University of Arizona versus Regents Professor Kay

 

Regents’ Professor Marguerite Kay, M.D.  is a national authority on Alzheimer’s Disease and other diseases of aging, who brought in $4.6 million in competitive research grants in 8 years.  Dr. Kay reported double charging to federal grants, and improper charges to the VA of $23,000 for work that was never performed.  The UA then charged her with harboring two fictitious viruses (Polio Virus J, and Bovine Polio Virus), accused her of improper handling of radioactive material in spite of her having one of the best official records on campus for handling such material, and shut down all research in her laboratories based on unsubstantiated charges. 

 

Arizona Superior Court Judge Stephen Villarreal found that the UA was arbitrary and capricious in the termination of Dr. Kay last year, since the UA did not follow state law and allow an attorney to represent her in a first CAFT hearing, did not allow a hearing by the Committee on Conciliation, and did not allow a required CAFT termination hearing.  The UA did re-instate Dr. Kay on Feb. 4, 2000, but immediately banned her from campus and began new termination proceedings against her.  Dr. Kay’s banishment from campus did not follow the procedure required by the Arizona Board of Regents’ Policy Manual [ABOR-PM 601-J.3b(1)] or by the University Handbook for Appointed Personnel [UHAP 3.17], which require a hearing before a banishment.  Further proceedings also do not follow due process.  A CAFT panel was set up to hear charges that have not been brought to the University Committee on Ethics and Commitment (UCEC) by a complainant in writing as required by UHAP 2.13.09.  In fact, the only official statement on charges of scientific misconduct against Dr. Kay which follow the rules of due process is that of former Vice President for Research Michael Cusanovich who, on April 23, 1997, wrote “I am pleased to report that allegations of research fraud or data fabrication against you have not been substantiated.” 

 

Further, The Code of Federal Regulations in § (d)(9) requires that the University's policies and procedures for handling charges of scientific misconduct, such as those currently brought against Dr. Kay, must provide for "Taking precautions against real or apparent conflicts of interest on the

part of those involved in the inquiry or investigation." There are no adequate policies and procedures for such provisions at the University of Arizona, and even the UA’s weak published procedures have not been followed. As a result, claims persist that persons with conflicts of interest have been involved at all stages of the inquiry and investigation.  Failure of the UA administration to correct the appearance or the reality of conflict of interest could result in damages being awarded against the university.  The UA will have no good faith defense of its failure to follow these requirements since it was informed of them in writing by the Federal Office of Research Integrity (ORI), and it has yet to adopt policies that correct these deficiencies.

 

The University Handbook for Appointed Personnel (UHAP) requires that each faculty member be evaluated by Peer Review on an annual basis.  However, then-Provost Sypherd pre-empted Dr. Kay’s evaluation by himself evaluating her as unsatisfactory, prior to Feb. 4, 2000, even before she was reinstated.  Dr. Kay therefore requested an Enhanced Peer Review pursuant to UHAP 3.10.04(B) to review the evaluation given her by Provost Sypherd.  Pursuant to that policy, Dr. Kay’s department head appointed an Enhanced Peer Review Committee to review the evaluation given her by Provost Sypherd. On July 21, 2000, after conducting its review of each of the specific charges against Dr. Marguerite Kay, the Enhanced Peer Review concluded that there has been no scientific misconduct by Dr. Marguerite Kay and that there has been no laboratory mismanagement by Dr. Marguerite Kay.  In addition, two prestigious scientists on that committee from outside the UA wrote an addendum to the committee report.  They stated “We also find a pattern of behavior on the part of University ranging from attempted coercion and threats to the members of UCEC, misinterpretation of their findings, and continued attempted coercion of members of Dr. Kay's granting agencies and regulatory agencies to persuade them to carry out acts which would damage her” (signed by Vera S. Byers, M.D., Ph.D., University of California, San Francisco, College of Medicine and Ronald C. Kennedy, Department of Microbiology and Immunology, University of Oklahoma Health Science Center).

 

An affidavit written by Dr. Kay’s attorney, Don Awerkamp, lists approximately 200 instances of failure to observe due process in the case of Dr. Kay since her re-instatement and banishment on Feb. 4, 2000.