A former UC Irvine engineering professor, charged with multiple felonies for conflicts of interest involving up to $700,000 in payments from industry, is expected to argue he is exempt from prosecution because the UC system is a sovereign entity.
The seldom-seen legal tactic, which UC-funded lawyers also are using in a similar felony case involving a UCLA professor, has disturbed prosecutors and shows the extent to which one of the world’s most prestigious public university systems will go to defend its realm.
Tatsuya Suda, 59, who until January was on UC Irvine's faculty for more than 25 years, faces six felony counts in Orange County Superior Court for allegedly receiving from $325,000 to $700,000 illegally from KDDI Inc. of Japan between 2006 and 2009 while committing perjury to hide the illicit payments.
The UCLA case involves Michael F. Lofchie, a senior political science professor charged with a conflict of interest for hiring his wife for summer programs in Europe beginning in 2008.
A Los Angeles County Superior Court judge agreed with the defense arguments made by attorneys for Lofchie and in March dismissed the single felony count, ruling that UC employees weren’t covered by the conflicts law. Los Angeles District Attorney’s office is appealing that decision to the 2nd District Court of Appeal, with a prosecutor calling the Lofchie defense at times “ridiculous.”
At a Superior Court hearing in Santa Ana last month, Joe Williams, the deputy Orange County district attorney prosecuting Suda, said he learned from opposing counsel that a similar exemption argument would be made by lawyers for the UC Irvine engineer.
The California Constitution grrants substantial governance autonomy for the UC system of 10 campuses to thwart political meddling. But prosecutors in both Orange and Los Angeles counties insist that defense attorneys are extending immunity from state laws too far.
“The ability to ferret out criminal violations would become zero if their argument holds,” said Williams of the DA's major fraud division.
Williams supports arguments by the Los Angeles district attorney's public integrity division that "the University of California is not a separate sovereign” and that its internal conflict of interest code “does not preempt the state’s authority to regulate all state agencies, including UC employees" like Lofchie.
Spokespeople or attorneys for UC Irvine and the professors would not comment.
But a UCLA spokesman issued a statement defending the university’s internal policies, calling them “robust mechanisms to manage conflicts.”
“UC takes very seriously our adherence to conflict rules,” the spokesman wrote. “We have never claimed that our professors are above any law; we only said they are not subject” to the general state law prohibiting conflicts of interest.
Suda is the first UC professor criminally charged for violations involving the university’s system for monitoring and preventing conflicts of interest by researchers, authorities said. The charges include accusations — part of which he has acknowledged to university investigators — that he double billed the university for travel expenses while he was jetting around the world for academic meetings as often as 170 days a year.
For more than 30 years, the United States government has required such regulatory systems for institutions receiving federal research funding.
Scholars who study academic conflict of interest issues say the Suda prosecution could have a significant impact on the strained regulatory system, which has already been criticized for lax enforcement.
The stakes in these cases are such that the UC Office of the General Counsel in Oakland filed a friend of the court brief seeking dismissal of the Lofchie charge when Los Angeles Superior Court Judge Clifford L. Klein was considering the case arguments earlier this year.
Neither Williams nor Susan Schwartz, a Los Angeles deputy district attorney on the Lofchie case, could recall such a petition at the Superior Court level in their decades of practice. An amicus brief typically is filed for an appellate proceeding.
To comply with U.S. law, California has a regulatory system whereby UC professors must declare conflicts of interest with research funders to prevent private work at public expense. The state Fair Political Practices Commission or FPPC can fine violators but rarely has, because so few cases are referred to the agency by UC officials.
Early in 2011, Suda settled an FPPC investigation by paying a $14,000 civil fine for failure to disclose conflicts involving his research for Japanese firms. His was one of only four such cases that FPPC officials could identify, including one involving a UCLA physician similarly fined in 2010 after congressional instigation.
Suda’s case arose in 2009 when his students complained he allegedly was forcing them to complete phony travel vouchers for UC Irvine expense reimbursement. The complaints led to a UC Irvine police investigation, in which court records state that Suda acknowledged the double billing.
Two years ago, the probe was referred to county prosecutors, whose inquiry was made more difficult by a lack of cooperation by the Japanese firms. Suda was born in Japan, and educated there at a top university.
For instance, KDDI Inc., a major telecommunications firm, had contracted with Suda for as much as $450,000 for projects on network systems.
In late 2010 when inquiries about conflicts were underway, Suda is said to have retired from the full-time faculty of the Donald Bren School of Information and Computer Sciences. Officials said he left the emeritus faculty last January.
Suda was arrested last November at the Fallbrook home of his wife, singer Rita Coolidge, who in the 1970s won two Grammy awards with her former husband Kris Kristofferson. Suda remained jailed until April, when he was released on $50,000 bail.
The next hearing in the case is scheduled July 9, when terms of restitution Suda has been paying are to be discussed. The argument that Suda is exempt from prosecution isn’t expected to be made then. Such an issue likely won’t come up until a preliminary hearing, which isn’t scheduled yet, Williams said.
Mia Frances Yamamoto, an experienced criminal defense attorney from Los Angeles, is now representing Suda. A UC Irvine spokeswoman would not say whether the university is paying Yamamoto's fees.
UCLA officials acknowledged they are paying for Lofchie’s Century City attorneys, Gary S. Lincenberg and Benjamin D. Lichtman.
In their February arguments to dismiss the Lofchie charge, they asserted that the professor was exempt from prosecution because a 2002 state law excluded UC personnel involved in “teaching or research responsibilities” from conflict of interest charges. The law’s provision apparently was included to ensure UC has a free hand to make such selections without interference from California government.
But Schwartz and Los Angeles deputy district attorney Jennifer Lentz Snyder argued in an opposing petition that the law “has no bearing on the case” because Lofchie’s wife, Kelly Comras Lofchie, was hired as “a program assistant” for a short, traveling political science course through several European cities..
Recognizing “the importance of protecting the independence of the university,” the judge wrote in his five-page opinion it was “unlikely” the general state law prohibiting conflicts was “intended to apply to [UC] employees.” He added that “these concerns are best addressed to the Legislature.”
Williams said he was baffled by the logic of UC officials, who have engaged in enforcing FPPC law but would seek to avoid applying a criminal statute to professors.
“If their argument is correct, they don’t fall under FPPC law,” said Williams.
California’s FPPC law was an outgrowth of a 1980 federal act that gave universities patent rights to discoveries from federally funded research, a method to tap academic inventions to create new economies. To further their academic enterprises, universities then were to share in the economic rewards of the commercialization of inventions.
But scholars who study this process say it has gone awry nationally, leading to the most valuable patents returning little to pubic institutions like the UC system.
Because the UC system is one of the largest research complexes in the nation, the conflict of interest cases could have a major impact enforcing regulatory safeguards.
“It is sad,” said Peter T. Gianiodis, an entrepreneurship professor at Clemson University in South Carolina who studies university technology protections.
“The federal law was enacted with the best intentions. Unfortunately, the original scheme is not working. A case like [UC Irvine’s] may cause a massive rethink in terms of enforcement and a rewriting of the rules of the game.”
Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at firstname.lastname@example.org.