University Commitee on Research Policy

University of California Academic Senate

May 11, 1996

Daniel L. Simmons
Professor of Law
Associate Provost-Educational Relations University of California
100 Lakeside Drive, 18th Floor
Oakland, CA 94612-3550

Re: Your critique of the UCORP DOE Lab Report (dated 4/10/95)

Your letter is an unusual mixture of your personal beliefs, specific comments about the UCORP report, quasilegal opinions, and a few negative comments that hardly raise the level of discourse, (e.g. "that's ridiculous"-p.4; "schizophrenic"-p.4; "Absurd"-p.5). You seem to have great difficulty in focusing on the report, and you misinterpret or misunderstand some fundamental specifics (e.g., the comparison of the ORNL "Distinguished Scientist" program with the numbers of collaborations of UC faculty with LLNL and LANL is meaningless.) The ORNL "Distinguished Scientist" program is more like the UC "University Professor" program. As suggested by the earlier critique that you co-signed with other Senate leaders, your current letter suggests that you have not read the UCORP report carefully.

UCORP did respond to your charge to evaluate the role of the University under the current contract, contrary to your complaint (p.1). Surely you cannot object to UCORP providing an historical context in its analysis, since this context permits the reader to compare the problems observed by earlier committees (e.g., Jendresen Committee) with those found by UCORP under the current contract. You may disagree with the style of the UCORP report, but its content reflects the rational views of a diverse faculty, even if the views differ from yours. In fact, David Krogh's analysis of the UCORP report suggests that UCORP answered most of the questions posed by you and other Council leaders.

One of your more curious statements is found in paragraph 2, p.1 ("The Committee's analysis...does not address (or even mention) the arguments presented by me and others...") The Committee considered the arguments presented by you and all the other consultants very carefully. The transcripts of all comments, including yours, were made available in the supporting documents. The reader can judge the value of each statement by examining these transcripts. The problem seems to be that UCORP came to a conclusion that differs from your own.

Please examine your paragraph in the middle of p.3 ("I think that the Committee's view of public service..."). We understand you to mean that you are prepared to damage UC if you perceive that something is a "public service". One could create a very long list of "public services" that might benefit various segments of society (road work, bridge repair, welfare, etc.) Would you wish UC to undertake the management of all these services without regard to possible damage to the University? In fact, the Committee fully understands that public service, whether to the nation, the state, or some segment of the population, entails some costs. But the Committee also firmly believes that the University is not obligated to accept every call to public service. The public service role, regardless of the origin of the request, should not damage the University. The Committee was unanimous in its conclusion that the management of LANL and LLNL is not an appropriate public service for UC.

UCORP's analysis of the contract in terms of public service specifically did examine the issue from both sides. Clearly, the DOE believes that management of the weapons labs is an important public service. But it must be a public service that is also in the best interest of the University, and UCORP concluded that it does not meet this standard. We also concluded that the management role as defined by the DOE does not require the special capabilities of the University.

As a Professor of Law with a specialty in taxes you offer an interpretation of IRS code in the footnote on p.4. I think we all agree that it is unlikely that UC would lose its non-profit status. Why then does the management contract carefully and repeatedly stipulate "no loss or gain"? Does UC gain financially if it is given some money by the DOE that it then uses to fund research, or some other normal University activity? Can such a transaction ever violate the "no loss or gain" clause?

We are pleased that you find important recommendations in the UCORP report. The fact that repeated faculty criticisms (every five years) of the UC management role have led to some improvements demonstrates the value of objective critical "outsider" review. It also points out the limited role of the faculty. If "UC management" were true management, and if the capabilities of the University in philosophy, social sciences, international relations, foreign policy, history, and all its other relevant strengths--in addition to those in science--were actually utilized in the management role, there might be a real benefit from having UC manage the Labs. Under the mechanisms used for the last fifty years, including the period of the current contract, the benefit to the nation from "UC management" seems negligible.

If funding at LBNL is the price or prize to the faculty for "UC management", then the faculty should be asked if it wishes to pay the price. If the contracts with LANL and LLNL were phased out, perhaps the DOE would not wish to support LBNL. However, it must be recognized that UC owns the land at LBNL, and given the many interconnections between UCB faculty and LBNL staff, who would want to replace UC as manager? Since LBNL is a National Lab, it must be assumed that the interconnections represent the best use of DOE funding for that site, and these relationships would in principle not be jeopardized by a change in the management contract. The claim that a change in managers would jeopardize LBNL funding is not supported by any concrete evidence.

On the matter of comparisons of Lab-university interactions, you should reread the text of the UCORP report with greater care. As already noted, the ORNL Distinguished Scientist program is similar to the UC University Professor program, and should not be compared with total faculty interactions. UCORP confirmed, as had the earlier Jendresen Committee, that UTenn-ORNL interrelationships, as reflected in joint appointments and collaborations, is much more intensive than UC-LANL or UC-LLNL interactions.

Contrary to your assertion, UCORP did not complain, but instead made observations from the facts obtained in our review. Specifically:

(a) non-UC faculty members do research and use the unique equipment at LANL and LLNL, although their universities do not hold a managment contract. It is clear that access to the Labs is not dependent on a management agreement.

(b) from the experiences of UTenn-ORNL, it is clear that UC faculty would still be able to interact with the Labs if they were managed by a private corporation.

(c) UC cannot "gain" financially from the management contract, but it appears that a small amount (trivial in the context of either UC or Lab budgets) of funding for UC research support has been approved by the Office of the President, and taken from the "management fee" with the understanding of DOE. At what dollar level would such action be regarded as improper favoritism to UC by a National Lab? Even if not "profit" in a legal sense, the appearance of financial gain or favoritism may be as troublesome as a clear violation of the contract.

With regard to review of classified work at the Labs, the fact that the "peer" reviewers must hold appropriate security clearances weakens your argument that objective criticism is possible. Furthermore, your concept of peer review differs from that of most scientists, who recognize that such review includes the free exchange of ideas, and review of every level of work from inception through funding, analysis of work in progress, through to publication.

Academic freedom in the University is a fragile thing; consider the UC experience with the loyalty oath. Look at the impact of industry-sponsored research on free and open inquiry, as discussed in an editorial in the Feb. 1996 New England Journal of Medicine. Contrary to your statement, UCORP does not have a "rose-colored view of university research." UCORP expressed its concerns, and suggested that a review of UC policy in this area might be needed.

What is "absurd" to a Professor of Law is not absurd to UCORP. It appears (p.5) that you think a state of national emergency exists now, and apparently will always exist, by your definition. Can there ever be a circumstance under which UC management of the Labs would be inappropriate?

Nowhere did UCORP complain of "evil profits", as you state on p.6.

I have spent my entire research career in an ORU that was developed specifically by Julius Comroe for the purpose of doing multidisciplinary collaborative research. The issue that you fail to recognize is whether program-driven work, e.g., to produce a better TV set, is subject to the same rigors of peer review: to obtain funds, to criticize the work, and to publish the results so that others may confirm or reject the findings. Program-driven research at the Labs and in some industrial settings clearly is not subject to the same level of peer review. When the NIH provides funds for research in a specific disease like asthma, the situation is very different than industrial funding of a specific project in the hope of developing a profitable drug.

The UCORP concern about protection of whistle-blowers is based upon study of cases occurring under the current contract. Historical comparison was used to indicate that the lack of UC oversight has been characteristic of the history of UC management of the Labs. There is little evidence of improvement under the present contract, despite the Yucca Mountain case you cite. Please read the text of the UCORP report, and the supporting materials. You, and apparently other members of the President's Advisory Council, choose to ignore at least six different whistle-blower cases at LANL and LLNL under the current contract that have resulted in settled or ongoing court cases. Your footnote (4) raises an interesting legal point. Granted that the loss of law suits does not mean that the personnel policies are "unjust"; but it may mean that the policies were applied or ignored in an illegal manner. These cases emphasize the point that critics are harassed and terminated at the Labs without evidence that UC has done anything to help the individuals involved, contrary to explicit UC policy.

UCORP is still concerned about the problems with personnel policy at LANL, and the apparent lack of appropriate oversight by the UC Lab. Administration Office. We have additional data to reinforce these concerns; the problems appear to involve UC management as much as LANL management.

It appears that the only time the faculty voice has been heard in the 53-year history of the management relationship is when the spotlight of public and media attention is focused on contract renewal. And criticism of the relationship is not welcomed, as one might hope in a university devoted to the free exchange and discussion of differing views. The intensity and quality of the attacks addressed against UCORP, which spent 18 months to produce a consensus report, is proof of just how unwelcome faculty input truly is in this management relationship.

UCORP accepts your count of three Senate members (p.7) on the President's Advisory Council. But you should desist from counting high administrative officials as representative of the faculty or Senate. Even though these individuals may hold formal faculty appointments, they are surely first and foremost administrators and part of the management team. We maintain, and we believe most of our faculty colleagues would hold this view, that our statement that there is little Senate input is correct.

The UCORP report did not state that UC would be held financially liable for a major environmental disaster. Again, you should read the text carefully. UCORP observed, based on statements made by Carl Poppe and others, that the DOE has adopted a policy of holding contractors more and more responsible for such problems, even after the fact. You seem to believe that the Regents' concern would prevent both the disaster and financial responsibility. You are of course free to hold that opinion, but it is only that, an opinion which may or may not prove to be correct. UCORP also raised the concern of public accountability, which goes far beyond financial indemnification. Should a major hazardous event occur at either LANL or LLNL, what would be the cost to UC's relationship with the citizens of California? You appear to dismiss this concern out of hand.

You claim (p.7) to know the "true basis of the UCORP recommendation". The members of UCORP are quite concerned about such public assertions, dealing with things that you cannot possibly know. The UCORP report addresses multiple concerns, and all of these were taken into account by the individuals who worked on the document. For you to imply hidden agendas is to belittle the process, and the Senate is not well-served by such statements.

Your statement about weapons design and testing is uninformed, and your "outrage" is misplaced. The federal government (President) has made it clear that if he judges that design and testing are needed, these activities will take place. The statement in the UCORP report on this issue is accurate and correct. We all hope, as you do, that these activities will not be needed, but that does not assure against changes in policy.*

* See article by Peter Weiss, Valley Times and Oakland Tribune, Nov. 17, 1994. The Lab retreated from an earlier statement that the above-ground testing facilities would not be used to develop new weapons.

I discussed this news story with Peter Weiss on April 23, 1996. In reviewing his story, Weiss stated the following: According to DOE Lab sources on Nov. 16, 1995, the NIF and other installations important for the SBSS nuclear stockpile can be used, in theory, to design new weapons. Most design experts agree, however, that a major new version of a weapon would require actual testing. (Paraphrasing a Mike Campbell: We could come up with new prototypes if not too different from existing types. But if a major design change were required, we would have to conduct actual tests.)

This position is similar to that taken recently by Sidney Drell, at the UCSC forum. Note that the Pentagon expects DOE to be able to develop new warheads, if needed. Furthermore, President Clinton has gone on record to say that the US will withdraw from the CTBT, if necessary, on the advice of DOE and DOD. The statement made in the UCORP report on this topic is correct as it stands.

We believe that professional historians will find little evidence in the historical record of UC's management of the Labs to support your apparent faith in UC management.

An underlying issue of debate involves philosophical questions: what is the university? what does it do? what is the meaning of research in the university? From its medieval foundation, the very word universitas means a corporation, i.e., a fictive individual whose identity exists in the law. That corporation, based on the model of the University of Paris, was a corporation of professors offering their knowledge and skills to students. The UC-Lab management contracts are instead built upon a definition of the University as a corporation governed by the Regents, who contract their management skills for a specific government project. The knowledge and skills of the University in teaching and research are in fact not being utilized in this process, except in a minor and relatively informal way through a few members of the President's Advisory Council. Instead, managerial skills--not at all related to faculty academic expertise (and arguably not a strong suit of University administration)--are what the Regents are expected to provide, perhaps without realizing that this conveys a smoke screen of legitimacy that has nothing to do with the faculty.

Warren Gold, Chair
University Committee on Research Policy