A lot has changed since the last update ages ago, and for once things are looking up! Also, this page has been updated in response to an article about this whole mess in Science magazine!

Following her complaints, Dr. Kay was subjected to highly irregular and ad hoc procedures lasting for several years under the umbrella of the federal scientific misconduct policy. The many procedures against Dr. Kay did not conform to the "Conditions of Faculty Service" set forth in the Arizona Board of Regents Policy Manual nor did they comply with federal policy. When Dr. Kay refused to sign a statement that she was guilty of misrepresenting data and surrender any rights of recouse against the U of A and all its employess "in state or federal courts or in the agencies of the state or federal goverment", she was summarily terminated, with two days notice, by UA President Peter Likins, on July 15, 1998.

The "scientific misconduct" case against Dr. Kay was brought by the administratior Charles Geoffrion, Associate Vice President for Research, not by a "whistleblower". The UA used the name of Cathleen Cover, a former employee who left Dr. Kay's lab some time before because she was caught falsifying o time sheets.

The inquiry committee (University Committee on Ethics and Commitment, UCEC) exonerated Dr. Kay of scientific misconduct which consists of "falsification, fabrication or plagerism" as defined by the applicable federal policy (42 CFR Part 50.102). UCEC reported on April 15, 1997 that,

"The inquiry team was unable to find obtain evidence required to support this allegation" and "The inquiry team was presented with no data to support this allegation" (Attachment #1).

On April 23, 1997, Michael A. Cusanovich, the University's Vice President for Research and Graduate Studies, wrote to Dr. Kay that,

"I am pleased to report that allegations of research fraud or data fabrication against you have not been substantiated".

Similarly, the same day, Dr. Cusanovich wrote to the Chairman of the University's Committee on Academic Freedom and Tenure (CAFT) that the inquiry committee "... did not support the allegations of fabrication of data by Dr. Kay ...".

It should be noted that the UCEC was the only fully elected committee that was involved in the Kay case. All of the other committees had as key members administration appointees. Although elected, UCEC was advised throughout by the administration attorney, Tom Thompson, and the University's Vice President for Research and Graduate Studies.

The University of Arizona administration's pursuit of Dr. Kay should have ended with her exoneration by the inquiry committee in the alleged fabrication of data. Instead, Dr. Cusanovich turned it over to another committee to perform another investigation. There are no provisions in the University of Arizona policies for such an action or a second investigation when the first one finds no evidence to support the charges. Dr. Kay repeatedly stated that she believed that the administration had determined that she be found guilty and would continue until it got the desired finding.

UA President Peter Likins, in a practiced performance before the University's Faculty Senate on Pearl Harbor Day, December 7, 1997, three months before the Arizona Superior Court considered Dr. Kay's case, took credit for "discovering" and developing a new charge of scientific misconduct against Dr. Kay after the faculty hearing had concluded. He addressed this new charge in his speech and vehemently defended his decision to terminate Dr. Kay. There are no provisions in the University of Arizona policies that allow the President to develop, prosecute, and judge new charges. At that time of his Pearl Harbor Day speech, President Likins asserted that the procedures which he had followed in prosecuting and terminating Dr. Kay were impeccable.

Physics Professor William S. Bickel, however, frequently had gone before the Senate as a member of the general faculty and pointed out many flaws in the University's prosecution of Dr. Kay. Senator Roy Spece of the College of Law also repeatedly hammered at the egregious flaws in the University procedures on the floor of the Faculty Senate.

Dr. Likins performed his speech on the Professor Kay alleged scientific misconduct case for other groups including Distinguished Professors, Regents Professors, and National Academy of Science members at UA, and the UA Faculty Senate on December 7, 1997, before the case was heard in the Superior Court of Arizona in March of 1998. He fired Dr. Kay in a press release that was widely distributed and is still posted on the University of Arizona website. From the beginning, it is believed that Dr. Kay was tried in the "court of public opinion" where the UA controlled the media instead of having confidentiality maintained.

On May 6, 1999, Judge Stephen C. Villarreal of the Arizona Superior Court, found in a ruling on Dr. Kay's motion for summary judgement, that "the Board of Regent Ss' action was arbitrary and capricious" in the termination of Dr. Kay.

Violation of University procedures was so extreme that Dr. Kay's attorney, Don Awerkamp, brought suit under Arizona Statute 12-910. Under this statute, if there is substantial evidence to support the University decision, the Court must affirm the University action. Roy Spece, Professor in the College of Law, and a member of the UA Faculty Senate, recently stated on the Faculty Senate floor: "It is extremely rare for a court to find ‘arbitrary and capricious' conduct" under the high standards of this statute. "It is equivalent to finding the Board of Regents guilty beyond a reasonable doubt." In fact, it is so rare that no one can knows of an Arizona court having ever previously made such a finding.

Although the judge found himself unable to order Dr. Kay's reinstatement and back pay, under Arizona law, he remanded the case back to the Board of Regents for valid action. He did order that "Plaintiff (Dr. Kay) is entitled to her reasonable attorneys' fees and costs. But for the Defendant's (University's) arbitrary conduct, Plaintiff would not have had to institute these judicial proceedings and incurred expense related to same."

The university administration argued that since this was a "scientific misconduct" case, the regular dismissal proceedings for tenured faculty did not apply to Dr. Kay. The Judge wrote that "The Court finds this argument untenable without any evidentiary support. In order to accept the Defendant's (University's) argument, the Court would have to find that the University may elect which of its policies or regulations it desires to follow, depending on the circumstances. Û That is certainly not the case."

Dr. Kay said ". . . I sincerely hope it will open the door to resumption of my research efforts to combat Alzheimer's Disease, a disease that afflicts millions of Americans." Dr. John Marchalonis, Dr. Kay's Department Head and himself a Faculty Senator stated "I hope that Dr. Kay will now be able to get back to her research, which I regard as a very important contribution to ameliorating the devastating effects of Alzheimers Disease."

Carol Bernstein, PhD, President of the American Association of University Professors, Arizona Conference (AAUP AZ Conf), expressed satisfaction with the ruling. She stated "The AAUP has made numerous complaints to university authorities about the lack of due process afforded Dr. Kay. In addition to the arbitrary and capricious actions found by Judge Villarreal, Dr. Kay was not allowed to remove members of her hearing panel, prior to her hearing, when there was a clear conflict of interest, a right provided for in university regulations. Dr. Kay could not obtain the original written charges against her.. ."

Dr. Bernstein said "The AAUP AZ Conf believes the ‘arbitrary and capricious' actions against Dr. Kay were in retaliation for her whistle-blowing." Dr. Bernstein expressed the hope that the Regents would reinstate Dr. Kay since there was never any valid basis for her termination.

The National Office of the American Association of University Professors (AAUP) issued a statement on July 6, 1999, urging the UA to rescind its dismissal of Dr. Kay, on Ûgrounds that "At no point..did the administration assume the burden of proving the validity and the seriousness of" the charges made against Dr. Kay. (see student news story at http://wildcat.arizona.edu/papers/93/12/01_1_m.html)

The University of Arizona Committee of Eleven voted unanimously to ask President Peter Likins to reinstate Regents Professor Marguerite Kay August 27, 1999. The Committee is elected by UA faculty to examine University issues and problems. This was the second resolution calling for Dr. Kay's reinstatement that was sent by the Committee of Eleven to UA President Peter Likins. He has not acted on either of them.

The reinstatement of Dr. Kay was a hot issue in the UA Faculty Senate meeting of September 13, 1999. At least 6 faculty members urged President Peter Likins to reinstate Dr. Kay. Dr. Likins refused to answer senators' questions, citing the ongoing Arizona Superior court administrative review. A student article on this meeting appears at http://wildcat.arizona.edu/papers/93/16/01_1_m.html.

Dr. Roy Spece told the AAUP "I pointed out to Dr. Likins, when he appeared before the Faculty Senate, that although I had refrained from participating in the case because of a possible conflict of interest, there was an obvious denial of due process.  I believe the President has received and is continuing to receive very poor legal advice, and has put us in a situation where our entire institutional reputation might be seriously damaged.  The irregularities brought out thus far are only ‘t'e tip of the iceberg.'  Prof. Kay should be immediately reinstated pending further procedures."  

Among the many ir Fregularities mentioned by constitutional law professor Roy Spece of the UA were: Attorney Eikelberry who represented the university administration in the CAFT hearing and since then stated to the CAFT panel chair, Professor Glittenberg, that she need not read Dr. Kay's defense exhibits because they were "worthless". This is based on an assertion by Professor Marlys Witte, confirmed at the September 13, 1999 meeting of the UA Faculty Senate. According to Roy Spece, "This is equivalent to a judge telling a jury that it need not bother with the defense side of a case. It is incredible. . . .the entire proceeding was so bereft of basic due process as to be described as nothing other than a "kangaroo court."

Dr. Jack Marchalonis, Professor and Chairman of the UA Department of Microbiology and Immunology and a UA Faculty Senator, ' in which Dr. Kay was a faculty member, stated : "I am going to ask a simple question: Why is it so hard to do the right thing? Let's get her reinstated."

A new Arizona Supreme Court decision Oct. 4, 1999 (see the file called "Arizona State Board of Regents v. Arizona State Personnel Board CV-98-0237-PR OCT 4 1999" on their Internet site: http://www.supreme.state.az.us/opin/filed99.htm) made in the case of an ASU whistle-blower also applies to all hearings taken in the UA case of Regents Professor Marguerite Kay, M.D. (as well as all future grievance hearings at the UA).  The Supreme Court stated:

"We granted review to decide whether the Administrative Procedure Act allows an agency [the university] to exempt itself from the rights to counsel and subpoena contained in A.R.S. § 41-1062 (1992). We hold that it does not."

The Supreme Court decision applies to all actions taken in the case of Marguerite Kay, because her case is still open before the courts.  It implies that the actions of the CAFT panel were all illegal, since they did not afford Dr. Kay the protections granted by the Arizona Administrative Procedures Act, namely the right to have a lawyer represent her and the right to supoena witnesses and documents. This would nullify all so called findings of scientific misconduct. (see student news story at http://Wildcat.Arizona.EDU/papers/93/32/01_1_m.html)

Dr. Kay's attorney has now asked Judge Villarreal "to reinstate her in her position immediately with full back pay and benefits....It would be a fundamental violation of due process to void a procedure as unlawful and yet allow the deprivation based upon that unlawful procedure to stand."

The University of Arizona opposes that request contending that the Supreme Court decision doesn't apply to Dr. Kay although UA relied on Arizona State Board of Regents v. Arizona State Personnel Board, 191 Ariz. 160, 953 P.2d 904 (App. 1996), to argue that it did not violate the provisions of A.R.S.§ 41-1062 when Doctor Kay's attorney was not allowed to actively parti •cipate in the hearing that resulted in her termination, and Dr. Kay was not permitted to subpoena documents and witnesses.

The safeguards listed in the Federal Register: October 14, 1999 were not allowed Dr. Kay. "Safeguards for the Subject of the Allegation. Safeguards for the subjects of allegations give individuals the confidence that their rights are protected and that the mere filing of an allegation of research misconduct against them will not bring their research to a halt or be the basis for other disciplinary or adverse action absent other compelling reasons. Other safeguards include timely written notification of the subject regarding substantive allegations made against him or her; a description of all such allegations; and the opportunity to respond to allegations and to the evidence and findings upon which they are based. [Federal Register: October 14, 1999 (Volume 64, Number 198)] [Notices] [Page 55722-55725] From the Federal Register Online via GPO Access [wais.access.gpo.gov]. Please access that website and express your opinions. In the UA case, "scientific misconduct" is being used to destroy tenure so that any dissenting faculty member can be terminated by the university president without a tenure hearing. Please read the proposed changes and suggest any protections for individuals.

Individuals were selected by the administration to review allegations and conduct investigations who lacked appropriate expertise and had unresolved confli :cts of interests. The UA "experts" which were appointed to the CAFT panel were insect scientists (see Professor Wegmann's letter to Professor Hildebrand regarding the insect morphologist Dr. Leslie Tolbert, and Dr. M. Kidwell's testimony regarding her credentials at the CAFT Hearing. No attempt was made by the university to look at, let alone protect the original data. Dr. Kay's attempts to use to the original data at the hearing met strong resistance. Perhaps the most outrageous act which hurts everyone is that Dr. Kay's research was shut down immediately by the UA Vice President for Research purportedly because allegations were made. Accepted practice is for a university to wait until ORI has made it's decision before sanctions are taken against a researcher.

It is believed by many that it was the serious flaws in the procedures that determined the outcome of the proceedings against Dr. Kay. This is analogous to the "hanging juries" in the old south: "You pick the jury, you pick the conviction and sentence."

EPILOGUE

IMPACT ON THE FUTURE OF SCIENCE AND MEDICINE

Scientists can not do research if they live in fear of reprisals. No one can surive a prolonged "witch hunt" against a Goliath with unlimited funds. It costs the administrators nothing. It costs the taxpayers everything--their money and their future!

A BRIEF HISTORY OF THE ONGOING FEUD BETWEEN THE UA ADMINISTRATION AND DR. KAY

Dr. Kay's employees complained of harrassment which accelerated lin 1996 to the destruction of Dr. Kay's research material. Laboratory personnel filed 5 police reports between January and June of 1996. They claimed that the only result of their police reports and complaints was an increase in frequency of harassment and intimidation, and increased destructiveness. Dr. Kay called UA President Pacheco's office and reported the safety problems to him and asked for protection for the employees and research. On July 21, 1996, Dr. Kay wrote to UA President Pacheco asking for a safe working environment. This began a series of letters and memos between UA administrators including the UA President and Vice President for Research and Dr. Kay (documentation consists of a 2" stack). Dr. Michael Cusanovich, the Vice President for Research, wrote to Dr. Kay on August 2, 1996: " . . .I take extreme exception with your allegation that 'the individuals involved would not have done it if they had not been sure that it would be tolerated by the administration as in the past.' Neither I nor any other administrator tolerates criminal activity. . . ordered Dr. Kay out of her laboratory space on the main campus of the University."

Dr. Kay responded on August 12, 1996: "...What has the main campus administration done since the June/July criminal activities that endangered the health and safety of my staff, and my complaint about the same, both verbally and in writing , to provide a safe working environment or to prevent harassment? The activity taken by you of ordering us out of laboratorities when we have no place to move provides a less safe working environment... "

In mid-1996, Dr. Michael Cusanovich, the Vice President for Research, ordered Dr. Kay out of her laboratory space on the main campus of the University effectively shutting dow ßn her research. Dr. Kay was required to move without the aid of movers, having to use laboratory and tempory personnel, fill out endless forms and "work sheets", repeatedly move her lab supplies and equipment to multiple new "temporary" locations, etc. until finally being allowed to store the material in 3 different storage facilities scattered thoughout Tucson. Dr. Kay's remaining lab in the Medical School was closed to research April 23, 1997, on Dr. Cusanovich's orders. Dr. Kay complained that Cusanovich continued to charge expenses to some of Dr. Kay's grants even though she could no longer do research (letter from Dr. Kay to Dawn Schroeder, Arizona Disease Commission, dated 7/14/98).

In 1997, she reported to legislators on gross waste of monies, consisting of $23,000 improper billing by the UA to the VA Hospital for work that was not performed.

WHY DR. KAY IS FORCED TO UNDERGO AN ADMINISTRATIVE REVIEW RATHER THAN BE ALLOWED A TRIAL de novo

The court initially ruled that president of the UA Likins breached contractual obligations because he did not follow ABOR and University post-termination procedures and ordered the matter remanded ® for those procedures. The court should now rule that he also violated the Administrative Procedure Act, void the CAFT hearing and everything that followed including Dr. Kay's termination. He should therefore order Dr. Kay reinstated with full back pay and benefits.

Had Likins fired Dr. Kay after giving her all the procedures to which she was entitled, she would have been allowed a trial de novo in court on the substantive grounds. Then she could win because UA could not meet their burden of showing that there was good cause to terminate her. Obviously, the UA did not want to have to meet that burden with a jury. It is thought that that is why they chose to invoke the Administrative Procedures Act hearing option. Since Likins terminated Regents' Professor Marguerite Kay this way, she has been restricted to arguing on procedural issues rather than the facts which prove that she is not guilty of scientific misconduct. 

If you would like to read a summary (with comments) of the charges against Dr. Kay, click here. For more in depth information, see the "Letters Containing Info About This Case" section below.

The following are letters concerning Dr. Kay's case. Some are from Dr. Kay's lawyer, some are from the University, and others are from professionals in Dr. Kay's field, defending her reputation and protesting the charges that have been brought against her.

There are so many letters here that they have been divided into two sections. First, the most recent letters concerning recent court cases. Next, letters of protest from professionals in Dr. Kay's field (many of these neatly sum up what has happened to Dr. Kay). Finally, letters containing info on valuable evidence about this case.

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