Daniel L. Simmons

Professor of Law

Associate Provost-Educational Relations

University of California

300 Lakeside Drive, 18th Floor

Oakland, California 94612-3550

April 10, 1996

Professor Warren Gold
Chair, University Committee on Research Policy
Department of Medicine
University of California
505 Parnassus Avenue, Box 0120
San Francisco, CA 94143-0120

RE: UCORP Report on the National Laboratory Management Contract

Dear Warren:

I have finally found some time to finish my letter regarding the UCORP report on the UC management contract for the National Laboratories. I am sending a copy of this letter to Arnie Lieman in the event that he would be interested in sharing my opinions with members of the Academic Council and others.

As you undoubtedly would have anticipated at the time you issued the report, I disagree with the Committee’s ultimate conclusion regarding continuation of the management contract. Even further, I am disappointed by the fact that UCORP’s analysis is not responsive to my charge to the committee to evaluate “the role of the University in managing the Department of Energy Laboratories under the current contract.” (Italics added.) The Committee’s analysis reflects views and arguments that were presented to the Jendreson Committee in the preparation of their 1989 report, but does not address (or even mention) the arguments presented by me and others that UC’s role in management and policy development for the laboratories is different in significant ways than was the case under the old contract. I also disagree with the Committee’s limited view of appropriate public service, adopted from the Jendresen Report, which focuses on benefits and burdens to the University without taking into account broader national needs. That said, the report also contains important recommendations that the University and the President’s Council should seriously consider in evaluating their continuing role in laboratory management. In my opinion, that fact that a serious faculty evaluation such as the UCORP report can raise concerns that will affect management of the Laboratories is one of the strongest arguments in favor of continued UC management.

I will in this letter attempt to address some of the arguments in the Committee report. First, however, to clarify the context on which my views are based, I will explain my own position.

To begin with the obvious, nuclear weapons are terrible things that are highly dangerous. One might wish that neither the United States nor the former Soviet Union had developed the capacity to deliver such weapons of mass destruction. However, others can make quite plausible arguments that the existence of nuclear weapons with the almost certain potential for total destruction of any nation that initiated their use has prevented a third world war between super powers. Whatever view one holds, the fact of the matter is that both the United States and the countries of the former Soviet Union each possess seven to ten thousand nuclear warheads in existing arsenals, with the potential to reduce the arsenals under the START II Treaty to 3,500 in each country. The United States faces a dual problem. The country must manage the existing stockpile of weapons a manner that assures their safety and reliability. The United States must also assure the protection of the nuclear stockpile in Russia and prevent proliferation of nuclear weapons and the spread of nuclear weapon’s grade material to other nations. As it has evolved over the period subsequent to the end of the “cold war”, the mission of Los Alamos and Lawrence Livermore National Laboratories in the nuclear weapons arena is to provide the United States with the scientific and technical capability to cope with these issues. The two laboratories are responsible for assuring the President of the United States that the existing nuclear stockpile is maintained in a safe and reliable manner (and this in an environment in which nuclear testing is banned), for assisting Russia in the maintenance of security for its nuclear stockpile, and for providing the United States with a scientific and technical basis for monitoring compliance with non-proliferation and arm’s control treaties. Los Alamos and Lawrence Livermore are not currently engaged in the development of new nuclear weapons designs and have no plans to do so in the immediate future. It is in this context that the University of California must assess its management contract with respect to the laboratories.

Stewardship of the Nation’s nuclear stockpile is a high risk venture fraught with disastrous consequences if the wrong choices are made. The high stakes involved in this enterprise, which is one of the highest national interest, requires that the best minds available be brought to bear on the policy choices and management decisions that are required. Clearly the Nation’s strategic policy with respect to nuclear weapons is determined by the President of the United States and the Congress. But the work of many others is required for the implementation of that policy. I personally believe that the national interest is better served through the participation of an academic institution in the management of the national laboratories where significant pieces of the nuclear weapons policy and its implementation are developed, than if that policy were developed under the sole guidance of the military, the bureaucrats of the Departments of Energy or Defense, or a for-profit contractor whose principal interest is the profit to be derived from management of the weapons complex. I believe that the management of these science based laboratories by an academic institution is important because university management brings to the table its cultural values of excellence in science, new discovery as the motivation for inquiry, discourse and debate as the means to resolve difficult and controversial issues, and the intellectual freedom to pursue the answer to difficult and controversial questions without the fear of producing an answer that is disagreeable to management. Further, I believe that the University of California, because of its scope and the weight of its intellectual authority, is better positioned to impose these values on the nuclear weapons enterprise than any other academic institution in the country. By bringing these values to the principal scientific national laboratories the University of California performs an incalculable service to the Nation.

I think that the Committee’s view of public service, adopted from the Jendresen Committee report, is too narrow and self serving. I believe the question we should be asking is whether the University’s activities provide a service to the public, not whether the service is beneficial or appropriate for the University. We should ask whether the service is supportive of the well-being of the Nation, rather than supportive of the University’s missions of teaching and research. In that regard, a public service may involve costs to the University, and could have serious adverse effects.

The laboratory contract does provide benefits to the University, particularly the Berkeley campus. I don’t think that it is realistic to believe that the University could sever its relationship with Los Alamos National Laboratory (LANL) and Lawrence Livermore National Laboratory (LLNL) and expect that the Federal Government would continue its current funding commitment to Lawrence Berkeley National Laboratory (LBNL). As a matter of self-interest rightly understood, it seems to me that Berkeley science faculty should be leading advocates of continuation of the management contract.

Rather than address the Committee’s report point- by-point, I will focus on the conclusions at pages 17 and 18.

1. “The non-classified research activities of LLNL and LANL provide important opportunities for UC-Laboratory collaborations and cooperation. The most recent contract has built some funds for such collaborations into the “management fee.” Because these are National Laboratories, faculty and students from many universities, not just UC, engage in beneficial collaborations with scientists as these Laboratories.”

All of this is true, and is a plus for UC management. The comparisons in the Committee report are striking, but you draw from them different conclusions than I do.

Page seven of the report states that privately managed laboratories cooperate with university researchers citing as an example Oak Ridge where, through the University of Tennessee, “the distinguished Scientist Programs supports a dozen tenured faculty . . . This is considered a center of excellence by the State.” (Italics added.) Contrast the material on the preceding page where the report cites data from LLNL that reports “interactions” at the laboratory with 223 UC faculty and 129 faculty from other universities, and 97 UC researchers and 696 researchers from other universities and research organizations. LANL reports “joint publications” with 333 UC faculty and 1,215 faculty from other universities. This is a difference of several magnitudes from the “dozen” tenured faculty supported at Oak Ridge. In addition, regardless of the comparison, these numbers indicate that LLNL and LANL are supporting substantial non-classified research collaborations with university faculty and researchers, an activity that is clearly consistent with the research mission of the University of California. Indeed, I believe that through its management role and the creation of the President’s Council, UC fosters high quality research that seeks answers to important questions.

The Committee report is a little schizophrenic on this issue. On the one-hand, the Committee seems to complain that management of the Laboratories does little to benefit University of California faculty with research opportunities that would not otherwise be available if LLNL and LANL were managed by a private contractor, while on the other, the report argues that UC’s management is not a public service if the management contract generates funds to support research by University faculty (page 14).(1) That’s ridiculous. As part of the management contract the University receives payment for some risk assumption and liabilities, in part for disallowed costs. Money left over from this pool is used by the Laboratories and University for discretionary research programs and for University/Laboratory collaborative research progress. Most likely, a private contractor would retain this money as profit for distribution to shareholders or other use in the business rather than reinvestment in exploratory research. This is yet another way in which university management of the laboratories provides a benefit that is consistent with the mission of the research university.

2. “At the same time, the classified research activities of these Laboratories are not consistent with central university values of free and open inquiry. This essential commitment to freedom of expression raises difficulty for University management in three areas: classified research, program-driven research that received little peer review, and lack of ‘whistle-blower’ protection for Laboratory personnel.”

I for one am grateful that the United States’ nuclear weapons design and research programs are classified. But that does not mean that the research is not good science, or that it is not subject to rigorous peer review. Indeed, one of the important roles of the President’s Council is to review the quality of classified and unclassified research and to insist as part of the review that adequate peer review of classified research is undertaken. The limitation is that the peer review of classified research be undertaken by individuals with adequate security clearance. While classified research is not published in public journals, University management does have an impact on the quality of the work by bringing standards of peer review and excellence to the table. In this the University performs a public service by facilitating high quality work in a critical area.

The Committee is quite correct that the classified research is not susceptible to the free and open exchange of ideas that is an important component of academic freedom. However, I disagree with the Committee’s implication that academic freedom within the University of California is such a fragile concept that the University’s management of laboratories threatens it.

The Committee also states that there is no national emergency to justify a contract between the University and DOE under which scientists work in secrecy. (Page 9) Absurd. In my view the work of the laboratories requires some of the best research available to answer critical questions such as how to manage the aging weapons stockpile, how to avoid proliferation of not only nuclear weapons, but biological and chemical weapons, and how to detect development of nuclear, chemical and biological weapons.(2) The importance of high quality work in these areas as the underpinning of United States participation in a comprehensive nuclear test ban treaty more than justifies the University of California’s participation in the activity as a public service. Indeed, we should be proud of the University’s recent contributions as they advance non-proliferation efforts.

The Committee indicates that, “There appear to be few restrictions on publication and dissemination of non-classified research done at the Laboratories, particularly for the many Laboratory scientists holding NIH or other peer-reviewed research grants . . . The Laboratories are program driven research centers in which policies, priorities, and basic job assignments are not established by professional staff, but rather are set by the DOE.” (Page 9.) This statement reflects a rose-colored view of university research and a misunderstanding of the development of research initiatives in the Laboratories. I believe that in either case, researchers seeking support focus their efforts to pursue activities that funding agencies are interested in funding through the funding agency’s assessment of its own programatic interests, whether the funding agency is NIH, NSF or the DOE.(3) The real distinction of the research activities of the Laboratory is that the “programmatic driven research” that UCORP condemns identifies a problem to solve that a funding agency is willing to support, and brings an interdisciplinary team to bear on developing both basic scientific answers and technical solutions. Rather than condemning the work of the laboratories in this respect, I think that the University can learn a great deal from the Laboratories about interdisciplinary approaches to research.

UCDRD funds that are produced by the contract (the evil profits that UCORP complains about), are used to fund research projects generated by scientists in the Laboratories in much the same fashion as a university researcher might seek internal or external funding for his or her project.

On the third point, the lack of protection for whistle blowers, the Committee’s analysis demonstrates my earlier point regarding the Committee’s focus on problems that pre-date the current contract on which I charged the committee to focus. The Committee ignored a similar situation that has recently arisen at LANL, which was treated quite differently. A research scientists raised questions about criticality of waste proposed to be stored at Yucca Flats. The work was strongly criticized by Laboratory management. The individual complains that he was demoted as a result of raising these issues. What UCORP does not report is that, unlike the pre-1992 contract reaction to this kind of issue, the material was published in scientific journals, as was a refutation collectively developed by the Department of Nuclear Engineering at UC Berkeley. The materials were reviewed by the Science and Technology Panel of the President’s Council which in turn reported to the full Council. In addition, the President’s Council, by resolution, asked the UC Office of the President to investigate the charges brought by the researcher involved under UC procedures for handling this kind of grievance. I also note that one of the individual critics of the Laboratories cited as an example by the Committee (page 9) is still employed at the Laboratory. I doubt that this would be the case if the Laboratories were managed by a private contractor lacking both the University’s sensibilities to such cases and the protections built into University procedures. Indeed, the Committee complains at some length that LANL does not implement University of California personnel policies for layoffs.(4) Does the Committee believe that termination of UC management would cause imposition of better personnel policies at the Laboratories?

3. “The lack of truly independent management personnel in the Laboratory Administration Office and the on-going concerns about human resources management issues, especially at LANL, suggest that OP management is not as effective as it should be in management and oversight of the Laboratories.”

The Committee’s analysis supporting this conclusion is multifaceted. In part, the Committee describes the complex inter-relationship between the Laboratories, the University and the DOE, and points out that the relationship is not “management” in a simplistic definition of management as giving direction. That is true. The relationship is extraordinarily complex. The direction and strategic planning of the Laboratories is determined through a complicated process of decision making driven primarily by national policy choices.

The Committee’s concerns regarding the revolving door between the Office of the President and the Laboratories are important and should be given serious consideration in the management of the Laboratories. More importantly, recognize that UCORP as a UC faculty committee is raising serious concerns that will be responded to under the management relationship. In itself, this fact discounts the Committee’s statement that there is little formal faculty input and an absence of the role of shared governance in the Laboratory management. Indeed, the seriousness with which the UCORP report is being considered by the Office of Laboratory affairs and Laboratory management is a reflection of the importance of faculty viewpoints.(5)

In addition, the Committee is just plain misinformed about the role of the Academic Senate members of the President’s Council. The Committee asserts that only one faculty member serves as a member of the Council, noting that the chair and vice-chair serve “ex-officio” (page 11). An ex-officio member of a committee is a full member, with full voting rights (unless specified otherwise). The term “ex-officio” refers only to the fact that the chair and vice-chair serve by virtue of their office in the Academic Senate, as opposed to being designated by name. The chair and vice-chair of the Council are full and active participants in the work of the President’s Council. The relationship brings to the President’s Council the full and loud voice of the Senate. That presence is an important part of the value of the University’s management contract because it does in fact give the UC faculty Senate an important voice in this critical area. One might conclude that the UC faculty should not in any way participate in Laboratory issues because weapons are immoral, but this is not the Committee’s argument, at least expressly. The Committee is incorrect in its understatement of the impact of the UC faculty role under the management contract. Termination of the contract would deprive the faculty of ain important voice in this critical area of national concern.

The Committee also argues that management leads to significant costs to the University. In part, that is the nature of public service, incurring a cost perhaps without an offsetting benefit. Note, however, that the contract requires the federal government to indemnify the University for any liability incurred by the University under the management contact. The Committee is in error where it suggests that UC may be held liable for costs of environmental disasters. (Page 15.) From my former seat as faculty representative to the Regents, I am convinced that the Regents would not permit renewal of the contract without continuation of the indemnity provision. Indeed, I would oppose renewal absent continuation of the indemnity.

4. Finally, what appears to me to be the true basis of the UCORP recommendations: “The final criterion, whether UC management of weapons-related activities contributes to human well-being, is complex and requires careful analysis by UC faculty. It is clear from UCORP’s review, that optimistic hopes that weapons research will dwindle to minor importance is overstated--weapons research, in whatever form, is still a primary function of both these Laboratories.”

First, the report contains an appalling misstatement that is not supportable by any evidence before the committee or available elsewhere. The Committee states, “Billions of dollars are being invested in above-ground testing facilities and programs, not only to assess safety and reliability of existing weapons, but also to test new designs if necessary.” The last phrase is simply not true. In my three years as a member of the President’s Council and the National Security Panel it has become clear to me that the Laboratories are not even thinking about new weapons designs. I am outraged that UCORP would make this assertion. The science based stockpile stewardship program and its attendant research activities were developed for the purpose of monitoring the existing stockpile without the need for nuclear testing, meaning the detonation of a nuclear device of any yield. Many scientists at the Laboratories are only marginally convinced that the science based program is an adequate substitute for testing, but there is sufficient certainty for them to have advised the President in support of a comprehensive test ban (which in my opinion contributes to human well-being). I don’t think that the weapons designers believe it possible to develop new designs in the absence of testing. Thus the program that ends testing in effect ends design capability.

Otherwise, the statement is correct. Weapons technology, and the science that has evolved from the Laboratories’ nuclear competency, is at the core of the Laboratories’ work. Everything else is a development that arises out of these core competencies in computer science, accelerators, lasers, small scale manufacturing processes, detection technologies and measurement equipment. Many of these developments are important advances that serve society, the human gnome project, computer code for automobile crash testing, important advances in environmental monitoring, medical imaging technologies, to name a few. The real moral issue is whether the University should be involved, as a public service, in an activity that involves weapons. I gave you my answer in the first paragraphs of this letter.

In summary, I believe that the University of California provides an important public service to the United States by bringing many of its values to what is undoubtedly one of human-kind’s most terrifying enterprises. My bottom line is quite simple. I believe that we are better off as a nation with the University of California in a significant management role with respect to that enterprise than we would be without it.


Daniel L. Simmons


(1) The suggestion on page 15 that receipt of payment in excess of cost for management of the Laboratories would jeopardize UC’s non-profit status indicates a misunderstanding of “non-profit” for tax-exempt status purposes. The requirement is “charitable” purpose, defined in part as educational and/or governmental. The term “non-profit” refers to the fact that benefits to not inure to a private individual or non-charitable entity. Research benefits for the University from the proceeds of the management contract do not in any way threaten the University’s status as a tax-exempt charitable organization under section 501(c)(3) of the Internal Revenue Code.

(2) When you think about it, proliferation of biological weapons is acutely more frightening than nuclear weapons because it requires less skill and easily available agents to create a weapon of mass destruction.

(3) I wonder if, on the same logic, we should advocate shutting down medical school departments that seek program driven research from pharmaceutical companies in the form of clinical trials.

(4) The recent LANL layoffs were structured by programmatic need rather than seniority. UCORP also notes settlements on law suits against LANL as evidence that its policies are unjust. No doubt similar evidence can be provided regarding University of California personnel policies in cases of firings, layoff or tenure denials.

(5) UCORP makes a series of valuable recommendations to improve management (page 15). Termination of the management contract would end this source of input.