Lewis v. Ariz. State Pers. Bd.

• Decision Date: 07 July 2016
• Docket Number: No. 1 CA–CV 15–0248,1 CA–CV 15–0248
• Citation: 240 Ariz. 330,379 P.3d 227
• Parties: Bennett Lewis, Plaintiff/Appellant, v. Arizona State Personnel Board; Mark Ziska; Joseph Smith; Mark Stanton; Joseph Beers; Arizona Department of Corrections ; Charles Ryan, Defendants/Appellees.
• Court: Arizona Court of Appeals

240 Ariz. 330

379 P.3d 227

Bennett Lewis, Plaintiff/Appellant,

v.Arizona State Personnel Board; Mark Ziska; Joseph Smith; Mark Stanton; Joseph Beers; Arizona Department of Corrections ; Charles Ryan, Defendants/Appellees.

No. 1 CA–CV 15–0248

Court of Appeals of Arizona, Division 1.

FILED July 7, 2016

Yen Pilch & Landeen, P.C., Phoenix, By Neil Landeen, Michael Pang, Counsel for Plaintiff/Appellant.

Arizona Attorney General's Office, Phoenix, By Robert J. Sokol, Counsel for Defendants/Appellees Arizona Department of Corrections.

Jackson Lewis, P.C., Phoenix, By Jeffrey A. Bernick, Counsel for Defendants/Appellees Arizona State Personnel Board.

Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.

HOWE, Judge:

¶ 1 Bennett Lewis appeals the order of the Arizona Department of Corrections ("the Department") dismissing him from his position and rejecting the recommendation of the Arizona State Personnel Board ("the Board") to adopt the hearing officer's recommendation to overturn the dismissal. Lewis argues that the Department's order is contrary to law, not supported by substantial evidence, arbitrary and capricious, and based on a violation of federal and state constitutional provisions. But because the Department's order was legally sufficient and supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 The Department employed Lewis as a community corrections and parole officer. His duties included supervising released offenders in the community. According to the Department Order Manual and Employee Handbook, Lewis was expected to conduct himself in a respectful, professional, and ethical manner at all times and to refrain from behavior that would discredit or embarrass the Department or the State of Arizona.

¶ 3 An offender who is released is required to report to the parole office by 3:00 p.m. that day. If the offender does not arrive by that time, the Department's office supervisor has the discretion to issue an arrest warrant. On October 17, 2013, the Department's transport unit released an offender—who suffered from mental health problems and needed close supervision—at a mall at 2:30 p.m. Because the offender did not have a ride to the parole office, his visually impaired mother and mentally impaired sister took a bus to meet him at the mall. The offender called the parole office and spoke to Lewis, but he and his family did not arrive at the office until 4:30 p.m.

¶ 4 When the offender and his family arrived at the parole office, they were escorted into Lewis' supervisor's office. Lewis came in and told the offender that he was supposed to have arrived by 3:00 p.m. and because he did not, the Department would issue a warrant for his arrest. The offender explained to the supervisor that the transport unit dropped him off late and that he arrived at the office as soon as he could. The supervisor found the offender's explanation reasonable.

¶ 5 Lewis, however, repeatedly threatened to send the offender back to prison, agitating the offender. The offender's mother and sister became concerned, repeatedly saying, "Oh, no, no, no. Please don't send him back." The supervisor reassured the offender's family that he was the supervisor and that he was not going to send the offender back to prison. As a result of Lewis' threats, the supervisor had to direct the offender's attention away from Lewis and towards him on several occasions, reassuring the offender that he would not be sent back to prison.

¶ 6 The supervisor asked the offender where he wanted to live during his parole. The offender said he wanted to live with his mother, and his mother told the supervisor that she was willing to have him live with her. Although the Department had previously rejected the offender's request to live with his mother, the offender's mother had moved after that decision and her new housing allowed her son to live with her. Using his discretion, the supervisor agreed to let the offender live with his mother because he concluded it "was a better opportunity for that offender."

¶ 7 Lewis told the supervisor that he disagreed and that the offender should be sent to a half-way house. The supervisor nonetheless instructed Lewis to prepare the offender to stay with his mother for the evening and to tell him to report to the parole office in the morning, and Lewis refused to comply. The supervisor instructed Lewis three times to do as he was told; Lewis refused each time. Moreover, Lewis told the offender that he would go where the Department told him to go and that he should "ignore what the supervisor [was] saying." When the supervisor told Lewis to leave, Lewis said, "You're making bad decisions" and "You don't know what you're doing." The supervisor again told Lewis to leave, but he refused. After several more orders to leave, Lewis left. After the supervisor finished the intake process, he walked by Lewis' cubicle and Lewis said, without prompting, "I suppose you're going to write me up. If you do, make it good."

¶ 8 On November 18, 2013, Lewis received an 80–hour suspension for a separate incident of discourteous treatment of the public. He filed a grievance challenging the suspension on December 23. That same day, the community corrections manager issued Lewis a notice of charges for the October 17 incident. The manager stated in the notice that Lewis' actions constituted incompetence by failing to perform required duties; neglect of duty by disregarding orders or directives of a supervisor; and discourteous treatment of the public by conducting himself in an offensive and discourteous manner.

¶ 9 The manager identified the Department Order Manual sections Lewis allegedly violated, resulting in two charges. Charge 1 was that Lewis "engag [ed] in [a] confrontational dialogue with the offender," threatened the offender and increased his level of agitation, and disregarded the offender's mother and sister's explanation for the offender's late arrival. Charge 2 was that Lewis refused to take direction from his supervisor and became argumentative with the supervisor in the presence of the offender and his family. Charge 2 also stated that, although Lewis' supervisor redirected him three times, Lewis failed to comply and instead demonstrated insubordination and unprofessional behavior toward his supervisor.

¶ 10 The manager advised Lewis that she was considering a range of disciplinary actions, including dismissal. She also stated that in issuing the notice, she considered the November 18 suspension, four other prior suspensions, and a letter of reprimand. Lewis responded in writing that he was "very remorseful and sorry that [his supervisor] mistook [his] actions as rude and unprofessional" and that his "intent [was] to assist him in the staffing of an offender."

¶ 11 In January 2014, the manager dismissed Lewis on the grounds of incompetence, neglect of duty, and discourteous treatment of the public as a result of the October 17 incident. The notice of discharge stated that Lewis' dismissal was based on the two charges and consideration of the other disciplinary actions and the November 18 suspension. The Department dismissed Lewis' grievance for the November 18 suspension after he was terminated. Lewis appealed his termination to the Board.

¶ 12 After an appeals hearing, the hearing officer concluded that the Department proved the allegations in charge 2, but not charge 1. The hearing officer also concluded that Lewis was not afforded all his due process rights because his dismissal was based in part on the November 18 suspension, but his grievance of that suspension had been disallowed by his subsequent dismissal. The hearing officer further concluded that because Lewis' due process rights were violated and because the Department only proved one of two charges, no "just cause" existed, as statutorily required, for dismissing Lewis, and the Department's action was arbitrary, capricious, or without reasonable cause and an abuse of discretion. The hearing officer therefore recommended that Lewis' appeal be upheld and that the dismissal be overturned. After reviewing the hearing officer's recommendation, the Board adopted a resolution that "just cause" did not exist to impose disciplinary action and recommended that Lewis be reinstated to his former position.

¶ 13 The Department's Director subsequently rejected the Board's recommendation as arbitrary and capricious and without reasonable justification. In explaining his decision, the Director stated that the Board's recommendation was "contrary to the evidence presented at the [appeals] hearing and contrary to the Findings of Fact adopted by the Board" and that the Board's factual findings and conclusions were "not supported by the evidence presented at the hearing." The Director also explained that the Board's order violated A.R.S. § 38–1103¹ , which, among other things, defines the "just cause" required to subject a law enforcement officer to disciplinary action, and A.R.S. § 41–783(C), which requires the Board in an appeal from a disciplinary action to determine whether the Department has met its burden of proof to impose discipline. Lewis appealed the Department's decision to the superior court, and the court affirmed. Lewis timely appealed the superior court's order.

DISCUSSION

¶ 14 Lewis argues that the Department's order is contrary to law, not sup ported by substantial evidence, arbitrary and capricious, and based on a violation of the federal and state constitutions. When reviewing an administrative decision, the superior court may reverse the decision if the court finds it is not supported by substantial evidence or is contrary to law, arbitrary or capricious, or an abuse of discretion. A.R.S. § 12–910(E). "The court does not conduct a trial de novo, act as the trier of fact, nor substitute its view of the evidence for that of the agency." Siler v. Ariz. Dep't of Real Estate , 193 Ariz. 374,...