By Esther Israel
February 6, 2022
I read an Op-Ed article in the Salt Lake Tribune by Judith Pinborough-Zimmerman and Ronald Mortensen (January 7, 2022) entitled, “Commentary: The University of Utah needs an independent inspector to investigate allegations of misconduct.” https://www.sltrib.com/opinion/commentary/2022/01/07/commentary-university/ I agree that the State of Utah needs an independent inspector to investigate allegations of misconduct. This article originally focused on my responses to the points raised by Zimmerman and Mortensen in their published commentary. After some back and forth correspondence with Dr. Pinborough-Zimmerman and others, this final draft takes things a step further. It is also based on my experiences with the University of Utah, the Utah Attorney General’s office, the Utah Department of Workforce Services and the Utah legal system. I will show that the University of Utah is long overdue to take precautionary measures to reduce the likelihood of research misconduct.
I am a former graduate student at the University of Utah who conducted research while enrolled in a doctoral program in psychology. I was an employee of the State of Utah, first as a psychological testing assistant at Utah State Hospital and later as a mental health therapist at Salt Lake County Jail. Now I am blacklisted and have not been able to get a job with the State of Utah that desperately needs to be filled. I am currently a licensed mental health professional in the State of Utah in good standing. There was a time when my state-funded employer sued me and then threatened to report me to the Utah Division of Occupational and Professional Licensing if I didn’t sign their gag order. This employer also denied me unemployment insurance which the State of Utah Department of Workforce Services supported. With the exception of my blacklisting that continues until today, all the above events occurred in a three-year time span while I was a pro-se plaintiff in a copyright infringement lawsuit I filed against the University of Utah and five local and out of state psychologists. Coincidences? The probability of me having these experiences is statistically unlikely, unless there are hidden variables that perpetuate misuse of metascience.
Utahns are positioned as dependent variables and sitting ducks. They are expected to trust science. The University of Utah conflates their research institution status as purveyors of science. Most Utahns don't get to see that the University of Utah acts as the independent variable by marketing itself as an institution of higher learning. The unacknowledged reality is that the University of Utah is an arm of the State of Utah which enjoys governmental immunity. What does this have to do with science? Nothing! It does have a lot to do with reality. Reality, as we agree upon it, is what science is allegedly grounded in at the University of Utah. Whenever the University of Utah spins the facts, or acts poorly, their only concern is how much money they will expend on the cover up and damages.
The University of Utah has their own legal counsel at the Utah Attorney General’s Office. Whenever the Utah Attorney General’s Office spins the facts, or acts poorly, their only concern is what legal strategies to take to silence the whistleblowers and ensure the public is turned away from injustice. At best, the Office of General Counsel at the University of Utah and the Office of Research Integrity and Compliance at the University of Utah are misnomers. At worst, these offices are pitfalls for the victims of research crimes committed at the University of Utah by departments, professors, colleagues, staff and students. These offices seem to allow for complaints of research problems that don’t stop the problems, nor hold people responsible, nor lead to other effective actions. The Office of General Counsel and Office of Research Integrity and Compliance at the University of Utah use their positions to manufacture fear, make money and gain prestige at the expense of those that were wronged. The result of this cognitive technique is an academic culture of bystanders and passive enablers. It couldn't be a widespread problem. Therefore, those individuals who were fired, ousted and shamed, must be disgruntled, untalented individuals.
The University of Utah is adept at spinning stories, using euphemism and abstract language that will leave your head spinning. No matter who you are, your level of education and familiarity with the content, this is not a good place from which to evaluate science, cause and effect, evidence or subject matter jurisdiction. By dint of defending bad actors at and affiliated with the University of Utah, the Utah Attorney General's Office is a complicit spin doctor.
The Utah Attorney General’s Office is skilled in the sociopolitical art of denial. They refuse to acknowledge evidence that research misconduct occurred and involved specific individuals at the University of Utah. The Utah Attorney General’s Office discounts, dismisses and distorts evidence of vulnerable complainants as questionable, incomplete, misleading, false or inadequate. They fail to see research misconduct and fail to identify perpetrators at the University of Utah. The Utah Attorney General’s Office hides an unflattering reality by downplaying the research misconduct, portraying the complainant as someone who has a different viewpoint, and seeing to the role of educating, helping and explaining the scientific information they convince the public is important to know.
I was in touch with the Office of Inspector General (OIG) for the State of Utah back in 2016 when I was embroiled in a lawsuit with the University of Utah and five other psychologists. I reported that the Utah Attorney General’s Office was defending individuals named in the lawsuit, one of whom was never a resident of the State of Utah. I only heard back from the Assistant Attorney General on one of the defendants at the Utah Attorney General's Office whom I was complaining about. (Email exchange from 2016 is copied below.) I did not hear back from the OIG after I sent my letter. I don’t know why they chose to ignore my complaint, so I drew my own conclusion, that because they knew that I was pro-se and didn’t have money to call attention to my plight, they didn’t feel a need to acknowledge receipt of my letter in a pretense of justice or as a professional courtesy. The officer of the court and the office I was complaining about was handling my complaint for them!
Now that big data is lucrative to the University of Utah, there is more incentive for researchers and academic institutions to behave unethically. For those interested in learning more about Zimmerman’s complaint as it applies to autism research at the University of Utah, you can read further here. https://www.ageofautism.com/2020/12/big-data-big-research-hardball-university-politics-the-baptism-of-the-dead-and-the-utah-autism-whistleblower-1.html
In addition to having an independent inspector to investigate allegations of research misconduct, the University of Utah should take precautionary measures to reduce the likelihood of research misconduct. One way to do this is by separating the research requirements toward advanced degrees, from the academic department requirements toward the same advanced degrees. This will protect graduate students and non-tenured staff who are vulnerable to research misconduct, including pressure from academic advisors and tenured faculty to act unethically on their behalf.
Had I not been required to conduct research under the supervision of an academic research advisor, he would have never had the opportunity to access my original work, lock me out of his lab, give my work to other graduate students, and serve on master’s thesis, dissertation and other committees involving the unauthorized use and publication of my original materials. Nor would he have the ability to present himself and others as authors of my work, add or remove me as author of publications that I was not involved in or should have been involved in. Because my research advisor also had access to my Institutional Review Board research material submissions, he, along with the Department of Psychology and the Research Misconduct Officer, colluded to block me from investigating the research misconduct that I experienced while a graduate student at the University of Utah. I experienced institutional betrayal when the individual defendants and the University of Utah reversed our roles in their drama triangle. The individual psychologists became the victims who were blocked from doing valuable research. The University of Utah was the rescuer who provided the research platform to conduct and disseminate valuable research. The Utah Attorney General's Office cast me in the role of the persecutor when I sought to protect my copyright and point out plagiarism.
I have repeatedly been appalled by the University of Utah’s exploitation of their reputation as an institution of higher education and simultaneously enjoying the benefits of being a government entity. They alternate between their privileged positions as it suits their needs to cover up wrongdoing. I am not convinced that an independent Office of Inspector General at the University of Utah will solve most of the problems created from research misconduct. The same government mismanagement will prevail. We need not look any further than the lawsuits filed by individuals against the University of Utah and their default representation by the Utah Attorney General's Office. The dismissal of the University of Utah by the State of Utah due to Eleventh Amendment or governmental immunity act is ipso facto circumstantial evidence of conspiracy to cover up wrongdoing at the University of Utah by government officials employed at the University of Utah and the Utah Attorney General's Office. These are government institutions that claim to be committed to working for the benefit of the public and protection of vulnerable groups. Any scientist, legal scholar or caring citizen who bothers to review the data and testimony in the research misconduct lawsuits brought by individuals against the University of Utah and defended by the Utah Attorney General's Office, will find direct evidence of research misconduct, concealment of illegal behaviors and abuse of the whistleblower.
The entire state of Utah is tyrannized by misinformation from the press who cherry-picks data from scholarly works on sexuality, crime rates, mental health and addiction. We need to remove the blinders placed upon us by so-called journalism and the academic press and refuse to consume news and data from sources that do not do thorough fact checking, ethical research, reporting and advocacy.
Peer reviewed research is just that. If scientific investigators are unethical, their data are invalid and unreliable, even if it’s big data. When Utahns start reading, watching and thinking critically as consumers of information, we will know the difference between science, entertainment, provocation, swindling and published research. As the saying goes: there are lies, damn lies and statistics. With the help of the Utah legislature, the policies on autism, for instance, can be backed by scientific research for hire. Research that is done under pressure from funding sources yields results in support of the funding source. This is junk science. https://www.ageofautism.com/2020/06/cdcs-utah-whistleblower-and-autism-author-speak-out-on-the-autism-epidemic.html
Scientists, citizens and the government in Utah and elsewhere should be concerned with ethical research. If participants are coerced or duped, this is marketing and advertising. Business and the scientific pursuit of knowledge have different end goals. Participants that are informed and can potentially benefit from research participation will provide valid data. It matters who tells stories from the data. An unscrupulous researcher, departmental cover ups of research misconduct, systemic collusion and scapegoating, a legal system that permits attorneys to block evidence as part of discovery, are all variables that contribute to a verisimilitude of science, research and justice. (See 2017 email exchange below). Unfortunately, this only leads to unreliable data, findings, results and testimony. Citizens who know what they are up against with a government that is accountable to its citizens are in a democratic type of relationship. In conclusion, science and common decency have a negative correlation in the State of Utah.
From: Esther Israel
Date: Wed, Jun 8, 2016 at 11:00 AM
Subject: AG's Office Representing Private Individuals
To: "uag@utah.gov", Kyle Kaiser, "mpi@utah.gov”, "lataylor@utah.gov"
Utah Attorney General Reyes and Section Director Kaiser,
Please see the attached letter (also copied below) regarding the actions of the AG's office representing private individuals.
Sincerely,
Esther Israel
RE: Utah Attorney General Representation of Individual Persons Unaffiliated with the State of Utah; Esther Israel v. Univ. of Utah, Donald Strassberg, Jordan Rullo; Julia Mackaronis; Kelly Kinnish, and Michael Miner, Federal District Court, Utah, 2:15-cv-00741-EJF (filed 10/16/2015)
Dear Mr. Kaiser and Mr. Reyes:
It has been brought to my attention that the Utah Attorney General (AG) is representing various parties in litigation that were not connected with the State of Utah when the factual basis for the civil action against the individuals arose.
I have reviewed Utah Code Title 67 Chapter 5 and Section 1 and Section 17 (http://le.utah.gov/xcode/Title67/Chapter5/67-5.html). When read together, they appear to indicate that the Utah AG should represent the officers and agencies of Utah.
“Effective 5/10/2016
67-5-1. General duties.
The attorney general shall:
(1) perform all duties in a manner consistent with the attorney-client relationship under Section 67-5-17;
67-5-17. Attorney-client relationship.
(1) When representing the governor, lieutenant governor, auditor, or treasurer, or when representing an agency under the supervision of any of those officers, the attorney general shall:
(a) keep the officer or the officer's designee reasonably informed about the status of a matter and promptly comply with reasonable requests for information;
(b) explain a matter to the extent reasonably necessary to enable the officer or the officer's designee to make informed decisions regarding the representation;
(c) abide by the officer's or designee's decisions concerning the objectives of the representation and consult with the officer or designee as to the means by which they are to be pursued; and
(d) jointly by agreement, establish protocols with the officer to facilitate communications and working relationships with the officer or agencies under the officer's supervision.
(2) Nothing in Subsection (1) modifies or supercedes any independent legal authority granted specifically by statute to the attorney general.”
The parties in the case properly represented by the office of the AG certainly include the University of Utah, which is an agency of the State of Utah. Arguable, this may also include Donald Strassberg, who is and was at relevant times an employee of the State of Utah. (We will argue later as to whether or not defendant Strassberg was acting in his official capacity in misappropriating intellectual property and other acts.)
At relevant times, Defendants Rullo, Miner, Mackaronis, and Kinnish were not employees of the University of Utah. Defendant Rullo was a University of Utah clinical psychology graduate student from 2005-2011. Defendant Miner was never a student at, nor an employee of, the University of Utah. Defendant Mackaronis was a University of Utah clinical psychology graduate student from 2008-2014. Defendant Kinnish had graduated from the University of Utah’s clinical psychology doctoral program by the time I was enrolled in 2002.
My understanding of Utah Code Title 67 is that the authority of the AG does not extend to defending individuals employed by the State when acting outside of an official capacity, and certainly not non-employee students of the University of Utah for their publishing activities. (This is also the information I received from the Office of General Counsel at the University of Utah when I asked them to defend my copyright in 2008. Michelle Ballantyne, Esq., and other attorneys with the University of Utah’s Office of General Counsel informed me their office only represents tenured faculty.)
If you argue that the AG’s authority extends to non-employee former students of the University of Utah, there is the issue of failure to protect me when I reported plagiarism and copyright concerns. Furthermore, the individual defendants Rullo and Kinnish acted on multiple occasions when they were no longer even affiliated with the University of Utah. At the time these actions were taken, they were at other institutions (as students or professionals).
If, you have decided it is the policy of the Utah AG to provide free civil legal services to current or former University of Utah students and employees, I would like to ask the office of the AG to provide me with legal representation in this case. I would like to sign up for this service, and ask why the AG's office did not provide this assistance when I asked for it in the past. (I would like the AG to explore how their failure to protect me when I initially made my disclosure of plagiarism and copyright violations enabled further intellectual property infringements.) And, I would like the AG to resolve the conflict of interest if they defend opposing parties.
My understanding of Utah Code Title 67 is that the Utah AG has neither the authority, or the desire, to extend a commitment to provide legal representation to every graduate student or researcher that publishes a paper with a professor who is a Utah state employee. If so, that would extend an obligation for the Utah AG to legally represent tens or hundreds of thousands of individuals across the country and the world, including myself.
Of course, if the Attorney General provides such services on a discretionary basis, it is an area ripe for potential corruption as the office would extend services to friends and supporters, but not everyone, and such official discretion would be an open opportunity to discriminate against protected classes – women, minorities, etc. I do note that previous Utah AG’s have had certain legal problems regarding their actions in office.
Unless you can provide statutory authority for your actions, I urge you to withdraw immediately as counsel for the named individual Defendants Rullo, Miner, Mackaronis and Kinnish.
I further urge you to seek reimbursement for the legal services already provided to each individual at a suitable billable rate, and turn the proceeds over to the Utah State Treasury. If you fail to do so, you are providing services to these individuals, which are taxable as income. Utah taxpayers would be interested to learn your justification for this. As you are aware, such a taxable gift must be reported via issuance of a 1099, as taxable income for federal and state purposes.
I look forward to your prompt reply.
To accelerate this process I have taken the liberty of filing this letter as a “Complaint”, and forwarding a copy to the State of Utah Office of Inspector General.
Sincerely,
Esther Israel
From: Kyle Kaiser
To: Esther Israel
Cc: "uag@utah.gov"; "mpi@utah.gov"; "lataylor@utah.gov"
Sent: Wednesday, June 8, 2016 3:01 PM
Subject: Re: AG's Office Representing Private Individuals
Hello Ms. Israel:
I have the "statutory authority" that you have requested.
The Utah Attorney General's Office has primary responsibility to provide legal representation in cases where coverage under the Risk Management Fund applies. Utah Code s. 63G-7-901(1)(a). The Risk Management Fund is the state's insurance pool. See Utah Code 63G-4-201, -202. It extends liability, property damages, and other types of insurance coverage to entities such as the University of Utah, and employees of the University. See Utah Admin. Code R37-1-3, -4. The University of Utah has an insurance policy with Risk Management, for which the University pays premiums. See Utah Code 63G-4-101; Utah Admin. Code R37-1-6. The claims in your case were tendered by the defendants, and the Division of Risk Management determined that, based on the allegations in your complaint, the claims were covered by the insurance policy, and a defense was provided. Utah Admin. Code R37-1-5. Facts that may come out in discovery may change the Division's coverage determination, but I have authorization to represent the defendants.
Please note that this coverage is not extended for every claim that may be brought, and it is extended only as part of a liability policy. E.g. Utah Admin. Code R37-1-5(d). Thus, coverage is not extended when a governmental employee is a plaintiff in a lawsuit. That distinguishes my representation of the defendants in this case from your request for an attorney to prosecute your alleged copyright claims.
The Attorney General's Office does not extend attorneys on a "discretionary basis." Coverage is determined by the State's Risk Management Fund based on the controlling statutes, rules, the insurance policy that exists between the agency and the Fund, and the claims asserted. See Utah Admin. Code. R. 37-1-4, -5.
My representation of these defendants is proper, and I will not be withdrawing.
Kyle J. Kaiser
Section Director, Civil Rights Section
Litigation Division
Utah Attorney General's Office
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, UT 84114-0856
kkaiser@utah.gov
(801) 366-0100
On Thu, Jan 12, 2017 at 5:46 PM, Esther Israel wrote:
Dear Mr. Kaiser,
Please send me a copy, by PDF and hard copy, of my deposition, including exhibits.
Thank you,
Esther Israel
From: Kyle Kaiser
To: Esther Israel
Cc: Kristin Nau; Kate Shepherd
Sent: Monday, February 20, 2017 9:34 AM
Subject: Re: request for deposition transcripts
Hello Ms. Israel:
I just received this e-mail on Friday, even though it is dated January 12. I don't know why it was delayed.
As we discussed at the deposition, it is generally inappropriate for parties to provide opposing parties with copies of deposition transcripts. See Schroer v. United States, 250 F.R.D. 531, 537 (D. Colo. 2008) ("The general rule, established by the Federal Rules of Civil Procedure, is that a party must obtain copies of deposition transcripts directly from the court reporter upon the payment of a reasonable charge, and not from opposing counsel or the court."); see also United Trans. Local 1745 v. City of Albuquerque, No. 08-2103, 352 F. App'x 227, 231 n.2 2009 WL 257 3815 (10th Cir. Aug. 21, 2009) (unpublished) (holding that cited authorities "hold that a party cannot compel an opposing party to produce copies through discovery in the same case in which the transcripts were made").
You will certainly get copies of any portions we use in drafting a motion for summary judgment, or at trial if it goes that far. See Schroer, 250 F.R.D. at 537; see also Smith v. Miami-Date Cnty., No. 13-21986-CV, 2014 WL 407343, at * 2-3 (S.D. Fla. Jan. 22, 2014) ("[I]f Defendant intends to reference the deposition transcripts in dispositive motions, use them for impeachment purposes at trial, or otherwise rely upon them after the discovery cutoff in defense of Plaintiff's claims ..., then Defendant will be required to produce a copy of the deposition transcripts at those times. However, Defendant does not have to produce a copy of the deposition transcripts at this time."). However, the rules do not require that you receive a free copy of your transcript now, and if I were to provide you one, I'd be unfairly taking away a valuable source of income for the court reporter.
Copies may be obtained from Michelle Mallonee at Alpine Court Reporting.
Thank you for your understanding,
Kyle Kaiser
Kyle J. Kaiser
Section Director, Civil Rights Section
Litigation Division
Utah Attorney General's Office
160 East 300 South, Sixth Floor
P.O. Box 140856
Salt Lake City, UT 84114-0856
kkaiser@utah.gov
(801) 366-0100
