Committing the Truth

Marguerite Kay made headlines around the world in 1996 with her discovery that Vitamin E could help stave off the crippling effects of Alzheimer's.

But during her research at the University of Arizona, the world-renowned scientist also discovered what she believes was a case of the university overcharging on grants and billing the Department of Veterans Affairs tens of thousands of dollars for work never done.

Her first discovery made her a hero. Her second, it appears, made her a pariah.

After her complaints, the university began investigating her on charges of scientific misconduct. Those original charges in 1996 were judged by investigators to be without merit, but Kay has since suffered through eight more investigations and a series of administrative actions so blatantly retaliatory and unconstitutional that one of the world's leading research biologists labeled Kay's case "the worst attack on academic freedom and example of administration fascism I have ever been witness to."

At Northern Arizona University, professors Chris Lee and Amy Brown ran into similar trouble in 1993. They had accused officials of misspending funds from the $1.6 million Cowden Endowment. And they were right, according to an internal university investigation.

In July 1995, Lee's department chairman wrote a letter to the dean of her college outlining possible "solutions" to the "Lee situation." In the letter, obtained by New Times, the chairman said he had met with the affirmative action director and the vice president for academic affairs to discuss firing or reassigning Lee or dropping the food and nutrition science program overseen by Lee and Brown.

They "all agreed termination is the best solution," the letter said, but because Lee was a tenured faculty member with a long record of outstanding performance, they worried that the "process would drag on for three to five years and with no guarantee of success."

The university fired Brown for "incollegiate behavior" and killed the nutrition program. And over the last six years, both Lee and Brown have fought through numerous hearings and court cases to restore their programs and good names.

"My life has been hell because of these people," says Lee, who, thanks to court rulings, has held on to her post at Northern Arizona. "You are destroyed for telling the truth."

In 1998, Arizona State University hired a management consultant to assess the work environment for the custodians, painters and other staff at ASU's dormitories. The consultant found the work environment to be a "sick" collection of "fear-driven fiefdoms" in which retaliation was more the norm than the exception. In response, the university fired the official who hired the consultant and, according to several current employees in the dorms, did nothing to improve the work environment.

"It's still oppressive, it's still brutal, it's still rife with fixed hires and nepotism and everything else that makes for a terrible work environment," says Dennis Howe, a longtime supervisor in the department. "And God help you if you speak up about it."

Then there are the cases of Jared Sakren and Camille Kimball at ASU, Glenn Johnson and Linda Small at UofA and several others from the state's community colleges.

In case after case, university faculty and staff who report waste, abuse or fraud run into a dizzying fusillade of negative evaluations, countercharges, demotions, investigations, hearings and rulings, all overseen by administrators who stand to gain by having the original charges and the whistleblower disappear. Many of these cases have ended up in Superior Court, costing taxpayers more than $1 million to defend administrations against charges that, in several cases, began with employees exposing misuse of taxpayers' dollars.

At the heart of the problem, many believe, are Arizona's weak public employee whistleblower protection laws. In the last eight years, under the present laws, only two of 57 public employees who have claimed retaliation for reporting waste, fraud or abuse have prevailed in their cases before the state personnel board. That's 3.5 percent.

Under the federal whistleblower protections, about 25 percent of whistleblowers win their cases.

Still weaker, many argue, are whistleblower protections in Arizona's university system. And it is through the copious loopholes in the university policies, reformers say, that vindictive administrators have been given carte blanche to retaliate against those who report abuses of power.

"Arizona's laws, especially at the universities, are a Trojan horse," says Tom Devine, who, as legal director of the Washington-based Government Accountability Project, was the primary author of the federal Whistleblower Protection Act of 1989. "Employees expose themselves to retaliation on the mistaken idea that they'll be protected. Instead, they find themselves committing professional suicide."

Alarmed by the number of well-documented cases of retaliation in Arizona, particularly in the universities, Devine accepted an invitation to come to Arizona last year to help lawmakers craft the Arizona Whistleblower Protection Act in the mold of the federal Whistleblower Protection Act. In March, that legislation, SB1512, fell a few votes short in the Arizona Senate after what bill proponents described as an 11th-hour misinformation campaign by state and university administrators and the attorney general's office.

Whispered into lawmakers' ears, for instance, was an inaccurate warning that anyone, even a legislator, could be sued personally for millions for failing to act on casual pleas from even the most crackpot of whistleblowers.

"When I saw the number of lobbyists working to kill it at the end there, I knew I was on the right track," said state Senator David Petersen (R-Mesa), one of the bill's sponsors.

Devine called that late lobbying effort by state officials "a wall of shameless bluffs" that were "quite a bit cruder than the disinformation campaigns you see at the federal level."

The lobbyist for the state attorney general's office, Michael Haener, dismissed Devine's characterization of opposition to the bill.

"There's no question we'd like to push those two overriding goals: To find corruption and to get rid of it," he said. "We just felt that, for several different reasons, this was not the best way to achieve those goals."

Greg Fahey, who testified against the bill for the universities, didn't return calls from New Times. Peter Likins, president of the University of Arizona, declined to comment on the Kay case.

"There is a great deal that I would like to say in response to your inquiry," Likins said in an e-mail. "[However, I] must remain silent as long as the case is pending."

Likins did not respond to the request for comment on the university's stance on whistleblower legislation.

Devine said Arizona will not see genuine protection for genuine whistleblowers "if discussion of this issue remains a dusty backroom measure in Arizona."

"But in every case nationally, once the public sees the issues, the vote has been unanimously in favor of this type of reform," Devine said.

Petersen and legislators plan to reintroduce the Arizona Whistleblower Protection Act next session.

"This isn't about opening the doors for false complaints," Devine said. "It's about making sure that disclosures of scandals will lead to corrective action rather than cover-up. It's about openness and fairness and accountability in government."

"I do believe the acrimonious and mean allegations of scientific misconduct against Marguerite Kay are false to the point to be grotesque and ridiculous. . . . I am dismayed by what is happening at the University of Arizona because these events will discredit, not Prof. Kay, but the whole body of the University." -- Dr. Walter Pierpaoli, director of research, Jean Choay Institute for Biomedical Research, Riva San Vitale, Switzerland.

Marguerite Kay is calling from somewhere in the mountains somewhere in the western United States. She's being ludicrously vague about her whereabouts, she says, to avoid the harassing calls like the ones she receives at her home in Tucson. She says she needed some time away from Tucson to prepare for the next round of university hearings against her.

Kay has been accused of many things in her career. Particularly, being brash, arrogant, imperious and monomaniacal. In other words, she's like many top scientists.

Never in her long career, though, had she been charged with being dishonest.

Kay is, or was, the prestigious Regents Professor of Microbiology and Immunology at the College of Medicine at the University of Arizona Health Sciences Center. The university fired her, but a Superior Court judge ruled in late 1999 that the university's process was "arbitrary and capricious." She was reinstated on February 4, then dismissed again the same day and banned from campus. She is now facing an investigation related to charges that were previously invalidated.

At least now she knows what the charges are. For two years, her supervisors ignored more than a dozen requests by her, her attorney, the American Association of University Professors and state legislators to receive a statement of the original charges.

To date, the accusations range from manipulating research data to storing and mishandling "polio J virus" and "bovine polio virus," two organisms that don't exist.

For one of the charges to be true, she would have had to dig up corpses to retrieve samples of brain tissue.

"At least it's bizarre enough to make it funny," Kay says. "If you can't maintain your sense of humor about it, you would go crazy."

What isn't the least bit funny, though, are the wider implications of the Kay case. If the charges against her have been trumped up, as more than a dozen of the world's top researchers attest, and the investigation and findings against her were grossly mishandled, as the courts and several legal scholars attest, then the University of Arizona has allowed retaliatory office politics to cripple landmark scientific research -- in this case, the diagnosis and treatment of a disease that affects more than four million Americans: Alzheimer's.

In an article last year in the magazine Science, Michael Cusanovich, then-vice president for research, who coordinated the investigation of Kay, defended the university. He said a written complaint by one of Kay's former technicians prompted the inquiry, which was conducted by independent panels selected by the faculty in accordance with UofA rules. Cusanovich said all the allegations made by Kay and her supporters were unfounded.

Likins, the university's president, also has vehemently defended the investigation, review procedures and decisions regarding Kay. In response to a scathing letter by Pierpaoli of the Swiss research institute, Likins wrote:

"I have been surprised to find that scientists who have earned their reputations through scrupulous consideration of the full facts are prepared to pass judgement in this matter without seeing all the evidence that has informed our faculty panels."

In fact, though, many of those outside researchers did see all the evidence of consequence. In an effort to find outside opinion, Kay's attorney sent the charges and evidence against her to more than 20 top scientists, many of whom had never met Kay. Their unanimous conclusion: The charges and the investigations were bogus.

The retaliations, Kay says, began in 1992 after Kay complained that the university was double-billing her for maintenance of her laboratory. In essence, the university was sending her separate bills for work that should have been covered by maintenance funds the university already had received through Kay's grants from the National Institutes of Health.

Once she complained, she says, her research assistants began reporting being harassed by supporters of the administrators who oversaw the questionable billings. The harassment increased steadily until 1996, when someone twice unplugged a freezer (and disabled the freezer's alarm) that held an estimated $85,000 worth of research, including irreplaceable serum samples taken in the 1970s from survivors of the Hiroshima bombing.

Kay wrote letters to her university president protesting the harassment. She contacted Tucson police to investigate the vandalism. In response, on August 2, 1996, the vice president for research ordered her out of her laboratory immediately.

Kay's laboratory equipment filled nine semi-trailers. But that year, she was forced by administrators to move her lab several times and store equipment at multiple storage lockers distributed throughout Tucson.

"They later accused me of losing paperwork," Kay says. "The miracle is, even with all the moves they put me through, I didn't lose a thing."

Perhaps the most serious charges against Kay stem from her landmark paper in the respected medical journal Gerontology in early 1997. Kay wrote that her research suggested that human antibodies could distinguish between cell membranes of healthy individuals and those of people with Alzheimer's disease. She made it clear that these were preliminary findings from a small sample base and that further research would need to be done. But the implications were extremely promising, perhaps the biggest breakthrough in her stellar 20-year research of human aging.

She may have found a method for quickly, cheaply and unequivocally diagnosing Alzheimer's. And the cellular mechanisms she discovered perhaps could open doors to a better understanding of the disease, and thus, potential cures.

In the last three years, Kay's findings have been supported in similar laboratory tests around the world.

But soon after the paper appeared, and soon after her damning legislative testimony about UofA billing practices, two of her junior laboratory staff (one of whom had recently resigned) came forward claiming, among other things, that Kay told her to throw out data that didn't support her conclusions, that Kay misrepresented the number of test subjects and that a graph published with the article was known to be inaccurate. Also, the lab books involved in the research were supposedly missing.

In fact, one of five tables included with the article included a subset of data instead of the complete data on which Kay was basing a side argument to her general thesis. It was a subset given to her by her technician. After the article was printed and Kay was informed that the table did not represent the complete data, she wrote a correction that appeared in the journal. It was, according to her and peer scientists, a small, honest mistake made by a subordinate on the fringe of a mountain of solid research, and it was quickly corrected through the proper channels. As one peer researcher said, "If that's scientific misconduct, then every researcher in the world is doomed."

The university began investigating Kay on a wide variety of charges, including accusations that she violated rules on dealing with human subjects, mishandled radioactive and biohazardous materials, failed to supervise properly and made up data, referring to the table that had already been retracted.

Concerning the two fabrication charges, Cusanovich wrote to Kay: "I am pleased to report that allegations of research fraud or data fabrication against you have not been substantiated."

At that time, though, Cusanovich ordered Kay to "cease all activities involving the use of human subjects, radioisotopes and biohazards." He called on the university's Committee on Academic Freedom and Tenure (CAFT) to pursue a formal investigation.

So, in effect, her research was halted without any evidence of wrongdoing.

In the year that followed, those charges of research fraud and data fabrication were reinitiated, even though she had been absolved of them.

Particularly troubling to investigators, and a primary reason given for pursuing charges, was that several of the key lab books that would prove Kay's guilt or innocence were missing.

Those missing data were "the crux of the first two charges" against Kay, the chairman of the CAFT panel said.

What was rarely mentioned, and consistently ignored by investigators, was that the lab books were missing because they were in the possession of the junior researcher who had resigned and who was making the most serious charges against Kay. The assistant resigned, Kay says, as Kay was beginning to suspect that the technician was grossly overstating her hours worked.

Kay's attorney has extensive documentation proving that Kay immediately secured all data and records in her possession when the university asked her to, and she pursued the technician's notebooks with increasing urgency.

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."

Bernstein, a professor of microbiology and immunology at UofA, didn't know much about whistleblower laws, nor did she care much about them. In 1997, though, she began hearing some of the horror stories from around the state.

One of the worst, she says, was the case of Marguerite Kay.

"There was so much frustration with the way things are," Bernstein said. "And when you start looking at the way things are, you realize how badly things need to be changed."

In 1998, Bernstein helped construct a bill bringing university policy into line with state policy for whistleblowers.

But the bill was withdrawn when the three university presidents promised legislators they would close one of the many loopholes that made university policy inconsistent with state policy. They would allow an outside arbitrator to hear whistleblower cases.

(Bernstein and other bill supporters say the universities have failed to meet their promises.)

As Bernstein was pursuing her cause, state employees were coming to legislators to complain that their whistleblowers weren't protected, either. Legislators such as Petersen began to listen.

Petersen approached Tom Rogers, an attorney and former chief counsel in the Arizona attorney general's office, about crafting a bill that would close loopholes in the state's whistleblower law. Rogers had defended administrations against bogus whistleblowers, and he had represented genuine whistleblowers against administrations.

"I've been on both sides of this fence," Rogers says.

Reform supporters, particularly Bernstein, also approached the Government Accountability Project. If anyone knew how to craft fair whistleblower legislation, Petersen says, it would be Tom Devine and GAP, which has formed, tested and honed the federal legislation for more than 20 years.

Indeed, Devine has reviewed more than 2,000 whistleblower cases nationally in the last two decades. Congress first codified whistleblower status in 1978, but both the House and Senate voted unanimously in 1989 and 1994 to improve existing laws with revisions written by Devine.

"About one-fourth of all the cases I've seen appear to be genuine," Devine says. "And that's about the percentage you see winning on merits at the federal level. What that tells me is this: In determining between false claims and real claims, our federal whistleblower laws are pretty accurately revealing reality."

So Divine and Rogers worked on the Arizona Whistleblower Protection Act, matching it with federal levels of protection while fitting it with Arizona state laws and institutions. They figured they had a bill everyone could accept.

"Boy, were we wrong," Devine says.

Powerful institutional lobbies lined up against the bill: the universities, the attorney general's office, numerous state administrators and the governor. They argued that the legislation opened numerous windows for malicious and unfounded claims that could cripple government and cost taxpayers millions.

University administrators claimed they had kept their 1998 promise that campus whistleblowers could have an independent hearing officer. In fact, hearing officers are under contract and paid by the administration.

Administrators also said that, as they promised in 1998, hearing officers can make final decisions on whistleblower complaints. However, the policies at Northern Arizona and ASU state that hearing officers can only advise the campus president.

"None of their claims have played out in reality with this type of legislation," Devine says. "But that didn't seem to matter."

Rogers, the former chief counsel for the attorney general, says he knows why Arizona's administrators are so frightened of the Whistleblower Protection Act. He's felt that fear, too.

"They're afraid of the Whistleblower from Hell," Rogers says. "Every administrator has suffered through one. The charges are ludicrous, the charges keep shifting, and you end up tied up in hearings when you should be running your agency.

"There are horror stories on both sides of this issue," he says. "The problem: This legislation is designed [for] and has been proven effective in weeding out horror stories on both sides of the issue."

Specifically, among other things, the new legislation would ensure judicial standards of due process, allow verbal disclosures of misconduct, widen the definition of what is considered a reprisal, protect against gag orders, allow judicial levels of attorney representation and subpoena powers and allow for greater awards for employees who were retaliated against.

University lobbyist Greg Fahey argued that the legislation "absurdly grants whistleblower protection to an employee who is about to disclose information."

Supporters respond, "Fahey dismisses as 'absurd' the First Amendment protection against prior restraint. It is necessary to guard against preemptive strikes or gag orders that would silence whistleblowers in advance of disclosures." The provision, supporters point out, exists in 12 federal laws that have "proven the test of time."

Detractors dislike language that allows employees to claim their statements were a "contributing factor" in their discipline or dismissal, rather than "the primary cause." This, Fahey said, muddies the water "in favor of groundless claims and endless litigation."

Devine says that reducing the burden of proof "to reasonable levels" is at the heart of the reform. "This is the standard that gives employees a realistic chance to defend themselves when they assert their rights."

Devine, Rogers, Bernstein and the legislators supporting them boil the argument down to one key point: Arizona's legislation is modeled after federal law by the people who made the federal law, which has been tested, reviewed and refined for more than 20 years to a point where both Republicans and Democrats in both the House and Senate supported it unanimously.

Haener, the lobbyist for the state attorney general's office, still disagrees. Besides his other concerns, Haener points out that the federal government has an office to handle whistleblower complaints. Arizona has no such office.

"We've got to be careful about saying this mirrors the federal legislation exactly," Haener says. "It doesn't."

Haener says, however, that attorney general representatives will meet with Devine and others in coming months to discuss amending the legislation for next year's session.

"Can the Whistleblower Law be strengthened? 'What's the best way to do that?' is the question. We just don't feel that what's been presented is the best solution. But we would be willing to work towards the best solution," Haener says.

That process, Bernstein and Devine say, is already beginning. The two vow to ensure that "all the information is out there to everyone involved," Devine says, "so there is no more of this last-minute sabotage."

"While I can understand the opposition to the bill, it's an emotional reaction," Rogers says. "If everybody could just look at the reality of this, it becomes extremely clear that this legislation benefits everyone involved."

Okay, so if Marguerite Kay is so good and so innocent, why doesn't she just leave the University of Arizona?

"Oh, I'd love to get out of there," Kay says. "The problem is, they have trashed my name and my credibility. I can't leave until things are made right."

At this point, even though the rest of the world sees her as a hero, she wants to erase the UofA portrait of her as a lying, grave-robbing, sexually deviant car thief who exposes her underlings to terrible viruses that don't exist.

But, she has a new hearing in front of the university's Committee on Academic Freedom and Tenure. This time, she says, she's hoping the university follows its own rules "even if the rules that weren't followed still are slanted and can be manipulated against you."

"But I'm not expecting much," she says. "That's not how they operate."

Several of those scientists who wrote in defense of Kay begged President Likins to establish a review committee of outside scientists who are experts in the field in which Kay works. Those letters went unanswered.

If Marguerite Kay's case sounds too absurd to be common, it's not, Tom Devine says. It fact, it fits a fairly common mode of retaliation.

In his book, The Whistleblower's Survival Guide, Devine spelled out what whistleblowers can expect:

"Some employers will display real chutzpah in selecting charges, attempting to select and make stick the most outrageous or farfetched charges possible as a 'lesson' to other employees about management's power to control events."

But why would any manager spend so much time and money to destroy the career of somebody who reported waste, fraud or abuse?

"Because," Devine says, "it's been proven to be one of the best methods of diverting attention away from the waste, fraud or abuse that was originally reported."

Oh, yeah, the original charges.

Nothing came out of Kay's original 1992 claim that UofA was billing her twice for maintenance in her laboratory.

Those charges, if proven, could have been a criminal act of fraud.

But Kay could never prove her point because administrators simply told her she didn't have a right to see the detailed accounting records of her own grants.

Under the proposed laws, those are documents that whistleblowers such as Kay could have legal rights to subpoena to prove retaliation.

"Trust me, there are reasons people are fighting so hard to block reform," Kay says. "You'd have an awful thing happen. You'd have the public getting access to the truth."


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