Pima County v. Pima County Law Enforcement

• Decision Date: 21 September 2005
• Docket Number: No. CV-04-0356-PR.,CV-04-0356-PR.
• Citation: 211 Ariz. 224,119 P.3d 1027
• Parties: PIMA COUNTY, a political subdivision of the State of Arizona, and Clarence Dupnik, Pima County Sheriff, Plaintiffs/Appellants, v. PIMA COUNTY LAW ENFORCEMENT MERIT SYSTEM COUNCIL and Georgia Brousseau, Michael Hellon, Herschella Horton, Rosemary Marquez, Paul Julien, and James Watson, in their official capacities, and acting as Pima County Law Enforcement Merit System Council, Defendants/Appellees, Joseph Harvey, Real Party in Interest.
• Court: Arizona Supreme Court

119 P.3d 1027

211 Ariz. 224

PIMA COUNTY, a political subdivision of the State of Arizona, and Clarence Dupnik, Pima County Sheriff, Plaintiffs/Appellants, v. PIMA COUNTY LAW ENFORCEMENT MERIT SYSTEM COUNCIL and Georgia Brousseau, Michael Hellon, Herschella Horton, Rosemary Marquez, Paul Julien, and James Watson, in their official capacities, and acting as Pima County Law Enforcement Merit System Council, Defendants/Appellees Joseph Harvey, Real Party in Interest.

No. CV-04-0356-PR.

Supreme Court of Arizona, En Banc.

September 21, 2005.

Gabroy, Rollman & Bossé, P.C. by John Gabroy, Lyle D. Aldridge, Richard A. Brown, Tucson, Attorneys for Pima County and Clarence Dupnik, Pima County Sheriff.

Corey & Kime by Barry M. Corey, Michelle S. Michelson, Jason E. Smith, Tucson, Attorneys for Pima County Law Enforcement Merit System Council, Georgia Brousseau, Michael Hellon, Herschella Horton, Rosemary Marquez, Paul Julien, and James Watson.

Piccarreta & Davis P.C. by Michael L. Piccarreta, Jefferson L. Keenan, Michael W. Storie, Tucson, Attorneys for Joseph Harvey.

OPINION

BERCH, Vice Chief Justice.

¶ 1 This case arises out of the dismissal of Deputy Sheriff Joseph Harvey from the Pima County Sheriff's Office. We granted review to decide whether Pima County Law Enforcement Merit System Council ("LEMSC") Rule XIII-4(I), which gives the Council broad discretion to revoke or modify the employer's disciplinary action, is consistent with "recognized merit system principles of public employment," as required by Arizona Revised Statutes ("A.R.S.") section 38-1003 (Supp.2004), and therefore whether the Council's reinstatement of Deputy Harvey was lawful. We conclude that Pima County LEMSC Rule XIII-4(I) is consistent with A.R.S. § 38-1003.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 Deputy Harvey testified in a criminal case that to effectuate an arrest, he had hit the arrestee with the butt of his gun and later slapped the handcuffed, shackled, and wounded man. He stated that he slapped the arrestee not only to elicit incriminating statements, but also to keep the arrestee from losing consciousness before medical personnel arrived.

¶ 3 After reviewing that testimony and other reports of the incident, Pima County Sheriff Clarence Dupnik concluded that Deputy Harvey had used excessive force, engaged in inappropriate interview techniques, and showed poor judgment. Dupnik decided to terminate Harvey's employment. The termination notice cited the arrest incident and also alleged other rule and policy infractions, including Harvey's "career-long pattern of failure and/or unwillingness to comply with Department Rules and Regulations," his disregard of commands from a fellow officer, his absence without leave to drive an intoxicated friend home, and his inclusion of false information on booking forms.

¶ 4 Harvey appealed his termination to the Pima County Law Enforcement Merit System Council. He testified before the hearing officer that he had slapped the arrestee to revive him, not solely to elicit incriminating statements. Officers who witnessed the incident corroborated Harvey's account. Some law enforcement supervisors, however, testified that slapping a suspect is not an acceptable way to render first aid. Harvey did not deny the other accusations of misconduct, but minimized them. He questioned the timing of his termination, which occurred nearly eighteen months after the incident with the arrestee.

¶ 5 The hearing officer accepted Harvey's version of the slapping incident and found that it did not warrant discipline. For the other infractions, the hearing officer recommended the imposition of lesser sanctions than dismissal. The Council unanimously adopted the hearing officer's recommendations.

¶ 6 Pima County and Sheriff Dupnik sought review by filing a special action in the superior court. Finding no arbitrary or capricious actions by the Council or abuse of the Council's discretion, the court denied relief.

¶ 7 Pima County and Sheriff Dupnik appealed. The court of appeals reversed the superior court decision, concluding that A.R.S. § 38-1003, which limits the Council's authority to those powers exercised "pursuant to recognized merit system principles of public employment," requires deference to the discipline imposed by the Sheriff. Pima County v. Pima County Law Enforcement Merit Sys. Council, 209 Ariz. 204, 208, ¶¶ 13-14, 99 P.3d 19, 23 (App.2004) ("Harvey"). The court of appeals examined several merit system cases, from which it deduced that the legislature had "recognized" review of employer actions by the "arbitrary and capricious" standard of review as a merit system principle. Id. at 208-09, ¶ 16, 99 P.3d at 23-24. It therefore concluded that a similarly deferential standard of review was required for all merit system councils and that the less deferential standard of review set forth in LEMSC Rule XIII-4(I) violated A.R.S. § 38-1003. Id. at 210, ¶ 22, 99 P.3d at 25.

¶ 8 We granted review. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶ 9 The powers and duties of a law enforcement merit system council are described in A.R.S. § 38-1003. The statute requires each law enforcement merit system council, "pursuant to recognized merit system principles of public employment," to create a process to ensure "fair and impartial" hiring and firing decisions for "all classified law enforcement officers." Id. It also requires each council to adopt rules of procedure and to "[h]ear and review appeals" relating to employee discipline. Id. § 38-1003(5), (6). Nothing in the statute requires a council to adopt any particular standards within those rules. It requires only that the rules and standards selected comport with merit system principles.

¶ 10 As authorized by A.R.S. § 38-1003, the Pima County Law Enforcement Merit System Council adopted rules, including LEMSC Rule XIII-4(I), creating a process for reviewing hiring, discipline, and dismissal decisions relating to Pima County law enforcement officers.

¶ 11 Before 1999, Pima County LEMSC Rule XIII-4(I) required the Council to affirm the employer-imposed discipline unless "the Council determines that the action appealed from was arbitrary or taken without reasonable cause." Harvey, 209 Ariz. at 206, ¶ 7, 99 P.3d at 21. In 1999, however, the Council amended Rule XIII-4(I), replacing the "arbitrary or taken without reasonable cause" standard with a less deferential standard of review. Id. The rule now provides that if the Council finds just cause for the discipline imposed by the employer, the discipline must be affirmed. LEMSC Rule XIII-4(I). But if the Council finds that just cause did not exist, "either (1) because some or all of the charges were not proven to the satisfaction of the Council, and/or (2) whether or not all of the charges were proven, the disciplinary action imposed was, in the sole discretion of the Council, too severe a penalty for the conduct proven," then the Council must revoke or modify the disciplinary action. Id. (emphasis added). Rule XIII-4(I) then confers on the Council "the power to direct appropriate remedial action." Id.¹

¶ 12 We are asked to determine whether the rule, which vests broad discretion in the Council, comports with "recognized merit system principles of public employment," as required by A.R.S. § 38-1003, or whether the rule exceeds the Council's authority.

¶ 13 Interpretation of rules and statutes is a legal matter, which we review de novo. See Bilke v. State, 206 Ariz. 462, 464, ¶ 10, 80 P.3d 269, 271 (2003) (interpreting statute); Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996) (interpreting court rule). Our task in this case is to ascertain what the legislature meant in A.R.S. § 38-1003 by requiring merit system rules to be consistent with "recognized merit system principles of public employment," and then to determine whether Rule XIII-4(I) comports with those principles. See City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984) (stating that court's primary goal in interpreting statutes is to ascertain and give effect to the intent of the legislature). Because administrative agencies derive their powers from their enabling legislation, their authority cannot exceed that granted by the legislature. See Kendall v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965). Thus if Rule XIII-4(I) conflicts with A.R.S. § 38-1003, the rule must yield. See Ariz. State Bd. of Regents v. Ariz. State Pers. Bd., 195 Ariz. 173, 175, ¶ 9, 985 P.2d 1032, 1034 (1999).

A. What are "recognized merit system principles of public employment"?

¶ 14 The phrase "recognized merit system principles of public employment" is not defined in A.R.S. § 38-1003 or in the legislative history accompanying that statute. Generally, however, merit systems embrace the notion that hiring, retention, and dismissal of public employees should be based on the employees' merit and competence, and not on political considerations. See Donaldson v. Sisk, 57 Ariz. 318, 330-31, 113 P.2d 860, 865 (1941); 15A Am.Jur. 2D Civil Service § 1 (2000). In addition, this court has recognized that a proper merit system must provide an aggrieved merit system employee with a hearing in front of a neutral body before discipline decisions become final. See, e.g., City of Phoenix v. Sittenfeld, 53 Ariz. 240, 246-47, 88 P.2d 83, 86 (1939); see also Hamilton v. City of Mesa, 185 Ariz. 420, 424-25, 916 P.2d 1136, 1140-41 (App.1996); Deuel v. Ariz. State Sch. for the Deaf and Blind, 165 Ariz. 524, 526-27, 799 P.2d 865, 867-68 (App.1990) (setting forth due process rights of covered public employees); accord 5 U.S.C. § 2301 (1996) (setting forth federal merit system principles); see generally Daryl Manhart, Commment, Property and Liberty Limitations on the Dismissal of Arizona Public Employees, 1977 Ariz. St. L.J. 835, 853-54 [hereinafter "Manhart"] ...