Detailed comments listed below in the Comments/Questions section were sent to the Vice-President Research on November 14.
Minor edits were made in the Preamble to reflect discussions held on November 15 with the Vice-President Research.
AUNBT expressed concerns regarding inadequate time for consultation; the deadline for comments by faculty members was initially stated as November 26. In a meeting with the Vice-President Research on November 15, we received assurances that the initial November 26 deadline will be extended and adequate time provided for comments, that consultation with members will be open and collegial, and that the VP Research would ask Deans to bring the draft policy to Faculty Councils for discussion before any version of it is sent to Senates.
AUNBT supports scholarly integrity and understands the University’s obligation to establish a policy consistent with the Tri-Agency Framework. It is essential for such a policy to recognize the diversity of research conducted at UNB and for the Vice-President Research Committee to consult with the academic community in a way that provides ample opportunity for openly discussing any proposed policy on responsible conduct of research.
The draft policy would apply to anyone considered to be involved in research at UNB or affiliated with UNB, including full-time and contract academic staff, professional and technical staff, students, postdoctoral fellows, and others, regardless of whether the research is funded or not.
This proposed policy seems to have relationships with other existing policies and collective agreements, and these intersections need to be considered carefully.
The draft policy potentially intersects with a number of other UNB policies, some of which are being reviewed or reformulated (e.g. the policy on Discrimination, Sexual Harassment and Harassment). There is also potential for overlap with the existing University Policy on Research Involving Humans, which states under 188.8.131.52 that “the REBs shall be responsible for: monitoring issues and concerns generally relevant to the ethical conduct of research.” It would be advisable to coordinate various policies.
The Tri-Council Policy Statement on Ethical Conduct of Research Involving Humans (TCPS 2) is mentioned in 4.2.6 with respect to privacy of individuals and 3.1.4 with respect to conflict of interest. But that policy covers other issues, including “Chapter 9 – Research Involving the First Nations, Inuit and Métis Peoples of Canada.” It would be appropriate for the VPR to consult with people who have expertise in this field. At a minimum, involving the UNB Piluwitahasuwin (Assistant Vice-President Indigenous Engagement) would seem logical.
The draft policy states that it does not supersede the Collective Agreements but in effect expands considerably on Article 52 “Fraud and Misconduct in Research” of the Full-Time Collective Agreement. This could be problematic and requires a detailed analysis as well as adequate time for the Parties to discuss appropriate wording and interpretation.
UNB’s draft policy is similar to the Dalhousie policy on scholarly misconduct. A number of items appear to have been copied from Dalhousie’s policy verbatim or almost verbatim (e.g., apart from the numbering introduced by UNB, the text of 3.1.1.j is exactly the same as Dalhousie policy Schedule A, Item g [pages 9-10]; there are other examples). The debt to the Dalhousie policy or any other source should be acknowledged.
It is understandable that analogous policies at other institutions (in our comparator group) may be used as a model. However, parts of UNB’s proposed policy will have to be redrafted because administrative and governance structures at UNB are not the same as those at Dalhousie (see, e.g., comments under 7.16 below). UNB’s draft is less concise and less clear than the Dalhousie policy and includes some potentially problematic innovations, as discussed below.
For all these reasons, and given the importance of having a sound and broadly accepted policy on scholarly integrity, the consultation process should not be in any sense rushed. The November 26 deadline for closing the “consultation phase”, indicated in a message sent to Deans on October 29, is inadequate for a document of such scope and complexity.
It appears that members of some Faculties have not received a copy of the draft; many faculty members would not have seen the draft policy until early November, if they received it.
To ensure open and broad consultation, the draft policy should be discussed at Faculty Councils before it is sent to Senates for consideration.
AUNBT expressed concerns about the time allocated for the “consultation phase”. In a meeting with the Vice-President Research on November 15, we received assurances that the initial November 26 deadline will be extended and adequate time provided for comments, that consultation with members will be open and collegial, and that Deans will be asked to present the draft to Faculty Councils for discussion before any version is sent to Senates.
We appreciate that the Vice-President Research provided AUNBT with an advance copy of the draft and addressed our concerns about time allocated for consultation. The following are our initial comments and questions by item.
AUNBT considers this to be only the beginning of a constructive discussion. There is certainly room for improvement of the current draft.
Comments/Questions by Item:
(Numbering refers to clauses in UNB’s draft policy.)
2.3 The draft policy seems to put in place a different reporting structure (4.4, 6.2, 6.4) than that specified by 52.03 of the Collective Agreement (the President or designate), although this policy indicates that it does not supersede the AUNBT Collective Agreement. Is the RIO to be considered the President’s designate for the purposes of 52.03 of the FT collective agreement? Current practice is that scholarly misconduct complaints are designated to the VPR, although there have been instances of the VPR delegating tasks to someone else. The principles involved in such re-designations should be clarified (see also 6.6. below).
3.1.1 Preamble: “Research and Scholarly Misconduct does not include situations of: honest and reasonable error; differences of interpretation or judgment relating to data and results; valid differences in research design or evaluation of information; and/or, conflicting results that are reasonable in light of the circumstances in which they are made or reached.”
- This seems reasonable (and similar to the Dalhousie policy, Schedule A preamble, except for UNB’s additional phrase “valid differences in research design…”). However, the UNB draft states at the end of section 3.1.1: “Research and Scholarly Misconduct may vary in levels of intent. This Policy recognizes that the margin between negligence, versus intentional Misconduct, may be exceedingly narrow. Although the level of intent may be a factor in determining the appropriate consequences, the result is Research and Scholarly Misconduct.” Thus, honest error seems to be excluded from misconduct in the preamble only to be included as misconduct in the closing paragraph of 3.1.1.
3.1.1.j.iii “Undue delay of the publication of Research results.” This is vague and could be seen as implying that any delay in publication is misconduct, whereas one may delay publishing for perfectly legitimate reasons (e.g. improving the results, or too busy working on another research project).
- What is the standard on which UNB would determine whether a delay is “undue”? Additionally, it is conceivable that either requiring or compelling a researcher to publish results they do not consider to be ready for publication would potentially constitute a violation of their academic freedom.
- If the article is intended to address abuses of power, the delay of publication of someone else’s work, or work that someone else has been involved in, as a form of harassment, then this should be specified. E.g. 3.1.1.j.iv. specifies “of others.” Is that what is meant here too?
- What if two equal contributors with equal status (i.e., no power differential is at work) disagree on whether the results are ready for publication? Could one of them be accused of misconduct by the other, for allegedly causing “undue” delay?
- Can the University be named as a Respondent under the proposed policy? For example, if the University fails to provide adequate research equipment or appropriate funding for personnel (or graduate students, PDFs), could it be found to have caused undue delay to publication of results?
3.1.1.m. “Abuse of Confidentiality”. There is no analogous section in the Dalhousie policy, despite various similarities of UNB’s 3.1.1. with Dal’s Schedule A. Why does UNB feel the need to specify this, whereas Dalhousie has not?
- We can imagine situations where 3.1.1.m.iii, “Failure to maintain the confidentiality of discussions held in confidence”, could reasonably apply (e.g. research involving interviewing victims of sexual violence), but this would likely be covered under 4.2.6.
- The statement in 3.1.1.m.iii is too broad as it stands; it could apply to any discussion if one of the parties (subsequently) claims it was held in confidence. If there is a reason to include this, then the scope should be narrowed to something like “discussions held in confidence as part of research and with clear prior agreement by all parties involved [maybe in writing?] to have been confidential”.
3.1.1n and 3.1.1o: These seem to be the only two clauses where Intellectual Property is mentioned. In both cases they envision scenarios where a researcher does not preserve the intellectual property of others. There is however no discussion of a situation where the University does not preserve the rights of faculty or instructors or other research personnel, for example by requiring them to sign away intellectual property and the right to assert moral rights. E.g., the ORS “Research Project Personnel and Student Acknowledgement Form” states in Section 3: “I shall retain no right, title, or interest in and to any intellectual property in the results of the Project […] I hereby agree to waive and do waive the right to assert any moral rights and any other non-assignable rights in and to any and all results of the Project, whether against the University or any party designated by the University.” (This issue was brought to the attention of the Executive Director of ORS by AUNBT. We are not aware of a satisfactory resolution of concerns expressed.)
3.1.5.b Associate and assistant professors are specified, but not professors. Research associates (internally or externally funded) are also not included. It may be easier to simply say “academic staff as described in the AUNBT collective agreements”; in that case chairs would be covered under 3.1.5.b, and not under “administrators” in 3.1.5a, but faculty-elected Board members would be missing. Additionally, there will soon be a change in the names of instructor ranks, per MOU 25, while the policy refers to the current ranks in the instructor stream.
- What is the reach of this policy over adjuncts and HRAs? Some departments have professors employed by other universities as HRAs. Would this policy claim to cover all of their research, or just that undertaken with UNB resources or with a UNB partner? Additionally, there are multiple non-academics with HRA status (e.g. creative writers). Would all of their activities thus need to meet the expectations of this policy? Probably not, so this item should, for clarity, refer to the applicability clause 2.2. On the other hand, HRAs are not mentioned in 4.4 (unless they are to be considered “professional affiliates” per 4.4.d).
- Are PDFs in “non-employment” appointments? This is surprising.
3.1.6.b. We assume “Honorary Research Professional” should be “Honorary Research Professor”.
3.1.7. Inclusion of all creative endeavours in the definition of research is welcome but could be problematic in some circumstances. Based on 3.1.1.a, the process of translation of a philosophical or literary work could be considered misconduct (“manipulation of source material”); and writing fiction could be considered “fabrication”, hence misconduct. This suggests that the policy was written with a narrower definition of “research” in mind than what it states. It is important to genuinely recognize the diversity of research at UNB and to consider carefully the possibly unintended effects of the definition of “misconduct” in that broader context.
3.1.9. RIO is defined to in fact be the VPR. Why, then, refer to the RIO throughout the entire draft policy? This creates confusion in general, and in particular in articles 6.2 and 6.4 (see below).
4.1 “University Researchers are personally and directly responsible for the integrity of their own Research and Scholarly Activity”. [emphasis added] The tone of the Dalhousie policy, D.2 page 2, is different: “Members of the University community share in the responsibility for ensuring adherence to generally accepted standards of scholarly conduct in relation to all Scholarly Activity.” [emphasis added] What is the reason for choosing this particular wording in UNB’s draft, rather than using the more collegial language similar to Dalhousie’s policy?
- It is appreciated that the draft policy contemplates research conducted by contract academic employees (assuming this is what is meant by “sessional lecturers” under 4.4a). However, research is not included among the primary professional responsibilities of CAEs. Consequently, CAEs conducting research may be vulnerable as they could be subject to potential complaints and investigations under the draft policy, despite the fact that their research activity is not covered under the CAE collective agreement, and they are not compensated for doing research as part of their contracts with UNB.
- It is possible for a CAE to have a separate contract involving research (e.g. a PDF), so some clarity is needed here regarding the conditions under which CAEs would be subject to this policy.
- Further, reporting lines may be quite unclear for CAEs who sometimes teach in more than one faculty (or on two campuses), so there could be more than one relevant Dean. Or, again, if a PDF teaches a course, the complaint could, on the one hand, go to the Dean of SGS (per 4.4e, as a PDF) but, on the other hand, could go to one or more faculty Deans (per 4.4a, as a “sessional lecturer”) or the Dean of Libraries if the CAE is employed at UNB Libraries.
6.2 and 6.4.
- These two clauses seem contradictory. 6.2 says to make a complaint to a university administrator (which could be any of those listed in 4.4) but 6.4 states all complaints go to the RIO. A clear reporting structure is key to any complaint process, and this is confusing.
- Should the report in 6.2 be in writing, as is specified in 6.4?
- The draft policy’s references to RIO are confusing. If RIO is the respondent, then, presumably, because RIO is in fact the VPR (per 3.1.9), the complaint should be filed with the President, under 4.4.f?
- The resulting confusion may arise in part from UNB’s reliance on the Dalhousie policy as a model. With that said, at Dalhousie the Scholarly Integrity Officer appears to be a separate position that reports to the VP Research, who in turn seems to have independent oversight over the integrity officer. See item F.16, page 7, of the Dalhousie policy: “Consideration by Vice-President Research: The Scholarly Integrity Officer will forward the investigation report and the comments by the Respondent, and Complainant, if applicable, to the Vice-President Research. The Vice-President Research may request additional information or clarification from the Scholarly Integrity Officer if necessary to make a determination.”
6.6 The article mentions a “designated investigator” in the preliminary (informal) stage. This should not be at the sole discretion of the RIO; there should be clearly stated principles of selection. For example, the Dalhousie policy states under E.3 on page 3: “Scholarly Integrity Investigators: There shall be six Scholarly Integrity Investigators who will be responsible for conducting investigations into Scholarly Misconduct as set out in this Policy. Two shall be appointed by the Vice-President Research in consultation with the Deans of Medicine, Dentistry, Health Professions, and Graduate Studies. Two shall be appointed by the Vice-President Research in consultation with the Deans of Science, Computer Science, Agriculture, Engineering, and Graduate Studies. Two shall be appointed by the Vice-President Research in consultation with the Deans of Architecture and Planning, Management, Law, Arts and Social Sciences, and College of Continuing Education, Graduate Studies and the University Librarian. The Scholarly Integrity Investigators shall serve for staggered three-year terms. They may not serve more than two terms consecutively.” Additionally, at Dalhousie, two investigators are appointed from this committee of six, if an informal resolution is not reached and a formal investigation is initiated.
6.7 “these situations” is an unclear use of pronoun reference. Presumably what is meant is that students are vulnerable as complainants, since student academic misconduct should be covered by other policies for students. The policy does little to address their vulnerability. How can an “office” support them? Additionally, if the Office of the VPR offers “support” to a complainant, how can it at the same time be (or be perceived to be) a fair and impartial adjudicator of the complaint, given that the VPR is also the RIO, per 3.1.9?
6.9 It should be made clear, here and throughout, that there is an informal stage and that the RIO shall explore the possibility of informal resolution. The term “inquiry” does not, by itself, suggest that. By contrast, the Dalhousie policy states explicitly under a separate article on procedures (F.11, page 6): “Informal Resolution: Prior to initiating an investigation, the Scholarly Integrity Officer will explore the possibility of informal resolution. Attempts at informal resolution may be made at any stage of the process.” [emphasis added] Why was this article not copied from Dal? Such an article should be included in UNB’s proposed policy, which is in many other respects modelled on Dal’s. Also, the parties (UNB and AUNBT) are committed to making every reasonable effort to resolve disputes informally and without prejudice. We suggest using the term “preliminary (informal) assessment” instead of “inquiry” to describe the initial informal stage of considering a complaint.
7.1 “another employee, who is an authorized representative of the applicable union, shall be present” could be understood as excluding the AUNBT professional officers, who are not employees of UNB. The wording in the FT collective agreement is the same, but it should be understood that it is a well established practice that the AUNBT professional officer may accompany the respondent who is an AUNBT member.
- It makes sense to exclude members of the respondent’s department, but we also have non-departmentalized faculties. The wording should be changed to recognize this.
- It seems problematic that it is not specified that there should be someone on the committee with disciplinary expertise. For example, the Tri-Agency Framework specifies under 4.3.4c, “The investigation committee shall include members who have the necessary expertise and who are without conflict of interest, whether real or apparent”.
7.9 Does the “or” statement preclude having written submissions and a hearing? What is “administrative fairness”, as opposed to simply: “fairness”? The phrase “administrative fairness is observed” seems odd.
7.11 “an advisor”: it should be specified that this may include a designated representative of a relevant union, if desired.
7.13 “appropriate disciplinary actions”: it should be specified that this is subject to any relevant collective agreement and the applicable processes provided for therein.
7.14 “The RIO will report in writing the outcome of the case to the Respondent in ways that appropriately address any privacy and security issues” [emphasis added]. The Respondent should be entitled to see a copy of the final investigation report, though possibly redacted to address privacy and confidentiality concerns (as long as redacting is not such that it would impede the Respondent’s ability to respond in an informed manner). Why not follow the example of Dalhousie? See F.15, page 7: “Comments by Parties: Within two working days of receipt of the final investigation report, the Scholarly Integrity Officer will provide a copy of the final investigation report, which may be partially redacted to address any privacy or security concerns, to the respondent for comment.” [emphasis added] This would also be consistent with the formal investigation procedures described in the current UNB policy on Discrimination, Sexual Harassment and Harassment, article 10.8.
7.16 “Appeal of Decision”. This is a key part of the process and should be described with complete clarity, which is not the case in the current draft.
- Much of 7.16 appears to have been copied almost verbatim from the Dalhousie policy (F.19, page 8), with minimal revisions such as the reference to “the chair of the respective campus’ senate”. This suggests senate chairs other than the UNB President, which is not the current practice at UNB.
- The phrase, “The Chair of the Senate shall request that the Senate Planning and Governance Committee establish an ad hoc Committee to hear the appeal” [emphasis added], apparently copied verbatim from the Dalhousie policy, references a senate committee (Planning and Governance) that does not exist at UNB. The appeal is thus referred to an ad hoc committee established by a nonexistent committee of UNB Senates.
- The qualification for appeal, “that the Vice-President (Research) lacked jurisdiction to make the decision under consideration,” is confusing. It is not clear what circumstance is being considered where the VPR would lack jurisdiction over the conduct of research.
- The components/members of the (FR or SJ) Senate ad hoc committee should be specified. Otherwise, a committee member excluded under 7.5 (say, a member of a respondent’s department or faculty) could be allowed to be on this ad hoc committee and thus hear the appeal. Would there be external members of this committee in the case of Tri-Council funds? Is there a requirement for relevant expertise?
- It should be clarified to which committee the phrase “this committee” refers. We assume it refers to the ad hoc Senate committee convened to hear the appeal, in which case this should be made clear. As it stands, “this committee” could also refer to the Investigation Committee, in which case the vague wording of 7.16 could make its decision final with no possibility of appeal.
- Adding to the confusion is the reference to a “Research Integrity Committee” which occurs in 7.16 although such a committee does not seem to be mentioned anywhere else in the draft. This could be a typo if it is meant to refer to the Investigation Committee. It is also possible this is a carry-over from the Dalhousie policy, where the Scholarly Integrity Committee is defined in E.4 on page 4: “There shall be a Scholarly Integrity Committee comprising the six Scholarly Integrity Investigators and the Scholarly Integrity Officer, which shall meet at least once a year to discuss any issues arising from this Policy.” (The six scholarly investigators are described in Item E.3 of the Dalhousie policy; the committee is defined in a way that attempts to ensure representation of different research areas. See also our comments on 6.6 above.)
- Has UNB contemplated the possibility of AUNBT grieving a decision? If so, at which point of the process would the grievance occur? The process described in the proposed policy can take a long time. Which senior administrator(s) would hear the grievance? It would seem that the VPR/RIO is already deeply involved in the process and hence might not be in a position to offer an impartial hearing.
17 November 2019