PIMA COUNTY et al v PIMA COUNTY LAW ENFORCEMENT SYSTEM et al
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SUPREME COURT OF ARIZONA En Banc PIMA COUNTY, a political subdivision of the State of Arizona, and CLARENCE DUPNIK, PIMA COUNTY SHERIFF, ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) PIMA COUNTY LAW ENFORCEMENT ) MERIT SYSTEM COUNCIL and GEORGIA ) BROUSSEAU, MICHAEL HELLON, ) HERSCHELLA HORTON, ROSEMARY ) MARQUEZ, PAUL JULIEN, and JAMES ) WATSON, in their official ) capacities, and acting as Pima ) County Law Enforcement Merit ) System Council, ) ) Defendants/Appellees, ) ) JOSEPH HARVEY, ) ) Real Party in Interest. ) __________________________________) Arizona Supreme Court No. CV-04-0356-PR Court of Appeals Division Two No. 2 CA-CV 04-0004 Pima County Superior Court No. C20031396 O P I N I O N Appeal from the Superior Court in Pima County The Honorable Leslie B. Miller, Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division Two 209 Ariz. 204, 99 P.3d 19 (App. 2004) VACATED ________________________________________________________________ GABROY, ROLLMAN & BOSSà , P.C. By John Gabroy Lyle D. Aldridge Richard A. Brown Attorneys for Pima County and Clarence Dupnik, Pima County Sheriff Tucson COREY & KIME By Barry M. Corey Michelle S. Michelson Jason E. Smith Attorneys for Pima County Law Enforcement Merit System Council, Georgia Brousseau, Michael Hellon, Herschella Horton, Rosemary Marquez, Paul Julien, and James Watson Tucson PICCARRETA & DAVIS P.C. Tucson By Michael L. Piccarreta Jefferson L. Keenan Michael W. Storie Attorneys for Joseph Harvey ________________________________________________________________ B E R C H, Vice Chief Justice ¶1 This case arises out of the dismissal of Deputy Sheriff Joseph Harvey from the Pima County Sheriff s Office. We granted review to decide whether Pima County Law Enforcement Merit System Council ( LEMSC ) Rule XIII-4(I), which gives the Council broad discretion to revoke or modify the employer s disciplinary action, is consistent with recognized merit system principles of public employment, as required by Arizona Revised Statutes ( A.R.S. ) section 38-1003 (Supp. 2004), and therefore whether the Council s reinstatement of Deputy Harvey was lawful. We conclude that Pima County LEMSC Rule XIII-4(I) is consistent with A.R.S. § 38-1003. - 2 - I. ¶2 FACTS AND PROCEDURAL BACKGROUND Deputy Harvey testified in a criminal case that to effectuate an arrest, he had hit the arrestee with the butt of his gun and later slapped the handcuffed, shackled, and wounded man. He stated that he slapped the arrestee not only to elicit incriminating statements, but also to keep the arrestee from losing consciousness before medical personnel arrived. ¶3 After reviewing that testimony and other reports of the incident, Pima County Sheriff Clarence Dupnik concluded that Deputy Harvey had used excessive force, engaged in inappropriate interview techniques, and showed poor judgment. to terminate Harvey s employment. the arrest incident and also Dupnik decided The termination notice cited alleged other rule and policy infractions, including Harvey s career-long pattern of failure and/or unwillingness to comply with Department Rules and Regulations, his disregard of commands from a fellow officer, his absence without leave to drive an intoxicated friend home, and his inclusion of false information on booking forms. ¶4 Harvey appealed his termination to the Pima County Law Enforcement Merit System Council. He testified before the hearing officer that he had slapped the arrestee to revive him, not solely to elicit incriminating statements. Officers who witnessed the incident corroborated Harvey s account. enforcement supervisors, however, - 3 - testified that Some law slapping a suspect is not an acceptable way to render first aid. Harvey did not deny the other accusations of misconduct, but minimized them. He occurred questioned nearly the eighteen timing months of his after termination, the incident which with the arrestee. ¶5 The hearing officer accepted Harvey s version of the slapping incident and found that it did not warrant discipline. For the other infractions, the hearing officer recommended the imposition of lesser sanctions than dismissal. The Council unanimously adopted the hearing officer s recommendations. ¶6 Pima County and Sheriff Dupnik sought review by filing a special action in the superior court. Finding no arbitrary or capricious actions by the Council or abuse of the Council s discretion, the court denied relief. ¶7 Pima County and Sheriff Dupnik appealed. The court of appeals reversed the superior court decision, concluding that A.R.S. § 38-1003, which limits the Council s authority to those powers exercised pursuant to recognized merit system principles of public imposed employment, by the requires Sheriff. Pima deference County v. to the Pima discipline County Law Enforcement Merit Sys. Council, 209 Ariz. 204, 208, ¶¶ 13-14, 99 P.3d 19, 23 (App. 2004) ( Harvey ). The court of appeals examined several merit system cases, from which it deduced that the legislature had recognized review of employer actions by - 4 - the arbitrary and capricious standard of review as a merit system principle. therefore Id. at 208-09, ¶ 16, 99 P.3d at 23-24. concluded that a similarly deferential standard It of review was required for all merit system councils and that the less deferential standard of review set forth in LEMSC Rule XIII-4(I) violated A.R.S. § 38-1003. Id. at 210, ¶ 22, 99 P.3d at 25. ¶8 We granted review. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003). II. ¶9 The powers and DISCUSSION duties of a law enforcement system council are described in A.R.S. § 38-1003. merit The statute requires each law enforcement merit system council, pursuant to recognized create a merit process system to principles ensure fair of and public employment, impartial hiring to and firing decisions for all classified law enforcement officers. Id. It also requires each council to adopt rules of procedure and to [h]ear discipline. requires a and review appeals Id. § 38-1003(5), (6). council those rules. to adopt any relating to employee Nothing in the statute particular standards within It requires only that the rules and standards selected comport with merit system principles. - 5 - ¶10 As authorized by A.R.S. § 38-1003, the Pima County Law Enforcement Merit System Council adopted rules, including LEMSC Rule XIII-4(I), creating a process for reviewing hiring, discipline, and dismissal decisions relating to Pima County law enforcement officers. ¶11 the the Before 1999, Pima County LEMSC Rule XIII-4(I) required Council to Council affirm the determines employer-imposed that the action discipline appealed arbitrary or taken without reasonable cause. at 206, ¶ 7, 99 P.3d at 21. amended Rule XIII-4(I), without reasonable standard of review. Council finds just Id. cause from was Harvey, 209 Ariz. In 1999, however, the Council replacing cause unless standard the arbitrary with a less or taken deferential The rule now provides that if the for the discipline employer, the discipline must be affirmed. imposed by the LEMSC Rule XIII- 4(I). But if the Council finds that just cause did not exist, either (1) because some or all of the charges were not proven to the satisfaction of the Council, and/or (2) whether or not all of the charges were proven, the disciplinary action imposed was, in the sole discretion of the Council, too severe a penalty for the conduct proven, then the Council must revoke or modify the disciplinary action. Id. (emphasis added). - 6 - Rule XIII-4(I) then confers on the Council the power to direct appropriate remedial action. Id.1 ¶12 asked We are to determine whether the rule, which vests broad discretion in the Council, comports with recognized merit system principles of public employment, as required by A.R.S. § 38-1003, or whether the rule exceeds the Council s authority. ¶13 Interpretation of rules matter, which we review de novo. and statutes is a legal See Bilke v. State, 206 Ariz. 462, 464, ¶ 10, 80 P.3d 269, 271 (2003) (interpreting statute); Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App. 1996) (interpreting court rule). Our task in this case is to ascertain what the legislature meant in A.R.S. § 38-1003 by requiring merit system rules to be consistent with recognized 1 Pima County Law Enforcement provides, in full, as follows: Merit System Rule XIII-4(I) If, after the hearing, a majority of the Council determines that there was just cause for the disciplinary action imposed, then the order shall be affirmed. If the Council determines that there was not just cause for the disciplinary action taken either (1) because some or all of the charges were not proven to the satisfaction of the Council, and/or (2) whether or not all of the charges were proven, the disciplinary action imposed was, in the sole discretion of the Council, too severe a penalty for the conduct proven, then the order shall be revoked or modified. The Council shall have the power to direct appropriate remedial action and shall do so after taking into consideration just and equitable relief to the employee in the best interest of the County and the public. - 7 - merit system principles of public employment, and then to determine whether Rule XIII-4(I) comports with those principles. See City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984) (stating that court s primary goal in interpreting statutes is to ascertain and give effect to the intent of the derive their legislature). powers from Because their administrative enabling agencies legislation, their authority cannot exceed that granted by the legislature. See Kendall v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965). Thus if Rule XIII-4(I) conflicts with A.R.S. § 38-1003, the rule must yield. See Ariz. State Bd. of Regents v. Ariz. State Pers. Bd., 195 Ariz. 173, 175, ¶ 9, 985 P.2d 1032, 1034 (1999). A. ¶14 What are recognized merit system principles of public employment ? The phrase recognized merit system principles of public employment is not defined in A.R.S. § 38-1003 or in the legislative however, history merit accompanying systems embrace that the statute. notion Generally, that hiring, retention, and dismissal of public employees should be based on the employees considerations. merit and competence, and not on political See Donaldson v. Sisk, 57 Ariz. 318, 330-31, 113 P.2d 860, 865 (1941); 15A Am. Jur. 2D Civil Service § 1 (2000). In addition, this court has recognized that a proper merit system must provide an aggrieved merit system employee - 8 - with a hearing in front of a neutral body before discipline decisions become final. See, e.g., City of Phoenix v. Sittenfeld, 53 Ariz. 240, 246-47, 88 P.2d 83, 86 (1939); see also Hamilton v. City of Mesa, 185 Ariz. 420, 424-25, 916 P.2d 1136, 1140-41 (App. 1996); Deuel v. Ariz. State Sch. for the Deaf and Blind, 165 Ariz. 524, 526-27, 799 P.2d 865, 867-68 (App. 1990) (setting forth due process rights of covered public employees); accord 5 U.S.C. § 2301 (1996) (setting forth federal merit system principles); see generally Daryl Manhart, Commment, Property and Liberty Limitations on the Dismissal of Arizona Public Employees, 1977 Ariz. St. L.J. 835, 853-54 [hereinafter Manhart ] (discussing law enforcement merit systems). ¶15 The right to treatment based on merit and a hearing by a neutral board before discipline becomes final are therefore central merit system principles purposes of A.R.S. § 38-1003. of public employment for See Evans v. State ex rel. Ariz. Corp. Comm n, 131 Ariz. 569, 572, 643 P.2d 14, 17 (App. 1982) (recognizing requirement that State Personnel Board be a fair and impartial tribunal ); Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 422, 581 P.2d 262, 267 (App. 1978) (requiring the State Law Enforcement Merit System Council to provide a fair and impartial hearing ). ¶16 None of the authorities we reviewed, however, indicated whether procedural matters such as burdens of proof or - 9 - standards of review were basic merit system principles. We therefore examine whether the burden and standard in Rule XIII4(I) are consistent with merit system principles. B. Whether the satisfaction of the Council standard comports with recognized merit system principles. ¶17 Pima County LEMSC Rule XIII-4(I) requires the Council to revoke or modify discipline if some or all of the charges were not Sheriff proven and Pima to the County satisfaction argue the such that of a Council. standard The is no standard at all and renders decisions of the Council virtually unreviewable. ¶18 The Council itself reasonably interprets this part of the rule as imposing a burden on the employer to prove the charges warranting evidence. discipline by a preponderance of the We defer to an agency s reasonable interpretations of its own regulations. Ariz. Water Co. v. Ariz. Dep t of Water Res., 208 Ariz. 147, 154, ¶ 30, 91 P.3d 990, 997 (2004) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). ¶19 Arizona courts have recognized the application of the preponderance of the evidence standard in previous merit system cases. 543 See, e.g., Wicks v. City of Tucson, 112 Ariz. 487, 488, P.2d 1116, 1117 (1975) (stating that the Tucson Civil Service Commission requires an employer to bear the burden of - 10 - proving facts by a preponderance of the evidence); Woerth v. City of Flagstaff, 167 Ariz. 412, 415, 808 P.2d 297, 300 (App. 1990) (stating that the Flagstaff Personnel Board requires that the employer establish facts by a preponderance of such a standard not the evidence). ¶20 Therefore, although may be required by the language of Pima County LEMSC Rule XIII-4(I), in applying the preponderance standard for proving the grounds for discipline, the Pima County Law Enforcement Merit System Council is in fact employing the standard used by other merit system boards in Arizona. Furthermore, the County and Sheriff do not argue that a preponderance standard conflicts with recognized merit system principles. ¶21 Requiring the employer to establish the alleged grounds for discipline by a preponderance of the evidence is consistent with basic merit system principles because it ensures the employee that any discipline imposed is based not on mere allegations by the employer, but on facts found more likely than not to be true by a neutral fact-finder. The Council is not bound by the facts asserted by the employer, but is required to independently find the facts warranting discipline. For that reason, we hold that the portion of Pima County LEMSC Rule XIII4(I) that requires the Council to overturn discipline if some or all of the charges were not proven to the satisfaction of the - 11 - Council, as interpreted by the Council to require a preponderance of the evidence burden of proof, is consistent with recognized merit system principles of public employment. C. ¶22 Whether the in the sole discretion of the Council standard comports with recognized merit system principles. Rule XIII-4(I) requires the Council to revoke or modify a disciplinary action if the disciplinary action imposed was, in the sole discretion of the Council, too severe a penalty for the conduct proven. This language gives the Council sole authority to approve or modify the discipline for the behavior in question. Even though this provision affords the Council broad discretion, we nonetheless conclude that it comports with recognized merit system principles of public employment. ¶23 Although the legislature could have imposed such a requirement, nothing in A.R.S. § 38-1003 obligates merit system councils to employ any particular standard of review or to defer to the employer s choice of discipline. mandate to establish merit system In responding to the rules, the various merit system councils and commissions in Arizona2 adopted differing 2 Several merit systems, merit commissions, and merit councils exist throughout the state, including the State Personnel Board, see A.R.S. §§ 41-781 to -786 (2004 & Supp. 2004); the county employee merit systems, see A.R.S. §§ 11-351 to -356 (2001); the State Law Enforcement Merit System Council, see A.R.S. §§ 41-1830.11 to -1830.15 (2004); the Maricopa and Pima County Law Enforcement Merit System Councils, see A.R.S. §§ 38-1001 to -1007 (2001 & Supp. 2004); and several other county - 12 - standards. Some appointing County of these authority s Employee systems choice Merit of require deference discipline. Sys. R. E.g., 10.16, taken deference without Enforcement unless employer reasonable Merit action reported cause ); Sys. is at at 37 arbitrary or County Law reported at Maricopa R. the Maricopa http://www.maricopa.gov/human_resources/pdf/msr.pdf (requiring to 11.16, http://www.maricopa.gov/human_resources/pdf/leomsr.pdf at 44 (same). ¶24 such Other Arizona merit systems, however, do not require deference. E.g., A.R.S. § 41-785(D) (Supp. 2004) (authorizing State Personnel Board to modify discipline found to be disproportionate to the proven offense in light of mitigating circumstances ); Ariz. Admin. Code ( A.A.C. ) R13-5703(E) (requiring State Law Enforcement Merit System Council to sustain, modify, or ascertaining whether discipline); Pima reported at rescind the County law disciplinary and Employee the actions evidence Merit Sys. after support R. the 14.4(A), http://www.pima.gov/hr/pdf/MeritRules.pdf at 51 (imposing just cause standard); Tucson City Charter ch. XXII, § 3(c) (requiring Tucson Civil Service Commission to apply just cause standard). ¶25 The State Merit System is an example of a system that and municipal systems, see Manhart, supra ¶ 14, at 854-56. - 13 - employs a nondeferential standard. State Personnel Board s rules, See A.R.S. § 41-785(D). which also must conform The to recognized merit principles of public employment, see A.R.S. § 41-1830.12(A)(3), authorize the Board to modify a disciplinary penalty, inter alia, if it finds the penalty to be disproportionate to the proven offense in light of mitigating circumstances. A.R.S. § 41-785(D). The standard required of the State Personnel Board suggests that the legislature does not consider deference to the disciplinary authority to be a basic or necessary merit system principle, for the legislature itself modified A.R.S. § 41-785(D) in 2004 to incorporate this nondeferential standard of review. Presumably the legislature thought that the amended standard that it imposed satisfied its own requirement that merit system recognized merit system principles. ch. 163, § 1 (H.B. 2305). rules must conform to See 2004 Ariz. Sess. Laws, Thus the legislature seems not to consider a deferential standard of review to be a necessary attribute of a recognized merit system. ¶26 The County nonetheless argues that Arizona courts have repeatedly reversed merit system board decisions that modified disciplinary actions in the absence of arbitrary and capricious action by the employer. The court of appeals also cited with approval several cases applying the arbitrary or capricious standard. Harvey, 209 Ariz. at 208-09, ¶ 16, 99 P.3d at 23-24 - 14 - (citing Ariz. Dep t of Corr. v. State Pers. Bd., 202 Ariz. 598, 601, ¶¶ 15-16, 48 P.3d 1208, 1211 (2002); Pima County v. Pima County Merit Sys. Comm n ( Logan ), 186 Ariz. 379, 382, 923 P.2d 845, 848 (App. 1996); Maricopa County v. Gottsponer, 150 Ariz. 367, 372-73, 723 P.2d 716, 721-22 (App. 1986)). From these cases, the court of appeals reasoned that a deferential standard is required for the rule to comply with recognized merit system principles. ¶27 cases Id. at ¶¶ 16-19, 98 P.3d at 23-24. The fault interpreted deference to the in this rules or employers reasoning statutes Commission System Council and rules, Maricopa for the foregoing expressly or application required of the The Maricopa County Merit County example, that that decisions arbitrary or capricious standard. System is Law both Enforcement require that Merit the employers actions be sustained unless they are arbitrary or taken without reasonable cause. See Maricopa County Employee Merit Sys. R. 10.16; Maricopa County Law Enforcement Merit Sys. R. 11.16. The cases interpreting these rules merely apply the codified standard. E.g., Gottsponer, 150 Ariz. at 371 n.2, 723 P.2d at 720 n.2. ¶28 Similarly, in Pima County v. Pima County Merit System Commission ( Mathis ), 189 Ariz. 566, 568, 944 P.2d 508, 510 (App. 1997), and Pima County Sheriff s Department v. Smith, 158 Ariz. 46, 48, 760 P.2d 1095, 1097 (App. 1988), the court of - 15 - appeals reviewed the Pima County Law Enforcement Merit System Council Commission rules, respectively, before they were amended by the councils. At the time and Pima Mathis required actions and County Smith affirmance were of Employee were the arbitrary or Merit decided, both employer s taken rules actions without expressly unless reasonable those cause. Mathis, 189 Ariz. at 568, 944 P.2d at 510; Smith, 158 Ariz. at 48, 760 P.2d at 1097. ¶29 those The court of appeals and the County s reliance on cases to support a conclusion that the arbitrary or capricious standard must always apply in merit system cases is misplaced. In each of those cases, the rule or statute being interpreted required review for arbitrariness or capriciousness. But nothing in any of the opinions cited by the court of appeals purported to require that the arbitrary or taken without reasonable cause standard of review apply in all merit system cases or to systems whose rules specify a different standard of review. ¶30 In an opinion issued contemporaneously with this one, we require the Maricopa County Merit Commission and reviewing courts to apply the deferential arbitrary or taken without reasonable cause standard when reviewing a disciplinary action taken against a Maricopa County detention officer who hit a restrained detainee. Maricopa - 16 - County Sheriff s Office v. Maricopa County Employee Merit Sys. Comm n, ___ Ariz. ___, ___, ¶ ___, ___ P.3d ___, ___ (2005) ( Juarez ). Here, in an opinion that arrives at a facially contradictory result, we permit the Council to deferring determine to distinction the is the appropriate employer s that in each choice case, punishment of we without discipline. require the The reviewing commission or council to apply the standard of review required by the governing rule. In Juarez, Maricopa County Employee Merit System Rule 10.16 requires the commission to defer to the employer s disciplinary action. In Harvey, Pima County LEMSC Rule XIII-4(I) requires non-deferential review. All we hold today is that Pima County LEMSC Rule XIII-4(I) comports with recognized merit system principles and therefore may be applied by the Council. ¶31 not When enacting A.R.S. § 38-1003, the legislature did provide system dictated a standard councils. that The merit of for legislature, system disciplinary decisions. review councils by law enforcement statute, defer to the could merit have employers Instead, the legislature opted to let the councils set their own standards, as long as the standards of review chosen fall within recognized merit system principles of public employment. We conclude that employing a reasoned standard less deferential to the employer s chosen discipline is consistent with recognized merit system principles because it - 17 - does not deny merit system employees treatment based on merit or deprive them of a decision by a neutral reviewing body. We therefore hold that Rule XIII-4(I) is consistent with recognized merit system principles by helping to ensure that Pima County law enforcement employees receive a hearing by a body independent of the employer. III. ¶32 CONCLUSION We affirm the decision of the superior court, vacate the opinion of the court of appeals, and reinstate the decision of the Council. _______________________________________ Rebecca White Berch, Vice Chief Justice CONCURRING: ______________________________________ Ruth V. McGregor, Chief Justice ______________________________________ Michael D. Ryan, Justice ______________________________________ Andrew D. Hurwitz, Justice ______________________________________ Charles E. Jones, Justice (Retired) - 18 -
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