NSF, Paquette Settle Misconduct Case Ohio State weighing what action, if any, to take against chemistry professor
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n a binding legal settlement with the National Science Foundation, Ohio State University chemistry professor Leo A. Paquette has agreed to voluntarily exclude himself from receiving any federal funding for the next two years. In turn, NSF agreed in the January settlement not to issue a finding of misconduct in science against Paquette. "Dr. Paquette vigorously denies any wrongdoing," says his attorney D. Michael Crites. "He would have preferred to continue to contest the charges against him, but dwindling financial resources and the personal toll made it necessary to bring the matter to a close." Originally, NSF's Office of Inspector General (OIG) sought only to prohibit Paquette from reviewing NSF proposals for three years. That sanction was based on NSF's conclusion that Paquette violated the integrity of the peer review process by lifting background material from a proposal he'd reviewed for NSF. But what had been a minor misconduct case erupted into charges of obstruction of a federal investigation when Paquette submitted falsified evidence to the agency. NSF then proposed in May 1997 to debar Paquette from all federal grants for a period of three years. Debarment is the toughest sanction a federal agency can apply in misconduct cases; the restriction extends across the federal government, not just to funding from the agency that initiates the action. Cutting a scientist off from his or her sources of research money is so severe a penalty that some pundits call debarment "capital punishment." Ohio State's own investigation concluded in 1993 that Paquette had improperly used material from an NSF proposal. At that time, the university administration asked the chemistry department to consider whether Paquette should be allowed to continue supervising students. A chemistry department committee weighed the gravity of both the NSF case and an earlier incident in which Paquette had been found guilty of scientif-
ic misconduct for plagiarizing a proposal he reviewed for the National Institutes of Health. It concluded in early 1994 that Paquette should reduce the size of his research group (C&EN, March 21, 1994, page 18). A statement by the university issued last month says it has been waiting for NSF's decision in the case before considering what, if any, action to take. "Both the chemistry department here, as well as Ohio State University as a whole, are committed to safeguarding the educational programs of the students and postdoctoral associates involved in work with Dr. Paquette," chemistry department chairman Matthew S. Platz tells C&EN. "We will, to the best of our ability, minimize any impact this case might have on these young people." One section of the settlement agreement sets out how another chemistry faculty member will replace Paquette as principal investigator (PI) on a grant that NSF's chemistry division had been planning to award Paquette. The replacement PI is to take responsibility for both the financial and scientific management of the project, says Anita Eisenstadt, the NSF assistant general counsel who negotiated the settlement. The award has not been made yet, she says, because NSF and Ohio State are still working through a variety of issues. The settlement agreement states that Paquette "acknowledges that based upon the administrative record before NSF, there is sufficient evidence in the record to permit a fact finder to conclude that he submitted falsified evidence for the purpose of disproving the misconduct in science charge being investigated by the OIG, that Dr. Paquette knew that the evidence was falsified, and that Dr. Paquette made false statements under oath in the OIG investigation concerning the authenticity of the evidence." The falsified evidence consists of a computer diskette that Paquette's former lawyers gave to OIG in January 1995. On it, Paquette claimed, was a draft created in October 1990 of a paper eventually
published in the Journal of the American Chemical Society [114, 2644 (1992)] by Paquette and six coauthors. The draft included the small portions of the introduction that Paquette had allegedly plagiarized from the proposal he reviewed. But given that he had not received the proposal from NSF until November 1990, Paquette contended the computer file proved his innocence. However, the lot number on the plastic case of the diskette shows that it was not manufactured until May 1992, according to OIG's report on the case. In addition, "forensic analysis by the Secret Service concluded that someone had tried to erase the lot number," the report says. When first confronted with the evidence that the draft on the computer diskette was fake, Paquette could not explain it, according to the OIG report. He later admitted that his secretary had created it. Paquette's secretary put together the backdated computer file by working from a "mock draft," a copy of the paper's final draft that Paquette had marked up to look like an earlier draft, the OIG report states. "I thought I was helping by making a copy on a diskette of something I knew had existed at one time," Paquette's secretary tells C&EN. "I took it upon myself to make the diskette. I told Dr. Paquette I had found it. I saw what this [investigation] was doing to him. I made a big mistake. I'm having a lot of people pay for it." Paquette says he never instructed his secretary to create the backdated draft. "If I had done that, I would have done the homework," he tells C&EN. "I would have checked the lot number. In retrospect, I should have sought authentification of the diskette on my own." But NSF rejects the contention that his secretary's admission resolves Paquette of responsibility. In a May 2, 1997, letter formally notifying Crites that the agency was proposing to debar Paquette, NSF General Counsel Lawrence Rudolph wrote: "I conclude that your client either explicitly requested his secretary to create the false October 1990 draft on the diskette or orchestrated its creation by telling her of the existence of the mock draft, asking her to locate an early version of the paper, and relying on her sense of loyalty to prepare the fabricated diskette. Furthermore, even if your client did not explicitly direct his secretary to prepare the October 1990 draft on the diskette, your client admits that he reviewed the October 1990 draft on MARCH 9, 1998 C&EN 25
government the diskette prior to submitting it to the OIG. . . . It strains credulity for him to argue that he did not recognize that the document on the diskette was identical to the mock draft which he had created." The entire saga stems from an allegation of plagiarism that seems trivial to most observers. The contested material in Paquette's JACS paper is the background section—not the experiments, discussion, or conclusion. Ohio State's investigatory panel based its conclusion that Paquette had plagiarized the NSF proposal "in part on the identical organizational structure of the relevant passages in the two documents, on the commonality of facts, examples, details, ideas, and transitional devices in the two documents, and on the duplication of several errors, mistakes, and misrepresentations in the two documents." The chemistry department committee's 1994 report, however, concluded that "Professor Paquette's actions in the NSF case could be considered sloppy, but do not constitute plagiarism by most definitions." The committee found "Paquette's alleged infraction in the NSF case to be minor, involving mainly information in the public domain. It was not evident . . . that Dr. Paquette intended to deceive the reader. The [committee] cannot exclude the possibility that Dr. Paquette had actually taken known facts from the NSF proposal. However, we expect that when two scholars review the history of a shared technical specialty, there will be similarities in their presentation." In its report, NSF's OIG characterizes Paquette's misuse of the proposal as "relatively minor" scientific misconduct. But, OIG argues, if such violations of the agency's rules against using materials received in confidence for peer review were allowed to stand uncorrected, the confidence of the scientific community in the peer review process would be undermined. In the final analysis, NSF considered Paquette's interference with OIG's investigation much more serious an offense than the plagiarism. "We believe that your client's falsification of evidence in a federal investigative proceeding and false statement under oath as to the authenticity of the evidence reflects a lack of integrity and honesty in his dealing with the federal government," General Counsel Rudolph wrote to Paquette's lawyer last May. "He poses too great a business risk to receive government funding." Pamela Zurer 26 MARCH 9, 1998 C&EN
Fluorescent bulb makers spar over mercury test If you think vitamin C is just good for colds, you may want to talk to fluorescent lightbulb makers. Because depending on whom you ask, vitamin C either can cause or can cure major regulatory headaches. Not long ago, Philips Lighting, Somerset, N.J., announced that its arch rival GE Lighting, Cleveland, is looking greener than it has a right to look. Philips says this is because GE puts a little dab of vitamin C under the end caps of its Ecolux bulbs, making it look like the GE bulbs have less mercury than they actually contain. GE Lighting won't say why the vitamin C is in its bulbs, but Janice Fraser, its manager of communications, does say Philips' charges are "outrageous and absolutely distorted." All fluorescent lamps contain some mercury to fluoresce properly, but mercury is toxic and a potential health problem. This peculiar "battle of the bulbs" is heating up because the Environmental Protection Agency may decide this summer whether to exempt spent fluorescent bulbs from some hazardous waste rules. At the heart of the vitamin C controversy is EPA's leaching test. In 1990, the agency devised the Toxicity Characteristic Leaching Procedure (TCLP) for measuring toxic substances from solid wastes. For fluorescent bulbs, coming in under the TCLP threshold determines whether spent bulbs have to be treated as a hazardous waste under the Resource Conservation & Recovery Act. Steve Goldmacher, director of public affairs at Philips, explains: "To perform the TCLP test on spent fluorescent bulbs, you crush the lamp, put all the crushed parts into a beaker, pour a dilute acid bath over it, shake it for about 18 hours, and pour the contents out through afilter."A 4-foot spent lamp will meet the TCLP threshold if mercury levels in the filtrate are less than 0.2 mg per L. By incorporating ascorbic acid into the bulb, the concentration of highly soluble Hg2+ in a spent lamp can be effectively lowered by chemical reduction to elemental mercury, which is relatively insoluble in the extraction fluid or by forming an insoluble mercury compound that stays in the filter. This approach does not
require any reduction in the lamp's total mercury content. "In a landfill, how is the end cap going to be taken off and broken?" asks Paul Walitsky, a Philips Lighting chemical engineer and manager of environmental affairs. "It is not. That's the key. In a landfill, the lamps are broken in the middle. The end caps will never come off. That ascorbic acid, I submit, will never find its way to the mercury." Philips says by putting ascorbic acid under the end caps of its bulbs, GE is able to put more mercury into its bulbs and still pass the TCLP than it would have to if it used the technology that Philips has developed for its Alto lowmercury bulb. Philips spent four years and millions of dollars coming up with a precise mercury dosing capsule for its Alto bulbs. With this technology, Philips is able to drastically reduce the amount of mercury in its bulbs. In addition, because the capsules are broken by high-frequency radio waves after they have been sealed in the lamps, workers aren't exposed during manufacturing. In 1994, EPA proposed two options for streamlining hazardous waste management standards forfluorescentlamps. One was to add mercury-containing lamps to the so-called universal waste regulations. This option would set storage, notification, and packaging standards for handlers and generators of high-mercury spent lamps. But the lamps still would end up in hazardous waste landfills. Philips likes this option. The other option would exempt mercury-containing lamps that pass the TCLP from hazardous waste regulations as long as they are disposed in permitted municipal solid-waste landfills or mercury recycling facilities. GE and other bulb manufacturers like this option. Philips offered its mercury encapsulation technology to its competitors free of charge so they wouldn't lobby EPA for an exemption. The competitors turned it down. And it's easy to see why. Goldmacher admits, "It would cost up to $20 million to change their production methods and about a year and a half or two years behind the eight ball." On the other hand, GE thinks it is doing just fine. Fraser explains: "In 1994, a 4-foot bulb used 22.8 mg of mercury. The mercury content in our Ecolux lamp is less than 10 mg." Philips states in its literature that its lamps have "significantly less than 10 mg" of mercury. Linda Raber
