Rev. 8/08

NOTE: The policies and procedures contained in Sections 2.05(E), (J), and (K) are reproduced exactly as they appear in the corresponding University of California Policies and Procedures and, consequently, use the UC numbering system.

1. Areas of Responsibility
   1. Responsibilities of Managers/Supervisors
   2. Responsibilities of Employees
2. Early Problem Resolution
   1. Employees and Supervisors
   2. Labor Employee Relations
3. Corrective Action and Dismissal
   1. Policy
   2. Documentation
   3. Authority to Take Corrective Action
   4. Investigatory Leave
   5. Written Warnings
   6. Corrective Action Other Than Written Warnings and Dismissals
   7. Dismissal of Nonprobationary Career and Term Employees
4. Employee Complaint Resolution
   1. Policy
   2. Scope
   3. Eligibility
   4. Time Limits
   5. Informal Review
   6. Formal Review
5. University of California Procedures for Responding to Reports of Sexual Harassment
   1. Local Sexual Harassment Resources
   2. Procedures for Reporting and Responding to Reports of Sexual Harassment
   3. Complaints or Grievances Involving Allegations of Sexual Harassment
   4. Remedies and Referral to Disciplinary Procedures
   5. Privacy
   6. Confidentiality of Reports of Sexual Harassment
   7. Retention of Records Regarding Reports of Sexual Harassment
6. Violence in the Workplace
   1. Policy
   2. Crisis Action Team
   3. Immediate Assistance
7. Employee Assistance Program
   1. Policy
   2. Responsibility
8. Reasonable Accommodation (Note: Reasonable Accommodation policy has been moved to §2.01(B)(4).)
9. Research Misconduct
   1. Introduction
   2. Scope
   3. Definitions
   4. Roles, Rights, and Responsibilities
   5. General Policies and Principles
   6. Conducting the Assessment and Inquiry
   7. The Inquiry Report
   8. Laboratory Decision and Notification
   9. Conducting the Investigation
   10. The Investigation Report
   11. Laboratory Decision and Notification
   12. Completion of Cases: Reporting Premature Closure to the Funding Agency
   13. Laboratory Actions, including Employee Corrective (Discplinary) Actions
   14. Other Considerations
       
10. Reporting and Investigating Allegations of Suspected Improper Governmental Activities ('Whistleblower Policy")
    1. Introduction
    2. Definitions
       1. University Resources
       2. Improper Governmental Activities
       3. Protected Disclosure
       4. Illegal Order
       5. Whistleblower
       6. Locally Designated Official (LDO)
    Reporting Allegations of Suspected Improper Governmental Activities
    1. Filing a Report
    2. Reporting to the LDO
    3. Reporting to the Office of the President and Others
    3. Investigating Alleged Improper Governmental Activities
    4. Responsibilities
    1. Office of the President
    2. Chancellor
    3. Locally Designated Official (LDO)
    4. Investigative Responsibilities
    5. Roles, Rights and Responsibilities of Whistleblowers, Investigation Participants, Subjects and Investigators
       A. Whistleblowers
       B. Investigation Participants
       C. Investigation Subjects
       D. Investigators
    6. Additional Required Communications
11. Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints (Whistleblower Protection Policy)
    1. Policy
    2. Scope of Policy and Definitions
       1. Improper Governmental Activity
       2. Protected Disclosure
       3. Illegal Order
       4. Interference
       5. Official Authority or Influence
       6. Retaliation Complaint
    3. Authority and Responsibilities
       1. Local Procedures
       2. Locally Designated Official (LDO)
       3. Retaliation Complaint Officer (RCO)
       4. Chancellor
    4. Filing a Complaint
       1. Filing Pursuant to an Applicable Grievance or Complaint Resolution Procedure
       2. Filing with the LDO
       3. Filing with a Supervisor
       4. Filing Requirements and Thresholds
    5. Administrative Proceedings
       1. Evidentiary Standards
       2. Special Evidentiary Standards for Health Care Workers
    6.  Complaints Investigated by the RCO
    7. Decision
       1. Decision Based on Findings of an Arbitrator, University or Non-University Hearing Officer, or University Committee
       2. Decision Based on Findings of an Investigation Conducted by the RCO
       3. Corrective Action of a University Employee
       4. Complaint Against the Chancellor, the LDO, or the LDO’s Supervisor
    8. Appeal
    9.   Reports
12. Unauthorized Absences and Job Abandonment
1. Policy
2. Definition
3. Procedures

A. AREAS OF RESPONSIBILITY

Managers and supervisors are responsible for determining and effecting appropriate Laboratory goals and objectives. Managers, supervisors, and employees are expected to work together to achieve those goals and objectives.

1. Responsibilities of Managers/Supervisors

1. Developing performance expectations
2. Assigning work and establishing deadlines
3. Determining training needs
4. Evaluating performance
5. Rewarding achievement
6. Taking corrective action

2. Responsibilities of Employees

1. Meeting expectations
2. Performing assigned tasks capably and on time
3. Staying current in the skills required for their classification
4. Keeping their supervisors informed about job-related activities
5. Complying with the rules of the workplace and conducting themselves appropriately

B. EARLY PROBLEM RESOLUTION

1. Employees and Supervisors

When an employee is concerned about a working condition, job safety, rate of pay, job classification, or other matters pertaining to his or her employment at the Laboratory, that employee should contact his or her supervisor. When an employee seeks such counsel, the supervisor should try to help resolve the problem in a reasonable manner. Supervisors should try to prevent the escalation of employee issues by advising and counseling their employees in the early stages of potential problem situations. See also Paragraph (G) (Employee Assistance Program).

2. Labor Employee Relations

When a supervisor or employee has difficulty resolving a work-related problem, the area Human Resources (HR) Center can provide assistance. The staff of the HR Centers, with the support of the Labor Employee Relations (LER) Unit of the Human Resources Department, are qualified to provide assistance resolving these problems. They may:

1. Provide guidance to employees and/or supervisors on possible methods to solve work-related problems. This guidance is provided with the objective of achieving a solution that is workable and consistent with the satisfactory performance of the duties to which the employee has been or may be assigned.
   
2. Provide guidance to supervisors on options that may be taken when an employee's performance or conduct does not improve, consistent with Laboratory and University policy and good employee relations.
   
3. Advise employees of their rights when an employee believes that he or she has been treated inappropriately.
   
4. Refer employees and supervisors to University or Laboratory employee assistance services.

C. CORRECTIVE ACTION AND DISMISSAL

1. Policy

1. A corrective action may be initiated when an employee fails to meet employment-related standards of conduct or performance including, but not limited to, inattention to duty; failure to follow directions; unsatisfactory performance; insubordination; absenteeism; tardiness; violation of law or Laboratory/University regulations; dishonesty, theft, or misappropriation of public funds or property; timecard falsification; fighting on the job; acts endangering others; gambling; or possession of firearms or explosives. Corrective action can take the form of a written warning, salary decrease, demotion, suspension without pay, or dismissal.


2. Oral warnings, Performance Improvement Plans (PIP), and counseling memos are not considered corrective actions.  In addition, they are not subject to the provisions of Paragraph (D) (Employee Complaint Resolution).


3. When corrective action is contemplated for a member of the Professional Research Staff, RPM §2.07 should be reviewed to determine if additional procedures are required.

2. Documentation

Documentation of corrective action should be entered in the employee's personnel file, and copies of such records should be sent to Human Resources–Labor Employee Relations (HR-LER). At the written request of the employee, records of a written warning will be removed from the employee's personnel file if, after two consecutive years, there has been no further conduct or performance of the same or a similar nature.

3. Authority to Take Corrective Action

1. Responsible Managers

Responsible managers are operations department heads, deputy division directors, and division directors and above (RPM §2.01(D)(3) (Laboratory Management)). Responsible managers, after consultation with HR-LER, may take or authorize corrective action, including dismissal, in accordance with this policy. Supervisors are authorized to issue written warnings. Authorization to take or authorize all other corrective action or dismissal lies exclusively with the responsible manager in consultation with HR-LER.

2. Supervisor Authority


1. Written warnings may be issued by a supervisor after consultation with HR-LER.


2. A supervisor may immediately place an employee on investigatory leave only in those cases where it is desirable and appropriate to have the employee leave the worksite immediately. Appropriate circumstances include, but are not limited to the following: the employee’s continued presence on the job may result in the disruption of operations, may impair the investigation, may result in attempted destruction or sabotage, or may be considered a threat to others or him/herself; or the employee appears visibly impaired as to not being able to continue to perform satisfactorily. (See RPM 2.05(C)(4) (Investigatory Leave)).


3. A supervisor may not take any other corrective action without prior approval of the responsible manager and consultation with HR-LER.

4. Investigatory Leave   

1. An employee may be placed on investigatory leave with pay, usually for a period not to exceed 15 calendar days, while a review or investigation is conducted based on alleged actions including, but not limited to, the employee’s continued presence on the job may result in disruption of operations, may impair the investigation, may result in attempted destruction or sabotage, may be considered a threat to others or his/her self, or the employee appears visibly impaired as to not be able to continue to perform satisfactorily.


2. Except as stated in Paragraph (C)(3)(b)(ii) (Supervisor Authority) above, a decision to place an employee on investigatory leave may only be made by a responsible manager and after consultation with HR-LER. The leave must be confirmed in writing to the employee, normally no later than five calendar days after the effective date of the leave. The notice must include the reasons for the leave and its expected duration.


3. The decision to place an employee on investigatory leave is not a corrective action. In addition, it is not subject to the provisions of Paragraph (D) (Employee Complaint Resolution).

5. Written Warnings

A written warning is the first step of corrective action. At least one written warning should normally precede any further corrective action, except when corrective action is the result of performance or conduct that an employee knows or reasonably should have known was unsatisfactory. Written warnings must describe: (a) the nature of the offense or deficiency; (b) the method or methods of correction; (c) the probable action to be taken if the offense is repeated or the deficiency persists; and (d) the employee’s right to appeal the written warning under Paragraph (D) (Employee Complaint Resolution).

6. Corrective Action Other Than Written Warnings and Dismissals

1. Written Notice of Intent to Take Corrective Action Other Than Written Warnings and Dismissals

For corrective action other than written warnings and dismissals, the responsible manager must provide the employee with written notice of intent to take such action before the effective date. This notice must (a) state the intended corrective action, its reason, and the proposed effective date; (b) include a copy of the charges and materials on which the corrective action is based; and (c) state that the employee has the right to respond either orally or in writing within ten calendar days from the date of issuance; and (d) specify to whom the response must be made.

2. Written Notice of Corrective Action Other Than Written Warnings and Dismissals

After the employee's response or 10 calendar days from the date of issuance (whichever comes first), the employee must be notified in writing of the responsible manager's decision. If the responsible manager determines that corrective action is not appropriate, the responsible manager must inform the employee of this fact and state what other action, if any, will be taken. If the responsible manager determines that the corrective action, or a modification thereof, is appropriate, the employee will be notified of the action, the effective date, and advised of his/her right to appeal the action.

7. Dismissal of Nonprobationary Career and Term Employees

Nonprobationary career and term employees may be dismissed for reasons set forth in Paragraph (C)(1)(a) (Corrective Action and Dismissal/Policy). See RPM §2.21(C) for dismissal of non-career employees. Dismissal is normally preceded by some form of corrective action unless the unsatisfactory performance or misconduct is so serious as to warrant immediate dismissal.

1. Written Notice of Intent to Dismiss

A written notice of the intent to dismiss must be given to the employee by a responsible manager, and must (1) state the reason for the intended dismissal; (2) include a copy of the charges and materials on which the intent to dismiss is based; (3) state that the employee has the right to respond either orally or in writing within 10 calendar days from date of issuance; (4) specify to whom the response must be made; and (5) specify the proposed effective date of the dismissal, which must be at least 10 calendar days from the date of the notice of intent to dismiss.

2. Written Notice of Dismissal

After the employee's response or 10 calendar days from date of issuance (whichever comes first), the employee must be notified in writing by the responsible manager of his or her decision. If the responsible manager determines that dismissal is not appropriate, he or she must inform the employee of this fact and state what other action, if any, will be taken. If the responsible manager determines that dismissal is appropriate, the employee will be so notified. The notice must (1) specify the effective date of dismissal, (2) state the reason for dismissal, and (3) state the employee’s right to appeal. If an employee was absent from work without approval during the 10 calendar days for response to the notice of intent or any subsequent days up to and including the day of dismissal, the days absent are without pay.

D. EMPLOYEE COMPLAINT RESOLUTION

1. Policy

It is the policy of the Laboratory to encourage and facilitate the resolution of employee complaints in a prompt and equitable manner. An employee should first attempt to resolve a complaint with his/her immediate supervisor. An employee may also attempt to resolve a complaint with the assistance of the Ombudsman Program. Efforts to resolve the matter informally, however, do not extend the deadline for filing a written request for formal review.

2.  Scope

1. A formal complaint is defined as:


1. A claim by an individual employee regarding a specific management act that is alleged to have adversely affected the employee's existing terms and conditions of employment, or


2. A claim by an individual employee that he/she has been adversely affected by a management action in violation of a provision of the Laboratory's Regulations and Procedures Manual (RPM) (LBNL/PUB-201).


2. No formal complaint filed under this Employee Complaint Resolution policy may raise or contest any of the following actions or issues:


1. Classification of a position, salary ranges, or the percent change in the employee’s salary as a result of the annual salary review process or a reclassification.


2. Management actions that are within the scope and authority of management responsibilities and rights including, but not limited to, hiring decisions or other similar employment-related actions, temporary work deferment and temporary reduction in time decisions, decisions to reorganize and reassign work, funding or not funding projects, or decisions to support a particular research effort.


3. An employee’s performance evaluation unless the overall rating is less than “Acceptable,” as defined in the then-current performance review process.


4. As otherwise set forth in the RPM as not being subject to this Employee Complaint Resolution Policy.

Concerns or inquiries regarding these issues may be submitted to the Head of Human Resources for consideration.

3. The Head of Human Resources will determine whether a complaint is within the scope of this Complaint Resolution Policy. An employee may appeal this decision to the University of California, Office of the President, Office of Employee Relations, which has the final responsibility for determining whether a complaint is within the scope of this policy. An appeal to the Office of the President shall include copies of the original grievance and related documents, and shall be received within 20 calendar days of the date of the local decision.

3. Eligibility

The right to submit a formal complaint under this policy is provided to all career and term employees covered by the RPM from the beginning of employment, with the following exceptions:

1. Employees required to serve a probationary period cannot submit a complaint concerning release during their probationary period.


2. Senior managers whose appointments are "at will" cannot submit a complaint concerning termination of the appointment (see RPM §2.01(D)(3) (Laboratory Management)).


3. Employees in term appointments cannot submit a complaint concerning termination at the end of their appointment.

Employees who are not eligible to file a formal complaint may raise allegations of discrimination and/or allegations of retaliation for participating in the complaint resolution process up to Step II of the formal process.

4. Time Limits

Time limitations set forth below are expressed in calendar days unless otherwise noted. The Laboratory's annual winter holiday shutdown period automatically extends the time limit by the length of the shutdown. If the employee complaint is not appealed to the next step of the procedure within the applicable time limits, and an extension has not been agreed to in advance, the complaint will be considered resolved on the basis of the last Laboratory management response and shall be considered ineligible for further appeal.

Issues regarding timeliness of the initial filing of the complaint and any response/action required by the employee or management will be determined by the Head of Human Resources. An employee may appeal this decision to the University of California, Office of the President, Office of Employee Relations, which has the final responsibility for determining whether a complaint is within the time limits of this policy. An appeal to the UC Office of the President shall include copies of the original grievance and related documents, and shall be received within 20 calendar days of the date of the local decision.

5. Informal Review

An employee who has a complaint should discuss it with his or her immediate supervisor or the next higher level of management in order to provide a reasonable opportunity to resolve the complaint informally. Various problem-solving options might be used to facilitate informal resolution. HR-LER can assist employees and supervisors in their efforts to informally resolve problems. Efforts to resolve the dispute informally do not extend the required 30-calendar-day filing date. However, if an informal solution is actively being pursued and it appears that such a solution may resolve the dispute, the time period for appeal to Step I of the Formal Review Process may be extended for an additional 30 calendar days if approved in writing by the Head of Human Resources.

An employee who has a question concerning the interpretation or application of Laboratory or University personnel policies, including those related to employee rights, nondiscrimination, working conditions, or other personnel matters, is encouraged to consult with his or her supervisor, responsible manager, the HR Center, or HR-LER, and in the case of the Laboratory policy on nondiscrimination (RPM §2.01(A) (Nondiscrimination and Affirmative Action)), the Manager, Equal Employment Opportunity/Affirmative Action (EEO/AA).

6. Formal Review

1. General Provisions


1. Representation. An employee may be self-represented or represented by another person at any stage of the formal review of a complaint. The responsible manager may be represented by Laboratory Counsel, the University of California Office of the General Counsel, or otherwise as the Laboratory Counsel deems appropriate.


2. Retaliation. No employee shall be subject to retaliation for using or participating in the complaint resolution process.


3. Time Limits. It is the intent of the Laboratory to complete the complaint resolution process in a timely manner. However, when circumstances warrant, the time limits may be extended by the Head of Human Resources. It is the intent that the process be completed through Step II within 60 calendar days, and the appeal be completed through Step III within the time frame stated below. The process to select the Hearing Officer in Step III should be accomplished within 30 calendar days of the appeal to Step III. The Laboratory and the employee or the employee's representative should secure the earliest practicable hearing date from the Hearing Officer. The Hearing Officer will be requested to issue his/her decision or report within 30 calendar days of the close of the hearing. When the Hearing Officer’s report is advisory to the Director, the Director should issue the final decision within 30 calendar days of receipt of the report and recommendation. (See Paragraph (D)(6)(d) (Step III: Appeal to a Hearing).) As stated above, once a complaint has been filed on a timely basis, the Head of Human Resources may extend any subsequent time limit in the complaint resolution process. Such extension(s) must (1) be in writing, (2) include the reason for the extension, and (3) be given to the employee and the responsible manager.


4. Computation of Time Limits. Any time limit, including the original filing time limit that expires on a Saturday, Sunday, administrative holiday, or other nonworking day observed by the Laboratory will be extended to the next scheduled working day.


5. Pay Status for Time Spent in Complaint Resolution. The responsible manager will approve requests for reasonable time off with pay during scheduled working hours for an employee and/or an employee's representative (if the representative is a Laboratory employee, and such representation is not paid for by the employee filing the complaint or by others) for time spent in informal resolution of a complaint, investigating a complaint, and presenting a grievance complaint at a formal hearing. Time spent by the employee or the representative in the above activities outside scheduled working hours is without pay. Time spent by an employee and/or an employee’s representative in preparing for the various steps of the complaint resolution procedure (e.g., preparation of documents, preparing testimony, investigation) is unpaid.  An employee who serves as a witness will be on pay status while testifying at a hearing. In addition, the responsible manager must grant reasonable time off with pay during scheduled working hours to an employee-witness for other meetings related to resolution of an employee complaint; however, an employee-witness's time spent outside of scheduled working hours, other than testifying at a hearing, will be without pay.


6. Informal Resolution. Informal resolution of a complaint may be agreed to by the employee and responsible manager at any stage of the complaint resolution process.


7. Review and Appeal. All complaints that are within the scope of this policy are eligible for review through Steps I and II. Only those complaints listed in Paragraph (D)(6)(d)(ii), below, can be appealed to Step III.


8. Termination of Complaint Resolution Procedure.  If the employee resigns prior to the completion of the complaint resolution procedure, the process ends regardless of the stage.  If one or more employees in a complaint resolution procedure terminates voluntarily or resigns prior to the end of the procedure, the process continues only for the remaining employees.


2. Step I: Appeal to the Responsible Manager


1. Complaints that are within the scope of Paragraph (D) (Employee Complaint Resolution) must be submitted in writing to the Manager, HR-LER, for transmittal to the responsible manager. The complaint must be filed within 30 calendar days of the date on which the employee knew or could reasonably be expected to have known of the event or action that gave rise to the complaint, or within 30 calendar days after the last day of employment, whichever occurs first. A former employee separated by layoff who is eligible for recall or preference for reemployment as provided in RPM §2.21(B)(9) (Reemployment from Layoff) may file a complaint alleging violations of the recall or preference for reemployment provisions within 30 calendar days after the date on which the employee knew or could be reasonably expected to know of the alleged violation.


2. When a complaint alleges sexual harassment, the complainant may elect to substitute the University of California Procedures for Responding to Complaints of Sexual Harassment (Paragraph E) to attempt to resolve the issue. The complaint is considered to be filed in a timely manner if it is filed within 30 calendar days after the alleged incident or action occurred. If the attempt to resolve the complaint is unsuccessful, the complainant may proceed to Step II of this procedure.


3. The written complaint must describe the specific actions that are requested for review, the specific provisions of the RPM alleged to have been violated, the manner in which it was violated, how the employee was adversely affected, and the specific remedy requested.


4. The responsible manager must provide a written decision to the employee within 21 calendar days unless the deadline is extended by the Head of Human Resources under the conditions stated in Paragraph (D)(6)(a)(iii), above.


5. If the responsible manager does not respond within the stated deadline or extension thereof, or the employee does not agree with the decision, the employee has the right to appeal to Step II of the Complaint Resolution Policy.


3. Step II: Appeal to the Associate Laboratory Director for Operations


1. If the employee elects to appeal the responsible manager's decision, the employee must submit a written appeal to the Manager, HR-LER, within 15 calendar days of receipt of the responsible manager's decision or the date the decision was due. The appeal must specify the aspects of the complaint that have not been resolved by the decision of the responsible manager, and specifically state the issues that are being appealed in Step II.


2. If the issues under review are not eligible for appeal to Step III, the Associate Laboratory Director for Operations (ALDO) or the employee may request an Independent Party Reviewer (IPR). The IPR will conduct fact-finding and, if asked by the ALDO, make recommendations regarding the complaint and requested remedies. The IPR is selected by the ALDO. The employee and the management representative shall have an opportunity to meet with and present information directly to the IPR. The IPR may engage in further review and investigation as he/she deems necessary and appropriate. After the conclusion of the IPR review, the IPR will submit his/her report to the ALDO. The ALDO will consider the report of the IPR and other relevant information, and will issue a written decision to the employee and the responsible manager. The decision of the ALDO is final for all complaints that are ineligible for Step III.


3. An employee may elect to have an IPR review his/her complaint even though it is eligible for appeal to Step III. If this occurs, the decision of the ALDO is final, and the complaint cannot be appealed to Step III, as set forth in Paragraph (D)(6)(d)(ii), below.


4. If a complaint filed under this section involves an action initiated by the ALDO, the Deputy Director will have the authority for the Step II process and any required appointments or decisions. If the complaint involves an action taken by the Laboratory Director, it will be forwarded to the University of California, Office of the President, for final resolution.


4. Step III: Appeal to a Hearing


1. If the employee elects to appeal the ALDO’s decision for matters that are eligible for appeal to Step III, the employee shall submit a written appeal to the Manager, HR-LER, within 15 calendar days of receipt of the ALDO’s decision. The appeal shall specify the aspects of the complaint that have not been resolved by the ALDO, and specifically state the issues that are being appealed in Step III of this process.


2. Complaints not satisfactorily resolved at Step II that allege specific violations of personnel policies listed below may be appealed in writing to the Step III hearing process. The appeal will be heard by a Hearing Officer.

(a) Final and Binding Hearing. The Hearing Officer will render a final and binding decision when the issue reviewed under this policy alleges violations of the following policies:

(1) Discriminatory practices as listed in RPM §2.01(A) (Nondiscrimination and Affirmative Action) pertaining only to an alleged discriminatory application of a personnel policy listed below in this section.
(2) Hours of Work
(3) Overtime
(4) Shift and Weekend Differential
(5) Holidays
(6) Vacation (except the scheduling of a vacation)
(7) Sick Leave
(8) Leave of Absence
(9) Corrective action and dismissal as defined in Paragraph (C) (Corrective Action and Dismissal Policy), and the employee had nonprobationary career or term status at the time the complaint was filed.
(10) Medical separation.
(11) Layoff or reduction in time for career employees pertaining only to the notice, order of layoff, recall, or preference for reemployment provisions in RPM §2.21(B). The management decision to implement a layoff or reduction in time is not subject to any provisions of this complaint resolution policy.
(12) Retaliation for utilizing the complaint resolution process.

(b) Advisory Hearings. The Hearing Officer will render an advisory decision and recommendation to the Laboratory Director, who will render a final and binding decision for the following two issues:

(1)  Harassment as defined in RPM §2.01(A)(b)(B), the University of California Policy on Sexual Harassment (Anti-harassment Policy).

(2)  Retaliation for filing an allegation of improper government activity (whistleblower), filing an allegation of discrimination or harassment, or filing an allegation of scientific misconduct. See also RPM 2.05(K) (Protection of Whistleblowers from Retaliation, and Guidelines for Reviewing Complaints (Whistleblower Protection Policy)).

3. Hearing Process

(a) Selection of the Hearing Officer

(1) The Laboratory will maintain a list of professional non-University hearing officers. These hearing officers will hear all Step III appeals. The cost of these Laboratory/University hearing officers will be borne by the Laboratory. The responsible manager and the employee or their representative(s) will select a hearing officer by striking names of available members on the list until a hearing officer is selected. The determination of who strikes first will be determined by the toss of a coin.

(2) As an alternative to the procedures set forth directly above, the employee may elect, in writing, that the hearing be heard by a non-University hearing officer selected from a list other than that maintained by the Laboratory. The Laboratory shall obtain a list of five names of prospective non-University hearing officers from the Federal Mediation and Conciliation Service (FMCS) who (1) are National Academy of Arbitrators (NAA) members and (2) reside in or geographically serve the Berkeley Lab locale. Using this list, the responsible manager and the employee or their representative(s) will select a hearing officer by striking names of available members on the list until a hearing officer is selected. The determination of who strikes first will be determined by the toss of a coin.

The election of this alternative non-University hearing officer selection procedure may result in a cost to the employee. If the issue is one in which the decision of the hearing officer is final and binding, the fees will be borne equally by the Laboratory and the employee. If the issue is one in which the hearing officer makes a recommendation to the Laboratory Director:

• The fees and costs of the hearing officer will be borne equally by the Laboratory and the employee if the Laboratory Director accepts the recommended decision of the hearing officer.


• If the Laboratory Director rejects or substantively changes a recommended decision of a hearing officer under this section, the fee will be borne by the Laboratory.

(b) The hearing process provides an opportunity for the employee and the responsible manager or their representatives to examine witnesses and submit relevant evidence. See Paragraph (D)(6)(a)(i) (Representation). Each party will provide the other with the documents and other materials that it intends to use at the hearing, and the names of all witnesses who are to be called to testify at the hearing. This material-and-witness list should be provided at least 14 calendar days before the hearing.

(c) The hearing will be closed to nonparticipants.

(d) The hearing will be recorded unless a stenographic record is prepared. A copy of the recording tapes will be given to the employee. Either party may make provisions for a stenographic record of the hearing, subject to payment of the cost, or the parties may agree in advance to share the expense of a stenographic record.

4. Responsibility and Authority of the Hearing Officer

(a) The Hearing Officer will:

(1)  Identify the issues submitted in the original written complaint for hearing.
(2)  Conduct a hearing to determine the facts and whether the management action that resulted in the complaint was in violation of Laboratory policies or procedures, or if the complaint involves corrective action or dismissal, and whether the management action was reasonable under the circumstances.
(3)  Submit a written hearing report. If the nature of the decision is advisory, the report will be provided to the Laboratory Director.  If the decision is final and binding, the report will be provided to the employee filing the complaint, the manager, HR-LER, and the Responsible Manager.

(b) The hearing report will include a description of the following:

(1)  Each incident or management action that resulted in the complaint.
(2)  Each issue under submission.
(3)  The positions of the parties.
(4)  The findings of fact and any policy violations.  Findings of fact must be supported by the evidence, and the decision, whether final and binding or recommended, must be supported by the findings.

(c) The Hearing Officer will have authority to issue a final and binding decision for complaints related to issues listed in Paragraph (D)(6)(d)(ii)(a). For all other complaints, the Hearing Officer will have authority to issue an advisory recommendation only. The advisory recommendation will be made to the Laboratory Director.

(d) The Hearing Officer shall have no authority to depart from, or otherwise modify, Laboratory or University personnel policies.

(e) If the management action under review is determined to be in violation of Laboratory policy or if the corrective action or dismissal is determined not to be reasonable under the circumstances, the remedy shall not exceed restoring to the employee the pay, benefits, or rights lost as a result of the action, less any income earned from any other source or any other employment.

(f) Except by mutual agreement of both parties, no new issues may be added to a complaint or introduced at a hearing that were not included in the original written complaint.

(g) The resolution of an employee complaint must be in accordance with Laboratory policies. Any decision, whether recommended or final and binding, that involves an exception to Laboratory or University policy requires the prior approval of the Office of the President of the University of California.

5. Decision of the Laboratory Director

A recommended decision of a hearing officer will be accepted, rejected, or modified by the Laboratory Director within 15 calendar days after receipt. The decision of the Laboratory Director is final and binding for those issues as identified in Paragraph (D)(6)(d)(ii)((b)). The decision will be made in writing and forwarded to the parties with a copy of the hearing officer’s report.

6. General Hearing Provisions

(a) Similar Complaints. When agreed upon by the employees and Laboratory before the hearing, individual complaints of two or more employees may be included in one hearing when the complaints were caused by the same action. All complaints from one employee that relate to a single incident or issue must be included in one hearing.

(b) Jurisdiction. An employee is subject to the hearing procedures of the campus or facility where the action that resulted in the complaint occurred, or as approved by the University of California, Office of the President, Office of Employee Relations.

(c) Facilities. HR-LER will be responsible for making all physical arrangements, including tape recording of the hearing, providing staff and clerical assistance to the hearing officer as required, ensuring that all parties are advised of procedural requirements, and keeping the calendar record of the complaint process.

(d) HR-LER will receive copies of all reports and documents pertaining to the complaint and will be the official custodian of the complete files and tapes.

E. UNIVERSITY OF CALIFORNIA PROCEDURES FOR RESPONDING TO REPORTS OF SEXUAL HARASSMENT

NOTE: These procedures are reproduced exactly as they appear in the University of California Procedures for Responding to Reports of Sexual Harassment and, consequently, use the UC numbering system.

NOTE: When the following UC procedures refer to Appendix I: University Complaint Resolution and Grievance Procedures, there will also be a link to RPM §2.05(D) (Employee Complaint Resolution). This is the complaint resolution procedure for non-represented Laboratory employees. When the following UC procedures refer to Appendix II: University Disciplinary Procedures, there will also be a link to RPM §2.05(C) (Corrective Action and Dismissal), which is the Corrective Action policy for non-represented Laboratory employees. The policies contained therein are the approved Human Resources policies for Lawrence Berkeley National Laboratory nonrepresented employees. Represented employees should refer to their collective bargaining agreements for applicable policies.

NOTE: Laboratory specific information may be found here.

F. VIOLENCE IN THE WORKPLACE

1. Policy

It is the policy of the Laboratory to create and maintain a community in which we can work together in an atmosphere of respect and civility, free of harassing and threatening behaviors. Laboratory policies are designed to protect and promote the rights of members of the Berkeley Lab community and to prevent actions that interfere with those rights and with the Laboratory's mission. Any threat or violent act by an individual associated with Berkeley Lab, including any employee, contractor, guest, or student, will be considered serious misconduct and may be the basis for disciplinary action or dismissal. Such an act may be reported to local law enforcement officials for appropriate action.

2. Crisis Action Team

To assist managers and individuals in assessing situations involving workplace violence, the Laboratory has established a Crisis Action Team (CAT), composed of Berkeley Lab and University of California, Berkeley, campus units with special expertise and professional training. These units work together to deal with verbal and physical behaviors perceived as disruptive, intimidating, threatening, or violent. CAT helps clarify the management of situations (including legal and psychological issues), coordinates communication, and monitors resolution of incidents.

3. Immediate Assistance

If an employee believes he or she needs assistance, he or she should call the Manager of Labor/Employee Relations. If he or she is experiencing an immediate threat, he or she should dial 7911 (or 9-911 from a campus phone).

G. EMPLOYEE ASSISTANCE PROGRAM

1. Policy

The Laboratory's policy is to ensure that employees are offered confidential assistance in resolving such problems as alcoholism, drug abuse, emotional disturbances, or legal, family, and financial difficulties. The Laboratory recognizes that these problems can have a negative impact on job performance that is beyond the ability of supervisors or managers to resolve. An eligible employee who is dealing with any of these problems is encouraged to utilize the Laboratory's Employee Assistance Program (EAP). The EAP is an off-site program provided by the University of California Health Center (the Tang Center) on the Berkeley campus. Employees and managers who are seeking employee-assistance services may contact the University of California Berkeley Employee Assistance Program directly. Eligible employees are those holding career, term, limited, rehired retiree, or non-University of California student-assistant appointments. Employees who hold University of California faculty or GSRA appointments, or are student assistants attending a University of California campus, must use their campus Employee Assistance Program or health benefits.

Employees are assured that self-initiated contacts made with the Laboratory's EAP are kept in strict confidence in accordance with prevailing federal requirements and Laboratory policy on confidential personal health records. The EAP will not contact management concerning employees who refer themselves unless the employee so requests.

Employees participating in the EAP are required to meet job performance standards. Program participation is voluntary and will not affect future employment or career advancement.

2. Responsibility

1. Supervisor. When an employee's work performance is being adversely affected by a personal problem, the supervisor may refer the employee to the EAP for consultation. The supervisor will also inform the employee of the consequences of unresolved work-performance concerns.
   
2. Employee Assistance Program (EAP). EAP services provide consultation to the employee and/or the referring supervisor, problem assessment, referral of the employee to outside resources, if required, and ongoing follow-up for problem resolution.
   
3. Employee. Employees are responsible for performing their jobs in a satisfactory manner. Seeking assistance from the EAP for personal problems that are interfering with work performance may help the employee meet this responsibility.

H. REASONABLE ACCOMMODATION (Note: The Reasonable Accommodation policy has been moved to §2.01(B)(4).)

I. RESEARCH MISCONDUCT (revised 2/28/08)

1. Introduction

All persons engaged in research at the Laboratory are responsible for adhering to the highest standards of research integrity.  Activities that fall short of the basic ethical principles inherent in the research process undermine the scientific enterprise.  As an institution engaged in research, the Laboratory has a responsibility for investigating allegations of research misconduct fairly, effectively, and expeditiously.  This policy sets forth the principles and methods for assessing allegations of research misconduct, conducting inquiries and investigations related to possible research misconduct, and reporting the results to responsible federal and non-federal funding agencies.

Research misconduct means

• fabrication (making up data or results and recording or reporting them),


• falsification (manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record), or


• plagiarism (appropriation of another person’s ideas, processes, results, or words without giving appropriate credit)

in proposing, performing, or reviewing research, or in reporting research results.

Honest error or differences of opinion do not constitute research misconduct.

Under this policy, a finding of research misconduct requires that

• There has been a significant departure from accepted practices of the relevant research community, involving fabrication, falsification or plagiarism;


• The misconduct was committed intentionally, knowingly, or recklessly; and


• The allegation has been proven by a preponderance of the evidence.

The Laboratory Director has delegated authority and responsibility for decisions made under this policy to the Deputy Director (Deciding Official). The head of the Research and Institutional Integrity Office serves as the Research Integrity Officer (RIO) and is responsible for implementing the procedures described in this policy.

2. Scope

1. While this policy is intended to carry out the Laboratory’s responsibilities under the rules of several federal agencies, it applies to all research conducted at the Laboratory regardless of funding source.


2. This policy applies to allegations of research misconduct (fabrication, falsification, or plagiarism in proposing, performing, or reviewing research or in reporting research results) (see Paragraph (I)(1) (Introduction)) involving:


1. A person who, at the time of the alleged research misconduct, was employed by, was an agent of, or was affiliated by contract or agreement with the Laboratory; i.e., employees, guests, collaborators, students, consultants, and subcontractors (collectively referred to as Laboratory members for purposes of this policy).


2. any research proposed, performed, reviewed, or reported, or any research record generated from the research, regardless of whether an application or proposal for funds resulted in a grant, contract, cooperative agreement, or other form of support.


3. With regard to Public Health Service (PHS)–funded research, this policy specifically includes:

(a)  applications or proposals for support for biomedical or behavioral extramural or intramural research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information;

(b)  PHS-supported biomedical or behavioral extramural or intramural research;

(c)  PHS-supported biomedical or behavioral extramural or intramural research training programs;

(d)  PHS-supported extramural or intramural biomedical or behavioral activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; and

(e) plagiarism of research records produced in the course of research, research training or activities related to that research or research training

3. This policy does not apply to authorship or collaboration disputes and applies only to allegations of research misconduct that occurred within six years of the date the Laboratory received the allegation, subject to the following exceptions:


1. Subsequent use.  The respondent continues or renews any incident of alleged research misconduct that occurred before the six-year limitation through the citation, republication or other use for the potential benefit of the respondent of the research record that is alleged to have been fabricated, falsified, or plagiarized (see Paragraph (I)(1) (Introduction)).


2. Health or safety of the public exception.  If the funding agency or Laboratory, following consultation with the funding agency, determines that the alleged misconduct, if it occurred, would possibly have a substantial adverse effect of the health or safety of the public.


3. “Grandfather” exception.  If the funding agency or the Laboratory received the allegation or research misconduct before May 17, 2005.

3. Definitions

1. Allegation means a disclosure of possible research misconduct through any means of communication. This disclosure may be by written or oral statement or other communication to the Laboratory or a funding official.


2. Complainant means a person who in good faith makes an allegation of research misconduct.


3. Conflict of interest means the real or apparent potential bias that may occur due to prior or existing personal, financial, or professional relationships.


4. Deciding Official (DO) means the Laboratory official who makes final determinations on allegations of scientific misconduct and any responsive Laboratory actions. The Laboratory’s Deputy Director is the Deciding Official.


5. Evidence means any document, tangible item, or testimony offered or obtained during a research misconduct proceeding that tends to prove or disprove the existence of an alleged fact.


6. Funding agency / sponsoring agency means the source(s) of the funds under which the research was conducted. See Paragraph (I)(4)(a)(iii) for agency-specific information.


7. Good faith means having a belief in the truth of one’s allegation or testimony that a reasonable person in the complainant’s or witness’s position could have, based on the information known to the complainant or witness at the time. An allegation or cooperation with a research misconduct proceeding is not in good faith if made with knowing or reckless disregard for information that would negate the allegation or testimony. Good faith as applied to a committee member means impartially and honestly carrying out the duties assigned under this policy.  A committee member does not act in good faith if his/her acts or omissions on the committee are dishonest or influenced by personal, professional, or financial conflicts of interest with those involved in the research misconduct proceedings.


8. Inquiry means gathering information and initial fact-finding to determine whether an allegation or apparent instance of scientific misconduct warrants an investigation.


9. Investigation means the formal development of a factual record and the examination of that record leading to a decision not to make a finding of research misconduct or to a recommendation for a finding of research misconduct.


10. Preponderance of the evidence means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.


11. Research Integrity Officer (RIO) means the Laboratory official responsible for implementing the procedures described in this policy.  The Laboratory’s RIO is the Research and Institutional Integrity Manager.


12. Research means a systematic experiment, study, evaluation, demonstration or survey designed to develop or contribute to general knowledge (basic research) or specific knowledge (applied research) in all fields of science, medicine, engineering, and mathematics, including, but not limited to, research in economics, education, linguistics, medicine (relating broadly to public health by establishing, discovering, developing, elucidating or confirming information about, or the underlying mechanism relating to, biological causes, functions or effects, diseases, treatments, or related matters to be studied), psychology, social sciences statistics, and research involving human subjects or animals.


13. Research record means the record of data or results that embody the facts resulting from scientific inquiry, including but not limited to, research proposals, laboratory records, both physical and electronic, progress reports, abstracts, theses, oral presentations, internal reports, journal articles, and any documents and materials provided to the funding agency or Laboratory official by a respondent in the course of the research misconduct proceeding.


14. Respondent means the person against whom an allegation of research misconduct is directed or who is the subject of a research misconduct proceeding.


15. Retaliation means an adverse action taken against a complainant, witness, or inquiry appointee or committee member, or investigation committee member by the Laboratory or one of its members in response to


1. A good faith allegation of research misconduct; or


2. Good faith cooperation with or participation in a research misconduct proceeding

4. Roles, Rights and Responsibilities

1. Laboratory


1. The Laboratory will respond to each allegation of research misconduct in a thorough, competent, objective, and fair manner, including taking precautions to ensure that individuals responsible for carrying out any part of the research misconduct proceeding do not have unresolved personal, professional, or financial conflicts of interest with the complainant, respondent, or witnesses.


2. The Laboratory will take all reasonable and practical steps to ensure the cooperation of complainants, respondents and other Laboratory members with research misconduct proceedings, including, but not limited to, their providing information, research records, and evidence.


3. The Laboratory will report to the appropriate office/official(s) of the funding agency sponsoring the research involved as required in this policy. Reports will be made to

   (a)  the appropriate contracting officer for Department of Energy (DOE) supported activities;

   (b)  the Office of Research Integrity (ORI) of the Department of Health and Human Services (HHS) for PHS-supported activities;

   (c)  the appropriate contracting officer or contracting officer’s technical representative for Environmental Protection Agency supported activities;

   (d)  the Office of the Inspector General (OIG) for National Aeronautics and Space Administration (NASA) supported activities; and

   (e)  for agencies not listed above, to the authority identified in the specific grant or contract.

   In cases where the research is supported by multiple agencies, the Laboratory will report to each agency.


2. Research Integrity Officer

The Research Integrity Officer (RIO) has primary responsibility for implementation of the Laboratory’s policies and procedures on research misconduct.  When performing any of the duties required in this policy, the RIO will consult with the responsible Division Director and other Laboratory scientific and/or institutional officials, as appropriate, or when specific expertise or assistance is needed.  The responsibilities of the RIO include the following duties related to research misconduct proceedings:  

1. Be available to consult with persons uncertain about whether to submit an allegation of research misconduct;


2. Receive allegations of research misconduct


3. Assess each allegation of research misconduct in accordance with Paragraph (I)(6)(a) (Assessment of Allegations) of this policy to determine whether it falls within the definition of research misconduct (see Paragraph (I)(1) (Introduction) and warrants an inquiry;


4. As necessary, take interim action and notify the funding agency (see Paragraph (I)(4)(a)(iii)) of special circumstances, in accordance with Paragraph (I)(5)(f) (Interim Actions and Notifying the Funding Agency of Special Circumstances) of this policy;


5. Sequester research data and evidence pertinent to the allegation of research misconduct in accordance with Paragraph (I)(6)(c) (Notice to Respondent; Sequestration of Research Records) of this policy and maintain it securely in accordance with this policy and applicable law and regulation;


6. Provide confidentiality to those involved in the research misconduct proceedings as required by Paragraph (I)(5)(c) (Confidentiality) of this policy.


7. Notify the respondent and provide opportunities for him/her to review/comment/respond to allegations, evidence, and committee reports in accordance with this policy;


8. As appropriate or required by this policy, inform respondents, complainants, and witnesses of the procedural steps in the research misconduct proceeding;


9. Appoint the chair and members of the inquiry and investigation committees, ensure that those committees are properly staffed and that there is expertise appropriate to carry out a thorough and authoritative evaluation of the evidence;


10. Determine whether each person involved in handling an allegation of research misconduct has an unresolved personal, professional, or financial conflict of interest and take appropriate actions, including recusal, to ensure that no person with such conflict is involved in the research misconduct proceeding;


11. In cooperation with other Laboratory officials, take all reasonable and practical steps to protect or restore the positions and reputations of good faith complainants, witnesses, and committee members and counter potential or actual retaliation against them by respondents or other Laboratory members;


12. Keep the Deciding Official and others who need to know apprised of the progress of the review of the allegation of research misconduct;


13. Notify and make reports to the funding agency (see Paragraph (I)(4)(a)(iii)) as required by this policy.


14. Ensure that actions taken by the Laboratory and the funding agency are enforced and take appropriate action to notify other involved parties, such as sponsors, law enforcement agencies, and professional societies, and licensing boards of those actions, and


15. Maintain records of the research misconduct proceeding and make them available to the funding agency in accordance with Paragraph (I)(11)(c) (Maintaining Records for Review by the Funding Agency) of this policy.


3. Complainant

The complainant is responsible for making allegations in good faith, maintaining, confidentiality, and cooperating with the inquiry and investigation.   If the matter proceeds to an investigation, the complainant must be interviewed, and be given the transcript or recording of the interview for review and correction.  Individuals whose allegations of research misconduct are not made in good faith may be subject to Laboratory corrective (disciplinary) action up to and including dismissal from employment.

4. Respondent

The respondent is responsible for maintaining confidentiality and cooperating with the conduct of an inquiry and investigation.  The respondent is entitled to:

1. A good faith effort from the RIO to notify the respondent in writing at the time of or before beginning the inquiry;


2. An opportunity to comment on the draft inquiry report and have his/her comments attached to the inquiry report;


3. Be notified of the outcome of the inquiry, and receive a copy of the inquiry report that includes a copy of, or refers to the Laboratory’s policies and procedures on research misconduct.  In the case of an allegation of misconduct in research supported by PHS, the inquiry report must also include a copy of, or refer to, 42 CFR Part 93.


4. Be notified in writing of the allegations to be investigated within a reasonable time after the determination that an investigation is warranted, but before the investigation begins, and be notified in writing of any new allegations, not addressed in the inquiry or in the initial notice of investigation, within a reasonable time after the determination to pursue those allegations;


5. Be interviewed during the investigation, have the opportunity to review and correct the recording or transcript of the interview, and have the corrected recording or transcript included in the record of the investigation;


6. Have interviewed during the investigation any witness who has been reasonably identified by the respondent as having information on relevant aspects of the investigation, have the recording or transcript of the interview provided to the witness for review and correction, and have the corrected recording or transcript included in the record of investigation; and


7. Receive a copy of the draft investigation report and, concurrently, if requested, a copy of, or supervised access to the evidence on which the report is based, and be notified that any comments must be submitted within 30 calendar days of the date on which the copy was received and that the comments will be considered by the institution and addressed in the final report.

The respondent shall be given the opportunity to admit that research misconduct occurred and that he/she committed the research misconduct.  With the advice of the RIO and/or other Laboratory officials, the Deciding Official may terminate the Laboratory’s review of an allegation that has been admitted, if the Laboratory’s acceptance of the admission and any proposed settlement is approved by the funding agency.

5. Deciding Official

The DO will receive the inquiry report and after consulting with the RIO and/or other Laboratory officials, decide whether an investigation is warranted under the criteria set forth in this policy (see Paragraph (I)(8)(a)). Any finding that an investigation is warranted must be made in writing by the DO and must be provided to the funding agency, together with a copy of the inquiry report, within 30 calendar days of the finding.  If it is found that an investigation is not warranted, the DO and the RIO will ensure that detailed documentation of the inquiry is retained for at least 7 years after termination of the inquiry, so that the funding agency may assess the reasons why the Laboratory decided not to conduct an investigation.

The DO will receive the investigation report and, after consulting with the RIO and/or other Laboratory officials, decide the extent to which the Laboratory accepts the findings of the investigation and, if research misconduct is found, decide what, if any, Laboratory actions are appropriate.  The DO shall ensure that the final investigation report, the findings of the DO and a description of any pending or completed actions are provided to the funding agency, as required by Paragraph (I)(11)(b) (Notification to Funding Agency of Laboratory Findings and Actions) of this policy.

5.  General Policies and Principles

1. Responsibility to Report Misconduct

Laboratory members should report observed, suspected, or apparent research misconduct (see Paragraph (I)(1) (Introduction)) to the RIO or other appropriate Laboratory official.  If the Laboratory member makes his/her report to a Laboratory official other than the RIO, the report must be forwarded to the RIO.

If an individual is unsure whether a suspected incident falls within the definition of research misconduct, he/she may meet with or contact the RIO at RIO@lbl.gov to discuss the suspected research misconduct informally, which may include discussing it anonymously and/or hypothetically.  If the circumstances described by the individual do not meet the definition of research misconduct, the RIO will refer the individual or allegation to other offices or officials with responsibility for resolving the problem.

At any time, a Laboratory member may have confidential discussions and consultations about concerns of possible misconduct with the RIO and will be counseled about appropriate procedures for reporting allegations. The RIO will not be able to agree to a confidential discussion if the subject of the misconduct involves any of the conditions or special circumstances set forth in Paragraph (I)(5)(f) below.

2. Cooperation with Research Misconduct Proceedings

Laboratory members are required to cooperate with the RIO and other Laboratory officials in the review of allegations and the conduct of inquiries and investigations.  Laboratory members, including respondents, have an obligation to provide evidence relevant to research misconduct allegations to the RIO or other Laboratory officials.

3. Confidentiality

The RIO shall

1. limit disclosure of the identity of respondents and complainants to those who need to know in order to carry out a thorough, competent, objective and fair research misconduct proceeding;


2. except as otherwise prescribed by applicable law, limit the disclosure of any records or evidence from which research subjects might be identified to those who need to know in order to carry out a research misconduct proceeding.


4. Protecting Complainants, Witnesses, and Committee Members

Laboratory members may not retaliate in any way against complainants, witnesses, or committee members. Laboratory members should immediately report any alleged or apparent retaliation against complainants, witnesses or committee members to the RIO, who shall review the matter and, as necessary, make all reasonable and practical efforts to counter any potential or actual retaliation and protect and restore the position and reputation of the person against whom the retaliation is directed.

5. Protecting the Respondent

As requested and as appropriate, the RIO and other Laboratory officials shall make all reasonable and practical efforts to protect or restore the reputation of persons alleged to have engaged in research misconduct, but against whom no finding of research misconduct is made.

During the research misconduct proceeding, the RIO is responsible for ensuring that respondents receive all notices and opportunities provided for in this policy.  Respondents may consult with personal legal counsel or a non-lawyer personal adviser (who is not a principal or witness in the case) to seek advice and may bring the legal counsel or personal adviser to interviews or meetings on the case.  The role of legal counsel in such meetings or interviews is limited to providing advice, not representation, to the respondent.

6. Interim Actions and Notifying the Funding Agency of Special Circumstances

Throughout the research misconduct proceeding, the RIO will review the situation to determine if there is any threat of harm to public health, federal or state funds, and equipment, or the integrity of the funding agency’s supported research process.  In the event of such a threat, the RIO will, in consultation with other Laboratory officials and the funding agency, take appropriate interim action to protect against any such threat.  Such action might include additional monitoring of the research process and the handling of research funds and equipment, reassignment of personnel or of the responsibility for the handling of research funds and equipment, additional review of research data and results or delaying publication.  The RIO shall, at any time during a research misconduct proceeding, notify the funding agency immediately if he/she has reason to believe that any of the following conditions exist:

1. Health or safety of the public is at risk, including an immediate need to protect human or animal subjects;


2. Funding agency resources or interests are threatened;


3. Research activities should be suspended;


4. There is a reasonable indication of possible violations of civil or criminal law;


5. Funding agency action is required to protect the interests of those involved in the research misconduct proceeding;


6. The research misconduct proceeding may be made public prematurely and funding agency action may be necessary to safeguard evidence and protect the rights of those involved; or


7. The research community or public should be informed.

6.   Conducting the Assessment and Inquiry

1. Assessment of Allegations

Upon receiving an allegation of research misconduct, the RIO will immediately assess the allegation to determine whether it is sufficiently credible and specific so that potential evidence of research misconduct may be identified, whether it is within the jurisdictional criteria of Paragraph (I)(2) (Scope) of this policy, and whether the allegation falls within the definition of research misconduct in Paragraph (I)(1) (Introduction) of this policy.  An inquiry must be conducted if these criteria are met.

The assessment period should be brief, preferably concluded within a week.  In conducting the assessment, the RIO need not interview the complainant, respondent, or other witnesses, or gather data beyond any that may have been submitted with the allegation except as necessary to determine whether the allegation is sufficiently credible and specific so that potential evidence of research misconduct may be identified. The RIO shall, on or before the date on which the respondent is notified of the allegation, obtain custody of, inventory, and sequester all research records and evidence needed to conduct the research misconduct proceeding, as provided in Paragraph (I)(6)(c) of this section.

2. Initiation and Purpose of the Inquiry

If the RIO determines that the criteria for an inquiry are met, he/she will immediately initiate the inquiry process.  The purpose of the inquiry is to conduct an initial review of the available evidence to determine whether to conduct an investigation.  An inquiry does not require a full review of all the evidence related to the allegation.

3. Notice to Respondent; Sequestration of Research Records

At the time of or before beginning an inquiry, the RIO must make a good faith effort to notify the respondent in writing, if the respondent is known.  If the inquiry subsequently identifies additional respondents, they must be notified in writing.  On or before the date on which the respondent is notified, or the inquiry begins, whichever is earlier, the RIO must take all reasonable and practical steps to obtain custody of all the research records and evidence needed to conduct the research misconduct proceeding, inventory the records and evidence and sequester them in a secure manner, except that where the research records or evidence encompass scientific instruments shared by a number of users, custody may be limited to copies of the data or evidence on such instruments, so long as those copies are substantially equivalent to the evidentiary value of the instruments.  The RIO may consult with the funding agency for advice and assistance in this regard.

4. Appointment of an Individual (Appointee) or Committee to Conduct an Inquiry

The RIO, in consultation with other Laboratory officials as appropriate, will appoint an individual or committee (and committee chair) to conduct an inquiry as soon after the initiation of the inquiry as is practical.  The appointee or committee members must not have unresolved personal, professional, or financial conflicts of interest with those involved with the inquiry and should include individuals with the appropriate scientific expertise to evaluate the evidence and issues related to the allegation, interview the principals and key witnesses, and conduct the inquiry.

5. Charge to the Appointee or Committee and First Meeting

The RIO will prepare a charge for the appointee or committee that:

1. Sets forth the time for completion of the inquiry;


2. Describes the allegations and any related issues identified during the allegation assessment;


3. States that the purpose of the inquiry is to conduct an initial review of the evidence, including the testimony of the respondent, complainant and key witnesses, to determine whether an investigation is warranted, not to determine whether research misconduct definitely occurred or who was responsible;


4. States that an investigation is warranted if it is determined

(a)  there is a reasonable basis for concluding that the allegation falls within the definition of research misconduct and is within the jurisdictional criteria of Paragraph (I)(2) (Scope); and

(b)  the allegation may have substance, based on the committee’s review during the inquiry.


5. Informs the appointee or inquiry committee that they are responsible for preparing or directing the preparation of a written report of the inquiry that meets the requirements of Paragraph (I)(7)(a) (Elements of the Inquiry Report) of this policy.

At the first meeting with the appointee or committee, the RIO will review the charge, discuss the allegations, any related issues, and the appropriate procedures for conducting the inquiry, assist with organizing plans for the inquiry, and answer any questions raised.  The RIO will be present or available throughout the inquiry to advise as needed.

6. Inquiry Process

The inquiry process will normally include interviews of the complainant, the respondent and key witnesses as well as examining relevant research records and materials.  The evidence, including the testimony obtained during the inquiry will be evaluated.  After consultation with the RIO, the appointee or committee members will decide whether an investigation is warranted based on the criteria in Paragraph (I)(6)(e)(iv) (Charge to Appointee or Committee and First Meeting).  The scope of the inquiry is not required to and does not normally include deciding whether misconduct definitely occurred, determining definitely who committed the research misconduct or conducting exhaustive interviews and analyses.  However, if a legally sufficient admission of research misconduct is made by the respondent, misconduct may be determined at the inquiry stage if all relevant issues are resolved.  In that case, the RIO shall promptly consult with the funding agency to determine the next steps that should be taken.  See Paragraph (I)(12) (Completion of Cases: Reporting Premature Closure to the Funding Agency).  

7. Time for Completion

The inquiry, including preparation of the final inquiry report and the decision of the DO on whether an investigation is warranted, must be completed within 60 calendar days of initiation of the inquiry, unless the RIO determines that circumstances clearly warrant a longer period.  If the RIO approves an extension, the inquiry records must include documentation of the reasons for exceeding the 60-calendar day period. The respondent will be notified, in writing, of the extension.

7.   The Inquiry Report

1. Elements of the Inquiry Report

A written inquiry report must be prepared that includes the following information:

1. the name and position of the respondent;


2. names and titles of the appointee or committee members who conducted the inquiry;


3. a summary of the inquiry process used;


4. a list of the research records reviewed;


5. summaries of any interviews;


6. a description of the allegations of research misconduct;


7. the funding agency support, including, for example, grant numbers, grant applications, contracts and publications listing that support;


8. any comments on the draft report by the respondent,


9. the basis for recommending or not recommending that the allegations warrant an investigation; and


10. whether any actions should be taken if an investigation is not recommended.

Laboratory Counsel should review the inquiry report for legal sufficiency.  Modifications should be made, as appropriate, in consultation with the RIO and the appointee or committee. 

2. Notification to the Respondent and Opportunity to Comment

The RIO shall notify the respondent whether the inquiry found an investigation to be warranted and shall include a copy of the draft inquiry report for comment within 10 calendar days of such notification.  The notification must include a copy of the Laboratory’s policies and procedures on research misconduct. If the alleged misconduct involves research supported by PHS the notification must include a copy of, or refer, to 42 CFR Part 93. 

Based on any comments that are timely submitted, the appointee or inquiry committee may revise the draft report as appropriate and prepare it in final form.  The appointee or committee will transmit the final report, including any timely submitted comments by respondent, to the RIO.

8. Laboratory Decision and Notification

1. Decision by Deciding Official

The RIO will transmit the final inquiry report to the DO, who will determine in writing whether an investigation is warranted.  The inquiry is completed when the DO makes this determination. An investigation is warranted if there is:

1. a reasonable basis for concluding that the allegation falls within the definition of research misconduct under Paragraph (I)(1) (Introduction) and within the scope of this policy (Paragraph (I)(2) (Scope)) and


2. preliminary information-gathering and preliminary fact-finding from the inquiry indicates that the allegation may have substance.


2. Notification to the Complainant of the Results of the Inquiry

The RIO shall notify the complainant whether the inquiry found an investigation to be warranted.

3. Notification to the Funding Agency

Within 30 calendar days of the DO’s decision that an investigation is warranted, the RIO will provide the funding agency with the DO’s written decision and a copy of the inquiry report.  The RIO will also notify Laboratory or other officials who need to know of the DO’s decision.  The RIO must provide the following information to the funding agency upon request:

1. the Laboratory policies and procedures under which the inquiry was conducted;


2. the research records and evidence reviewed, transcripts or recordings of any interviews, and copies of all relevant documents; and


3. the charges to be considered in the investigation.


4. Documentation of Decision Not to Investigate

If the DO decides that an investigation is not warranted, the RIO shall secure and maintain for 7 years after termination of the inquiry sufficiently detailed documentation of the inquiry to permit a later assessment by the funding agency of the reasons why an investigation was not conducted.  These documents must be provided to the funding agency upon request.

9.  Conducting the Investigation

1. Initiation and Purpose

The investigation must begin within 30 calendar days after the determination by the DO that an investigation is warranted. The purpose of the investigation is to develop a factual record by exploring the allegations in detail and examining the evidence in depth, leading to recommended findings on whether research misconduct has been committed, by whom, and to what extent.  The investigation will also determine whether there are additional instances of possible research misconduct that would justify broadening the scope beyond the initial allegations.  This is particularly important where the alleged research misconduct involves clinical trials or potential harm to human subjects or the general public or if it affects research that forms the basis for public policy, clinical practice, or public health practice.  The findings of the investigation must be set forth in an investigation report (see Paragraph (I)(10) (Investigation Report)).

2. Notify the Funding Agency and Respondent; Sequestration of Research Records

On or before the date on which the investigation begins, the RIO must:

1. notify the funding agency of the decision to begin the investigation and provide a copy of the inquiry report, and


2. notify the respondent in writing of the allegations to be investigated.  The RIO must also give the respondent written notice of any new allegations of research misconduct within a reasonable amount of time of deciding to pursue allegations not addressed during the inquiry or in the initial notice of the investigation.

The RIO will, prior to notifying respondent of the allegations, take all reasonable and practical steps to obtain custody of and sequester in a secure manner all research records and evidence needed to conduct the research misconduct proceeding that were not previously sequestered during the inquiry.  The need for additional sequestration of records for the investigation may occur for any number of reasons, including the Laboratory’s decision to investigate additional allegations not considered during the inquiry stage or the identification of records during the inquiry process that had not been previously secured.  The procedures to be followed for sequestration during the investigation are the same procedures that apply during the inquiry (Paragraph (I)(6)(c) (Notice to Respondent; Sequestration of Research Records)).

3. Appointment of the Investigation Committee

The RIO, in consultation with other Laboratory officials as appropriate, will appoint an investigation committee and the committee chair as soon after the beginning of the investigation as is practical.  The investigation committee must consist of individuals who do not have unresolved personal, professional, or financial conflicts of interest with those involved with the investigation and should include individuals with the appropriate scientific expertise to evaluate the evidence and issues related to the allegation, interview the respondent and complainant and conduct the investigation.  Individuals who are not Laboratory members but who have specialized expertise germane to the research involved may be appointed to the committee.  Individuals appointed to the investigation committee may also have served on the inquiry committee.  

4. Charge to the Committee and the First Meeting


1. Charge to the Committee

The RIO will define the subject matter of the investigation in a written charge to the committee that:

(a)  Describes the allegations and related issues identified during the inquiry;
(b)  Identifies the respondent;
(c)  Informs the committee that it must conduct the investigation as prescribed in Paragraph (I)(9)(e) (Investigation Process) of this section;
(d)  Defines research misconduct;
(e)  Informs the committee that it must evaluate the evidence and testimony to determine whether, based on a preponderance of the evidence, research misconduct occurred and, if so, the type and extent of it and who was responsible;
(f)   Informs the committee that in order to determine that the respondent committed research misconduct it must find that a preponderance of the evidence establishes that:

• research misconduct, as defined in this policy (see Paragraph (I)(1) (Introduction)) occurred (respondent has the burden of proving by a preponderance of the evidence any affirmative defenses raised, including honest error or a difference of opinion);
• the research misconduct is a significant departure from accepted practices of the relevant research community;
• the respondent committed the research misconduct intentionally, knowingly, or recklessly; and
• Informs the committee that it must prepare or direct the preparation of a written investigation report that meets the requirements of this policy (see Paragraph (I)(10)(a) (Elements of the Investigation Report).

2. First Meeting

The RIO will convene the first meeting of the investigation committee to review the charge, the inquiry report, and the prescribed procedures and standards for the conduct of the investigation, including the necessity for confidentiality and for developing a specific investigation plan.  The investigation committee will be provided with a copy of this policy.  If the research is supported by the PHS, the committee will be provided with a copy of 42 CFR Part 93.  The RIO will be present or available throughout the investigation to advise the committee as needed.

5. Investigation Process

The investigation committee and the RIO must:

1. Use diligent efforts to ensure that the investigation is thorough and sufficiently documented and includes examination of all research records and evidence relevant to reaching a decision on the merits of each allegation;


2. Take reasonable steps to ensure an impartial and unbiased investigation to the maximum extent practical;


3. Interview each respondent, complainant, and any other available person who has been reasonably identified as having information regarding any relevant aspects of the investigation, including witnesses identified by the respondent, and record or transcribe each interview, provide the recording or transcript to the interviewee for correction, and include the recording or transcript in the record of the investigation; and


4. Pursue diligently all significant issues and leads discovered that are determined relevant to the investigation, including any evidence of any additional instances of possible research misconduct, and continue the investigation to completion.


6. Time for Completion

The investigation is to be completed within 120 calendar days of its beginning, including conducting the investigation, preparing the report of findings, providing the draft report for comment and sending the final report to the funding agency. However, if the RIO determines that the investigation will not be completed within this 120-day period, he/she will submit to the funding agency a written request for an extension, setting forth the reasons for the delay.  The RIO will ensure that periodic progress reports are filed with the funding agency if the funding agency grants the request for an extension and directs the filing of such reports.

10. The Investigation Report

1. Elements of the Investigation Report

The investigation committee and the RIO are responsible for preparing a written draft report of the investigation that:

1. Describes the nature of the allegation of research misconduct, including identification of the respondent.


2. Describes and documents the funding agency support, including, for example, the numbers of any grants that are involved, grant applications, contracts, and publications listing funding agency support;


3. Describes the specific allegations of research misconduct considered in the investigation;


4. Includes the Laboratory policy under which the investigation was conducted;


5. Identifies and summarizes the research records and evidence reviewed and identifies any evidence taken into custody but not reviewed; and


6. Includes a statement of findings for each allegation of research misconduct identified during the investigation. Each statement of findings must:

   (a)  identify whether the research misconduct was falsification, fabrication, or plagiarism (see Section (I)(1) (Introduction), and whether it was committed intentionally, knowingly, or recklessly;
   (b)  summarize the facts and the analysis that support the conclusion and consider the merits of any reasonable explanation by the respondent, including any effort by respondent to establish by preponderance of the evidence that he/she did not engage in research misconduct because of honest error or a difference of opinion;
   (c)  identify the specific funding agency support;
   (d)  identify whether any publications need correction or retraction;
   (e)  identify the person(s) responsible for the misconduct; and
   (f)   list any current support or known applications or proposals for support that the respondent has pending with any other funding agencies.

Laboratory Counsel should review the investigation report for legal sufficiency. Modifications should be made, as appropriate, in consultation with the RIO and investigative committee.

2. Comments on the Draft Report and Access to Evidence


1. Respondent

The RIO must give the respondent a copy of the draft investigation report for comment and, concurrently, if requested, a copy of, or supervised access to the evidence on which the report is based.  The respondent will be allowed 30 calendar days from the date he/she received the draft report to submit comments to the RIO.  The respondent’s comments must be included and considered in the final report.

2. Complainant

At the discretion of the committee, in consultation with the RIO, the complainant may be provided with a copy of the draft investigative report, or relevant portions of it, for comment. Any comments must be submitted within 30 days of the date of receipt of the draft report and any comments received must be included and considered in the final investigation report.

3. Confidentiality

In distributing the draft report, or portions thereof, to the respondent, or to the complainant, the RIO will inform the recipient of the confidentiality under which the draft report or portion of the report, is made available and may establish reasonable conditions to ensure such confidentiality.  For example, the RIO may require that the recipient sign a confidentiality agreement.

11. Laboratory Decision and Notification

1. Decision by Deciding Official

The RIO will assist the investigation committee in finalizing the draft investigation report, including ensuring that the respondent’s comments or complainants comments, if any, are included and considered, and transmit the final investigation report to the DO, who will determine in writing:

1. whether he/she accepts the investigation report, its findings, and


2. the appropriate Laboratory actions in response to the accepted findings of research misconduct.

If this determination varies from the findings of the investigation committee, the DO will, as part of his/her written determination, explain in detail the basis for rendering a decision different from the findings of the investigation committee.  Alternatively, the DO may return the report to the investigation committee with a request for further fact-finding or analysis.

When the DO reaches a decision on the case, the RIO will normally notify both the respondent and the complainant in writing.  The DO’s decision represents the final decision of the Laboratory with respect to the issue of research misconduct. There is no right, under Laboratory policy, to appeal this decision. Any disciplinary action which may be imposed as a result of a finding of research misconduct will be handled in accordance with RPM §2.05(C) (Corrective Action and Dismissal) or the applicable collective bargaining agreement. After informing the funding agency of the final decision, the DO will determine whether law enforcement agencies, professional societies, professional licensing boards, editors of journals in which falsified reports may have been published, collaborators of the respondent in the work, or other relevant parties should be notified of the outcome of the case.  The RIO is responsible for ensuring compliance with all notification requirements of funding agencies.

2. Notification to Funding Agency of Laboratory Findings and Actions

Unless an extension has been granted, the RIO must, within the 120 calendar day period for completing the investigation, submit the following to the funding agency:

1. a copy of the final investigation report with all attachments,


2. a statement of whether the Laboratory accepts the findings of the investigation report,


3. a statement of whether the Laboratory found misconduct, and


4. a description of any pending or completed actions against the respondent.


3. Maintaining Records for Review by the Funding Agency

The RIO must maintain and provide to the funding agency upon request the records of research misconduct proceedings defined as:

1. records the RIO secures for the proceeding pursuant to this policy, except to the extent the Laboratory subsequently determines and documents that those records are not relevant to the proceeding or that the records duplicate other records that are being retained;


2. documentation of the determination of irrelevant or duplicate records;


3. the inquiry report and final documents (not drafts) produced in the course of preparing that report, including the documentation of any decision not to investigate as required by Paragraph (I)(8)(d) (Documentation of Decision Not to Investigate);


4. the investigation report and all records (other than drafts of the report) in support of that report, including any required recordings or transcriptions of interviews.

Unless custody has been transferred to the funding agency or the funding agency has advised in writing that the records no longer need to be retained, records of research misconduct proceedings must be maintained in a secure manner for 7 years after completion of the proceeding or the completion of any funding agency proceeding involving the research misconduct allegation, whichever is later. The RIO is also responsible for providing any information, documentation, research records, evidence or clarification requested by the funding agency to carry out its review of an allegation of research misconduct or of the Laboratory’s handing of such an allegation.

12. Completion of Cases: Reporting Premature Closure to the Funding Agency

Generally, all inquiries and investigations will be carried through to completion and all significant issues will be pursued diligently.  The RIO must notify the funding agency in advance if there are plans to close a case at the inquiry, investigation, or appeal stage on the basis that the respondent has admitted guilt, a settlement with the respondent has been reached, or for any other reason, except:

1. closing of a case at the inquiry stage on the basis than an investigation is not warranted; or


2. a finding of no misconduct at the investigation stage, which must be reported to the funding agency as prescribed in Paragraph (I)(11)(c) (Notice to Funding Agency of Laboratory Findings and Actions).

13. Laboratory Actions, Including Employee Corrective (Disciplinary) Actions

If the DO determines that research misconduct is substantiated by the findings, he/she will decide on the appropriate actions to be taken, after consultation with the RIO. 

1. Actions may include


1. Withdrawal or correction of all pending or published abstracts and papers emanating from the research where research misconduct was found;


2. Special monitoring of future work


3. Restitution of funds to the funding agency as appropriate;


4. In the case of Laboratory members who are not employees, notification of the member’s home institution of the results of the investigation, and


5. Other action appropriate to the research misconduct.


2. Employee Corrective (Disciplinary) Actions

The matter will be referred to the respective division director/department head and Human Resources for consideration of possible corrective (disciplinary) action under applicable Laboratory RPM policies and/or collective bargaining agreements.

14. Other Considerations

1. Termination or Resignation Prior to Completing Inquiry or Investigation

The termination of the respondent’s Laboratory employment or a non-employee member’s Laboratory association, by resignation or otherwise, before, or after an allegation of possible research misconduct has been reported, will not preclude or terminate the research misconduct proceeding or otherwise limit any of the Laboratory’s responsibilities under this policy.

If the respondent, without admitting to the misconduct, elects to resign his or her position after the Laboratory receives an allegation of research misconduct, the assessment of the allegation will proceed, as well as the inquiry and investigation, as appropriate based on the outcome of the preceding steps.  If the respondent refuses to participate in the process after resignation, the RIO and any inquiry or investigation committee will use their best efforts to reach a conclusion concerning the allegations, noting in the report the respondent’s failure to cooperate and its effect on the evidence.

2. Restoration of the Respondent’s Reputation

Following a final decision of no research misconduct, including funding agency concurrence where required by federal regulations or funding agency contracts or grants, the RIO must, at the request of the respondent, undertake all reasonable and practical efforts to restore the respondent’s reputation.  Depending on the particular circumstances and the views of the respondent, the RIO should consider notifying those individuals aware of or involved in the investigation of the final outcome, publicizing the final outcome in any forum in which the allegation of research misconduct was previously publicized, and expunging all reference to the research misconduct allegation from the respondent’s personnel file. Any Laboratory actions to restore respondent’s reputation should first be approved by the DO.

3. Protection of the Complainant, Witnesses, and Committee Members

During the research misconduct proceeding and upon its completion, regardless of whether the Laboratory or the funding agency determines that research misconduct occurred, the RIO must undertake all reasonable and practical efforts to protect the position and reputation of, or to counter potential or actual retaliation against, any complainant who made allegations of research misconduct in good faith and of any witnesses and committee members who cooperate in good faith with the research misconduct proceeding.  The DO will determine, after consulting with the RIO, and with the complainant, witnesses, or committee members, respectively, what steps, if any, are needed to restore their respective positions or reputations or to counter potential or actual retaliation against them.  The RIO is responsible for implementing any steps the DO approves. 

4. If relevant, the DO, in consultation with the RIO, will determine whether the complainant’s allegations of research misconduct were made in good faith, or whether a witness, appointee or committee member failed to act in good faith. If the DO determines that there was an absence of good faith, he/she will determine whether any action should be taken against the person who failed to act in good faith and forward any such recommendation for consideration by Human Resources and the appropriate Laboratory official.

J. REPORTING AND INVESTIGATING ALLEGATIONS OF SUSPECTED IMPROPER GOVERNMENTAL ACTIVITIES (WHISTLEBLOWER POLICY) (Revised 4/1/08)

Information and telephone numbers for reporting suspected improper governmental activities or report retaliation against a whistleblower may be found here. The Locally Designated Official at the Lab is the Associate Laboratory Director for Operations.

NOTE: When the following UC policies refer to "staff personnel policies," Laboratory Employees should refer to Chapter 2 and Chapter 3 of the Regulations and Procedures Manual (RPM). These chapters of the RPM are the approved Human Resources policies for Lawrence Berkeley National Laboratory employees.

I. Introduction

The University of California has a responsibility for the stewardship of University resourcesand the public and private support that enables it to pursue its mission.  The University is committed to compliance with the laws and regulations to which it is subject and to promulgating University policies and procedures to interpret and apply these laws and regulations in the University setting.  Laws, regulations, policies and procedures strengthen and promote ethical practices and ethical treatment of the members of the University community and those who conduct business with the University.

The University’s internal controls and operating procedures are intended to detect, prevent or deter improper activities.  However, even the best systems of control cannot provide absolute safeguards against irregularities.  Intentional and unintentional violations of laws, regulations, policies and procedures may occur and may constitute improper governmental activities as defined by statute (see “Definitions”).  The University has a responsibility to investigate and report to appropriate parties allegations of suspected improper governmental activities and the actions taken by the University.

This policy governs reporting and investigation of allegations of suspected improper governmental activities, and together with the Policy for Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints, represents the University’s implementing policies for the California Whistleblower Protection Act  (Government Code Section 8547 - 8547.12).

Employees and others are encouraged to use guidance provided by this policy for reporting all allegations of suspected improper governmental activities.  While the scope of this policy is intended to be limited to the statutory definition of improper governmental activities, serious or substantial violations of University policy may constitute improper governmental activities determined upon review or investigation.

This policy does not fundamentally change the responsibility for conducting investigations but clarifies normal jurisdictional interests.  Individual employee grievances and complaints regarding terms and conditions of employment will continue to be reviewed under the applicable academic and staff personnel policies or collective bargaining agreements.  Any allegations of improper governmental activities that may result in subsequent actions bringing disciplinary charges against an academic or staff member shall be coordinated with the applicable academic or staff personnel conduct and disciplinary policies.  In all instances, the University retains the prerogative to determine when circumstances warrant an investigation and, in conformity with this policy and applicable laws and regulations, the appropriate investigative process to be employed.

II. Definitions

A. University Resources

For purposes of this policy, the term University resources is defined to include, but not be limited to the following, whether owned by or under the management of the University:

• Cash and other assets, whether tangible or intangible; real or personal property;


• Receivables and other rights or claims against third parties;


• Intellectual property rights;


• Effort of University personnel and of any non-University entity billing the University for its effort;


• Facilities and the rights to use of University facilities;


• The University’s name; and


• University records, including student and patient records.

B. Improper Governmental Activities

According to California Government Code Section 8547.2, an improper governmental activity is:

any activity by a state agency or by an employee that is undertaken in the performance of the employee’s official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency.

C. Protected Disclosure

According to California Government Code Section 8547.2, a protected disclosure is:

any good faith communication that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.

D. Illegal Order

An illegal order is any directive to violate or assist in violating an applicable federal, state, or local law, rule or regulation or any order to work or cause others to work in conditions outside of their line of duty that would unreasonably threaten the health or safety of employees or the public.

E. Whistleblower

A person or entity making a protected disclosure is commonly referred to as a whistleblower.  Whistleblowers may be University employees (academic or staff), applicants for employment, students, patients, vendors, contractors or the general public.  The whistleblower’s role is as a reporting party.  They are not investigators or finders of fact, nor do they determine the appropriate corrective or remedial action that may be warranted.

F. Locally Designated Official (LDO)

The person designated by each campus, the Lawrence Berkeley National Laboratory, the Office of the President and the Division of Agriculture and Natural Resources as the official with primary responsibility to receive reports of allegations of suspected improper governmental activities.

III. Reporting Allegations of Suspected Improper Governmental Activities

A. Filing a Report

1. Any person may report allegations of suspected improper governmental activities.  Knowledge or suspicion of improper governmental activities may originate from academic personnel, staff or administrators carrying out their assigned duties, internal or external auditors, law enforcement, regulatory agencies, and customers, patients, vendors, students or other third parties.  Allegations of suspected improper governmental activities may also be reported anonymously.


2. Reports of allegations of suspected improper governmental activities are encouraged to be made in writing so as to assure a clear understanding of the issues raised, but may be made orally.  Such reports should be factual rather than speculative or conclusory, and contain as much specific information as possible to allow for proper assessment of the nature, extent and urgency of preliminary investigative procedures.


3. The University recommends that any reports by persons who are not University employees be made to the LDO.  Such reports may also be made to another University official whom the reporting person may reasonably expect to have either responsibility over the affected area or the authority to review the alleged improper governmental activity on behalf of the University.


4. Normally, a report by a University employee of allegations of a suspected improper governmental activity should be made to the reporting employee’s immediate supervisor or other appropriate administrator or supervisor within the operating unit (such as the unit head), or to the LDO.  However, in the interest of confidentiality, when there is a potential conflict of interest or for other reasons, such reports may be made to another University official whom the reporting employee may reasonably expect to have either responsibility over the affected area or the authority to review the alleged improper governmental activity on behalf of the University.  When the alleged improper governmental activities involve the Chancellor, Laboratory Director, Vice President—Agriculture and Natural Resources, the LDO or the LDO’s supervisor, such reports should be made to the Systemwide LDO with a copy to the Director of Investigations (DOI) and the Senior Vice President/Chief Compliance and Audit Officer of the Regents (SVP-CCAO) at the Office of the President.  If the alleged improper governmental activities involve the Systemwide LDO or the President, the report should be made to the SVP-CCAO.


5. When a person reports allegations of suspected improper governmental activities to an appropriate authority the report is known as a protected disclosure.  The rights of University employees and applicants for employment when making a protected disclosure are covered by the Policy for Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints.


6. All University employees, and especially any academic or staff employee in a supervisory role, should be aware of and alert to either oral or written, formal or informal communications that may constitute a report of allegations of suspected improper governmental activity.


7. Under the California Whistleblower Protection Act, reports of allegations of suspected improper governmental activities may be made to the State Auditor.  Under that law, the State Auditor is prohibited from disclosing the identity of a whistleblower unless he or she obtains the whistleblower’s permission to do so, or when the disclosure is to a law enforcement agency that is conducting a criminal investigation.

B. Reporting to the LDO

1. Each campus, the Lawrence Berkeley National Laboratory, the Office of the President and the Division of Agriculture and Natural Resources shall designate an official with primary responsibility to receive reports of allegations of suspected improper governmental activities (the LDO).


2. Managers, administrators and employees in supervisory roles who receive a report alleging suspected improper governmental activities shall ensure that the matter is promptly reported to their supervisor, an appropriate University manager and/or the LDO.   Such employees are charged with exercising appropriate judgement in determining which matters can be reviewed under their authority and which matters must be referred to a higher level of management or the LDO.  Consulting with supervisors, the LDO or other appropriate University management is encouraged and the exercise of judgement should err on the side of upward reporting.  Oral reports should normally be documented by the supervisor by a written transcription of the oral report, and internal communications regarding allegations of improper governmental activities should normally be in writing.


3. Managers, administrators and employees in supervisory roles shall report to the LDO any allegations of suspected improper governmental activities—whether received as a protected disclosure, reported by their subordinates in the ordinary course of performing their duties, or discovered in the course of performing their own duties—when any of the following conditions are met:


1. The matter is the result of a significant internal control or policy deficiency that is likely to exist at other units within the institution or across the University system;


2. The matter is likely to receive media or other public attention;


3. The matter involves the misuse of University resources or creates exposure to a liability in potentially significant amounts;


4. The matter involves allegations or events that have a significant possibility of being the result of a criminal act (e.g., disappearance of cash); 


5. The matter involves a significant threat to the health and safety of employees and/or the public; or


6. The matter is judged to be significant or sensitive for other reasons. 

C. Reporting to the Office of the President and Others

1. The LDO shall have principal responsibility for meeting the reporting requirements to the Office of the President and local senior management.  The LDO shall consult with members of the Investigations Workgroup (see Section IV.B.) as necessary in fulfilling this reporting responsibility and will inform the Investigations Workgroup of any reports made to the Systemwide LDO and DOI.  The LDO (or designated member of the Local Investigations Workgroup – if there is a real or perceived potential conflict) shall forward a written report to the Systemwide LDO with copies to the DOI, the General Counsel and Vice President for Legal Affairs (General Counsel), and the SVP-CCAO regarding any reported allegations of suspected improper activities when any of the following conditions are met:

a)   The matter is the result of a significant internal control or policy deficiency that is likely to exist at other units within the institution or across the University system;

b) The matter is likely to receive media or other public attention;

c) The matter involves the misuse of University resources or creates exposure to a liability of at least $25,000;

d) The matter involves a significant threat to the health and safety of employees and/or the public; 

e) The matter is judged to be significant or sensitive for other reasons;

f) The matter alleges an improper activity by the Chancellor or Laboratory Director, the LDO, or the local Internal Audit Director.

2. A copy of communications sent to the Systemwide LDO shall be sent to the respective UC Police department if on the basis of the allegations it appears that a crime may have been committed.  The UC Police shall be consulted to determine the appropriate action with regard to these investigations.  


3. In some instances, even an allegation of improper governmental activity may be reportable to a funding entity or regulatory agency.  More typically, at least preliminary investigation results are needed to assess reporting obligations to parties outside the University. The LDO, in consultation with the leadership of the affected area and the SVP-CCAO, will determine the nature and timing of such communications.  Pursuant to Section III.C.1.b above, the Systemwide LDO,  the DOI and the SVP-CCAO shall be notified of any matter being reported to external agencies (other than matters routinely reported to the DOE pursuant to the Lawrence Berkeley National Laboratory contract).


4. Allegations of suspected losses of money, securities or other property shall be reported to the local risk management office as soon as discovered. The Chief Risk Officer, Office of the President shall be notified of such matters when they meet the criteria for reporting to the Systemwide LDO by copy of such notification.  The Chief Risk Officer shall report such matters in accordance with the terms of any contracts with insurance or bonding companies. 


5. In the event that any person with a reporting obligation under this policy believes that there is a conflict of interest on the part of the person to whom the allegations of suspected improper activities are to be reported, the next higher level of authority shall receive the report.


6. Whistleblowers frequently make their reports in confidence.  To the extent possible within the limitations of law and policy and the need to conduct a competent investigation, confidentiality of whistleblowers will be maintained.  Whistleblowers should be cautioned that their identity may become known for reasons outside of the control of the investigators or University administrators.
   
   Similarly, the identity of the subject(s) of the investigation will be maintained in confidence with the same limitations.

IV. Investigating Alleged Improper Governmental Activities

1. A number of functional units within the University have responsibility for routinely conducting investigations of certain types of allegations of improper governmental activities, and have dedicated resources and expertise for such purposes.  These include Compliance, Internal Audit, the UC Police, Human Resources and the Academic Personnel Office.  In addition, other University parties may become involved in investigations of matters based on their areas of oversight responsibility or topical expertise, for example, environmental health and safety, risk management, research administration, academic affairs, health sciences compliance officers, conflict of interest coordinators, etc.


2. Each location (campus, the Lawrence Berkeley National Laboratory, the Office of the President, and the Division of Agriculture and Natural Resources) shall establish an Investigations Workgroup to ensure coordination and proper reporting of investigations.  Acting in an advisory role, the Workgroup shall assist the LDO in assessing the location’s planned course of action related to allegations and investigations, including determining that an adequate basis exists for commencing an investigation.


3. The LDO will chair the Investigations Workgroup. Workgroup membership should include representatives from each functional unit that has routine responsibility for certain types of investigations (e.g., Compliance, Internal Audit, UC Police, Human Resources, Risk Management, Office of the General Counsel and the Academic Personnel Office).  Additional representation to be determined locally may include research administration, academic affairs, campus controllers, compliance officers, campus/laboratory counsel and representatives from any other area in which investigations routinely occur but are not conducted by a standing body (for example, parties responsible for investigating allegations of scientific misconduct).  In addition, specialized expertise may be required on an ad hoc basis for investigation of certain matters.


4. The Investigations Workgroup’s responsibilities shall include:


1. Assisting the LDO in assuring that the proper investigative channels are utilized according to appropriate expertise and jurisdiction; 


2. Assuring that all appropriate administrative and senior officials are apprised of the allegations as necessary;


3. Assuring appropriate reporting occurs to the Office of the President through a written communication to the Systemwide LDO, the DOI and the SVP-CCAO to funding and regulatory agencies, whistleblowers and others as necessary or provided by this policy;


4. Assisting the LDO in ensuring appropriate resources and expertise are brought to bear to cause the timely and thorough review of reports of allegations of suspected improper governmental activities;


5. Ensuring that there are no conflicts of interest on the part of any party involved in specific investigations;


6. Coordinating and facilitating communications across investigative channels as necessary to ensure comprehensive attention to all facets of the matter;


7. Assisting the LDO in monitoring significant elements and progress of investigations to ensure that allegations are timely and thoroughly addressed; and


8. Coordinating and facilitating in an advisory capacity the corrective and remedial action that may be initiated in accordance with applicable faculty or staff conduct and disciplinary procedures.


5. Each unit with investigative authority shall carry out investigative activities in accordance with appropriate laws and established procedures within its discipline (e.g., UC Police, Human Resources, Academic Personnel, Compliance, Internal Audit, etc.), and regulatory policies and guidelines (e.g., scientific misconduct per Office of Science and Technology Policy (OSTP) rules).  


6. The purpose and authority of the Investigations Workgroup shall not be construed as to limit or halt investigations undertaken with proper authority granted by law or policy to any University investigative authority.  Nor is the Workgroup empowered to initiate investigations without an adequate basis.  Rather, the Workgroup’s purpose is to provide guidance, advice and/or coordination for investigative activities as requested by the LDO and to facilitate communications among appropriate parties as requested by the LDO.


7. All employees of the University have a duty to cooperate with investigations initiated under this policy.


8. Consistent with applicable personnel policies or collective bargaining agreements, an employee may be placed on an administrative leave or an investigatory leave, as appropriate, when it is determined by the University that such a leave would serve the best interests of the employee, the University or both.  Such a leave is not to be interpreted as an accusation or a conclusion of guilt or innocence of any individual including the person on leave.  The appropriate Academic Personnel or Human Resources Office shall be consulted regarding any plan to place an employee on such a leave.

V. Responsibilities

A. Office of the President

1. The Systemwide LDO assisted by the DOI and the Office of Compliance and Audit shall have overall responsibility for implementation of this policy.


2. For the Office of the President, the Systemwide LDO will have the same responsibilities assigned to Chancellors under this policy.


3. The President, based on advice and consultation with the Systemwide LDO, the Provost and Executive Vice President—Academic Affairs, the General Counsel, and the SVP-CCAO will communicate with The Regents regarding alleged improper governmental activities and investigative results on matters of significance.


4. Through the publication of administrative guidelines, the Systemwide LDO assisted by the DOI shall provide guidance to campuses and the Lawrence Berkeley National Laboratory on the creation of local implementing procedures.  Campus process and structure will be defined in local implementing procedures for the University’s Whistleblower Policy.  These local procedures must contain a statement in the introduction, purpose or background section to identify the University’s Whistleblower Policy as the controlling policy document which supersedes any other local or System policy related to this matter.  This statement should be worded as for example: “Nothing contained in these local implementing procedures should be read or interpreted to contradict the underlying University of California Whistleblower Policy.”  Each location should submit to the Systemwide LDO, the DOI, and the SVP-CCAO for review and approval that location’s implementing procedures, including the nomination of the LDO.

B. Chancellor

1. The Chancellor shall be responsible for implementing this policy at the local level.  Authorities and responsibilities delegated to the Chancellor are also assumed by the Lawrence Berkeley National Laboratory Director, the Systemwide LDO and the Vice President—Agriculture and Natural Resources in their respective jurisdictions.


2. The Chancellor shall appoint (with the approval of the Systemwide LDO) the local LDO responsible for carrying out this policy.  This individual will chair the Investigations Workgroup established under Section IV.B above. The LDO should be at the level of Associate Vice Chancellor or higher.


3. The Chancellor shall appoint the standing members of the Investigations Workgroup.  The LDO may appoint additional regular members and ad hoc members as necessary to address particular issues.

C. Locally Designated Official (LDO)

1. The LDO shall be responsible for the establishment and maintenance of local implementing procedures that comply with this policy and the associated administrative guidelines.  The local implementing procedures may in certain regards such as reporting thresholds be more stringent than this policy, but they may not be any less stringent.


2. The LDO shall oversee the establishment of mechanisms to ensure compliance with the reporting requirements of this policy.  Principal among these are the local channels for assuring that reports of allegations of suspected improper governmental activities—which may be orally and/or informally communicated to numerous administrators and academic and staff employees in supervisory roles—are brought to the attention of the LDO or a member of the Investigations Workgroup.


3. The LDO is responsible for determining the need for consultation with the Investigations Work Group, select Workgroup members or other subject matter experts when initiating an investigation.  The LDO shall convene the Workgroup on a scheduled basis and on an ad hoc basis as necessary to assist in promptly addressing allegations, and shall keep the Workgroup and the DOI apprised of the progress and status of investigations, as appropriate.  Procedures guiding the initiation of investigations should not impede prompt action by the LDO or investigators when warranted.

D. Investigative Responsibilities

1. The LDO assisted by the Investigations Workgroup has responsibility for ensuring that independent, unbiased and competent investigative resources are used to conduct investigations of suspected improper governmental activity.  In assigning the lead investigator role, the LDO should take into consideration the specific expertise and availability of dedicated investigation resources possessed by functional units such as Compliance, Internal Audit, Human Resources, etc.  If criminal activity is detected, consultation with UC Police will determine if the police should take the lead, participate, or initiate a separate investigation.


2. UC Police are responsible for investigations of known or suspected criminal acts within their jurisdiction.   In cases involving principally criminal concerns, the UC Police should be the lead investigators and others with an investigative interest should work in support of the police investigation.


3. Procedures for investigations of personnel matters, scientific misconduct, regulatory non-compliance, student misconduct and other matters are established locally by each campus, the Lawrence Berkeley National Laboratory, the Office of the President or the Division of Agriculture and Natural Resources.  Such procedures shall be consistent with this policy and applicable laws and regulations.


4. In cases involving overlapping interests among investigative bodies, assistance and cooperation will be provided between the investigators based on the relative expertise of the investigative bodies.

VI. Roles, Rights and Responsibilities of Whistleblowers, Investigation Participants, Subjects and Investigators

A. Whistleblowers

1. Whistleblowers provide initial information related to a reasonable belief that an improper governmental activity has occurred.  The motivation of a whistleblower is irrelevant to the consideration of the validity of the allegations.  However, the intentional filing of a false report, whether orally or in writing is itself considered an improper governmental activity which the University has the right to act upon.


2. Whistleblowers shall refrain from obtaining evidence for which they do not have a right of access.  Such improper access may itself be considered an improper governmental activity.


3. Whistleblowers have a responsibility to be candid with the LDO, investigators or others to whom they make a report of alleged improper governmental activities and shall set forth all known information regarding any reported allegations.  Persons making a report of alleged improper governmental activities should be prepared to be interviewed by University investigators.


4. Anonymous whistleblowers must provide sufficient corroborating evidence to justify the commencement of an investigation.  An investigation of unspecified wrongdoing or broad allegations will not be undertaken without verifiable evidentiary support.  Because investigators are unable to interview anonymous whistleblowers, it may be more difficult to evaluate the credibility of the allegations and therefore, less likely to cause an investigation to be initiated.


5. Whistleblowers are “reporting parties,” not investigators.  They are not to act on their own in conducting any investigative activities, nor do they have a right to participate in any investigative activities other than as requested by investigators.


6. Protection of a whistleblower’s identity will be maintained to the extent possible within the legitimate needs of law and the investigation.  Should the whistleblower self-disclose his or her identity, the University will no longer be obligated to maintain such confidence.


7. A whistleblower’s right to protection from retaliation does not extend immunity for any complicity in the matters that are the subject of the allegations or an ensuing investigation.


8. Whistleblowers have a right to be informed of the disposition of their disclosure absent overriding legal or public interest reasons. 

B. Investigation Participants

1. University employees who are interviewed, asked to provide information or otherwise participate in an investigation have a duty to fully cooperate with University-authorized investigators.


2. Participants should refrain from discussing or disclosing the investigation or their testimony with anyone not connected to the investigation.  In no case should the participant discuss with the investigation subject the nature of evidence requested or provided or testimony given to investigators unless agreed to by the investigator.


3. Requests for confidentiality by participants will be honored to the extent possible within the legitimate needs of law and the investigation.


4. Participants are entitled to protection from retaliation for having participated in an investigation.

C. Investigation Subjects

1. A subject is a person who is the focus of investigative fact finding either by virtue of an allegation made or evidence gathered during the course of an investigation.  The decision to conduct an investigation is not an accusation; it is to be treated as a neutral fact finding process.  The outcome of the investigation may or may not support a conclusion that an improper governmental act was committed and, if so, by whom.


2. The identity of a subject should be maintained in confidence to the extent possible given the legitimate needs of law and the investigation. 


3. Subjects should normally be informed of the allegations at the outset of a formal investigation and have opportunities for input during the investigation.


4. Subjects have a duty to cooperate with investigators to the extent that their cooperation will not compromise self-incrimination protections under state or federal law.


5. Subjects have a right to consult with a person or persons of their choice.  This may involve representation, including legal representation.


6. Subjects may consult with the Office of the General Counsel (including campus and National Laboratory counsel) concerning the investigation.  The Office of the General Counsel will provide legal advice to the subject regarding issues in the investigation, unless the Office of the General Counsel determines that a divergence of interest prevents it from doing so, it being understood that at all times the Office of the General Counsel represents the interests of the University.  If legal services are provided by the Office of the General Counsel to the subject, the attorney-client privilege may not be invoked by the subject to prevent disclosure to the University of information obtained by the attorney providing the services, and the subject will be advised whenever it appears that a divergence of interest may require the attorney to withdraw from providing such legal services to the subject.

Subjects are free at any time to retain their own counsel to represent them with regard to the investigation and may request that the University pay or reimburse the attorney’s fees.  Chancellors shall designate a person to receive the request for reimbursement.  Such requests shall be considered consistent with statutory law, case law and University practice, but this policy creates no entitlement to such payments or reimbursements.

7. Subjects have a responsibility not to interfere with the investigation and to adhere to admonitions from investigators in this regard.  Evidence shall not be withheld, destroyed or tampered with, and witnesses shall not be influenced, coached or intimidated.


8. Unless there are compelling reasons to the contrary, subjects should be given the opportunity to respond to material points of evidence contained in an investigation report.


9. No allegation of wrongdoing against a subject shall be considered sustained unless at a minimum, a preponderance of the evidence supports the allegation.


10. Subjects have a right to be informed of the outcome of the investigation.  If allegations are not sustained, the subject should be consulted as to whether public disclosure of the investigation results would be in the best interest of the University and the subject.


11. Any disciplinary or corrective action initiated against the subject as a result of an investigation pursuant to this policy shall adhere to the applicable academic personnel or staff conduct and disciplinary procedures.

D. Investigators

1. Investigators are those persons authorized by the University to conduct fact finding and analysis related to cases of alleged improper governmental activities.


2. Investigators derive their authority and access rights from University policy or Regental authority when acting within the course and scope of their responsibilities.


3. The University, investigation participants and subjects should be assured that investigators have competency in the area under investigation.  Technical and other resources may be drawn upon as necessary to augment the investigation.


4. All investigators shall be independent and unbiased both in fact and appearance.


5. Investigators have a duty of fairness, objectivity, thoroughness, ethical behavior, and observance of legal and professional standards.


6. Investigations should be launched only after preliminary consideration that establishes that:


1. The allegation, if true, constitutes an improper governmental activity,[1] and either: 


2. The allegation is accompanied by information specific enough to be investigated, or  


3. The allegation has or directly points to corroborating evidence that can be pursued.  Such evidence may be testamentary or documentary.   

VII. Additional Required Communications

1. If an investigation leads University officials to conclude that a crime has probably been committed, the results of the investigation shall be reported to the District Attorney or other appropriate law enforcement agency. The UC Police should be the conduit for communications with law enforcement agencies unless the Investigations Workgroup in a particular situation determines a different communications strategy.


2. If an investigation leads University officials to conclude that a faculty member has engaged in conduct that may be a violation of the Faculty Code of Conduct, the results of the investigation shall be reported to appropriate academic personnel governing bodies in accordance with the applicable procedures for faculty conduct and the administration of discipline.  Any charges of faculty misconduct brought as a result of an investigation under this policy shall comply with established faculty conduct procedures.  


3. Consultation with the Office of the General Counsel is required before negotiating or entering into any restitution agreement resulting from the findings of an investigation.

K. PROTECTION OF WHISTLEBLOWERS FROM RETALIATION AND GUIDELINES FOR REVIEWING RETALIATION COMPLAINTS (WHISTLEBLOWER PROTECTION POLICY)

Information and telephone numbers for reporting suspected improper governmental activities or report retaliation against a whistleblower may be found here. The Locally Designated Official at the Lab is the Associate Laboratory Director for Operations.

NOTE: When the following UC policies refer to “staff personnel policies,” Laboratory Employees should refer to Chapters 2.0 and 3.0 of the Regulations and Procedures Manual (RPM). These chapters of the RPM are the approved Human Resources policies for Lawrence Berkeley National Laboratory employees.

I. Policy

The University of California is committed to protecting employees and applicants for employment from interference with making a protected disclosure or retaliation for having made a protected disclosure or for having refused an illegal order as defined in this policy. This policy is derived from the California Whistleblower Protection Act (Government Code Sections 8547-8547.12). Pursuant to this code section, a University employee may not: (1) retaliate against an employee or applicant for employment who has made a protected disclosure or who has refused to obey an illegal order, nor (2) directly or indirectly use or attempt to use the official authority or influence of his or her position or office for the purpose of interfering with the right of an applicant or an employee to make a protected disclosure to the University Auditor, the employee’s immediate supervisor or other appropriate administrator or supervisor within the operating unit, the locally designated University official as defined in the University’s Whistleblower Policy, or the State of California Bureau of State Audits about matters within the scope of this policy. It is the intention of the University to take whatever action may be needed to prevent and correct activities that violate this policy.

II. Scope of Policy and Definitions

This policy applies to complaints of retaliation or interference filed by employees or applicants for employment who have made or attempted to make a protected disclosure (“whistleblowers”) or refused to obey an illegal order, as defined below.

Local retaliation complaint resolution procedures shall incorporate the following definitions.

A. Improper Governmental Activity

Any activity undertaken by the University or by an employee that is undertaken in the performance of the employee’s official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of University property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of University property and facilities, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, gross incompetence, or gross inefficiency.

B. Protected Disclosure

Any good faith communication that discloses or demonstrates an intention to disclose information that may evidence either (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.

C. Illegal Order

Any directive to violate or assist in violating an applicable federal, state, or local law, rule, or regulation or any order to work or cause others to work in conditions outside of their line of duty that would unreasonably threaten the health or safety of employees or the public.

D. Interference

Direct or indirect use of authority to obstruct an individual’s right to make a protected disclosure.

E. Official Authority or Influence

Promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; taking, or directing others to take, or recommending, processing, or approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action.

F. Retaliation Complaint

Any written complaint by an employee or an applicant for employment which alleges retaliation for having made a protected disclosure or for having refused an illegal order or interference with an attempt to make a protected disclosure, together with a sworn statement, made under penalty of perjury, that the contents of the complaint are true or are believed by the complainant to be true.

III. Authority and Responsibilities

A. Local Procedures

The Chancellor shall establish local retaliation complaint resolution procedures in accordance with this policy. Authorities and responsibilities delegated to the Chancellor are assumed by the Laboratory Directors, the Senior Vice President—Business and Finance, and the Vice President—Agriculture and Natural Resources for employees within their respective jurisdictions.

B . Locally Designated Official (LDO)

The Chancellor [1] shall appoint a Locally Designated Official (the LDO) to receive retaliation complaints and administer local implementing procedures. The LDO (or designee) shall determine (1) whether a complaint is timely; (2) whether it sets forth the necessary facts to support a claim of retaliation for having made a protected disclosure, having disobeyed an illegal order, or interference with the right to make a protected disclosure; and (3) whether a complaint is eligible for processing under University grievance or complaint resolution procedures available to the complainant (as noted in Section VII.A. below). The LDO may be the same official designated to administer local procedures for investigating whistleblower complaints.

C. Retaliation Complaint Officer (RCO)

The LDO may appoint one or more individuals or a standing body to serve as Retaliation Complaint Officer(s) to oversee the investigation of complaints filed by employees and applicants for employment alleging interference with or retaliation for making a protected disclosure or for refusing to obey an illegal order. The RCO may delegate conduct of the investigation, including any factfinding, to another person. The term “RCO” as used in this policy includes the person to whom the investigation may be delegated.

D. Chancellor

The Chancellor renders a decision when the RCO conducts an investigation and determines the appropriate corrective action, if any, as set forth in Section VII.C below. The Chancellor may delegate his or her duties under this policy.

IV. Filing a Complaint

A retaliation complaint (grievance plus sworn statement) may be filed (A) under an applicable grievance or complaint resolution procedure, (B) with the LDO, or (C) with the employee’s supervisor. Threshold requirements for filing a retaliation complaint are described in Section IV.D. below. Employees who elect to file a grievance unaccompanied by a sworn statement made under penalty of perjury that its contents are true or are believed to be true are not covered by the retaliation provisions of the California Whistleblower Protection Act.

A. Filing Pursuant to an Applicable Grievance or Complaint Resolution Procedure

A retaliation complaint (grievance plus sworn statement) may be filed pursuant to the applicable personnel policy or collective bargaining agreement grievance or complaint resolution procedure. The individual designated locally to receive grievances (i.e., grievance liaison) pursuant to academic or staff personnel policies, or collective bargaining agreements, shall provide the LDO with a copy of the retaliation complaint. If the grievance is not accompanied by a sworn statement, but raises issues of retaliation covered by this policy, then the grievance liaison shall provide the LDO with a copy of the grievance. Campus procedures shall specify the individual responsible for advising the complainant of his or her rights to file a whistleblower retaliation complaint and the timeframe for filing. Local procedures shall refer to the following grievance and complaint resolution policies and/or their respective implementing procedures:

1. Academic Personnel: Academic personnel may file complaints alleging retaliation, if eligible, as follows:
   
   

   a.	Members of the Academic Senate	Senate Bylaw 335
   b.	Non-Senate Academic Personnel	APM – 140
   c.	Exclusively Represented Academic Personnel	The applicable collective bargaining agreement

   
   
2. Staff Personnel: Staff personnel may file complaints alleging retaliation, if eligible, as follows:
   
   

   a.	Senior Managers	PPSM II-70
   b.	Managers and Senior Professionals, Salary Grades VIII and IX	PPSM 71
   c.	Managers and Senior Professionals (except Salary Grades VIII and IX) and Professionals and Support Staff	PPSM 70
   d.	Exclusively Represented Staff Personnel	The applicable collective bargaining agreement

1. If the complaint received by the LDO is eligible for review under an existing grievance or complaint resolution procedure and the complainant also elects to file under the applicable grievance or complaint resolution procedure, the LDO will hold the retaliation complaint in abeyance until all of the steps preceding hearing, arbitration, or factfinding have been completed. (For example, under a collective bargaining agreement, the whistleblower retaliation complaint is joined with the grievance when the grievance advances to arbitration under the applicable procedure.) At that point in the review process, the retaliation complaint will be joined with the applicable procedure and referred to the RCO for handling as described in Section VI.A.3 below.
   
   
2. If a complaint received by the LDO is eligible for review under an existing grievance or complaint resolution procedure but the complainant elects not to file, the complaint will be referred to the RCO for investigation at the end of the grievance filing period.
   
   
3. The LDO shall refer a complaint to the RCO for investigation under the following conditions:
   
   
   (a) The complaint is not within the scope of or filed within the time limits of the complaint resolution procedure available to the complainant under applicable University personnel policies, collective bargaining agreements, or procedures established by the Academic Senate; or
   
   
   (b) The employee does not have a complaint resolution procedure available for some other reason (for example, the alleged retaliatory act cannot be grieved under the respective collective bargaining agreement); or
   
   (c) The complainant is an applicant for employment.
   
   
4. If a complaint that is normally eligible for investigation by the RCO alleges that the Chancellor, the LDO, or the LDO’s supervisor interfered or took the retaliatory action, the LDO or designee shall request:
   
   
   (a) that the Senior Vice President—Business and Finance appoint a RCO when the complainant is a current employee in or applicant for a staff or management position; or
   
   
   (b) that the Provost and Senior Vice President—Academic Affairs appoint a RCO when the complainant is a current appointee in or applicant for an academic position.
   

1. The retaliation complaint filed with the LDO or the supervisor must set forth in sufficient detail the necessary facts including dates and names of relevant persons. The complaint must contain facts supporting the filing thresholds as set forth below in Section IV.D.2(a) through (c), the alleged retaliatory act(s), and the effects on the complainant of the alleged retaliatory acts. The LDO may require the complainant to amend the complaint to provide sufficient detail. If the complainant does not amend the complaint to correct the insufficiencies identified by the LDO within a reasonable timeframe, as established in local procedures, the complaint may be dismissed by the LDO.
   
   
2. In order for a retaliation complaint to be accepted, the complainant must allege that:
   
   
   
   (a) he or she filed a report or made a protected disclosure alleging improper governmental activities pursuant to current University policy; or
   
   
   (b) he or she was threatened, coerced, commanded, or prevented by intimidation from filing a report of improper governmental activities; or
   
   
   (c) he or she refused to obey an illegal order.
   
   
3. The LDO may consult with the local Investigations Workgroup in determining whether the alleged disclosure is a protected disclosure, and in determining whether an alleged order was an illegal order if the complaint is otherwise eligible for review.
   

1. Pursuant to California Government Code Section 8547.10(e) an arbitrator, University or non-University hearing officer, or University committee that hears a retaliation complaint shall be instructed that once the complainant demonstrates by a preponderance of the evidence that he or she engaged in activity protected by the University’s Whistleblower Policy and that such activity was a contributing factor in the alleged retaliation, the burden of proof shall be on the supervisor, manager, or University to demonstrate by clear and convincing evidence that the alleged retaliatory action would have occurred independent of the employee’s engagement in a protected disclosure or refusal of an illegal order. If the complaint is investigated by a factfinder, the factfinder shall find facts concerning the burden of proof so that the Chancellor is able to make this determination. If the University fails to meet this burden, the employee or applicant for employment shall have a complete affirmative defense to the adverse action which was the subject of the complaint.
2. However, pursuant to California Government Code Section 8547.10(d), a manager or supervisor is not prevented from taking, directing others to take, recommending, or approving any personnel action or from taking or failing to take a personnel action with respect to any employee or applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.

1. When an employee files a complaint which contains an eligible allegation of retaliation under an existing University grievance or complaint resolution procedure, the RCO shall investigate the allegation of retaliation or interference as provided below:
   
   
   1. If the complaint is filed under a complaint resolution procedure containing factfinding as specified in University policies as part of the final available step (e.g., Staff Policies 70, 71, and II-70 for some issues), the RCO will serve as the factfinder.
   2. If the complaint is filed under a grievance procedure in personnel policy, a collective bargaining agreement, or under procedures established by the Academic Senate, but is not eligible under that policy, collective bargaining agreement, or procedure for arbitration, hearing, or factfinding, the RCO will investigate the complaint after exhaustion of the available steps of the policy, collective bargaining agreement, or Academic Senate procedure. The investigation and findings will be limited to the interference or retaliation aspect of the complaint only.
   3. If the complaint is heard before an arbitrator, University or non-University hearing officer, or University committee, the RCO will receive a copy of that decision. If the decision does not include findings regarding the alleged interference or retaliation, the RCO shall request that the arbitrator, University or non-University hearing officer, or University committee revise the report to include findings regarding the alleged interference or retaliation. If the arbitrator, University or non-University hearing officer,
      or University committee subsequently fails to include such findings in the report, the RCO will conduct a separate investigation on that issue only.
   
   
2. When no University grievance or complaint resolution procedure is available to the complainant, the RCO will conduct the investigation.
   
   
3. Before findings are reached, the RCO (or factfinder, if the RCO has delegated conduct of the investigation) shall provide a copy of the complaint and any
   documents on which the RCO (or factfinder) intends to rely in reaching findings to the person accused of interference or retaliation. That person shall be provided the opportunity, within locally established time limits, to respond to the complaint and to file a written statement which the RCO (or factfinder) will make part of the record submitted to the Chancellor.
   
4. The RCO shall present findings of fact based on the evidence and factual conclusions to the Chancellor within 120 days from the date on which the complaint was assigned to the RCO unless an extension is granted by the LDO.
   
   
5. When an employee has filed a complaint under an applicable personnel policy or collective bargaining agreement grievance or complaint resolution procedure (1) which alleges retaliation for an action protected by this policy, and (2) a final University decision within the meaning of the applicable complaint resolution policy or collective bargaining agreement has been rendered, and (3) the employee later files a timely whistleblower retaliation complaint, the RCO shall review the decision. If there is a finding of retaliation, the RCO shall review it to ensure that the remedy is consistent with the policy, and if not, the RCO shall make a recommendation to the Chancellor. If there is no finding of retaliation, the LDO shall request that the hearing officer, committee, or arbitrator reopen the case and apply the standard of proof specified in Section V. above, and if necessary, find additional facts for application of the standard. If the foregoing does not occur, the RCO shall find additional facts, if necessary, for application of the standard of proof specified in Section V. above. The case shall then be forwarded to the Chancellor for a decision.
   
   
6. When it is alleged that the Chancellor, the LDO, or the LDO’s supervisor interfered or took the retaliatory action, the Senior Vice President—Business and Finance or the Provost and Senior Vice President—Academic Affairs, whichever applies, shall appoint an RCO to undertake the investigation consistent with the provisions of Section VI.A through E. above. The RCO shall present findings of fact based on the evidence and factual conclusions to the Senior Vice President—Business and Finance or the Provost and Senior Vice President—Academic Affairs, as appropriate, for a decision. The RCO’s findings shall be presented within 120 days from the date on which the complaint was assigned to the RCO unless an extension is granted by the Senior Vice President—Business and Finance or Provost and Senior Vice President—Academic Affairs.

1. The RCO shall be provided with a copy of the decision in those cases in which the complaint was heard before an arbitrator, University or non-University hearing officer, or University committee.
2. When there are findings that interference or retaliation has occurred, the RCO will provide that information to the Chancellor. If the decision is final and binding, the Chancellor may not alter the decision in any way, but may through the appropriate channels initiate corrective action against the University employee who interfered or retaliated based on the findings in the decision.

1. The RCO is to present findings of fact based on the evidence and factual conclusions to the Chancellor who shall render a decision in the matter consistent with the standard of proof specified in Section V above. The Chancellor may remand the findings to the RCO if further investigation is needed before making a decision. The Chancellor will communicate the decision in writing to the complainant and to the person or persons accused of violating the University’s Whistleblower Protection Policy.
2. The Chancellor’s written decision will include any appropriate relief for the complainant, but will not describe any corrective action which may need to be taken.

1. the Senior Vice President—Business and Finance if the complainant is a current employee in or applicant for a staff or management position; or
2. the Provost and Senior Vice President—Academic Affairs if the complainant is a current appointee in or applicant for an academic position.