Bishop v. Law Enforcement Merit System Council, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtHATHAWAY; RICHMOND, C. J., and HOWARD
Citation119 Ariz. 417,581 P.2d 262
PartiesCharles E. BISHOP, Appellant, v. The LAW ENFORCEMENT MERIT SYSTEM COUNCIL, an Agency of the State of Arizona, Vernon C. Foster, Chairman thereof, Eduard A. Vitolins, Secretary thereof, Oscar H. Duarte, Member thereof, the Department of Public Safety, an Agency of the State of Arizona, Appellees. 2676.
Decision Date20 April 1978
Docket NumberNo. 2,CA-CIV

Page 262

581 P.2d 262
119 Ariz. 417
Charles E. BISHOP, Appellant,
v.
The LAW ENFORCEMENT MERIT SYSTEM COUNCIL, an Agency of the State of Arizona, Vernon C. Foster, Chairman thereof, Eduard A. Vitolins, Secretary thereof, Oscar H. Duarte, Member thereof, the Department of Public Safety, an Agency of the State of Arizona, Appellees.
No. 2 CA-CIV 2676.
Court of Appeals of Arizona, Division 2.
April 20, 1978.
Rehearing Denied May 10, 1978.
Review Denied June 8, 1978.

[119 Ariz. 418]

Page 263

McDonald & Nash by Walter B. Nash, III, Tucson, for appellant.

J. Conrad Baran, Special Counsel Arizona Dept. of Public Safety, John A. LaSota, Jr., Atty. Gen. by Richard Kamps, Asst. Atty. Gen., Phoenix, for appellees.

OPINION

HATHAWAY, Judge.

Charles Bishop, a former undercover police officer dismissed by his employer, appellee Arizona Department of Public Safety (DPS), appeals from a judgment affirming the decision of appellee Law Enforcement Merit System Council (Council) upholding his termination. Appellant's employment with DPS was terminated by its Acting Director on September 19, 1975, for the following violations of Merit System Council Rule 8.3.03:

"(c) Misfeasance, malfeasance or nonfeasance, which shall include, but shall not be limited to:

(1) Incompetency

(2) Inefficiency

[119 Ariz. 419]

Page 264

(3) Inexcusable neglect of duty . . .

(k) Any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the agency interest."

Following his appeal to the Council, pursuant to merit system rules, DPS filed an amended statement of charges against him alleging:

"COUNT ONE

III

That on or about July 13, 1975, Charles E. Bishop received a sample of what was believed to be marijuana from suspects; that he failed to follow the procedures set forth in Policy #34.02 for the retention and processing of evidence; and that he subsequently lost said evidence.

COUNT TWO
IV

That he failed to make a proper departmental report of the loss of the evidence set forth in Count One as required by General Order 32.01.

COUNT THREE
V

That in late 1974, he participated in the smoking of marijuana with a narcotics suspect behind the Village Inn Pizza Parlor on Speedway Boulevard in the City of Tucson.

COUNT FOUR
VI

That he failed to make a proper departmental report of the incident set forth in Count Three.

COUNT FIVE
VII

That sometime during February or March, 1975, he participated in the smoking of marijuana with narcotics suspects in the mobile home of one Harvey Cox, which is located in the City of Tucson.

COUNT SIX
VIII

That he failed to make a proper departmental report of the incident set forth in Count Five.

COUNT SEVEN
IX

That on or about July 12 or 13, 1975, he participated in the smoking of marijuana with narcotics suspects in the American Family Motel in the City of Tucson.

COUNT EIGHT
X

That he failed to make a proper departmental report of the incident set forth in Count Seven.

COUNT NINE
XI

That sometime during 1975, he participated in the smoking of marijuana with one Donna King at the mobile home of one Harvey Cox, which is located in the City of Tucson.

COUNT TEN
XII

That he failed to make a proper departmental report of the incident set forth in Count Nine."

A hearing was held on December 17, 1975, before the Council. At this time appellant admitted the truth of the factual allegations in the amended statement of charges, though not that his failure to report such incidents was improper.

When first confronted, prior to his dismissal, with charges that he had twice smoked marijuana with narcotics suspects, he claimed that he had merely been simulating smoking. However, after he submitted to a lie detector test and was told that the results indicated deception, he admitted he had smoked then and on two other occasions. At the hearing he testified that he felt, during each of these incidents, that he was being tested, that he could not effectively simulate and that he had to smoke to prove he was not a police officer and to preserve the on-going investigation.

On January 21, 1976, the Council upheld the order of termination of service. Appellant then filed, on February 19, 1976, a complaint in Pima County Superior Court for review of an administrative decision, pursuant to A.R.S. Sec. 12-901, et seq. On [119 Ariz. 420]

Page 265

October 8, 1976, the court ordered the complaint amended as proceedings pursuant to A.R.S. Sec. 28-236. 1

Appellant, who began working for DPS in August 1969 as a highway patrolman, transferred to the liquor section of the criminal investigations division in February 1973 and one year later began working for the Tucson narcotics section. He testified that at no time was he ever instructed that it was against DPS policy for an undercover narcotics agent to smoke marijuana during the course of an investigation and he was unaware such policy existed.

A written policy prohibiting such conduct was not promulgated until after appellant's dismissal. Yet, not all DPS policies are reduced to writing. Carl Needham, chief of the criminal investigations division, and Dennis Dierking, supervisor of the Tucson narcotics section, testified that since 1969 an oral policy prohibiting smoking during undercover work, except when refusal to do so would result in bodily injury or death to the officer, had existed. If, under these exceptional circumstances, an officer must smoke, then he is to notify his superior and write a report of the incident. These witnesses expressed the well-known position of DPS to be that it is better to lose a case than to jeopardize the reputation of the department or an officer by requiring him to smoke. This policy was disseminated from Needham through the chain of command to the officers in the field. Four undercover narcotics officers also testified that the oral policy prohibiting smoking was well known, that they had been aware of it since they began working for the narcotics section, and that they would "blow" a case rather than smoke with narcotics suspects.

Appellant argues on appeal that his dismissal was invalid because he never received prior notice that the conduct he engaged in could result in his dismissal. It is not feasible, because of the very nature of the employer-employee relationship here, for the Council to spell out in...

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13 practice notes
  • Pima County v. Pima County Law Enforcement, No. CV-04-0356-PR.
    • United States
    • Supreme Court of Arizona
    • September 21, 2005
    ...(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 ¶ 16 None of the......
  • Shah v. Ariz. State Bd. of Dental Examiners, No. 1 CA-CV 13-0488
    • United States
    • Court of Appeals of Arizona
    • November 4, 2014
    ...Merit Sys. Comm'n, 211 Ariz. 219, 222-23, ¶ 16, 119 P.3d 1022, 1025-26 (2005); see also Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262, 266 (App. 1978) ("The determination of the penalty imposed by an administrative body will not be disturbed unless there has......
  • State ex rel. Hyder v. Superior Court of Maricopa County, No. 15022
    • United States
    • Supreme Court of Arizona
    • January 27, 1981
    ...it or is contrary to uncontradicted and unconflicting evidence. Bishop v. Law Enforcement[128 Ariz. 255] Page 318 Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262 (App.1978); Arizona Dept. of Public Safety v. Dowd, 117 Ariz. 423, 426, 573 P.2d 497 The record here establishes that the su......
  • Pinal County v. Pinal County Employee Merit, No. 2 CA-CV 2004-0160.
    • United States
    • Supreme Court of Arizona
    • July 25, 2005
    ...integrity and efficiency of its operations.'" 186 Ariz. at 382, 923 P.2d at 848, quoting Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262, 266 (App.1978). The Commission stated that PCSD "had not sustained its burden to prove the punishment was reasonable," but......
  • Request a trial to view additional results
13 cases
  • Pima County v. Pima County Law Enforcement, No. CV-04-0356-PR.
    • United States
    • Supreme Court of Arizona
    • September 21, 2005
    ...(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 ¶ 16 None of the......
  • Shah v. Ariz. State Bd. of Dental Examiners, No. 1 CA-CV 13-0488
    • United States
    • Court of Appeals of Arizona
    • November 4, 2014
    ...Merit Sys. Comm'n, 211 Ariz. 219, 222-23, ¶ 16, 119 P.3d 1022, 1025-26 (2005); see also Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262, 266 (App. 1978) ("The determination of the penalty imposed by an administrative body will not be disturbed unless there has......
  • State ex rel. Hyder v. Superior Court of Maricopa County, No. 15022
    • United States
    • Supreme Court of Arizona
    • January 27, 1981
    ...it or is contrary to uncontradicted and unconflicting evidence. Bishop v. Law Enforcement[128 Ariz. 255] Page 318 Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262 (App.1978); Arizona Dept. of Public Safety v. Dowd, 117 Ariz. 423, 426, 573 P.2d 497 The record here establishes that the su......
  • Pinal County v. Pinal County Employee Merit, No. 2 CA-CV 2004-0160.
    • United States
    • Supreme Court of Arizona
    • July 25, 2005
    ...integrity and efficiency of its operations.'" 186 Ariz. at 382, 923 P.2d at 848, quoting Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262, 266 (App.1978). The Commission stated that PCSD "had not sustained its burden to prove the punishment was reasonable," but......
  • Request a trial to view additional results

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