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BEFORE THE GOVERNING BOARD OF THE 

MARICOPA COUNTY COMMI,i'NITY COLLEGE DISTRICT 

MARICOPA COUNTY COMMUNITY 

COLLEGE DISTRICT, 

) 

) HEARING COMMIITEE 

) 

v. ) FINDINGS OF FACT, CONCLUSIONS· 

) OF LAW, AND RECOMMENDATION 

-'D;;..;R='-'C=L"'-EO..;;,P;;...;A...;..T'"""RI"""A;.,;;....;;_MAR.;.;....;;;..;..;. T=IN=E=Z'-· ----) 

Pursuant tO the October 16, 2013 Scheduling Order, having reviewed aU of the parties; 

pleadings_ and exhibits and conducting a hearing on November 18,2013, the Hearing Committee 

(by majority vote) hereby submits the following Findings of Fact, Conclusions of Law and 

Recommendation. 

FINDINGS OF FACI' 

1. After having taught mathematics full-time for ten years at Denver Community ! 

Co liege, Dr• cieopatria Martiriei moved to Arizona and started teaching mathematics full-time' at -· : . · · - · r · · 

ScottsdB-;Ie Co~unity College on J~u'ary 1, t9ss. _ - -,_·,_;.- ·,.,, · .: , -~. ,'' .. ·.,, ..-- f · .:·· 

2. Dr. Martinez voluntarily transferred to Phoenix College ("PC") in 1995 and has l 

been_ teaching mathematics there full.:time ever since, · 

. . . 3. Dr. Martinez eJected to voluntaPJ,y transfer to PC because there were very few· 

minority students attending-Scottsdale Community College, and she wanted to use her bilingual 

education skills in the mathematics classroom to better educate the large number of minority 

students attending PC; 

4. Dr. Martinez· was elected by her colleagues to serve as the Chairperson of the 

Mathematics Department of PC from 2002 to 2005. 

5. In early 2010, PC discovered that Dr. Cleopatria Martinez may have exposed 

MCCCD to potential liability for copyright infringement. 

6. Dr. Martinez testified that, during her twenty.:eight years ofteachuig mathematics 

in the MCCCD system, she and her colleagues ~ the Mathematics Departments of both 

Scottsdale Community College and PC routinely borrowed mathematics problems from other 

mathematicians to use in their student handouts for educational purposes on a not for profit basis. 

7. Dr. Martinez testified. without rebuttal, that this borrowing of mathematics 

problems is a longstanding, widespread custom throughout the District and academia at large. 

~ Instead of requiring her mathematics students to purchase textbooks, Dr. Martinez 

prepared her own course material_s which she called her "Lecture Notes" and distributed them to 

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her students. MCCCD Exhibit List# 4-5 (Martinez.Depo., pp. 77:17-78:15, 106:16-108:16,. 

121:25-140:13,132:16-137:25). 

9. ,Dr. Martinez read the Copyright Act of 1976 and believed that it authorized her to 

use small portions of other scholars' work under the 11Fair Use11 doctrine because she was using it 

only for classroom teaching purposes on a not for profit basis and her use of the material did riot 

undermine the potential market for the other scholar's work. 

10. Per the "Fair Use" doctrine of the Copyright Act,. the "use ofa copyrighted work • 

. . for purposes such as criticism, comment. news reporting, teaching (including multiple copies 

for classroom use), scholarship, or research, is not an infringement of copyright.'' 17 U.S.C. § 

107. 

11. Or. Martinez copied problems from copyright protected textbooks and inserted 

them into he(course materials . . MCCCp Exll.ibit List# 4-5 (Martinez Depo., pp. 106:16-

Ul8:16). . . 

. . 

12. Dr. Martinez. in her Basic Arithmetic (MAT082) coursef copied problems directly 

from a copyrig~te4 textbook entitled "Basic Mathematics" and inserted them into-her "MAT 08Z 

Basic Arithmetic.Spring 2010" course materials which she distributed to students. MCCCQ 

Exhibit List ## 20 (Full-Sized Excerpted Comparison). ShE! did nf;)t seek or obtain permission 

from the·copydght.holder.. - . . . . . . . : ·,· . . ·, . ·. :: _., 

13. Dr. Martinez also copied probie~s direcdy from . the ·Sullivan & " Sullivan 

"Precalculus" textbook and inserted them into her ''MAT1·82 Trigonometry Spring 2010" course 

mate:dals. MCCCD Exhibit List ## 22 (Full-Sized Excerpted Comparison). She did not seek oi' 

obtain pe_nnission from the copyright holder. . • ' ... . 

14. Dr. Martinez did not require her students to purchase textbooks in her Spring 

MAT082 Course. MCCCD Exhibit List# 18 (email from Dr. Martinez stating "I Indicated in my 

syllabus that, instead of a published textbook, I was using lecture notes in my MAT082· class.") 

. 15. Dr. Martinez did not require her students to purphase textbooks in her Spring 

· MAT182 Course. See Dr. Martinez's hearing testimony (conceding that students were not 

required to purchase a. textbook in her Spring 2010 ~ Tl82 course). 

16. On or around January 12,2010, MCCCD's Vice President of Academic Services, 

Ronnie Elliot, sent Dr. Martinez an email notifying her that there were alleged copyright related 

probl~ with the materials she ·had printed for the Fall 2009 and Spring 2010 semesters. 

MCCCD Exhibit List# 23 (January 12,2010 email). The materials in question were packets of 

course materials for Dr. Martinez's MAT182 and MAT187 courses and contained .mathematics 

problems and graphs that were taken from copyrighted textbooks. ·MCCCD Exhibit List # 1.1 

. (Ronnie Elliot OecJaration, ns-9); MCCCD Exhibit List # 16 (MAT182 course packet); · 

MCCCD Exhibit List# 7 (Sean Garrison October 28, 2010 Memorandum). 

. 17. Dr. Martinez u~ed three of the four packets of .. lecture notes .. in the Spring of 

2010 in two pre-calculus classes. See District Exhibit 6, parts 1-3. 

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18. The MCCCD administration, following. Vice President Elliot's email, repeatedly 

explained its copyright concerns to Dr. Martinez and asked Dr. Martinez to remove any 

copyright protected mathematics problems from her materials. See Kake.r Hearing Testimony.· 

19. On Januacy 26, 2010, Vice President Elliot sent Dr. Martinez an email outlining 

MCCCD's concerns regarding Dr. Martinez's potential copyright infringement. MCCCD 

Exhibit List # 24 {January 26, 20 1 0 email). 

20. On January 28, 2010, MCCCD in~house-counsel Margaret McConnell discussed 

copyright compliance with Dr. Martinez telephonically. MCCCD Exhibit List# 25 (January 28, 

2010 email). 

21. Dr. Martine;!'! did not benefit from the multiple MCCCD copyright information 

sessions noted above. 

22. PC;s own expert witness, Sean Garrison, testified that under the "Fmr Use11 • • 

doctrine, someone could lawfully copy from a copyrighted textbook without either ~:~sing or 

purchasing the textbook. · 

.. 23.· ·. On. February. s~ zoio.- Vic~ .r.residen1 ·of Academic Affairs Casandra Kakar •. Interim Vice President of Administrative SerVices Paul DeRose, and Dr. Martinez met to discuss 

Dr. Martinez~s ~ll~ed.misu5e of copyrighted. materials •. MCCCD Exhibit List# 26 (E~bnuuy . . , .. :· · . ... I2,-20tO~rf!aji}. · ·. . . . · .. ~>: .... ... ·.·:' ··· : •, • • • • & 

24. Dr. Martinez; h~ not u~e~ any .of the four sets of "lecture. notes" since the Spring 

of2010 when PC frrst raised·its concerns ~ega.rdingthe notes. · . . 

· · ~s •. .- On April; IS, .201Q, PC ~ibrarian Ann R9selle conducted-a personalized;one-on- ... · ·· -., 

one copyright trahiing sesSlon With · Dr: Martinez. MCCCD Exhibit List '# 28 (Cqpynght 

PowerP~int Presentation). Sett.alsq, i<..akar Heiuing Testim~my. . . '_.. -· 

26; When Dr. Martinez met' with the librarian, the librarian told Dr. Martinez that Dr. 

Martine:t: lcnew as much about copyright law as she did. See Martinez Hearing Testimony. 

27. Following the revocation of Dr. Martinez's copying privileges, Dr. Martinez was 

required .to submit her copy requests to Mathematics Department Chairperson Mr. Sueyoshi so . 

that Mr. Sueyoshi could review· her materials for possible copyright violations prior to copying 

and distribution to students. MCCCD Exhibit l-ist I# 8 (April2, 2010 Directive). 

28. Dr. Martinez sought and obtained a form of written pennission ftom the publisher 

of the textbook, Sullivan & Sullivan's "Preca]culus." to copy materials from their book after PC 

accused her of violating copyright law. 

29. On or around April 19, 2010. Dr. Martinez attempted to bypass the copying 

restrictions by_ having an adjunct mathematics Professor, Jolmny Santellan. make 24 sets of 

copies of her "Lecture Notes" for distribution to her mathematics students without obtaining 

prior approval- from the Mathematics Department Chairperson. MCCCD Exhibit List # 12 

(Sueyoshi Decl., ~9); MCCCD Exhibit List I# 4-S (Martinez Depo., pp. 223:11-224:21). 

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30. · Because Dr. Martinez did not feel she was able ·to obtain reliable guidance 

regarding copyright compliance from the District, she sought advice from a private intellectual 

property attorney regarding the issue, Mr. Frederic Bellamy. 

31. Mr. Bellamy reviewed the first two sets of Dr. Martinez's "lecture· notes" and 

concluded that they did not violate copyright law because they fell under the "Fair Use" doctrine. 

32. Mr. Bellamy based his conclusion that Dr. Martinez did not violate copyright law 

on the opinion that the portion of material that Dr. Martinez copied from the Sullivan & Sullivan 

Precalculus textbook was very small, that she used the copied materials exclusively for 

educational purposes withf:)ut any profit motive, tqat the content of the copied material consisted · 

of mathematics problems that are arguably not subject to copyright in the first place, and that the 

small portion of the textbook that Dr. Martinez copied did not adversely impact the potential 

market for the textbook. 

33. At the hearing, another lawyer practicing in the area of intellectual property law, 

Sean Garrison, testified on behalf of PC. In contrast to-Mr. Bellamy, Mr. Garrison testifiecl at the 

hearing that the first three sets of Dr. Martinez's lecture notes violated copyright law. 

34. ·: ' In contraSt to his testimony at the hearing ofNov~ber 18~ 2013, in his. writte~ .· ,. 

report Mr. Garrison concluded only that the first three sets of Dr. Martinez's le~ture notes· 

· subjected the Di~trict ''to a serious risk of a·copyright infringement claim.'.' See District Ex,hjbit·: : · · :· . 

. ..6. p; 0002. : 

·35. MCCCD invited Dr. Martinez to a copyright workshop that was held on March 1, · 

2010 at PC. Dr. Martinez chose not to attend the workshop. MCCCD Exhibit List # 10: (Solley 

Decl., 111). : · . ... . ... . .. . .. . 

36. PC President Anna Solley, on December 9, 2010, concluded that Dr. Martinez's 

alleged misconduct posed an unacceptable legal risk of a copyright infringement cli!.im and . 

hnposed·restrictions on Dr. Martinez's photocopying privi'!eges. MCCCD Exhibit List # 10 

(Solley Decl., ~12). · 

37. · · MCCCD sought a legal opinion from an outside copyright expert. attorney Sean 

Garrison. MCCCD Exhibit List# 10 (Solley DecJ., ~ 14); MCCCD Exhibit List # 7 (Sean 

Garrison October 28, 2010 Memo). 

38. According to Mr. Garrison, the third set of "lecture notes" appeared to have 13 

mathematics problems copied from two other mathematics textbooks. 

39. Mr. Garrison testified that he was certain that Dr. Martinez has committed 

copyright infringement. See Garrison Hearing Testimony. In reaching· this conclusion. Mr. 

Garrison reviewed thousands ofpages of materials including nearly 300 pages of Dr. Martinez's 

lecture notes and three separate copyrighted mathematics ·textbooks. MCCCD Exhibit List # 6 

(Sean Garrison Aprill9, 2013 Report); see also Garrison Hearing Testimony. 

40. In .reliance upon Mr. Garrison's recommendations, PC President Anna Solley 

issued a December 9, 2010 directive that imposed further restrictions on Dr. Martinez's copy1ng 

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. privileges. MCCCD Exhibit List# 9 (December 9, 2010 Directive); MCCCD Exhibit List# 10 

{Solley Decl., ,15). · 

41. The December 9, 2010 Directive prohibited Or; Martinez from utilizing any 

course materials of her own creation. MCCCD Exhibit List# 9 (December 9, 2010 Directive). 

Instea~ Dr. Martirlez was required to only use course materials that are "approved by the 

mathematics department" or that are "available 'in the bookstore for sale to students and that are 

authored by persons other than [Dr. Martinez]." MCCCD Exhib~t List# 9 (December 9, 2010 

Directive) . . . . . 

42. The December 9, 2010 Directive further required Dr. Martinez to submit her 

photocopy requests to the Mathematics Department Chair for his approval. MCCCD Exhibit 

List# 9 (December 9, 2010 Directive). 

43. Despjte MCCCD's frequent discussions with Dr. Martinez regarding the 

importance t:~f coJl1.plying with copyright laws and the December 9, 2010 Directive, Dr. Martinez 

continued to attempt ~o ignore the directive. See l<~ Hearing Testimony. 

44. At the beginning of the Fall2012 semester (on or about August 21~23, 2012),' Dr. i 

Martinez infonned her students that they were not required 't() purchase a course tex~o9k :;md i . l 

that she would provide. them with her own course materials in lieu of a textbook. MCCCD i l 'Exhibittisf##:4·5-(MartinezDepo.;pp.·232:19o.233:2_L · , . . ·_.··:- <· <~~·;· . . · T ', .. 

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45. fall.of-2012. Dr. Martinez so~ght to have her lecture not~s photocopied ~ff ! i 

campus at a nearby Staples store. This practice is inconsistent with the December 9; 2010 

Directive. MCCCD Exhibit List# 9 (December 9,.2010 Directive); MCCCD Exhibit"List # 4-5 

(MartinezDepo., pp. 232:19-233:21). , . : .... ; . ; 

. . · . 46 . . ·Dr. Martinez did not.submit'het .Jl'all 2012 materials to Mathematics Deparbnent 

Chairperson Mr. -Sueyoshi for approval. MCCCD Exhibit List # 4-5 (Martinez Depo •• pp: 

232:19·233:21). . 

47. Dr; Martinez made copies of her course materials at an off.campus Staples-store. 

and distributed them to students for $·11 per copy. MCCCD Exhibit List # 4·5 (Martinez Depo., 

pp. 232:19~233:21). 

48. The $11 course material fee was paid directly to Dr. Martinez by students. 

MCCCD Exhibit List# 4-5 (Martinez Depo., pp. 232:19~233 :21) . . 

49. PC accused Dr. Martinez of violating the District's "cash handling" rules by 

distributing these course materials to her students if the students reimbursed her for her out-ofpocket copying cQsts. · 

50. PC subsequen~y claimed that Dr. Martine~ violated the District's "cash handling" 

policies by seeking reimbursement for the copies. 

Sl. MCCCD's policies prohibit instructors from having "any financial interest in or 

receiv[ing] compensation from the sale of any unpublished instructional materials required or 

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suggested fot a class that the instructor teaches." MCCCD Exhibit List # 41 (Residential Faculty Policies~ 3.2.4).). 

52. Dr. Martinez failed to follow the protoeol set forth in the December 9. 2010 

Directive in copying her Fall 2012 course materials. MCCCD Exhibit List # 9 (December 9, 

2010 Directive); MCCCD Exhibit List# 4-5 (Martinez Depo., pp. 232;19-233:21). 

53. Dr. Martinez distributed course materials directly to students in her Fall 2012 

MATtS) class. MCCCD Exhibit List# 4-5 (Martinez Depo. pp. 232:19-233:21). 

54. Tb,e MCCCD Administration learned of Dr. Martinez's unauthorized distribution 

of course ~aterials to students after one of Dr. Martinez's MATlSl students complained to. 

Mathematics Department Chairperson Mr. Sueyoshi. The student complained that Dr. Martinez 

refused to provide her with a receipt for the purchased course materials. See Kakar Hearing 

Testimony. 

· . · SS. Upqn learning that Dr. Martinez had distributed course materials. to students 

allegedly In violation ofMCCCD's cash handling policy, Presid~nt'Solley instructed M~e~ to 

immediately· issue refunds to h'er students via personal check. MCCCD Exhibit List# l (October: 

· ·18;. ~012 Co!iruiding Notice); see·a.lso-Kakar Hearing Testimony. · ' · · . . 

·: · · ·' ... 56~ . · ·On. or· !lfO\Iild October J 81. 201.2/~i'.e~ide!it Solley; and J:)t .. Ka.kat.' met· Wi.th·. Dr,_. : 

· Martinez to explain the seriousness of Dr: Martinez'~ alleg~d caSh' handling. violation.; MCCGD . 

Exliibit List # '·3·(0ctober 18. 2012,Counseling Notiee); see also Kakar Hearing .Testimony. In · 

addition; President· Solley and Dr. I<akar prepared ·a Written counseling memo dated October· 18 

20 1 0 for Dr. Martinez regarding her alleged Violation of cash handling rules. Dr, Martinez was 

. provided with a copy of the October· 18, 2010 couns~ling notice and Prc;:sident Solley proceeded 

t9 :explain . to Dr. Martinez the seriousness oftbe ~Ueged caSh :handliiig vi(!lations and the · requirement that Dr. Martinez issue re.iinbmsemenfs to her.students. MCCCD Exhibit List·# 3· 

(October.IS. 2012 Counseling Notice); setfalso Kakar Hearing Testimony: · · 

57. Several months later, on or arm.md January 9, 2013, Dr. Kakar learned that most 

(if not· all) students had not yet received refundS from the Dt. Martinez. MCCCD ·Exhibit List# 

39 (various emails regarding student refunds). As a result, Dr. Kakar instrUcted Dr. Martinez to 

provide copies of refund checks by January 18, 2013. MCCCD Exhibit List# 39 (various emails 

regarding student refunds). 

58; Dr. Martinez failed to produce a single refund check by the. January 18, 2013 

deadline. MCCCD Exhibit List# 39 (various emails regarding student refunds). 

· 59. · Dr. Martinez did not think that she had violated any District rule in reference to 

the copies. Therefore, she declined to follqw the December 9, 2010 order because she believed 

she was not required to do so under any District rule . 

. 60. At the November 18,2013 hearing, Dr. Martinez did. not provide any explanation 

for her refusal to comply with the October .18, 2012 and January 9, 2013 directives to issue 

refunds ~o her students. See Martinez Heating Testimony. · 

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61. At .the hearing Dr. Martinez testified ·that she had made a .. mistake" and, in 

retrospect, should have complied with President Solley's instructions. See Martinez Hearing 

Testimony. 

62. On or around August 9, 2013, MCCCD Chancellor Rufus Glasper sent Dr. 

Martinez a letter informing her that MCCCD was proceeding with termination proceedings. 

Included with this Jetter was a statement of. charges that sununarized the particlllar violations Dr. 

· Martinez had been charged with (hereinafter referred· to as "Statement of Charges.") MCCCD 

Exhibit List# 1 (Statement of Charges). 

CONCLUSIONS 

63. PC failed to carry its burden of proof relating to violation of MCCCD's cash 

handling rules fbund in MCCCD Administrative Regulations 1.17, violation of Residential 

Policy Manyal 3.2.4 (relating to financial inter~ts in unpublished materials), violation of U.S. 

Copyright Law and fair use guidelines. and violation of MCCCD Administrative Regplatfons 

3.2A and 3;2,5 rehrted to copyright regulations.· · 

64. Notwithstanding their education; their experience, and their good faith. Mr. · 

Bellamy and Mr. Garrison disagreed as to whether or ·not·Dr. Martinez violated copyright· law. 

Therefore. it is incon~lusive as to whether Dr. Martinez intentionally and/or inadvertently 

violated' fed~ :copynght law,'?, , · · ·· , .. :: :. : , ,:·:. ~-~: :c: ·: :.::•.: .. . ·'.·,: I o • ' • 4 ': • ' I" ' • • •• ~ 

65. :· ·it is inconclusive as to\~hether or·rtot or Martine~ vi~lated the "cash. handllnl:f~ ·policies ofMCCCb. . 

. 66. .. . . Or. Martinez wilJfully an~ intentlonally failed to follow instructions that we~ 

communicated to' her When she failed to issue refunds to students as directed by President Soll¢y. 

. 67. ·Dr, Martinez conceded that she never complied with President Solley's cl~ . · 

directive to issue refunds to her students. Although Dr. Martinez now regrets her decision not to 

comply with President So11ey's directive, she has never claimed that she did not understand the 

instructions or that the instructions were beyond the scope of m~agement's authority. Viewed 

in light of these facts, Martinez's claim that she ~'made a mistake" is an acblussion of Willful 

insubordination. 

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students, Dr. Martinez violated MCCCD Administrative Regulaqon 6. 7.1 which prohibits ~e '1..-

68. By failing to comply· with President Solley's directive to issue refunds to her ] 

"[w]illful and intentional violation of any ... MCCCD administrative regulation that affects the If" 

employee's ability to perform his or her job." 

69. By failing to comply with President Solley's directive to issue refunds to students, 

Dr. Martinez violated MCCCD Administrative Regulation 6.7.3 which prohibits the "[w]illful 

and intentional failure to petform job 4uties that have first been communicated to an employee 

and are within the employee's scope of employment." · 

Ill 

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RECOMMENllAtlON. 

'1Q~. "% ll~~by. :re~~~r:u:J th_a~ ~h~ .Q:ov~~g Bo~4 4en.y· P~es_ide~t ~Qn~:r.s: 

J~r:gl~!J~~rQn·,~~q~s~;tiD4'.~~ow;pr, In!J:riwez ~~wntmue:l1er. MCCCD ~loymerit. 

. . 

. 7J.~ f.~~ f',1CGGD AdP1inisttati.v.e RegulatioiF 6.7 tnCJica:ting that violritiori of miy 

plopnent s~anisl rrco~fil\ites ,gro:unds: tor. ctiso~pllitatf actibn, 1iP. to (erqpbas!s 'ad<reai,.an.if Includln~ tertri~dn_, ~· we.h~e5f rec-ommend 'that tfte:~YetmtJ~ Bolli'~ retair.tDr., M.iltl.ltrez, 

!t~s at.:terl"d "o·. ·t'lt·ie ; Arizon · •"-is "~"' da: of'Dee-"""'~<er 110-.,':! · ··"" .,.. .. :>.~a.•;v• S~ ... -- ~~· ::r~~ .Y ...... ¥1-,l~ o4 .. -\,1•· 

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