Cameron v. ABOR

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE THERESA CAMERON, ) ) Plaintiff/Appellant, ) ) v. ) ) ARIZONA BOARD OF REGENTS, a ) public entity; and MICHAEL CROW, ) in his official capacity as ) President of Arizona State ) University, ) ) Defendants/Appellees. ) __________________________________) 1 CA-CV 10-0323 DEPARTMENT D DIVISION ONE FILED: 08/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. LC2008-000628-001 The Honorable Robert C. Houser, Judge AFFIRMED Martin & Bonnett, PLLC by Susan Martin Daniel L. Bonnett Mark A. Bracken Jennifer L. Kroll Attorneys for Plaintiff/Appellant Phoenix Cohen Kennedy Dowd & Quigley, P.C. by Daniel G. Dowd Rebecca van Doren Attorneys for Defendants/Appellees Phoenix G E M M I L L, Judge ¶1 This Cameron is a ( Cameron ) upholding associate the wrongful challenges termination professor University ). For discharge the the superior her of at case. employment Arizona reasons State that Dr. court s as Theresa decision a tenured University follow, we ( the affirm that decision. FACTS AND PROCEDURAL BACKGROUND I. Cameron Receives Tenure ¶2 The University woman, as an assistant School of Planning in hired Cameron, professor 1997. In in an The that African-American College capacity, of Design, Cameron was responsible for teaching courses on subjects such as critical infrastructure planning. She received tenure and an associate professor position in 2000. II. ¶3 The Post-Tenure Review Process During February 2006, a majority of the students in two of Cameron s classes signed petitions complaining about her preparedness, professionalism, and competence. After meeting with the students, the University removed Cameron from one of the classes on or about February 21, 2006. ¶4 On June 2, 2006, Dean of the College of Design, Wellington Reiter ( Reiter ), notified Cameron in writing that she would be subject to the post-tenure review process based 2 upon unsatisfactory address performance. deficiencies progressed beyond in the her The review, teaching evaluation designed performance, stage due to to never intervening events. III. Misconduct Allegations ¶5 Associate In March Dean for 2007, the Kenneth College Brooks of ( Brooks ), Design, reports of alleged misconduct by Cameron. began ASU receiving Upon investigating the reports, Brooks became concerned that Cameron had engaged in possible plagiarism, student intimidation, and violation of the course review procedures. ¶6 Initially, some of Cameron s PUP436 students complained that the course syllabus was not consistent with the material being presented in class. In reviewing the syllabus, Brooks confirmed the inconsistency and, based upon discrepancies with Cameron s previous work, began to question its originality. Internet searches confirmed that Cameron had verbatim from syllabi published by others. confirmed that Cameron had used other copied material Additional research sources, without attribution or the authors permission, to create at least six course syllabi over several years. ¶7 Meanwhile, a student who had previously raised concerns about Cameron in PUP436 (Student A), reported to Dr. Hemalata Dandekar ( Dandekar ) that he/she and another student 3 (Student E), had a confrontation with Cameron after class on March 7, 2007. The class was required for graduation. According to Student A, Cameron told Student E that she did not want him/her in the class anymore. Student A said that this forced him/her to engage in damage control and he/she became concerned about retaining expressed concerns about a place further in the contact class. with Student A the University Yabes ( Yabes ) based upon fears of retaliation. ¶8 Finally, Associate Professor Ruth reported to Brooks that Cameron had violated University policy during their co-taught class in the Fall of 2006. According to Yabes, herself Cameron distributed the evaluation forms and remained in the room while the students were completing them. IV. Cameron s Dismissal ¶9 In light of the allegations raised, Cameron on leave with pay on March 19, 2007. Reiter placed On April 10, 2007, Reiter sent Cameron his recommendation that she be dismissed for cause. Cameron appealed the recommendation, and conciliation efforts failed. ¶10 2007. ASU sent Cameron a notice of dismissal on September 7, The notice stated that just cause existed for this action because Cameron (1) failed to follow the University s protocol for student evaluations, (2) engaged in perceived retaliatory conduct against two students enrolled in one of her classes, and 4 (3) plagiarized the work of other authors in developing six course syllabi. V. This Litigation ¶11 Cameron Faculty timely Senate s appealed Committee on her dismissal Academic Freedom ( CAFT ) in a letter dated September 17, 2007. to the and ASU Tenure CAFT accordingly conducted a dismissal appeal hearing on April 22 and May 5, 2008, pursuant to Arizona Board of Regents ( ABOR ) Policy 6201.L. The University had the burden of proving just cause for Cameron s termination by a preponderance of the evidence. See ABOR Policy 6-201(L)(4)(h)(8). ¶12 In its advisory Findings of Fact, Conclusions, and Recommendation, CAFT found that the University had carried its burden and syllabi, but established did not that carry Cameron its had burden plagiarized with respect course to the charges of retaliatory conduct and improper implementation of course reviews. CAFT advised that the plagiarism could best be addressed through enhanced post-tenure review or a performance improvement plan. It also rejected Cameron s April 18, 2007 grievance concerning the University s failure to complete the post-tenure review process. ¶13 Under ABOR policy, University President Michael Crow ( Crow ) was authorized to approve, disapprove, or modify the committee recommendation by CAFT. 5 ABOR Policy 6-201(L)(4)(j). On June 23, 2008, Crow rejected CAFT s Findings, Conclusions, and Recommendation. decision on all determination Crow three that review was moot. upheld grounds. Cameron s the earlier He grievance then termination affirmed concerning CAFT s post-tenure He likewise rejected Cameron s request for reconsideration of both decisions on August 12, 2008. ¶14 In accordance with Arizona Revised Statutes ( A.R.S. ) section 12-904(A) (2003), Cameron filed a complaint for administrative review against ABOR and Crow (collectively ASU ) in the Maricopa County Superior Court on September 15, 2008. Litigation ensued over whether the administrative record included materials from the case of former ASU Professor Charles Arntzen ( Arntzen ), a file that was in CAFT s possession. According to Cameron, a graduate student had accused Arntzen, a white male, of plagiarism for misappropriating attribution, yet he had not been fired. work without The superior court ultimately denied Cameron s motion to supplement the record to include such materials, which Cameron had never attempted to offer into evidence or to use in questioning witnesses. 1 ¶15 On the merits, Cameron filed an opening brief attacking the orders based upon: (1) a violation of due process, 1 Cameron has not raised issues on appeal concerning the superior court s denial of her requests for an evidentiary hearing, a trial de novo, and a stay of the administrative decision. 6 (2) a denial of equal protection, (3) a lack of substantial evidence to support the termination decision, and (4) an abuse of discretion in failing to complete the process. The review A full round of briefing followed. ¶16 post-tenure superior court affirmed Cameron s termination after finding substantial evidence to support ASU s decision. On March 1, 2010, the court filed a signed judgment dismissing the complaint and awarding no fees or costs. This appeal followed. 2 ANALYSIS I. The Record Contains Substantial Evidence Supporting Cameron s Termination For Just Cause. ¶17 We review an administrative agency s decision to determine whether there has been an unreasonable action which was taken without consideration and in disregard of the facts and circumstances. Taylor v. Ariz. Law Enforcement Merit Sys. Council, 152 Ariz. 200, 202, 731 P.2d 95, 97 (App. 1986). We will not reweigh the evidence, and we will affirm the agency s decision if there is any substantial evidence in support thereof, and if the action taken by the agency is within the 2 Cameron also filed a complaint in the United States District Court alleging that her dismissal violated her equal protection and due process rights, the Rehabilitation Act, 29 U.S.C. § 794 (2006), and 42 U.S.C. §§ 1981, 1983 and 1985 (2006). See Cameron v. Ariz. Bd. of Regents, 2008 WL 4838710 (D. Ariz. Nov. 6, 2008) (No. CV-08-1490-PHX-ROS). 7 range of permissible agency dispositions. Id. (citing Howard v. Nicholls, 127 Ariz. 383, 621 P.2d 292 (App. 1980)). ¶18 merits Cameron and challenges claims the the misconduct sanction imposed findings was on the shockingly disproportionate to the misconduct found. In addition, she maintains due that the superior court violated process and abused its discretion in excluding her expert and documents, and erroneously ruled that she post-tenure review process. was not entitled to complete the We address these arguments in turn. A. Substantial Evidence Supports Upon Plagiarism Alone. Cameron s Dismissal Based 1. ABOR Policy and the University s Enforcement Role ¶19 state The ABOR has jurisdiction to control and supervise all universities, government. and to enact ABOR Policy 5-301(A)(1). regulations for their Accordingly, the ABOR has adopted a Code of Conduct (ABOR Policy 5-301 et seq.) to meet these responsibilities under Arizona law. Id. ¶20 Each university s administration assists in the enforcement of these policies, including the Code of Conduct. ABOR Policy 5-301(A)(2). The University is not prohibited by the ABOR Policies from adopting conditions, rules, regulations, and procedures consistent with the Code of Conduct. 5-301(D)(1). ABOR Policy Employees are subject to discipline for violating 8 the published rules and regulations of conduct. ABOR Policy 5- 303. ¶21 According to the ABOR s policy on dismissal suspension of tenured faculty members: a. Tenured faculty members shall not be dismissed or suspended without pay except for just cause. Such dismissal or suspension may take effect only following an opportunity for the faculty member to utilize the conciliation/mediation and hearing procedures as prescribed in ABOR Policy 6-201L.3 and L.4 (Conditions of Faculty Service; Hearing Procedures for Faculty, Conciliation/Mediation and Hearing). ABOR Policy 6-201(J)(1)(a). ¶22 The ABOR policy defines just cause as follows: b. Just cause shall include, but not be limited to, demonstrated incompetence or dishonesty in professional activities related to teaching, research, publication, other creative endeavors, or service to the university community; unsatisfactory performance over a specified period of time and a failure to improve that performance to a satisfactory level after being provided a reasonable opportunity to do so by the university, as demonstrated through the board-approved post-tenure review process; substantial neglect of or refusal to carry out properly assigned duties; personal conduct that substantially impairs the individual s fulfillment of properly assigned duties and responsibilities; moral turpitude; misrepresentation in securing an appointment, promotion, or tenure at the university; or proven violation of Board or university rules and regulations (including the code of conduct or any other disciplinary rules), depending upon the 9 or gravity of the offense, its repetition, or its negative consequences upon others. ABOR Policy 6-201(J)(1)(b) (emphasis added). ¶23 cause Cameron contends that the record does not support just for constitute her dismissal plagiarism, because (2) (1) her insufficient conduct evidence does not exists to sustain a violation under ASU s policies and rules, and (3) her termination was shockingly disproportionate to the offense. 2. The Superior Court Did Not Abuse Its Discretion In Determining That Cameron s Conduct Constituted Plagiarism Under University and ABOR Policy. ¶24 Cameron contends that she did not plagiarize anything. She asserts that she merely took material from other sources and incorporated it into her syllabus. there is no evidence to support Cameron also argues that the allegation that she knowingly violated ABOR Policy 5-302(11) as she did not consider a syllabus to be an academic exercise or scholarly work. 3 We do not find these arguments persuasive. ¶25 In reviewing the determination that Cameron committed plagiarism in violation of ABOR policy, we defer to an agency s reasonable interpretations of its own regulations. Pima County v. Pima County Law Enforcement Merit Sys. Council, 211 Ariz. 3 She also contends address this argument it in superior court. 199 Ariz. 21, 26-27, (declining to address first time on appeal). that the policy is vague. We do not on appeal because Cameron did not assert See Englert v. Carondelet Health Network, ¶ 13, 13 P.3d 763, 768-69 (App. 2000) a constitutional issue raised for the 10 224, 228, ¶ 18, 119 P.3d 1027, 1031 (2005). The ABOR rules define plagiarism as intentionally or knowingly representing the words or ideas of another as one s own in any academic exercise. ABOR Policy 5-302(11). In addition, the Academic Affairs Policies and Procedures Manual ( ACD Manual ) contains a Faculty Code of Ethics forbidding intentional misappropriations of the writings, research and findings of others and the use of creative achievements consultation and credit. ¶26 ABOR Policy of colleagues without appropriate ACD Manual 204-01. 5-302(11) is devoid of any requirement that plagiarism occur in the context of scholarly work. 4 policy s operative phrase is academic exercise. The Not only does a syllabus guide students through the subject matter, but it also becomes a part of a university faculty member s personnel file and serves as a basis for promotion and tenure decisions. Such evidence supports ASU s characterization of syllabus preparation as an academic exercise. ¶27 Witness determination that testimony the further plagiarism rule substantiates extends to the syllabi. Dandekar testified that she considers a syllabus to be scholarly work and would never use another professor s syllabus without 4 Allegations of plagiarism have previously arisen with respect to teaching statements accompanying a syllabus. Audrey Wolfson Latourette, Plagiarism: Legal and Ethical Implications For The University, 37 J.C. & U.L. 1, 65 (2010). 11 permission. Brooks and Reiter also testified that plagiarism applies in the syllabus format with equal force. ¶28 Cameron presented contrary testimony from her colleague, Dr. David Pijawka ( Pijawka ), another professor in the University s School of Planning. Pijawka testified that he did not consider the development of course syllabi to constitute a piece of scholarship; for rather, supplying a road map the there s no real substance. the course He professor and further subject opined is simply matter that and rules relating to plagiarism do not apply to material available online, and admitted that he University s plagiarism policy. was not familiar with the Also, Cameron testified that she saw this differently and had never heard of anyone being charged with plagiarizing a syllabus. ¶29 Cameron s presentation of not supply a basis for reversal. conflicting evidence does Even when two inconsistent factual conclusions could be supported by the record, there is substantial evidence to support that elects either conclusion. an administrative decision Kuznicki v. Ariz. Dep t of Transp., 152 Ariz. 381, 382, 732 P.2d 1119, 1120 (App. 1986) (quoting Webster v. State of Arizona Board of Regents, 123 Ariz. 363, 365-66, 599 P.2d 816, 818-19 (App. 1979)). case here. 12 That is the ¶30 As the record reflects, Cameron directly lifted extended quotes from a white paper and conference materials and used them without attribution in her syllabus for PUP494B in the Fall of 2006. quote from That syllabus contains the following unattributed the Clinton Administration s Policy on Critical Infrastructure Protection: Presidential Decision Directive 63, May 22, 1998: Critical infrastructures are those physical and cyber-based systems essential to the minimum operations of the economy and government. They include, but are not limited to, telecommunications, energy, banking and finance, transportation, water systems and emergency services, both governmental and private. Many of the nation s critical infrastructures have historically been physically and logically separate systems that had little interdependence. As a result of advances in information technology and the necessity of improved efficiency, however, these infrastructures have become increasingly automated and interlinked. These same advances have created new vulnerabilities to equipment failure,[5] human error, weather and other natural causes, and physical and cyber attacks. Addressing these vulnerabilities will necessarily require flexible, evolutionary approaches that span both the public and private sectors, and protect both domestic and international security. 5 In the original document, the Clinton Administration s Policy on Critical Infrastructure Protection, the word used is failures. The word used in Cameron s syllabus, however, is failure. 13 The same syllabus also duplicates the following statement of Dennis J. Reimer, Director of the National Memorial Institute for the Prevention of Terrorism, to the National Commission on Terrorist Attacks Upon the United States: Much has been said about the impact of 9/11 on our lives and little of what I have read and heard has been overstated. Whether 9/11 was a defining moment in our history or historians judge best at a later date but it has changed the way we live our lives now and for the foreseeable future.[6] There has been much discussion about why 9/11 occurred and could it have been prevented. Our dialogue will focus on trying to make tomorrow better, particularly residential development safer and not on making yesterday perfect. In order to do that the city planners and policy makers must recognize that it faces a unique challenge that will require fresh thinking and innovative approaches to develop a plan precisely for local government effort to prevent future 9/11s. ¶31 Nor does the fact that some plagiarized content originally appeared in a public domain source, such as the internet, provide a defense. As ASU points out, the very website from which Cameron copied much of her material cautions: All reproductions of work, in whole or in part, should be clearly identified. 6 In the original statement from Dennis J. Reimer, the sentence reads: Whether 9/11 was a defining moment in our history or not can best be judged by historians at a later date but it has changed the way we live our lives now and for the foreseeable future. This sentence was changed somewhat in Cameron s syllabus. 14 ¶32 Based upon this record, ASU could reasonably interpret ABOR Policy 5-302(11) and ACD Manual 204-01 as applicable to Cameron s action violated the and could standards. conclude We that she accordingly had repeatedly defer to that determination, and affirm Crow s ruling. See Pima County, 211 Ariz. 1031 at 228, ¶¶ 18-21, 119 P.3d at (accepting the council s interpretation of the burden of proof intended by the phrase to the satisfaction of the council ). ¶33 Cameron difference can insists exist that within complexities and the community academic shades of when crediting contributors for one s findings and interpretations. At times some subtleties may exist, but that only underscores the need for this court to defer to CAFT s findings. 3. Substantial Evidence Supports The Plagiarism Finding, Including Cameron s Concession That She Copied Other Professors Work Without Permission Or Attribution. ¶34 We now turn to Cameron s argument that no substantial evidence supports the plagiarism finding. she did not admit to plagiarism or Cameron contends that realize that her acts constituted plagiarism, and that CAFT erred in concluding that she had. ¶35 Cameron testified to CAFT, however: I ve spoken to a number of faculty persons both here at ASU as well as other institutions and they said they have never heard of such a thing as someone being 15 charged with plagiarizing don t deny I did it. ¶36 Additionally, that Cameron Cameron s intentionally and a own syllabi. Opening knowingly I Brief used create course syllabi without attribution. concedes materials to She also admitted that she started copying others work for her syllabi because she was being hammered by the University administration. ¶37 Irrespective plagiarism, committed the of record plagiarism whether supports Cameron ASU s repeatedly. admitted conclusion ASU s evidence to that she establishes that Cameron pieced together portions of several other authors syllabi in example. preparing her Fall 2006 PUP494B syllabus, for E-mails from the faculty members whose syllabi were copied establish that Cameron never obtained authorization to use the material, and most authors expressed concerns about the practice. Also, CAFT determined that she had committed plagiarism. In light of this record, we agree with the superior court that substantial evidence supports the plagiarism finding and just cause for Cameron s termination. See Agarwal v. Regents of Univ. of Minn., 788 F.2d 504, 505, 506, 508 (8th Cir. 1986) (affirming plagiarism the supported district the decision court s to determination terminate a that university professor s employment as the plagiarism ha[d] ended Professor Agarwal s usefulness to the University and, in and of itself, 16 [was] grounds for termination ); see also Korf v. Ball State Univ., 726 F.2d 1222, 1227-28 (7th Cir. 1984) (upholding the dismissal of a faculty member for violation of professional ethics); see generally Mark L. Adams, The Quest For Tenure: Job Security and Academic Freedom, 56 Cath. U.L. Rev. 67, 75-76 (Fall 2006) (violations of university policy provide a clearer case for cause to dismiss than incompetence). ¶38 We conclude that the evidence of record pertaining to plagiarism sufficiently supports ASU s termination of Cameron. 4. Substantial Evidence Supports the Finding That Dr. Cameron Improperly Administered a Course Evaluation and Retaliated Against Two Students. ¶39 Cameron argues that no substantial evidence exists to support Crow s finding that Cameron improperly administered the course evaluation. She further contends that Crow ignored CAFT s findings on the issue. ¶40 ACD Manual 304-09 states: The administration [of evaluations] procedure should assure the students ability to respond forthrightly and anonymously. The evaluation should be distributed and collected by someone other than the instructor; [and] the or its summary prior to submitting grades for the course . . . . In addition, instructor the School should of not see Planning s the evaluation Course Evaluation Form Instructions require the faculty member to designate a student to distribute the forms, read 17 the instructions aloud, and collect and return them to the College of Design s office. The faculty member must leave the classroom before the process starts. ¶41 CAFT found that no violation had occurred. According to Cameron, the superior court should have deferred to CAFT s ability to assess witness credibility and discretion in rejecting CAFT s findings. Crow abused his See Ritland v. Ariz. State Bd. of Med. Exam rs, 213 Ariz. 187, 190, ¶ 10, 140 P.3d 970, 973 (App. 2006) (explaining the rationale for deferring to the administrative law judge s factual findings on witness credibility). ¶42 CAFT The problem here is not one of credibility. concluded that no evidence supported the Rather, charge, and thereby ignored testimony from Yabes and Students A and E that Cameron had distributed evaluation forms herself and had remained in the room the entire time that the students in her Fall 2006 PUP361 class were completing the forms. Even Student F, a witness for Cameron, provided corroboration that Cameron had read the evaluation instructions to the class. Brooks also testified that the uniformly favorable reviews from that class were suspect in light of Cameron s poor scores in previous semesters. ¶43 These Crow s decision. facts provide substantial evidence to support See Carley v. Ariz. Bd. of Regents, 153 Ariz. 18 461, 466-67, university Although 737 P.2d president s Cameron can 1099, 1104-05 rejection point of to (App. CAFT s evidence 1987) (affirming factual findings). supporting conclusion, it does not entitle her to reversal. another See Kuznicki, 152 Ariz. at 382, 732 P.2d at 1120. ¶44 Cameron also asserts that no substantial evidence supports the finding that she retaliated against two students. Specifically, she argues that Crow ignored CAFT s recommendation that no evidence supported such a charge. ¶45 ASU s Faculty intimidation of students. Code of Ethics prohibits the ACD Manual 204-02 states that faculty must recognize that students are individuals and are entitled to an atmosphere conducive to learning and to even-handed treatment in all respects of the teacher-student relationship. Moreover, faculty members must demonstrate respect for students as individuals and are prohibited from participating in or deliberately abetting disruption, interference, or intimidation in the classroom. ACD Manual 204-01. In applying this policy, CAFT concluded that no evidence of harassment existed that would support the charge of retaliatory conduct against her students. ¶46 Student A s testimony and e-mail, which CAFT accepted, recounts that Cameron called out two students, Students A and E, after class and asked one of them to leave the class. 19 This incident occurred after Student A had shared private concerns about Cameron with the University administration. ¶47 Instead of rejecting Student A s testimony as not credible, CAFT stated that it did not share his/her belief that Cameron s actions characterize were Cameron s retaliatory. actions and Crow could was entitled consider to Cameron s action against Student E as retaliatory. ¶48 Furthermore, Cameron is incorrect in asserting that Crow arbitrarily dismissed the evidence from Students A, E, and F. Crow s review of the evidence disclosed no basis to conclude that any of these other students had observed the relevant exchange. B. The Superior Court Did Not Affirming the Choice of Sanction. ¶49 Abuse its Discretion in Cameron also challenges ASU s decision to dismiss her in lieu of imposing a lesser sanction through the post-tenure review process. 7 As a threshold matter, she contends that ASU s decision is shocking to one s sense of fairness under Petras v. Arizona State Liquor Board, 129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981). The Arizona Supreme Court has recently 7 We reject ASU s assertion that Cameron failed to preserve this issue in the superior court. Throughout this case, Cameron has maintained that Crow erroneously rejected CAFT s recommendations, which called for actions short of dismissal. For example, Cameron complained in her superior court opening brief that Crow reversed CAFT s determination that dismissal was excessive and therefore inappropriate. 20 explained in Maricopa County Sheriff s Office v. Maricopa County Employee Merit System Commission, that the shocking standard was an imprecise attempt at further defining the arbitrary and without reasonable cause standard. 211 Ariz. 219, 223, ¶ 20, 119 P.3d 1022, 1026. ¶50 Rather, courts must apply the objective standard of A.R.S. § 12-910(E) and reverse if the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion. Coplan v. Ariz. State Bd. of Appraisal, 222 Ariz. 599, 602, ¶ 8, 218 P.3d 1056, 1059 (App. 2009) (upholding the board s discipline of a licensee). Moreover, this court will not disturb an penalty absent a clear abuse of discretion. 218 P.3d at 1060 (citations omitted). agency s choice of Id. at 603, ¶ 12, In other words, we will affirm an agency s choice of discipline so long as it falls within the reflects permissible that the range party of sanctions committed and the sanctionable evidence conduct. Maricopa County Sheriff s Office, 211 Ariz. at 222-23, ¶ 16, 119 P.3d at 1025-26. Under such circumstances, a unlikely to be arbitrary or without reasonable cause. ¶51 In expressed making addition, their by personnel. a we reticence university note to that [v]arious intervene concerning the in sanction Id. courts academic retention of have decision teaching Carley, 153 Ariz. at 464, 737 P.2d at 1102. 21 is Such reluctance stems from the belief that such decisions are best made by those who have expertise in education. Id. (citations omitted). ¶52 As explained previously, ABOR Policy 6-201(J)(1)(a) and (b) expressly authorize termination for just cause, which includes dishonesty teaching. Cameron in professional Substantial committed evidence plagiarism activities supports as the defined by related finding ABOR to that and the University, and this conduct in turn qualifies as dishonesty in teaching-related dismissal professional sanction was not activities. arbitrary Accordingly, or without the reasonable cause. II. The Exclusion Of Cameron s Plagiarism Expert Did Not Deprive Her Of Due Process. ¶53 Cameron testimony from ( Wueste ), proposed issues at also her before plagiarism its testimony challenges hearing. [did] the CAFT s expert, CAFT not to be According decision deprived her of due process property interest in her job and her not to exclude Daniel Dr. reasoned appear committee. decision Wueste that relevant to Wueste s to Cameron, the this withstanding liberty interest her in continued employment. ¶54 To substantiate a violation of procedural due process, Cameron must prove a denial of the opportunity to be heard at 22 a meaningful time and in a meaningful manner. Comeau v. Ariz. State Bd. of Dental Exam rs, 196 Ariz. 102, 106-07, ¶ 20, 993 P.2d 1066, 1070-71 (App. 1999) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Cameron does not dispute that ASU followed the dismissal hearing procedures. ¶55 Cameron instead rests her argument on the exclusion of Wueste s testimony opportunity plagiarism to because present as academia. it Such CAFT University and her is an also claims that own opportunity Professors was not on what evidence universally relied she understood was upon the ( AAUP ) and required, American Statement allowed the constitutes applied she in contends, Association concerning of the complexities and shades of difference inherent in attributing sources. 8 ¶56 apply As Cameron acknowledges, the Rules of Evidence do not in an ABOR proceeding. Consequently, CAFT had exceptional discretion to determine whether a witness could provide expert Chiropractic testimony. Exam rs, 182 See Ariz. 8 Lathrop 172, 181, v. Ariz. 894 P.2d Bd. of 715, 724 The University cited the AAUP Statement on Plagiarism in its April 10, 2007 correspondence with Cameron and in the September 7, 2007 notice of dismissal, yet did not rely upon the statement as evidence of the standard of care at the hearing. There, CAFT consistently focused upon whether ABOR and the University s plagiarism standards were violated. The University mentioned the statement in its written closing argument only as authority for the damaging impact of plagiarism, not as a basis for the standard of care. 23 (App. 1995) (recognizing the agency s ability to conduct a hearing without adhering to the rules of evidence); A.R.S. § 411092.07(F)(1) (Supp. 2010) ( A hearing may be conducted in an informal manner and without adherence to the rules of evidence required in judicial proceedings. ). ¶57 The Cameron of defense. exclusion due of process by Wueste s evidence precluding her did from not deprive presenting a Both Cameron and Pijawka presented testimony to CAFT. As detailed previously, Pijawka testified that syllabi are not scholarly works and have no real substance. Cameron also disputed that a syllabus can provide the basis for a plagiarism charge. Unlike Cameron and Pijawka, Wueste had never been a professor at the University and thus his testimony regarding the larger academic world would not likely have been helpful or persuasive to CAFT. ¶58 In any event, CAFT and Crow were qualified to evaluate whether Cameron had violated ABOR without the assistance of Wueste. (2004) ( The specialized agency s knowledge experience, may be and the University policy See A.R.S. § 41-1062(A)(3) technical utilized in the competence evaluation and of evidence. ); see Lathrop, 182 Ariz. at 181, 894 P.2d at 724 (holding that three chiropractors sitting on a board could rely upon their issues). own expertise in resolving the case s medical To the extent that ASU relied on the AAUP Statement on 24 Plagiarism, CAFT and Crow were equally equipped to interpret the standard without Wueste s aid. See id. In light of this record, we cannot say that the exclusion of Wueste s evidence deprived Cameron of due process or amounted to a clear abuse of discretion. We accordingly decline to reverse on this basis. 9 III. The Superior Court Did Not Abuse Its Discretion In Excluding The Arntzen Documents. ¶59 to Cameron also challenges the superior court s failure incorporate administrative review de statute. documents record novo the under concerning A.R.S. superior § court s Arntzen 12-910(B) into the (2003). We interpretation of the Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 408, ¶ 8, 4 P.3d 460, 463 (App. 2000). ¶60 The of exhibits admitted as evidence at the administrative hearing. A.R.S. § 12-904(B)(3). administrative record consists Although Cameron obtained the Arntzen documents during the CAFT hearing, she did not move for their admission at the administrative stage or question a witness about them. Consequently, even though CAFT had received the materials under seal, it never ruled on their admissibility and did not include them in the administrative record or supplemental administrative 9 Cameron also alludes to the fact that the hearing on her dismissal appeal was not held within 45 days of her notice of appeal pursuant to ABOR 6-201(L)(4)(a). Cameron did not raise any objections with CAFT and in fact asserted that she has not had sufficient time to adequately prepare for the Dismissal hearing. 25 record. When written closing responded. Cameron attempted argument over to use ASU s the material objection, she in her never We affirm the finding that the administrative record did not include these documents. See State v. Wilson, 200 Ariz. 390, 394 n.2, ¶ 9, 26 P.3d 1161, 1165 n.2 (App. 2001) (holding that the appellate record did not include videotapes that were never offered as exhibits or viewed or considered by the court). 10 ¶61 Nor can we agree that the superior court misapplied A.R.S. § 12-910(B) in denying Cameron s motion to supplement the administrative record with the Arntzen documents. The statute provides: Relevant and admissible exhibits and testimony that were not offered during the administrative hearing shall be admitted, and objections that a party failed to make to evidence offered at the administrative hearing shall be considered, unless either of the following is true: 1. The exhibit, testimony or objection was withheld for purposes of delay, harassment or other improper purpose. 2. Allowing admission of the exhibit or testimony or consideration of the objection would cause substantial prejudice to another party. 10 As ASU points out, any misunderstandings Cameron may have harbored as to the contents of the administrative record were dispelled by ASU s objection on May 8, 2008, when she first attempted to use the materials in her written post-hearing summation. 26 ¶62 Accordingly, the threshold question was whether the Id. Rule evidence to be included is relevant and admissible. 401 provides that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ¶63 Ariz. R. Evid. 401. In this case, Cameron sought the Arntzen material to support an alleged prosecution and punishment in violation of her equal protection rights. The elements of that claim include: (1) absence of action against others similarly situated to Cameron, and (2) selective action against Cameron was based upon impermissible grounds, State v. Montano, 204 Ariz. 413, 428, ¶ 78, 65 P.3d 61, 76 (2003), standard such as race, religion, Bordenkircher classification. v. (1978) (citation omitted). all offenders supplies protection claim. ¶64 ASU such as an unjustifiable Hayes, a 434 arbitrary U.S. 357, 364 no basis for relief on an equal Oyler v. Boles, 368 U.S. 448, 456 (1962). contends Arntzen, other A mere claim of failure to prosecute that the Arntzen relevant to the equal protection claim. that or male Caucasian materials are not This evidence reflects professor, had denied co- authorship credit in a journal article for work on which he had collaborated with a graduate student. 27 After the student complained, Arntzen promptly credited him. isolated incident, as opposed to The case involved an repeated violations of the plagiarism policy, and did not result in Arntzen s termination. ¶65 Even if we found the Arntzen case materials had some relevance to the equal protection claim, Cameron stipulated that issues of race, gender, and disability were not part of the administrative proceeding. Furthermore, admitting the material after the CAFT hearing would be substantially prejudicial to ASU because the latter received no opportunity to create a record at the CAFT hearing with respect to the evidence. 910(B)(2). court s Accordingly, refusal to we find supplement no the error See A.R.S. § 12with the administrative superior record with this evidence. IV. Cameron Was Not Entitled To Complete the Post-Tenure Review Process Prior to Her Dismissal or Receive a Name-Clearing Hearing. ¶66 Finally, Cameron contends that before ASU could terminate her employment for performance-related issues, it was required to first conduct a post-tenure review procedure and afford her a name-clearing hearing. ¶67 tenured ABOR 6-201(J)(1)(b) faculty member can dismissal is considered. detailed in includes the ACD Manual creation affords a process demonstrate by improvement which a before The post-tenure review process, as 506-11, and consists implementation 28 of six of a steps. It performance improvement plan to address deficiencies, ABOR 6-201(H)(1)(c), with a recommendation individual manner. fails ABOR to for dismissal achieve made the outlined 6-201(H)(1)(d). goals The only after in introduction a to the timely the ACD Manual 506-11 addresses this eventuality: If an individual s performance becomes unsatisfactory, the faculty member has a responsibility, shared with the university, to improve performance. Every attempt should be made to support the faculty member in this performance improvement. Only after the improvement process has clearly failed should dismissal be considered. ¶68 The post-tenure review process is designed to ensure accountability through emphasis on sustained high quality performance and opportunities for continued faculty development, as well as to provide additional accountability university community, the public, and the board. to the ABOR 6-201.H. As Reiter explained, post-tenure review is for adjustments of performance. ¶69 It doesn t deal with the issue of plagiarism. The University initiated Cameron s post-tenure review process before it became aware of the academic retaliation, and course evaluation issues. the process. dishonesty, It did not complete CAFT then concluded that the post-tenure review issues were moot. ¶70 must The ABOR policies do not state that the University follow post-tenure review 29 process through to completion once initiated, regardless of intervening circumstances, such as identification of repeated instances of conduct sanctionable by termination under ABOR 5-301 and ABOR 5-503. What the ABOR policies do provide is a basis for distinguishing grounds for dismissal based upon unsatisfactory teaching performance, which includes six steps for remediation, from misconduct triggering the for cause termination procedures. charges ASU complied with the just cause termination procedures. ¶71 Accordingly, we conclude that Cameron is not entitled to use the post-tenure process as a shield to insulate herself against procedures purview of that for independent process. Once misconduct ASU outside the ascertained grounds for termination, it properly concluded that any post-tenure review was moot. ¶72 name Cameron clearing also contends hearing. that When a she was dismissal entitled is to based a upon dishonest conduct, an employee s liberty interest in continued employment, secured implicated. Bd. (1972). order In of by the Regents to prove Due v. Process Roth, damage to 408 Clause, U.S. this 564, may be 573-74 interest, the stigmatizing information must be made public by the offending governmental entity. See, e.g., Rich v. Sec y of Army, 735 F.2d 1220, 1227 (10th Cir. 1984) (finding no infringement of a protected liberty interest because the plaintiff publicized his 30 homosexuality and the circumstances of his termination). Placement of stigmatizing information in a personnel file may suffice if the public has access to it. Cox v. Roskelley, 359 F.3d 1105, 1109 (9th Cir. 2004). ¶73 Cameron s conduct. hearing. She is dismissal not was entitled, based in however, part to a on dishonest name-clearing The record reflects that Cameron requested that the hearing be public and publicized her case in the press on August 13, 2008. Moreover, the name-clearing cases cited on page 47 of her Opening Brief are distinguishable: the employees in those cases received neither a pre-termination nor a post-termination hearing. 11 See, e.g., id. ¶74 We conclude entitled to the received a two-day represented evidence, argument. by on this post-tenure hearing counsel, cross-examine and or record that Cameron name-clearing from CAFT, exercised witnesses, her and in was not hearings. She which was rights present she to present a closing We find no due process violation, and uphold the decision denying Cameron s grievance and her dismissal. See Newman v. Burgin, 930 F.2d 955, 960 (1st Cir. 1991) (finding no due process violation because 11 the professor accused of Cameron contends that a clear and convincing standard of proof should have applied at the name-clearing hearing. Assuming, without deciding, that a clear and convincing standard of proof applied, the plagiarism evidence presented to CAFT would support a plagiarism finding under that standard. 31 plagiarism had the opportunity to present her version of the facts, challenge the decision makers for bias, call witnesses, criticize the evidence, and raise arguments); Aragwal, 788 F.2d at 508 (finding that a tenured professor received notice of the charges, was represented by counsel, and exercised his rights to present evidence and to call and cross-examine witnesses). CONCLUSION ¶75 We affirm respects and deny the superior Cameron s court s request for judgment attorneys in all fees on appeal. _____/s/_________________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge __/s/______________________________ PATRICIA A. OROZCO, Judge 32

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