# FILED

Novemb er 19, 1997

Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR

T OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHV ILLE

MICHAEL SANDERSON, ) ) Plaintiff /Appella nt, ) Dav id son Equ it y No. 94- 380 6-III

) vs. ) ) UNIVERSITY OF TENNESSEE, ) Appeal No. 01A01-9607-CH-00289 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE

THE HONORABLE ROB ERT S. BRANDT, CHANCELL OR

For the Plaintiff/Appellant : For the Defendant/Appellee : Marilyn L . Hudson Beauchamp E. Brog an Knoxville, Tennessee Ronald C. Leadbetter Knoxville, Tennessee

AFFIRMED

HOL LY KIRBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

DAVID R. F ARM ER, J.OPINION

Inthis case , a studen

t at the Un

iversity of Tennessee was charged with plagiarism. Afte r a hearin g, an admini strative law judg e found that the stud ent had no t commit

ted plagiarism. The Universi ty Chancellor reversed the AL J’s decision, issuing a final order finding the stude nt guilty of plagiarism. The student a ppealed this decis ion to the c

hancer y c ourt, pur suant to the Tennessee UniformAdministrative Procedures Act, which affirmed the finding of

plagiarism. We affirm the decision of the chancery

court. Inthe spring of 1994, Plaintiff/Appellant Michael Sanderson (“Sanderson”) was a senior underg raduate student at The University of T ennessee at Knoxville. He was enrol led in a class taught by Professor Robert Gle

nn. Professor Glenn distributed the clas s sy

llabus ele ctronic ally

at the beginning of the semester. The syllabus stated that a term pa per would account for 30% of the course grade. The sy

llabus further provided: Al l assignment s are to be the original work of the student prese nting the work. Sources used in preparation are to be cited, and direct quotations are to be identified as such. Presenta

tion of mat

erials pr epared by a nother pe rson as y our own w ork is cause for failure in the course. The class discussed the subject of plagiarism during two sepa rate cl ass meetings, and Sanderson attended class on b oth of the se occasions. One of the course textbooks assigned as re ading for each class mem

ber def ined plag iarism as follows: Plagiar ism means using an author’s words or ideas without giving credit. Credit for ideas usually is in the form of citing the author and ye ar

of publicationin the text and reference list. Credit for actual words goes bey ond this to giving the pa ge number in the text and using quotation marks around the quoted material. The course syllabus provide d that the first draft of the term paper was due on April 20, 1994. It did not state that the first draft would be g raded, butstated that the draft counted for 15% of the final grade . Sander son submitte d his first draft by E-mail to Professor Glenn and received an initial grade of 84, one of the three hi ghest grades in the class. After Glenn’s r eview, Sanderson decided to enter his paper in the university-sponsored McClung Research Paper Contest. Sanderson w as ill the day the conte st entries were d ue, and his girlfriend took his computer disk to the speech departm ent and e

ntered t he pape r in the c ontest fo r him. One of the fa

culty members w

ho revie wed the c ontest

entries c ontacte d Glenn a nd told him that some of the material in Sanderson’s paper was not original. Glenn

then compared Sanderson’s first draft and the paper entered in thecontest with the original sources. He concluded that much of the first half of Sanderson’s paper had come from Persuasion: Theory and Research , a book written2

by Daniel J. O’Keefe. This book was a textbook in another speech cla ss that Sanderson had taken previous ly. After th e compar isons, Glenn se

nt Sander son an E- mail messa ge ask ing to me et with him to discuss his term paper. OnMay 4, 1994, Gl en n m et wi th Sa nd er so n i n t he pr es en ce of Dr . F aye Julian, the head of the speech department. Glenn told Sanderson that he believed portions of the te rm paper had been plagiarized. Sanderson denied the charge a nd claimed that he had

not cited meticulou sly

in his firs t draft because he believed such e xhaustive citation was not re quired in a roug h draft. He divulged that he used an unpublished master’s thesis as a source but that he failed to cite that source any

where inthe paper. All of t he other sources were cited somewhe re in the body of the

paper and in the bi bl io gr ap hy. Sanderson

also claimed that his girlfriend had mistakenly taken the wrong

computer disk to submit his paper in the contest. He then produced a third version of the pape r, printed from a different disk, which he claimed was supposed to have be en submitted in the contest. Following the meeting, Glenn compared Sanderson’s first draft, the contest paper, and the paper that Sanderson gave him at the May 4th meeting with a number of the source docu m ents. After compari ng all th ree versions to the sources, Glenn concluded that Sanderson had committed plagia rism. Glenn notified Sanderson that he would receive an “F ” in Speech 499. Gle nn then forwarded

the matte

r to th e Univ ersity

administr

ation for disciplina

ry action, a nd the Uni

versity formally cha

rged Sanderson with plagiarizing in the first draft of his term paper. A hearing on the charg e of plagiarism was held befor e an Administrative Law Judge (“AL J”). Noting that the University did not have a n established definition of plagiarism, the ALJ used the definition in Black’s L aw Dictiona ry : “The act of appropriating the literary c omposition of another,

or parts of passages of his writings, or the idea s or language of the same, a

nd passing them off as the product of one’s own mind.” Black’s Law Dictionary 1308 (4th ed. 1968). Based on this definition and the testimony

of Sanderson and his girlfriend, the AL J found that

Sanderson did not int

end to commit plagiarism and therefore was not g uilty of the charg e. Pursuant to Tennessee Code Annotated § 4-5-315, the University appe aled the ALJ’s initial order to the University Chancellor, William Snyder. C hancel lor S nyder did not h old a h earing, but reviewed the record. Chancellor Sny der c ompared all three drafts of Sanderson’s pape r to the original source materials and, citing the definitions of plag iarism util ized in the class, concluded that Sanderson

was guilty of

plagiarism. He issued a

final order, reversing the AL J’s decision, affirming3

the penalty of a

final grade of “F” f

or the course and suspending Sanderson for one year. Sanderson thenappeale d Chance llor Sny der’s f inal order to the chancery court under Tennessee Code Annotated § 4-5-322. The chance

ry court re viewed the entire

record , includin

g Exhibit 15 to the hearing before the AL J, in which all three versions of Sanderson’s paper we re directly

compared t o the so urce materia ls, both ci ted and un

cited. Af ter doing so, the chancery

court fo und as fol lows: A review o f the re cord show s that ther e is ample evidenc e that petitioner d id plagiari ze. Thi s is especially evident f rom an examination of exhibit 15 to the hearing transcr ipt, a comparison of the petitioner’s three versions of his paper and his original sources. There are numerous examples in

which the petitione r took ver batim froma source and did not enclose the quotation wi thin quotation marks or cite the source and pag e. Ther

e are nu merous e xamples whe

re he too k an idea

from a source and failed to credit the source. There are also numerous places where the petitioner paraphrased

the source by

simply changing

a word or two of a

sentenc e, y

et he did notcite his sourc e. Fin ally , the peti tioner us ed a gr

eat dea l of mater

ial from a master’s thesis by John

Hutchinson, but nowhere cites the source. These all support Chancellor Snyder’ s finding of plagiarism. The chance

ry court fo und that th ere wa s substant ial and ma terial e vidence to support

t he Unive rsity’s final order, and therefore

affirmed the determination of the plagiarism. Sanderson now appeals the chancery court’s decision. Onappeal, Sanderson contend s that the U niversity ’s final decision was not supported by substantial and material evidence because Chancellor Sny der failed to take the ALJ’s determinations of credibility into account. Sander son claims that

plagiarism requires intent and notes that only the ALJ had the opportunity to obser ve the w itnesses and assess credibility. B ecause the ALJ found credibl e Sanderson’s testimony that he did not intend to commit plagiarism, Sanderson argues that Chancellor

Snyder’s final orde

r finding him guilty

of plagia rism is not supported by substantial and material evidence. The University arg

ues that Chancellor Snyder was not required to take th e ALJ’s findi ngs of fact into account when he reviewed the initial order. The University maintains that the c hancery court correctly limited itself to reviewing only the f inal agency

decision t hat was is s ued by Chancellor

Snyder, rat

her tha n th e initia

l de cis ion ren der ed b y the AL J. It also contends that there was substantial and material evidence to support the University ’s final decision. Judicial review o f the fina l decision of an adm inist rative agency

is governed by

the Tennessee UniformAdministrative Procedures Act, Tennessee Code Anno tated §§ 4 -5-101 to 4-5-325 (1991 & Supp. 1996). The chancery court may re

verse or modify

the decision if the rights of the petitioner4

have been pre

judiced b ecause

the admin

istrative finding s, infer

ences, conclusions, or decisions are unsupported

by “substantial and mater ial evidence in light

of the entire record.” Id. § 4-5-322(h)(5). This Court reviews a final agency dec i sion under the same standard. Humana of Tennessee v. Tennessee

Health Faci

lities Comm’n , 551 S.W .2d 664, 667-68 (Tenn. 1977). Although not defined by statute, courts have held that substantial and material evidence re quires “something less than a preponderanceof the evidence, but more than a scintilla or glimmer.” Wayne County v. Tennessee Solid Waste Disposal Control Bd. , 756 S .W. 2d 274, 280 (Tenn. App. 1988) (citations omitted). Under this narrow standard, this Court does not review the fact issues on a de novo basis and cannot displace the a gency ’s judgment as to the weight of the evidence even when there is evidence that could lead to a different decision. Id. at 279 (citations omitted). This caseinvolves appellate review of an administrative agency ’s final decision. Under the Tennessee Uniform Administrative Procedures Act, an initial order becomes a final order only whe

n the initial order is not appealed in acco rdance wi th § 4-5-315 of the Tennessee Code Annotated. Tenn. Code Ann. § 4-5-314(b) (1991 & Supp. 1996). The standard g overning an agency ’s review of an initial order entered by an administrative officer

or hearing officer is set

forth in § 4-5-315(d): The person reviewing an initial order shall exerci se al l the decision-making power that the agency

would have had to render a final order had the agenc y presided ove

r the hearing, except to the extent that the issues subject to review are limite d by

rule or statute or by the a

gency upon notice to all parties. Id. § 4-5-315(d). Likewise, the U niversity’s rules provide the following standard for review of an initial order: The Chancellor, in reviewing an initial or der, sha ll exercise all the decision making power that he wo

uld have had he pre sided ove r the hea ring him self, exc ept to t he extent that the is sues subje ct to review are limited by

law or ru le of the Universi ty or by the Chancellor upon notice to all parties. Tenn. Admin. Reg. 1720-1-.01(13)(d) (Octobe r 1996). Sanderson

argues that the AL

J, as the trier of

fact, is to be afforded

great defere nce as to his determinations of the credibility of witnesses and the weight to be given their testimony

. In support of this arg ument, San

derson c ites Lettner

v. Plummer , 559 S.W.2d 785 (Tenn. 1977). In Lettner , alleged drug dealers challeng ed the police’s seizure of larg e amounts of cash from their home. Id. at 786. An administrative hearing officer held that the c ash was subject to forfeiture under the drug contro l laws. Id. The chancery court affirmed this decision. Id. On appeal, the Tennessee Supreme Court note d that the

credibi lity

of witnes ses “is primarily a matter f or determination

by the5

hearing officer.” Id. at 787. Because there was ample evidence to support the administrative agency ’s decision, the Court affirmed. Id. Sanderson al so cites Landers v . Fireman’s Fund Insurance Co. , 775 S.W.2d 355 (Tenn. 1989), in which the Tennessee Supreme Court reiterated the general principle that deference

should be g

iven to a trial ju

dge’s d etermina tions as to t

he cred ibility of witnesses. Id. at 356 (c it ing Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315 (Tenn. 1987)). The University arg ues that Chancellor Snyder was not required to defer to the determinations of cre dibility

of the ALJ in this case because Chance llor Snyder had the a uthority to conduct a de

novo review of the i nitial order. See Tenn. Code A nn. § 4 -5-31 5(d) (1 991); Tenn. Admi n. Reg. 1720-1-.01(13)(d) (October 1996). See also Patterson v . Hunt , 682 S.W.2d 508, 515 (Tenn. App. 1984) (noting that a university cha ncellor had de novo review in issuing a final decision) (citations omitted). The University relies on United State s v. Raddat

z , 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980 ), in whic

h the Unite d States Supreme Court considered whether due process requires

a decision maker to personally observe witne s ses testify. Id. Raddatz involved a district court’s review of a mag istrate’ s propose d finding s. Howev er, the Co urt anal ogized those fac ts to administrative agenc

y c ases and

noted tha

t the per son or ent

ity making th e fin al agen cy dec ision may, but is not required to, def er to a hearing officer’s finding s. Id. at 680, 100 S. Ct. at 2414-15. The Court concluded that due process does not require the decision maker to observe the witnesses testify an d that there is “broad discretion to accept, reje ct, or modify the [fact finde r’s] findings.” Id. at 680, 100 S. Ct. at 2415. Inaddition, the Unive

rsity cites Gilbert v. University of Tennessee , No. 3 (Tenn. App. Jan. 31, 1983), perm. to appeal denied (Tenn. April 4, 1983 ), cert. de nied , 471 U.S. 1 050, 105 S. C t. 2108, 85 L. Ed. 2d 474 (1985). I n Gilbert , the Univ ersity

appealed t he initial order of a hearing examiner finding the accused innocent of a disciplinary charge. Id. at 1-2. The university chanc ellor entered a final order rever sing the findings of the hearing examiner and

finding the acc used gu ilty

as charged. Id. at 2. On appeal, Gilbert challenged the constituti o nality of the uni

versity ’s rule permitting the chan

cellor to substitute

his decis ion for th at of the hearing examiner’ s. Id. at 3. The Courtstated

that “the law on

this topic i s cry stal clea

r that ad ministrati ve age ncies ar e not bound to accept the findings and recommendations of hearing examiners.” Id. at 5. F ollo wing Raddatz , the6

Courtheld that

due proc ess does n

ot requir e the dec ision make

r to observe the witnesses testify

. Id. at 5-6. In Lettner , cited by Sanderson, the decision of the administrative hearing officer was the agency ’s final decision, and the chancellor reviewe d it under th e standard set forth in Tennessee Code Annotated § 4-5-322(h)(5). Lettner , 559 S.W.2d at 786. In this case, however, the ALJ’s decisionwas only an initial o rder, and w as appealed to the University Chancellor. Chancellor Snyder reviewed the matter under the corre ct standard, exercising the same “decision making power that he would have had had he presided over the hea ring himself.” Tenn. Admin. Reg. 1720-1-.01 (13)(d) (October 1996). Seealso Tenn. Code Ann. § 4-5-315( d). Chanc ellor Sny der appr opriate ly utilized the definition of plagiarism given to the class by Professor Glenn, that is, “using an author’s

wo rds or ideas without giving credit,” instead of the de finition of plagiarism utilized by th e ALJ , which required an

intent to pass off the works of another as one’s own. After reviewing theentire record, including a comparison of all three versions of Sanderson’s paper with the so

urce ma terials, Chancellor

Snyd er issue d the ag ency ’s final order, findi ng Sand erson guilt y of plagi aris m and affirmingthe penalty. As noted in Raddatz , supra and Gilbert , supra , Chancellor Snyder was not required to observe the witnesses and was not bound by the determination of the ALJ. Therefore, Chancellor Snyder’ s order was the final order, subject to review by the chancery court, and this Court, by the standar d set forth in Tennessee Code Annotated § 4-5-322(h)(5), that is, a determination of whether Chancellor Sny der’s final order was sup ported by “substantial and material evidence in light of the entire re cord.” Tenn. Code Annotated § 4-5-322(h)(5) ( 1991). After reviewing the

record, the chancery

court concluded that there was “ample evidence” that Sanderson plagiarized. We agree. After revie wing the entire record, and comparing all three versions of Sanderson’s paper to the source materials, re gardless of whether intent is required, ther e is clearly “ substantial and materia l evidenc e” to supp ort Chanc ellor Sny der’s f inding of plagia rism. Therefore, we affirm the de cision of the chancery court.7

The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution may issue if nece ssary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

DAVID R. FARMER, J.