Opinion
No. 1 CA-CV 12-0160
02-14-2013
SHERIFF JOSEPH M. ARPAIO, as the Appointing Authority, on Behalf of Maricopa County Sheriff's Office, Plaintiff/Appellant, v. MARICOPA COUNTY LAW ENFORCEMENT EMPLOYEE MERIT SYSTEM COMMISSION and PERRY MENTZER, Defendants/Appellees.
William G. Montgomery, Maricopa County Attorney Civil Services Division By Bruce P. White, Deputy County Attorney Clarisse R. McCormick Attorneys for Plaintiff/Appellant Napier, Abdo, Coury, & Baillie P.C. By Michael Napier Attorneys for Defendant/Appellee Mentzer
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
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. LC2011-000024-001
The Honorable Robert H. Oberbillig, Judge
REVERSED AND REMANDED
William G. Montgomery, Maricopa County Attorney
Civil Services Division
By Bruce P. White, Deputy County Attorney
Clarisse R. McCormick
Attorneys for Plaintiff/Appellant
Phoenix
Napier, Abdo, Coury, & Baillie P.C.
By Michael Napier
Attorneys for Defendant/Appellee Mentzer
Phoenix
JOHNSEN, Judge ¶1 Sheriff Joseph M. Arpaio, on behalf of the Maricopa County Sheriff's Office ("MCSO"), appeals the superior court's judgment affirming the decision by the Maricopa County Law Enforcement Officers Merit System Commission ("Commission") to reverse the MCSO's termination of Deputy Perry Mentzer, Jr. We reverse the judgment and remand the matter to the Commission for further proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 On Monday, September 14, 2009, Mentzer was on patrol when he was dispatched at about 2:00 p.m. to a high school within his assigned beat to investigate an allegation of child abuse. Mentzer's teenage son was with him on a "ride-along." Instead of responding promptly to the child-abuse report, Mentzer "preempted himself" to two other calls, and his supervisor, Sergeant Robert Folker, had to "redirect" Mentzer to the child-abuse call. According to the information Mentzer entered in a computer-aided dispatch ("CAD") terminal in his patrol car, he arrived at the school at 3:11 p.m., found the administration building locked, left a voice message for the complainant to call him back and closed the call at 3:34 p.m. ¶3 Folker subsequently learned from the school's surveillance videotape, however, that Mentzer was at the school for just five or six minutes, during which he tried to open the locked doors to the gymnasium but never approached the administration building, which was clearly marked "Administration." Folker also discovered Mentzer never talked to the complainant and did not respond to repeated requests from the school's principal to make contact. Another deputy eventually responded to the child-abuse call after Mentzer went home ill near the end of his shift. ¶4 At the time, Mentzer worked a 13.5-hour shift on Sundays and Mondays and a 13-hour shift on Tuesdays. After calling in sick for his next shift on Tuesday, September 15, Mentzer returned to work on Sunday, September 20, when Folker formally interviewed him to investigate the apparently false CAD entry. During the recorded interview, Mentzer stated he had called the school the prior Monday and appropriately closed the child-abuse call because the school was locked when he arrived. Mentzer's cell phone, however, did not show any outgoing calls to the school. ¶5 The following day, Mentzer approached Folker and told him that he had learned that no outgoing calls to the school were reflected on his son's cell phone for September 14. Mentzer told Folker that despite his statement to the contrary the day before, it appeared that he had not called the school the previous Monday. Mentzer explained "he wasn't feeling good" on September 14, and therefore could not recall whether he had called the school that day. ¶6 A formal internal affairs investigation commenced. Lieutenant Paul Ellis interviewed Mentzer on November 17, 2009. During that interview, Mentzer admitted he had improperly handled the child-abuse call and made false CAD entries, and also admitted he lied to Folker on September 20 when he claimed he had telephoned the school about the complaint and left a message. Mentzer explained he was sick on September 14. Asked by Ellis why, if he was so sick, he was able to respond to other calls that day and why he did not leave work earlier in the day, Mentzer had no explanation. Instead, Mentzer stated he "just didn't want to take [the child-abuse] call." ¶7 At the conclusion of the investigation, the MCSO determined that Mentzer violated various MCSO policies, including the following provision of the "truthfulness" policy:
A. Employees shall not intentionally, knowingly, or willingly make a false statement relative to a material fact during the course of an official investigation.MCSO Chief Scott Freeman determined that Mentzer's untruthfulness warranted termination. ¶8 Mentzer appealed his termination to the Commission. After a one-day hearing, a Hearing Officer made detailed factual findings in recommending that Mentzer's appeal be denied and the MCSO's termination decision sustained. The Hearing Officer found that Mentzer's "unwillingness" to take the child-abuse call, which Mentzer had explained as "I just did not feel like taking the call," compounded by his ignoring two subsequent radio calls to contact the principal, constituted willful dereliction of duty and incompetence in violation of Policy CP-2. The Hearing Officer also found that Mentzer's false CAD entry, to the effect that he had found the administration building locked and that he had left a message for the complainant, constituted "fraudulent and deceitful untruthfulness" in violation of Policy CP-5. Finally, the Hearing Officer found:
[Mentzer's] statements to his supervisor six days later, on September 20, 2009, where, during an administrative investigation, [Mentzer] told his Sergeant that he had placed a call to the school counselor, even though there was no record of such call on the call history of [his] cellphone, constitutes untruthfulness in violation of Sheriff's Office Policy CP-5, which therefore constitutes a violation of Maricopa County Law Enforcement Officers Merit System Resolution, Section 15(5).¶9 After hearing argument, the Commission voted to reject the Hearing Officer's findings and recommendation. In reinstating Mentzer, the Commission concluded that the MCSO failed to meet its burden to prove that Mentzer had been knowingly untruthful during the investigation, and that as a result, the MCSO's decision to terminate Menzter was "arbitrary and taken without reasonable cause." The MCSO appealed to superior court pursuant to Arizona Revised Statutes ("A.R.S.") section 38-1004(A) (West 2013). The court affirmed the Commission's decision. This timely appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (West 2013).
According to the record, a student at the high school had reported instances of physical abuse at her home. The school's principal stayed with the student at the school until sometime after a second deputy arrived at about 7:00 p.m.
Absent material revisions after the relevant date, we cite a statute's current version.
The Commission did not address the MCSO's determination that Mentzer violated department policies with respect to dereliction of duty and incompetence and that he also committed fraud and deceit in making false statements (in the CAD system) on the afternoon of September 14. On appeal, however, the MCSO does not argue that Mentzer's termination should be sustained on any of these other grounds.
--------
DISCUSSION
¶10 A MCSO deputy sheriff who is terminated for disciplinary reasons may appeal the termination to the Commission. See A.R.S. § 11-356 (West 2013); Hounshell v. White, 220 Ariz. 1, 4-5, ¶¶ 13, 18, 202 P.3d 466, 469-70 (App. 2008). The Commission shall hold a hearing and may appoint a hearing officer to take evidence and "submit proposed findings of fact, conclusions of law and a recommendation to the commission." A.R.S. § 11-356(C), (D). Thereafter, "the commission shall either affirm, modify or revoke the order." A.R.S. § 11-356(F). ¶11 Rule 10.16 of the Maricopa County Employee Merit System Rules describes the power of the Commission to review a disciplinary sanction:
If, after the hearing, 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.Maricopa County Sheriff's Office v. Maricopa County Employee Merit Sys. Comm'n (Juarez), 211 Ariz. 219, 221, ¶ 10, n.4, 119 P.3d 1022, 1024 (2005) (emphasis added). As the Juarez court explained, Rule 10.16 "limits the Commission to a deferential role, requiring a determination within fixed legal parameters." Id. at 222, ¶ 12, 119 P.3d at 1025. The court continued:
The terms "arbitrary" and "without reasonable cause" have been defined in our jurisprudence. In Arizona, "arbitrary action" has been characterized as unreasoning action, without consideration and in disregard of the facts and circumstances. An "arbitrary" action is one taken capriciously or at pleasure, or an action taken without adequate determining principle. Similarly, the phrase "without reasonable cause" indicates the lack of evidence sufficiently strong to justify a reasonable person in the belief that the acts charged are true.Id. at ¶ 14 (quotation omitted). ¶12 The issue here, therefore, is whether the Commission properly applied the "arbitrary or taken without reasonable cause" standard in considering the MCSO's decision to terminate Mentzer because he was untruthful in the investigation. We conclude that the Commission did not do so. ¶13 On appeal, Mentzer argues the Commission properly concluded that he was ill on September 14, 2009, but there is no evidence that the effects of the sinusitis that Mentzer claims he was suffering on September 14 continued to September 20, the day of his interview with Folker. Mentzer testified that he did not tell Folker that he was still ill, nor did he tell Folker that he was taking any medication that might cause him to be confused. Mentzer argues that he had been prescribed Percocet, which can "cause drowsiness and the inability to think clearly." But Mentzer testified he did not take Percocet on September 20. ¶14 More broadly, the Commission's conclusion that the MCSO failed to prove by a preponderance of the evidence that Mentzer was knowingly untruthful during the investigation is simply not supported by the record. Instead, as recounted supra ¶¶ 5-8, the evidence at the hearing overwhelmingly supports the MCSO's determination that Mentzer was knowingly untruthful when he told Folker on September 20 that he had called the school and left a message on September 14, and thereby violated department policy and was subject to discipline. Accordingly, in concluding the MCSO failed to prove Mentzer's violation, the Commission exceeded its lawful authority. See Juarez, 211 Ariz. at 224, ¶ 24, 119 P.3d at 1027 .
CONCLUSION
¶15 We reverse the judgment of the superior court and remand the matter to the Commission so that it may consider whether the MSCO's decision to terminate Mentzer because of his violation of the truthfulness policy was arbitrary or taken without reasonable cause, pursuant to Rule 10.16 of the Maricopa County Employee Merit System Rules. See id. at 222, ¶ 16, 119 P.3d at 1025 ("[I]f the discipline originally imposed falls within the permissible range, it would be unlikely the action could be seen as arbitrary.").
________________________
DIANE M. JOHNSEN, Judge
CONCURRING: _________________________________
SAMUEL A. THUMMA, Presiding Judge
_________________________
MICHAEL J. BROWN, Judge