regulations and procedures respecting scientific misconduct, but it has trampled Dr. Kay's administrative due process rights.

In the procedure established by §2.13.09, the function of UCEC is analogous to that of a grand jury in a criminal context. The function of such entities is to investigate and hear evidence to determine whether probable cause exists for actual charges to be brought before a properly constituted judicial or quasi-judicial body to determine whether the accused is guilty of the alleged misconduct. In such a context, "probable cause" is defined as more than unsupported suspicion - it is a determination as to whether there is sufficient evidence to warrant a belief by a reasonable person that an offense has been committed by the person accused. Hansen v. Garcia, Fletcher, Lund and McVean, 713 P.2d 1263, 1265 (1986); State of Arizona v. Romero, 870 P.2d 1141, 1146 (1993).

In the instant case, UCEC clearly found that there was no evidence to support the charges it investigated and, hence, no probable cause to believe them to be true. That should have ended the matter.

Indeed, the letter from the UCEC Inquiry Team to Dr. Michael Cusanovich dated April 15, 1997 (Tab 2), reporting the results of its inquiry expressly stated that, as to the allegation of data fabrication, "the inquiry team was unable to find/obtain evidence required to support this allegation." With respect to the second allegation, the letter states, "the inquiry team was presented with no data to support this allegation."

There was, in short, no probable cause to believe that the charged misconduct ever occurred.

Section 2.13.09, which controls such scientific misconduct inquiries, expressly directs that "[i]f the inquiry has found no reason to think that misconduct has occurred, the Vice President for Research will dismiss the charges and inform all parties in writing." (emphasis added). In a sense, that is what actually happened, because those charges were dropped.

In fact, in a letter from Michael Cusanovich to Marguerite Kay dated April 23, 1997 (Tab 3), Dr. Cusanovich stated, "I am pleased to report that allegations of research fraud or data fabrication against you have not been substantiated." Moreover, in a letter to Mary C. Wetzel, also dated April 23, 1997 (Tab 4), Dr. Cusanovich wrote, "As you will see from the report UCEC did not support the allegations of fabrication of data by Dr Kay . . .." Thus, the misconduct allegations investigated by UCEC were investigated and clearly found to be without merit.

Because of the UCEC's finding and exoneration of Dr. Kay in the area of data presentation, manipulation or falsification, CAFT is without legal authority to hear new charges of its own making. It is only if a UCEC inquiry leads UCEC to believe that misconduct has occurred that "the Vice President for Research must ask the Committee on Academic Freedom and Tenure (C.A.F.T.) to conduct a formal investigation."

In short, because UCEC found no evidence to support the charges they were charged with investigating, the UCEC inquiry team did not have reason to believe that misconduct had occurred in the area of data presentation, manipulation or falsification it investigated. CAFT thus has absolutely no authority to conduct a new and different investigation on its own.

These charges must thus be dismissed.

Nor are Charges 2, 3 and 5 Properly Before CAFT, Because of the University's Total Failure to Follow Prescribed Procedures in Their Handling. As discussed above, §2.13.09 prescribes the procedures which must be complied with in addressing allegations of scientific misconduct. Chapter 6 of the University Handbook, on the other hand, controls all grievances or complaints not provided for in Chapters 3, 4 and 5 of the Handbook. Chapters 3, 4 and 5 of the Handbook deal with various personnel matters. Since Charges 2, 3 and 5 are not allegations of scientific misconduct, nor do they involve personnel matters contained in Chapters 3, 4 or 5 of the Handbook, procedures set forth in Chapter 6 must be followed in processing such charges. They clearly were not. To the contrary, they were lumped together with the misconduct charges rather than being addressed first to Dr. Kay's "immediate administrative head," Dr. Marchalonis, and then - if the grieving party so desired - with "the next administrative level," Dr. Dalen. This simply was not done. Moreover, the biosafety and radiation issues are now moot.

Charge 2 - Biosafety and Radiation Issues.

A. Charge 2 is Moot.

In simple fact, the radiation and/or biosafety allegations addressed in Charge 2 already have been dealt with successfully by Dr. Kay. Questions regarding radiation issues were initially referred to the Radiation Control Office ("RCO"). As a result, Charles A. Sondhaus, Director of RCO, sent a letter to Michael Cusanovich dated May 6, 1997 (Tab 5), which exonerated Dr. Kay completely regarding the majority of the allegations raised and made some recommendations regarding a few matters. The conclusion of the RCO was that Dr. Kay could continue working with radioactive materials.

The UCEC also investigated a few allegations which were made in this area and requested that CAFT conduct a formal hearing. Moreover, Dr. Kay's laboratories were closed by Dr. Cusanovich while investigations were on-going. Now, however, at least according to the University, Dr. Kay's labs may now be re-opened and she has received permission to continue her research.

Indeed, the University's acting general counsel, Mr. Thompson, in a letter to me dated February 3, 1998, expressly stated that " . . . these particular matters are now resolved with an outcome that generally has been favorable to Dr. Kay." Additionally, in a letter from Dr. Cusanovich to Dr. Kay dated November 12, 1997, Dr. Cusanovich wrote, "I am pleased to inform you that the biosafety suspension has been lifted, and you are free to proceed with activities requiring biosafety approval. Compliance with inventory, coupled with compliance in the area of radiation safety and human subjects achieved last spring, means that no suspensions are now in place."

Based upon the facts stated above and the representations from both Mr. Thompson and Dr. Cusanovich, no biological or radiation safety issues remain to be heard. Therefore there is no basis whatsoever for Charge 2 to remain part of the proceedings and it should be dismissed for that reason alone.

B. Proper Procedures Were Not Followed in Raising the Radiation and Bio-Safety Issues.

Moreover, in pursuing its claims of safety violations, the University has totally failed to adhere to clearly prescribed procedures. The charges specified in Appendix B to Charge 2 simply cannot honestly be characterized as scientific misconduct charges. The applicable definition of scientific misconduct is found at 42 C.F.R. §50.102:

Misconduct or Misconduct in Science means fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research. It does not include honest error or honest differences in interpretations or judgments in data.

Questions concerning issues of biosafety and/or radiation safety do not raise questions of fabrication, falsification, plagiarism nor do they have a direct relationship to any research which Dr. Kay proposed, conducted or reported. Therefore, Charge 2 does not involve allegations of scientific misconduct. Nor does Charge 2 involve any matters dealt with in Chapters 3, 4 or 5 of the University Handbook.

Thus, the procedures specified in Chapter 6 of the Handbook control. Those provisions state that "all grievances or complaints by or against appointed personnel shall be filed with and addressed first by the immediate administrative head of the individual about whom the grievance or complaint is made. . . .The administrative head shall review the grievance or complaint and develop any factual information required for a decision on the matter." (University Handbook for Appointed Personnel, Chapter 6: Grievances & Hearing, § 6.02.) If the grieving or complaining party is unhappy with the decision made by the administrative head then that "party can appeal the decision to the next administrative level." (Id.)

Therefore, any grievances or complaints about safety issues should have been addressed to Dr. Kay's immediate administrative head, Dr. John Marchalonis. Neither the UCEC nor CAFT had or have the authority to initially investigate such charges.

Therefore, Charge 2 must be dismissed.

Charge 3 - Authenticity of Letters to Veteran Administration Hospital.

The procedure contained in Handbook Chapter 6 also governs the handling of this Charge. Any allegation that Dr. Kay submitted contradictory writings to the Veterans Administration clearly falls well outside the realm of scientific misconduct, because it does not involve the proposal of research, the manner of conducting research nor the actual reporting of the results of research. Additionally such a Charge is clearly not covered in Chapters 3, 4 or 5 of the Handbook.

Therefore, as with Charge 2 discussed above, any grievances or complaints about Dr. Kay should have been addressed, initially, by Dr. Kay's immediate administrative head, Dr. Marchalonis and, thereafter by Dr. Dalen. They were not.

Neither the UCEC nor CAFT has any authority to initially investigate such charges. Therefore, Charge 3 should also be dismissed from the upcoming proceedings because the University breached its procedures. CAFT simply does not have the authority or jurisdiction to hear this Charge.

Charge 5 - Lab Mismanagement.

As stated in my letter to Dr. Cetas dated October 6, 1997, allegations regarding Dr. Kay's management style simply is not within the purview of either UCEC or CAFT.

The applicable definition of scientific misconduct simply does not include management style under the rubric of misconduct. Thus, the UCEC never had the authority to initially investigate the allegations that were made "regarding commitment and effort where the respondent (Dr. Kay) is seldom on campus or in the laboratory." (See, April 15, 1997, Letter from UCEC Inquiry Team to Dr. Michael Cusanovich.) (Tab 2, p.2.)

As with CAFT's other non-misconduct charges, the investigation of such an allegation is covered by Chapter 6 of the University Handbook, for the reasons discussed above. Therefore, any such allegations should first have been presented in writing to Dr. Marchalonis and that is the point where the investigation should have begun - not with the UCEC. Thus, the UCEC did not have the authority to make its determination that there was reason to think such alleged misconduct may have occurred. A fortiori, there was no authority for the Vice President of Research to forward the matter to CAFT pursuant to §2.13.09, since that section does not govern the procedures for handling such an allegation.

For the reasons stated above, Charges 2, 3 and 5 simply do not fall under the rubric of scientific misconduct nor are those Charges covered under Chapter 3, 4 or 5 of the University Handbook. Therefore the proper procedure for the investigation of those Charges is found in Chapter 6 of the Handbook. That provision mandates that any grievances against a faculty member of such a nature be made in writing to the administrative head of such faculty member - in the instant case, Dr. John Marchalonis and, thereafter, as appropriate, to his immediate superior, Dr. Dalen.

Since none of these Charges were processed in accordance with those requirements, they are not properly before CAFT.

In simple fact, CAFT's unwarranted and unauthorized interjection of itself into the handling of these charges constitutes a usurpation of the clear responsibilities of Drs. Marchalonis and Dalen to manage the Department of Microbiology and Immunology and the College of Medicine, respectively.

4. Administrative Issues.

First, an easy point: I agree there is no need to tape record the hearing in light of our agreement that it will be professionally reported. If you so desire, we can ask the reporter to record the proceedings, which many reporters do as a matter of course to provide themselves with a "backup."

Second, as requested in your March 4, 1998, letter, we have arranged for the services of Bartelt & Kenyon Court Reporters, 234 North Central Avenue, Phoenix, Arizona to provide real-time reporting services commencing at 1:00 p.m. on Monday, March 30, 1998, at the Marriott University Park, 880 East 2nd Street, Tucson, Arizona 85004. The price quoted is $2.95 per page, with no additional charge for Live-Note hookup (which is a $2.00 per page savings), plus what we are informed is a standard $30.00 an hour charge. I trust this in line with prices you have been quoted.

I suggest that you and Mr. Thompson contact Bartelt & Kenyon directly, at (602) 254-4111, to determine what kind of software and hardware you may wish to use to take advantage of the agreed-upon real-time reporting technology.

Third, in light of the astounding list of forty witnesses you propose to call; the extreme unlikelihood that the time currently scheduled for the hearing will be sufficient to accommodate your case-in-chief, let alone ours; the serious procedural issues which still haunt this matter; and what we perceive to be the total impropriety of artificially (and unrealistically) limiting the time to be allowed for the parties to present their respective cases, I do believe it would be most desirable for counsel - and perhaps whoever is appointed the panel chair - to conduct a pre-hearing conference at the earliest mutually convenient time in an attempt to resolve at least some of the currently pending issues. Fourth, as suggested above, we vigorously object to any attempt to shoehorn the presentation of either side into arbitrarily selected and totally unrealistic time limits. Your threats to expel counsel from the hearing for speaking are equally unacceptable and, I believe, inappropriate in the extreme. It defies understanding how counsel could effectively advise a client on the conduct of a hearing without being present.

Fifth, we agree that formal rules of evidence need not be adhered to, and that irrelevant or unduly repetitive evidence should be excluded. Moreover, we agree that witness statements would be useful so long as adequate opportunity to cross-examine each declarant is afforded, both in terms of the time allowed to examine the statements before having to respond and the time allotted for cross-examination. Such procedures are routinely followed in Europe.

Sixth, pursuant to § 41-1062(a)(4) of the Arizona Administrative Procedure Act, we hereby request the chair of the panel (whoever is eventually appointed) to order the videotaped depositions of the following percipient and expert witnesses who cannot appear before the panel during the time allotted for the hearing by reason of prior commitments which cannot be rescheduled:

Dr. David R. Soll Carver/Emil Witschi Professor of the Biological Sciences and Chair of the Department of Biological Sciences of the University of Iowa

Dr. Timothy L. Wyant Postdoctoral Fellow Center for Vaccine Development University of Maryland at Baltimore.

I have enclosed curricula vitae for both Doctors Soll and Wyant. (Tabs 7 and 8.) Dr. Soll is a nationally recognized and much published authority on topics closely related to the papers in question. He also is now, and has in the past been, a member of both the editorial boards of prestigious peer review journals and NIH panels. He also runs a large, well-funded and productive laboratory which, inter alia, conducts research similar to that in question in the instant proceedings. He is prepared both to testify and to submit a statement addressing not only the questions of scientific misconduct, but the charges of radiation and biosafety violations and laboratory management.

Dr. Wyant is a percipient witness, having worked in Dr. Kay's laboratory during relevant periods, and is also prepared to give testimony, both orally and in writing, on Dr. Kay's laboratory management practices, generally, her compliance with applicable safety requirements, in particular, and the thoroughness, honesty, and reliability of her work.

Unfortunately, in addition to being outside the Arizona subpoena power, and despite their willingness to participate, both gentlemen have prior professional commitments which make it impossible to participate in the currently scheduled hearing. Hence, our request for the deposition orders.

Needless to say, we invite both you and Mr. Thompson to participate fully in such depositions, consistent with our strong belief that the law accords the right of full representation by counsel to all participants throughout the course of such proceedings.

Please call if you have questions about, or wish to discuss, any of the numerous issues addressed in this lengthy letter. Please also respond to our requests that Dr. Kay's due process rights be honored, our suggestions regarding the composition of the panel, and our position regarding the proper scope of the proposed hearing as soon as reasonably possible, but in no event later than the close of business in Los Angeles next Friday, March 20th.

Very truly yours,

Robert K. Wrede, of
PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN

RKW/vab Enclosures (Via Mail Only)
cc: Thomas M. Thompson, Esq.