LaWALL v. PIMA COUNTY MERIT COMMISSION And SCAMMON

FILED BY CLERK
IN THE COURT OF APPEALS MAR 15 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

BARBARA LaWALL, Pima County )
Attorney, )
)
Plaintiff/Appellee, )
) 2 CA-CV 2005-0140
v. ) DEPARTMENT B
)
PIMA COUNTY MERIT SYSTEM ) OPINION
COMMISSION; GEORGIA )
BROUSSEAU, Chairman; MIKE )
HELLON, RICHARD HUFF, MANUEL )
MEDINA, and MIKE MINCHEFF, in )
their official capacities, )
)
Defendants/Appellants, )
)
and )
)
JOANN SCAMMON, a single woman, )
)
Real Party in Interest/Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C-20053047

Honorable Carmine Cornelio, Judge

REVERSED AND REMANDED
Barbara LaWall, Pima County Attorney
By Leslie K. Lynch Tucson
Attorneys for Plaintiff/Appellee

Corey & Kime
By Barry M. Corey and Jason E. Smith Tucson
Attorneys for Defendants/Appellants

Joann Scammon Tucson
In Propria Persona

B R A M M E R, Judge.

¶1 The Pima County Merit System Commission appeals from a decision of the

superior court in a special action filed by Barbara LaWall, the Pima County Attorney. The

trial court found the Commission lacked jurisdiction to hear a claim of coerced resignation

by an employee of the county attorney’s office (PCAO), real party in interest Joann

Scammon. We reverse.

Factual and Procedural Background

¶2 Scammon resigned from her position with the PCAO effective June 1, 2004.

The PCAO had previously mailed Scammon a notice of intent to terminate her, but she

apparently had not read the notice before she submitted her resignation.1 Scammon filed an

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Pima County Merit System Rule 12 outlines a three-step procedure for the county to
terminate an employee. The employee is first given a notice of intent to terminate, after
which there must be a pre-action meeting between the supervisor and the employee, followed
by an order of termination, which the employee may appeal to the Commission. See Merit
Sys. R. 12, available at http://www.pima.gov/hr/pdf/MeritRules.pdf.

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administrative appeal with the Commission on June 4, alleging her resignation as a victim

witness advocate for the PCAO had been coerced and she had suffered a “constructive

termination and unlawful discrimination.” The PCAO filed a motion to dismiss the appeal,

asserting a lack of subject matter jurisdiction. The Commission denied the motion, but

continued the appeal pending the filing of the PCAO’s special action in superior court.

¶3 The special action complaint alleged the Commission had exceeded its subject

matter jurisdiction in denying the motion to dismiss the appeal. Following oral argument,

the trial court ruled the Commission “lacks authority to hear Ms. Scammon’s Appeal.” The

trial court noted “[i]t is undisputed that Ms. Scammon was not terminated pursuant to the

three-step procedure set forth in the Pima County Merit System Rules, and that the Pima

County Attorney’s Office never issued a written Notice of Termination.” The trial court

determined the enabling statutes for the Commission, A.R.S. §§ 11-351 through 11-356, must

be construed narrowly and the Commission may only hear an employee’s appeal following

a written order terminating that employee. This appeal followed.

Discussion

¶4 We review a trial court’s interpretation of rules and statutes de novo. Pima

County v. Pima County Law Enforcement Merit Sys. Council (Harvey), 211 Ariz. 224, ¶ 13,

119 P.3d 1027, 1030 (2005). The statutes at issue are A.R.S. §§ 11-351 through 11-356,

which govern county employee merit systems. These statutes permit a county, by resolution

of its board of supervisors, to “adopt a limited county employee merit system for any and all

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county . . . employees.” § 11-352(A). Section 11-353 mandates that the board, after

adopting such a resolution, appoint a merit system commission. Section 11-354 defines the

powers and duties of a commission as those “necessary to carry out the provisions of this

article.” The procedure for employee appeals is set forth in § 11-356, which provides:

A. Any officer or employee in the classified civil
service may be dismissed, suspended or reduced in rank or
compensation by the appointing authority after appointment or
promotion is complete only by written order, stating specifically
the reasons for the action. The order shall be filed with the clerk
of the board of supervisors and a copy thereof shall be furnished
to the person to be dismissed, suspended or reduced.

B. The officer or employee may within ten days after
presentation to him of the order, appeal from the order through
the clerk of the commission. Upon the filing of the appeal, the
clerk shall forthwith transmit the order and appeal to the
commission for hearing.

C. Within twenty days from the filing of the appeal, the
commission shall commence the hearing and either affirm,
modify or revoke the order. The appellant may appear
personally, produce evidence, have counsel and, if requested by
the appellant, a public hearing.

D. The findings and decision of the commission shall be
final, and shall be subject to administrative review as provided
in title 12, chapter 7, article 6.

The Pima County Merit System Rules (MSR) state: “For the purposes of employee appeals

pursuant to these Rules, a resignation in lieu of dismissal shall be deemed to be a dismissal.”

MSR 1.29, available at http://www.pima.gov/hr/pdf/MeritRules.pdf. Because MSR 14.1

permits an employee to appeal a dismissal to the Commission, it therefore appears the MSR

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allow an employee to appeal a “resignation in lieu of dismissal.” The Commission argued

to the trial court that a coerced resignation or constructive discharge is a “resignation in lieu

of dismissal,” which permits Scammon to appeal to the Commission if it finds her resignation

was involuntary.2

¶5 The Commission contends a “personnel action form,” the official record of

Scammon’s resignation, can constitute a “written order” meeting the requirements of

§ 11-356(A).3 However, the Commission did not make this argument in the trial court and,

therefore, has waived it. See Cohn v. Indus. Comm’n, 178 Ariz. 395, 398, 874 P.2d 315, 318

(1994). Even if the argument were not waived, the trial court made a factual finding that

there was no written order of termination, and no personnel action form is in the record on

appeal. We presume the record supports the trial court’s finding. See Baker v. Baker, 183

Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).

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As the trial court noted, the Commission believes that its jurisdiction hinges on the
factual determination of whether Scammon’s dismissal was coerced and that it should be
permitted to decide this factual issue to determine if it can properly exercise jurisdiction. The
trial court pointed out: “The Commission has not clearly stated . . . what will occur if it
makes a finding of coercion” and hears the appeal. In its opening brief, the Commission
claims the PCAO would have to “substantiate a basis for dismissal” at a hearing before the
Commission if it found Scammon’s resignation had been coerced.
3
A personnel action form differs from a notice of intent to terminate. The latter is the
first step in the MSR termination procedure, while a personnel action form is a record of a
completed action, in this case, the PCAO’s acceptance of Scammon’s resignation. The
Commission has attached a notice of intent to terminate as Appendix 3 to its opening brief
and what purports to be a personnel action form relating to Scammon as Appendix 5.
Because these items are not part of the record on appeal, however, we do not consider them.
See Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993); Ariz. R. Civ. App.
P. 11(a), 17B A.R.S.

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¶6 The Commission argues the county merit commission enabling statutes are

remedial in nature and should be “liberally construed to achieve the special purpose of the

statute[s].” Remedial statutes “are designed to redress existing grievances and introduce

regulations conducive to the public good.” Sellinger v. Freeway Mobile Home Sales, Inc.,

110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974). “[W]e construe remedial statutes liberally

to achieve the special purpose underlying the legislation.” Special Fund Div. v. Indus.

Comm’n (Burrell), 191 Ariz. 149, ¶ 9, 953 P.2d 541, 544 (1998). But, we need not decide

if the statutes are remedial in nature because A.R.S. § 1-211(B) requires “[s]tatutes [to] be

liberally construed to effect their objects and to promote justice.” And “the primary rule of

statutory construction is to find and give effect to legislative intent.” Mail Boxes, Etc., U.S.A.

v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995); see also Holland v.

Williams Mountain Coal Co., 256 F.3d 819, 823 (D.C. Cir. 2001) (because all statutes seek

to remedy some problem, remedial distinction is meaningless). Although we will construe

the statutes in question liberally, Harvey dictates that an agency such as the Commission has

no inherent powers. “Because administrative agencies derive their powers from their

enabling legislation, their authority cannot exceed that granted by the legislature.” Harvey,

211 Ariz. 224, ¶ 13, 119 P.3d at 1030.

¶7 The PCAO insists the language of § 11-356 unambiguously limits the

jurisdiction of the county employee merit system to written orders because § 11-356(A)

allows a dismissal “only by written order” and § 11-356(B) only permits an appeal of such

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order. The PCAO argues, therefore, that because Scammon resigned, the Commission lacks

jurisdiction, even if that resignation was coerced or was a constructive discharge. See Mail

Boxes, Etc., 181 Ariz. at 121, 888 P.2d at 779 (if language of statute is unambiguous, it is

conclusive, absent clearly expressed legislative intent to contrary); Harvey, 211 Ariz. 224,

¶ 13, 119 P.3d at 1030 (administrative agency’s power cannot exceed that granted by

legislature). We disagree. The language in question is not a jurisdictional requirement.

Instead, it protects an employee by dictating the termination procedure and requiring

documentation of the reasons for a discharge. It does not limit the jurisdiction of the county

merit system commission to cases involving written orders. That jurisdiction is granted in

§ 11-352, which permits counties to create a merit system commission, and in § 11-354,

which grants that commission the powers necessary to accomplish the purposes of the merit

system.

¶8 Administrative agencies “have no common law or inherent powers.” Kendall

v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965). This does not mean, however, that

those powers must be, as the PCAO claims, “specifically granted by statute.” See Oracle

Sch. Dist. No. 2 v. Mammoth High Sch. Dist. No. 88, 130 Ariz. 41, 43, 633 P.2d 450, 453

(App. 1981) (“A board or commission . . . has only limited powers and it can exercise no

powers which are not expressly or impliedly granted.”) (emphasis added); see also Long v.

Napolitano, 203 Ariz. 247, ¶ 44, 53 P.3d 172, 185 (App. 2002) (“[W]hat a statute necessarily

implies is as much a part of the statute as what is explicitly stated.”). That an employer under

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§ 11-356(A) may only dismiss an employee by a written order necessarily implies the merit

system commission has authority to ensure that procedure is followed.

¶9 Moreover, to read the “written order” language as a jurisdictional requirement

would be directly at odds with the clearly expressed legislative intent of the county merit

system statutes. The purpose of the system is stated as follows: “The goals and functions

of county employee merit systems are designed to protect employees.” 1981 Ariz. Sess.

Laws, ch. 273, § 1 (emphasis added); see also Wolkin v. Civil Service Comm’n, 21 Ariz. App.

341, 345, 519 P.2d 194, 198 (1974) (purpose of civil service commission is “to provide for

the ‘. . . security of the faithful employee by giving him permanence of employment . . . and

to free such employee from the fear of political and personal prejudicial reprisal’”), quoting

15 Am. Jur. 2d Civil Service § 1 (1964). We fail to see how allowing an employer to avoid

county merit system commission review by coercing an employee’s resignation would serve

the stated legislative purpose of protecting employees.

¶10 Further, when the legislature enacted the county merit system statutes in 1969,

the legislature expressed its intent that the merit system be “adaptable to [the county’s] size

and type.” 1969 Ariz. Sess. Laws, ch. 117, § 1. The legislature also granted county merit

system commissions powers “necessary to carry out the provisions of this article.” § 11-354.

This intended adaptability and grant of authority would be superfluous if the county merit

system commission were limited to reviewing written orders of termination with virtually no

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other powers or duties.4 Moreover, we believe the legislature implicitly expressed a general

intent to grant a commission jurisdiction to address all matters related to dismissals,

suspensions, or reductions in rank by requiring that all such events be executed by written

order and by giving a commission authority to hear appeals from such orders. See § 11-356.

Thus, we deduce the legislature did not intend to limit a county merit system commission’s

review to terminations by written orders.

¶11 Our supreme court’s decision in Burrell lends support to this conclusion. The

statute at issue in Burrell was A.R.S. § 23-1065(C), a component of Arizona’s workers’

compensation act. 191 Ariz. 149, ¶ 9, 953 P.2d at 545. At that time, § 23-1065(C) required

an employer seeking contribution from the Special Fund Division to produce written records

demonstrating its awareness of an employee’s pre-existing disability. 191 Ariz. 149, ¶ 10,

953 P.2d at 545. The court found that requirement was “‘merely evidentiary’” and refused

to construe it in a way that would defeat the purpose of the statute, “to promote the hiring of

disabled or handicapped workers.” Id., quoting Special Fund Div. v. Indus. Comm’n, 189

Ariz. 162, 165, 939 P.2d 795, 798 (App. 1997) (emphasis deleted).

4
We note that § 11-355 seems to grant a county merit system commission the power
to establish qualifications and standards for county positions. The section provides: “The
minimum qualifications or standards prescribed for any class or grade of employment shall
not be less than those prescribed by law for the class or grade of county officers and
employees.” We do not see, however, how a general intent of adaptability and grant of
authority could refer solely to the power to establish qualifications and classifications.

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¶12 Admittedly, Burrell is distinguishable from the present case. A writing existed

in Burrell that made it clear the employer had been aware the employee suffered from a

disability, but the writing did not state the nature of the disability. Id. ¶ 2. That the employer

had been aware of the nature of the disability was proved by testimony. Id. ¶ 3. Here, in

contrast, there is no written order at all. However, we find the underlying reasoning of

Burrell compelling. To construe the written order requirement as jurisdictional would

contravene the purpose of the county merit system commission statutes. As our supreme

court did in Burrell, “[w]e therefore interpret the statute in the manner that best carries out

the legislative purpose.” Id. ¶ 10.

¶13 Ross v. Arizona State Personnel Board, 185 Ariz. 430, 916 P.2d 1146 (App.

1995), is also consistent with our conclusion. Ross, a state employee, “[i]n a stressful

moment at work, . . . told her superiors, ‘I give up. I quit.’” Id. at 431, 916 P.2d at 1147.

Ross maintained she had not intended the statement as a resignation, but instead, as a

manifestation of her intent to cease working on a particular project. Id. at 431-32, 916 P.2d

at 1147-48. Her employer, the Arizona Department of Transportation, interpreted her

statement as a resignation and “told her she could not return to work because her resignation

had been accepted.” Id. at 432, 916 P.2d at 1148. Ross appealed what she called her

“dismissal,” but the state personnel board declined to hear her appeal, claiming it lacked

jurisdiction. Id.

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¶14 The state personnel board’s interpretation of its own rules only permitted an

appeal from a written “disciplinary action.” Id. at 433, 916 P.2d at 1149. The controlling

statute stated: “The personnel board shall hear and review appeals as provided in this article

relating to dismissal from state service, suspension for more than forty working hours or

demotion resulting from disciplinary action as defined in the personnel rules.” The term

“disciplinary action” was not defined in the rules. Id. at 433, 916 P.2d at 1149. The board

contended the term was defined by the procedure its rules mandated, that is, an employer

initiates a disciplinary action in a writing detailing the charges against the employee. Id.

Therefore, the board argued, it lacked jurisdiction to hear the appeal because there was no

such writing. Id. However, the court ruled: “We cannot agree that an employee’s right to

appeal to the Board is conditioned on the employer’s compliance with the personnel rules.”

Id. The court held that, before the board could determine whether it had jurisdiction, it must

first determine if there had been a “dismissal.” Id.

¶15 Ross is not directly on point. The enabling statutes for the state personnel

board give it a broader range of powers and duties than the statutes at issue here give the

Commission. Moreover, the legislature did not condition the state personnel board’s

jurisdiction on the existence of a written order, but only on the existence of a disciplinary

action. Instead, it was the board’s rules that required a written disciplinary action. In

contrast, the written order language central to this case is contained in § 11-356. We note,

however, that an administrative rule has the same effect and force as a statute. See Gibbons

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v. Ariz. Corp. Comm’n, 95 Ariz. 343, 347, 390 P.2d 582, 585 (1964). Further, we agree with

Ross’s guiding principle: an employee’s right to administrative review should not be

eviscerated by the employer’s failure to follow the statutory procedure. Nothing in the

statutes suggests the legislature contemplated or desired such an outcome.

¶16 The Commission also cites cases from other jurisdictions addressing similar

language in merit or civil service commission statutes. In Haberer v. Woodbury County, 560

N.W.2d 571, 574 (Iowa 1997), the Iowa Supreme Court found a civil service commission

could exercise jurisdiction over a constructive discharge claim. The controlling statute, Iowa

Code Ann. § 341A.12, permitted an employee’s removal “only upon written accusation.”

The court found the civil service commission had jurisdiction despite the lack of a written

accusation because a constructive discharge constitutes a “removal” “attributable to the

actions of an employer.” 560 N.W.2d at 574.

¶17 The Wisconsin Supreme Court reached a similar conclusion in Watkins v.

Milwaukee County Civil Service Commission, 276 N.W.2d 775 (Wis. 1979). The governing

statute required the employer to make charges in writing, but the court found the civil service

commission had jurisdiction to hear a claim of coerced resignation. Id. at 780. The court

relied on the purpose of the civil service commission, to give employees “security of tenure

and impartial evaluation,” and noted coerced resignations “pose[] serious possibilities of

abuse.” Id. at 779.

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¶18 The Washington Court of Appeals construed a merit commission statutory

scheme similar to Arizona’s in Micone v. Town of Steilacoom Civil Service Commission, 722

P.2d 1369 (Wash. Ct. App. 1986). The court sanctioned a civil service commission’s

conducting a jurisdictional hearing on an allegation of coerced resignation. Id. at 1371. The

statute in question permitted an employee to be dismissed “only upon written accusation.”

Id. The court found a coerced or involuntary resignation was “equivalent to a discharge” and

would “not comply with the procedural requirement[] [of a written accusation].”

Accordingly, the court held a coerced or voluntary resignation fell within the merit

commission’s jurisdiction. Id.

¶19 We find instructive the cases the Commission cites. Each jurisdiction has

treated a written order or accusation requirement as a procedural burden on the employer, not

a jurisdictional limit on the merit or civil service commission. And the court in Micone

authorized the commission to hear an appeal when an employer failed to comply with its

procedural burden rather than limiting the commission’s ability to proceed. The PCAO cites

no cases, and we have found none, in which a court has ruled that “written order” or “written

accusation” language limits the jurisdiction of a merit or civil service commission.

¶20 We find the “written order” language of § 11-356 to be a procedural

requirement that an employer, here the PCAO, must follow. It is not a jurisdictional limit on

the county merit system commission. To hold otherwise would contradict the legislature’s

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express intent to protect employees from improper dismissals. Accordingly, we reverse the

trial court’s ruling and remand the case for further proceedings consistent with this decision.

J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

PETER J. ECKERSTROM, Presiding Judge

JOSEPH W. HOWARD, Judge

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