Maricopa Cnty. Sheriff's Office v. Maricopa Cnty. Law Enforcement Officers Merit Sys. Comm'n

• Decision Date: 06 December 2018
• Docket Number: No. 1 CA-CV 17-0681,1 CA-CV 17-0681
• Parties: MARICOPA COUNTY SHERIFF'S OFFICE, Plaintiff/Appellant, v. MARICOPA COUNTY LAW ENFORCEMENT OFFICERS MERIT SYSTEM COMMISSION, et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

MARICOPA COUNTY SHERIFF'S OFFICE, Plaintiff/Appellant, v. MARICOPA COUNTY LAW ENFORCEMENT OFFICERS MERITSYSTEM COMMISSION, et al., Defendants/Appellees.

No. 1 CA-CV 17-0681

ARIZONA COURT OF APPEALS DIVISION ONE

December 6, 2018

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. LC2016-000012-001

The Honorable Patricia Ann Starr, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Christine B. Stutz

Counsel for Plaintiff/Appellant

Napier, Coury & Baillie, P.C., Phoenix

By Michael Napier, Kathryn R. E. Baillie

Counsel for Defendant/Appellee Wade Voeltz

Pierce Coleman PLLC, Scottsdale

By Justin S. Pierce

Counsel for Defendant/Appellee Maricopa County Law Enforcement Officers Merit System Commission

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

WINTHROP, Judge:

¶1 Following an investigation initiated in 2014, the Maricopa County Sheriff's Office ("MCSO") dismissed Deputy Wade Voeltz from his employment. Voeltz appealed the dismissal to the Maricopa County Law Enforcement Officers Merit System Commission ("the Commission"), which concluded that MCSO did not make a good faith effort to complete its investigation within 120 business days as then-required by statute. See former Ariz. Rev. Stat. ("A.R.S.") § 38-1105(B).¹ The Commission sustainedVoeltz' appeal and dismissed the discipline against him, and MCSO appealed to the superior court. The superior court affirmed the Commission's decision, and MCSO appealed to this court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In late July 2014, personnel of MCSO's Criminal Employment Unit ("CEU") were tasked with conducting a complete audit and organization of past and present CEU reports that resulted in an arrest, with the completed product to be used in a series of civil lawsuits. During the audit, investigators discovered that items including photographs were missing from a case file involving the search of a Pei Wei restaurant.

¶3 On July 28, 2014, MCSO's Deputy Chief of Investigations, Edward Lopez, instructed MCSO Sergeant Dmitrius Whelan to contact Voeltz, who had served as a detective in the CEU from 2009 to 2012, had been the Pei Wei case agent from 2010 to 2012, and signed out the original file from the Property and Evidence Department in early 2012. On July 30, 2014, Whelan questioned Voeltz, who told Whelan that he had returned the original file to the Pei Wei corporate office in Scottsdale but did not recall returning any photographs. Voeltz further stated he had "returned lots of files" and "[v]irtually every time I was a case agent for a case, I returned the original files to the business owners at some point" after the case closed.

¶4 Whelan briefed Lopez, who directed Whelan to contact Vanessa Losicco, MCSO's general counsel. On Friday, August 1, Losicco instructed Whelan to "pull an IA investigation" number and formally document his investigation. On August 4, Whelan obtained I/A #14-0443.

¶5 On August 12, Whelan served Voeltz with a notice of investigation (re. I/A #14-0443) as defined in Sheriff's Office Policy ("Policy") GH-2, Internal Investigations, stemming from an alleged violation of Policy GJ-4, Evidence Control. That same day, Whelan reviewed a list of historic CEU cases, finding only six cases on which Voeltz had been the case agent, then pulled the property logs for those cases, and concluded, "A review of the property logs show[s] that Deputy Voeltz[']removal of CEU[-]related evidence after disposition of the case is not common practice for him. To date, the evidence reference DR 10-121386 [the Pei Wei case] are the only items which Deputy Voeltz has removed from MCSO property and evidence."²

¶6 Whelan interviewed Voeltz on August 27, giving Voeltz a Garrity warning³ and allowing an employee-observer to be present. At the end of the interview, Voeltz asked Whelan, "And what's your timeframe? And I know you have so many days to get things completed. Where are you at in that process?" Whelan replied, "I wanna say 120. . . . And, uh, I think we started beginning of August. . . . August 4^th or August 8^th, somewhere around there. So, uh, but it shouldn't take . . . four months."

¶7 Sometime in October 2014, Whelan completed his portion of the investigation relating to I/A #14-0443.⁴ Relying in part on his August 12 investigation and his previous interviews of Voeltz, Whelan indicated a concern with truthfulness issues, noting in part and concluding as follows:

Voeltz made statements [on August 27] that he could specifically remember 2-3 cases in which he had dropped the original employee files off to the business after the case was closed. This was shown not to be true.

. . . .

There is evidence to support the allegation that Deputy Wade Voeltz did not properly document the return of evidence to Pei Wei. There is also cause to believe that the evidence was never returned by Voeltz to Pei Wei. This investigation isbeing forwarded to the Professional Standards Bureau [("PSB") (formerly Internal Affairs)] for further investigation.

(Emphasis added.)

¶8 On October 24, the division commander, Captain Freddie Aldorasi, signed off on Whelan's report, while noting "[o]nly Chief Deputy [Jerry] Sheridan can sustain on truthfulness violations." As Aldorasi summarized:

147 Items of evidence related to [the Pei Wei case] w[ere] checked out from evidence by W. Voeltz #1658 noted to be returned to Owner. Some of the items noted to be returned should not have been returned and are property of MCSO. In attempts to locate the MCSO[-]owned items, it is alleged by Owner (Pei Wei) that W. Voeltz did not return any items to them after removing the items from property and evidence.

¶9 The investigation continued up the chain of command to Lopez, who agreed with the concern expressed by Whelan and noted by Aldorasi of an existing issue regarding Voeltz' truthfulness. Lopez testified:

[I]n Sergeant Whelan's report, the original seems that Deputy Voeltz had personally returned the items to, [] Pei Wei, and after investigating further with [] Pei Wei, he could not confirm that that ever occurred.

There are also statements that receipts were generated upon the return of that, and then brought back to the office, and gone through the regular protocols to enter them in. Sergeant Whelan could not confirm that either.

There w[ere] also statements made, I believe, that when cases were closed, it was standard practice for Deputy Voeltz to go ahead and return the property to the original owners of those companies, and in Sergeant Whelan's investigation, no other property was ever checked out of the cases from CEU and returned back to those property owners, and those statements were all in conflict with each other and it just gave the appearance of a truthfulness issue.

¶10 Lopez, in turn, forwarded the investigation to Sheridan because "he is the one who can rule on truthfulness issues." On November25, Sheridan requested that Captain S.M. Bailey, Commander of the PSB, further investigate the possible truthfulness violation. As Lopez later testified:

Q And so at that point, there was going to be no action taken on the evidence control issue until the truthfulness can be resolved; is that accurate?

A Correct.

Q So after -- well, did you have a discussion with Chief Deputy Sheridan about this particular evidentiary investigation, the property investigation?

A No, I forwarded it to him and next I heard, it had been forwarded to PSB to conduct the next internal investigation regarding the truthfulness issue.

¶11 Rather than open or "pull" a new I/A number, however, MCSO continued to use the same I/A number, and Bailey assigned Sergeant Darriell Bone to review I/A #14-0443 and further investigate the truthfulness issue. Bone later testified as follows:

When I received the case, essentially it was an investigation that was initiated by Sergeant Dmitrius Whelan. The allegation that I was investigati[ng] was for truthfulness. What I did was I took the case that was initiated by Sergeant Whelan and reviewed it to identify the issues of truthfulness that I would be addressing later on.

¶12 Upon review, Bone identified three issues involving apparent conflicting statements by Voeltz: (1) Voeltz' memory of taking out and returning personnel files to Pei Wei; (2) Voeltz' memory of receiving confirmation the case was closed; and (3) Voeltz' stated practice of returning original files to the appropriate business. On December 30, Bone issued Voeltz a second notice of investigation, which informed Voeltz "that an official Administrative Investigation has been initiated" based on the "[i]nconsistent and/or unsupported statements you made while being questioned during an Administrative Investigation (IA#14-0443)."⁵ Thatsame day, Voeltz acknowledged receipt of the notice of investigation, and Bone interviewed him.

¶13 Concluding an allegation of untruthfulness could be sustained as to the third issue, Bone prepared a report and submitted it to the chain of command. Sheridan reviewed Bone's investigation and, on January 22, 2015, signed off on Bone's report.⁶ On March 6, Sheridan sustained the following allegation:

Deputy Voeltz made statements during an Administrative Investigation that lacked factual basis and gave inconsistent statements regarding his handling of Property and Evidence after his cases had been adjudicated.

¶14 On April 3, 2015, MCSO notified Voeltz of its intent to discipline him and that it was considering dismissing him from employment. On April 16, MCSO terminated Voeltz' employment "subsequent to Internal Investigation #14-0443" and premised on neglect of duty (Policy GJ-4, Evidence Control) and dishonesty (Policy CP-5, Truthfulness). The termination letter directed that "[e]ach violation...