McMichael-Gombar v. Phx. Civil Serv. Bd.

• Decision Date: 23 June 2022
• Docket Number: 1 CA-CV 21-0469
• Citation: 73 Arizona Cases Digest 4,514 P.3d 929
• Parties: Stefani MCMICHAEL-GOMBAR, Petitioner/Appellant, v. PHOENIX CIVIL SERVICE BOARD, et al., Respondents/Appellees. City of Phoenix, Real Party in Interest/Appellee.
• Court: Arizona Court of Appeals

73 Arizona Cases Digest 4

514 P.3d 929

Stefani MCMICHAEL-GOMBAR, Petitioner/Appellant,

v.PHOENIX CIVIL SERVICE BOARD, et al., Respondents/Appellees.

City of Phoenix, Real Party in Interest/Appellee.

No. 1 CA-CV 21-0469

Court of Appeals of Arizona, Division 1.

FILED June 23, 2022

AS AMENDED June 23, 2022

AS AMENDED July 11, 2022

Steven J. Serbalik, PLC, Scottsdale, By Steven J. Serbalik, Counsel for Petitioner/Appellant

Gammage & Burnham, PLC, Phoenix, By Richard K. Mahrle, Counsel for Respondents/Appellees City of Phoenix Civil Service Board

The Office of the City Attorney, Phoenix, By Cris Meyer, Polly S. Rapp, Counsel for Real Party in Interest/Appellee City of Phoenix

Judge Angela K. Paton delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass joined.

PATON, Judge:

¶1 Retired City of Phoenix Police Sergeant Stefani McMichael-Gombar appeals from the superior court's order declining special action jurisdiction over her complaint against the City of Phoenix ("City"), the City of Phoenix Civil Service Board ("Board" or "Civil Service Board"), and the individual members of the Board, for failing to allow her to present evidence that a sanction against her violated her First Amendment rights.

¶2 We hold, as a matter of first impression, that the unique language of the Phoenix City Charter requires the Civil Service Board to consider McMichael-Gombar's argument and evidence that a sanction against her violated her First Amendment rights as a citizen. We therefore vacate the superior court's order and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3 The City suspended McMichael-Gombar for twenty-four hours for a post she made on her private Facebook page that allegedly violated the Phoenix Police Department's Social Media Policy. The substance of her post is not in the record. She appealed the suspension to an appointed hearing officer through the City's personnel system. See Phoenix Interim Personnel Rule ("IPR") 22(d). McMichael-Gombar did not dispute making the post but argued the Social Media Policy was "overbroad and unconstitutional" and the sanction "excessive" given that her post was private. See id. at (e)(3)(B). The City moved in limine to preclude her from presenting evidence on the constitutionality of the Social Media Policy or "how it impacted her ability to participate in her private affairs and express her First Amendment rights" at the hearing. The hearing officer granted the City's motion and subsequently upheld her suspension.

¶4 McMichael-Gombar appealed the hearing officer's rulings to the Civil Service Board. See id. at (i). She asserted that the Social Media Policy was "overbroad and unconstitutional - both on its face and as applied." The Board's attorney advised the Board that, consistent with the Board's legal position since 1979, its role did not include considering constitutional issues, noting that "[w]e have volunteers from the community on the Civil Service Board. They are not constitutional scholars." The Board upheld the hearing officer's grant of the motion in limine and McMichael-Gombar's sanction without considering McMichael-Gombar's constitutional arguments.

¶5 McMichael-Gombar sought discretionary special action review in the superior court. The court declined to take jurisdiction, reasoning in favor of the Board's position: "[t]he Board had the obligation to ensure that the City proved that the charges against petitioner were true and that the level of discipline was appropriate. Petitioner was free to present evidence that was relevant to these matters. The Board did what it was required to do."

¶6 McMichael-Gombar timely appealed the superior court's final order. See Ariz. R. Civ. P. 54(c). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12–2101(A)(1). See also Bridgeman v. Certa , 251 Ariz. 471, 473, ¶¶ 2-3, 493 P.3d 898, 900 (App. 2021) (discussing A.R.S. § 12-2101(A)(1) ).

DISCUSSION

¶7 McMichael-Gombar argues that the Board erred when it prohibited her from raising her constitutional arguments to the Board. We agree. The Board relied on an incorrect reading of the Phoenix City Charter in concluding that it could not consider McMichael-Gombar's constitutional arguments.

I. Standard of Review

¶8 This action comes as an appeal from a denial of jurisdiction over a special action. "We conduct a bifurcated review of an appeal taken from a non-statutory special action initiated in the superior court." Files v. Bernal , 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57, 58 (App. 2001) (citing Bazzanella v. Tucson City Ct. , 195 Ariz. 372, 988 P.2d 157 (App. 1999) ). If the superior court declined jurisdiction, we ordinarily limit our review to whether the superior court abused its discretion, and if so, remand for the court to take jurisdiction. Bilagody v. Thorneycroft , 125 Ariz. 88, 92, 607 P.2d 965, 969 (App. 1979) (citing Genda v. Super. Ct. , 103 Ariz. 240, 439 P.2d 811 (1968) ). "But, when the superior court's ruling hinge[s] on pure issues of law, we review its legal conclusions de novo."

Ariz. Libertarian Party, Inc. v. Bd. of Supr's of Cochise Cnty. , 205 Ariz. 345, 346, ¶ 2, 70 P.3d 1146, 1147 (App. 2003) (cleaned up).

¶9 The superior court based its ruling declining jurisdiction on a finding that the Board had not abused its discretion, assessing the merits of the special action claim. See Ariz. R.P. Spec. Act. 3(c). Because this is a question of law, we must address the merits de novo. Ariz. Libertarian Party , 205 Ariz. at 346, ¶ 2, 70 P.3d at 1147 (quoting Norgord v. State ex rel. Berning , 201 Ariz. 228, 230, ¶ 4, 33 P.3d 1166, 1168 (App. 2001) ).

II. The City Charter requires the Civil Service Board to consider employees’ constitutional arguments when reviewing disciplinary actions.

¶10 The critical issue is whether the Board's action was "illegal in that it was arbitrary, capricious or involved an abuse of discretion." Woerth v. City of Flagstaff , 167 Ariz. 412, 417, 808 P.2d 297, 302 (App. 1990) (quoting City of Tucson v. Mills , 114 Ariz. 107, 111, 559 P.2d 663, 667 (App. 1976) ). A review of a city personnel board decision is limited. Woerth , 167 Ariz. at 417, 808 P.2d at 302. The court's role is not to "consider the propriety of the [Board's] findings nor substitute its judgment for that of the [Board]." Id. (quoting Mills , 114 Ariz. at 111, 559 P.2d at 667 ). An error of law, however, constitutes an abuse of discretion. Hubert v. Carmony , 251 Ariz. 531, 533, ¶ 7, 494 P.3d 592, 594 (App. 2021) (citing State v. Bernstein , 237 Ariz. 226, 228, ¶ 9, 349 P.3d 200, 202 (2015) ); see Maricopa Cnty. Sheriff's Off. v. Maricopa Cnty. Emp. Merit Sys. Comm'n , 211 Ariz. 219, 224, ¶¶ 22-24, 119 P.3d 1022, 1027 (2005) (reversing merit commission decision based on an incorrect application of the law). We review questions of law de novo, including the interpretation of a city charter. Piccioli v. City of Phoenix , 249 Ariz. 113, 118, ¶ 15, 466 P.3d 1166, 1171 (2020) (citing Twin City Fire Ins. Co. v. Leija , 244 Ariz. 493, 495, ¶ 10, 422 P.3d 1033, 1035 (2018) ).

a. The City Charter and Personnel System

¶11 A city charter is "effectively, a local constitution." City of Tucson v. State , 229 Ariz. 172, 174, ¶ 10, 273 P.3d 624, 626 (2012) (citing Ariz. Const. art. 13, § 2 ). When interpreting a city charter, we give words their ordinary meaning, Piccioli , 249 Ariz. at 118, ¶ 15, 466 P.3d at 1171 (citing Wade v. Ariz. State Ret. Sys. , 241 Ariz. 559, 562, ¶ 14, 390 P.3d 799, 802 (2017) ), unless the context suggests otherwise. Piccioli , 249 Ariz. at 118, ¶ 15, 466 P.3d at 1171 (citing Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) ). In interpreting a specific city charter provision, we also examine associated charter provisions. Piccioli , 249 Ariz. at 118, ¶ 15, 466 P.3d at 1171 (citing Stambaugh , 242 Ariz. at 509, ¶ 7, 398 P.3d at 575 ).

¶12 A merit board "is bound to act in accordance with" the City Charter provision which created it, "and the rules and regulations which [the board] has established under" that authority. See Stant v. City of Maricopa Emp. Merit Bd. , 234 Ariz. 196, 200, ¶ 13, 319 P.3d 1002, 1006 (App. 2014) (quoting City of Phoenix v. Sittenfeld , 53 Ariz. 240, 245, 88 P.2d 83 (1939) ). "As a City Charter institution, the [Phoenix] Civil Service Board's authority and powers are pre-eminent over any board, commission or institution created by City ordinance when touching upon the same subject matter." City of Phoenix v. Phoenix Emp. Rels. Bd. , 207 Ariz. 337, 341, ¶ 12, 86 P.3d 917, 921 (App. 2004) (citing Paddock v. Brisbois , 35 Ariz. 214, 276 P. 325 (1929) ).

¶13 Here, the superior court correctly looked to the City of Phoenix Charter and the Board's duties in its analysis. See generally Phoenix, Ariz., Charter, Ch. XXV, "Personnel System," §§ 1 (Purpose and policy), 2 ([Composition of the] Civil Service Board), 3 (Powers and duties of the Board).

¶14 Chapter XXV, Section 1 of the City Charter requires the City to establish a merit system according to specified merit principles. Section 2 creates the Civil Service Board, consisting of "five (5) residents, citizens and electors of the City." Section 3 enumerates the Board's specific powers and duties. For example, Section 3(2) requires the Board to submit advisory reports to the Phoenix City Council "regarding the activities of the Board as they relate to the application of merit principles in City personnel management ." (Emphasis added). Section 3(3) provides that "the Board shall hear appeals from disciplinary demotions, discharges, and suspensions by classified employees who have completed the prescribed probationary period. The Board may delegate the authority to conduct hearings to hearing officers. The decisions of the Board shall be final and binding." Section 3(5) authorizes the Board to "[h]ear appeals from classified employees from...