Higgins' "private investigation" ...

Except as noted below, none of this information is new. It was all presented to David Higgins and Susan May (the Investigative Committee Chair).

Background

After informing the Dean's Office of my plan to use my developing textbook at MacEwan, the Chair and I discussed logistics. One concern was ensuring student learning was not negatively affected, and we agreed that an obvious way to do this was to have some common assignment questions. Since the assigned questions were from the current textbook (General Chemistry, by Petrucci), I adapted a few questions into my developing textbook to monitor student learning. The questions were adapted to my style of asking questions, and often only the concept was taken, with the numerical data and question focused changed. 

It is a common practice in science textbook development to get ideas from existing instructional resources and adapt them into other instructional resources, including commercial resources.

Below are some examples of similar questions taken from existing commercial textbooks, published by competing commercial publishers. Once you start looking for them, you will discover that this commonly occurs. And very likely, the question is not original to either of the textbooks; the respective author based their question on an earlier instructional resource.

These questions are too similar to be coincidences. Who copied from whom? Or more correctly, from what other source did these authors obtain the idea and data for their question? How many other textbooks have similar questions? (Answer: most, if not all.) Who is the original creator of the question? Answers to these questions are critical when considering allegations of copyright infringement and plagiarism.

Looking specifically at the last question. This 'Gimli Glider' question is commonly used to emphasize the importance of units in calculations. (So is a question based on the Mars Lander that crashed.) I highly doubt either author was directly involved in the accident investigation, so they got the data from somewhere. The citation expectations for textbooks differ from the expectations of scholarly articles. Indeed, it is scholarly articles that have different citation expectations when looking at everything that is published. And to all the scientists reading this: there is no way a dipstick is accurate to four significant digits. Two maybe. (Two sig figs corresponds to an uncertainty of 1 %. The dipstick is likely accurate to between 2 % and 5 %.) My version of this question accurately reflects the uncertainty in the measurement: 7700 L.

Legal considerations

The FOIP records show that MacEwan Administration's external attorney provided Sullivan, Higgins, Paterson-Weir, and MacEwan Human Resources with an arbitration decision, with circumstances very similar to my own, that exonerated the faculty member of any wrongdoing. These Administrators suppressed this information and forged ahead.

MacEwan attorney's legal opinion and cited arbitration decision

The legal opinion accompanying the arbitration decision is heavily redacted, but comments from a MacEwan employee, likely Paterson-Weir, indicate it was not what MacEwan wanted to hear. I interpret this to mean that the external attorney did not believe MacEwan had sufficient cause to terminate me.

Sullivan, Higgins, Paterson-Weir, and MacEwan Human Resources knew that I had not committed academic misconduct. They willfully ignored and suppressed this evidence.

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Jonathan Siegel is a law professor at George Washington University. Siegel argues that the law distinguishes between negligence and intentional wrongdoing.

For example, in property law, it isn’t theft if you didn’t intend to take someone else’s property. Imagine being in a store and absentmindedly put an object in your pocket while talking with a friend or while trying to console your child. Security stops you outside the store. It’s embarrassing and humbling, but it isn’t theft since it wasn’t your intention to steal.

Siegel argues that the same rationale should apply to plagiarism. While we strive to be perfect, we do make mistakes. If it can be shown or suggested that a person was negligent in failing to cite a source, it’s embarrassing and humbling, but it isn’t plagiarism because it wasn’t intentional.

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    Discovered after. The Alberta court case of Plews v. Pausch (2006 ABQB 607) specifically addresses academic plagiarism. In it, the judge lays out criteria for determining if plagiarism has occurred:

    1. If the tribunal believes the defendant, the defendant is not guilty.
    2. If the tribunal does not believe the defendant, but the defendant has raised sufficient questions about the complainants' evidence so that the credibility is in doubt, the defendant is not guilty.
    3. If the tribunal does not believe the defendant, the complainant must still satisfy the tribunal that their version of events is more probable, or the defendant is not guilty.
    4. Only if the tribunal believes the complainant and is satisfied that the complainant's version of the events is most probable is the defendant guilty.

    This test clearly puts the burden of proof on the complainant, which is consistent with established legal principles and practices: innocent until proven guilty.

    A colleague brought this case to my attention; it was the first decision returned when 'plagiarism' was typed into LawSource (a law database available at MacEwan and other Universities). Three attorney's were working on my file: two from MacEwan and one from the FA. Why didn't any of them find this case? Or did they?

    Being in the business of instructional material development, Pearson Education should have known about this decision, yet they failed to communicate this to MacEwan. This showcases Pearson Education as a biased respondant and the failure of MacEwan Administration by involving Pearson Education.

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    Discovered after. Robert Morrison and Graham Solomons each author an organic chemistry textbook. In 1980, Morrison sued Solomons for copyright infringement and plagiarism. Morrison documented over 800 instances of copying, and argued that these instances, the similar chapter structure, and similar book organization proves copying. 

    The copyright and plagiarism case of Morrison v Solomons

    The suit was wholly dismissed. The judge gave numerous reasons — reasons that also apply in my situation; reasons that I tried to make; reasons that MacEwan Administrators dismissed and/or prevented me from making — for dismissing the case. Some of the reasons are given below.

    • The defendant had no reason to plagiarize.
    • The chapter problems dealt with matters fundamental to the subject or essentially simple, which other authors also used.
    • Similar chapter problems were in other textbooks as well.
    • The plaintiff identified similarities, but it is not possibly to copyright ideas and information. Nor is it possible to copyright items inherent in the subject being taught. 
    • The defendant openly admitted using the other textbook, and many other textbooks as well, to see how information was presented and for data and numbers. The judge found this to be an acceptable — laudable — practice.

    If I have seen further, it is by standing on the shoulders of giants. — Isaac Newton

    Basically, the Morrison v Solomons case recognized that books on the same subject will be similar and even identical in some cases. This is neither copyright infringement nor plagiarism. If it was, the first author would have a monopoly on the subject, and that is not a reasonable conclusion.

    Three attorney's were working on my file: two from MacEwan and one from the FA. Why didn't any of them find this case? Or did they?

    Being in the business of instructional material development, Pearson Education should have known about this decision, yet they failed to communicate this to MacEwan. This showcases Pearson Education as a biased respondant and the failure of MacEwan Administration by involving Pearson Education.

    Higgins' accusation and private investigation

    Higgins scheduled a meeting for 01 February 2011. I requested details about the meeting so that I could prepare for it. In previous meetings, I felt at a disadvantage by not knowing what was coming, and it was always negative.

    ——————————————————————
    To: David Higgins
    From: ΑΩ
    Cc: Sean Hillman, Brian Pearson
    Date: Mon, 31 Jan 2011, 11:24
    Subject: Re: Meeting

    Dr. Higgins

    It is evident that I will be at a significant disadvantage not knowing what you plan to bring up at tomorrows meeting. In fairness, I would appreciate this information so that I can prepare for tomorrow’s meeting. This will also expedite the meeting and -- potentially -- negate the need for the meeting, depending on what you plan to bring up.

    Thank-you,
    ΑΩ

    ——————————————————————
    To: ΑΩ
    From: David Higgins
    Cc: Sean Hillman, Brian Pearson
    Date: Mon, 31 Jan 2011, 13:32
    Subject: Re: Meeting

    Hello ΑΩ,

    I’m pleased to assure you that there is nothing to prepare. The point of the meeting, simply, is to get your response to some student comments about an e-mail which they have received.

    Thank you,
    David

    ——————————————————————
    At the 01 February 2011 meeting, in an aggressive and demanding tone, Dr. Higgins accuses me of violating FOIP and plagiarism. He demands information and demands I admit guilt. Sean Hillman took notes and said nothing. 

    Higgins accused me of plagiarizing from the textbook in use at MacEwan (General Chemistry by Petrucci) to my developing textbook. His first accusation was that I plagiarized the entire book, including the layout and chapter sequence. I explained that, if he compared the layout between several  first-year textbooks, he would find numerous similarities in layout, sequence, and content — the same concepts are taught in generally the same matter with some common examples. (benzene for resonance, acetic acid for weak acid equilibria, etc.) I also explained that Petrucci was organized 'reactions first', while my textbook was 'atoms first'. I further explained that my textbook was actually quite different from the common commercial textbooks. I was focused on real world chemistry, scientific accuracy, and I had replaced the optional chapters at the end of the book with chapters on applications of chemistry. I offered to bring Higgins the dozen or so different first-year textbooks I had in my office so he could see for himself. This accusation never resurfaced.

    Higgins is a historian. 

    Higgins second accusation was that I plagiarized questions from Petrucci. I explained what is stated above: that the Chair and I agreed to put some common questions to ensure student learning wasn't affected; that I had adapted all of the questions to my style; that data was not governed by copyright; etc. Higgins aggressively dismissed these arguments and demanded that I provide him with some of the questions I had adapted. I complied. In that letter, I mention that “nothing to prepare” was quite misleading.

    ——————————————————————
    To: ΑΩ
    From: David Higgins
    Date: Mon, 14 Feb 2011 11:28
    Subject: My reply

    Hello ΑΩ,

    Thank you for the examples of questions which were adapted from other sources for use in <your textbook>. Once the inquiry is finished I will be in touch to arrange a meeting.

    I would note our difference concerning the usefulness of ‘preparation’ for our previous meeting.

    David

    ——————————————————————
    What is meant by this? Did Higgins intentionally mislead me as to the nature of the meeting so that he had me at a disadvantage? This would be a violation of Policy D1100 (Respectful workplace).

    In the email exchange below. I again ask what the process will be. 

    ——————————————————————
    To: David Higgins
    From: ΑΩ
    Date: Tue, 15 Feb 2011 09:02
    Subject: My reply

    David

    Would you please detail the nature of this inquiry.

    ΑΩ

    ——————————————————————
    To: ΑΩ
    From: David Higgins

    Date: Tue, 15 Feb 2011 09:23

    Subject: My reply

    Hello ΑΩ,

    As you are aware from our last meeting, this inquiry concerns your use of student information and the method you used in developing materials for <your textbook>.

    David

    ——————————————————————
    To: David Higgins
    From: ΑΩ
    Date: Tue, 15 Feb 2011 09:45
    Subject: My reply

    David

    Sorry, I meant the structure of the inquiry itself: who will be involved and will there be opportunities for me to provide follow-up information?

    Thank-you,
    ΑΩ

    Higgins never responded to this email.

    ——————————————————————
    Higgins contacted Pearson Education (the publisher of Petrucci) for their input. At a meeting on 15 March, Higgins and Brian Pearson presented the results of Pearson Education's review: Pearson Education identified 23 questions of over 500 that they reviewed that were "similar" to questions in Petrucci and deemed them to have been plagiarized. Higgins aggressively and repeatedly demanded that I admit that I plagiarized from Petrucci. When I said I had not, he became louder and repeated his demand.

    A selection of the questions identified by Pearson Education as plagiarized are below.

    Activating the policy

    After the 15 March meeting, I was informed by a colleague about MacEwan policy C5051 (Responsible Conduct of Research and Scholarly Activity).

    ​During a meeting on 01 April, Higgins and Brian Pearson (HR Director) strongly encouraged me to accept a resignation package. It was at this meeting that I inquired why policy was not being followed. After the meeting, Zdril and I drafted this summary.

    The meeting began at around 10:10 with Brian Pearson, David Higgins, Jerry Zdril, and myself present. The meeting with David present lasted about 10 minutes. 

    Brian outlined the resignation package, stated that the deadline for accepting the package was extended to noon on Wednesday, 06 April. After outlining the package and the deadline for accepting the package, Brian stated, 'ΑΩ, the time for you to have any control of your future at MacEwan is very quickly drawing to a close. After that, you will not have any control over what happens to you.'

    Brian stated that my response document was still due on Friday, 01 April, but that the meeting had also moved to Wednesday. Referring to what the process would be, Brian stated, "If we determine that plagiarism occurred, we will move to terminate your employment with MacEwan." Brian repeated this statement several times when Jerry inquired about Administrations intentions.

    David Higgins left at this point. 

    After Higgins left, I presented Brian with policy C5051 and asked why the procedure in C5051 was not being followed. Brian stated that C5051 would be activated if appropriate, once they (Brian and David) had concluded their private investigation, and that they were still investigating. I commented that the present situation appears to be a textbook case for the process in C5051. I don't remember the exact language, but Brian gave the clear impression that it was Administrations prerogative if and when C5051 would be applied, if at all.

    I argued that C5051 should have been applied when the allegation was first brought forward. Brian adamantly refused to discuss process and reiterated that Administration determines when policies are activated.

    The meeting concluded after about 15 minutes.

    Simply, Pearson strongly argued that MacEwan Administrators have the right to activate and deactivate policies at their discretion, and that Higgins was conducting a "private investigation". I was shocked and complained to Paterson-Weir. Higgins quietly dropped his "private investigation" and informed me he was "invoking policy C5051."

    • The similarities between questions is no greater than in the questions between commercial textbooks. That is, this practice is common amongst science textbook authors.
    • Every question Pearson Education found, except two, was a question that was assigned to MacEwan students. That is, Pearson Education blindly identified the questions that were knowingly adapted from Petrucci into my textbook for the express purpose of monitoring student learning. 
    • The questions and data are likely not original to Petrucci.
    • Information and data are not copyrightable.

    Observations on conduct

    • At both the 01 February and 15 March meetings, I repeatedly tried to explain the discussion and decision with the department Chair and put events in context. Higgins refused to let me finish speaking. He would always cut me off mid-sentence and aggressively and repeatedly demanded that I admit to plagiarism.
    • At the 15 March meeting, Brian Pearson advised me that, if Higgins found me guilty, MacEwan would move to terminate my employment.
    • Higgins gave me only three days to respond to Pearson Education's review. THREE DAYS! I pleaded for more time and was given two weeks. (Here, the FA did say that 3 days was not sufficient given the volume of evidence and severity of the allegation.)
    • The week after the 15 March meeting, Higgins offers me a resignation package. 
    • In the 01 April letter, Higgins stated he was preparing to rule on the plagiarism allegation. 
    • At the 01 April meeting, Higgins and Pearson encourage me to accept a resignation package, state they are going to rule on the plagiarism allegation, and state that, if found guilty, they will terminate my employment.

    The above actions are not the actions of an investigator. Higgins is intent on being the arbiter as well, and clearly showing his opinion. 

     

    And through all these policy and process violations, the FA Executive refused to get involved.