PIMA CTY. v. PIMA CTY. LAW ENFORCEMENT

• Decision Date: 30 September 2004
• Docket Number: No. 2 CA-CV 2004-0004.,2 CA-CV 2004-0004.
• Citation: 99 P.3d 19,209 Ariz. 204
• 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, and Joseph Harvey, Real Party in Interest.
• Court: Arizona Court of Appeals

99 P.3d 19

209 Ariz. 204

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, and Joseph Harvey, Real Party in Interest.

No. -0004.

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

September 30, 2004.

Gabroy, Rollman & Bossé, By John Gabroy, Lyle D. Aldridge, and Richard A. Brown, Tucson, for Plaintiffs/Appellants.

Corey & Kime, By Barry M. Corey and Michelle S. Michelson, Tucson, for Defendants/Appellees.

Piccarreta & Davis, P.C., By Michael L. Piccarreta and Michael Storie, Tucson, for Real Party in Interest.

OPINION

ECKERSTROM, J.

¶ 1 Pima County and the Pima County Sheriff, Clarence Dupnik, appeal from the superior court's denial of relief on their complaint for special action. In that complaint, Dupnik challenged the decision of the Pima County Law Enforcement Merit System Council to reinstate Deputy Sheriff Joseph Harvey, whom Dupnik had terminated, and to award him back pay. The trial court found that the Council had neither employed an unlawful standard for reviewing Dupnik's disciplinary action nor abused its discretion in applying that standard. We review the trial court's ruling de novo. See M & M Auto Storage Pool, Inc. v. Chemical Waste Mgmt., Inc., 164 Ariz. 139, 143, 791 P.2d 665, 669 (App.1990)

("[W]e may substitute our opinion for that of the superior court because we are reviewing the same record."); see also Ariz. Dep't of Corr. v. State Pers. Bd., 202 Ariz. 598, ¶ 8, 48 P.3d 1208, 1210 (App. 2002). We thus stand in the shoes of the trial court, which reviews the boundaries of the Council's legal authority de novo, see Hamilton v. City of Mesa, 185 Ariz. 420, 424, 916 P.2d 1136, 1140 (App.1995), but which may reverse the factual findings of the Council only if they are not supported by substantial evidence. See Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 387, 807 P.2d 1119, 1123 (App.1990). The procedural history and the essential contentions of the parties are set forth below.

¶ 2 Dupnik's review of Harvey's testimony in a criminal case triggered Dupnik's decision to terminate Harvey. In that case, Harvey had conceded under oath that he had straddled and slapped a handcuffed, shackled, and wounded suspect and had done so, in part, with the intent to elicit incriminating statements from the suspect. Harvey also testified that he had had another reason to slap the suspect — to keep him from losing consciousness before medical personnel arrived. Dupnik concluded from this testimony that Harvey had used an "inappropriate interview and interrogation tactic" that demonstrated "poor judgment" and that he had used "excessive... force." After reviewing the facts of that incident, Dupnik and Assistant Chief Deputy Cramer, Dupnik's chief of operations, found unbelievable Harvey's claim that he had slapped the suspect for medical purposes.

¶ 3 In his written notice of termination, Dupnik also referred to a variety of other rule or policy infractions Harvey had committed that, in Dupnik's view, "mirror[ed] a career-long pattern of failure and/or unwillingness to comply with Department Rules and Regulations." Dupnik specifically noted an incident during which Harvey had been insubordinate by disregarding the commands of, and later menacing, a fellow officer. Dupnik also chastised Harvey for placing false information on booking forms "as a joke" while booking arrestees into jail, actions that Dupnik believed demonstrated "poor judgment" and "embarrass[ed] the Department."

¶ 4 Harvey appealed his termination to the Council, and a hearing officer conducted a lengthy evidentiary hearing. In contradiction of his testimony in the suspect's criminal trial, Harvey testified before the hearing officer that he had slapped the suspect solely in an effort to render first aid — and not to elicit an incriminating statement. Several of Harvey's colleagues who had witnessed the incident testified, in essence, that Harvey had not engaged in any inappropriate action in doing so. One testified that he had actually seen an emergency medical technician do something similar on a different occasion. In contrast, numerous law enforcement supervisors, including a retired Tucson chief of police, testified that slapping a suspect for purposes of rendering first aid is not an acceptable practice.

¶ 5 Harvey did not factually dispute that he had placed false information on booking forms and that he had physically menaced a fellow officer for giving him commands while he was off duty. However, he characterized those incidents as minor infractions. Harvey also questioned the timing of Dupnik's decision to terminate him, which did not occur until nearly two years after the slapping incident that had allegedly triggered that decision.

¶ 6 The hearing officer accepted Harvey's testimony that he had intended only to render first aid and had not intended to use force to interrogate the suspect. The hearing officer recommended that Harvey be disciplined short of termination for other policy or rule infractions mentioned in the notice of termination, but recommended no discipline for Harvey's conduct during the arrest. The Council unanimously adopted the hearing officer's recommendations and revoked Dupnik's decision to terminate Harvey. Dupnik and Pima County filed a complaint for special action in superior court. The superior court denied relief, and this appeal followed.

¶ 7 Dupnik and the County argue that the trial court erred in denying relief in their special action, contending the Council reviewed Dupnik's decision under a standard that exceeded its statutory authority. Before 1999, Pima County Law Enforcement Merit System Council Rule XIII-4(I) had provided: "If, after [a] hearing, the Council determines that the action appealed from was arbitrary or taken without reasonable cause, the order shall be revoked or modified; otherwise the order shall be affirmed." In 1999, the Council amended that rule to state:

If, after the hearing, a majority of the Council determines that there was just cause for the disciplinary action imposed, then the order shall be affirmed. If the Council determines that there was not just cause for the disciplinary action taken 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 order shall be revoked or modified. The Council shall have the power to direct appropriate remedial action and shall do so after taking into consideration just and equitable relief to the employee in the best interest of the County and the public.

Dupnik and the County argue that the Council had no authority to substitute its discretion for Dupnik's, as all parties agree the current rule allows. The Council responds that it had authority under A.R.S. § 38-1003. We agree with Dupnik that the Council exceeded its statutory authority when it applied a nondeferential standard in reviewing Dupnik's personnel decision.

¶ 8 First, however, we address the Council's arguments that (1) Pima County is not a proper party to this action, (2) if it is a proper party, it should be judicially estopped from maintaining its asserted position, and (3) Dupnik and the County are barred from bringing this action under the doctrines of res judicata and/or collateral estoppel.

¶ 9 The Council contends that, because A.R.S. § 38-1004(D) expressly authorizes only a "department head" to seek review of the Council's decisions and policies, this court lacks "subject matter jurisdiction of this proceeding as it pertains to Pima County." The County has not responded to this argument other than to say it is merely a variant of the Council's res judicata argument. Although we may conclude that Pima County is not a proper party, see In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App.2001), that conclusion would not divest us of jurisdiction over the subject matter of this action. The Council concedes that Dupnik is a proper party; therefore, all of the issues presented are properly before this court. The Council also concedes that it did not challenge the County's participation in this litigation during the trial court proceedings. Because we conclude the issue is not jurisdictional, we also conclude the Council waived its objection to Pima County's participation by failing to present the issue to the trial court. See Lake Havasu Cmty. Hosp., Inc. v. Ariz. Title Ins. & Trust Co., 141 Ariz. 363, 370, 687 P.2d 371, 378 (App.1984)

(opposing party's lack of standing is not jurisdictional and may be waived if not timely raised), overruled on other grounds by Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987).

¶ 10 The Council's res judicata, collateral estoppel, and judicial estoppel arguments also have been raised for the first time on appeal. At oral argument, the Council maintained that it had implicitly raised the res judicata argument when it urged the trial court to abide by a prior decision of this court that it claimed resolved all relevant legal issues on the validity of the Council's nondeferential standard of review. However, nowhere in that argument do we find any mention of the defenses of res judicata or estoppel, nor did the Council there suggest that Dupnik was precluded from challenging the validity of Council Rule XIII-4, a result required if either affirmative defense applies. Thus, we conclude that the Council did not adequately raise the issues in the trial court and has...