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A. I probably try to be very careful when I'm

printing such a large job.

Q. Let me ask you this: You also said that

Professor Martinez gave an assignment or asked a junior

faculty member to print something for her?

A. An adjunct faculty member.

Q. Do you know what it was?

A. It was some type of a handout. But, keep in

mind, the President's directive, Joe Sueyoshi, was to

approve all of her print jobs.

Q. How do you know it was a handout? Did you ask

her?

A. I think somebody gave me a copy of it. Joe

did.

Q. Now, I'm going to ask you the questions again.

How do you know it was a handout? Did you ask Professor

Martinez?

A. No. I was working with Dr. Sueyoshi, he was

our contact and my contact for this.

Q. Okay. Thank you.

Now I got a question, it's about the Staples'

stuff. You say that violated a rule. Is that your

belief, that cash-handling rule?

A. Well, first of all, all of the print jobs were

to be approved by Mr. Sueyoushi that Dr. Martinez printed

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151

was to be approved -- this is a directive from the

President -- and he's supposed to have been given

two-day's notice.

Q. Okay.

A. In addition, from my understanding the person

that wrote the materials was also supposed to be giving

a permission and he did not give permission to have them

printed and bound, and certainly not sold to the

students.

Q. Okay. Let me ask a question now. Okay, are

you aware that Joe Sueyoshi approved every item to be --

in that -- in that little booklet to be printed by the

university separately?

MS. BLACH: Objection.

MR. MONTOYA: Are you aware of that?

MS. BLACH: Objection. That's not a question.

That's a speech.

Q. BY MR. MONTOYA: Are you aware of that?

A. Say it again because I didn't quite follow your

logic.

Q. I'll say it again. Are you aware that Joe

Sueyoshi appeared -- approved separately every item

collected in that handout to be printed at PC's Icon

copy center separately? Are you aware of that? Yes or

no?

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A. I know that the materials that were created by

the faculty member was -- they were approved by the Math

Department's Committee that approves the materials that

can be used in the Math Department.

Q. Are you aware that Professor Martinez also told

her students: Hey, you guys want to borrow this and

make your own copies, go for it; are you aware of that?

A. No.

Q. Okay. Are you aware that the students said:

Hey, no, I don't want to go to Kinkos and waste my time,

you go copy it; are you aware of that?

A. No.

Q. Are you aware that Professor Martinez even lost

money on the deal?

MS. BLACH: Objection. These are not --

THE WITNESS: No.

MS. BLACH: -- questions.

MR. MONTOYA: That's a question. Do you know

whether or not Professor Martinez lost money on the

deal?

MS. BLACH: These are facts not in evidence.

MR. MONTOYA: I'm trying to get evidence. I'm

asking her what she knows.

CHAIRPERSON CRUDUP: You can answer the

question.

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THE WITNESS: I don't. I don't know.

Q. BY MR. MONTOYA: Now, you said that violated

one of the District's rules regarding cash handling,

right? Is that what you said?

A. There are cash-handling rules and regulations.

Q. Now, you tell the Committee what that rule is.

What's the name of the rule?

A. It's cash-handling procedure.

Q. What number is it?

A. I don't know the number.

Q. Tell the Committee what that rules says.

A. One of the --

Q. Because I have it right in front of me.

A. Why don't you read it?

Q. Because you're the one who's testifying, not

me. When I say things, I get shouted down for allegedly

testifying. So, tell the Committee what the rule says,

please. You're the one who said she violated it.

CHAIRPERSON CRUDUP: Let the witness answer.

MR. MONTOYA: Yes.

THE WITNESS: It's standard policy in the

Governing Boards. I think you must be all aware of it,

as well, that you must go through training. There's a

process that you must follow in order to handle cash and

there's several different items that describe that aril

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describe that process.

Q. BY MR. MONTOYA: Is that everything you know

about that rule to tell the Committee?

A. That pretty much sums it up. I know there's

training and process and procedure you must go through

before you are allowed to handle cash at Maricopa

Community College District.

Q. Are you aware of the difference between selling

something as opposed to seeking reimbursement for a cost

that you have incurred on somebody else's behalf?

A. In my opinion, a transaction was made and

students received a product, a good, after they gave $11

to Dr. Martinez.

Q. Thank you for that statement, but now answer my

question.

A. What was it again? Because, I'm following tYie

logic.

Q. I'll tell you. And I don't mean to be harsh

with you, but I'm looking at the clock, I'm under a lot

of time pressure.

Are you aware of the difference between going

to Starbucks and buying a cup of coffee and reimbursing

your friend who went to Starbucks for you and bought a

cup of coffee? Are you aware of that difference?

A. I mean, I guess.. Sure. Why not.

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155

MR. MONTOYA: Okay. I don't have any further

questions of this witness. Thank you so much, Dr.

Kakar.

THE WITNESS: Thank you.

MS. BLACH: I have a couple.

DR. REYES: Mr. Chairman, I have a follow-up

question, please. You said that all the materials that

were included -- Mr. Montoya, you asked the question --

if all the materials in the packet had previously been

approved by the Department Chair, could you explain that

further? If the packet had been previously

independently approved?

THE WITNESS: Yes. The Math Department has a

process where if a faculty member creates their own

materials, they actually review it and as a department

decide if those materials can be used in the classroom.

In this case, I think the professor, Tim Bryarl, he

doesn't have his printed, he has it all electronic. But

he has been using those materials for a number of years.

I mean, he has created those materials on his own.

And so Dr. Martinez had asked if she could use

his materials that particular semester; he said yes. IIe

did not, however, agree to have her print the materials.

He had no idea that she was going to print the materiels

or that she was going to collect $11 from each strident.

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156

CHAIRPERSON CRUDUP: I have a quick question.

THE WITNESS: And there is an e-mail in the

materials of his -- of his words to that effect.

CHAIRPERSON CRUDUP: I have a quick question

for Mr. Montoya.

MR. MONTOYA: Yes, sir.

CHAIRPERSON CRUDUP: You mentioned Dr. Martinez

was trying to get ahold of Lee Combs and another counsel

with District, do you have any documentation of e-mails

or something?

MR. MONTOYA: Yes, we do. And I will ask

Professor Martinez regarding that when I present my

defense to these charges, because she repeatedly asked

and they told her no. And when -- and when they didn't

tell her no, like I said to you in my hearing

memorandum, they gave her false information.

CHAIRPERSON CRUDUP: Thank you.

DR. CAIRE: I have one question. In exhibit 25

it was suggesting Cleopatria Martinez published this

stuff on Blackboard. What's the difference between

putting this stuff on Blackboard and making Xerox

copies?

THE WITNESS: We were trying to give her some

options as to how she could maybe get the materials to

the students, and Blackboard at the time was our

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learning course management system. It's now changed to

Canvas.

MS. BLACH: I have just a couple of follow-up

questions.

REDIRECT EXAMINATION

BY MS. BLACH:

Q. Dr. Kakar, this e-mail that the Committee just

asked you about, what is the date on that e-mail?

A. January 28th, 2010.

Q. Was that before the directives were put in

place limiting her copy restrictions?

A. Yes.

Q. So, that recommendation was made before her

copy privileges were revoked?

A. Yes. After -- after this meeting her -- well,

yeah, that's the case.

Q. And then one final question. With respect to

the Tim Bryan materials that are the subject of the

cash-handling violation. Isn't it true that Dr.

Martinez actually modified these materials before she

distributed them to students?

A. I -- I can't answer that.

CHAIRPERSON CRUDUP: Five minutes left.

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158

MS. BLACH: Finished with the witness.

MR. UPPAL: I'd like to call my next witness.

MR. MONTOYA: Five minutes left of their whole

case? That is our view.

MR. UPPAL: I'd like to call my witness now.

I'd like to call President Arina Solley.

ANNA SOLLEY,

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. UPPAL:

Q. Good afternoon, Dr. Solley. Could you please

tell the Committee what position yotz hold with MCCCD?

A. Yes. I'm President of Phoenix College.

Q. And if there is a problem or a headache or an

insubordinate employee who doesn't follow the law,

doesn't follow directives, whose desk does it ultimately

land on at Phoenix College?

A. It is my responsibility. I serve as the CEO of

the college and I'm responsible for all the operations

of the institution. So, arty issue that effects an

employee, that affects a stliclent, thzt affects budget,

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any challenges that we face are ultimately my

responsibility.

Q. So, there's this phrase, and tell me if it's

accurate, does the buck stop with you?

A. Absolutely.

Q. And if there's a headache, it's your headache?

A. Absolutely.

Q. So, in your own words, Dr. Solley, would you

please tell the Committee, face them and tell them why

you are recommending Dr. Cleopatria Martinez for

termination?

A. Committee Members, I am recommending that Dr.

Martinez be terminated for several reasons. One

certainly deals with the infringement of copyright and

fair use violations; in addition to that, repeated

attempts to not follow the Governing Board policies and

procedures; in addition to that, repeated attempts not

to follow my directives, my directions; and not just my

directions, but the directions and advice of our staff

and our faculty and her Chair; and then, of course,

another issue has to ~o with the most recent situation

in regards to violation of the Cash-FIandling Policy.

And then also bec~lise we are very concerned

about potential liability, this morrling's expert

witness, Sean Garrison, 'talked in detail about some of

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the potential threats, not only to our college but he

gave examples of previous situations where there had

been losses and we're very concerned about that because

we do have limited resources. We're good stewards of

the public resources and we want to ensure that those

resources are deployed for the right purpose, to promote

and support student's success, to promote and support

teaching and learning, and not to put us in the

defensive posture of defending a very expensive

lawsuits.

Q. So, if a lawsuit had resulted as a result of

Dr. Martinez's copyright violations or her attempts to

evade the limitations that were placed on her, as a

result of those copyright violations all that money and

all those damages t=hat Mr. Garrison testified about,

where would that money come from? Who would pay the

attorney's fees? Who would pz_y the damages?

A. Those funds would come from my college. And we

are experiencing some budget challenges, not just my

college but in the system. We Ylave lost some

considerable funding from the State, and as a result of

that, that would mean that rather than hiring faculty

and staff or providing support for very specific

programs thzt would support student success, we would

have to use those resources in turn to defend our

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161

colleagues against these lawsuits.

Q. So, instead of spending the money for students,

you have to spend it fighting a lawsuit?

A. That is correct.

Q. And what about with respect to the complaints

that you've received from students that they couldn't

even get receipts from Dr. Martinez after she sold them

packets of materials, how does that impact your request

for termination?

A. That is an indication of willful and

intentional behavior on behalf of Dr. Martinez, because

it demonstrates that she is not willing to follow

directives, she was not willing to follow instructions.

And we have been working with Dr. Martinez for the last

four years. We've met with her, we've counselled her,

we've advised her.

And, again, the latest indication is that she's

not going to change her behavior and she's going to put

us in a very precarious situation and it's really

beginning to effect students. And if anybody knows

anything about me, I stand for -- I'm a person of

integrity; I stand for excellence. I want our students

to have the best because they deserve the best.

CHAIRPERSON CRUDUP: Okay. One last question.

MR. t7PPAL: Okay. If the Committee would

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indulge me, I would like one final question.

MR. MONTOYA: What about my turn?

MR. UPPAL: I said one final question, Mr.

Montoya.

CHAIRPERSON CRUDUP: One question.

Q. BY MR. UPPAL: Do you have any-final comment

that you would like to make to the Committee with

respect to your level of trust in Ms. Martinez [sic] and

what you would like the Committee to do or not do?

MR. MONTOYA: Object to him asking an

open-ended question when his time is already expired.

And he's beers repeatedly warned by the Committee that

you are going to hold him to his time so that he would

expend it wisely.

MR. UPPAL: Mr. Chairperson, how many minutes

has Mr. Montoya used making speeches and objections,

these same objections over and over and over. That time

should come back to me.

MR. MONTOYA: If he wouldn't completely --

CHAIRPERSON CRUDUP: Just one minute.

MR. MONTOYA: -- do the same thing over and

over --

MR. UPPAL: One question. One minute.

MR. MONTOYA: I wouldn't have to do that.

CHAIRPERSON CRUDLJP: You may proceed.

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163

Q. BY MR. UPPAL: So the question was, which the

Committee Chairperson has just allowed you to answer is:

Could you please tell the Committee in your own words

what level of trust you have in Dr. Martinez to follow

the law, follow the directives, follow orders that you

have received [sic], and what you would like -- or what

your request is of the Committee in this matter?

A. I do not trust that Dr. Martinez would comply

with our directive; I do not trust that she will follow

the law; I do riot trust she will abide by Governing

Board policies and procedures. I respectfully request

that the Committee recommend to our Chancellor -- or,

the Governing Board, excuse me, termination as per my

request, my recommendation.

CHAIRPERSON CRUDUP: Okay. Thank you.

CROSS-EXAMINATION

BY MR. MONTOYA:

Q. You believe that Professor Martinez violated

copyright law, right?

A. Yes.

Q. But that's not your independent conclusion, is

it? BecZuse you're not a copyright law expert, right?

A. It is riot my independent conclusion but we did

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164

hire --

Q. Okay. You answered the question.

A. Let me answer.

MR. UPPAL: Objection.

THE WITNESS: Can you let me answer?

MR. UPPAL: Objection. Here we go again.

MR. MONTOYA: Can I say something?

MR. UPPAL: When Mr. Montoya does not like the

answer he engages in misconduct.

MR. MONTOYA: I don't want a speech to hand her

the answer.

MR. UPPAL: No, he's not --

MR. MONTOYA: Your lawyers -- your lawyers will

tell you that judges have the right to direct witnesses

to be responsive then to tell them to stop with a speech

that's not responsive. She's -- she's had her

opportunity to give speeches, Lord knows. All I want

her to do is answer my question so I can move on so I

can qet to my case.

MR. UPPAL: This is the President of Phoenix

College, the person on whom this entire headache lznds

and --

earlier?

MR. MONTOYA: And why didn't you call her

MR. UPPAL: Fle is cutting off her question

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[sic]. I'm not -- this is completely inappropriate. He

asked a question. Now he was getting a response which

he didn't like which undermines his client's position,

and he's trying not to -- he's trying to hide the answer

from you. He can't ask a question and cut the witness

off.

CHAIRPERSON CRUDUP: Rephrase the question.

MR. MONTOYA: Okay.

CHAIRPERSON CRUDUP: You may answer.

Q. BY MR. MONTOYA: Okay. Your claim that

Professor Martinez has violated the copyright laws is

based upon opinions that you received from individuals

that you believe to be legal experts, correct?

A. It is correct.

Q. Thank you. Budget -- you have budget problems?

A. Yes.

Q. And you don't want to pay lawyers, right?

A. Well, my con

Q. Is that yes --

MR. UPPAL: Objection.

Q. BY MR. MONTOYA: -- or no?

A. My --

MR. UPPAL: Here we go again. There is a

auF>stiorl, she's about to answer it, he doesn't like

what's coming in the answer and asks another question.

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Mr. Crudup, this is completely outrageous.

MR. MONTOYA: No, it's not.

DR. CAIRE: Can you give her at least a few

seconds before you interject again, so we can hear --

MR. MONTOYA: Well, wait a minute. Can I --

MR. UPPAL: You just received an instruction.

You're actually arguing with an instruction?

MR. MONTOYA: No.

MR. UPPAL: So, can we continue and let her

answer?

166

MR. MONTOYA: Well, I'm not going to answer you

and you can --

CHAIRPERSON CRUDUP: Rephrase the question.

Let her answer.

MR. UPPAL: Well, Dr. Crudup, on this one

that's fine. We're going to defer to you. But I don't

want a series of him interrupting the President of

Phoenix College when he doesn't like an answer and then

he gets a second shot at rephrasing the question and

deprives the witness of a chance to answer. This is the

second time he's gotten this. It's an old lawyer's

trick. It shouldn't be allowed to continue.

DR. REYES: Mr. Chairman, may I? I'd just like

to advise everyone of the time. We do want to honor

equal -- as close as possible amounts of time for both

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the sides. So, whatever additional time we take right

now, we're going to need to adjust closing statements.

We have very little buffer at the end of day before 5

o'clock adjournment.

MR. MONTOYA: I'm going to be mindful and move

on to something else.

DR. REYES: Then it will be your turn.

Q. BY MR. MONTOYA: Okay. You claimed that

Professor Martinez violated a cash-handling rule?

A. Yes, I do.

Q. Okay. Which one?

A. It's Governing Board -- it's one of our

administrative regulations.

Q. Which one?

A. I don't know off the top of my head the exact

number.

Q. Okay. Do you know its content?

A. Yes, I do know it's content.

MR. MONTOYA: Wait. Excuse me. Now he just

hznded her the answer.

MR. UPPAL: We handed her the charges.

MR. MONTOYA: Excuse me. And I want you to

please seek advice from counsel. You can't hind the

witness the answer when she's being cross-examined.

That is improper.

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MR. UPPAL: He's trying to get her to state the

rule of a Cash-Handling Policy without her taking a look

at it. You can take a look at it right here. I've

circled it. It's the statement of charges.

MR. CALDERON: Mr. Chairman, with your

permission may I retrieve the paper?

MS. BLACH: Statement of Charges.

MR. CALDERON: With your permission, Mr. Chair.

Mr. Montoya, this is what was handed.

MR. MONTOYA: Yeah. And I don't want her --

MR. CALDERON: This isn't asking you anything.

Just so you can see it, what was handed.

MR. MONTOYA: Okay. I see it.

MR. CALDERON: And there's a bracket.

MR. MONTOYA: I'll hand it back to you, sir.

MR. CALDERON: All right. For the benefit of

the Committee, this is what was handed to the witness

during the testimony. And Mr. Chairman, I would

recommend that you admonish all the parties not to hand

the witness anything while they're testifying.

CHAIRPERSON CRUDUP: Okay. Do not hand the

witness anything while they're testifying.

MR. UPPAL: Fair enough. My request is if he's

going to ask about a rule, then the witness should be

able to look at the rule that she's being quest=ioned

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about.

MR. MONTOYA: My response is when you're trying

to fire somebody, you should at least know the rule that

you claim they violated off the top of your head,

because you owe that to someone when you're trying to

deprive them of their career and employment. It's not

that hard to do. Believe me. I did it and I don't work

for Phoenix College.

Q. BY MR. MONTOYA: President Solley, what's the

rule say that you claim my client violated and that you

want to fire her for?

MR. UPPAL: Objection. We'll stipulate she

doesn't have it memorized. He's asked a question. Now,

may I hand her the rule so she can answer the question?

MR. MONTOYA: I object. This is part of my

cross-examination.

DR. REYES: Mr. Chairman, may I? I'm sorry but

I don't believe we need to have all rules memorized. I

believe we teach our students and know how to use the

resources.

MR. MONTOYA: That's right. That's why I just

asked her what it said. And I -- and she hasn't

answered that yet.

MR. UPPAL: May I hand her the rule?

Q. BY MR. MONTOYA: I know you don't have it

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memorized

MR. UPPAL: This is a request. May I hand her

the rule? She's being --

MR. MONTOYA: Well, you were just ordered that

that not to be done.

MR. UPPAL: I just asked, Mr. Montoya.

MR. MONTOYA: Well, he's --

MR. UPPAL: No.

MR. MONTOYA: I heard him order that they are

not to --

MR. CALDERON: Mr. Chair, may I ask a question?

CHAIRPERSON CRUDUP: Yes.

MR. CALDERON: Mr. Montoya, what are you trying

to -- what's your end?

MR. MONTOYA: I just want -- I agree with you

that you don't need to memorize a rule. However, you

should know it's substance. And all I'm asking her is

what is the substance of the rule.

CHAIRPERSON CRUDtJP: She has already stated the

substance earlier when she's being questioned. She

stated the basic substance of it, the relationship

between -- between the faculty and the students. She

knows what -- what it refers to, so you can ask her

again what it refers to.

MR. UPPAL: Dr. Crudup, I thought you just

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ruled -- I thought I heard a yes from you that I could

hand her the rule. You were about to pass it to me.

MR. MONTOYA: I'll make this easy. I'll

withdraw the question and I'm done questioning this

witness. Thank you.

And as long as there's no redirect, it's

already 1:35.

MR. CALDERON: He withdrew the auestion, so

let's move on.

DR. REYES: Mr. Chairman, may I?

CHAIRPERSON CRUDUP: Sure.

DR. REYES: For procedural purposes as we move

ahead, if there is anything that either of you would

like to hand the witness, if you could please ask

permission first without handing. That way we're still

consistent with what Mr. Chair said.

MR. MONTOYA: That's my understanding of the

proper procedure and that's what I would follow.

Thank you, President Solley.

THE WITNESS: You're welcome.

MR. UPPAL: No redirect.

My request would be that if we could take a

two-minute break and five-minute break before Mr.

Montoya begins the defense. I would appreciate it.

Just as a matter of courtesy.

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172

CHAIRPERSON CRUDUP: Okay.

MR. MONTOYA: Sure.

CHAIRPERSON CRUDUP: We're at recess.

(Whereupon a recess is taken at 1:34 p.m. until

1:40 p.m.)

MR. MONTOYA: May I proceed?

CHAIRPERSON CRUDUP: Yes.

MR. MONTOYA: The witness needs to be sworn.

CL~OPATRIA MARTINEZ,

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MONTOYA:

Q. Professor Martinez, I want to quickly go

through your background because I know that your life is

more than the allegations that are our present concern.

First of all, where were you born?

A. I was born in Las Vegas, New Mexico.

Q. When were you born?

A. 1948.

Q. Now, Professor, I need you to speak up. I'm

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kind of hard of hearing, that's why I speak so loudly.

Other people might be hard of hearing, too, all the way

over there. So, I need to make sure 100 percent they

hear you. Okay?

A. Oh. Yes. Of course.

Q. So, please raise your voice and I'l1 remind

you.

How old are you?

A. I'm 65.

Q. Did you go to college?

A. Yes.

Q. Where?

A. Undergraduate at the University of Denver; and

graduate school, University of Colorado in Boulder.

Q. Did you go to high school in Denver?

A. Yes.

Q. Did you graduate from high school?

A. Yes.

Q. Tell the Committee how high in your high school

class you graduated.

A. I graduated sixth out of around 800 students.

Q. You graduated in the top 1 percent of your

class?

A. Yes.

Q. Now, tell the Committee, did your family have

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174

enough money to pay for your college education?

A. No. I was raised by a single parent, we lived

in federal housing projects and we were on Welfare, very

poor. My education -- any higher education was paid for

by scholarships and grants.

Q. What did you major in in college?

A. Undergraduate mathematics, my master's was in

education, my Ph.D. was in bilingual mathematics

education.

Q. Are you bilingual?

A. Yes, I am.

Q. Now, in your home as a child, what language did

they speak?

A. I spoke Spanish first and I learned English

later in school.

Q. Okay. Now, when you were majoring in

mathematics in the University of Denver as an

undergraduate, were there a lot of women math majors?

A. No. And I think I was the only non-white math

person in the college, in the university.

Q. What year did you graduate from the University

of Denver?

A. 7.971 .

Q. Was it did you have to work part-time or

full-time?

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175

A. Yes. I had to work part-time and I lived in --

I rented a room from a person in their house.

Q. And when you went to graduate -- after you

graduated from college, what year was that?

A. I graduated from -- with my bachelor's in 1971,

my masters in 1976, and Ph.D. the spring of 1985.

Q. After you graduated from college, what did you

do next? Tell the Committee.

A. I went directly to teaching public schools,

Denver public schools for four years; and then I went to

the university -- and, I'm sorry, the Community College

of Denver, Auraria Campus, where I taught for ten years;

then I moved to Scottsdale Community College were I

taught -- Maricopa; I taught Scottsdale ten years and

Phoenix College 18 years.

Q. How did you pay for your master's degree?

A. Grants and scholarships.

Q. How did you pay for your Ph.D.?

A. Grants and scholarships.

Q. How long did you teach at Denver Community

College?

A. About four years, four years almost.

Q. What did you teach?

A. Mathematics and I also taught physical

education.

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Q. Were there a lot of Hispanic women teaching

mathematics at Denver Community College when you taught

there for four years -- no, for ten years from 1974 to

1984?

A. No.

MR. UPPAL: Objection. Irrelevant.

MR. MONTOYA: Can I respond? I'll tell you why

it's relevant is because you pass judgment on somebody,

you need to know their whole story, not just a fraction

of the story. I'm going to be brief. I could be very,

very long because I can tell you this individual has a

remarkable personal story, so I could go on and on.

Literally, in fact, other scholars have written about

her fascinating and compelling personal story, but I

won't. I just want you to know who this lady is,

especially given the fact that President Solley was

allowed to testify that she didn't trust her and that

she was untrustworthy and that she has a history of

violating the rules, which is not true. This demon- --

her whole life is a reputation of that.

MR. UPPAL: I stand by my objection because her

background in this matter or having Hispanic teachers or

students that were at Denver at some point in the past

is totally irrelevant to this. The best way I can

illustrate this is even if Dr. Martinez had rescued a

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child from a burning building, we could all agree that

that's incredibly altruistic and wonderful but it

doesn't go to the issues that are before the Committee

today.

MR. MONTOYA: I was talking about her

educational and professional background, not whether or

not she saved a child from a burning building in her

personal life.

DR. REYES: Mr. Chairman, would it be possible

for you to just recognize that how you use your time

will be based on --

MR. MONTOYA: Oh, I will be.

DR. REYES: -- based on time constraints.

MR. MONTOYA: I will. I'm going to go real

quick. You watch.

Q. BY MR. MONTOYA: So, tell me, when you taught

at Deriver Community College, were there a lot of

Hispanic math professors?

A. No, I was the only one.

Q. When you taught at Denver Community College,

were there a lot of bilingual math professors?

A. I was the only one, no.

Q. Why did you leave Denver Community College?

A. I like -- Maricopa was one of the top-rated

community college districts in the country and I liked

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178

Phoenix and so did my family. And I was very cold in

Denver and the weather was nice here.

Q. So you moved to Phoenix?

A. Yes.

Q. And you started up at Scottsdale?

A. Yes.

Q. And tell the members of the community what you

taught at Scottsdale Community College?

A. Mathematics.

Q. IIow did you like it?

A. I loved it. I still do.

Q. Isn't it true that you taught at Scottsdale

Community College from 1985 to 1995?

A. Yes.

Q. And now tell the Members of the Committee why

you left Scottsdale Community College. Did you chose to

or were you forced to?

A. I --

Q. Speak up.

A. I was interested in getting more diversity iri

both the student body and in the faculty and Phoenix

College was extremely diverse. It's the flagship

college of the Maricopa District. I liked the --

everything ~bOLit Phoenix College and my colleagues hid

been urging me to move over.

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179

Q. When you worked at Denver Community College,

were you ever accused of violating the copyright laws?

A. No.

Q. Were you ever accused of any misconduct?

A. No.

Q. When you were work at Scottsdale Community

Colleges for a decade, were you ever accused of

violating the copyright laws?

A. No.

Q. Were you ever accused of any misconduct?

A. No.

Q. When you moved to Phoenix Community College in

1995, what did you teach?

A. I taught mathematics.

Q. Did any students accuse you of being

incompetent?

A. No.

Q. Now -- now, you heard someone testify in a very

vague and insubstantial, nonspecific way --

MR. UPPAL: Objection. Not a question. That's

a speech. Objection.

CHAIRPERSON CRUDUP: Please continue.

Q. BY MR. MONTOYA: -- that students were starting

to complain about you. Have you ever been the subject

of a student complaint?

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180

A. No.

Q. Do you love to -- did you hear my opening

statement?

A. Yes.

Q. You taught at the District for 28 years?

A. Yes.

Q. You're 65 years old?

A. Yes.

Q. Why don't you retire?

A. I really enjoy teaching and I'm not reedy to

retire. It's a love of mine. It's second only to my

children. I love teaching and that's why I'm not at the

university, I'm at the community college. And I think I

do a really good job.

Q. Do your students tell you you do a good job?

A. Yes, they do.

Q. Now, I think somebody mentioned that you were

the chairperson of the Math Department at Phoenix

College?

A. Yes.

Q. When?

A. Around 2005 to 2008.

Q. Okay. Is that an elected position?

A. Yes, ,it is .

Q. So, _your -- your faculty elected you to that

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181

position?

A. Yes.

Q. What are the responsibilities of a Chair of a

Math Department at a community college here in Maricopa

County?

A. I -- I am the voice of the department to the

Administration and visa versa; I bring the messages of

the Administration to the department; I schedule all the

classes both for adjunct and for residential faculty; I

deal with any problems that exist between students and

faculty and vice versa or faculty with faculty..

Q. Now, when you were chairperson of tYie faculty,

did the District educate you regarding copyright law?

A. No.

Q. Did anyone come and tell you what you could or

couldn't copy under the federal copyright laws?

A. No.

Q. Now, you've been a -- let me see if I -- let me

see how my math is working out for me this afternoon.

You taught at the Denver Community College for ten

years, right?

A. Yes.

Q. But then you taught at the Phoenix Community

College since 1985?

A. Yes.

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Q. So, in fact, you have been in --

A. Maricopa. Excuse me. Maricopa County.

Q. Maricopa County.

Isn't it true you've been an educator for

almost 40 years?

A. More than 40 years.

Q. And that would include your -- your teaching

experience as a high school teacher, right?

A. Yes, it does.

Q. Now, have you ever -- and, plus, you went to

college, graduate school, and you were in a doctoral

program, right?

A. Yes.

Q. Now, did you ever get any handouts from your

faculty members when you were in graduate school?

A. Yes.

Q. Were they of publications other thin from the

person handing the handout to you?

A. Sometimes.

Q. Did anyone say: Hey, that's a violation of

copyright law?

A. No.

Q. Now, you've also seen your colleagues ~t

Maricopa Community College District use handouts that

they did not write, correct?

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A. Yes.

Q. Is that -- how common is that?

MR. UPPAL: Objection. racts not in evidence.

Lacks foundation.

MR. MONTOYA: Excuse me. This is how -- this

is how you get facts into evidence. As your counsel

will tell you, you get facts into evidence through

direct examination based upon a witness's personal

knowledge. That is absurd, that objection.

MR. UPPAL: Objection. The question that he

just asked is essentially how common is that, meaning

how -- implying how common is it for everybody else to

rampantly violate copyright law. If he wanted to go

through this line of questioning, he owes a lot of

exhibits that are not in evidence.

MR. MONTOYA: I can ask her, ladies and

gentlemen of the Committee, based on her own personal

knowledge, Lord knows she's worked at the District for

28 years, that's a long time.

MR. UPPAL: I'm not going to get into prefaces

like "Lord knows," because I just ~ori't think that's

appropriate for me to say. But what I am going to say

is that there is no evidence. There's supposed to be

evidence to back up what the questioning is going to be

about and this is far afield, and --

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CHAIRPERSON CRUDUP: So, rephrase the question.

You're asking her opinion, so.

MR. MONTOYA: Well, I'm not asking her opinion.

I'm asking her what she's seen. And your lawyer will

also tell you, that what all lawyers know, is evidence

can be both documentary and testimonial, and they're

entitled to equal weight.

Q. BY MR. MONTOYA: Okay. I'm not asking you to

guess --

MR. UPPAL: Objection. This subject matter was

not disclosed as a subject of testimony and it's just

outrageous because, you know --

CHAIRPERSON CRUDUP: Proceed.

MR. UPPAL: -- if he -- if he -- if Dr. --

MR. MONTOYA: You know, that's what's

outrageous is he --

MR. UPPAL: I haven't finished yet. I haven't

finish- --

MR. MONTOYA: That is an example of what the

District is doing in this case. The --

MR. UPPAL: FIe's talking over me.

THE COURT REPORTER: I'm sorry. Please.

MR. UPPAL: He's ta_l_kirlg over me just like he

talked over the witnesses.

CHAIRPERSON CRUDUP: Please continue. Ask your

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question.

Q. BY MR. MONTOYA: Now, Cleopatria, I'm not

asking you to guess and I'm not asking you for your

personal opinion, I'm asking you to tell the Committee

-- you're under oath -- what you've seen with your own

eyes over the 28 years that you've worked at the

District. Do you understand that?

A. Yes.

MR. UPPAL: Objection. This is not a subject

of testimony that was disclosed. And the reason that

this is important is, if she is about to say that other

people do this, it had to be disclosed so we could bring

those other people here under oath and have them repute

it.

MR. MONTOYA: That is not a rule -- that might

be a rule in federal court, but that is not the rule in

administrative law. To the contrary.

MR. CALDERON: Mr. Chair, Members of the

Committee, I recommend you let the question be answered

and then let the parties move on.

MR. MONTOYA: That's what I intend to do if I

can.

Q. BY MR. MONTOYA: Okay. Tell the Committee what

you've seen over the 28 years irl reference to scholars

copying other scholar's work for educZtional purposes,

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186

classroom instruction purposes, teach their students?

A. Educators do this all the time. They will get

-- if they find some material that will help their

students learn something, they'll make copies of it and

hand it out to students. This is not an unusual

practice.

MR. UPPAL: Objection. I move to strike. If

she's going to testify about this, she needs to testify

about who the other people ire and name them.

MR. MONTOYA: IIe can ask those questions -- he

can ask these questions when it's his turn.

MR. UPPAL: It's undisclosed and she's not even

testifying to any facts. Did you get a name here of

anyone else who has done this or what they've done? No.

CHAIRPERSON CRUDUP: We're waiting for --

DR. CAIRE: I think you would have that right

when you cross-examine, to refute any kind of facts or

perspective.

MR. UPPAL: Sir, the problem is that this line

of questioning has not been disclosed. You're supposed

to disclose it in your brief.

MR. MONTOYA: There is no disclosure rules in

administrative law. That is ridiculous.

MR. UPPAL: It's not ridiculous at all. We

were required to --

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187

MR. MONTOYA: This is a legal question --

MR. UPPAL: -- submit briefs that --

MR. MONTOYA: -- that you should talk to you

legal counsel on.

MR. UPPAL: -- and then there was a requirement

for supplemental briefs.

DR. REYES: Mr. Chairman, please. It seems

that, if I'm understanding correctly, the question is

getting diluted.

I'm not understanding how your question, Mr.

Montoya, leads to incriminating others. The fact that

educators use other works -- other people's works does

not mean they're infringing on copyright law.

MR. MONTOYA: I know.

DR. REYES: So, we can't make that assumption.

If we could adjust that question and move on quickly.

MR. MONTOYA: I was about to before I was

interrupted with the same interruption that was ruled

upon by the Chair twice.

Q. BY MR. MONTOYA: Professor Martinez, have you

ever heard of the Fair Ilse Doctrine?

A. Yes, I have.

Q. Tell -- tell --- and dici you learn it as a

teacher?

A. Yes.

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188

Q. Did you learn it at Phoenix College?

A. Well, I --

Q. Or the Maricopa Community College District?

A. I've known about fair use, I'd say, all my

career.

Q. Did you believe that when you -- when you and

your colleagues were using the work of others, that you

were doing it under the Fair Use Doctrine as educators

engaging in classroom instruction?

A. Yes.

Q. When is the first time that an administrator

told you that your use of copies to help educate your

students violated federal copyright law?

A. In 2012, in January, when I received the letter

the e-mail from Ronnie Elliot.

Q. Okay. I want to --

DR. REYES: I'm sorry. Please. Correction, is

that "2012," you stated?

THE WITNESS: I'rn sorry. Did I say "2012"?

2010.

MR. MONTOYA: Cori you hear her?

DR. REYES: Yes.

MR. MONTOYA: Are you all good hearing?

Q. BY MR. MONTOYA: But, could you raise your

voice, please, because I'm getting paranoid about it.

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A. Yes.

Q. Okay. So, someone came to you and told you

that your materials might be violative of federal

copyright law?

A. No. I received an e-mail from Ronnie Elliot

saying that there was a question.

Q. And that was in January of 2010?

A. '10.

Q. Okay. Now, I want you to tell the Committee

this really important fact that doesn't even involve

dispute regarding federal copyright law: When is the

last time that someone from the Administration told you

that a specific material that you were using to instruct

your students, to teach your students, violated federal

copyright law?

When is the last time someone pointed out

something and said: F-Iey, this violates federal

copyright law the way Mr. Sean Garrison was testifying

this morning?

A. It was the -- it was the Sean Garrison

material.

Q. And isn't that 'true that that was all used by

you in the spring semester of 2010 and after that you

never used it again?

A. Yes . That=' s correct .

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Q. Okay. Now, I'm going to get specific with you.

MR. MONTOYA: And this is based upon the

District's own exhibits. This is Exhibit 6, page 27.

District's Exhibit 6, page 27. Garrison Exhibit 27.

I'll show you the cover page. It's her lecture notes

for MAT 182, precalculus, Dr. Cleopatria Martinez.

Q. BY MR. MONTOYA: I'm going to hand it to you

and I'm going to ask you some questions about it.

A. Okay.

Q. Thank you.

A. Yes.

Q. Professor Martinez, what is that document?

A. These are the notes that I gathered in January

of 2010 to teach the trigonometry -- tigmometry class

MAT 182. I pulled them from my fall materials to use in

lecture for my MAT 182 trigonometry class.

Q. Okay. On the front page you said you prepared

these for your fall course?

A. I -- I originally prepared materials for fall

in 2009. I pulled from those materials the lecture

notes thzt would fit in spring of 2010.

Q. Okay. So it says fall of 2009 up here, right?

A. Yes.

Q. Isn't it true that you used those instead in

the spring of 2010?

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A. I used the sections from 2009 in 2010, and I

used the original notes in 2009 fall.

Q. Okay. When is the last time you used these

materials?

A. In --

Q. Tell the Committee --

A. In spring of 2010.

Q. You haven't used them since?

A. No.

Q. Isn't it true the reason why you haven't used

them since is because you were told they violated

federal copyright law?

A. Yes.

Q. Okay. Now, did you write everything in -- in

those lecture notes?

A. Well, I'd like to make a correction. I was

told they could -- they might violate copyright law.

And I wrote everything except for the problems

in here.

Q. Okay. Where did you get the problems from?

A. I got the problems from the precalrulus

Sullivan textbook.

Q. I-Iad you ever used that textbook in your

classes?

A. Yes.

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Q. Were you using that textbook in some of your

classes in the spring of 2010?

A. No.

Q. When was the last time you would have used that

textbook?

A. In fall of 2009.

Q. Okay. Now -- now tell me what percentage of

the content in those materials you derived from the

Sullivan?

A. Less than half a percent, less than a percent.

Q. Less than -- less than half a percent?

A. Yes.

Q. Why didn't you write the publisher and ask

permission?

A. Well, I thought it was by fair use, that it fit

under fair use.

Q. And isn't it true that after the District

started to accuse you of violating the copyright laws

you did write the publisher's asking for permission?

A. Yes, I did.

Q. How many times -- do you know who Maggie

McConnell is?

A. Yes.

Q. Who is she? Tell the Committee.

A. She's in-house counsel for the Maricopa

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District Community College District.

Q. Have you ever asked or tried to ask Maggie

McConnell any questions regarding complying with federal

copyright law?

A. Yes. Ann Rosel (phonetic), the libr one of

the librarians at Phoenix College suggested that I call

her, that Maggie McConnell had volunteered to help

faculty individually and respond to their questions

regarding copyright. But when I contacted Maggie

McConnell, she refused to do so. She refused to help me

at all.

Q. Did you contact her telephonically,

face-to-face, e-mail, by letter, or all of the above?

A. It was definitely b_y telephone and I also had

some e-mail communication with her.

Q. What did she tell you when you asked her for

guidance?

A. She said she didn't have time to deal with

individual issues presented by faculty members on

copyright.

Q. Now, you also talked about you spoke to a

Phoenix College librarian, did anyone instruct you to

spezk 'to the Phoenix College librarian?

A. I wrote to Dr. Solley asking -- saying that I

would like to get additional assistance since I was

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unable to attend the workshop.

Q. Let me stop you there. Tell the Committee why

you were unable. Were you out partying with a friend or

were you going on vacation? Tell the Committee why you

were unable to go to that, because there was 'a

suggestion you just blew it off?

A. Absolutely not. I had a previous commitment

that I had made weeks before that -- so, I was unable to

attend.

Q. What kind of commitment?

A. I don't recall now what it was, but I remember

at the time I had to chose between the two and I felt

that the other one was my bigger commitment.

Q. Did anyone report to you what Maggie McConnell

said at that meeting?

A. I asked to meet with Ann Rosel the librarian at

Phoenix College regarding copyright, and Ann Rosel did

go -- communicate with me much of what was discussed at

the -- at the workshop and said to me that I seem to

know more about -- as much about copyright as she did.

But neither of us was real clear on the specifics when

you relate mathematics and connect to copyright,. We

weren't clear there, neither of us.

Q. Is it your belief that a mathemztical

calculation, simple or complex, can be copyrighted?

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A. I believe it cannot be copyrighted.

Q. Some of what you copied from the Sullivan text

consisted of pure mathematical equations, right?

A. Yes.

Q. So, of that point -- of that less than

.5 percent, some of that less than .5 percent was

actually pure math, wasn't it7

A. Yes. Equations.

Q. But some of it wasn't, right? Some of it

consisted of introductory statements or questions,

correct?

A. Yes.

Q. And after you were told not to copy those types

of materials again, what did you do?

A. I didn't copy them. I replaced all of the

problems with problems I made up of my own.

Q. Tell the Committee when you did that.

A. I began doing it in February when I got the

e-mail from --

Q. February of what?

A. February of 2010, when I got the e-mail from

Ronnie Elliot. And I proceeded to complete that,

removing all problems and replacing with my own by April

of 2010.

Q. Okay. Now, I'm going to hand you the Exhibit 2

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of -- I think I might have already did it.

MR. MONTOYA: Pavneet, can I borrow Exhibit 2

to Exhibit 6?

MR. UPPAL: My Exhibit 2?

MR. MONTOYA: Of your exhibit. And we don't --

we can just show it to her right from where you're

sitting so I don't waste the Committee's time finding

it.

MR. UPPAL: Sure.

MR. MONTOYA: Thank you, sir. Is that --

MR. UPPAL: Here.

THE WITNESS: Here it is. Here it is.

MR. MONTOYA: Oh, okay. Thank you, though.

Appreciate that.

MR. UPPAL: Can you pass me a bottle of water

when you get back?

MR. MONTOYA: I sure will.

MR. UPPAL: Thanks.

Q. BY MR. MONTOYA: Exhibit 2 of Dis'trict's

Exhibit No. 6 starts at page 102. Now tell the

Committee what that is.

A. Exhibit 2 is the rest of the material that I

had pulled from my lecture notes from 2.,009 to be used in

my trigonometry class in 2010, spring.

Q. Okay.

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A. Just a continuation.

Q. So, I want to make sure that the Committee gets

this straight. So, when is the last time that you used

the exhibits of Exhibit 2 in District Exhibit No. 6?

A. Spring of 2010.

Q. Have you ever used them again?

A. No.

Q. Why?

A. The Administration -- well, they said I

couldn't use them and I didn't want to use them because

of their questioning. I don't want to go against them.

Q. Okay. So, they said they potentially violated

copyright law?

A. Correct.

Q. Now, the materials in that set of documents of

your lecture notes, did you write everything in there?

A. They are a continuation of Exhibit 1 which I

wrote the same way. I pulled materials from the notes I

had written to lecture from in ?_009, that I could use in

2010, spring. And so they are based on what I wrote and

then the problems that I copied from the Sullivan

textbook.

Q. Okay. Now, tell the Members of the

Committee you're a mathematician -- you're best

estimate of what percentage of the copied materiel is in

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Exhibit 2?

A. Well, in Exhibit 2 it would probably be like

one-tenth of 1 percent, because all the homework

problems have been pulled out. The only thing left in

Exhibit 2 are examples.

Q. And are those examples mathematical formulas

and mathematical equations?

A. Yes.

Q. And is it -- in your view, can you copyright

mathematical formulas and mathematical equations, simple

or complex or in between?

A. I believe they cannot be copyrighted.

Q. Isn't it true that mathematicians are always

borrowing each other's problems, snippets of each

other's problems?

A. Yes, it is.

Q. Have your colleagues borrowed your problems?

A. Yes, they have.

Q. Have they asked for your permission?

A. It is understood that if I give them something

of mine, they can use it. As well as if they give me

copies of what they've written, I can use them as well.

They're not published materials.

Q. Okay. Now, I'm going to direct your attention

and hand you Exhibit 3 to the Dis'trict's exhibit No. 6.

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MR. UPPAL: And what's the Bates number on

that?

199

MR. MONTOYA: The Bates number --

THE WITNESS: 153.

MR. MONTOYA: -- starts at 153 and it ends at

245 -- no, 249.

Q. BY MR. MONTOYA: Tell the Committee what that

is. What is that stuff?

A. Exhibit 3 are notes that -- material that I

wrote using all the handouts I've made or that

colleagues have given me throughout my mathematic career

that pertain to basic arithmetic.

Q. Okay. Did you get any of it from Sullivan?

A. No.

Q. Did you get any of it from Tussy & Gustafson?

A. No. These materials came from myself that --

over the years and from colleagues who had shared

materials with me.

Q. And did the colleagues share the mater_~ials with

the understanding you can use them to teach your

students?

A. Yes.

Q. Now, let me ask you a question, tell the

Committee how much money you made off of the first stack

of papers, what I call the — it's Exhibit 1 to

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District's Exhibit No. 6. How much did you make on

that?

A. I made no money.

Q. How much money did you make to Exhibit 6, part

two?

A. None.

Q. How much money did you make on Exhibit 3

part -- Exhibit 6, part three?

A. No, none.

Q. Now, do you use those materials for any purpose

other than instructing your classroom students?

A. No. I only did it for instruction of my

students.

Q. And you thought you could under the Fair Use

Doctrine?

A. Yes.

Q. Now, let me ask you a question, we talked about

this guy whose going to 'testify this afternoon named

Fred Bellamy. Isn't it true that when the District

wouldn't give you any legal direction, that you had to

actually go out and find a private lawyer who would give

you legal direction?

A. That's exactly what happened.

Q. And tell the District in your own words how you

came about meeting Fredric Bellamy?

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A. Well, I talked with colleagues of mine trying

to find out how I could get information on copyright

because I wanted to know what was the violation or how

could I not violate -- what could I do to not violate, I

wanted to, to abide by all the laws, both the Maricopa

District as well as Federal, State, everything. And so

I -- in talking to colleagues one of my colleagues said

that he had found this one attorney whose entire life

was based on copyright law and that I should contact

him, so I did. And I took my materials to him and I

asked him to give me his opinion as to whether I had

violated copyright and if I had how could I not violate

copyright because I wanted to be in compliance.

Q. What was his name?

A. Fredric Bellamy.

Q. Tell the Committee how much he charged you?

A. He didn't charge me anything.

Q. Did he tell you why he didn't charge you

anything?

A. No, he did not tell me.

Q. He'll tell the Committee when he gets here.

A. Okay.

Q. What did he tell you? Summarize that for the

Committee briefly because he's going to come and talk to

the Committee himself, face-to-face.

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A. He told me in essence that this was a tempest

in a teapot, there was nothing here that violated

copyright; that I was using my lecture note -- these

were lecture notes, they were written to present a

lecture to help students, to provide space for them to

write in because they can't write in their textbook; it

was purely for educational purposes.

DR. RYES: Can I ask a question? May I ask a

question?

MR. MONTOYA: Of course you can.

DR. REYES: Did Mr. --

MR. MONTOYA: Bellamy.

DR. REY~S: -- Bellamy, did he review the same

materials that Mr. Garrison reviewed?

THE WITNESS: At the time -- yes, I gave Mr.

Bellamy the spring 2010 materials which are Exhibits 1

and 2. I don't know how much of it I gave him, but it

was the same material, the very exact one. And I also

gave him copies of the textbook where I had copied the

problems.

MR. MONTOYA: But the answer is no. At

Exhibit 6, part one, yes; exhibit 6, part two, yes; then

she gave him the book. But exhibit 6, part three hadn't

been created yet so she did not give him that. But if

you read Mr. Garrison's opinion, his main problems were

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with the two materials that Mr. Bellamy did review.

MR. UPPAL: Objection. Objection. Now, Mr. --

Mr. Montoya has crossed the line into testifying --

MR. MONTOYA: You did that Pavneet.

MR. UPPAL: -- what the expert's opinion was.

MR. MONTOYA: You did that Pavneet.

MR. UPPAL: Because he should be

cross-examined --

MR. MONTOYA: You too.

MR. UPPAL: -- if he's going to testify what

the witness testified about. He's literally testifying

to you --

MR. MONTOYA: That's what you did.

MR. UPPAL: -- what the expert witness

allegedly told you and what the expert witness's main

problem was.

CHAIRPERSON CRUDUP: Move on.

MR. MONTOYA: I'll move on.

Q. BY MR. MONTOYA: Okay. Now, Exhibit 3, so you

didn't use any -- you didn't copy from any published

textbook?

A. Not at all.

Q. And rlow tell the -- tell the Members of the

Committee, when was the last time that you used

Exhibit 3?

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A. In spring of 2010.

Q. Have you used it since then?

A. No.

Q. Why not?

A. The Administration does not allow me to use

them.

Q. So you did what the Administration said?

A. Yes.

Q. Now, I'm going to give you what's been --

that's Exhibit 4 -- or, part six [sic] to the District's

Exhibit 6, it's MAT 187 precalculus algebra section

lecture notes starting at Garrison 260.

Tell the Committee what that is.

A. Exhibit 4 is comprised of my lecture notes,

notes that I was going to lecture from for fall of 2010

when I taught the same class that I had taught the

previous year in fall of 2009. But in these materials,

I had removed every problem, that was from the textbook I

would be using and I had replaced all those problems

with my own problems.

Q. Now, tell the Committee loud and clear, because

I want them to get this straight, when is the first time

that you used the materials in District's Exhibit 6,

part four the first time?

A. The materials in Exhibit 4, is that the one

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you're talking about --

Q. Yeah.

A. -- that you just gave me?

Q. Those. When was the first time you used them?

A. These materials have never been used.

Q. Whys

A. Because the Administration disallowed my use of

them.

Q. Okay. So, isn't it true that -- that all of

the materials that the District claims violated federal

copyright law were used in the spring of 2010?

A. Yes.

Q. And you haven't used any of those materials

since?

A. No, I have not.

Q. Because the District told you not to?

A. Correct.

Q. Now, Sean Garrison testified to this Committee

that _you never use textbooks; is that true?

A. Absolutely not true.

Q. Tell the Committee how that's false.

A. The only time I did not use a textbook was when

I taught the arithmetic class, the basic arithmetic 082

class. That's the only time I did not use a published

textbook. All the other classes were taught requiring a

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published textbook and the students had purchased the

published textbook.

Q. Are you against textbooks?

A. No, no. I like textbooks. But I felt my

arithmetic class, I thought my material was superior to

the textbooks that were out; and I was always writing

these materials to supplement the textbooks, so I just

thought, just put them all together. I mean, you're

writing it anyway and using it, so I used this in place

of a textbook. And it had been approved by the Math

Department at Phoenix College for use by any faculty

member, which means they can make copies of them.

Q. And that's District Exhibit 6, part four that's

been approved?

A. Yes.

Q. And what's the Bates number on that at the

beginning?

A. 153.

Q. The District approved it?

A. Yes, the Math --

Q. You still didn't use it?

A. The Math Department approved it.

~. Let me ask you this: Did anyone in a position

of authority at the District, Professor Martinez, tell

you that unless you had written authorization from a

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publisher's agent, you could not even use a snippet of

publisher's materials because it violated federal

copyright law?

A. That's --

Q. We've heard Dr. Kakar testify to that

repeatedly.

A. That was the information I was given by Dr.

Solley, Dr. Kakar, and Maggie McConnell.

Q. Did Mr. Bellamy confirm that for you?

A. No.

Q. Now, you also heard Dr. Kakar testify that even

though simple arithmetic problems weren't subject to

copyright, complex arithmetic equations were subject to

copyright. Did Mr. Bellamy say that?

A. No, and none of these problems are complex,

they're all simple.

Q. Let's talk about that. Tell me what level of

math you teach at Phoenix College to your students.

A. I teach the full range from basic arithmetic

through calculus.

Q. And do you teach mathematical theory?

A. I teach theory in the context of teaching 'the

content but not separately.

Q. Do _you teach the philosophy of mathematics?

A. I teach the philosophy and context of teaching

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the subject but not separately.

Q. Let me ask you this: In your 40-plus years of

teaching, have you found that sometimes you have to

modify your teaching materials to satisfy your needs of

your particular class members?

A. That is always happening. We have a textbook

and I present the content of the textbook in a way that

I think my students, whoever they are, will understand

it.

Q. Now, why do you prepare lecture notes to give

to your students? Why don't you make your lazy students

take notes when you're lecturing?

A. Well, I did that for years, I would write

things either on the board or on the overhead screen and

I noticed they were spending a lot of time copying what

I was writing and it took up my instructional time, when

that wasn't the important part. The important part was

for them to listen to what I was saying and learn. So,

I decided those things that I'm going to spy to them

that they don't act, I should have it already written

down, it will save us time, it will give tY1e student an

opportunity to think about what's being said rather than

copy it down and not be able to think about it. And

then once they can think about what's being said, there

they can do examples and following the procedure I gave

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them.

Q. Have your students given you any feedback as to

the efficacy of that teaching methodology?

A. The students are very grateful that they don't

have to copy the question or the notes that I am

lecturing -- my lecture material and that they can just

refer to it in the book and, yet, they get to practice

in the lecture materials, whatever it is I'm lecturing

about and these documents don't get lost and shuffled

all over the place because they can't write it in the

textbook. Before this, they'd have to write separate

notes and the textbook and the separate notes got mixed

up and lost and they weren't able to keep organized.

And this is a method that has helped them and it has

been very appreciative, this type of organization, this

type of instructional presentation.

Q. You just testified, Professor Martinez -- Dr.

Martinez, that your students couldn't write in your

textbook. Explain to the Committee why.

A. Well, the students like to resell the textbooks

after the class is finished and they can't resell the

textbook that's been written in, so they protect the

textbook so they can get resale value from it, and then

anything they want to keep they need to write down.

Q. Are you a lawyer?

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A. No, I'm not.

Q. Now, when you were meeting -- how many

administrators did you meet with at Phoenix College or

from the District regarding the issue of copyright?

A. I met with several administrators, Anna Solley,

Cassandra Kakar, Paul DeRose -- I met with several.

Q. Now, were they uniformly polite with you when

you met with them?

A. No, they were uniformly cold and distant with

me and it was scary always meeting with them. Because

instead of engaging in a conversation to find out what

are you talking about or how can I do better here? They

consistently reiterated the language of policy, of

regulation, and of the law. And irl --- they just read

those statements back to me and I didn't always

understand, or I wanted to get a question about how

mathematics fits into that, or what T could do to do a

better job and not violate their sensitivities, but that

was not allowed. It was just: Do you understand this,

that you are not to -- do you understand that you're not

to copy material without permission? And I do

understand that, but --

Q. But -- but do you remember Seen Garrison

testifying to this Committee under oath that under the

Fair Use Doctrine you can copy something without

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permission?

A. Yes.

Q. Within certain limitations?

A. Yes, but the information I was given is you may

not copy without permission. There were -- it was a lot

of information of that nature because, I guess, that's

the way they were interpreting. But they -- when I

couldn't ask a question, they wouldn't answer any

question I asked that was specific to mathematics.

Q. Were you intimidated?

A. I was extremely intimidated.

Q. Now, the fact that you were intimidated, did

that have an impact upon your ability to -- to work with

them and to do your job?

A. Well, I -- the fact that -- the intimidation

wasn't the bad thing, the bad thing was that they

wouldn't talk with me, they wouldn't answer my

questions, they wouldn't get down to specifics in terms

of their complaints. For instance, they said: We don't

have faith in you, we've lost faith. Well, okay, how --

how can I gain faith with you or how did I lose it? And

they would not discuss that. It's your job to find out

how you did that. I can't read somebody's mind.

It was all very vague that way: It's your job

to find out how to make us believe you.

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Q. Are you -- are you rebellious? Are you a

rebel?

A. I want -- no. I want to know what I can do to

address their concerns. I just want to know what it is.

What can I do?

Q. Are you afraid to lose your job?

A. Yes. I don't want to lose my job, I love my

job. I love teaching. I love my students and I really

enjoy my colleagues. There's nothing I would rather do

than this. And I really like Maricopa Community College

District. I like you and I don't even know you because

I know you are all colleagues of mine and I know your

heart is there to help students.

If we wanted to do something else, we would go

to the university. There's a lot of places where we

could go and earn more money, but we're here because we

like our profession, we love our profession, and we care

about our students. We want to do the best by them and

we don't want to break any laws. We don't want to lose

our jobs.

Q. Now, let's move on to the second prong of the

Administration's case against you, the orie based upon a

number list, substantive list rule that you violated the

District's money handling rid es. Let's talk about that.

Now, did you take some materials to Staples to

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have copied for your students?

A. Yes, I did.

Q. Now, first, tell the Committee about the

content of those materials.

A. These were materials that had been approved for

use by the Math Department faculty in teaching, like the

course. And in this case, I think it was -- I think it

was college algebra -- it was one of the algebras. And

these materials had been developed by one of the

colleagues, had been used for years by him, had been

used for years by me. So, that semester, it's used as

the -- the classroom textbook. So, I -- I asked my

colleague -- and I didn't need to be asking, I just did

that in abundance of caution. I didn't need to ask

because it was already approved.

Q. Asked what colleague?

A. Ask Tim Bryan for permission to use his

material.

Q. What did he say?

A. He said yes.

Q. Did he say y0U can use them but you can only

use them on online?

A. No. He said go ahead and use them. He was

unable to give them to me, so he said, well, if you have

an old -- you know, a previous time I've given to you,

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because he had electronically, go ahead and use him.

And I thanked him and proceeded to let my students know

that we were going to be using those materials and

not -- and this happened on a Friday and class began on

a Monday. So, when I met with the students on Monday, I

told them we're not using the textbook, we're using --

the textbook that's on the syllabus, we're using these

materials.

Q. Okay. And did you ever give them to one of

your colleagues to approve for copying item-by-item?

A. I had been told if I copied them piecemeal,

that Icon would copy those. And I thought -- but if I

took the whole stack at once, then I couldn't get them

copied.

Q. Now, did you tell your students: Hey, you can

borrow my copy and copy it yourself on your own time

using your own money?

A. That's exactly what I said. Either now you

need to make copies of this and I recommend you bind

them so you don't lose them arld if you don't -- anywhere

you -- copy them anywhere, at home, at school, or at

college; or I can take it, if you want, because I wanted

them to get the booklets ~s Noon as possible, I can go

and make copies on my own time, but if you want me to do

that, you'll need to reimburse me whatever it costs me.

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And the entire class preferred that I make the copies

myself and that they would reimburse me my cost.

Q. Do you regret doing that?

A. Now I do. I definitely do.

Q. Trying to -- no good deed goes unpunished, have

you ever heard that saying?

A. Yes.

Q. Tell the Committee how much money you made

making those copies for your students.

A. I didn't make any money. I --

Q. Did you lose any?

A. Yes. I rounded down to 511.

Q. About how much money did you lose?

A. Oh, I don't know. Maybe 525.

Q. Did you try to get it back from the students?

A. No. Absolutely not, no.

Q. Did you use the materials?

A. Yes.

Q. Now, are you aware of any rules -- maybe you'll

know what those rules are -- that prohibited you from

doing what you've described?

A. I am not familiar with any rule. And I did ask

to please show me tYle procedure, the policy for Phoenix

College that identified that this was wrong. And I also

asked for them to show me where it describes the type of

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materials that can get copied versus the ones that will

not be allowed to be copied and I was told there was no

such procedure or policy.

The policy as stated is quite general and it

refers to athletics, it refers to theatre -- exchanging

money at theatre, it refers to financial aid, but

there's no reference there to this type of situation or

when we get money for students involving clubs, because

we do club work and get money.

Q. Okay. Tell -- briefly because the Committee

just heard this and they understand it, I believe --

what is your understanding between being reimbursed for

something and selling something?

Did you -- well, let me just ask it this way:

Did you think you were selling the materials to the

students or being reimbursed for your out-of-pocket

costs, rounded out to the lowest dollar?

A. No. I mzde it very, very, very clear to the

students that either they -- they needed to get copies

of the materials, either they go off and make copies of

it at their owri expense or -- this is their expense, or

I would be willing to make the copies for them but they

would need to reimburse me whatever it costs. If we

made that arrangement they would need to reimburse me

because I made the copies for them instead of them

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217

making them. I was not selling. I was getting

reimbursed.

Q. The directive ordered you to give the

reimbursement, the money back to students?

A. Yes. And at that time I said, well, then, I'd

like my booklets back. If you're going treat this that

I purchased them, then I'd like the booklets, and I was

told: No, you are giving the booklets to the students.

And I said: No, that wasn't our understanding;

it's their cost, it's their booklet, their material and

they agreed. I didn't force them to.

Q. How many of your colleagues in the Math

Department irl Phoenix College can speak Spanish?

MR. UPPAL: Objection. Irrelevant.

MR. MONTOYA: I don't think it's irrelevant at

all. There are -- there are math students at Phoenix

College who --

CHAIRPERSON CRUDUP: To save time, just

continue. Just answer.

TI-I~ WITNESS: In the Math Department?

Q. BY MR. MONTOYA: Yeah.

A. There are four. I think there are four.

Q. Do you have students in the Math Department

that can't really speak English as well?

A. Yes.

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218

Q. Do you sometimes instruct in Spanish when you

need to push someone along?

A. Yes, yes.

Q. Now, did you pay back the money that you were

reimbursed for?

A. I don't consider it pay back.

Q. Did you give it back?

A. No, I did not.

Q. Why not?

A. I want to get clear first that this is

something I am supposed to do. I was researching -- I

want to research where are they coming up with this,

because they're -- it seems like the Administration was

just looking for any little thing to cause me grief.

And I wanted to know, show me where it says this or show

me the process that says I can't make these copies at

Icon. Why can't I make it at Icon? They're

instructional materials. The RFP says: If you have

unpublished materials written by the instructor, you may

not cause the student to buy it. That's the RFP. And

here, that's exactly what I was doing. I wanted to make

sure that I was in the clear here.

Q. You reminded me of a really good point, because

I remember Dr. Kakar testifying twice that she

recommended that you make your own materials and bind

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them and sell them to your students at the bookstore.

A. That's exactly what --

Q. Did she testify to you that?

A. Yes, she did.

Q. Did she tell you that?

A. She told me that as well as --

Q. Are you allowed to do that under the

Residential Faculty Policies?

A. No, I'm not. And they also said I could post

them on my Website and then the student could copy. And

I thought, well: What's the difference if you post

them, they copy them.

Q. Plus, do you think -- do all of your students

have access to the Internet?

A. They're --

Q. Do all -- do they?

A. Well, I don't know but I'm assuming that not

everybody does.

Q. Do all of your students have access to a copy

machine?

A. No, they do not.

Q. So you were trying to help your students?

A. Absolutely, I was helping.

Q. Isn't that what teachers are supposed to do?

A. Yes.

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Q. So, you never -- did any of your students come

and tell you: Hey, I've been -- I've been told that you

have to give me back that money and I don't want it

back?

A. I had several students really upset because

they received an e-mail from the Administration before I

evert knew about it and the Administration came into my

classroom before I was there and talked to the students,

telling them how wrong I was to make these copies and

then sent them this e-mail telling -- and additionally

sent them an e-mail telling them I was to reimburse the

$11, they were to request it. And the students were

very upset. They didn't want -- they didn't understand

why. They said: I bought this. This is my textbook.

And they couldn't understand, they were asking me: What

could we do? I didn't know what they could do, so I was

just trying to figure it out.

Q. Okay. Now, I want to ask you -- I'm trying to

~o quickly -- do you remember when Dr. Kakar testified

that you asked a junior faculty member to make copies

for you so you could subvert the directive that you

couldn't make copies unless they were approved?

A. Yes.

Q. Do you remember her testifying to that? I want

you to tell the Committee what really happened.

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A. Okay. Over the weekend in April I think it

was, I had noticed that my students needed some graphs

that were not in the textbook and they are very

important graphs. So, that weekend I spent the whole

weekend generating two pages -- two papers that had

these graphs and all the information I thought was

valuable to them.

Q. Let me stop you. When you say "generated

them," did you copy them from the book? Did you copy

them from the Internet? Did you copy them or did you

generate them independently based upon your own

knowledge?

A. I generated them independently based upon my

own knowledge using the software that was available to

me. And I got the two pages ready and then I couldn't

find -- none of the administrators were to be found that

morning and -- the Chair, the Vice President, the

President, the Dean, no administrator was to be found.

And I wanted to share that material with the class at,

tike, 10 o'clock. And I knew they were going to look

for copyright violations, but I knew there was no

copyright violation, I just generated this myself this

weekend.

So, I thought, oh -- I thought they were

reasonable.. I thought the real concern was copyright.

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So, thinking innocently that way, I thought, well,

they're going to approve it because I know it's not

copyright violation and I asked -- it was getting close

to, like, five minutes before class. I thought:

They're going to approve it and this way I'll have them

ready. I asked an adjunct to make copies of those two

pages.

Now I know I should have waited. And I never

did get to use them because the Chair did not approve

them and I didn't use them. To this day.

Q. Isn't it true that the Chair, you know, with

President Solley's directive that the Chair stopped

approving your own original work that you created based

on your own knowledge, your own education, your own

sweat and blood?

A. Well, this was before Dr. Solley's directive.

Q. That's a good point. So --

A. It was before the directive. And Mr. Sueyoshi

just arbitrarily say "that's copyrighted." I know it's

not copyrighted, I did it myself. Because he was in his

mind, he wouldn't let me copy it.

Q. Okay. Now, remember a bunch of other documents

that Dr. Kakar said that you copied in violation of the

directive, then when I asked her on direct -- this was

kind of deceptive. No, I take that back. This was

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deceptive.

Dr. Kakar was asked by the administration's

counsel: Did she printout a bunch of course materials?

MR. UPPAL: Objection. This is not a question.

This is another one of --

MR. MONTOYA: Yes, it is.

MR. UPPAL: It's one of Mr. Montoya's --

MR. MONTOYA: It is a question. You wouldn't

know because you interrupted me.

MR. UPPAL: It's a speech, it's not a question.

MR. MONTOYA: No, there is a question mark at

the end.

MR. UPPAL: It's an inquiry at the end.

MR. MONTOYA: I can go on.

Q. BY MR. MONTOYA: Do you remember when Dr. Kakar

testified you printed out a bunch of course materials?

A. Yes, I do.

Q. When she was asked by the administration's

lawyer if that violated a directive, she said, yes. But

when I asked her on cross-examination, isn't it true

that Dr. Martinez [sic] said that was a mistake. Do you

remember that?

A. Yes.

Q. Tell the Committee about that.

A. Well, I wanted a copy of, I think, it was page

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16. One copy for myself.

Q. Of what?

A. Some material I had written, I had written.

Page 16. And I had a colleague in my office and we were

talking, so as we were talking, I put on the computer

that I put on page 16. After a little bit, I went to go

get my one page, but the printer was printing and I

thought: What's going on? It's printing a bunch.

So, I came back to my office and I thought:

What's going on? So, I cancelled the print. I went

back and it was still printing. I came back and I

cancelled the print. Then I called I.T. I said:

What's going on here? I can't stop the print. They

told me how to cancel, which I had already done and it

wasn't cancelling.

So, I went back to the office and I unplugged

the printer and then I asked the secretary: I don't

know why it's printing, I wanted one page, how do we

stop this? And then he proceeded to come back to my

office. He tried the same cancel procedure, which

didn't work. And then we -- but, eventually the whole

thing stopped printing.

And by that time, there were a lot of copies

but because the print -- apparently I had put the "16"

instead of page 1.6 on copies. That's all I can think

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must have happened. I don't know to this day but that's

all I can guess because I just wanted one page of page

16.

Q. Did you distribute those copies to your

students in violation of the directive?

A. Oh, absolutely not. Absolutely not. And the

Administration Evaluation Team found that that was just

a mistake, so I'm surprised to find it in here as a

complaint.

Q. Tell the Committee what the "Administrative

Evaluation Team" is.

A. Well, I -- my Chair asked that I receive an

administrative evaluation due to the very points being

made here, except for the cash handling wasn't in there

at that time. And the three members met and received --

interviewed people, and on that one issue they found

that there was an honest mistake, I wasn't trying to

waste -- the way they had put it, that I was wasting

department materials — I was attempting to waste

department materials, which I wasn't. And they found in

my favor on that issue.

Q. Do you miss not teaching?

A. Oh, I do. I love teaching. At the end of

every summer I'm ready to get back in the classroom.

Q. You've been placed on zdministrative leave?

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A. Yes, I have.

Q. Why are you fighting -- why don't you just

retire instead of going through this?

A. Because I love teaching. It is a joy of mine.

It is not a big job. It is something I like doing. I

like creating materials and creating the presentation of

mathematical knowledge because I know that's difficult

for people. I enjoy seeing the spark in the student's

eyes. I love this subject and I really enjoy Phoenix

College. I enjoy my students there are who very

diverse. I enjoy my colleagues who are also -- they're

Latinos there and I enjoy my Latino colleagues. I enjoy

all my friends at Phoenix College.

The college is a beautiful college. It's a

pleasure for me. It is not a job. It's a pleasure and

I'm not ready yet to retire. I will retire eventually.

I will retire when I'm ready to retire.

MR. MONTOYA: I don't have -- yes, please.

DR. REY~S: Question. How long have you been

on administrative leave?

THE WITNESS: This semester.

DR. REY~S: Just this semester.

THE WITNESS: Right from the beginning. I was

told at the end of May by Dr. Solley that I would be

terminated in the fill, grid my lawyer at that time said:

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No, they won't; no, they won't; that would be crazy.

But they did. I got the letter and I've not returned

back to the college.

MR. MONTOYA: I don't have any further

questions on direct. Thank you very much.

MR. UPPAL: I'd like to take a five-minute

break before I start my cross. It can come out of my

time.

CHAIRPERSON CRUDUP: Okay.

(Whereupon a recess is taken at 2:49 p.m. until

3:03 p.m.)

CHAIRPERSON CRUDUP: We're convened.

CROSS-EXAMINATION

BY MR. UPPAL:

Q. Dr. Martinez, good afternoon.

A. Good afternoon.

Q. You know who I am. I'm counsel for the

District, with my colleague Shannon Balch. And to

expedite my questioning since it's late in the day, I'm

going to ask you ~ series of questions and then my

colleague is going to finish up with a few questions

before we pass you back to your own attorney.

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And so let me begin by asking you because Mr.

Martinez -- excuse me. Your own attorney, Dr. Martinez,

Mr. Montoya asked you about the fact you are under oath.

Do you remember when he went through that with you a

little bit?

A. Yes.

Q. What's your understanding of being under oath?

A. I'm required to tell the truth.

Q. You're required to tell the truth, right? I'm

not accusing you of anything. I'm just saying you

understand that you're required to tell the entire truth

and essentially respond to questions completely and

honestly, right?

A. Yes.

Q. And you're familiar with Dr. Anna Solley -- or,

I should say President Anna Solley, correct?

A. Yes.

Q. She is the President of Phoenix College, right?

A. Correct.

Q. And she's also a Hispanic, right?

A. I think so.

Q. You don't know?

A. I just know what I am told and I am told she

is.

Q. Is there some doubt in your mind about that

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issue?

A. Well, somebody else told me she was not.

Q. Really?

A. So -- yeah. So, I --

Q. Well, normally I would not even go into this

line of inquiry but since your own attorney asked you so

much about your bilingualism and your heritage, I'm just

wondering whether or not you know if Dr. Solley is the

same national origin and whether she's active in

Hispanic civil rights groups. Do you have any

information about that?

A. She is active in civil rights groups.

Q. In fact, she's won awards for being in

leadership positions and Hispanic civil rights groups,

hasn't she?

A. Yes, she hzs.

Q. And, again, there's really no doubt in your

mind that Dr. Solley is also Hispanic and bilingual is

there?

A. I've answered that.

Q. Is there any doubt in your mind? I'm sorry. I

didn't get -- I didn't get your answer.

A. Yes.

Q. You said you doubt it?

A. I said that somebody told me that she was not,

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so now I don't know.

Q. Okay. All right.

A. I don't know.

Q. Who is that someone that told you that she is

not?

A. I don't recall but it was probably several

people.

Q. But it was significant enough to cause doubt in

your mind?

A. Oh, yeah.

Q. Okay. Is there any doubt in your mind about

the fact that Dr. Solley is in a managerial position?

A. No.

Q. Okay. She's basically, as she described, the

CEO of -- the chief operating officer of Phoenix

College. You would agree with that, right?

A. Yes.

Q. You know, when there's a headache with respect

to budgetary issues or problems, it's her problem to

deal with it, right?

A. No.

Q. You're not in a managerial position, right?

A. Nn.

Q. But you're certainly -- since you're not in a

managerial position but Dr. Solley is, would you agree

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that Dr. Solley has to take into consideration issues

and facts and problems that really are not encompassed

within your job duties?

A. Yes.

Q. Okay. So, given Dr. Solley's position as the

President of Phoenix College, do you think that she's

owed any discretion or deference by people that work in

her college, people that report to her?

A. Yes.

Q. F-Iow about yourself, do you think you owe her

some deference or discretion or courtesy of following

her directions?

A. Yes.

Q. Okay. But you haven't done so, have you?

A. No.

Q. "No" meaning you agree with me or you disagree

with me?

A. I agree.

Q. That you have not followed her directions?

A. Well...

Q. If you agree with me, that's what I want the

Committee to know. If you don't agree, this is your

chance to say otherwise.

A. Well, I disagree — I don't know whether --

what is true and what is not, and so I guess that's what

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I'm saying.

Q. I'm sorry. I didn't mean to interrupt you.

So, I'm going to ask you: Have you finished your

thought or your answer?

A. Ask me the question again.

Q. Okay. Isn't it true that you have not followed

Dr. Solley's directions and instructions?

A. Dr. Solley's? I think I have to the best of my

ability.

Q. To the best of your ability. So, isn't it

true -- well, let me retract that.

Since you claim that you have followed Dr.

Solley's directions to the best of your abilities, given

her status as the President of the college, how many

cancelled checks have you come here with today?

A. I don't have any.

Q. All right. And you were told -- you were

instructed unequivocally with respect to this

Cash-Handling Policy -- and bear in mind I'm not asking

you whether or not you agree with the instruction or

not, I'm just asking you, weren't you instructed in

writing to make refunds and produce cancelled checks?

A. Yes.

Q. And you haven't done so?

A. Correct.

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Q. Ma'am, in this hearing today, would you agree

with me that the witnesses that have come before you

that the Committee -- that it is reasonable for the

Committee to assess their credibility?

A. To assess their credibility of the witness?

Q. Right. Just because a witness has testified to

something here today, the Committee doesn't have to take

that as a fact, right? The Committee has the ability,

and I would say even the duty, to assess the credibility

of the witnesses?

A. Yes.

Q. And that includes you, doesn't it?

A. Yes.

Q. The Committee is not required you6delete to

take you at your word, the Committee is rather charged

with assessing your credibility?

A. Is that a question?

Q. Yes. You agree with that?

A. Yes.

Q. Your credibility has to be assessed, does it

not, in the context of your direct insubordination and

direct refusal to comply with President Solley's

directives?

A. I'm not agreeing with your use of

"insubordination" or "refusal." I am --

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Q. Would you prefer "failure"?

A. No.

MR. MONTOYA: I would like to object. I-Ie's

arguing with the witness instead of asking her about

facts. What happened; what did she do; what did you

think? This is an argument.

MR. UPPAL: I'd ask for the same leniency that

CHAIRPERSON CRUDUP: Okay. Yes.

MR. UPPAL: Thank you.

Q. BY MR. UPPAL: Since you don't like the word

"insubordination," let's use the word "failure." Would

you agree that your credibility has to be assessed by

the Committee in the context of your very recent failure

to comply with Dr. Solley's instructions to you to

produce cancelled checks for the refund -- showing that

you made refunds to the students to whom you sold course

materials that you copied at Staples?

A. You're saying I sold them. I did not sell

these.

Q. What word would you prefer?

A. I got reimbursed for my cost.

Q. Let's use your word. Let's use "reimbursed."

Isn't it true that the Committee has to assess your

credibility in the light of your failure to produce

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cancelled checks in direct violation of President

Solley's directive to you to produce proof in the form

of canceled checks that you had refunded what you like

to call reimbursements. Do you agree with that?

A. Well, in discussing this with my students they

did not want this to happen and neither myself nor they

knew what we could do about it.

Q. Name every student that said that. Give me the

names.

A. I don't have a list of their names.

Q. That's right. You don't have the names. But

let's -- let's indulge hypothetically that a couple of

students said to you that they didn't care, you would

have still been told, had you not, that you had to

produced cancelled checks?

A. Well, it was a class of students so...

Q. Ma'am --

A. And Dr. Solley -- I think it was Dr. Kak~r iL I

remember right that said I was to return tYie

reimbursement, and I then proceeded to inquire, just be

a little bit more clear with me as to where is this

violation because I have an understanding with the

students; I'm not clear on what's going ori, whit's the

policy, what's the procedure here at Phoenix College?

Q. You are clear, are you not? Because if you're

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not clear, we'll just go through the instruction.

You are clear, are you not, that irrespective

of what you believe, what you feel, or what you contend

these unidentified, unnamed students may have said,

isn't it crystal clear to you and everyone else that you

were told that you had to produce cancelled checks

showing you had made refunds?

A. Yes.

Q. And you have failed to do so?

A. I have not done so.

Q. And given that -- and given this failure in

direct contravention of what the President of your

college is asking you to do -- or, not asking, frankly

telling you to do, why -- why do you believe that you

can be trusted as to anything else?

A. Well, this is after four-and-a-half years of a

lot of stress and noncommunication from Dr. Solley and

the Administration.

And I can certainly be trusted. I've been

trying to work to figure out what is -- wYiat's the issue

here. And even on this particular one, even my stu~erlts

do not want the money back, they totally agree with me

that we made this arrangement, I -- I would not do

anything I am told. If I was told to jump nut of a

window, I wouldn't do that. And I would like to speak

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with them and I want to cooperate with something that

makes sense, and even some things that don't make sense.

It doesn't make sense that I wasn't able to use

Exhibit 4 when Garrison -- nobody found anything wrong

with it and I used the same textbook. That doesn't make

sense but I have obliged by it. But I did make -- l did

not follow this particular directive and I think it's

the only one I have not yet followed.

Q. So, if it's only one directive, even though

it's in writing, if it's only one, is this like a free

dog bite or something where you get one chance and you

shouldn't be held to the consequences because according

to you -- let's indulge your hypothetical. This is the

first time that you have violated something, let`s

assume that is the case. Does that give you a free

get-out-of-jail card?

A. Well, I think what that should do is allow me

to communicate and allow the Administration to

communicate back to me about this particular situation

and address the points that I've brought up and asked

for. I asked for: Show me the policies that I am

breaking here; show me where it describes this because

I'm not really clear about it. And if I --- I want to

help my students make copies of something that they're

going to go spend money on, how is that done? Arid if it

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can't be done, why can't we just ~o it at the school?

The school pays for faculty copies. It's not clear to

me. The whole thing is a big muddle in terms of why

won't you make copies of these materials? I want to

understand so that I, in the future, will know which

ones I can get copies of at Icon or copy center and

which documents I cannot.

Q. Is there some sort of rule or faculty manual or

policy, something that you can point to or identify,

that gives an instructor such as yourself the right not

to follow the President -- a written instruction of the

President of the college because you don't agree with

it? There's nothing like that, right?

A. No.

Q. You do understand that whether you agree with

the directive from the President or riot, you have to

follow it7

A. And, you know, after all this time I think I

should have and then continued to follow my -- my path

and try to find out, what is it that is wrong with this

picture here? What could -- what is the policy that --

I still don't know the policy that I've broken or the

procedure. I don't know how to better do this. And

I've continued to ask: Why won't you make copies of

this? Where is the procedure/policy ~t Phoenix College?

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And I have not been -- that question has not been

answered.

Q. How does any of that excuse you from failing to

produce the cancelled checks?

A. I think that was a mistake.

Q. On your part?

A. Yes.

Q. I just want to make this clear. Are you saying

it was a mistake on President Solley's part or a mistake

on your part?

A. I think -- right now I think I've made a

mistake.

Q. When did you come to this realization that you

made a mistake?

A. I've not been clear about it. I'm really not

clear right now, but I'm thinking right now -- I just

want to move on. I'm going to acknowledge this is a

mistake and --

Q. My question --

A. -- we can move on.

Q. I'm sorry. I made -- now I made a mistake. I

didn't mean to talk over you. Please finish your

answer.

A. Well, we all make mistakes and this is a

mistake I made. I think.

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Q. Okay. So you have made a mistake with respect

to your failure -- you're acknowledging that you made a

mistake with respect to your failure to follow President

Solley's instruction to you in writing to produce

cancelled checks showing that you made refunds, right?

Just a yes or no. You're acknowledging that's

a mistake on your part?

A. I think so.

Q. You think. So there's still some doubt in your

mind?

A. Well, I don't know this for sure but I believe

it is a mistake.

Q. So, when did you come to this realization?

Just in the last five minutes while I was

cross-examining you?

A. Well, I've never been clear about it.

Q. Ma'am, my question

A. I'm not clear.

Q. Ma'am, my question is: When did you come to

this realization that you made a mistake?

A. I have not beers clear. I don't know if it

really is or if it's riot. But for the purposes here, I

will acknowledge that i_t's a mistake.

Q. When did you come to that realize?

A. Right now I'm ~ckrlowledging.

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Q. Right. So, if it took you -- how long has this

thing been going with the Cash-Handling Policy?

A. Six months.

Q. Six months. During that time you've received a

lot of e-mails and written instructions about what to do

and how to make refunds to students, right?

A. Yes.

Q. So, this has been going nn for six months but

you only come to this realization within this last split

second?

A. Well -- and still -- still I haven't received

any policy or procedure from the Cashier's Office, from

anybody at Phoenix College, the President, Vice

President, the Dean, nobody has given me any feedback.

It's like do what we say; if we say jump, just jump and

forget about how high or whatever.

Q. Well -- well --

A. So, I'm willing to do that right now. And I'm

going to find out — I realty want to find out why we

can't make copies of this.

Q. It's taken you this long to acknowledge that

you made a mistake iri not comply with Dr. Solley's

directives that you still haven't complied with, even

though all of this, ~ccordirig to you, has been going on

for at least six months. Givers whit you just said, how

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can Dr. Solley trust you to comply with any of her

instructions if it takes you six months on this simple

point?

A. I follow -- I follow every instruction. This

is the only one I had a question on that -- and I

don't -- I didn't have an easy way of finding out the

answers.

Q. Now, did you testify in response to your

attorney's questioning and is it still your position

that the District reached out to students and somehow,

you know, belittled you or defamed you or said something

improper with respect to your violation of the

Cash-Handling Policy before they talked to you about it?

A. That's what the students told me. That's the

first news I had about it. I didn't know about it until

they told me and they asked what was going on.

Q. Take a look at exhibit 35. Do you have it in

front of you?

A. No.

Q. I'll give you a copy.

DR. REYES: Would you please clarify what

semester it was you made the copies of this at Staples?

THE WITNESS: The copies at Staples were made

in the fall of 2.012, one year ago.

DR. REYES: Thank you.

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Q. BY MR. UPPAL: So, really, this issue about you

making the refund and you're violating the Cash-Handling

Policy, this has been going on for at least a year,

right? Not six months?

A. I wasn't notified about it. I didn't know

about it until the end of the semester.

Q. I want to direct your attention to Exhibit 35.

And this is in the binder for the Committee at

Exhibit 35. This was an e-mail from the Math Department

Chairman. It says: -- I'm not going to read the whole

thing -- it says: "Dear Students, it has come to my

attention that Dr. Martinez, math faculty, may

have sold you instructional material she's not

authorized to have such materials printed."

And then it references the District's Cash-Handling

Policy, and, again, I'm not going to read it. But

what's the date of this?

A. April 4th, 2013.

Q. Actually, I'd like for you to read the date of

the e-mail below.

A. November 28th, 2012.

Q. You hid already been talked to about the

Cash-Handling Policy by November 28th, 2010 [sic], when

Phoenix College reached out to the students, isn't that

right?

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A. I don't remember.

Q. Okay. Are you still going to maintain your

position that the District somehow reached out to the

students about cash handling and tried to cast you in a

bad light in light of this November 28th, 2012, e-mail?

Is that still your position?

A. Say that again.

Q. Is it still your position -- now that you've

seen this notice irl writing dated November 28, 2012, to

students, you have it before you, are you still going to

maintain your claim that the District or Phoenix College

reached out to students and tried to belittle _you or

take advantage of you or cast you in a bad light before

talking to you?

A. I don't know when they first contacted me.

Q. Okay.

A. So, I can't tell.

Q. Could you pass back that exhibit, Dr. Martinez?

A. Uh-huh.

Q. Thank you.

So, ma'am, since you don't remember when the

District first contacted you about the cash-handling

issue, I went to show you Exhibit 3. I'll give it to

you in a second.

MR. UPPAL: I want to direct the Committee's

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attention to Exhibit 3, as well.

DR. REY~S: What Tab is that under?

MR. UPPAL: Tab 3. All the exhibits we have

are corresponded to the Tab numbers.

Q. BY MR. UPPAL: Dr. Martinez, what is the date

of this Corrective Action?

A. October 18th, 2012.

Q. Okay. And I don't mean to be flippant about

this, but you agree with me that October 18th, 2012,

proceeds November 18th, 2012, by more than a month,

right?

A. Oh, okay. Yes.

Q. Now, have you paid so little attention to this

cash-handling issue that you've actually forgotten that

you received a Corrective Action in October 18th of

2010?

A. Absolutely not. I've been so bombarded by

data, by e-mails, and phone calls and all this -- that

kind of behavior, that it's all jumbled sometimes. It's

hard to keep X11 this stuff straight. So, it was not

iritentiorial. I can see now when it happened.

Q. Professor, you're a math instructor, aren't

you?

A. I sure am.

Q. Aren't YOU used to data? Aren't you used to

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processing large volumes of data?

A. Absolutely. This is not a mathematical

problem.

Q. Okay. But you had forgotten that you not only

were talked to but you were actually put on a written

Corrective Action before Phoenix College reached out to

the students with respect to the refunds? You forgot,

is that your contention?

A. Okay. When you attack me, I'm getting -- I get

shaken up. Say it again.

Q. Would you like to take a break, ma'am?

A. No. I would like you to say it again and I'll

try to listen to words and not the delivery.

Q. You testified in response to your -- by the

way, nothing that your own attorney asked you shook you

up, did it?

A. Nn.

Q. Okay. And he asked you some rather complicated

questions, didn't he?

A. Yes.

Q. And --

A. I guess. I don't know.

Q. In response t=o one of your questions under

oath, you notified 'the Committee that -- you testified

to the Committee that Phoenix College had reached out to

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students and cast you in some sort of bad light before

even discussing the cash-handling issue with you, right?

A. Well, you know, I don't think this is

discussing. This is just giving me a statement arld we

never discussed this, so there's been no discussion.

This is the way the District has spoken to me. This is

how this Administration has spoken to me, in letters

like this that are read to me for the first time and

then I'm trying to make sense out of them. And when I

ask for clarification, I either get the same statements

restated to me in this language, but never a discussion.

There's been no discussion.

Q. There's been no discussion about your violation

of a Cash-IIandling Policy with you?

A. No discussion.

Q. Did you hear Dr. Kakar testify that not only

was there a discussion with you, but hat Dr. Kakar and

Dr. Solley, the woman who is the President of Phoenix

College and has better things to do, took the time to

meet with you in person to explain your cash-handling

violation?

A. This is what happened --

Q. No. My question is and then you care explain

what happened.

A. Okay. All right.

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Q. Do you recall Dr. Kakar testifying about that?

A. Yes, I do.

Q. Is Dr. Kakar a liar on that issue? Because we

can have President Solley testify about that as well.

A. I don't want to call anybody names.

Q. Terrific. Isn't it true that Dr. Kakar testify

that you walked out of that meeting while they were

trying to have a discussion with you?

A. She did testify to that.

Q. And did you, in fact, walk out?

MR. MONTOYA: Now he's interrupting the

witness.

Q. BY MR. UPPAL: Did you, in fact, walk out is

the question?

A. I did walk out.

Q. As they were trying to have a discussion with

you?

A. No. They were not having a discussion with me,

that's the whole thing. I was in that meeting and for

the first time in my life, what the meeting consisted of

was Dr. Solley or Dr. Kakar, I can't remember which now,

read an agreement to me, and then at the end of that

reading of it asked thzt I sign the last page. I

refused to sign it. I said: This is the first time

I've looked at it, I'm not really clear what it says.

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I'm under a lot of stress right here because they did

not allow me to bring somebody else to this meeting,

quote, "meeting." And I said I want to be able to think

about this and look at it more carefully before I sign

anything.

Then they pressured that: What was it that was

bothering me, and I mentioned some of the point -- a

point; and they said: We'll scratch that out and then

sign it. And I said, no, I'm not clear on this yet.

And they kept urging me and it was even threatening.

I'm afraid of Dr. Solley, she can cause me a lot of

harm. And they insisted that I sign and they kept

reading the same material over and insisting that I

sign. And I wanted to discuss it and they said they're

not there to discus, that they were there for me to get

this and sign it.

And I said: Well, I -- I said: I feel

threatened; I'm afraid here; I haven't read this yet

clearly and in a calm place, and I said I need to leave.

Arld they said: But you need to sign it, you need to

sign it right now. And 'then I walked out. There was

nothing else I thought could be gained from that.

Q. Let me get this straight. You're afraid of

President Solley but, yet, you're not so afraid ~s to

violate her written instructions to make refunds. Is

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that about right?

A. I am afraid of Dr. Solley, I'm sorry.

Q. Wow. Given this fear, what gave you the

bravery to violate her instructions?

A. I didn't -- I didn't want to violate. That was

not my intention. My intention was Dr. Solley, Dr.

Kakar, somebody, show me the policy that you are saying

I violated. Because the policy that I am shown

addresses theatre, athletics, the Cashier's Office, and

doesn't address this. I'm not clear about it. Why have

I not been allowed to make a copy of this through Icon?

Where is the procedure or the policy that described what

can be copied and what cannot be copied? Please speak

to me. I want to follow policy and procedure. I want

to know what needs to be done. And there was no

response to that. No discussion at all.

Q. Did you give this speech before or after you

walked out of the meeting?

A. Well, during the meeting I said: I want time.

I said: I have not seen this document before this

moment and you have just read it to me, I want some time

to read it carefully and understand what it says. And

then discuss it with you; and I was told no.

Q. When you walked out, dicl you take this

Corrective Action dated October 18th, 2012, with you?

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A. Whatever was given to me in my hand I did walk

out with.

Q. And then since you wanted time to read it,

certainly when you walked out you must have read it?

A. Well, actually, I didn't read it.

Q. So, you didn't even bother to -- you didn't

bother to read it right away?

A. Well, I was very terrified, shaken up. So, no,

immediately I did not step outside and start reading.

Q. When did you read it?

A. I needed to calm down and I don't remember

exactly.

Q. Days later? A month later?

A. Oh, no. I mean, as soon as I was able to feel

safe and feel unshaken up by it, I read it.

Q. So, I want a timeline here. You walked out of

the meeting with President Solley who had taken her time

to meet with you and you claimed you are afraid of her,

and then you took the October 18, 2012, directive --

just looking for the time here, not a speech -- how much

time after you walked out of that meeting, how long did

it take you to actually read this Corrective Action?

I'm just looking for an estimate. You know, two hours?

Two days? Five days?

A. Mr. Uppal, I don't recall.

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Q. Because you didn't read it, did you?

A. Of course I read it.

Q. Okay. Well, let's read it now. Let's turn to

this Exhibit at Bates label Martinez 02250 and I want to

direct your attention to the third sentence of the

section that says "Non-Compliance." And read along with

me.

A. Wait a minute. I'm not clear.

Q. Ma'am.

A. Oh, the second page.

Q. I'm going to point to it just so we're on the

same page. So are you on --

A. The second page.

Q. -- 02250?

A. Yes, okay.

MR. UPPAL: Okay. Just in the interest of

time, Mr. Montoya, if it's all right with you, I'm just

going to point her to where we are at.

MR. MONTOYA: Sure.

THE WITNESS: I know where we zre.

MR. UPPAL: I just want to show you a sentence,

ma'am.

If that's okay? With your permission. Do you

prefer I not? I can sit down.

MR. MONTOYA: You can point to it. You're

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okay. You're being polite.

Q. BY MR. UPPAL: Starting right there, ma'am.

A. Okay.

Q. So I just want you to read silently along with

me. I just want you to tell the Committee if I read it

correctly.

It sates: "Because you imposed charges on the

students without authority to do so, you have a

responsibility to reimburse the students from

your own funds. You are hereby directed to do

so by personal check beginning immediately and

continuing until all students who paid you are

reimbursed."

Do you see that? Did I read it correctly?

A. Yes.

Q. Okay. And then we've already established you

didn't do that.

Are you aware that subsequent to your not

following that instruction, some attempts were made to

see whether or not you had, in fact, contacted students

to give them refunds?

A. Well, I didn't -- I disagree with that

statement. I didn't impose charges on the students.

Q. Ma'am, I think we're way past that point.

A. Okay.

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Q. We'll stipulate to the fact that you don't

agree. I think everyone understands that here. You

don't agree with what you were instructed to do. That's

not the point.

A. I didn't impose charges on the students, that's

what I'm saying.

Q. Ma'am, I understand. We have a different point

of view on that. That's not what I'm asking you. Okay?

A. Uh-huh.

Q. My question now is, that after receiving that

instruction, are yolt aware that attempts were made to --

b_y Phoenix College to contact students to inquire

whether or not you had followed that instruction to make

refunds?

A. You're asking if I'm aware of that?

Q. Yes.

A. Now I'm aware of it.

Q. Does that indicate to you the level of

seriousness with which the college and Dr. Solley

treated this cash-handling violation?

A. Yes.

Q. Okay.

A. It is very serious.

Q. There's an e-mail at Exhibit 39 from a Kelly

Loucks. Who is Kel]_y Loucks, by the way?

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A. He is the secretary of the Math Department.

Q. Okay. Kelly Loucks has an e-mail at Exhibit 39

which states out of -- and it's dated January 9, 2013.

It says: "Out of 52 total contacts between

messages and speaking with students, only one

had confirmed receiving the refund. Twenty

others had indicated they had not received a

refund from the instructor."

Do you have any basis to agree or disagree with

that?

A. I've never seen that e-mail.

Q. Would you like to see it?

A. Sure.

Q. Okay.

THE WITNESS: May I speak with my lawyer?

MR. UPPAL: Not -- well, I'm going to defer to

the Committee, but the general rule -- and I'm actually

going to ask Mr. Calderon what his view is on this is,

but the general rule is you don't get to take a break

and speak with your attorney in the middle of

questioning.

MR. CALDERON: Mr. Chairman, may I ask the

witness a question? May I ask the witness a question?

CHAIRPERSON CRUDUP: Yes.

MR. CALDERON: Dr. Martinez, are you I mean,

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is this an emotional thing you need to talk to him or

are you talking to him about the case? Don't tell me

specifically what it is. Are you seeking advice from

him?

THE WITNESS: I am feeling very badly and I

would like to continue and I think if I speak to my

lawyer I might be able to feel better about coming in

and returning.

MR. UPPAL: I tell you what. I'm just going to

go ahead despite in light of what the witness has said,

normally this would not be allowed, because -- I want to

explain why I have a hesitation to this. My hesitation

to this is when a witness takes a break in the middle of

being questioned and speaks to her attorney, that

witness can tailor her testimony to the questioning

instead of giving the complete and truthful questions

[sic]. That's why I had reservation about it and I

still do, but I'm going to withdraw it because I don't

want Dr. Martinez to feel or her attorney to argue that

she asked for a break and then wasn't given it.

So, I'll just withdraw my objection and let her

speak with her attorney.

MR. CALDERON: Mr. Chairman, if you're willing

to allow a break, I would allow maybe a two- or

three-minute break. And Mr. Montoya is an officer of

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the court, he knows he can't coach her while she's on

the stand. But if perhaps the two of them can just talk

about the non-substantive part to the extent they can.

I don't see a problem with that.

CHAIRPERSON CRUDUP: A brief break. Two

minutes.

(Whereupon a recess is taken at 3:37 p.m. until

3:39 p.m.)

MR. MONTOYA: She's just a little -- just a

little tired. You know, it's getting -- she's under a

lot of stress, she's not used to be being

cross-examined. Pavneet and I are used to this but

she's not, so she's a little under the weather and

little tearful. But, go ahead.

TI-IE WITNESS: Okay. I don't remember the

question.

MR. UPPAL: I'm going to go ahead and withdraw

the last question and ask a different one.

Q. BY MR. UPPAL: So, during this course of trying

to get you to comply with the directive to issue refunds

as set forth in the Corrective Action that you received,

did you at some point tell students that you would give

them a refund but that they had to give back the

materials to you?

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A. No.

Q. Okay. I want to show you --

A. I don't recall that happening.

Q. Okay. So, I want to show you an e-mail from

yourself to Elizabeth Pati dated January 16, 2013. And

the Committee will note that these are the same, you

know, sequence of e-mails that are Exhibit 39 to the

District's submission.

So, Dr. Martinez, I've actually drawn an arrow

to try to expedite this. Do you see that you had --

that you sent an e-mail from you to an Elizabeth Pati on

Wednesday, January 16, 2013, at 7:16 p.m. Do you see

that?

A. Yes.

Q. Okay. And do you see in the third paragraph

y0U wrote: "Since you wish to have your money back, you

should return the hard copy"?

A. Yes.

Q. So you were imposing the condition that before

you gave a refund that you were directed to give, you

were requiring the hard copy to be returned?

A. Yes.

DR. CAIRN: Which exhibit is that?

MR. UPPAL: Sir, that is -- if you go to MCCD

Exhibit 39, you will see a series of e-mails. And if

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you tab through to the e-mail from Dr. Martinez to a

student named Elizabeth Pati that Dr. Martinez sent it

on January 16, 2013.

MS. BLACH: I believe it's the third page from

the back of that exhibit.

MR. UPPAL: That might be easier to find it.

Q. BY MR. UPPAL: By the way, this student, Ms.

Pati, had made clear to you that she had wanted her

money back, didn't she?

A. Yes.

Q. In fact, she wrote to you by e-mail on

December 6th, 2012, telling you that she wanted her

refund and understood it would be in check form?

A. May I see that?

Q. Sure. So, Dr. Martinez, I want to direct your

attention to this e-mail. I've drawn an arrow just to

expedite matters. Again, the Committee will note that

this is mother e-mail at Exhibit 39.

Do you see that there's an e-mail from an

Elizabeth Pati to you where she address you as: "Dear

Dr. Martinez" that Ms. Pati sent on December 6th, 2012?

A. Yes.

Q. And she wrote, that is Ms. Pati: "At the

beginning of this semester fall of 2012, I

purchased a book from you for $11. I was givers

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a letter today stating that if any student

purchased a book that we were entitled" -- it's

misspelled, but it's entitled -- "to a refund."

Do you see that?

A. Yes.

Q. Wasn't it clear to you that at least this

student believed that she had purchased a book from you?

A. Well, that's what she had been told apparently

by the Administration, because I certainly never ever

said that to her at all. And you will note I told

her -- by this time, this was now in December, I -- by

December then, I guess, the Administration had written

her the other letter and I -- I just figured, okay. And

I had talked with Mr. Combs because I wanted to know

from Mr. Combs, well, what about just getting my

material back?

MR. MONTOYA: Can I raise a point with the

Committee? We're supposed to end at 4:40. I've only

had the opportunity to call one witness, my client. We

basically admitted that she has never paid this money

back and she's repeatedly told you why. So, he's

choosing to go on and on and on about something that

we've admitted and I should not be penalized for that.

I got two individuals who are waiting in the witness

room. One is one of your colleagues and the another one

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is Fred Bellamy. And he hasn't even got to the

copyright issue yet. There has to be a time limit

imposed upon him, otherwise these guys have come here

for nothing and that's really unfair.

He called three witnesses. I should be able to

call three witnesses, too.

CHAIRPERSON CRUDUP: How much more time do you

think you have?

MR. UPPAL: I think we're close to wrapping up

on -- on this issue.

MR. MONTOYA: It's not only this issue that I'm

concerned about. I consider the copyright issue to be a

more important issue that's going to take more time.

MR. UPPAL: Now, that's a speech and --

CHAIRPERSON CRUDUP: Just continue.

MR. UPPAL: Right.

Q. BY MR. UPPAL: So, let's turn then --

CHAIRPERSON CRUDUP: Five more minutes, okay?

MR. UPPAL: Okay. Five more minutes for this

subject or entirety?

CHAIRPERSON CRUDUP: To complete.

MR. UPPAL: To complete this subject or this

witness?

The reason I'm asking is because Mr. Montoya

wzs the one saying cross-examination does not count

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against the allotment, it counts against the person who

called the witness.

MR. MONTOYA: If -- if you're not wasting your

time.

DR. REYES: May I ask a question?

MR. MONTOYA: And I went through my witness

very rapidly because I was looking at the clock.

DR. REYES: Mr. Montoya, would you give us an

estimate of about how much time you need for each

witness?

MR. MONTOYA: For the two witnesses out there,

I can tell you probably 20 minutes apiece. And that

is -- that's cutting all the fat and some meat to boot.

DR. REYES: And -- okay. And that would

include cross-examination?

MR. MONTOYA: No, that's not -- I have no idea

what he's -- especially the way he is asking questions

here, he could take -- we could be here until 8:00.

DR. REYES: Could we estimate 20 minutes for

your questions of each of your witnesses, 20 each?

And cross-examination, how much would you

estimate that would be for each? For each witrless7

MR. UPPAL: I would estimate, ma'am, it would

be approximately similar. But here's the tough pert, I

don't know what they're going to say. For example, if

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they come to you and say something that's completely

false, it may take a while for me to extract that from

them.

MR. MONTOYA: And I didn't know what his

witnesses were going to say.

DR. REYES: For the sake of time, would we be

able to move things along and assume we'll take, say,

five more minutes here and then 20 minutes per witness

with 10 to 15 of cross-examination each?

MR. UPPAL: If you can give me ten minutes,

we'll do our best to comply with that. I don't think I

can sit with five -- or, comply with five, but we COUld

do ten.

DR. REYES: And you both understand that will

impact the amount of time you have for closing

statement?

MR. MONTOYA: I don't understand that, with all

due respect. And I object to that with all due respect.

Because every time with -- and I'm not criticizing the

Committee, but every time he's always one more minute,

two more minutes, five more minutes, it's always that.

And my client is the one whose suffers for iii and I

think that is chronically unfair. Especially since I

think you have been crystal clear that, hey, if you

waste time, it's your time, you're going to lose it.

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MR. UPPAL: Well, if the Committee were to

count up the minutes that Mr. Montoya has used on

objections --

MR. MONTOYA: And you, too.

MR. UPPAL: No, I don't think there's any rough

equivalency on that.

DR. REYES: May I suggest that we stop arguing

about it and move on with your next five minutes.

MR. UPPAL: Thank you. Yes, ma'am.

Q. BY MR. UPPAL: So, to expedite things a little

bit hopefully, do you remember receiving an e-mail from

Cassandra Kakar on which Dr. Solley was copied, this is

at Exhibit 39, January 11th, 2013, where you were

instructed because you imposed charges nn your students

without authority to do so, you have the responsibility

to reimburse the students from your own funds: "You are

hereby directed to do by personal check

beginning immediately and continuing until all

students who paid you are reimbursed."

Do you remember getting that instruction?

A. Yes.

Q. Okay. Now, earlier -- turning to a different

subject -- you testified that your students love you.

Isn't it true that you've received some rather harsh

assessments on Rate My Instructor?

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MR. MONTOYA: Objection. That is irrelevant.

MR. UPPAL: Well, I will withdraw it if Mr. --

MR. MONTOYA: And moreover -- I wasn't done --

if you look at Statement of Charges, it is not in there.

It is not in there. And this proceeding, I think your

counsel will agree, is limited to what she has notice of

in the Statement of Charges. If it's not in there, we

need to move on and conclude.

MR. UPPAL: Here's my response: You can't

elicit testimony from your witness informing the

Committee that the students love you and then take

offense or claim that there's some sort of exclusion

when that very point is disputed. But, I'm going to

move on on that. But I direct the Committee to

Exhibit 43 and you will see the absolutely abysmal

reviews that Dr. Martinez has received from students;

but, I won't question about her about it.

DR. CAIRE: I have a question. Can you

substantiate that all the comments here are really from

students?

MR. UPPAL: No, sir. Good point. And I will

concede the point. It's Rate My Professor and it is

what it is. So, your point is well-taken.

MR. MONTOYA: And it's nothing. It's just

slander and a smear job.

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MR. UPPAL: Was that an objection? Was that a

debate or argument?

MR. MONTOYA: It is an objection. It is an

objection because that is wrong to be able to

anonymously slander someone without any attribution.

That is completely wrong especially where it's not in the

Statement of Charges. How do we know --

MR. UPPAL: Okay.

MR. MONTOYA: -- that wasn't done by her

ex-boyfriend?

MR. UPPAL: Sir, since you raised the question

and given the speech that Counsel has made, I'll direct

you to Exhibit 36, where there's rio dispute that a

Joseph Hobson, a student, on December 11, 2012,

explicitly sends an e-mail to the Math Department

Chairman Mr. -- or, Dr. Sueyoshi, and he's so

disappointed with her that he says, quote: "I would

like the opportunity to retake this class with a

different instructor if possible."

Anyway, I'm done. My point is you can't on one

hand contend the students love and on the other hand

shirk away from the fact that many of them don't.

THE WITNESS: I'd like to make a statement.

MR. UPPAL: Objection.

MR. MONTOYA: He brought it up.

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MR. UPPAL: She can make a statement on her own

time.

MR. MONTOYA: She has the right to defend

herself.

MR. UPPAL: There's no question pending. If

she's going to make a statement, it should be on

redirect.

MR. MONTOYA: Well, she's the one who -- okay.

MR. UPPAL: All right. So thank you. I'm

going to now pass the witness to my colleague.

MR. MONTOYA: I object to that.

MR. UPPAL: I announced this at the beginning.

She's going to wrap this and use --

MR. MONTOYA: Well, wait a --

DR. REYES: One and a half minutes.

MR. UPPAL: -- the remaining time I have

allotted.

minutes.

DR. REYES: One and a half minutes.

MR. MONTOYA: Okay. For one and a half

rURTHER CROSS-EXAMINATION

BY MS. BLACH:

Q. I just have a couple of questions for you, Dr.

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Martinez. First of all, you testified earlier that you

tried to speak with Maggie McConnell and Lee Combs

regarding copyright issues but they refused to speak

with you?

A. Yes.

Q. Did I hear you correctly?

A. Yes.

Q. Well, Dr. Martinez, at Exhibit -- around 23,

isn't it true that you met with Maggie McConnell

regarding copyright issues?

A. I don't recall that.

Q. Did you have a discussion with her regarding

copyright issues?

A. What type of discussion are you talking?

Electronic or --

Q. Well, I'll have you take a look at Exhibit 25.

That states: "As we discussed" -- and this is from

Maggie McConnell to you dated January 28, 2010, to you,

stated: "As we discussed today, it is inappropriate to

copy anything from copyrighted source and

reproduce it without the written permission of

the copyright holder."

So, Maggie McConnell, in-house counsel, did, in

fact, speak with you regarding copyright issues?

A. Yes. Yes, she did. That was by telephone.

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Q. And, similarly, Lee Combs and Maggie McConnell

discussed --

MR. MONTOYA: It is time.

Q. BY MS. BLACH: -- copyright issue at --

MR. MONTOYA: It's over time. I move that this

stop and that I be allowed to proceed with my case.

They're using all of my time. That hurts me, that hurts

my client. How is that far?

MR. UPPAL: This is the same individual, Mr.

Montoya, who insisted that cross-examination time counts

against the witness -- counts against the lawyer who

called the witness; now he is complaining.

MR. MONTOYA: Well, yeah, the --

DR. REYES: We are getting down to the last

minutes.

MR. MONTOYA: She is -- the Committee said you

had a minute and a half and you used it. It's long

over.

MS. BLACH: I'll conclude with one last

question.

Q. BY MS. BLACH: Dr. Martinez, isn't it true that

earlier today you testified that the students were not

required to buy this textbook in your Math 182 spring

2010 course?

A. No.

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Q. Didn't you tell that to the Hearing Committee

earlier today?

A. That they were not -- no, I didn't say that.

Q. Wasn't it your testimony that you said students

were required to buy it in fall of 2009, but you did not

require them to buy this book in spring of 2010?

A. Yes. They were not required to buy that

particular textbook, they had to buy a different

textbook.

MR. MONTOYA: Okay. She's done.

MS. BLACH: Thank you.

CHAIRPERSON CRUDUP: On that last question,

everything that you've been presenting, I'm familiar

with. I've read it, they've read it. So, we'll see

what they have to say.

MR. MONTOYA: I'm going to just do one. When

-- when --

MR. UPPAL: Well, I -- is this time going to

come out of his testimony time with his witnesses?

MR. MONTOYA: Yeah. I have no problem with

that.

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REDIRECT EXAMINATION

BY MR. MONTOYA:

Q. Now, remember when you were trying to say

something when Pavneet read something from some student?

A. Yeah. Right.

Q. Go ahead and say it.

A. The complaint that came out on December 11th

was the result of I was hospitalized that fall. I had a

pulmonary embolism in both lungs and I was hospitalized.

I was out. I was not allowed to go back to work for, I

think, a two-week period. And my Chair then would call

me and say: What are you going to do about this,

students are complaining? And I told them: I'm in the

hospital, or I'm in -- or, I'm recuperating.

And so the students were upset because the

Chair did not take care of my classroom, I guess, to a

-- in a way that they felt would be appropriate. It

wasn't me at all. I wasn't even there. And that's --

that's where the complaint generated from, my not being

in class znd conducting the class. They were upset that

it wasn't running well or something. But that wasn't my

job, I was in the hospital.

MR. MONTOYA: May I call my next witness?

CHAIRPERSON CRUDUP: Yes.

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MR. MONTOYA: I'm going to have to leave 'the

room and go fetch him.

(Whereupon the witness enters the hearing

room.)

MR. MONTOYA: May I proceed?

Please swear the witness.

FREDRIC D. BELLAMY,

called as a witness herein, having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. MONTOYA:

Q. Mr. Bellamy, good afternoon.

A. Good afternoon.

Q. And what is your profession?

A. I am an attorney.

Q. How long have you been admitted to the practice

of law, sir?

A. Since 1986.

Q. Arid where did yOLl go to college?

A. I went to college at Harvard University.

Q. When did you graduate?

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A. 1983.

Q. And did you graduate with any honors?

A. Yes, I did. I graduated cum laude in my field

of concentration.

Q. And what was your field of concentration?

A. Psychology and social relations.

Q. And upon graduating from Harvard, what did you

do next educationally?

A. I then attended Harvard Law School.

~. Is that a difficult school to gain acceptance

to?

A. Yes.

~. And did you attend -- how long did you attend

Harvard University?

A. Seven years all together. Four years for my

undergrad degree and three years for law school.

Q. When you were at Harvard Law School, did you

tike any courses regarding the subject of intellectual

property?

A. You know, I actually don't recall.

Q. Okay. And after you graduated from Harvard Law

School, what did you do next?

A. I accepted a job as an attorney, as an

associate at ~ law firm called Brown & Bain in Phoenix,

Arizona.

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274

Q. Arid what year was that?

A. That was 1986.

Q. And did Brown & Bain have a firm focus in

reference to its practice?

A. Yes. At that time, it was considered among the

pre-eminent litigation firms for intellectual property

cases.

Q. And Jack -- and Brown & Bain was founded by an

individual that we both met, had the pleasure of meeting

named Jack Brown; is that correct?

A. That is correct.

Q. Isn't it true that Jack Brown, if you look him

up, was one of the pre-eminent intellectual lawyers in

the United States?

A. Yes. In fact, I remember the National Law

Journal referred to him as the Dean of the

I-Iigh-Technology IP Bar.

Q. How long did you work at Brown & Bain?

A. Five years.

Q. And what area of law did you concentrate in at

Brown & Bairl?

A. I principally did intellectual property and

litigation focusing on copyright litigation.

Q. F-Iow many years have you been in practice at

this time?

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A. Oh, let's see. It's been over 25 years.

Q. Do you still concentrate on intellectual

property and copyright matters?

A. Yes. I mean, my practice has, you know,

expanded in breadth to other forms of complex business

litigation, I would call it. But intellectual property

and technology-related matters, both advising clients

and litigating them, remains a focus of my practice.

Q. Isn't it true that you are the Former Chairman

of the State Bar of Arizona Intellectual Property

Section?

A. Yes. That's true.

Q. Isn't it true that you are the Former Chairman

of the State Board of Arizona E-Commerce, Internet, and

Technology Law Section?

A. Yes, that's true.

Q. Isn't it true that you are the Founding

Chairman of the Technology Committee of the Executive

Council of the State Bar of Arizona, Young Lawyers

Division?

A. Yes.

Q. Isn't it true that you are listed in America's

Best Lzwyers?

A. Yes.

Q. Isn't it true that you regularly counsel

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clients regarding intellectual property matters?

A. Yes.

Q. Do you remember meeting a lady who is sitting

to my right whose name is Cleopatria Martinez? She came

to you seeking your counsel regarding a copyright

matter?

A. Yes, I met her.

Q. Did you know her?

A. Not before she came to me for some intellectual

property advice.

Q. Do you usually counsel individuals, academics,

regarding intellectual property matters?

A. No.

Q. Why did you agree to see her?

A. You know, I sympathized with her -- with her

issues and it struck me that although I could understand

the concern from a copyright infringement point of view,

that there was a bit of what I considered in my judgment

an overreaction and6delete to a very fixable problem.

You know, the problem in particular with the

Fair Use Doctrine, because it's -- to call it an

ambiguous, difficult, and evolving area of the law would

be an understatement. It's the kind of area where in

some situations -- I mean, clearly, there are always

going to be edge cases, extreme cases where yoti know any

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number of copyright lawyers would agree, but there are

many, many situations where in the Fair Use Doctrine

there's going to be disagreement. It's a real source of

ambiguity and confusion.

Q. Let me ask you this: Tell the Committee how

much you charged Professor Martinez for your advice when

she first met you?

A. I decided to take the case pro bono.

Q. Do you usually do pro bono work for college

professors?

A. No.

Q. Why did you decide to take it pro Bono, her

particular case?

A. As I said, I thought it was -- you know, I

sympathized with her situation. I thought there was a

legitimate, you know, case to be made that what she'd

done fell within the boundaries of fair use, recognizing

that it's not really possible or legitimate to have a

definitive opinion. But I thought on balance that this

really went to the core of, you know, of what flir use

is really fundamentally about, which is education. Not

for profit, not for commercial uses, but for in large

part protecting the ability of teachers and professors

to teach in an appropriate manner and to do some degree

of copying within tYiose parameters.

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Q. And it's true that the Fair Use Doctrine is

codified in the Copyright Act, isn't it?

A. Yes, it is.

Q. And is that Section 107?

A. Yes.

Q. Does the first sentence of Section 107 read:

"The fair use of a 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"?

A. Yes. That is what it says.

Q. Now, tell the Committee, under the Fair Use

Doctrine do you have to get the publisher's approval or

authorization to use it in order to fall within the Fair

Use Doctrine?

A. No, no. The whole point of the doctrine is

that you don't need permission.

DR. REYES: Question, please?

MR. MONTOYA: Please.

DR. RYES: Sources must be cited, correct?

THE WITNESS: From an academic point of view,

that's I would consider tYiat to be a matter of

politeness and to avoid issues related to plagiarism,

but it isn't in the copyright doctrine.

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MR. MONTOYA: And that's an important point,

because she's not been accused of plagiarism, she's been

accused of copyright violation.

Q. BY MR. MONTOYA: So, let me ask you this

because there's been some testimony to the contrary,

isn't it true that the very purpose of fair use is so

you don't have to get the person's permission?

A. Yes.

Q. Isn't it true that in fair use litigation,

authors and publishers sue because they've withheld,

intentionally, permission and sometimes the Court says

too bad, you lose anyway, it was a fair use?

A. Yes. That's correct. In fact, there's a

recent opinion, it's really a landmark opinion in a case

brought by -- a class action brought by writers and

publishers against Google, which Google literally they

copied, they literally copied over 20 million books, and

many publishers and writers had not given permission,

and the Court last week ruled that that was fair use.

Q. Have you been on Google Books?

A. Yes.

Q. Have you noticed that some books are copied

almost in their entirety?

A. Yes. Yes. In fact, I use Google Books for my

own research in the practice of lzw.

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Q. Now, you reviewed some materials that Professor

Martinez provided you before you rendered your written

opinion of December 16, 2010, right?

A. Yes, that's correct.

Q. Now, Professor Martinez will testify that the

materials that you reviewed are in front of you as

Exhibits 1 and 2. They're her lecture notes. Do those

look familiar to you?

A. Yes, they do.

Q. And, now, let me ask you a threshold question.

Mathematical formulas, mathematical calculations,

geometric figures, geometric calculations, are those

even subject to copyright?

A. The actual formulas which would be considered

the equivalent of the laws of nature are not

copyrightable.

Q. So, 156 squared times 942 minus 147, is that

copyrightable?

A. No.

Q. Because it's an intellectual? It's a pure

ideal It's a law of nature?

A. Exactly.

Q. So, does copyright hive a different application

in reference to the field of mathematics than it would

have in reference to the field of religious studies or

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poetry or history?

A. Yes, absolutely. The distinction is what

copyright does not do is protect ideas which would

include, you know, simple laws of nature. Pythagorean

Theorem, you can't copyright the Pythagorean Theorem,

for example.

Now, there's a spectrum of what's protectable

under copyright law, as there is in all forms of

intellectual property law, where the expression of ideas

receives the maximum protection. So if you write a

play, say, that's going to be entitled to maximum

protection. But a mathematical equation would be at the

lowest end of the spectrum where it would not be

protectable in and of itself.

Q. Now, why did you conclude that the -- well, let

me ask you this: If you -- under the Fair Use Doctrine,

if I copy a few pages out of a book, out of a math book,

but I also have bought the math book, does that take it

away from fair use? Do I have to buy the source in

order to fairly use the source or copy the source?

A. No. In the abstract. But, again, we're

talking about a doctrine that is not susceptible to

definitive analysis. There's no magic formula to say

this is fair use and this isn't. You have to -- you

have to construe it in the context of a case-by-case

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basis and with knowledge of what the purpose of what the

Copyright Act is and what the purpose of the Fair Use

Doctrine is.

Q. Isn't it true that the purpose of the Copyright

Act is essentially the advancement of knowledge?

A. Yes. It's -- you know, it states that right in

the U.S. Constitution and the Constitution itself

reflects, as the Copyright Act does, that there's an

attempt to balance the need for freedom of

communication, expression, and idea to discriminate that

because that's the public benefit; but there's also the

needs to balance that for the needs of the creators to

basically be able to sell and make a living off of

creating works.

Q. Isn't it true that under the Fair Use Doctrine

you don't even have to buy the book to fairly use the

book within certain limitations?

A. Yes, that's true.

Q. Isn't it true that's the purpose of the Fair

Use Doctrine?

A. Yes, absolutely.

Q. Now --

CHAIRPERSON CRUDUP: About five more minutes.

MR. MONTOYA: Okay.

Q. BY MR. MONTOYA: Why did you -- okay. After

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you reviewed the materials that Professor Martinez

submitted to you, isn't it true that you concluded that

they fell within the Fair Use Doctrine?

A. Yes. In my opinion, they do.

Q. And isn't it true that you rendered that

opinion before you and I had even spoken about

Cleopatria Martinez?

A. Yes, that's correct.

Q. Isn't it true that you rendered that conclusion

before anyone even paid you a cent?

A. Absolutely.

DR. RYES: Could I ask a clarification

question?

MR. MONTOYA: Of course.

DR. REYES: Were the materials reviewed by

yourself and Mr. Garrison -- I'm not sure of if you're

aware of what he reviewed, were they the same materials?

THE WITNESS: You know, I can't be sure at this

point. I did read Mr. Garrison's opinion and I believe

he had more materials to look at than I did, but I can't

state that definitively based on my recollection.

MR. MONTOYA: Mr. Bellamy didn't have 3 and 4.

MR. UPPAL: Objection. Objection. This is not

proper.

MR. MONTOYA: Well --

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DR. REYES: That was a clarification.

MR. UPPAL: But what he's saying is not proper.

He's not allowed to testify and I object to him

testifying.

MR. MONTOYA: Well --

MR. UPPAL: What he's going to do? Ask himself

a question and answer it?

MR. MONTOYA: Okay. Well, then I'll get that

testimony in when I recall her.

MR. UPPAL: So, for an individual who's

complained there's no time, I don't know how he's going

to recall.

MR. MONTOYA: Well --

MR. UPPAL: -- and if he's going to recall

witnesses, I certainly am as well.

CHAIRPERSON CRUDUP: Move on.

Q. BY MR. MONTOYA: Now, why did you conclude that

the materials that are in front of you given to you by

Professor Martinez fell within the Fair Use Doctrine of

copyrights?

A. Well, there are -- there's no definitive

formula, as I said, to determine where the Doctrine

applies, but there are four predominant factors that are

codified within the statute and that are referred to in

the -- in the case law construing the Fair Use Doctrine.

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And in my analysis, the balance of those factors weighed

in favor of the conclusion that it was fair use.

First, there's the purpose and character of the

materials that are being copied. And here we -- we

have -- you know, in my review of what appeared to be

mainly trigonometry and other pre-calculation formulas,

these are -- these are at the lowest end of the

spectrum, they are in and of itself on an item-by-item

basis not copyrightable.

That, doesn't mean the textbook sources, if

someone writes a math book, that the book itself is not

copyrighted, the book is because it's a compilation of

-- and contains original expression and descriptions of

how to use the formulas and so forth.

But when I looked at the, you know, class notes

that Dr. Martinez provided me, it appeared to be

principally, you know, snippets of math problems, math

formulas, math equations. So, that itself, you know,

militates in favor of application of the Fair Use

Doctrine because it's a lower -- it's a lower level of

protection in the first instance.

In terms of the purpose for which she was using

it, it goes to the core of the Fair Use Doctrine which

is to promote its use by teachers in an academic setting

for the purpose of learning.

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We also look to the amount of the materials.

And, you know, I believe by, you know, my impression and

understanding was that we are looking at a totality of

say less than 1 percent, maybe even less than one-half

of 1 percent out of the universe from which some of

these equations were drawn. So, it's a relatively

insignificant amount in the scheme of things compared to

the entirety of the book. So, that's another factor

that in my opinion weighed in favor of applying the Fair

Use Doctrine as an affirmative defense to the claim of

infringement.

Also look to the -- you know, the probable

impact on the commercial market for the copyright owner.

And based on my understanding of how these materials

were used, that it would not have a significant impact.

I'm not saying it couldn't have any impact, but it did

not appear to be something that would really ultimately

hurt the copyright owners in the marketplace.

So taking those factors together, it appeared

to be a --

CHAIRPERSON CRUDUP: Out of time.

MR. UPPAL: All right.

MR. MONTOYA: I'd like to --

MR. UPPAL: So I'd like to now begin my

cross-examination.

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MR. MONTOYA: Mr. Chairman, I would like to do

something with my time. I would like to proceed with

this witness and not take any more time but, in fact,

just relieve my last witness of any testimonial duties.

So, it won't prolong anything because I really believe

in my opinion that this witness's testimony is more

important and I'd rather have him finish his testimony

than to have the other witness testify. So, it won't --

it won't cause any more time.

MR. UPPAL: I object to that. He's been -- Mr.

Montoya has complained ad nauseam today about too much

time being taken and cutting into his cross-examination

time, and he was warned not once but twice by the

Committee to wrap it up, and so now he should bear the

consequences. I'm ready to cross-examine the witnesses.

DR. REYES: May I, Mr. Chairman? Are you

asking for an additional 20 or your final 20 minutes

will be spent with this witness?

MR. MONTOYA: Yeah. My final 20, yeah, and

waive my other witness. And I think that some of that

time will actually go to Mr. Uppal's benefit.

DR. REYES: Okay.

MR. MONTOYA: Because I don't have 20 minutes

more with him.

CHAIRPERSON CRUDUP: Okay. We'll go that way.

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MR. UPPAL: Can we -- in light of that ruling,

though, can we get a definitive stop time for Mr.

Montoya? Because previously it was five minutes. I

just want to know what it's extended to.

DR. REYES: 20 minutes.

MR. MONTOYA: Okay.

MR. UPPAL: Well, if he carries 20 more

minutes, then I definitely will not have an equal time

to cross-examine Mr. Bellamy. I mean, we can look at

the clock assuming that's correct.

DR. REYES: How much more time do you think you

need?

MR. MONTOYA: Maybe 12 minutes.

CHAIRPERSON CRUDUP: 12 more minutes and there

cross.

Q. BY MR. MONTOYA: Before you were interrupted,

go ahead.

A. Okay. You know, just to sum up, so we look at

these factors, the purpose and character of the copying

which is done for an educational purpose for teaching;

we look at the impact on -- the probable impact on the

market and that, again, is an analysis that you can't

really do in a vacuum, but my understanding is that the

impact would not be substantial; we look at the amount

which is -- which is very key, I mean, if and he1.r_i.ng

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289

the amount on a percentage basis is small, although you

can't define it in a mathematical -- there's no specific

threshold mathematically when is it too much.

Again, you have to construe each of the factors

for purposes of the Fair Use Doctrine, which is promote

the use of copying essentially up to a certain point for

the purpose of teaching because we don't want to have

too much constraint on essentially academic freedom for

teachers to be able to pull source materials for

educational purposes.

Q. Isn't it true, Mr. Bellamy, that the language

of the statute in reference to any legal question is of

paramount importance?

A. Yes. Absolutely.

Q. Isn't it true that what Professor Martinez did

making multiple copies for classroom use of somebody

else's work is expressly protected in the very first

sentence of Section 107, the fountainhead of fair use

authority?

A. Yes. I completely agree with that.

Q. Did 'that impact -- is that one of the rersons

why you concluded?

A. Yes. Yes, it was precisely because she is a

professor, a mathematic professor, who is using

materials in the manner that the Fair Use Doctrine is

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intended to protect.

Q. Now, if you were a judge, would you conclude

that Professor Martinez's use of these materials fell

within the Fair Use Doctrine?

MR. UPPAL: Objection. This is not a proper

question because if this witness were a judge, then the

rules of hearsay would apply, the rules of disclosure

would apply, and a whole host of rules would apply that

there's no way that Mr. Bellamy can fairly answer this

question. There's no foundation for it if he were the

judge.

CHAIRPERSON CRUDUP: Just continue.

Q. BY MR. MONTOYA: You can answer.

A. Within the confines of what I reviewed and my

understanding of the situation, yes, if I were to be

authorized to give a judicial opinion, I would conclude

that it's fair use. It doesn't mean that there aren't

other factors that I'm not aware of that could change

that calculation.

Q. Let me ask you this: You mentioned at the

threshold of the Authors Guild versus Google opinion, do

you agree with it?

A. Yes, I do. I think it reflects the important

policy behind the Fair Use Doctrine.

Q. Isn't it true that if the Authors Guild versus

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Google case is correct, then it's an easy case in

reference to what Professor Martinez did to conclude

that, of course, it's protected by the rair Use

Doctrine?

MR. UPPAL: Objection. Lack of foundation.

MR. MONTOYA: I'm asking as an expert witness.

MR. UPPAL: He doesn't know everything. He's

already said -- he's already said he's not aware of

anything.

MR. MONTOYA: Well, he as6delete has to

answer --

291

MR. UPPAL: Wait a minute. I want to get my

objection on the record. He's already testified about

five times now that he's not aware of everything that

Dr. Martinez did. So any opinion that he gives on this

subject is not based on anywhere near complete

information. This is according to his testimony. So,

this is an inappropriate question.

MR. MONTOYA: Let me rephrase it and I'll limit

it.

Q. BY MR. MONTOYA: Isn't it true that if the

Google decision is correct, then the two booklets that

you reviewed for Professor Martinez clearly fall within

the Fair Use Doctrine?

MR. UPPAL: Same objection.

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THE WITNESS: Yes. In my opinion it would be

covered by the policy analysis in the Google opinion.

And based on the relatively insignificant amount of

copying and the educational purpose coupled with the

fact that as the Court acknowledges in the Google case,

Google makes billions of dollars in it's business model.

But this is a classroom, this is a non-profit situation.

Q. BY MR. MONTOYA: And isn't it true on Google

Books, like sometimes 90 percent of the book is

reproduced?

A. Yes.

Q. Did Professor Martinez produce 90 percent of

the textbook?

A. No.

Q. You said it was less than .5 percent?

A. Yes.

Q. Is it easy for a layperson proceeding in good

faith to run afoul of the Fair Use Doctrine?

A. Yes. Very easy, unfortunately.

MR. MONTOYA: I don't have any further

questions. Thank you, sir.

THE WITNESS: You're welcome.

MR. MONTOYA: Less than 12-6delete minutes. So

the amount of time I saved, I hope I get credit for.

MR. UPPAL: I'm going to go ahead and proceed

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with the Committee's permission.

CHAIRPERSON CRUDUP: Proceed.

CROSS-EXAMINATION

BY MR. UPPAL:

Q. Mr. Bellamy, good evening. I know it's late in

the day. I know you're here on behalf of Ms. Martinez,

but thank you for -- for coming here today.

A. You're welcome.

Q. Your credentials are certainly impressive, sir,

and I'm not taking issue with them, but I do have a --

A. Thank you.

Q. -- question since Mr. Montoya made such an

issue with it. Are you taking any issue with Mr.

Garrison's credential? Are you claiming you're a

superior lawyer to him in anyway?

A. No, no. We've participated togetYier in Bar

activities and so forth. I'm certainly awzre of him and

respect him as a fellow colleague.

Q. Certainly. That's exactly what I would expect.

I wouldn't expect anything different. You respect him

and he respects you. But you're ~ Dwyer for --- you're

an expert witness and basically ~n Zdvocate for Dr.

Martinez, right?

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A. No, I -- well

Q. Well, you're an expert witness?

A. No -- yes, I am, but my opinions are my

opinions.

Q. Okay. Fair enough.

But you have your own clients, right?

A. Yes.

Q. And your clients take their advice from their

lawyers not from the expert witness of whoever they may

be having a problem with. You agree with that, right?

A. Sure.

Q. So, in the case, the District has to rely on

the opinion and the advice of Mr. Garrison, not the

counter expert, right?

A. Well, I can't speak to the nature of that

relationship, but...

Q. No, doesn't that just make common sense to you

in light of your own practice? Clients rely on tYleir

own lawyers for own advice and not the opposition's

lawyers?

Come on, sir, you would concede that, wouldn't

you?

A. Yes. I can see.

Q. That's what I was rezlly looking for. It

wasn't a trap or trick of any kind.

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295

A. Sure.

Q. You already told us -- well, I don't want to

put words in your mouth. You could concede, because I

think you've conceded now several times that Mr.

Garrison reviewed different and a much larger quantity

of materials than you did, right?

A. That is apparently the czse, yes.

Q. It's more than apparently the case. You agree

with that, don't you?

A. As far as I can recall, yes.

Q. Okay. And so you certainly are in absolutely

no position -- not because of your qualifications,

because I'm not challenging those, but because you

didn't review the same materials or the same quantity of

materials that Mr. Garrison reviewed, you're in no

position to render an opinion orl materials that you

never reviewed, right?

A. I did review the analysis that Mr. Garrison put

forward and --

Q. That wasn't my question.

MR. MONTOYA: He's interrupted the witness.

Q. BY MR. UPPAL: Here's my question: If you

didn't review a particular set of lecture notes, then

you have no basis to render an expert opinion on that,

would you?

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A. That's correct.

Q. Okay. And you, in fact, did not review the

lecture notes for a class that Dr. Martinez taught which

is MAT 082?

A. I believe that's the case, yes.

Q. Okay. And are -- that's probably enough on

that.

Let's turn to your two-page letter of

December 16, 2010. The Committee saw it because it's in

the materials and we had it on screen and PowerPoint,

too. It said the materials -- this is what you wrote

and I can show it to you, but I think you're going to

remember. Let me know if you want to see it.

A. Okay.

Q. You said: "The materials you sent me include

your spring 2010 lecture notes for MAT 182

trigonometry, as well as pages from the

required textbook that contain similar math

problems and that discuss the subjects on which

you lectured."

Where you use that phrase -- do you remember

saying that, by the way?

A. Yes.

Q. Now, you use the phrase these are your words

again, I'm not trying to trick you or anything — "the

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required textbooks," what is your understanding or what

did you mean when you used that phrase?

A. If I recall correctly, and it may not have been

the best choice of words, but I understood that that was

a textbook that was being used in that class.

Q. So, the --

A. I understand from reading Mr. Garrison's

opinion and some of the other materials, that my

understanding may not have been correct.

Q. Right. And, in fact, you weren't here but Dr.

Martinez testified that from MAT 182 she required

students to buy a particular textbook, the one that's at

issue from Sullivan & Sullivan in 2009, but not in 2010.

A. Okay.

Q. So, in fact, your report contains a

misstatement then, doesn't it?

A. Well, I couldn't call it a report. It wasn't

intended to be an expert report.

Q. I absolutely agree. You -- you are so right.

It's not an expert report. Your two-page letter

contains a misstatement. Doesn't it?

A. It contains a misunderstanding.

MR. UPPAL: Okay. Mr. Montoya, could I?

MR. MONTOYA: Yeah.

MR. UPPAL: Thank you.

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MR. MONTOYA: Sure.

MR. UPPAL: Appreciate it.

MR. MONTOYA: No problem.

Q. BY MR. UPPAL: I don't know if you can read

that, I wanted to go ahead and show you --

MR. UPPAL: And, actually, Steve, can I impose

on you, I think we've got it memorized, to maybe

erase...

MR. MONTOYA: You want me to move?

MR. UPPAL: No. If you wouldn't mind erasing.

MR. MONTOYA: If they -- I don't want to erase

their work without their permission.

MR. tJPPAL: Well, I think -- is that all right?

MR. MONTOYA: Is that all right?

MR. UPPAL: Because I think that's been

superceded at this point.

CHAIRPERSON CRUDUP: It's okay.

MR. MONTOYA: Okay.

MR. UPPAL: Thank you, Steve. I appreciate it.

MR. MONTOYA: Sure.

Q. BY MR. UPPAL: So, this is the two pages that

you submitted, right?

A. Yes.

Q. And even you say, I think I got this

mislabeled, I got it libeled as a report, but I think

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you just said yourself it really is not a report, right?

A. No, I was asked to do -- I mean, I asked her,

you know, Dr. Martinet's attorneys at the time who had

contacted me, to coordinate what they were looking for,

did they want a full-blown analysis and report or -- and

they said just an informal letter with your opinion,

which is what I provided.

Q. So, what you provided is -- is not really what

you would provide for a client that wants an expert

opinion?

A. It wouldn't be -- if a client wanted a formal

expert opinion, no.

Q. Okay. And, therefore, what you wrote in these

two pages, wouldn't you agree with me it's not nearly as

exhaustive or reliable as when you prepare a formal

report in the nature that Mr. Garrison produced?

A. Well, it's certainly not as detailed.

Q. Okay. Did you try to understand -- I'm sorry.

What was that word again that you used? I asked you if

your report contained a misstatement whether a textbook

was required and you preferred to a different term. I

want to use your term. You said it wasn't a

misstatement, it was a misunderstanding?

A. Yes.

Q. Okay. Is tYiere any other misunderstandings in

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your report -- excuse me, your letter?

A. Not that I'm aware of.

Q. Okay. Did you try and compare the lecture

notes that Dr. Martinez gave you with copyrighted

textbooks to try to determine for yourself how much of

the copyrighted materials she took was incorporated into

her lecture notes?

A. If you're asking me if I dived down to that

level of analysis, no, I didn't.

Q. In fact, you didn't even make an attempt, did

you?

A. Meaning what? I did review the textbook.

Q. Well, let's back up for a second. You agree

with me that the textbooks that we have in front of us

are copyrighted, right? There's really no doubt about

that.

A. Yes. Of course.

Q. Okay. And so you also understand from your own

clients, Dr. Martinez that when she came to you, that

the District had expressed concerns -- whether you agree

with them or not — is it your understanding that the

District had expressed concerns that the materials she

was using in her lecture notes might constitute

copyright infringement?

A. Yes, that's my understanding.

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Q. Okay. So, then, certainly, you must have taken

the lecture notes which are appended to Exhibit 6 of Mr.

Garrison's report -- the ones that you did review,

because I know that you didn't review all of them. The

ones that you did review, certainly, you must have taken

those lecture notes which, you know, are 50 to 60 pages,

and tried to undertake analysis for example with the

Sullivan & Sullivan book, and see how much -- what

percentage, how much, what substantiality of the lecture

notes are taken from copyrighted books, but you didn't,

did you?

A. I don't understand the question.

Q. Well, let's look at this chart in Mr.

Garrison's report which you've read.

A. Uh-huh.

Q. Since you've read the report you know what he

did, which is he created these charts. And here's just

one example of it -- by the way, this is from MAT 082,

this is the one you never even tried to analyze, right?

A. I'll take your word for it.

Q. Well, no, I want your word for it. I think

you've already said this. I just want to be clear ---

A. Okay. Okay.

Q. You agree?

A. I'm just not -- I haven't memorized the Bates

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numbers for different documents, that's my point.

Q. But you never saw the lecture notes for MAT

082, basic arithmetic 082, because I will tell you Dr.

Martinez already testified she didn't give them to you.

A. Okay.

Q. All right. So, since you read Mr. Garrison's

report you see that he created three columns.

A. Uh-huh.

Q. And he created these charts which basically

have a comparison, which he testified was not

exhaustive, in which he cited in the first column on the

left two pages from Dr. Martinez's lecture notes, and in

the middle he showed where it had been copied, and then

on the third column to the right he showed the location

from and the copyrighted book from which the materials

were lifted. You're familiar with that, right?

A. Yes.

Q. Did you try to do that?

A. No.

Q. Right. So, you don't really know how much --

well, actually, let me withdraw that question.

Which textbooks did you review?

A. Sitting here today I can't recall.

Q. Because you reviewed none of them. Isn't that

right?

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Sir, you're here claiming you're an expert and

I certainly agree that you have the qualifications for

an expert, but given that you're testifying as an

expert, certainly you must have taken a review of these

textbooks but you don't remember.

A. I don't have the documents in front of me. I

do recall looking at the original source material that

was identified to me --

Q. Which one?

A. -- and comparing it.

I can't tell you sitting here now.

Q. Well, sir, how am I supposed to cross-examine

you? Mr. Montoya is claiming time is that, you know,

time is of the essence and is very limited to time and

we have to be over with today, and you're claiming that

in your opinion it was fair use, but you're unable to

tell the Committee which books you looked at?

A. Unfortunately, this was a number of years ago

and it was at -- I was at a different firm and I do not

have my file with me.

Q. Well, Mr. 

CHAIRPERSON CRUDUP: Five more minutes.

Q. BY MR. UPPAL: Well, Mr. Garrison does remember

and Mr. Garrison actually created these very detailed

charts For the Committee which he said was not

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exhaustive, which he finds one instance after another of

verbatim or almost verbatim copying. You don't take

issue with his conclusion that the copies were verbatim,

right?

A. No.

Q. In fact, you're not in a position to do that

because you didn't try and undertake that analysis?

A. In my opinion, that level of analysis based on

my understanding of the amount of material and the

nature and purpose of fair use is unnecessary. It's

over kill.

Q. What, if your nature -- what if your

understanding of the nature of the amount that Dr.

Martinez misappropriated is incorrect? You have nothing

to stand on then, right?

A. Look, there are always going to be edge cases.

If someone -- you know, you know, fair use doesn't mean

an academic can take wholesale a textbook.

Q. I'll withdraw the question in light of my

limited time.

MR. MONTOYA: You can't interrupt the witness.

MR. UPPAL: It was non-responsive.

MR. MONTOYA: Well, that's for the Committee to

judge.

CHAIRPERSON CRUDUP: Allow. You can finish.

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THE WITNESS: I also, you know -- assuming

everything that Mr. Garrison says is correct, I do not

reach the same opinion. But his ultimate opinion is not

an infringement opinion, it simply states that there is

a heightened risk because of copying. Well, that's

inherent to any fair-use situation because there's

always copying involved.

Q. BY MR. UPPAL: How can you possibly render an

opinion on fair use let alone what Mr. Garrison said

when you don't even remember the source materials that

you reviewed?

A. I'm sitting here relying on my recollection of

the analysis I did at the time.

Q. And isn't it true that you didn't even try to

review the entire copyrighted textbooks that are at

issue, at most what you reviewed was selective pages

that were given by Dr. Martinez; isn't that right?

A. Yes, that's correct.

Q. Okay. So, you've got an individual who comes

to you, who wants an opinion basically stating that she

didn't commit copyright infringement, and she gives you

self-selected sections or pages of a textbook to compare

against her lecture notes. You don't find that

problematic?

A. No, not particularly.

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Q. You would agree with me, do you not -- I mean,

let me back up for a second.

You understand that Dr. Martinez is here today

in a due process hearing that is to address whether or

not her employment will continue with the District,

right?

A. I have some understanding of that, yes.

Q. Okay. And you can see that she has an interest

in continuing her employment, right?

A. I would assume so, yes.

Q. And you don't think there's any issue with the

fact that you only reviewed selected pages that she

selected?

A. I have no reason to doubt that she -- she's in

the best position to tell me what the source materials

are and to make that comparison, and that was what I was

asked to do.

Q. Okay. And since you don't remember what you

reviewed, you don't remember the textbooks, and you

conceded you only reviewed selections that she selected

and gave you, how do you know that she didn't give you

pages from some other textbook, some textbook that's

completely inapplicable or out of print? You don't, do

you?

A. No.

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Q. I want to touch on the Google Books' issue.

Can you tell us -- actually, let me ask you to kind of

speed this up. There's a term of art in your field,

copyright law, called "transformative," right?

A. That's correct.

Q. Okay. And if a work is transformative, then

essentially that's one of the factors. If you take a

copyrighted material and you transform it into something

that has independent indicia of creativity, then it's

transformative and generally not considered a violation,

right?

A. Yes.

Q. So, you've referred to this case, a case that

Mr. Montoya has repeatedly asked you about and cited to,

and I just want to read you a section. It says -- from

the case: "Similarly, Google Books is also

transformative in the sense that it transforms

book text data into data for purposes of

substantive research."

Given that you haven't even reviewed everything

that Dr. Martinez did or the sources, you don't have any

basis to testify whether or not her work was

transformative, do you?

A. I have my understanding of how the notes were

used.

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Q. Based on her self-selected pages that she gave

you?

A. Yes.

Q. And based on -- based on materials and books

that you don't even remember here today?

A. That's correct.

Q. Now, you said earlier that equations -- or,

what was it? Natural law? I don't remember. I don't

want to use. I'm not remembering.

You said equations and you gave some sort of

example of what you called equations, such as the

Pythagorean Theorem?

A. Yes.

Q. And Pythagorean Theorem, if I remember

correctly from geometry, isn't that the finding of

hypotenuse of a right angle: A squared plus B squared

equals C squared and C squared plus --

A. Yes.

Q. You don't really think 'that MCCCD is claiming

that that's the manner in which she violated copyright,

do you?

Is that your understanding? Because it's very

important if that's your understanding.

CHAIRPERSON CRUDUP: That's time.

MR. UPPAL: I would ask for him to answer that

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last question.

MR. MONTOYA: Can I also do my redirect?

CHAIRPERSON CRUDUP: Yes, you can.

MR. MONTOYA: Thank you.

THE WITNESS: Here's the way I would put it in

my understanding of the situation: As I said, the Fair

Use Doctrine is not capable of definitive analysis. We

have -- even the factors that are laid out, the statute

itself specifies that other factors can come into play.

You have to look at it in light of the purpose.

Let's take the two extremes on -- on one

extreme, let's say a math professor selects problems,

copies them literally from a variety of textbooks and

assembles in her own fashion into some kind of lecture.

In that situation, that would be a degree -- that would

be transformative and that would be fair use.

On the other extreme we have a math professor

who takes a textbook and literally just copies -- copies

it substantially, maybe entirely, and provides that to

the students. That's not fair use.

The analysis is where in that spectrum does

this situation fall. Mr. Garrison's opinion is, well,

it falls in a spectrum that increases risks; but that in

and of itself doesn't tell us, would that be ruled fair

11SP by a judge fully informed of the facts.

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I'm talking about the two extremes. I am

relying on the information that I was provided and in my

opinion it falls within the parameters of fair use

because it seems similar in my understanding to the

first hypothetical that I gave you and not the second.

MR. UPPAL: I didn't interrupt to the witness,

but I want to point out that what he said is completely

non-responsive to the question. I understand that you

ruled that I'm out of time. Thank you.

REDIRECT EXAMINATION

BY MR. MONTOYA:

Q. Okay. I have a follow up. You say you use

Google Books?

A. Yes.

Q. Have you ever heard of Toni Morrison, the Nobel

Laureate, wrote this book called "Beloved"?

A. Yes.

Q. I'm showing you -- see Google Books up there?

A. Uh-huh.

Q. Okay. It's a literary work and consequently

unique unlike a mathematical principle, correct?

A. Yes.

Q. Do you see how Google Books that the Judge

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ruled was a fair use goes on page after page of verbatim

copying?

A. Yes.

Q. Now, it's your understanding that the Google

opinion said that that was fair use?

A. Yes.

Q. And remember when Mr. Uppal was saying: Oh, in

your letter you made a mistake which you called a

misunderstanding, that you thought that Professor

Martinez required her students to purchase the

underlying textbook that she copied from?

A. I think what I meant by required is that is the

assigned book, it doesn't mean necessarily the students

would purchase it.

Q. But isn't it true that under the Fair Use

Doctrine, you don't have to buy the book?

A. (No audible response.)

Q. Is that a yes?

A. Yes.

Q. So, whether or not the book was assigned or not

assigned, required or not required, is irrelevant for

fair use purposes, correct?

A. I -- I wouldn't say --

MR. UPPAL: I would like that question --

that's a very important question. I went that question

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reread because I want to make sure I heard it. I just

want the question reread by the court reporter.

MR. MONTOYA: Well, that's something that you

have to ask the Chair and the Chair has to rule on.

CHAIRPERSON CRUDUP: Sure.

MR. UPPAL: Thank you, Mr. Chair.

(Whereupon the prior Question was read.)

THE WITNESS: I wouldn't say -- I wouldn't

chose the word "irrelevant."

Q. BY MR. MONTOYA: Is it dispositive?

A. It is not dispositive.

Q. So, something can fall under the Fair Use

Doctrine even though you don't require your students to

buy it?

A. That's correct.

Q. In fact, one of the purposes of the Fair Use

Doctrine is so you don't have to buy it, right? You can

just make multiple copies of it to pass out in class

like the statute itself says; is that correct?

A. Yes.

Q. Arld that's what Professor Martinez did, right?

A. That's my understanding, yes.

Q. Now, you weren't paid $10,000 to write --

MR. UPPAL: Objection. Objection. We've been

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313

over this. I mean

MR. MONTOYA: Well, he's the one --

MR. UPPAL: No. Actually, I did not receive

equal time and now we're going over exact time.

MR. MONTOYA: I had extra time. I had extra

time.

DR. REYES: It will cut into the closing

statement time. So, as you wish.

MR. MONTOYA: Then I will thank Mr. Bellamy for

his insight and his honesty and release him.

THE WITNESS: Okay.

MR. MONTOYA: Thank you, sir.

THE WITNESS: Thank you.

MR. UPPAL: Nice to meet you.

CHAIRPERSON CRUDUP: Five minutes each for

closing statement.

MR. MONTOYA: Bye, Fred. Thank you, sir.

MR. UPPAL: I have very bad allergies. Can you

indulge me for 30 seconds?

MR. MONTOYA: And can I -- I'm going to go

release my other witnesses. In fact, I'm going -- I'm

still on the -- I'm going to actually invite him to come

in. Is that okay? Because he's no longer a witness.

CHAIRPERSON CRUDUP: That's fine.

MR. MONTOYA: Thank you.

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(Whereupon a recess is taken at 4:47 p.m. until

4:49 p.m.)

MR. UPPAL: Mr. Chairperson, five minutes each

for closing, is that the rule?

CHAIRPERSON CRUDUP: Five. Five-minutes.

MR. MONTOYA: How about ten? Since it's her

career at stake.

DR. REYES: If you all want to stay later.

CHAIRPERSON CRUDUP: If you want ten -- we have

to stay later. Do you want ten?

MR. MONTOYA: We want 10.

CHAIRPERSON CRUDUP: Ten okay with you?

MR. UPPAL: I will stick to ten.

CHAIRPERSON CRUDUP: Okay.

MR. UPPAL: But I do believe -- actually, I'm

going to ask Mr. Calderon. Traditionally, I think my

side gets to open and close.

MR. CALDERON: You have ten minutes. I would

recommend, but it's up to you if you want to reserve a

couple of minutes --

MR. UPPAL: That's exactly what I want to do.

MR. CALDERON: -- for final rebuttal, that's

fine.

He'll use eight up front; Mr. Montoya will use

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his ten; and he'll be limited to two.

MR. UPPAL: Bear with me. I'm just going to

start a stopwatch here.

So, Members of the Committee, what I'm going to

do is I'm going to reserve, as is customary a portion of

my time, if I use seven, I'll use the balance of the

three at the end or whatever might be the case.

All right. Members of the Committee, thank

you. It's been a long day and you've been very patient

with both of us. And I'll just say to you that this is

important to both sides. There's really no dispute as

to that, we're not contending this matter isn't

important to Dr. Martinez.

But what I would say to you is what you have to

realize is that this is a situation that has gone on for

a very, very long time and it has reached a point -- a

breaking point, basically the straw that broke the

camel's back, it is not a matter of one thing, it is the

cumulation of everything that has resulted in a

situation where the President of Phoenix College, who at

the end of the day has to bear the responsibility and

tYie risk for continuing to employ an individual such ~s

Dr. Martinez.

We're at the point where President Solley is

spying to you that she simply has lost trust in this

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316

witness's ability to comply with her directives, to

comply with the law, to comply with the Distric't's

policies. And she is concerned that the continued

employment of Dr. Martinez and the views that Dr.

Martinez holds is going to result in a situation where

we're going to have massive problems, either with

respect to a violation of copyright, a copyright

infringement lawsuit, which I will say to you is not

just a theoretical or hypothetical concern, but the

District has been sued for this in the past, and you

heard about that; or, it's going to reach a situation

where students are going to have big complaints and have

legitimate, very big problems with actions that Dr.

Martinez takes such as simply violating the

cash-handling rule.

So, I want to begin sort of in reverse order

and talk about the cash-handling rule first, because it

surely is the straw that broke the camel's back, irl

addition to everything that Dr. Martinez did in respect

to copyright violations, that has led us to a situation

here today where the President of the college who --

let's face it, we all have better things to do with our

time, has spent the entire day in front of yott, and

during her testimony requested or pr_~ctically begged the

Committee to support her recommendation to give or

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return a recommendation of termination with respect to

Dr. Martinez. And that request is not made lightly.

Let's review for a minute what happened. Dr.

Martinez is already on restriction for copyright

violations, she's already been disciplined with respect

to her attempts to circumvent those copyright

restrictions, and then it culminates in a situation

because she does not want to comply with Phoenix

College's directive that she submit her materials for

pre-review in order to make sure they are not copyright

violations in whatever she's using, she doesn't want to

do that, so she goes to Staples and makes copies.

That's bad enough. But then she takes those copies and

sells them to her students.

We haven't claimed that she made a profit from

that but that's not the issue. When you're ari

instructor, common sense should tell you that you don't

get to sell lottery tickets, you don't get to sell

Tupperware, you don't get to sell Girl Scout cookies,

and you don't get to sell course materials to your

students. Because if you even offer them for sale, the

students are going to think that they have to buy them,

either to curry favor to the instructor or to avoid a

detriment.

So, when this issue is brought to Dr.

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Martinez's attention, once again Dr. Solley takes time

out of her schedule, she's got bigger fish to fry and

more important things to do, a larger admission to

service, but she takes time out of her schedule to meet

with Dr. Kakar to explain the enormity of this violation

and it's significance. What does Dr. Martinez do? She

walked out. And she claims she walked out because she's

afraid of Dr. Solley, but apparently not so afraid to

comply with her directive.

Let's face the facts. She did not want to

comply with a directive, a written directive of the

President of Phoenix College and she simply thought that

she could avoid it. Only today when she's had to face

the results of cross-examination does she belatedly

admit to you that she has made a mistake. But it's too

late, the bond of trust has been broken.

And if you allow her to continue to be employed

with the District, she will simply engage in this kind

of behavior over and over. She already has end she will

feel that she has gotten away with it; and it i_s

impermissible.

But, let's continue. They try to counsel her,

it doesn't work, she walks out. They tell her to

contact the students and give refunds, sYie doesn't

contact the students. So then because this is such a

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319

serious violation, Kelly Loucks, a secretary in the Math

Department is charged with -- look at the amount of time

that's being wasted here -- to go out to students and

see if she's contacted them to offer a refund. It's

clear as day, she hasn't done so.

What happens next? She's told: Give refunds.

She doesn't do it. So a student says: You're supposed

to give me a refund. She still doesn't do so and tries

to make it contingent on return of materials. That is

ridiculous. She's already been told you have to make a

refund and she tries to make it contingent on the return

of the materials.

But the coup de gras, is when these

instructions are repeatedly violated, she's issued a

specific instruction in writing that now you have got to

show cancelled checks. Because, frankly, at this point

it doesn't matter whether you agree with the instruction

or not, because management and the President of the

college, a woman who has dedicated her life to

education, who herself is Hispanic, who herself has won

many awards has decided this is unacceptable behavior.

Now, you've got to come forward with cancelled checks.

And where are they? She doesn't produce a single one.

She violates the directive. And if sYle can

violate that directive of a president that she to]_d you

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she was afraid of, then you really need to assess her

credibility and where it relies. There is no

credibility. It's unfortunate that we have to say

things, but that's where we're at.

Now, with respect to the copyright issues, what

I would say to you is this:. That the other side has

really strived to try and create the impression by this

expert Mr. Bellamy, who is a nice fellow, I've got

nothing wrong with him and I told you I don't challenge

his credentials, but he testified that what she did was

somehow fair use. Ladies and gentlemen, that has

absolutely no indicia of credibility. Not because Mr.

Bellamy is a bad guy or I don't think that he knows what

he's doing, because he didn't even review the same

materials that Mr. Garrison reviewed. He doesn't even

remember what he reviewed.

And the only things that he reviewed to try and

see how much or what Dr. Martinez copied comes from the

self-selected pages that Dr. Martinez gave him. He

admitted, he doesn't know what she gave him, it could

have been something completely out of print. It

certainly wasn't this, we know thzt. Because these

books he doesn't remember reviewing.

So, ladies and gentlemen, he doesn't hive the

ability to tell you in arly reliable mariner that what Dr.

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Martinez did is fair use or anything of the kind. And

he also has no basis to testify that what she did

constitutes fair use, because fair use doesn't require

you to buy the textbook. That's not the issue. The

issue is how much material did you infringe and he

doesn't know.

I'm going to reserve whatever few seconds I

have until the end.

DR. REYES: That will be the two minutes at the

end.

MR. UPPAL: Thank you.

MR. MONTOYA: Your lawyer will tell you that

the District has the burden of proof. My client is

presumed innocent. They have to show that she's guilty.

They haven't shown she's guilty of anything.

Let's start with the back end first because the

back end is easy. Remember when I asked all of their

witnesses that had anything relevant to say regarding

the matter -- Dr. Kakar, President Solley -- you're

saying she violated the District money-handling rules,

what do those rules say? Well, first of all, what is

the number of the rule? I don't know. What does the

rule say? I don't know.

The President of Phoenix College, with all due

respect, is not a dictator. She can't go around telling

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people to give their money to students without citing a

rule, without having authority behind her. She's not --

we don't live in a totalitarian state. Remember, the

nature of your job. You're members of a Faculty Senate.

Universities, colleges started as guilds of scholars

that would charge their students for their services and

the guilds and6delete could zlso expel scholars who did

not adhere to the guilds' standards.

The raculty Senate is higher than the

President, that's why it's your recommendation that goes

to first the Chancellor and then goes to the Governing

Board. The President is riot a dictator. She can't tell

Cleopatria Martinez to give money away without a rule.

And -- and let's look at the evidence, there is

no rule. No one testified about a rule. Professor

Martinez testified it was reimbursement and it made

sense. They keep on saying that she hid to -- these

students had to buy these materials. That's not true.

The only evidence is is that they could have copied

themselves, which they chose not to do, or have her copy

them and reimburse them. So whit? Big deal. She

didn't obey. She didn't have to obey. This is not a

dictatorship. This is based upon miles. That's why we

have the RFPs. That's why we have the faculty Senate 'to

preserve faculty freedom.

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So, they haven't proven -- so, not only have

they not proven, the selling the improper money-handling

case with the preponderance of the evidence, in fact,

there's no evidence to support it at all.

Let's talk about the copyright case. First of

all, the evidence is completely uncontradicted that the

alleged copyright violations transpired almost four

years ago; spring of 2010. And it never happened again.

But, yet, they say she can't be trusted, she hasn't

learned her lesson.

She testified over and over again: I've never

used these materials again. Remember that? Never used

these materials again. Why? Because they told me not

to.

That is old news. She's been punished for it.

She was given a letter of reprimand for it. She can't

be punished again for it. Why fire her for a problem

that transpired almost four years ago that she never

even repeated.

One thing my friend Mr. Uppal completely

ignored is the rest of the story. He focuses upon

alleged mistakes of the spring of 2010, but what about

the 28 years? What d~OU~ those? Those have to be taken

into consideration. You X11 know the concept of tenure

is based upon longevity of service, longevity of

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dedicated and excellence service to the college. She's

tenured. That's why we're here. The university's rules

respect longevity of service but, yet, there's never

been any type of recognition of that.

And you heard: Oh, she's done this, she's done

that. They're beating up on this poor lady, which is

pure bullydom by the bunch of bureaucrats that President

Solley has rubber stamped. That happens all the time.

Boy, are you right, Pavneet, President Solley

is super busy, she does have a lot on her plate, and

sometimes that results in the President rubber stamping

what an underlying administrator, bureaucrat does, and

that's why you are here to reverse it.

The foundation of any legal doctrine is the

dang written law. Notice how no one has ever talked to

you about that. Their expert didn't even cite to you

the statutes. Pavneet didn't cite to you the statutes.

They don't want you to read the statute. The statutes

reads: "The fair use of copyrighted work for

purpose such as criticism, comment, news

reporting, teaching (including multiple copies

for classroom use), scholarship, or research

is not an infringement of copyright."

That's what the dang statute itself says.

We've gone over_ end over again the Google case.

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If Google can do it for money, copy a whole dang book or

90 percent of a book, why can't she do it for no money

and not a whole book but a fraction of it, the vast

majority of which is mathematical principles in any

event? Why doesn't that fall into fair use?

Bellamy is exactly right. Now, did he have the

huge expert report that Mr. Garrison did? No, but he

wasn't paid $10,000 to produce one because she couldn't

afford it. He did it out of the kindness of his heart.

He was more objective than anyone.

It absolutely was fair use. Look at the

language of the statute.

And another thing that is irrational, I

challenge you to address this issue that this

demonstrates the irrationality of what we're here for,

and that is this: Why haven't they said, well, you

know, if you don't want to terminate her, here's another

sanction. You know, whenever you watch TV, whenever you

discipline your kids, whenever anything -- whenever any

question of discipline is -- is involved, you always

look at the level of discipline to make sure that it's

proportionate to the underlying offense.

There's been no talk of that. She must be

fired. Why hasn't she already been punished enough? My

Cod, she's been excoriated, she's been humiliated, she's

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been put on administrative leave. After 28 years of

dedicated service to the College, why isn't that enough?

The level of punishment betrays what's going on here.

This is unfair.

And, moreover, whenever you consider

punishment, you also have to consider another concept,

because, guess what, we're humans, and that's the

concept of mercy. Why doesn't this individual deserve

mercy? Everyone deserves mercy. Everyone absolutely

deserves mercy, especially when they have been a

merciful person. There's been no demonstration that

this individual is mean spirited or malicious. She

didn't steal -- even though they said she stole, there's

no evidence that she stole. There's no evidence that

she lied. There's no evidence that she cheated, even

though they tried to say that she cheated. Oh, you

know, she got an assistant faculty member to print

something. Oh, she printed up, you know, 14 [sic]

copies of classroom materials. There's been no evidence

of any malice nn her part.

The punishment is disproportionate even without

the concept of mercy. When you apply the concept of

mercy, there's absolutely no question that she shouldn't

be terminated.

And, moreover, they haven't proven their case.

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They haven't proven that she's violated any rule

regarding handling money and they haven't proved that

she's violated the copyright law. Exhibit No. 1 is the

Copyright Act itself, Section 107. Exhibit No. 2 is the

Google case. How can Google make money on printing

90 percent of Toni Morrison's original literary master

piece "Beloved," and her use of the limited problems

that she used, less than .5 percent -- that testimony

has been uncontradicted by the way. Evidence .5 percent

or less. That's what the evidence shows. When I asked

Mr. Garrison: How much did she use? I don't know, that

wasn't important to me. Even though he was paid $10,000

to review the facts, he didn't review that fact.

There isn't a case here. This is a trumped-up

case and they're trying to destroy someone who doesn't

deserve to be destroyed. I would be afraid, too. I

think that you saw -- you sensed the fear in her when

she testified. Did you not? Can you deny that she was

shaking, that she was fearful, that she was berated.

CHAIRPERSON CRUDUP: Okay. Thank you.

MR. MONTOYA: Thank you.

MR. tJPPAL: Ladies and gentlemen of the

Committee, the concept of tenure will not survive if an

individual such as Dr. Martinez is allowed to violate

written instructions from a college president and engage

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in this kind of behavior.

Dr. Solley is not a dictator. There's a rule

that you can't sell material. There's a real good

reason for it, and Mr. Montoya keeps stating that the

rule was never cited to you. It's in the Statement of

Charges, remember the one he objected to when I tried to

show it to the witness that was being questioned?

It says, raculty Policy Manual 3.2.4:

"An instructor shall not have any financial

interest in or receive compensation from the

sale of any unpublished instructional materials

required or suggested for a class that the

instructor teaches."

With respect to why there isn't a sanction less

than termination, and you heard Mr. Montoya make an

appeal to mercy, review the record. Look at how many

times Dr. Solley and the Administration tried to counsel

this individual. Look at the copyright issues, she

wasn't immediately fired on it, maybe she should have

been, but they tried to work with her. She repeatedly

circumvented it. I can't take you through the examples,

but I know that you know them. Look at the issues of

the Cash-Handling Policy, look at how many times she

violated i.t. And then she -- as she sat here today,

refused grid filed to produce the cancelled checks and

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the refunds that she was directed to send. That didn't

happen. The very first time, they tried to talk to her,

she walked out.

Mercy and sanctions short of termination have

been utterly exhausted. There is no other option at

this point. And I know that, you know, you're going to

review the fact that she is tenured and she's worked

here a long time, but she's had every opportunity.

Again I leave you with this: The concept of

tenure will not survive and MCCCD will not survive as an

institution if individuals such as this are allowed to

engage in this level of conduct and retain their

employment.

CHAIRPERSON CRUDUP: Thank you.

MR. CALDERON: Mr. Chairman, before you.

adjourn, may I ask a question and then offer up some

deadlines?

CHAIRPERSON CRUDUP: Yes, you may.

MR. CALDERON: Thank you, Mr. Chairman.

Question to both counsel, is it the argument

today that the Committee can only rule, it's an all or

nothing? There's recommendation for termination and

there's a recommendation for no termination? There can

be rio recommendation for less than termination?

MR. UPPAL: That's my understanding -- let's,

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since I represent the District and since you were

turrlirlg to me .

MR. CALDERON: Sure.

MR. UPPAL: Our position is that you have to

respond to the charges, and the charges are a

recommendation -- are requesting a recommendation of

termination. Anything short of that is not going to

address either the charges or the purposes that we've

been here for today.

MR. CALDERON: Mr. Montoya?

MR. MONTOYA: This Committee has the

jurisdiction to recommend a lesser sanction, that is

certainly within your jurisdiction. The Governing

Board -- first of all, it's only a recommendation, and

ask Mr. Calderon or anyone who sat in on the Governing

Board's open meetings, they can do whatever they want.

They don't have to terminate, they can suspend, they can

reinstate. I know, I got an employee reinstated.

The Governing Board absolutely can do that.

You can absolutely do that, too. You have the -- you

have the power to make that recommendation. That is

your absolute right.

MR. CALDERON: Question for Mr. Upp~l, the

August 9th letter signed by Chancellor Gl~sper, second

paragraph says that Regulation 6.7 says the violation of

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any of its employment standards, quote, "constitute

ground for disciplinary action, up to and

including termination of any Maricopa Community

College District employee," blab, blab, blab.

MR. UPPAL: Right.

MR. CALDERON: It says "up to and including."

MR. UPPAL: The reason that is -- and we can

have Chancellor Clasper address this if there's any

doubt in the Committee's mind. The reason that that

verbiage is used, is that's the verbiage that's

basically used in employment manuals as well as faculty

policies, but what you are being charged with is to make

your recommendation to the Board with respect to -- you

can look at the letter for yourself, Dr. Clasper is

supporting termination. There is no doubt about this.

MR. CALDERON: Thank you.

Mr. Chairman, with your permission, this is to

remind the parties -- and we're still on the record --

that the Proposed Findings of Fact and Conclusions of

Law are due on November 25th, and that this I-Iearing

Committee will render its decision no later than

December 9th. Arly questions?

I see --

MR. UPPAL: So, the Committee would like our

Proposed Findings of Fact and Conclusions of Law to

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assist it in arriving at a decision?

MR. CALDERON: Yes.

MR. UPPAL: Okay. Okay.

MR. MONTOYA: I have a request. I'm leaving

out of town, out of state on business on the 22nd. Can

we agree we find the findings via e-mail on the 27th?

Would you object to that, Pavneet?

MR. UPPAL: When does Thanksgiving fall?

MR. MONTOYA: I don't know. It guess it falls

on the 28th.

MR. UPPAL: Steve, I don't -- I tend to

stipulate but that one doesn't seem real workable to me.

MR. MONTOYA: Do you have another date that you

would stipulate to?

MR. UPPAL: It's been a long day and I don't

have -- I'm having trouble pulling up my schedule. I

don't think -- it's not that I'm not willing to

stipulate. It's just that is Thanksgiving. It's not

going to accomplish to --

MR. CALDERON: That's it, too. We don't want

to put Taylor in a position to having to work on

Thanksgiving day.

Why don't we do this, for the reminder of

toclay, the November 25th deadline will stand; however,

if both counsel get together and they want 'to stipulate

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to something, let us know and I'll ask the Chairman or

the Committee to accommodate them if we can. I just

don't want to put the Committee in a situation where

they only have a week or less than that.

MR. MONTOYA: Neither do I. And we would also

stipulate the Committee have a corresponding extension

to do it's work, of course.

MR. UPPAL: Well, but the Committee -- doesn't

the Committee's request have to be made in line with a

scheduled Board meeting, like in advance of the Board

meeting?

MR. MONTOYA: I don't think there's going to be

a Board meeting for awhile.

MR. CALDERON: We know nothing about a Board

meeting. Nobody has given us any time tables for that.

MR. MONTOYA: There has to be a quorum, too.

MR. UPPAL: Maybe the -- I don't know. What I

was thinking was that the reason the decision has to be

rendered by a date certain is because it has to be so

many days in advance.

MR. CALDERON: We came up with that date. We

pulled it out of thin air because based on the schedule

we're trying to give this time.

MR. UPPAL: I would ask this of the Committee

-- this isn't my request. I'm trying to accommodate

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opposing counsel. How many days in advance of

December 9th would you realistically need the Proposed

Findings of Fact and Conclusions of Law in order for you

to really be able to read them and digest them and

assist you in your decision?

MR. CALDERON: I would suggest ten days. I

would suggest ten days in advance. And the reason I

suggest that is that is once you give us direction, what

we will do is we will take a look at both Findings of

Fact and Conclusions of Law and try to distil out the

salient parts that are consistent with your direction

and give you a draft, a third version, which would be

yours to tear apart. And so I -- you know, I don't want

to rush you on this. That's why I would suggest that.

CHAIRPERSON CRUDUP: Ten days.

MR. UPPAL: Mr. Calderon, here's what I was

concerned with, and maybe we should just leave this for

another time and stick with November 25th. I'm looking

at the rules, looks like it has a deadline: "Within

five working days after completion of the hearing, the

Committee shall provide the Chancellor," et cetera, et

cetera.

CF-IAIRPERSON CRUDUP: Unless stipulated to

something else.

MR. CALDERON: We stipulated. All the parties

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stipulated to the timetable.

MR. MONTOYA: See, my understanding is that

because it's Dr. Martinez's job that's at stake, she has

the right to relax those deadlines which she's already

done at least on one occasion already.

MR. CALDERON: Mr. Chairman, the party that

would be prejudiced by not adhering to the five-day rule

is Dr. Martinez and she, through counsel, has agreed to

stipulate to that. So -- so, there's no harm, no foul.

MR. UPPAL: Hold on one second, Mr. Calderon.

I'm not disputing what you're saying. I'm just going to

request that you read the rules because the rules --

MR. CALDERON: We've read the rule.

MR. UPPAL: Well, here's the problem: The rule

in front of it says "unless the parties otherwise

agree"; the rule after it does not have that statement.

Just want to show it to you.

MR. CALDERON: Well, then, if that's the case,

we would ask the parties to get us the Proposed

Conclusions of Law and Findings of Fact by tomorrow

morning at 8 o'clock in the morning.

MR. MONTOYA: Well, that's also true, but can I

say something, Mr. Calderon?

MR. CALDERON: Yes, please.

MR. MONTOYA: On the record, when a party says

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"I waive that objection" on the record, I think that Mr.

Calderon will verify and Mr. Uppal will verify that they

cannot take that back. That that is binding.

MR. UPPAL: I agree with that. But I -- my

question to the Committee still holds. You have

Thanksgiving in the middle of it, so by when do you need

those Proposed Findings of Fact and Conclusions of Law

in order to assist you to reasonably reaching your

conclusion?

I'm not opposing an extension, but if it really

is ten days, then we don't really have -- and then

Thanksgiving is coming up, we don't have much to work

with. That's the only thing we're saying.

CHAIRPERSON CRUDUP: That's what you're

describing, would6delete how many days would you guys

apparently need? Five days?

MR. UPPAL: We'll get it to you by the 25th.

We're ready to comply with the 25th, the other side is

asking for the extension. I'm not opposing the

extension request, I just want -- this requires a

significant amount of work. It's important to you, too.

So my question to you is, I'm willing 'to

stipulate and give the other side an extension giving

his on-the-record waiver of any objection to timeliness.

Now it falls on you, how much time in advance do you

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want it?

MR. CALDERON: Mr. Chairman, before you answer

that -- and we're on the record -- Rule 3.15.7 states as

the five-day working rule: "The above deadline may be

extended up to 15 working days after completion

of the hearing if the Hearing Committee

requests briefs and/or recommended Findings of

Fact and Conclusions of Law from the parties."

And that's precisely what the Committee is

asking; along with it, there's a stipulation. So, it is

what it is. Thank you, Mr. Chair.

MR. UPPAL: So, once again, falls on you. If

you want to render _you decision by December 9th -- this

is the only thing I'm asking you. If you want to render

you decision by December 9th, which is my understanding,

by when do you want our briefs?

MR. CALDRON: Mr. Chairman, I recommend it

remains November 25th unless the parties together can

stipulate to some other date, because that factors in

your final exams, your preparation for final, because

you have another life other than this --

CHAIRPERSON CRUDUP: Right.

MR. CALDERON: -- that's why we come up with

the timetable.

If you come up with another date, I'm certainly

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going to recommend it to the Hearing Committee.

DR. REYES: Does that work for you?

MR. MONTOYA: Well, I would like to do it -- I

would just like a couple more days because I fly out of

state to do depositions. I have to be at the airport at

5:00 a.m. on the 21st, so. And I can work -- I can work

when I'm gone, but it's more difficult and I don't think

anyone is going to be prejudiced if we do it on the 27th

instead. It's riot going to ruin anybody's Thanksgiving

because that's the day before Thanksgiving. And the

rule itself says when you -- when you require Findings

of Fact and Conclusions of Law, that you can push

everything off 15 days. So, I don't think there's any

obstacle in the Committee extending the time a mere two

days.

MR. CALDERON: Mr. Uppal, will the 27th be okay

with you?

MR. UPPAL: Fortunately, we're not working that

day. But here's what I think just as an accommodation

to the other side is we'll try to submit our brief

early. So, the -- so -- and I think Mr. Montoya would

agree, so he doesn't have to tailor his brief to us, we

won't serve it until he serves his. You can expect ours

on the 25th and I would be okay with Mr. Montoya

submitting his on the 27th.

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Would that be okay, Steve?

MR. MONTOYA: That would be okay. Let me also

say this, that customarily the party bearing the burden

of proof does file their brief first.

MR. UPPAL: This is argument.

MR. CALDERON: I understand. What the Hearing

Committee determined was they wanted simultaneous

submissions rather than saying one set of findings is

wrong and back and forth, the Committee wants to do that

heavy lifting of discerning that.

So, with that, Mr. Chairman, since we're on the

record, the Phoenix College will have up to the 27th to

-- to submit it's Findings of Fact and Conclusions of

Law to the Committee through our office and it is -- it

is recommended that you not serve it on the opposing

counsel; we need to double-check it with my office that

we don't inadvertently share it ahead of time; and Mr.

Montoya you have up until the 27th to submit yours. On

the night of the 27th, we'll make sure everybody has

everything. And then that will give us time, once you

give us direction, to try to prepare for you something

that you can then deliberate about and tear it apart.

We hive no part of authorship for the first

draft. The final draft will be precisely the way you

want i_t to be .

Miller Certified Reporting, LLC

MCCCD/Ma►•tinez 03789

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MR. BALL: Are we going to extend their

deadline two days?

MR. CALDERON: I'd leave it alone right now and

the Committee can go ahead and do it if they run into a

dam.

Is that fair, Counsel?

MR. UPPAL: I -- I think I just heard you say

the date for Committee remains December 9th?

MR. CALDERON: Unless they get into a jam, then

I'll contact you and say we're in a jam and we'd ask for

two additional days.

MR. MONTOYA: And they have the right to take

15 more days if they want.

MR. CALDERON: We don't want to hold anybody,

Phoenix College or Dr. Martinez, hanging particularly

with the holidays coming up. We want to make sure that

the Committee gives you a just and speedy decision.

MR. UPPAL: Thank you.

MR. CALDERON: Thank you.

CHAIRPERSON CRUDUP: Is there something formal

I should say?

Thank you all for coming.

MR. BELL: We are adjourned.

CHAIRPERSON CRUDUP: We're adjourned. Thanks.

(Whereupon the proceeding concludes at 5:25

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MCCCD/Martinez 03790

Case 2:15-cv-01759-NVW Document 73-4 Filed 03/03/17 Page 191 of 192
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p.m.)

C E R T I T I C A T E

I, Angela Furniss Miller, Certified Reporter,

do hereby certify that the foregoing pages numbered 1

through 340, inclusive, constitute a full and accurate

printed record of my stenographic notes taken at said

time and place, all done to the best of my skill and

ability.

2013.

DATED, at Phoenix, this 27th day of November,

Angela Furniss Miller, RPR

Certified Reporter (AZ50127)

Miller Certified Reporting, LLC

MCCCD/Martinez 03791

Case 2:15-cv-01759-NVW Document 73-4 Filed 03/03/17 Page 192 of 192