Maricopa County Sheriff's Office v. Maricopa County Employee Merit System Commission

SUPREME COURT OF ARIZONA
En Banc

MARICOPA COUNTY SHERIFF'S OFFICE, ) Arizona Supreme Court
) No. CV-04-0046-PR
)
Plaintiff-Appellant, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 03-0028
)
MARICOPA COUNTY EMPLOYEE MERIT ) Maricopa County
SYSTEM COMMISSION, and DANIEL ) Superior Court
JUAREZ, ) No. CV 2002-001305
)
Defendants-Appellees. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court of Maricopa County
No. CV 2002-001305
The Honorable Gary Donahoe, Judge

REVERSED; REMANDED WITH INSTRUCTIONS

Memorandum Decision of the Court of Appeals, Division One
No. 1 CA-CV 03-0028

VACATED

RICHARD M. ROMLEY, FORMER MARICOPA COUNTY ATTORNEY Phoenix
ANDREW THOMAS, MARICOPA COUNTY ATTORNEY
By Mary C. Cronin, Deputy County Attorney
Attorneys for Maricopa County Sheriff’s Office

KUTAK ROCK, L.L.P. Scottsdale
By Michael W. Sillyman
David M. Park
Attorneys for Maricopa County
Employee Merit System Commission

BIHN & McDANIEL, P.L.C. Phoenix
By Martin A. Bihn
Donna M. McDaniel
And
LAW OFFICE OF LOYD C. TATE Phoenix
By Loyd C. Tate
Attorneys for Daniel Juarez

J O N E S, Justice

¶1 Daniel Juarez, a Maricopa County merit system

employee, worked as a detention officer at the Madison Street

Jail. He also worked in an extra-duty capacity as an employee

of the Maricopa County Sheriff’s Office (the “MCSO”), assigned

to work at the Gran Mercado Swap Meet in Phoenix. During the

evening of February 11, 2001, two individuals were arrested at

the swap meet on suspicion of criminal activity and brought to

the sheriff’s field office. Juarez, assisted by a deputy

sheriff, took the two detainees to the sheriff’s transport van.

¶2 Each detainee was handcuffed in front, with a

separate pair of handcuffs connecting the two. The first

entered the van, but the second resisted and began yelling and

swearing at Juarez. Juarez grabbed the detainee by his shirt

and pushed him into the van, prompting the detainee to kick

Juarez in the upper thigh and groin area. The detainee

continued to yell and swear at him. Juarez then lost composure

and struck the detainee four to five times with a closed fist.

He aimed for the face.

¶3 As Juarez threw the punches, the deputy grabbed

Juarez’ arm, attempting to restrain him both verbally and

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physically. Juarez pulled his arm away and struck at the

detainee at least two more times.

¶4 Based on this incident, the MCSO terminated Juarez’

employment. Although Juarez had been disciplined in 1995 for

using excessive force on an inmate, MCSO did not rely on the

earlier incident in imposing discipline. The discipline, based

on undisputed facts, was consistent with MCSO policy and

practice that an employee who strikes a physically restrained

detainee is subject to discipline up to and including

discharge.

¶5 Juarez appealed the termination decision to the

Maricopa County Employee Merit System Commission (the

“Commission”) which, after an adversary proceeding before a

hearing officer who made recommendations, concluded that some

measure of discipline was appropriate, but that termination

from employment was disproportionate to the offense of striking

a handcuffed detainee. The Commission also disagreed with the

MCSO’s determination that Juarez’ past employment record was

unimportant.

¶6 The Commission reversed Juarez’ termination,

reinstated him to his position, and reduced discipline to a

fifteen-day suspension. The MCSO appealed to the superior

court, which, in its appellate capacity, affirmed the

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Commission’s decision. The MCSO then appealed to the court of

appeals which, in a 2-1 memorandum decision, affirmed the

judgment of the superior court, citing deference to the

Commission’s decision as the standard of review. The MCSO then

petitioned for review in this Court. We have jurisdiction

pursuant to Article 6, Section 5(3), of the Arizona

Constitution, Rule 23 of the Arizona Rules of Civil Appellate

Procedure, and Arizona Revised Statutes (“A.R.S.”) section 12-

120.24.

I.

¶7 We granted review to clarify the role of the Maricopa

County Employee Merit System Commission when a merit system

employee challenges a disciplinary action taken by the

employee’s appointing authority. In today’s opinion, we define

the standard of review by which the Commission, a quasi-

judicial, fact-finding body, must process appeals in cases that

involve employee discipline.

¶8 The employer, referred to in the statute as the

“appointing authority,” is authorized to take disciplinary

action against merit system employees by written order stating

the reasons for the action. A.R.S. § 11-356(A);1 see Pima

1
A.R.S. § 11-356(A) (2001) states,

4
County v. Pima County Merit Sys. Comm’n, 186 Ariz. 379, 381,

923 P.2d 845, 847 (App. 1996) (“Logan”). An employee

dissatisfied with the decision of the appointing authority may

appeal to the Commission, A.R.S. § 11-356(B),2 whose authority

under the statute is broadly stated as the power to “affirm,

modify or revoke the order.” A.R.S. § 11-356(C).3

¶9 Following a hearing in which evidence is presented de

novo, the duty of the Commission is to apply the correct

_____________________________
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.
2
A.R.S. § 11-356(B) (2001) states,

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.
3
A.R.S. § 11-356(C) (2001) states,

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.

5
standard under which the case must be reviewed. While § 11-

356(C) grants the Commission broad authority (“affirm, modify

or revoke”), the statute is silent as to the standard of review

to be applied in appeals to the Commission.

¶10 Because the statute is silent, we turn to the rules

of procedure adopted by Maricopa County to be applied in all

Commission proceedings. Rule 10.16 of the Maricopa County

Employee Merit System Rules sets forth a standard of review

that restricts the Commission’s remedial powers to cases in

which the action appealed from was “arbitrary or taken without

reasonable cause.”4 That standard, applicable to the Maricopa

County Commission,5 was unchallenged by any party to these

proceedings.

4
Rule 10.16 states, in relevant part,

If, after the hearing, a majority of the Commission
members present at the meeting where the vote is
taken determine that the action appealed from was
arbitrary or taken without reasonable cause, the
appeal shall be sustained; otherwise the appeal shall
be dismissed.

(Emphasis added.)
5
Both Maricopa and Pima Counties, by reason of population
in excess of 250,000, are required by statute to create a
“merit system council” (referred to in Maricopa County as a
“commission”) and to adopt “rules and regulations” to ensure
orderly process and to “[h]ear and review appeals from any
[disciplinary] order of the department head” brought by a merit
system law enforcement employee. A.R.S. §§ 38-1002 to 1007
(2001). Rules adopted by counties for the orderly processing

6
 II.

¶11 In the instant case, the Commission acknowledged the

Rule 10.16 standard — “arbitrary or taken without reasonable

cause” — but strayed from its proper application. It reduced

Juarez’ termination to a fifteen-day suspension on the basis

that discipline is necessarily “arbitrary and capricious” if it

is “so greatly disproportionate to the offense . . . that it is

shocking to one’s sense of fairness.” Merit Commission’s

Findings of Fact, Conclusions of Law and Order at 17.

¶12 The “shocking” standard, based on perceived

disproportionality between the seriousness of the offense and

the severity of punishment, is not found in any statute or rule

_____________________________
of merit system appeals vary among the counties. In a separate
opinion issued today by this court, Pima County v. Pima County
Merit Sys. Comm’n, ___ Ariz. ___, ___ P.3d ___ (2005), we
address the Pima County merit system rule, the counterpart to
Maricopa’s Rule 10.16, which contains a “just cause” standard
of review. Contrary to the Maricopa rule, the Pima County
standard gives the council wide discretion to modify
disciplinary action that the council, in its judgment, finds
“too severe.” Maricopa County did not grant its commission
such broad latitude. As today’s two opinions demonstrate, the
divergent rules between counties may, and often will, produce
divergent results on very similar facts. Nevertheless, because
the statute is silent as to a standard of review, we conclude
that either approach is consistent with the mandate in A.R.S. §
38-1003 that county merit system commissions adopt rules
consistent with “recognized merit system principles of public
employment.” For a discussion of the meaning of that language,
see id. at ___, ¶¶ 14-16, ___ P.3d at ___.

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in Arizona and appears to have been a creation of court

decisions. The dilemma this standard presents is that to

determine whether a disciplinary order is “shocking to one’s

sense of fairness” calls for subjective analysis, effectively

engaging the Commission in a determination of the

appropriateness of a disciplinary action as measured against

the seriousness of the offense, thereby opening the door to a

substitution of the Commission’s judgment for that of the MCSO.

In contrast, Rule 10.16, given its plain meaning, creates an

objective standard, requiring the employer’s discipline be

upheld unless “arbitrary or taken without reasonable cause.”

Rule 10.16 limits the Commission to a deferential role,

requiring a determination within fixed legal parameters.

Properly stated, the Commission’s role is strictly an objective

one. It requires deference to the appointing authority’s

decision in all cases in which the appointing authority has

complied with the Rule 10.16 standard. Disposition of this

case therefore depends on a correct understanding of what the

Rule 10.16 standard is, and how it should be applied.

III.

¶13 By way of background, we note that the Commission’s

initial task is to create a record and to ascertain the facts.

Generally, the employer must prove the essential facts

8
warranting discipline by a preponderance of the evidence. The

disciplined employee, of course, is entitled to challenge any

or all factual assertions through his or her own evidence.

When it is determined from the evidence that some level of

discipline is warranted, the Commission then reviews the action

taken by the appointing authority, not in a broad context

requiring that the severity of discipline be measured against

the seriousness of the offense, but in a narrow and deferential

context under a Rule 10.16 analysis, whether the action, viewed

objectively, was “arbitrary or taken without reasonable cause.”

¶14 The terms “arbitrary” and “without reasonable cause”

have been defined in our jurisprudence. In Arizona, “arbitrary

action” has been characterized as “unreasoning action, without

consideration and in disregard of the facts and circumstances.”

Pima County v. Pima County Merit Sys. Comm’n, 189 Ariz. 566,

568, 944 P.2d 508, 510 (App. 1997) (“Mathis”) (quoting Tucson

Pub. Sch. Dist. No. 1 of Pima County v. Green, 17 Ariz. App.

91, 94, 495 P.2d 861, 864 (1972) (“Green”). An “arbitrary”

action is one taken “capriciously or at pleasure,” or an action

taken “without adequate determining principle.” Black’s Law

Dictionary 104 (6th ed. 1990). Similarly, the phrase “without

reasonable cause” indicates the lack of evidence sufficiently

strong to justify a reasonable person in the belief that the

9
acts charged are true. See Mathis, 189 Ariz. at 568, 944 P.2d

at 510 (“If the Merit Commission determines the evidence does

not support the charge giving rise to the action taken, it must

revoke the [disciplinary] order because the action taken was

arbitrary or taken without reasonable cause.”).

¶15 Both terms — “arbitrary” and “without reasonable

cause” — require analysis by reference to these governing

principles. The role of the Commission is thus limited as a

matter of law. The Rule 10.16 standard does not permit the

Commission to substitute its independent judgment simply on the

belief that a reduced level of discipline would be more

appropriate to the offense.

¶16 By imposing a fifteen-day suspension, the Commission

obviously believed that some discipline was justified. That

being the case, if the discipline originally imposed falls

within the permissible range, it would be unlikely the action

could be seen as arbitrary.6 Ariz. Dep’t of Corr. v. State

6
Only in a rare situation can a punishment be found
arbitrary when it falls within the permissible range.
Arbitrariness can arise, for example, when similarly situated
employees receive differing sanctions for the same offense.
See Pinal County v. Pinal County Employee Merit Sys. Comm’n,
211 Ariz. 12, 18, ¶ 18, 116 P.3d 624, 630 (App. 2005) (“Serb”).
Moreover, on admittedly rare occasions, a punishment could be
so unreasonably disproportionate to the offense as to be
arbitrary and without reasonable cause. Cf. State v. DePiano, 187 Ariz. 27, 31, 926 P.2d 494, 498 (1996) (noting that this
Court’s exercise of its statutory power to modify sentences

10
Pers. Bd., 202 Ariz. 598, 600, ¶ 10, 48 P.3d 1208, 1210 (App.

2002). Similarly, if the record contains credible evidence,

either by admission or by sufficient proof, that the employee

in fact committed acts warranting some level of discipline, it

can scarcely be said that discipline within the permissible

range was taken without reasonable cause.

¶17 Admittedly, reasonable minds may differ on the

appropriateness of one discipline over another. That people

may differ, however, bolsters the notion that discipline,

initially imposed within standards and policies set by the

appointing authority, should not be disturbed merely because a

reviewing body sees it as disproportionate. In an earlier

case, the court of appeals correctly explained the proper role

of an administrative commission when providing review of an

agency decision:

In determining whether an administrative agency has
abused its discretion by acting in an arbitrary and
capricious manner, we review the record to determine
whether there has been ‘unreasoning action, without
consideration and in disregard for facts and
circumstances; where there is room for two opinions,
the action is not arbitrary or capricious if
exercised honestly and upon due consideration, even

_____________________________
within a permitted statutory range will only be exercised in a
“rare” case and that “we had not seen such a case in years”)
(overruled in part on other grounds, State v. Davis, 206 Ariz.
377, 384, 79 P.3d 64, 71 (2003)). Neither such circumstance is
presented in this case.

11
 though it may be believed that an erroneous
conclusion has been reached.’

Maricopa County v. Gottsponer, 150 Ariz. 367, 372, 723 P.2d

716, 721 (App. 1986) (quoting Petras v. Ariz. State Liquor Bd.,

129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981) and Green,

17 Ariz. App. at 94, 498 P.2d at 864).

¶18 The court of appeals majority in the instant case

relied on Gottsponer. There, a nurse employed at the Maricopa

Medical Center was demoted and placed on a six-month

performance review cycle. 150 Ariz. at 368-69, 723 P.2d at

717-18. On appeal, the Commission reduced the nurse’s

discipline to a two-day suspension. Id. at 369, 723 P.2d at

718. The superior court affirmed the Commission’s order. Id.

at 369-70, 723 P.2d at 718-19.

¶19 The court of appeals reversed and reinstated the

employer’s disciplinary order, correctly pointing out that the

duty of the Commission is not to substitute its own judgment,

but only to determine whether the appointing agency had abused

its discretion by acting arbitrarily or unreasonably. Id. at

370, 373, 723 P.2d at 719, 722.

¶20 Although the result in Gottsponer appears to be

correct, the opinion contains the language of the “shocking to

one’s sense of fairness” standard that has led to confusion in

subsequent decisions:

12
 [W]here the finding of guilt is confirmed and
punishment has been imposed, the test is whether such
punishment is ‘so disproportionate to the offense, in
the light of all the circumstances, as to be shocking
to one’s sense of fairness.’

Id. at 372 (quoting Petras, 129 Ariz. at 452, 631 P.2d at 1107,

and 17 Cameron St. Rest. Corp. v. N.Y. State Liquor Auth., 399

N.E.2d 907, 909 (N.Y. 1979)). Viewed in context, this language

was most likely an imprecise attempt at further defining the

“arbitrary and without reasonable cause” standard. That

imprecision, while well intentioned, has unfortunately led to

the Commission decision we review today, where the Commission

in effect held, applying the “shocking” standard, that its

collective sense of fairness could be substituted for that of

the appointing authority.7

¶21 The standard, “shocking to one’s sense of fairness,”

is not the test under Rule 10.16. Indeed, that standard

7
See also Serb, in which Division Two of our court of
appeals reviewed a Pinal County disciplinary order terminating
a county detention officer for striking a fully restrained
inmate. The Pinal County merit commission, under a standard of
review similar to the Maricopa County standard, (“arbitrary or
taken without reasonable cause”), 211 Ariz. at 16 n.7, ¶ 9, 116
P.3d at 628, determined that the officer’s termination was
shocking to one’s sense of fairness and that the termination
should be revoked and the officer reinstated to his job. The
court of appeals disagreed and upheld the termination. Id. at
19, ¶ 22, 116 P.3d at 631. While, as in Gottsponer, the result
appears to be correct, the court nevertheless approved the
review standard that included disproportionality that is
“shocking to one’s sense of fairness.” Id. at 17, ¶ 15, 116
P.3d at 629.

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conflicts with the rule in that it permits analysis by the

Commission based on perceived disproportionality without

deference to the appointing authority. Rule 10.16, on the

other hand, is narrowly tailored and creates a standard that

requires deference. The “shocking” standard, when applied as

part of the Rule 10.16 analysis, effectively encourages the

Commission to review the employer’s discipline from its own

perspective when the penalty happens to bother the individual

consciences of Commission members. Such review process is

inconsistent with Rule 10.16. Thus, to the extent Gottsponer

and its progeny are inconsistent with the rationale of today’s

opinion, we disapprove of those decisions.

IV.

¶22 The MCSO’s discipline of Juarez fell within the

permissible range set by its disciplinary policy and there was

evidence to support it. There is no contention that the

discipline was different from that imposed on similarly

situated employees, nor can it be suggested that the discipline

is so unreasonably disproportionate to the offense as to be

arbitrary or without reasonable cause. The determination was

made on the basis that Juarez lacked the self-restraint needed

to work in close proximity to detainees. When an officer is

unwilling or unable to use sound judgment concerning the level

14
of force required to maintain control of restrained detainees,

the employer has discretion to impose discipline and to select

the appropriate level. When that determination is made, the

Commission, given Rule 10.16, may not then invoke the

“shocking” standard that permits an independent judgment on the

basis of disproportionality between the level of discipline and

the seriousness of the offense.

¶23 We therefore hold that the Commission erred as a

matter of law when it reversed the MCSO’s dismissal of Juarez.

We further hold that disciplinary appeals brought to the

Commission in Maricopa County are to be reviewed under Rule

10.16 without reference to the standard, “shocking to one’s

sense of fairness.”

DISPOSITION

¶24 For the reasons set forth, the memorandum decision of

the court of appeals is vacated and the judgment of the

superior court is reversed. Because the Commission exceeded

its legal authority, and because the decision to discharge

Juarez was neither arbitrary nor taken without reasonable

cause, we remand this matter to the superior court with

instructions that the Commission be ordered to reinstate the

discipline imposed by the MCSO.

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¶25 Because Juarez is not the prevailing party in these

proceedings, he is not entitled to attorneys’ fees. His motion

for fees is denied.

______________________________________
Charles E. Jones, Justice (Retired)
CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

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