13 March 1996

From: David Krogh, Academic Council

To: Academic Council Members

Dear Council Members:

This memo comes in response to a request from Council Vice-Chair Duncan Mellichamp for a content review of the recent University Committee on Research Policy (UCORP) Report on UC and the Department of Energy Laboratories. In particular, he asked that I identify information in the UCORP report relevant to questions posed in a Feb. 4 memo to Council members from the four Academic Council members of the President's Council on the National Laboratories. (These members are Mellichamp, Arnold Leiman, Daniel Simmons and Malcolm Nicol). The Feb. 4 memo provided a detailed interpretation of UCORP's charge and went on to pose a series of questions that its authors believed the UCORP report may have left unanswered. I have been asked to identify those sections of the UCORP report that address these questions.

I have defined the "relevant" passages of the UCORP report in fairly broad terms. If sections of the report spoke only tangentially to the questions raised in the memo by the President's Council members, I have noted them here.

Summary of Findings: The UCORP report contains a good deal of material relevant to questions 2a and, to a lesser extent, 2b posed in the Feb. 4 memo. The former question addresses the scope and nature of UC's management of the labs; the latter addresses the collaborations between UC and the laboratories. With respect to 2a, such purely factual material as is contained in the body of the report generally is set forth as support for one or another conclusion the committee reached about UC management. Somewhat more factual material is presented in connection with question 2-b, as the committee attempted to quantify the scope of interactions between UC researchers and counterparts at Lawrence Livermore (LLNL) and Los Alamos (LANL) and provided a brief review of UC's Institute on Global Conflict and Cooperation. UCORP said, however, that it found it "surprisingly difficult to obtain current and reliable statistics" on lab-campus interactions.

There is no section of the UCORP report devoted to answering question 3, on whether management or interactions have improved from the previous contract to the present one. The committee does, however, make some contract comparisons in connection with discrete issues.

Question 4 asks whether Academic Council membership on the President's Labs Council has served to improve management, incorporate academic values into labs culture, or co-opt the faculty. The UCORP report does not address any of these questions.

Question 5 asks how the labs management contract should be modified if it ends up being renegotiated. Since the report calls for terminating the contractual relationship with LLNL and LANL it does not set forth an explicit set of recommendations for modifying the current contracts. It does, however, make several judgments that could serve as recommendations for revisions to the current contracts.

Detailed Analysis and Index to Report Excerpts: Question 2a: "What are the scope and nature of the University's management relation? Does it contribute to (enhance) the operation of the laboratories?"

This question is addressed most directly under question 3 posed by UCORP, beginning on p. 10 of the report. After some comment on the current process by which the labs are reviewed by the President's Council on the National Laboratories, UCORP provides its own review of UC management, beginning on p. 11. This is listed below as Excerpt 2a-1.

UCORP also provides on p. 5 the general view of the Galvin Committee Report on the GOCO system. (Excerpt 2a-2).

UCORP notes on p. 10 what it sees as a shortcoming in UC's management with respect to its personnel review system (Excerpt 2a-3).

It notes the uses to which the labs management fee are put and notes the trouble that comes with what it sees as excessive delegation of authority to the labs (p. 14). This latter argument is presented as Excerpt 2a-4. The specific recommendations that follow this critique are set forth in excerpt 5-1.

In its Conclusions section (p. 17), UCORP went over some management issues related to freedom of expression and UC's "hands-off" management style. Excerpt 2a-5.

Question 2-b: "What are the scope and nature of the Laboratories' interactions with the University? Do they enhance the teaching/research mission of the University?"

This question is addressed most directly in section C of the UCORP report, "Is the University's management of the Laboratories supportive of or consistent with its primary mission of teaching and research?" Beginning on p. 6, UCORP speaks to the question of UC/Labs collaborations. Excerpt 2b-1.

Following some comparative information on labs/university collaborations elsewhere, UCORP speaks (on p. 9) of the cooperation between UC Berkeley and the Lawrence Berkeley lab and goes on to note how, in its view, LLNL and LANL fall short of this standard of collaboration. Finally, it notes what it called the "special case" of the Institute on Global Conflict and Cooperation. The LBNL, LLNL/LANL material and the IGCC material are contained in Excerpt 2b-2.

Question 3: "Have the measures in (2a) and (2b) improved relative to the previous contract period, i.e., prior to 1992?"

There is no section of the report devoted to a comparison between operations under earlier contracts as opposed to the present one. Material on this question appears in connection with a few discrete issues.

UCORP notes on p. 2 and p. 18 what it calls "improvements made in the current contract."

It notes on p. 6 that "Important collaborative efforts have resulted from the special UC campus-laboratory collaborations (CLC programs) funded by the most recent contract . . ." though it does not compare these to what existed under the previous contract. Also with respect to labs/UC collaboration, the report notes on p. 17 that "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 #017#management fee.'"

On p. 13, the report notes that "UCORP recognizes that the performance-based evaluation program does involve UC much more directly in the evaluation of Science/Technology programs than in previous contracts."

The report has comparative material on freedom of speech and whistleblower issues, relating the performance under previous contract to that under the current one (p. 9). This material, which could fall under the heading of Question 2a, is set forth in Excerpt 3-1. Also with respect to Question 2a, UCORP notes (p. 11) that the current labs evaluation process "represents a significant improvement from the program oversight described in previous reviews."

Question 4: "Does the present arrangement (that involves direct Academic Council membership on the President's Council) work to improve the management process? To incorporate more academic values in the traditional lab culture? Or have faculty been co-opted by this relation, as is sometimes alleged?"

The report speaks of oversight by the President#018#s Council (pp. 10-11), and goes on to address the issue of Academic Council participation on the President's Council with reference to the concept of shared governance. This material is set forth in Excerpt 4-1. Nowhere, however, does UCORP note whether Senate participation on the President's Council has worked to improve the management process. Likewise, it does not address the question of whether this participation has acted to incorporate more academic values into lab culture and it is silent on the question of faculty co-optation because of participation in labs management.

Question 5: If the contract eventually is renegotiated, how should it be modified to enhance the management relation?

Since the report calls for terminating the contractual relationship with LLNL and LANL, it does not set forth an explicit set of recommendations for modifying the current contracts. However, it does make several judgments that could serve as recommendations for changes in the contractual relationship. Thus, beginning on p. 14, UCORP sets forth a set of examples by which the University might "establish its own mechanisms to provide objective oversight of this enormous and complex program, to fulfill a true management role." The examples are listed below as excerpt 5-1.

Beyond this, the report has in its Conclusions section, intermingled with judgments on the UC/labs relationship, a set of what could serve as contractual recommendations (p. 18). The recommendations (but not the judgments) are listed in excerpt 5-2.

Excerpts from the UCORP Report

Excerpt 2a-1: (Scope and nature of UC's management) Despite these improvements noted above, UCORP's review of "UC management" of the Laboratories suggests that the University still takes too narrow a view of its role: (a.) "UC management" is actually management by UCOP and the Regents, with little formal faculty input and absent any recognition of the role of shared governance; (b.) Possible conflicts of interest among OP oversight personnel; (c.) UC (the Regents and the President) delegates too much authority to the Laboratory Directors; and (d.) Performance-based evaluation program may lack objectivity and incentives.

a. Definition of "UC management:" When people not familiar with the contracts hear that UC is managing the National Laboratories, most believe that the faculty has an active role. This is not the case. Although the University President does seek advice from the Academic Council in making appointments to the President's Council on the National Laboratories, only one UC faculty member is officially appointed to the Council (the Chair and Vice-chair of Academic Council serve ex-officio). "UC Management" in fact means management by the Office of the President (OP), and this, as suggested by the following discussion, is not management in the usual sense of the word. Nor does it seem to represent "shared governance" as usually practiced in the University because the Regents have done little formally to involve the Academic Senate in providing advice in the management of the Laboratories.

The phrase "UC management of the Laboratories" is frequently used to describe the contractual arrangement, but it over-simplifies a highly detailed and complex set of relationships between UC and the government. UC shares responsibility with the DOE for operation of the Labs, where the land and equipment are owned by the government. The contracts involve at least four kinds of relationships: a co-equal partnership in administration of program; superior-subordinate roles in matters of security and safety; "dynamic tension" in administrative areas; and UC acceptance of National Statutory and Executive Order requirements covering equal opportunity, small business, and the like.

The University recognizes that the DOE is responsible for the conduct of the program and for assuring that government funds are properly and effectively utilized.

"Government-owned facilities must be utilized to further national interests and to perform DOE's statutory mission in the areas of national defense, energy research and development, health and safety and safeguards and security. The conduct of the work under this contract is substantially separate from the University's other business....It is the responsibility of DOE to formulate an overall program, taking into consideration the proposals submitted by the Laboratory, consistent with funds appropriated by the Congress and all its other program needs....Upon DOE approval, it is the University's responsibility to conduct its operations as closely as possible within the limits established by these approvals..."[Modif. No. M205, Suppl. Agreement to Contr. No. W-7405-ENG-48 between the United States of America and The Regents of the University of California, Effective October 1, 1992.]

b. Possible conflicts of interest of UC Laboratory Management Oversight Personnel. It seems clear that OP missed an important oversight opportunity when it decided to hire, as its chief OP administrators for the DOE Laboratories, individuals who come from the Laboratories and who return to them when their OP tenure is completed. This problem has been compounded because 30 - 35 additional personnel have been hired from the DOE Laboratories to serve as members of the Laboratory Oversight section of the OP Business and Finance Office. Furthermore, senior members of the President's Council may also not be free from conflicts of interest.

c. OP delegates too much management and oversight authority to the Laboratory Directors. UC "oversight" of the National Laboratories may be as effective as any that could be provided by other corporations, and perhaps better, as believed by the personnel in the OP responsible for the work. But who can provide this objective review? More important, the actual role of the University in "management" of the Laboratories raises fundamental questions about the nature of the contracts. From UCORP's review, it is clear that UC does not actually manage the Laboratories. UC has never assumed authority or responsibility for management of the Laboratories in the usual sense of the word. The University does not define or shape the scientific or programmatic goals of the Laboratories, nor does it have authority or responsibility for the budget involved in these programs. Instead, UC (the Regents and the President) delegates to the Laboratory Directors the authority to define programs and negotiate their costs and scope with DOE.

The management functions conducted by OP include:

• Review of employment policies for consistency with UC policy (See below)
• Supervision/review of performance-based evaluations

  On the other hand, management functions not conducted by OP, but which are delegated to LAB/DOE include:

  • Setting project priorities
  • Setting policy
  • Purchasing
  • Negotiating or controlling costs
  • Environmental review
  • Hiring/firing functions
  • Evaluation of professional employee performance
  • Implementing grievance procedures

    UCORP review indicates that serious concerns have been raised about Human Resource Management at LANL. Personnel policies at LANL appear to differ markedly from UC policies. There appear to be significant differences at LLNL as well. It is not clear whether the differences have been granted as specific exceptions after review by OP, or whether they reflect lack of oversight by OP. Regardless of the origin of the differences, they appear to be of increasing concern to workers at the Laboratories as well as UC faculty [Appendix II, No. 34].

    Inadequate OP oversight of the Laboratories is fostered by the fact that the University and Laboratory management are protected from the cost of any legal fees associated with their management responsibilities. For example, when an employee who is terminated unjustly at LANL, takes the case to court, wins the case and is rehired, $1 million may be spent in defending the case. Under the current contract, DOE pays all legal fees involved. This situation results in a lack of fiscal incentive for improved behavior by either Laboratory management or OP oversight.

    d. Lack of objectivity in performance-based evaluation of Laboratory Science/Technology programs. UCORP recognizes that the performance-based evaluation program does involve UC much more directly in the evaluation of Science/Technology programs than in previous contracts. Performance-based evaluation appears to involve objective outside ad hoc reviews of both science and administrative functions. Nevertheless, UCORP's review raises concerns about certain aspects of the conduct of this evaluation program:

    Incentives for senior management to achieve its goals appear questionable because the incentives are not objective (i.e., uncoupled from performance, as it is alleged that senior management receives a pay raise whether no goals are achieved, or if all goals are achieved with "outstanding" scores).

    Excerpt 2a-2: (Scope and nature of UC's management) Among other findings, the Galvin Committee concluded that government-ownership and contractor-operation of the Laboratories does not work well. "...the system has evolved to a virtual GOGO--Government-Owned, Government Operated, but certainly strongly government-dominated system...[with] growing emphasis on DOE administration...and oversight....[and]....expanded DOE field office management oversight roles." There are too many review groups both internal and external, resulting in excessive micromanagement.

    Excerpt 2a-3: (Scope and nature of UC's management) Unlike a university where faculty are evaluated by committees of peers, laboratory personnel are subject to review by division directors, leading to concerns by laboratory personnel that they may not always be fairly reviewed. True University management would work toward a scientific personnel review system that is more comparable to the academic review process used in the University of California.

    Excerpt 2a-4: (Scope and nature of UC's management) UCORP accepts the fact that the DOE ultimately must be responsible for setting the scope of the programs and assuring Congress that the moneys were spent on programs for which they were appropriated. But this does not mean that UC (President and Regents) must delegate all authority and responsibility to the Laboratory Directors. OP can provide input into all aspects of how these goals are developed and the methods by which they are achieved, as well as providing input into the estimates of costs involved and mechanisms to validate the appropriateness of expenditures. OP must not delegate, but rather it must establish its own mechanisms to provide objective oversight of this enormous and complex program, to fulfill a true management role.

    Excerpt 2a-5: (Scope and nature of UC's management) This essential commitment to freedom of expression raises difficulty for University management in three areas: classified research, program-driven research that receives little peer review, and lack of "whistle-blower" protection for Laboratory personnel. 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.

    Excerpt 2b-1: (scope and nature of interactions) The Laboratories do contribute to University activities through their non-classified activities. Important collaborative efforts have resulted from the special UC campus-laboratory collaborations (CLC programs) funded by the most recent contract and equally important collaborative efforts have resulted from funds available to universities in general. UCORP found it surprisingly difficult to obtain current and reliable statistics on Laboratory-University collaborative relationships based on University records (although, in response to our queries, a database has now been developed for future use that will be based on information supplied by the Laboratories) [Appendix II, Nos. 13 - 20].

    The data for fiscal 1995 are reported in somewhat different forms by the two laboratories:

    LLNL reported interactions with 223 UC faculty and 129 faculty from other universities; 97 UC researchers and 696 from other universities and research organizations.

    LANL reported their scientists had joint publications with 333 UC faculty and 1,215 faculty from other universities; there were affiliation agreements with 176 UC personnel and 664 from other research organizations; and 49 research assistants from UC and 600 from other research institutions [Appendix II, No. 13].

    It is not known how an "interaction" with a UC faculty member or with a faculty member from another university should be defined. In this context, it is not known what is meant by a university "researcher." Similarly, it is not known how many of these reported publications were internal, classified documents, and how many were external and published in unclassified peer-reviewed professional journals. A university-generated database would have helped to make such distinctions explicit.

    With these caveats, we estimated from the data provided by the Laboratories that 34% of LLNL's interactions are with UC personnel and 8 - 22% of LANL's interactions are with UC personnel. Thus, UC-Laboratory collaborations appear to be important. Furthermore, UCORP does recognize the concerns of some of these UC faculty that severance of formal contracts with the DOE Laboratories may jeopardize their research funding, or access to unique scientific equipment. These concerns appear to be outweighed, however, by the fact that both LLNL and LANL support substantial research efforts with faculty from universities not contractually affiliated with the DOE.

    Two principles appear clear regarding UC's mission of teaching and research: (1) because the relationship to the National Laboratories is for public service, UC should not receive preferential treatment with respect to access to Laboratory research facilities or funds; and (2) There is no identifiable reason why all existing collaborations, whether research or teaching, should not continue whether the Laboratories are managed by UC or another entity. While some UC-Laboratory collaborations are funded by management contract moneys, such as part of the Institute for Geophysics and Planetary Physics (IGPP), the Institute on Global Conflict and Cooperation (IGCC), and the current CLC grants, other laboratories which are managed by private corporations maintain extensive university collaborations.

    Excerpt 2b-2: (scope and nature of interactions) This model appears comparable to the experience of UC Berkeley students and faculty at Lawrence Berkeley National Laboratory. LBNL has contributed to the missions of DOE and its many predecessors through active, hands-on, intellectual participation of faculty and students, devoted to the development of research questions and their innovative resolution. Even today, the Director of LBNL and almost all Division Directors hold professorial positions at UC Berkeley. These, along with a few hundred faculty members, lead LBNL's research directions, geared to achieve the missions of DOE. If one looks at the active leadership role played by the faculty and students of the University, it is evident that the management aspect of the institution is merely an adjunct to the active intellectual contribution of a vibrant University to vital national needs. Thus, there is ample justification, both ethical and practical, for LBNL to be contractually-linked to DOE. With the new designation of LBNL as a National Laboratory, it will expand its scope, not only to serve the research needs of the UC system, but also other institutions of advanced learning, within and without California. LBNL is truly an Multi-campus Organized Research Unit of the UC system. It is known for its excellence and openness in research. There is no ambiguity about DOE being a customer of LBNL. LBNL accepts the responsibility to deliver scientific products of the highest quality, for which it is duly compensated.

    To date, few scientists at either LLNL or LANL have received such joint appointments or spend significant time on UC campuses, although an increasing number of special programs are being offered to foster such activities. The success of both the ORNL and LBNL models in furthering the basic mission of the university suggests the following conclusion:

    When programs requiring security classification are carefully and physically separated from the national laboratory facilities, close collaborations between university faculty and laboratory scientists are not only feasible but can be fostered. These may include joint appointments and major contributions both to research and teaching on the university campus. On the other hand, when classified research programs are closely integrated into the physical arrangement and programs of the National Laboratories, close collaborations between laboratory scientists and university faculty in research and teaching appear to become much more difficult.

    Even with the best of intentions to maintain an atmosphere of academic freedom in non-classified activities and programs, very few programs and facilities appear to be "outside the fence" (i.e. free of the logistical hurdles imposed by security). Thus, it is not surprising that relatively few campus-laboratory collaborations have taken root at either LANL or LLNL. There are, of course, notable exceptions, including the IGPP, the IGCC, as well as the UC Davis programs at LLNL and LANL.

    The Institute on Global Conflict and Cooperation (IGCC) is a particularly important special case. It was funded as part of an overall bargain to win support of the faculty for renewing the contract [Appendix II, No. 24, Waugh, Five-Year Review, IGCC, 1995]. Currently, the IGCC has an overall annual budget of about $2 million, with approximately half of that derived from the DOE contract. The IGCC has developed into a major policy advisory organization, with the potential to contribute to national and international conversations regarding weapons and peacemaking policies. The IGCC appears to be the only UC organization that may be directly dependent upon the Laboratory management contract, although to the extent that its work is of value to the DOE beyond encouraging renewal of the contract, this funding could be maintained.
    

    Excerpt 3-1: (Change from previous contract to present contract) Freedom of speech for lab personnel:

    A review of the role played by the University in protecting Laboratory scientists acting as critics, or so-called "whistle blowers," prior to the current contract is disappointing (e.g., the Woodruff demotion for his criticism of Teller during the Strategic Defense Initiative ("Star wars") debate is a well-known example [Appendix II, Nos. 2, 19]. Unfortunately, the role played by the University in protecting critics under the current contract still appears to leave much to be desired (e.g., DeWitt had his security clearance rescinded when accused of writing a review article based on classified materials--all of which had been previously reported publicly in the Congressional Record); [Appendix II, Nos. 19, 31]. There appears to be little evidence that the University insured that critics were free to express themselves, or were protected form harassment by their supervisors.

    Excerpt 4-1: (effects of Academic Council participation in labs management) When people not familiar with the contracts hear that UC is managing the National Laboratories, most believe that the faculty has an active role. This is not the case. Although the University President does seek advice from the Academic Council in making appointments to the President's Council on the National Laboratories, only one UC faculty member is officially appointed to the Council (the Chair and Vice-chair of Academic Council serve ex-officio). "UC Management " in fact means management by the Office of the President (OP), and this, as suggested by the following discussion, is not management in the usual sense of the word. Nor does it seem to represent "shared governance" as usually practiced in the University because the Regents have done little formally to involve the Academic Senate in providing advice in the management of the Laboratories.

    Excerpt 5-1: (recommendations for contract modifications) OP must not delegate, but rather it must establish its own mechanisms to provide objective oversight of this enormous and complex program, to fulfill a true management role.

    Some specific examples include:

    Oversight of senior administration's behavior in performance-based evaluation program should insure a better correlation between assessment scores and financial rewards (i.e., no pay raise if no goals are achieved).

    Utilize ad hoc, outside, neutral experts to conduct monitoring of programs that require compliance with existing local, state, or national environmental, as well as health & safety regulations. This approach would not only ensure the validity of the data, but proper OP oversight of Laboratory management's use of the data would also ensure the credibility of such programs, as viewed by Laboratory workers, as well as by the public.

    Laboratory personnel policies must be reviewed by OP on a regular basis to ensure they conform with UC policy. Proper UC oversight should grant few exceptions to UC policies, unless thoroughly documented and rationalized. More important, UC oversight should develop mechanisms to examine objectively the implementation of these policies by Laboratory senior management. This would not only ensure proper implementation, but -- in those cases contested by Laboratory employees -- hopefully, achieve a settlement without the necessity of a court trial. Unfortunately, the present contract frees both OP oversight and Laboratory management from any fiscal responsibilities for errors in administering human resources, or health & safety policies because the DOE absorbs all these legal costs.

    OP oversight must develop proper mechanisms to ensure that all employees at the Laboratories have the same "freedom of speech" protections of University employees. UCORP's review indicates that all too often OP not only did little to insure that freedom of speech was possible, but also failed to prevent harassment of employees by Laboratory management.

    Excerpt 5-2: (Recommendations for contract modifications) UC should continue and strengthen cooperation and collaboration with all DOE Laboratories in areas not involving classified research.

    UC should continue the strong, mutually beneficial arrangement with the Lawrence Berkeley National Laboratory.

    The University's management of the LLNL and LANL is generally inadequate because there is still an insufficient effort to provide an independent and objective evaluation of Laboratory policies and procedures. . . .

    Ideally, UC might work toward a physical and administrative separation of classified research at Lawrence Livermore and Los Alamos National Laboratories, turning over responsibility for classified work to another entity, while maintaining responsibility for non-classified research. Although a laudable goal, based on our review, UCORP believes that this option is neither practical nor feasible. . . .

    Because separation from LLNL and LANL may be a lengthy process, in the interim, the University must emphasize in its negotiations with the DOE: the enhancement of academic freedom of laboratory personnel; the mitigation of environmental hazards, with involvement of the public; the use of outside, neutral observers to monitor matters involving possible occupational and environmental hazards and exposures; and the significant improvement in the objectivity and independence of the UC Laboratory Management staff.
    

    david.krogh@ucop.edu
    ------------------------------

    Academic Senate, Irvine Division, cgardner@uci.edu