Lawall v. Pima County Merit System Com'n

• Decision Date: 15 March 2006
• Docket Number: No. 2 CA-CV 2005-0140.,2 CA-CV 2005-0140.
• Parties: Barbara LaWALL, Pima County Attorney, Plaintiff/Appellee, v. PIMA COUNTY MERIT SYSTEM COMMISSION; Georgia Brousseau, Chairman; Mike Hellon, Richard Huff, Manuel Medina, and Mike Mincheff, in their official capacities, Defendants/Appellants, and Joann Scammon, a single woman, Real Party in Interest/Appellant.
• Court: Arizona Court of Appeals

134 P.3d 394

212 Ariz. 489

Barbara LaWALL, Pima County Attorney, Plaintiff/Appellee, v. PIMA COUNTY MERIT SYSTEM COMMISSION; Georgia Brousseau, Chairman; Mike Hellon, Richard Huff, Manuel Medina, and Mike Mincheff, in their official capacities, Defendants/Appellants, and Joann Scammon, a single woman, Real Party in Interest/Appellant.

No. 2 CA-CV 2005-0140.

Court of Appeals of Arizona, Division 2, Department B.

March 15, 2006.

Barbara LaWall, Pima County Attorney By Leslie K. Lynch, Tucson, Attorneys for Plaintiff/Appellee.

Corey & Kime By Barry M. Corey and Jason E. Smith, Tucson, Attorneys for Defendants/Appellants.

Joann Scammon, Tucson, In Propria Persona.

OPINION

BRAMMER, Judge.

¶ 1 The Pima County Merit System Commission appeals from a decision of the superior court in a special action filed by Barbara LaWall, the Pima County Attorney. The trial court found the Commission lacked jurisdiction to hear a claim of coerced resignation by an employee of the county attorney's office (PCAO), real party in interest Joann Scammon. We reverse.

Factual and Procedural Background

¶ 2 Scammon resigned from her position with the PCAO effective June 1, 2004. The PCAO had previously mailed Scammon a notice of intent to terminate her, but she apparently had not read the notice before she submitted her resignation.¹ Scammon filed an administrative appeal with the Commission on June 4, alleging her resignation as a victim witness advocate for the PCAO had been coerced and she had suffered a "constructive termination and unlawful discrimination." The PCAO filed a motion to dismiss the appeal, asserting a lack of subject matter jurisdiction. The Commission denied the motion, but continued the appeal pending the filing of the PCAO's special action in superior court.

¶ 3 The special action complaint alleged the Commission had exceeded its subject matter jurisdiction in denying the motion to dismiss the appeal. Following oral argument, the trial court ruled the Commission "lacks authority to hear Ms. Scammon's Appeal." The trial court noted "[i]t is undisputed that Ms. Scammon was not terminated pursuant to the three-step procedure set forth in the Pima County Merit System Rules, and that the Pima County Attorney's Office never issued a written Notice of Termination." The trial court determined the enabling statutes for the Commission, A.R.S. §§ 11-351 through 11-356, must be construed narrowly and the Commission may only hear an employee's appeal following a written order terminating that employee. This appeal followed.

Discussion

¶ 4 We review a trial court's interpretation of rules and statutes de novo. Pima County v. Pima County Law Enforcement Merit Sys. Council (Harvey), 211 Ariz. 224, ¶ 13, 119 P.3d 1027, 1030 (2005). The statutes at issue are A.R.S. §§ 11-351 through 11-356, which govern county employee merit systems. These statutes permit a county, by resolution of its board of supervisors, to "adopt a limited county employee merit system for any and all county . . . employees." § 11-352(A). Section 11-353 mandates that the board, after adopting such a resolution, appoint a merit system commission. Section 11-354 defines the powers and duties of a commission as those "necessary to carry out the provisions of this article." The procedure for employee appeals is set forth in § 11-356, which provides:

A. Any officer or employee in the classified civil service may be dismissed, suspended or reduced in rank or compensation by the appointing authority after appointment or promotion is complete only by written order, stating specifically the reasons for the action. The order shall be filed with the clerk of the board of supervisors and a copy thereof shall be furnished to the person to be dismissed, suspended or reduced.

B. The officer or employee may within ten days after presentation to him of the order, appeal from the order through the clerk of the commission. Upon the filing of the appeal, the clerk shall forthwith transmit the order and appeal to the commission for hearing.

C. Within twenty days from the filing of the appeal, the commission shall commence the hearing and either affirm, modify or revoke the order. The appellant may appear personally, produce evidence, have counsel and, if requested by the appellant, a public hearing.

D. The findings and decision of the commission shall be final, and shall be subject to administrative review as provided in title 12, chapter 7, article 6.

The Pima County Merit System Rules (MSR) state: "For the purposes of employee appeals pursuant to these Rules, a resignation in lieu of dismissal shall be deemed to be a dismissal." MSR 1.29, available at http:// www.pima.gov/hr/pdf/Mer itRules.pdf. Because MSR 14.1 permits an employee to appeal a dismissal to the Commission, it therefore appears the MSR allow an employee to appeal a "resignation in lieu of dismissal." The Commission argued to the trial court that a coerced resignation or constructive discharge is a "resignation in lieu of dismissal," which permits Scammon to appeal to the Commission if it finds her resignation was involuntary.²

¶ 5 The Commission contends a "personnel action form," the official record of Scammon's resignation, can constitute a "written order" meeting the requirements of § 11-356(A).³ However, the Commission did not make this argument in the trial court and, therefore, has waived it. See Cohn v. Indus. Comm'n, 178 Ariz. 395, 398, 874 P.2d 315, 318 (1994). Even if the argument were not waived, the trial court made a factual finding that there was no written order of termination, and no personnel action form is in the record on appeal. We presume the record supports the trial court's finding. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App.1995).

¶ 6 The Commission argues the county merit commission enabling statutes are remedial in nature and should be "liberally construed to achieve the special purpose of the statute[s]." Remedial statutes "are designed to redress existing grievances and introduce regulations conducive to the public good." Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974). "[W]e construe remedial statutes liberally to achieve the special purpose underlying the legislation." Special Fund Div. v. Indus. Comm'n (Burrell), 191 Ariz. 149, ¶ 9, 953 P.2d 541, 544 (1998). But, we need not decide if the statutes are remedial in nature because A.R.S. § 1-211(B) requires "[s]tatutes [to] be liberally construed to effect their objects and to promote justice." And "the primary rule of statutory construction is to find and give effect to legislative intent." Mail Boxes, Etc., U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995); see also Holland v. Williams Mountain Coal Co., 256 F.3d 819, 823 (D.C.Cir.2001) (because all statutes seek to remedy some problem, remedial distinction is meaningless). Although we will construe the statutes in question liberally, Harvey dictates that an agency such as the Commission has no inherent powers. "Because administrative agencies derive their powers from their enabling legislation, their authority cannot exceed that granted by the legislature." Harvey, 211 Ariz. 224, ¶ 13, 119 P.3d at 1030.

¶ 7 The PCAO insists the language of § 11-356 unambiguously limits the jurisdiction of the county employee merit system to written orders because § 11-356(A) allows a dismissal "only by written order" and § 11-356(B) only permits an appeal of such order. The PCAO argues, therefore, that because Scammon resigned, the Commission lacks jurisdiction, even if that resignation was coerced or was a constructive discharge. See Mail Boxes, Etc., 181 Ariz. at 121, 888 P.2d at 779 (if language of statute is unambiguous, it is conclusive, absent clearly expressed legislative intent to contrary); Harvey, 211 Ariz. 224, ¶ 13, 119 P.3d at 1030 (administrative agency's power cannot exceed that granted by legislature). We disagree. The language in question is not a jurisdictional requirement. Instead, it protects an employee by dictating the termination procedure and requiring documentation of the reasons for a discharge. It does not limit the jurisdiction of the county merit system commission to cases involving written orders. That jurisdiction is granted in § 11-352, which permits counties to create a merit system commission, and in § 11-354, which grants that commission the powers necessary to accomplish the purposes of the merit system.

¶ 8 Administrative agencies "have no common law or inherent powers." Kendall v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965). This does not mean, however, that those powers must be, as the PCAO claims, "specifically granted by statute." See Oracle Sch. Dist. No. 2 v. Mammoth High Sch. Dist. No. 88, 130 Ariz. 41, 43, 633 P.2d 450, 453 (App.1981) ("A board or commission. . . has only limited powers and it can exercise no powers which are not expressly or impliedly granted.") (emphasis added); see also Long v. Napolitano, 203 Ariz. 247, ¶ 44, 53 P.3d 172, 185 (App.2002) ("[W]hat a statute necessarily implies is as much a part of the statute as what is explicitly stated."). That an employer under § 11-356(A) may only dismiss an employee by a written order necessarily implies the merit system commission has authority to ensure that procedure is followed.

¶ 9 Moreover, to read the "written order" language as a jurisdictional requirement would be directly at odds with the clearly expressed legislative intent of the county merit system statutes. The purpose of the system is stated as follows: "The goals and functions of county employee merit systems are designed to protect employees." 1981 Ariz. Sess. Laws, ch. 273, § 1 (emphasis added); see also Wolkin v. Civil Service Comm'n, 21 Ariz.App. 341, 345, 519 P.2d 194, 198 (1974) (purpose of civil service commission is "to provide for the `. . . security of the faithful employee by giving him permanence of employment ....