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