Pinal County v. Pinal County Employee Merit

• Decision Date: 25 July 2005
• Docket Number: No. 2 CA-CV 2004-0160.,2 CA-CV 2004-0160.
• Citation: 116 P.3d 624,211 Ariz. 12
• Parties: PINAL COUNTY, Plaintiff/Appellant, v. PINAL COUNTY EMPLOYEE MERIT SYSTEM COMMISSION and Richard Serb, Defendant/Appellee.
• Court: Arizona Supreme Court

116 P.3d 624

211 Ariz. 12

PINAL COUNTY, Plaintiff/Appellant, v. PINAL COUNTY EMPLOYEE MERIT SYSTEM COMMISSION and Richard Serb, Defendant/Appellee.

No. 2 CA-CV 2004-0160.

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

July 25, 2005.

Green & Baker, By Katherine E. Baker and Diane L. Bornscheuer, Scottsdale, for Plaintiff/Appellant.

Fitzgibbons Law Offices, P.L.C., By Denis M. Fitzgibbons, Casa Grande, Bihn & McDaniel, P.L.C., By Martin A. Bihn, Phoenix, for Defendant/Appellee Richard Serb.

OPINION

PELANDER, Chief Judge.

¶ 1 The Pinal County Sheriff's Department (PCSD) terminated appellee Richard Serb's employment as a PCSD detention officer after he assaulted a fully restrained inmate. Serb appealed to the Pinal County Employee Merit System Commission ("Commission") pursuant to A.R.S. § 11-356(B). After an evidentiary hearing, the Commission overturned PCSD's termination decision, without imposing any other disciplinary measure, and granted Serb's request for reinstatement with full back pay and benefits. PCSD then filed this action for judicial review. See A.R.S. §§ 11-356(D), 12-901 to 12-914. Based on its administrative review of the record, the superior court affirmed the Commission's decision and awarded attorney fees to Serb. On appeal, appellant Pinal County argues the Commission erred in revoking PCSD's disciplinary action.¹ We agree and, therefore, reverse the decisions of the superior court and the Commission.

BACKGROUND

¶ 2 Although the material facts are undisputed, as the parties acknowledged at oral argument in this court, we review the evidence adduced at the hearing and reasonable inferences therefrom in the light most favorable to upholding the Commission's decision. See Rios Moreno v. Ariz. Dep't of Econ. Sec., 178 Ariz. 365, 367, 873 P.2d 703, 705 (App.1994). In August 2002, Serb was on duty in the Pinal County Jail when he observed an inmate sliding a note under the door of a cell. When Serb ordered him to stop, the inmate cursed at him, walked to another cell, and slid another note under the door. Serb then ordered the inmate to "lock down" by returning to his cell and closing the door. The inmate again cursed at Serb, who repeated the order to "lock down." The inmate then started walking away from his cell, so Serb left his desk to meet him. The inmate continued cursing but returned to his cell and slammed the door closed "so hard that it popped back open."

¶ 3 Serb entered the cell, and the inmate took "an aggressive stance." Serb placed him in handcuffs, took him to the "attorney booth," and went back to check on the rest of the unit. While in the "attorney booth," the inmate kicked and banged on the door and was "verbally abusive" to officers walking past. When Serb and another officer went in to talk to the inmate, he continued his "verbal abuse." The inmate again made an "aggressive move," and the officers restrained him. They took the inmate to the "multi purpose room" and put him in a "restraint chair," leaving one hand free.²

¶ 4 Another officer later reported to Serb that the inmate had removed some screws from a nearby electrical outlet. Serb and his sergeant went to the room, took the screws from the inmate, and restrained his other hand. Serb told the inmate he would be charged with destruction of property, and the inmate continued cursing at Serb. Serb then told the inmate, "You are not very smart, are you?" The inmate responded, "Well, you are not either." Serb replied, "Yeah, but the difference between me and you is I go home everyday." The inmate then said, "You're going home to that f****** b**** wife of yours." Serb then slapped the inmate across the face while he was still in full restraints. According to another officer who witnessed the incident, Serb walked out the door of the room, "put his hands up on the wall for a couple seconds, turned, [and] walked back into the room." He then removed either his duty belt or "belt keeper," threw it down, and stated, "Let this mother f***** out of the chair and see how bad he really is."³

¶ 5 Serb's sergeant ordered him out of the room, and shortly thereafter Serb reported to his superiors the fact that he had struck the inmate. Serb testified that the inmate's comment about his wife had "hit the wrong button at that moment in time" because she had significant health problems and on "[t]hat particular day [he] was worried about her." After an internal affairs investigation, PCSD charged Serb with violations of the Pinal County Employee Uniform Merit Rules and the Pinal County Sheriff's Discipline Policy Manual and General Orders, and terminated his employment.⁴

¶ 6 At the conclusion of its hearing, the Commission (by a three to one vote, with the fifth member abstaining) rejected the termination and reinstated Serb to his position. This appeal followed the superior court's affirmance of that decision.

DISCUSSION

¶ 7 The county contends that in reviewing PCSD's decision to fire Serb, "[t]he Merit Commission and Superior Court failed to apply the required deferential standard of review."⁵ The county also maintains "[t]he Merit Commission had no authority to revoke the discipline." We review de novo the superior court's ruling affirming the Commission's decision and "may substitute our opinion for that of the superior court because we are reviewing the same record." See M & M Auto Storage Pool, Inc. v. Chemical Waste Mgmt., Inc., 164 Ariz. 139, 143, 791 P.2d 665, 669 (App.1990); see also Pima County v. Pima County Merit Sys. Comm'n, 189 Ariz. 566, 569, 944 P.2d 508, 511 (App.1997) (Mathis) (absent trial de novo in superior court, "same standards of review apply on appeal from the superior court to this court").

¶ 8 We also review de novo the administrative decision to determine "whether the Merit Commission acted illegally, arbitrarily, or capriciously, or whether it abused its discretion." Id.; see also Maricopa County v. Gottsponer, 150 Ariz. 367, 370, 723 P.2d 716, 719 (App.1986). In making that determination, we focus on and independently review the legal question of "[w]hether substantial evidence supports the Merit Commission's findings." Mathis, 189 Ariz. at 569, 944 P.2d at 511. And, we recognize the different functions served by merit commissions and courts in this context. Because the Commission acts as a quasi-judicial, fact-finding body, it, not this court, determines the credibility of witnesses, reconciles conflicting evidence, and weighs the sufficiency of the evidence presented to it in the appeal process. Id. at 568, 944 P.2d at 510; see also Pima County v. Pima County Law Enforcement Merit Sys. Council, 128 Ariz. 62, 63, 623 P.2d 851, 853 (App.1980) (Klein).

¶ 9 The County Employee Merit System authorizes a county employer, or "appointing authority," to dismiss an employee "by written order, stating specifically the reasons for the action."⁶ A.R.S. § 11-356(A). A merit commission may modify or revoke the decision of an appointing authority "only if its action was arbitrary or taken without reasonable cause, or the penalty imposed was `so disproportionate . . . as to be shocking to a sense of fairness.'"⁷ Pima County v. Pima County Merit Sys. Comm'n, 186 Ariz. 379, 381, 923 P.2d 845, 847 (App.1996) (Logan), quoting Gottsponer, 150 Ariz. at 372, 723 P.2d at 721.

¶ 10 An appointing authority's disciplinary action is "arbitrary" if it is "`unreasoning action, without consideration and in disregard of the facts and circumstances.'" Mathis, 189 Ariz. at 568, 944 P.2d at 510, quoting Tucson Pub. Sch. Dist. No. 1 v. Green, 17 Ariz.App. 91, 94, 495 P.2d 861, 864 (1972). Reasonable cause implies "some substantial shortcoming which renders the continuance of the officer in his position detrimental to the discipline or efficiency of the service." Civil Serv. Comm'n v. Livingston, 22 Ariz.App. 183, 187, 525 P.2d 949, 953 (1974). If a commission finds that "the evidence does not support the charge," it must revoke the disciplinary order as arbitrary or lacking reasonable cause. Mathis, 189 Ariz. at 568, 944 P.2d at 510.

¶ 11 Here, although it conducted a full-day evidentiary hearing, the Commission did not expressly find whether the evidence supported or failed to support the charges against Serb. Its written "findings of fact" merely describe the testimony of the various witnesses and state that Serb "allegedly assaulted a restrained inmate by hitting [him] in the face with his open hand. Serb also allegedly was using rude and insulting language as to put the inmate in an aggravated state." But based on uncontroverted evidence adduced at the hearing and the commissioners' recorded, post-hearing discussion about the charges, it is clear that Serb's having committed the acts charged was undisputed.⁸ In fact, Serb admitted to having hit the inmate, and the evidence was uncontroverted that Serb subsequently had asked other officers to let the inmate "up out of the chair and . . . see how bad he is."

¶ 12 Thus, because the Commission implicitly "determine[d] the evidence support[ed] the charge[s]," some form of disciplinary action "not otherwise prohibited" was warranted. Id. at 568, 569, 944 P.2d at 510, 511. In its deliberations and decision, the Commission apparently questioned the permissibility of PCSD's termination decision and focused on a portion of PCSD's Discipline Policy Manual (the manual) that addressed excessive force. That section provided progressive discipline for first, second, and third offenses that also "depend[ed] on [the] extent of injury." The Commission concluded that the section of the manual "regarding Excessive Force was vague in that it said that it depends on the extent of the injuries and the minimum discipline action for a [first] Offense ranged from a Performance Improvement Recommendation to 15 days off." To the extent that statement suggests that termination was not permitted, we disagree.

¶ 13 The very first paragraph of the manual's pertinent section on which the...