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LEGAL PERSPECTIVES on the ROLE of CERTIFIED APPROVERS

LEGAL PERSPECTIVES on the ROLE of CERTIFIED APPROVERS. Mark Bohnhorst Associate General Counsel* * These materials are informational and are not legal advice. UNIVERSITY OF MINNESOTA. A top public research university Privilege to support the research mission Significant responsibility.

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LEGAL PERSPECTIVES on the ROLE of CERTIFIED APPROVERS

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  1. LEGAL PERSPECTIVESon the ROLE of CERTIFIED APPROVERS Mark Bohnhorst Associate General Counsel* *These materials are informational and are not legal advice.

  2. UNIVERSITY OF MINNESOTA • A top public research university • Privilege to support the research mission • Significant responsibility

  3. YOU WORK FOR GOVERNMENT • Philosophical Perspective: • State is a sovereign • John Locke, Second Treatise on Government, Chapter 205 • Wisest of all constitutions: • Sovereign cannot be sued for wrongdoing • Sovereign’s officers can be sued for wrongdoing

  4. WHAT LAWS CAN GET ME INTO TROUBLE? • Federal False Claims Act • State cannot be sued • Individuals can be sued • Intentional wrongdoing • Willful or wanton wrongdoing • Ostrich “head in the sand”

  5. FALSE CLAIMS ACT CONT. • Causes another to submit a false claim • CA in the chain of causation • $10,000 per claim • Three times the amount of the false claim

  6. CRIMINAL LAWS • Intentional false statements • Defrauding the Federal Government • Conspiracy • Aiding and abetting • Prosecutorial discretion

  7. BOARD OF REGENTS POLICY Legal Defense of Employees (1): Subd. 1. Protection Described. Subject to subdivisions 2-4, the regents of the University of Minnesota shall defend, save harmless and indemnify any employee of the University against any threatened, pending or completed action, suit or proceeding, direct or indirect, whether civil, criminal, administrative, derivative or investigative, whether groundless or otherwise, wherever brought, arising out of an alleged act or omission occurring during the period of employment if the employee was acting within the scope of the employment or official capacity, against expenses, attorneys’ fees, judgments, fines, penalties, punitive damages and amounts paid in settlement, actually and reasonably incurred.

  8. BOARD OF REGENTS POLICY Legal Defense of Employees (2) Subd. 3. Eligibility Criteria; Certain Conduct Not Protected. To be eligible under this policy an employee must have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the regents of the University of Minnesota, and, with respect to any criminal action or proceeding, the employee must have had no reasonable cause to believe the conduct was unlawful. There shall be no obligation either to defend or to indemnify in the event of malfeasance in office or willful or wanton neglect of duty or other actions. . .

  9. BOARD OF REGENTS POLICY Legal Defense of Employees (3): Subd. 3 . . . Furthermore, this policy shall only apply in those cases where employees seeking a defense and indemnification has given prompt written notice of the action, suit or proceeding to the regents of the University of Minnesota, has requested defense by the University and has provided complete disclosure and cooperation in the defense of the claim or demand. Subd. 4. Determination of Eligibility. The determination of the eligibility of an employee to the protection described above shall be made by the president of the University after appropriate investigation. A determination of eligibility may include limitations or exceptions.

  10. QUESTIONS/ISSUES FROM OCT. ’01 (1) • Are there laws I need to know besides the agency rules? • Do I need to memorize A-21?

  11. QUESTIONS/ISSUES FROM OCT. ’01 (2) • I’m covering for a CA in another department (other CA is on vacation, leave, etc.). I know nothing about the research, the PIs, materials authorized to be purchased, etc. What is my liability for approving transactions (e.g., large equipment purchase)? • Am I responsible for making sure the supplies are actually used on the grant?

  12. QUESTIONS/ISSUES FROM OCT. ’01 (3) • Is my signature as a CA any more significant than my signature on any other documents?

  13. Other Discussion Points from Oct. ’01 (1) • Power relationship between PIs and CAs • Realities of how busy everyone is, time pressures, PI travel

  14. Other Discussion Points from Oct. ’01 (2) • CA gut checks: • Documenting reasons • Elevating issues • Payroll as the major risk factor • CA role in salary adjustments • CA responsibility vs. responsibility for management of the grant as a whole

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