By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
That technician never returned the notebooks. The technician then accused Kay of stealing her car to get the books back. The technician also said that Kay had pilfered radioactive materials and that she was a sexual deviant who had tried to self-inseminate herself in the lab.
"This was their main witness," Kay says.
The technician, Cathleen Cover, did not return calls from New Times.
The university's mishandling of the missing-books issue came under attack from Frederick Goodwin, former director of the National Institute of Mental Health and current director of the Program on Medicine, Science and Society at George Washington University's Ethics and Public Policy Center.
Goodwin wrote to the Office of Research Integrity in Maryland, which oversaw such investigations at the time. "Contrary to ORI guidelines and simple common sense, the University failed to immediately secure original research data, subsequently invoking the missing data to the detriment of Dr. Kay."
Goodwin identified more than a dozen serious concerns with the proceedings against Kay.
In April 1998, Kay went through a five-day hearing before the CAFT panel. She complained that two panel members had conflicts of interest. They stayed on the panel, even though university guidelines say a panel member must be removed if either side claims the member has a conflict.
The university set an arbitrary limit of five days for the hearing. The university used four days; Kay had only the last day.
The panel allowed testimony through numerous unsworn documents from university witnesses, including one of Kay's primary accusers who adamantly refused to provide the information as sworn testimony.
The panel then did not allow sworn videotaped testimony supporting Kay's work and damning the charges against her from several independent, international experts in fields relevant to Kay's area of expertise. For example, the 90-minute testimony of Dr. David Soll, who runs a massive research lab at the University of Iowa and who is on numerous review panels of the world's top research journals, was not allowed because Dr. Soll was asked questions by Kay's attorney. Only Kay was allowed to question witnesses, the panel ruled.
In the videotaped testimony, Soll, who was asked to review all the charges and evidence against Kay, meticulously dissected the case. He, like several other top researchers, found the charges were either unfounded or gross misstatements of proper scientific procedures. He questioned the motives of those accusing her and those investigating her.
"It is astonishing and troubling . . . that an academic research institution adamantly denied this basic right to one of its own faculty members in so significant a proceeding," Goodwin wrote.
President Likins then fired Kay, he later told the faculty senate, based on the CAFT findings and his own analysis of the table of data that had been retracted.
In September 1999, Roy Spece, a legal expert with the UofA law college, once again reviewed the charges, investigations and proceedings against Kay. He concluded that the university's acting general counsel at the time "secretly met with a former employee in Dr. Kay's lab and lied to him, erroneously stating that 'all the lab notebooks' in Dr. Kay's lab had been lost. This was calculated to and did intimidate [the assistant] into revoking his prior written praise of Dr. Kay and adopting a view of Dr. Kay's research that became the theme of the prosecution." Namely, that she implied to employees that they should manipulate data to please her.
"If police acted in this way, they would be fired," Spece wrote.
Spece detailed more than 10 instances when the university failed to follow its own policies on investigations and hearings.
Also, "university attorneys apparently instructed the CAFT panel to summarily seize Dr. Kay's private property along with scientific data," Spece said. ". . . This constitutes an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution."
He called the CAFT hearing "so bereft of basic due process as to be described as nothing other than a 'kangaroo court.'"
"The faculty involved proceeded in apparent good faith, being assured by the attorneys that the process comported with all applicable laws and constitutional requirements. This representation was obviously erroneous, as corroborated by Judge Villarreal's ultimate finding that the University acted arbitrarily and capriciously."
"There is prima facie evidence that there was serious misconduct and multiple, significant procedural error in the proceedings," he concluded.
Still, Kay is banned from her laboratory and, so, banned from continuing her research. And, even if she could return, there would be nothing to return to. Administrators have given her lab equipment to other researchers.
At the foundation of this convoluted case, Kay says, is something very simple. She blew the whistle on misspending, she says, and so she is being destroyed. And without legitimate due process and independence in the investigation and hearing stages, whistleblowers can be intimidated into keeping quiet.
"This was my punishment for being a bad girl," Kay says. "And the way things are still set up, you can still be destroyed for telling the truth."
Carol Bernstein has spearheaded whistleblower reform in Arizona for the last three years. She is president of the Arizona State Conference of the American Association of University Professors, and she's known as a relentless agitator for the cause. She is particularly known for deluging supporters and detractors alike with documents supporting her position. Upon seeing her approaching during last year's session, one senator was overheard saying, "Oh, no, here comes Carol."