Saldate v. Montgomery
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MANUEL SALDATE, a married man, Plaintiff/Appellant, v. WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY ex rel. MARICOPA COUNTY ATTORNEY S OFFICE, an elected officer of Maricopa County, Arizona; MARICOPA COUNTY MERIT SYSTEM COMMISSION, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/31/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 11-0079 DEPARTMENT B OPINION Appeal from the Superior Court in Maricopa County Cause No. LC2009-000875-001 DT The Honorable Crane McClennen, Judge AFFIRMED Jaburg & Wilk, P.C. By Kraig J. Marton David N. Farren Adam S. Kunz Mark D. Bogard Attorneys for Plaintiff/Appellant Phoenix William G. Montgomery, Maricopa County Attorney By Clarisse R. McCormick Attorneys for Defendant/Appellees William G. Montgomery and Maricopa County Attorney s Office Phoenix Jackson Lewis, L.L.P. By Justin S. Pierce Attorneys for Defendant/Appellee Maricopa County Employee Merit System Phoenix K E S S L E R, Judge ¶1 Plaintiff/Appellant Manuel Saldate ( Saldate ) appeals the superior court s order remanding his administrative appeal to the Maricopa ( Commission ) County for administrative Employee the decision. Merit System of issuing purposes The basis of the Commission a superior final court s ruling was that because the Commission voted 2-2 on whether to accept or reject the hearing officer s recommendation to affirm Saldate s employment termination, the Commission s decision was of no force and effect. We agree with the superior court and affirm its remand order. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Saldate, a certified peace officer and detective for the Maricopa County Attorney s Office ( MCAO ), was terminated from employment on December 9, 2008. Saldate appealed his termination to the Commission under the Maricopa County Employee Merit System Rules ( Rules ) established by the Maricopa County Employee Merit Revised Statutes Supp. 2011). ¶3 System Resolution ( A.R.S. ) ( Resolution ) sections 11-351 to and -357 Arizona (2001 & See Resolution at §§ 1, 12. 1 A hearing officer appointed to hear Saldate s appeal held a four-day hearing. Pursuant to A.R.S. § 11-356(D) (Supp. 1 The Resolution and Rules are located http://www.maricopa.gov/human_resources/pdf/msr.pdf. 2 at 2011) 2 and Rule 10.12, the officer prepared a report for the Commission that proposed findings of fact and conclusions of law. He recommended that the Commission sustain Saldate s members present, 3 termination and deny his appeal. ¶4 The considered Commission, Saldate s recommendations. with appeal only and four the hearing officer s One Commissioner moved not to uphold the Hearing Officer s proposed order because there is not sufficient evidence in the record . . . and to grant [Saldate s] appeal and reverse the termination. The motion was seconded and a vote resulted in a 2-2 tie. ¶5 an The Commission denied Saldate s appeal the same day in order stating that Commission decision. its tie-vote 10.16, the serves as a final According to the order, [n]o majority vote of the Commission existed. Rule also Commission Citing Resolution § 16(F) and stated that an appeal may be sustained only when a majority of the Commission members vote in favor of majority such vote, action/motion, and the dismissed. appeal is that absent Thus, a contrary it denied 2 We cite to the current version of the statute when no revisions material to this decision have since occurred. Rule 10.12 and A.R.S. § 12-356(D), both requiring proposed findings of fact and conclusions of law by the hearing officer, became effective in 2009 before the Commission ruled on Saldate s appeal. 3 The Commission consists of five members. vacant. See A.R.S. § 11-353(A) (2001). 3 Its fifth seat was Saldate s appeal by operation of the applicable Resolution/Rule and sustained his termination. ¶6 Saldate seeking review termination. judgment. filed of The the a complaint in administrative parties filed the superior proceedings cross-motions court and for his summary Saldate argued that a tie vote means that he won his appeal and that his reinstatement was mandated under Wicks v. City of Tucson, 112 Ariz. 487, 543 P.2d 1116 (1975), and Wolkin v. Civil Service Commission of City of Tucson, 21 Ariz. App. 341, 519 P.2d 194 (1974). MCAO argued that under Maricopa County Sheriff s Office v. Maricopa County Employee Merit System Commission (Daniel Juarez), 211 Ariz. 219, 119 P.3d 1022 (2005), and Pima County v. Pima County Law Enforcement Merit System Council (Joseph Harvey), 211 Ariz. 224, 119 P.3d 1027 (2005), a tie meant that Saldate did not win his appeal and his termination must be upheld. 4 ¶7 The superior court ruled that [the tie] vote of the Merit Commission is of no force and effect because it was not a majority vote. The court vacated the Commission s October 7, 2009 order and remanded the proceedings for the Commission to reconsider Plaintiff s appeal. Saldate timely appealed and we 4 After oral argument on the motions, the superior court ordered further briefing about potential remedies and constitutional issues raised by Saldate. 4 have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2011). ISSUES ¶8 We summarize Saldate s issues on appeal as: (1) The superior court erred by failing to determine that the Commission s tie vote is a final administrative decision that means MCAO failed to carry its burden of proof to terminate Saldate. 5 (2) The superior court s remand order was overly broad and should be limited to reinstatement and a determination of back wages and leave accruals. (3) The superior court erred by denying Saldate attorneys fees under A.R.S. § 12-348(A)(2) (Supp. 2011) and A.R.S. § 41-1001.01 (Supp. 2011). ¶9 Both parties agree that remand is required, but they disagree about the scope of remand. Saldate s argument hinges on two factors, that a tie vote of the Commission: (1) is a final administrative decision; and (2) means MCAO did not meet its burden to prove cause for the termination. Appellees maintain that the Commission violated the Resolution and Rules by failing to adopt written findings of fact and conclusions of law and that the superior court correctly Commission s holding was of no force and effect. 5 determined the Appellees also Because we resolve Saldate s appeal based on the language of the Resolution and Rules, we need not reach his constitutional due process arguments about Resolution 16(F) and Rule 10.16. See Petolicchio v. Santa Cruz Cnty Fair & Rodeo Ass n, Inc., 177 Ariz. 256, 259, 866 P.2d 1342, 1345 (1994) ( Arizona s courts do not reach constitutional issues if proper construction of a statute makes it unnecessary . . . . ). 5 argue that the requested relief of reinstatement is beyond the Court s jurisdiction until the Commission corrects the error. 6 STANDARD OF REVIEW ¶10 In an administrative appeal, the superior court may affirm, reverse, modify or vacate and remand the agency action. A.R.S. § 12-910(E) (2003); see also Siegel v. Ariz. State Liquor Bd., 167 Ariz. 400, 401, 807 P.2d 1136, 1137 (App. 1991). This court reviews the superior court s judgment to determine whether the record contains evidence to support the judgment and, in doing so, we reach the underlying administrative action was illegal, involved an abuse of discretion. issue of arbitrary, whether the capricious or Koepnick v. Ariz. State Land Dep t, 221 Ariz. 370, 374, ¶ 7, 212 P.3d 62, 66 (App. 2009) (internal quotations and citation omitted). When an administrative decision is based on an interpretation of law, we review it de novo. Id. In construing statutes and rules, we rely on the plain meaning of the rule if it is unambiguous because that is the best indicator of the drafters intent. Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 6 MCAO also alternatively argues that notwithstanding the error, the case should be remanded to the Commission with instructions to uphold the termination because there is substantial evidence in the hearing record to support the dismissal of Saldate s appeal. However, MCAO did not file a cross-appeal and thus cannot argue on appeal for greater relief than it obtained in the superior court. See Arizona Rule of Civil Appellate Procedure 13(b)(3). 6 (App. 2005). statutes and If rules there to is give ambiguity, effect to we construe related each provision without making any rule or statute superfluous. City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949) ( Each word, phrase, and sentence must be given meaning so that no part will be [void], inert, redundant, or trivial. ); see also Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991) ( A court also should interpret two sections of the same statute consistently, especially when they use identical language. ). DISCUSSION ¶11 With the enactment of A.R.S. § 11-352, the legislature granted counties limited authority establishing employee merit systems. Maricopa County establishing Board both the of to resolutions Under that authority, the Supervisors Merit pass System adopted and a the Resolution § 1; see also A.R.S. § 11-353 (2001). resolution Commission. The Resolution requires that the Commission adopt the Rules to properly enforce the Resolution. See Resolution § 12. While the legislature did not define the minimum requirements for a Commission vote on an employee s appeal, it did require that the Commission have five members and that the Commission issue findings of fact. A.R.S. § 11-353(A) (five members), -356(D) (the hearing officer shall submit to the Commission proposed conclusions of law). 7 findings of fact and ¶12 Resolving this appeal requires us to construe the above statutes and the Resolution creating the Commission and Rules. Read together, these authorities impose two requisites for issuing a final Commission decision on appeal. clear that the Commission itself must act. First, it is A.R.S. § 11-356(D) (the hearing officer shall submit proposed findings of fact, conclusions of law and a recommendation to the commission ); A.R.S. § 11-356(F) ( following receipt of the hearing officer s proposed findings of fact, conclusions of law and recommendation, the commission shall either affirm, modify or revoke the order ); A.R.S. § 11-356(G) (the findings and decision of the commission shall be final ); Rule 10.17(B) (the findings and decisions of the Commission shall be final ); Rule 10.04 (hearing officers are fully authorized and empowered . . . to take any action . . . other than issuing the final findings of fact, conclusions Commission shall . of law . . and make order ); Rule 10.14 written findings ( [t]he of fact, conclusions of law and issue an order ); Rule 10.16 (a majority of the Commission may adopt the hearing officer s report in its entirety, or modify it, or . . . tak[e] additional evidence ). ¶13 Second, the Commission generally is required to act by majority of its members present at a meeting. states: Three members transaction of business. shall constitute a Resolution § 9(D) quorum for the A majority of the quorum may take 8 legal action powers. in all areas (Emphasis added.) of the Commission s duties and It follows that when there are four voting members at a meeting, a majority of those presentthree membersis findings of employee s shall required to fact, legal conclusions appeal. affirm, take of See A.R.S. § or revoke the modify action, law, including and 11-356(F) order orders ( the after issuing in an commission a hearing); Resolution § 9(D) ( A majority of the quorum may take legal action in all areas of the Commission s duties and powers. ); Rule 10.14 ( The Commission shall . . . make written findings of fact, conclusions of law and issue an order . . . . ). ¶14 In its order determining that the 2-2 vote was a final decision, the Commission relied upon Rule 10.16, which provides if, after a hearing on an appeal by a disciplined employee, a majority of the Commission members present at the meeting where the vote is taken, determine that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be dismissed. added.) Accord Resolution § 16(F). (Emphasis If this language stood by itself, or alone with Resolution § 9(D), it could be interpreted either: (1) as requiring a dismissal of Saldate s appeal because fewer than three of the four members present found the employment action was arbitrary or without reasonable cause; or (2) based on the reasoning of Wicks and Wolkin, that the County 9 failed to meet its burden to support its action. 7 In either case, we would normally assume that Resolution § 9(D) was the more general provision and determination of an appeal could be accomplished by less than a majority of a four-person quorum under the more specific provisions of Resolution § 16(F) and Rule 10.16. ¶15 However, Resolution § we 16(F) cannot and rely Rule solely 10.16. on As the language A.R.S. § in 11-356, Resolution § 9(D), and Rules 10.14 and 10.17 make clear, a final decision by the Commission requires findings of fact, conclusions of law, and an order, and the Commission can only do that by a vote of constitute a quorum. a majority of the members present who Thus, in order to take final action when only four commissioners attend the hearing and vote, at least three must agree on findings of fact, conclusions of law, and an order. ¶16 Rules, On a plain reading of the statutes, Resolution, and the Commission s order here was not final because a majority of the commissioners present constituting a quorum did 7 As discussed infra ¶ 18, Wicks and Wolkin held that because the employer had the burden to support its action on appeal to the commission, a rule which provided for a dismissal of the appeal if a majority of commissioners present did not vote to reverse the decision was of no force and effect because it impermissibly shifted the burden of proof to the employee. Wicks, 112 Ariz. at 488, 543 P.2d at 1117; Wolkin, 21 Ariz. App. at 345, 519 P.2d at 198. 10 not issue findings of fact and conclusions of law, and agreement by less than a majority of Commission members present does not constitute legal action under Resolution § 9(D). Thus, the superior court correctly concluded that because the vote was tied, there was no Commission action and the purportedly final order has no legal effect. 905(A) (2003) administrative (stating decisions [j]urisdiction is vested in Commission s See A.R.S. § 12to the review superior final court ) (emphasis added). ¶17 We affirm the superior court s remand order without modification because it is necessary for the Commission to enter findings of fact and conclusions of law as required by A.R.S. § 11-356 and majority Rule vote 10.14, of the and to decide commissioners Saldate s present Resolution §§ 9(D) and 16(F), and Rule 10.16. by required as appeal by Nothing in this decision precludes the four commissioners who were present at the meeting commissioners) (or a from different simply number re-voting and or composition issuing findings of of fact and conclusions of law provided that there is a quorum and such findings and conclusions are approved by a majority of the commissioners present. ¶18 state The parties rely on various cases dealing with other and county agencies respective positions. and commissions to support their However, each independent merit system is 11 governed by the unique authority granted and duties imposed and each merit system must be reviewed based specific authority, resolutions, and rules. at 221 n.5, ¶ 10, 119 P.3d at 1024 on the system s Juarez, 211 Ariz. n.5 (noting that rules adopted by counties for processing merit appeals vary among the counties and that in Pima County, unlike Maricopa County, the commission has wide discretion to modify an action it finds too severe); see also id. (recognizing that the standard of review to be employed by a commission depends on county rules). [T]he divergent rules between counties may, and often will, produce divergent results on very similar facts. ¶19 2-2 Id. In both Wicks and Wolkin, the courts disagreed that a vote of employee s the commission discharge because resulted the in rules an affirmance of the of Tucson an Civil Service Commission were in conflict with the employer s burden of proof under the Tucson City Charter. Wicks, 112 Ariz. at 488, 543 P.2d at 1117; Wolkin, 21 Ariz. App. at 345, 519 P.2d at 198. If Wicks and Wolkin applied, they would require reinstatement by the Commission; 8 however, the two civil service schemes are different. Nowhere in either decision did either 8 In Wicks, the supreme court held that the superior court could not reinstate the employee but had to either affirm, vacate or modify the commission decision and have the commission act in accordance with the mandate of the court. 112 Ariz. at 488, 543 P.2d at 1117. 12 appellate court discuss that under the Tucson scheme only a majority of the Commission present may take legal action, only the Commission can issue findings of fact and conclusions of law, and that majority requires a vote of the majority of the commissioners present. 9 ¶20 It is clear that under A.R.S. § 11-356, Resolution § 9(D), and Rules 10.14 and 10.17, the Commission can only make findings of fact and conclusions of law by majority vote of the quorum present. See also Rule 10.04 (stating that hearing officer can take any action except issuing the final findings and conclusions). Thus, when a decision is made by a four- person quorum, there must be three commissioners in agreement to issue findings, conclusions, and an order. Here however, because the vote on Saldate s appeal under Rule 10.16 resulted in a tie, a majority of the quorum did not make findings of fact and conclusions of law as required by Rule 10.14. The 2-2 tie vote here is simply a nullity and the Commission has to redecide the appeal based on a majority vote of the quorum so it 9 At oral argument on appeal, Saldate argued that the Tucson merit system may have had provisions that only a majority of the commission had to act and that the commission had to adopt findings of fact and conclusions of law. Even if that were accurate, the courts in Wicks and Wolkin do not address that fact, leading us to conclude that if such provisions were present, any argument about their effect must have been waived on appeal. 13 may make final findings of fact and conclusions of law by a majority of the quorum. 10 ¶21 Although the scheme here is slightly different than that present in Siegel, its reasoning supports our conclusion. In Siegel, a person applied to the Arizona State Liquor Board for a transfer of a liquor license. at 1137. 167 Ariz. at 401, 807 P.2d The state liquor superintendent denied the transfer, and on appeal, the Board voted 3-3 to reverse the decision. Id. The Board s acting chairman declared that the tie vote upheld the superintendent s decision. Id. The superior court held that the tie vote was not final for purposes of review and remanded it to the Board for further consideration. Id. We affirmed. We distinguished Wicks and two similar industrial commission cases that held a tie vote had the effect of disapproving a claimant s petition because the burden was on the claimant. Id. at 401-02, 807 P.2d at 1137-38. We rejected that reasoning because the provisions of the schemes in those cases were different than the scheme for the Liquor Board. 402, 807 P.2d at 1138. Id. at We noted that the Liquor Board had seven members, a majority of the seven would constitute a quorum, and a concurrence of a majority of 10 a quorum is sufficient for To the extent that Rule 10.14 provides that the Commission must adopt findings of fact and conclusions of law and Rule 10.16 provides that less than a majority of the Commission can effectively dismiss an appeal, the two rules are irreconcilable under the circumstances of this case. 14 taking any action. Id. If there are unfilled positions . . . a majority of those persons appointed and serving on the board constitutes a quorum. Id. at 402, 807 P.2d at 1138 (internal citations and quotations omitted). We reasoned that less than a majority of a quorum is insufficient for Board action and that a majority of a quorum of six requires at least four votes in agreement. Id. Since a majority of the quorum did not affirm, reverse or modify the Superintendent s decision, we affirmed the superior court s order that the 3-3 vote was not a Board action and remanded the matter to the Board for a final decision in which a majority of a quorum of the Board concurs in the resolution of the appeal. Id. (internal quotation marks omitted). ¶22 While the provisions of the scheme in Siegel are not identical to the provisions at issue here, the result is the same. In both schemes, we have to construe all of the relevant provisions in harmony. And in both schemes, only a majority of the commission, that is a majority of those voting, can approve the findings of fact, conclusions of law, and final order. Thus, here a tie vote of 2-2 is insufficient and the Commission has to re-decide the appeal. ATTORNEYS FEES ¶23 failing Saldate to award contends that attorneys the fees 15 superior pursuant court to erred A.R.S. § by 12- 348(A)(2) and 41-1001.01(1). Both of these statutes require a litigant to prevail by adjudication on the merits. Because remand to the Commission is necessary, Saldate has not prevailed by adjudication on the merits at this juncture. ¶24 Saldate also requests attorneys fees and costs on appeal pursuant to Rule 21, Arizona Rules of Civil Appellate Procedure, and A.R.S. §§ 12-341.01(A) (2003) (providing that a successful party may be awarded fees if the action arises out of contract), and 12-2030(A) (2003) (providing that fees shall be awarded to a party merits ) (2003). that prevails by adjudication on the In light of our determination affirming the superior court s remand order without modification and Saldate s arguments on appeal, Saldate cannot be considered the prevailing party and we decline to award costs or fees. 11 CONCLUSION ¶25 court s For remand the foregoing order reasons, requiring the we affirm Commission the to superior proceed in accordance with the Resolution and Rules, consider and determine Saldate s appeal by a majority vote of Commissioners present, 11 To the extent Saldate s requested fees and costs are asserted in his separate Motion Requesting Attorney Fees on Appeal, his motion is denied. 16 and issue written findings of fact and conclusions of law and an order that is final and appealable. _/S/_____________________________ DONN KESSLER, Judge CONCURRING: _/S/__________________________________ MARGARET H. DOWNIE, Presiding Judge _/S/__________________________________ PETER B. SWANN, Judge 17
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