Date: 12 Apr 2005 17:48:10 -0000
Message-ID: <20050412174810.44546.qmail@cr.yp.to>
Automatic-Legal-Notices: See http://cr.yp.to/mailcopyright.html.
From: "D. J. Bernstein" <djb@cr.yp.to>
To: ccomer@uic.edu
Subject: non-responsive university lawyers

The university lawyers screwed up, and for the past ten days they've
been ignoring my questions regarding the screwup. Please ask them to
answer the questions. A copy of the questions appears below.

(I've taken relevant action outside the university in the meantime, but
nothing that reduces my interest in seeing these questions answered.)

---D. J. Bernstein, Associate Professor, Department of Mathematics,
Statistics, and Computer Science, University of Illinois at Chicago


> Date: 2 Apr 2005 12:45:42 -0000
> Message-ID: <20050402124542.41617.qmail@cr.yp.to>
> From: "D. J. Bernstein" <djb@math.uic.edu>
> To: legal_uiuc@uillinois.edu
> Cc: DonnaW@UIllinois.edu, dprincip@UIllinois.edu, legal_uis@uillinois.edu
> Subject: statements of economic interest
> 
> 
> I have several questions for the UIUC branch of the Office of University
> Counsel.
> 
> Please note: the UIUC branch, not the UIC branch. The UIC branch (Donna
> Williamson) had a shot at these questions but will be away next week;
> this is time-critical and can't wait for her to come back. This appears
> to be a cross-campus issue affecting a large number of UI faculty, even
> more at UIUC than at UIC, so the UIUC branch should have no problem
> answering these questions. (I'm also cc'ing the UIS branch just in case
> the UIS branch is capable of answering more quickly.)
> 
> I should also note that I've been reporting my progress to a growing
> group of interested UIC faculty members (presumably soon to be joined by
> UIUC faculty members), and that all of us expect these questions to be
> given high priority.
> 
> 
> Background: Every year, the state collects (and publishes) Statements of
> Economic Interest from the people listed in 5 ILCS 420/4A-101(f); for
> example, from department heads. These statements are highly invasive
> (when filled out properly---it's clear that some of our administrators
> have filed frivolous forms, perhaps because they never understood the
> rules), and there are extreme penalties for non-compliance.
> 
> The state trusts ethics officers to identify the people listed in 5 ILCS
> 420/4A-101(f). This year, our new University Ethics Officer dramatically
> expanded the list of names submitted to the state. Specifically, she
> included a large group of researchers: apparently, all ``PIs'' and
> ``co-PIs'' on research grants to the university. (Exception: grants
> below $5000 are not included.)
> 
> When this action was challenged, the University Ethics Officer claimed
> that it was authorized by the Office of University Counsel. When asked
> for the memo, she said that she did not have it, and that she merely had
> a note from the prior University Ethics Officer. (He says that he gave
> her all his files.) She has been asked for the note and has so far
> failed to comply.
> 
> Last Thursday, the UIC branch of the Office of University Counsel sent
> me a short paragraph attempting to retroactively justify the University
> Ethics Officer's action. Unfortunately, this paragraph failed to give a
> clear statement of the University Counsel's position, so I asked various
> questions regarding that position. The UIC branch sent a brief response
> 
>    (1) indicating that I had misunderstood ``some'' parts of the
>        office's position,
>    (2) failing to indicate _which_ parts I had misunderstood, 
>    (3) contradicting #1 by indicating that I understood the office's
>        position,
>    (4) failing to provide any other information that would allow
>        progress in the discussion,
>    (5) indicating that the UIC branch would be away next week, and
>    (6) suggesting that I contact a junior UIC attorney ``if necessary.''
> 
> A one-week delay is not acceptable: there's very little time left for
> internal corrections of the University Ethics Officer's action. Having a
> junior attorney handle victimization of a large number of senior faculty
> members is also not acceptable. So I'm contacting the UIUC branch.
> 
> 
> Here's the paragraph from the UIC branch prompting these questions:
> 
>    While being a PI is not a triggering event in and of itself, the role
>    and activities of a PI trigger the application of the statute in most
>    cases. The operative language under 5 ILCS 420/4A-101(f)(2) is
>    "direct responsibility for the formulation, negotiation,...of
>    contracts entered into by the State in the amount of $5000 or more;."
>    A PI prepares or "formulates" the proposal and the budget which are
>    submitted to the granting agency or entity and which form the terms
>    of the agreement between the parties, i.e., the State (in this case,
>    the university) and the granting party. If the grant(s) is in excess
>    of $5000, then the contract created by submission of the proposal and
>    acceptance by the granting entity meets the minimum requirements of
>    the statute.
> 
> 
> Question 1: The University Counsel's position is that 5 ILCS
> 420/4A-101(f)(2) includes, as a rule, principal investigators
> successfully proposing research grants of $5000 or more?
> 
> So the University Counsel's position is that---for example---NIU is
> erring by not collecting these forms from their PIs?
> 
> 
> Question 2: Specifically, the University Counsel's position is that, as
> a rule, principal investigators successfully proposing research grants
> of $5000 or more are ``employees who have direct responsibility for the
> formulation of contracts entered into by the State in the amount of
> $5000 or more''?
> 
> 
> Question 3, regarding the phrase ``contracts entered into by the State
> in the amount of $5000 or more'' in the ethics law: The University
> Counsel is construing this phrase to include _grants to the state_ of
> $5000 or more, not just expenditures of $5000 or more _by_ the state?
> 
> For example, the University Counsel is saying that a $100000 NSF grant
> to UIC is a contract between NSF and UIC, and that $100000 is over
> $5000, so the grant is a ``contract entered into by the State in the
> amount of $5000 or more''?
> 
> 
> Question 4, regarding the phrase ``employees who have responsibility for
> the formulation of contracts'' in the law: The University Counsel is
> saying that this phrase includes any employees who _do_ formulate a
> contract, whether or not that's one of their responsibilities as a state
> employee?
> 
> 
> Question 5, regarding the phrase ``responsibility for the formulation of
> contracts'' in the law: The University Counsel is saying that anyone who
> proposes terms that are later cited in a grant is ``formulating a
> contract,'' and therefore has ``responsibility for the formulation of
> contracts''?
> 
> For example, if NSF awards a $100000 grant to UIC pursuant to NSF's
> Grant Conditions, then whoever proposed the $100000 number has
> ``responsibility for the formulation of'' the grant contract?
> 
> Similarly, if a student pays the university for rent of room 382, then
> whoever supplied the number 382 has ``responsibility for the formulation
> of'' the rental contract?
> 
> Similarly, if the university---upon a faculty member's recommendation---
> admits a student to graduate school, then the faculty member, having
> proposed the student's name, has ``responsibility for the formulation
> of'' the student's class/tuition contract?
> 
> Similarly, if a graduate student helps write a grant budget, the
> graduate student has ``responsibility for the formulation of'' the grant
> contract?
> 
> If, on the other hand, graduate students and co-PIs and substitute PIs
> and so on were _not_ involved in writing the grant budget, then their
> mere support under the grant does not trigger 5 ILCS 420/4A-101(f)(2)?
> 
> 
> Question 6, regarding the word ``direct'' in the law: The University
> Counsel is saying that a PI has not only ``responsibility for the
> formulation'' of the budget, but ``direct responsibility for the
> formulation'' of the budget, and therefore ``direct responsibility for
> the formulation of contracts''?
> 
> As I'm sure the University Counsel is aware, after a PI drafts a budget,
> the budget is reviewed and generally modified (and conceivably rejected)
> by several levels of university administration, culminating with the
> Office of Research Services. ORS then submits their final budget as a
> proposal to the granting agency.
> 
> The University Counsel is saying that, despite this active rewriting by
> the university personnel hired to administer grant proposals, it's
> actually the PI who has ``direct responsibility for the formulation of
> contracts''?
> 
> 
> Let me close by putting this issue into a broader context, and by making
> a suggestion for the University Counsel.
> 
> As illustrated by http://uic-notes.cr.yp.to/grant-mismanagement.html,
> UIC frequently
> 
>    * refuses to show its grant accounts to principal investigators;
>    * makes payments without authorization from principal investigators,
>      often in clear violation of NSF's grant conditions; and
>    * refuses to make payments authorized by principal investigators.
> 
> I'm not just talking about $5000 purchases (which require all sorts of
> extra approvals from the people who actually _do_ have authority over
> budgets); I often have trouble making a $50 purchase.
> 
> (I first saw these problems more than two years ago. I have put a huge
> amount of time into trying---and so far failing---to gain a reasonable
> level of control over ``my'' grants, the grants that are supposed to be
> supporting my research. Two administrators responded by attempting to
> derail my promotion at the department level last year; they became very
> quiet after I wrote the above web page and showed it to the department
> faculty. Actually, it's technically not a web page yet---I haven't shown
> it to Google, even though I think it's of potential interest to every
> prospective UIC faculty member. I remain optimistic that these problems
> can be resolved internally.)
> 
> The notion that grants are controlled by principal investigators, rather
> than by UIC administrators, is patently absurd to anyone aware of the
> facts. To anyone who claims that I control even $50 of grant money,
> never mind $5000: Give me that control, please! I would love to have it!
> 
> Having PIs treated as administrators, and therefore potential thieves
> who need to fill out a Statement of Economic Interests, isn't merely
> inconsistent with the law. It's inconsistent with the university's
> entire grant-management structure.
> 
> Here's my suggestion. Presumably the University Counsel has realized,
> from its own internal review or from my questions, that the University
> Ethics Officer's action was clearly erroneous, as was the University
> Counsel's initial position. The University Counsel can generate a prompt
> public statement to the University Ethics Officer concluding that PI
> status does not trigger 5 ILCS 420 Sec. 4a-101(f)(2). The University
> Ethics Officer has time to notify the Office of the Secretary of State
> that various people shouldn't have been listed this year. The Office of
> the Secretary of State said a week ago that they were still accepting
> corrections.
> 
> 
> ---D. J. Bernstein, Associate Professor, Department of Mathematics,
> Statistics, and Computer Science, University of Illinois at Chicago