Sheridan v. Pima Cnty. Merit Sys. Comm'n

• Decision Date: 11 October 2016
• Docket Number: No. 2 CA-CV 2016-0028,2 CA-CV 2016-0028
• Citation: Sheridan v. Pima Cnty. Merit Sys. Comm'n, No. 2 CA-CV 2016-0028 (Ariz. App. Oct 11, 2016)
• Parties: THERESA SHERIDAN, Plaintiff/Appellant, v. PIMA COUNTY MERIT SYSTEM COMMISSION, Defendant/Appellee, AND PIMA COUNTY ATTORNEY'S OFFICE Real Party in Interest/Appellee.
• Court: Arizona Court of Appeals

THERESA SHERIDAN, Plaintiff/Appellant, v. PIMA COUNTY MERIT SYSTEM COMMISSION, Defendant/Appellee,ANDPIMA COUNTY ATTORNEY'S OFFICE Real Party in Interest/Appellee.

No. 2 CA-CV 2016-0028

ARIZONA COURT OF APPEALS DIVISION TWO

October 11, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20146156

The Honorable Christopher P. Staring, Judge

AFFIRMED

COUNSEL

Theresa Sheridan, Tucson

In Propria Persona

DeConcini McDonald Yetwin & Lacy, P.C., Tucson

By Barry Corey

Counsel for Defendant/Appellee

Barbara LaWall, Pima County Attorney

By Thomas Weaver, Deputy County Attorney, Tucson

Counsel for Real Party in Interest/Appellee

MEMORANDUM DECISION

Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard concurred.

MILLER, Judge:

¶1 This case arises out of the firing of prosecutor Theresa Sheridan by the Pima County Attorney. The Pima County Merit Commission ("the Commission") affirmed her dismissal and she sought judicial review in the superior court. The superior court affirmed the Commission's decision. Sheridan now appeals, arguing the superior court erred by upholding the decision because, inter alia, the county attorney violated her rights to due process and dismissed her without just cause, the Commission's decision was arbitrary and capricious, and there was no substantial evidence supporting her dismissal. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the Commission's decision. See Golob v. Ariz. Med. Bd. of State, 217 Ariz. 505, n.1, 176 P.3d 703, 705 n.1 (App. 2008).¹ In February 2014, Sheridan was working for the Pima County Attorney's Office, and had been assigned to a case in which thedefendant, Maricela Gray, was charged with driving while there was a drug or its metabolite in her body. Gray's blood tests indicated she had amphetamine and oxycodone in her system, and before trial she disclosed that she intended to use the affirmative defense of having a valid prescription for the drugs. Sheridan moved for additional disclosure of the defendant's prescription records. Judge Teresa Godoy reviewed the records and made redactions. Judge Godoy also ordered the unredacted copy be filed under seal. The order stated that the redacted copies were "available for the parties to pick up in chambers."

¶3 On February 19, a Wednesday, Judge Godoy's judicial administrative assistant (JAA) emailed Sheridan, telling her to "stop by chambers after [her] morning coverage to pick up the patient[']s prescription history." Sheridan responded later that morning, saying she would stop by in the early afternoon before a trial. The JAA answered that the documents would be in the judge's outbox if she was at lunch. Sheridan did not pick up the documents because she was too busy with trial, so she called and left a message the next day saying she would stop by and pick them up.

¶4 Judge Godoy's division was on vacation that Thursday and Friday, but her law clerk was in the office with the door open on Thursday afternoon. The law clerk saw Sheridan just outside the door near the outbox and told her that if she did not find what she was looking for there, she would need to come back on Monday. Sheridan then walked into chambers and said the JAA had told her there would be something for her in the outbox. The law clerk told Sheridan she could come back on Monday because the division was closed. Sheridan then looked through papers on a counter next to the JAA's desk, picked up set of papers with a court order on top, and said she found what she was looking for. The law clerk told Sheridan she was "uncomfortable with [her] taking that." Despite indicating it was the sought-after document, Sheridan also said she did not understand the document. Nonetheless, she put it in in her bag and walked out. The law clerk was not sure Sheridan had heard her say she was uncomfortable.

¶5 When Sheridan returned to her office after hours, she saw that the redacted documents had been sent to her throughinteroffice mail. She then reviewed what she had taken from chambers and noticed there were no black lines indicating redactions. She placed the unredacted documents in an envelope, sent the envelope to the JAA with a note of apology, and sent an email to the JAA on Friday morning. Sheridan did not inform opposing counsel, the court, or any of her superiors about what had occurred.

¶6 Early the next week, the JAA and law clerk discussed the incident and informed Judge Godoy. The judge scheduled a hearing on Tuesday. At the hearing, the law clerk told the court about Sheridan's taking the documents from chambers, and Sheridan explained repeatedly that she "never looked" at the unredacted copy. After the hearing, Judge Godoy called Sheridan's supervisor and told him what had occurred. The supervisor stated it was the first time he had heard about it. In March, Sheridan was given a "letter of counseling," which cited merit system and personnel policies she had violated. The letter stated that it was unprofessional to look through papers on another person's desk without permission and noted that her supervisor had "previously discussed [Sheridan's] interactions and dealing with others, particularly the court, and . . . talked about how [she] need[ed] significant improvement in this area."

¶7 In April, Gray moved for sanctions due to prosecutorial misconduct. At a hearing on that motion, Sheridan testified she had turned over the sheet with the court's order and had seen that the records she had taken were "unredacted, with no black lines." She also said she glanced at the document briefly. Judge Godoy concluded Sheridan had committed intentional prosecutorial misconduct and dismissed the case against Gray. In doing so, the court made six findings: (1) Sheridan ignored the initial request from the law clerk that she return on Monday; (2) she came into chambers uninvited and removed an item against the law clerk's wishes; (3) she looked at the unredacted medical records; (4) she never notified defense counsel; (5) she sent an email to the JAA without copying defense counsel; and (6) she "[a]vow[ed] to the Court six separate times [during the February hearing] that she never looked at the documents."

¶8 Shortly after the hearing on the motion for sanctions, Sheridan was placed on administrative leave with pay "due to an investigation." Sheridan later met with her supervisors at a "pre-action meeting" and was eventually dismissed. Her notice of dismissal cited incompetence, dishonesty, and violation of various county rules of conduct and Arizona Supreme Court Rules and Rules of Professional Conduct.

¶9 Sheridan appealed to the Commission. She argued she was a competent prosecutor who had been truthful and consistent in describing what happened to the documents. After eight days of hearings, the Commission unanimously upheld the dismissal. Each member of the Commission orally explained his or her reasoning. Two members explained that a key factor in their decisions was the difference between Sheridan's avowals at the first hearing—that she never looked at the documents—and her testimony at the later hearing that she had seen the unredacted list. The third member concluded that all of the facts regarding the Gray case, including picking up the documents and failing to inform opposing counsel, showed a "severe lack of judgment."

¶10 Sheridan sought review in the superior court. After an evidentiary hearing and oral argument, in an eleven-page under advisement ruling, the trial court concluded: "Substantial evidence supports the actions of the Pima County Attorney in terminating Ms. Sheridan's employment, and the Commission's decision to uphold the termination and dismiss Ms. Sheridan's appeal. Neither entity has abused its discretion, acted contrary to law, or acted in an arbitrary or capricious manner." The court upheld the dismissal and entered judgment pursuant to Rule 54(c), Ariz. R. Civ. P.

¶11 Sheridan timely appealed.² We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (providing appellatejurisdiction for cases "permitted by law to be appealed from the superior court") and 12-913 (final decision of superior court in action to review decision of administrative agency "may be appealed to the supreme court"). See Svendsen v. Ariz. Dep't of Transp., Motor Vehicle Div., 234 Ariz. 528, ¶ 13, 323 P.3d 1179, 1184 (App. 2014) (construing § 12-913 as allowing appeal to court of appeals).

Discussion

¶12 On appeal from a merit commission's decision pursuant to the Administrative Review Act, the superior court "shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E). On appeal to this court, "we review de novo the superior court's judgment, reaching the same underlying issue as the superior court: whether the administrative action was not supported by substantial evidence or was illegal, arbitrary and capricious, or involved an abuse of discretion." Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, ¶ 13, 153 P.3d 1055, 1059 (App. 2007). Further, "[n]either this court nor the superior court may substitute its judgment for that of the agency on factual questions or matters of agency expertise, but we apply our independent judgment . . . to questions of law, including questions of statutory interpretation and constitutional claims." Lewis v. Ariz. State Pers. Bd., 742 Ariz. Adv. Rep. 14, ¶ 15 (Ct. App. July 7, 2016), quoting Carlson, 214 Ariz. 426, ¶ 13, 153 P.3d at 1059.

¶13 Sheridan argues generally that...