Pima County v. Pima County Law Enforcement Merit System Council

SUPREME COURT OF ARIZONA
En Banc

PIMA COUNTY, a political ) Arizona Supreme Court
subdivision of the State of ) No. CV-04-0356-PR
Arizona, and CLARENCE DUPNIK, )
PIMA COUNTY SHERIFF, ) Court of Appeals
) Division Two
Plaintiffs/Appellants, ) No. 2 CA-CV 04-0004
)
v. ) Pima County
) Superior Court
PIMA COUNTY LAW ENFORCEMENT ) No. C20031396
MERIT SYSTEM COUNCIL and GEORGIA )
BROUSSEAU, MICHAEL HELLON, )
HERSCHELLA HORTON, ROSEMARY ) O P I N I O N
MARQUEZ, PAUL JULIEN, and JAMES )
WATSON, in their official )
capacities, and acting as Pima )
County Law Enforcement Merit )
System Council, )
)
Defendants/Appellees, )
)
JOSEPH HARVEY, )
)
Real Party in Interest. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Leslie B. Miller, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
209 Ariz. 204, 99 P.3d 19 (App. 2004)

VACATED
________________________________________________________________
GABROY, ROLLMAN & BOSSÉ, P.C. Tucson
By John Gabroy
Lyle D. Aldridge
Richard A. Brown
Attorneys for Pima County and Clarence Dupnik,
Pima County Sheriff

COREY & KIME Tucson
By Barry M. Corey
Michelle S. Michelson
Jason E. Smith
Attorneys for Pima County Law Enforcement
Merit System Council, Georgia Brousseau,
Michael Hellon, Herschella Horton, Rosemary
Marquez, Paul Julien, and James Watson

PICCARRETA & DAVIS P.C. Tucson
By Michael L. Piccarreta
Jefferson L. Keenan
Michael W. Storie
Attorneys for Joseph Harvey
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 This case arises out of the dismissal of Deputy

Sheriff Joseph Harvey from the Pima County Sheriff’s Office. We

granted review to decide whether Pima County Law Enforcement

Merit System Council (“LEMSC”) Rule XIII-4(I), which gives the

Council broad discretion to revoke or modify the employer’s

disciplinary action, is consistent with “recognized merit system

principles of public employment,” as required by Arizona Revised

Statutes (“A.R.S.”) section 38-1003 (Supp. 2004), and therefore

whether the Council’s reinstatement of Deputy Harvey was lawful.

We conclude that Pima County LEMSC Rule XIII-4(I) is consistent

with A.R.S. § 38-1003.

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 I. FACTS AND PROCEDURAL BACKGROUND

¶2 Deputy Harvey testified in a criminal case that to

effectuate an arrest, he had hit the arrestee with the butt of

his gun and later slapped the handcuffed, shackled, and wounded

man. He stated that he slapped the arrestee not only to elicit

incriminating statements, but also to keep the arrestee from

losing consciousness before medical personnel arrived.

¶3 After reviewing that testimony and other reports of

the incident, Pima County Sheriff Clarence Dupnik concluded that

Deputy Harvey had used excessive force, engaged in inappropriate

interview techniques, and showed poor judgment. Dupnik decided

to terminate Harvey’s employment. The termination notice cited

the arrest incident and also alleged other rule and policy

infractions, including Harvey’s “career-long pattern of failure

and/or unwillingness to comply with Department Rules and

Regulations,” his disregard of commands from a fellow officer,

his absence without leave to drive an intoxicated friend home,

and his inclusion of false information on booking forms.

¶4 Harvey appealed his termination to the Pima County Law

Enforcement Merit System Council. He testified before the

hearing officer that he had slapped the arrestee to revive him,

not solely to elicit incriminating statements. Officers who

witnessed the incident corroborated Harvey’s account. Some law

enforcement supervisors, however, testified that slapping a

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suspect is not an acceptable way to render first aid. Harvey

did not deny the other accusations of misconduct, but minimized

them. He questioned the timing of his termination, which

occurred nearly eighteen months after the incident with the

arrestee.

¶5 The hearing officer accepted Harvey’s version of the

slapping incident and found that it did not warrant discipline.

For the other infractions, the hearing officer recommended the

imposition of lesser sanctions than dismissal. The Council

unanimously adopted the hearing officer’s recommendations.

¶6 Pima County and Sheriff Dupnik sought review by filing

a special action in the superior court. Finding no arbitrary or

capricious actions by the Council or abuse of the Council’s

discretion, the court denied relief.

¶7 Pima County and Sheriff Dupnik appealed. The court of

appeals reversed the superior court decision, concluding that

A.R.S. § 38-1003, which limits the Council’s authority to those

powers exercised “pursuant to recognized merit system principles

of public employment,” requires deference to the discipline

imposed by the Sheriff. Pima County v. Pima County Law

Enforcement Merit Sys. Council, 209 Ariz. 204, 208, ¶¶ 13-14, 99

P.3d 19, 23 (App. 2004) (“Harvey”). The court of appeals

examined several merit system cases, from which it deduced that

the legislature had “recognized” review of employer actions by

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the “arbitrary and capricious” standard of review as a merit

system principle. Id. at 208-09, ¶ 16, 99 P.3d at 23-24. It

therefore concluded that a similarly deferential standard of

review was required for all merit system councils and that the

less deferential standard of review set forth in LEMSC Rule

XIII-4(I) violated A.R.S. § 38-1003. Id. at 210, ¶ 22, 99 P.3d

at 25.

¶8 We granted review. We have jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §

12-120.24 (2003).

II. DISCUSSION

¶9 The powers and duties of a law enforcement merit

system council are described in A.R.S. § 38-1003. The statute

requires each law enforcement merit system council, “pursuant to

recognized merit system principles of public employment,” to

create a process to ensure “fair and impartial” hiring and

firing decisions for “all classified law enforcement officers.”

Id. It also requires each council to adopt rules of procedure

and to “[h]ear and review appeals” relating to employee

discipline. Id. § 38-1003(5), (6). Nothing in the statute

requires a council to adopt any particular standards within

those rules. It requires only that the rules and standards

selected comport with merit system principles.

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¶10 As authorized by A.R.S. § 38-1003, the Pima County Law

Enforcement Merit System Council adopted rules, including LEMSC

Rule XIII-4(I), creating a process for reviewing hiring,

discipline, and dismissal decisions relating to Pima County law

enforcement officers.

¶11 Before 1999, Pima County LEMSC Rule XIII-4(I) required

the Council to affirm the employer-imposed discipline unless

“the Council determines that the action appealed from was

arbitrary or taken without reasonable cause.” Harvey, 209 Ariz.

at 206, ¶ 7, 99 P.3d at 21. In 1999, however, the Council

amended Rule XIII-4(I), replacing the “arbitrary or taken

without reasonable cause” standard with a less deferential

standard of review. Id. The rule now provides that if the

Council finds just cause for the discipline imposed by the

employer, the discipline must be affirmed. LEMSC Rule XIII-

4(I). But if the Council finds that just cause did not exist,

“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 Council must revoke or modify

the disciplinary action. Id. (emphasis added). Rule XIII-4(I)

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then confers on the Council “the power to direct appropriate

remedial action.” Id.1

¶12 We are asked to determine whether the rule, which

vests broad discretion in the Council, comports with “recognized

merit system principles of public employment,” as required by

A.R.S. § 38-1003, or whether the rule exceeds the Council’s

authority.

¶13 Interpretation of rules and statutes is a legal

matter, which we review de novo. See Bilke v. State, 206 Ariz.

462, 464, ¶ 10, 80 P.3d 269, 271 (2003) (interpreting statute);

Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.

1996) (interpreting court rule). Our task in this case is to

ascertain what the legislature meant in A.R.S. § 38-1003 by

requiring merit system rules to be consistent with “recognized

1
Pima County Law Enforcement Merit System Rule XIII-4(I)
provides, in full, as follows:

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.

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merit system principles of public employment,” and then to

determine whether Rule XIII-4(I) comports with those principles.

See City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677

P.2d 1283, 1286 (1984) (stating that court’s primary goal in

interpreting statutes is to ascertain and give effect to the

intent of the legislature). Because administrative agencies

derive their powers from their enabling legislation, their

authority cannot exceed that granted by the legislature. See

Kendall v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965).

Thus if Rule XIII-4(I) conflicts with A.R.S. § 38-1003, the rule

must yield. See Ariz. State Bd. of Regents v. Ariz. State Pers.

Bd., 195 Ariz. 173, 175, ¶ 9, 985 P.2d 1032, 1034 (1999).

A. What are “recognized merit system principles of public
employment”?

¶14 The phrase “recognized merit system principles of

public employment” is not defined in A.R.S. § 38-1003 or in the

legislative history accompanying that statute. Generally,

however, merit systems embrace the notion that hiring,

retention, and dismissal of public employees should be based on

the employees’ merit and competence, and not on political

considerations. See Donaldson v. Sisk, 57 Ariz. 318, 330-31,

113 P.2d 860, 865 (1941); 15A Am. Jur. 2D Civil Service § 1

(2000). In addition, this court has recognized that a proper

merit system must provide an aggrieved merit system employee

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with a hearing in front of a neutral body before discipline

decisions become final. See, e.g., City of Phoenix v.

Sittenfeld, 53 Ariz. 240, 246-47, 88 P.2d 83, 86 (1939); see

also Hamilton v. City of Mesa, 185 Ariz. 420, 424-25, 916 P.2d

1136, 1140-41 (App. 1996); Deuel v. Ariz. State Sch. for the

Deaf and Blind, 165 Ariz. 524, 526-27, 799 P.2d 865, 867-68

(App. 1990) (setting forth due process rights of covered public

employees); accord 5 U.S.C. § 2301 (1996) (setting forth federal

merit system principles); see generally Daryl Manhart, Commment,

Property and Liberty Limitations on the Dismissal of Arizona

Public Employees, 1977 Ariz. St. L.J. 835, 853-54 [hereinafter

“Manhart”] (discussing law enforcement merit systems).

¶15 The right to treatment based on merit and a hearing by

a neutral board before discipline becomes final are therefore

central merit system principles of public employment for

purposes of A.R.S. § 38-1003. See Evans v. State ex rel. Ariz.

Corp. Comm’n, 131 Ariz. 569, 572, 643 P.2d 14, 17 (App. 1982)

(recognizing requirement that State Personnel Board be “a fair

and impartial tribunal”); Bishop v. Law Enforcement Merit Sys.

Council, 119 Ariz. 417, 422, 581 P.2d 262, 267 (App. 1978)

(requiring the State Law Enforcement Merit System Council to

provide a “fair and impartial hearing”).

¶16 None of the authorities we reviewed, however,

indicated whether procedural matters such as burdens of proof or

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standards of review were basic merit system principles. We

therefore examine whether the burden and standard in Rule XIII-

4(I) are consistent with merit system principles.

B. Whether the “satisfaction of the Council” standard
comports with recognized merit system principles.

¶17 Pima County LEMSC Rule XIII-4(I) requires the Council

to revoke or modify discipline if “some or all of the charges

were not proven to the satisfaction of the Council.” The

Sheriff and Pima County argue that such a standard is “no

standard” at all and renders decisions of the Council virtually

unreviewable.

¶18 The Council itself reasonably interprets this part of

the rule as imposing a burden on the employer to prove the

charges warranting discipline by a preponderance of the

evidence. We defer to an agency’s reasonable interpretations of

its own regulations. Ariz. Water Co. v. Ariz. Dep’t of Water

Res., 208 Ariz. 147, 154, ¶ 30, 91 P.3d 990, 997 (2004) (citing

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 844 (1984)).

¶19 Arizona courts have recognized the application of the

preponderance of the evidence standard in previous merit system

cases. See, e.g., Wicks v. City of Tucson, 112 Ariz. 487, 488,

543 P.2d 1116, 1117 (1975) (stating that the Tucson Civil

Service Commission requires an employer to bear the burden of

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proving facts by a preponderance of the evidence); Woerth v.

City of Flagstaff, 167 Ariz. 412, 415, 808 P.2d 297, 300 (App.

1990) (stating that the Flagstaff Personnel Board requires that

the employer establish facts by a preponderance of the

evidence).

¶20 Therefore, although such a standard may not be

required by the language of Pima County LEMSC Rule XIII-4(I), in

applying the preponderance standard for proving the grounds for

discipline, the Pima County Law Enforcement Merit System Council

is in fact employing the standard used by other merit system

boards in Arizona. Furthermore, the County and Sheriff do not

argue that a preponderance standard conflicts with recognized

merit system principles.

¶21 Requiring the employer to establish the alleged

grounds for discipline by a preponderance of the evidence is

consistent with basic merit system principles because it ensures

the employee that any discipline imposed is based not on mere

allegations by the employer, but on facts found more likely than

not to be true by a neutral fact-finder. The Council is not

bound by the facts asserted by the employer, but is required to

independently find the facts warranting discipline. For that

reason, we hold that the portion of Pima County LEMSC Rule XIII-

4(I) that requires the Council to overturn discipline if “some

or all of the charges were not proven to the satisfaction of the

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Council,” as interpreted by the Council to require a

preponderance of the evidence burden of proof, is consistent

with recognized merit system principles of public employment.

C. Whether the “in the sole discretion of the Council”
standard comports with recognized merit system
principles.

¶22 Rule XIII-4(I) requires the Council to revoke or

modify a disciplinary action if “the disciplinary action imposed

was, in the sole discretion of the Council, too severe a penalty

for the conduct proven.” This language gives the Council sole

authority to approve or modify the discipline for the behavior

in question. Even though this provision affords the Council

broad discretion, we nonetheless conclude that it comports with

“recognized merit system principles of public employment.”

¶23 Although the legislature could have imposed such a

requirement, nothing in A.R.S. § 38-1003 obligates merit system

councils to employ any particular standard of review or to defer

to the employer’s choice of discipline. In responding to the

mandate to establish merit system rules, the various merit

system councils and commissions in Arizona2 adopted differing

2
Several merit systems, merit commissions, and merit
councils exist throughout the state, including the State
Personnel Board, see A.R.S. §§ 41-781 to -786 (2004 & Supp.
2004); the county employee merit systems, see A.R.S. §§ 11-351
to -356 (2001); the State Law Enforcement Merit System Council,
see A.R.S. §§ 41-1830.11 to -1830.15 (2004); the Maricopa and
Pima County Law Enforcement Merit System Councils, see A.R.S. §§
38-1001 to -1007 (2001 & Supp. 2004); and several other county

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standards. Some of these systems require deference to the

appointing authority’s choice of discipline. E.g., Maricopa

County Employee Merit Sys. R. 10.16, reported at

http://www.maricopa.gov/human_resources/pdf/msr.pdf at 37

(requiring deference unless employer action is “arbitrary or

taken without reasonable cause”); Maricopa County Law

Enforcement Merit Sys. R. 11.16, reported at

http://www.maricopa.gov/human_resources/pdf/leomsr.pdf at 44

(same).

¶24 Other Arizona merit systems, however, do not require

such deference. E.g., A.R.S. § 41-785(D) (Supp. 2004)

(authorizing State Personnel Board to modify discipline found to

be “disproportionate to the proven offense in light of

mitigating circumstances”); Ariz. Admin. Code (“A.A.C.”) R13-5-

703(E) (requiring State Law Enforcement Merit System Council to

sustain, modify, or rescind disciplinary actions after

ascertaining whether the “law and the evidence” support the

discipline); Pima County Employee Merit Sys. R. 14.4(A),

reported at http://www.pima.gov/hr/pdf/MeritRules.pdf at 51

(imposing just cause standard); Tucson City Charter ch. XXII,

§ 3(c) (requiring Tucson Civil Service Commission to apply just

cause standard).

¶25 The State Merit System is an example of a system that

and municipal systems, see Manhart, supra ¶ 14, at 854-56.

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employs a nondeferential standard. See A.R.S. § 41-785(D). The

State Personnel Board’s rules, which also must conform to

“recognized merit principles of public employment,” see A.R.S.

§ 41-1830.12(A)(3), authorize the Board to modify a disciplinary

penalty, inter alia, if it “finds the penalty to be

disproportionate to the proven offense in light of mitigating

circumstances.” A.R.S. § 41-785(D). The standard required of

the State Personnel Board suggests that the legislature does not

consider deference to the disciplinary authority to be a basic

or necessary merit system principle, for the legislature itself

modified A.R.S. § 41-785(D) in 2004 to incorporate this non-

deferential standard of review. Presumably the legislature

thought that the amended standard that it imposed satisfied its

own requirement that merit system rules must conform to

recognized merit system principles. See 2004 Ariz. Sess. Laws,

ch. 163, § 1 (H.B. 2305). Thus the legislature seems not to

consider a deferential standard of review to be a necessary

attribute of a recognized merit system.

¶26 The County nonetheless argues that Arizona courts have

repeatedly reversed merit system board decisions that modified

disciplinary actions in the absence of arbitrary and capricious

action by the employer. The court of appeals also cited with

approval several cases applying the “arbitrary or capricious”

standard. Harvey, 209 Ariz. at 208-09, ¶ 16, 99 P.3d at 23-24

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(citing Ariz. Dep’t of Corr. v. State Pers. Bd., 202 Ariz. 598,

601, ¶¶ 15-16, 48 P.3d 1208, 1211 (2002); Pima County v. Pima

County Merit Sys. Comm’n (“Logan”), 186 Ariz. 379, 382, 923 P.2d

845, 848 (App. 1996); Maricopa County v. Gottsponer, 150 Ariz.

367, 372-73, 723 P.2d 716, 721-22 (App. 1986)). From these

cases, the court of appeals reasoned that a deferential standard

is required for the rule to comply with recognized merit system

principles. Id. at ¶¶ 16-19, 98 P.3d at 23-24.

¶27 The fault in this reasoning is that the foregoing

cases interpreted rules or statutes that expressly required

deference to the employers’ decisions or application of the

“arbitrary or capricious” standard. The Maricopa County Merit

System Commission and Maricopa County Law Enforcement Merit

System Council rules, for example, both require that the

employers’ actions be sustained unless they are “arbitrary or

taken without reasonable cause.” See Maricopa County Employee

Merit Sys. R. 10.16; Maricopa County Law Enforcement Merit Sys.

R. 11.16. The cases interpreting these rules merely apply the

codified standard. E.g., Gottsponer, 150 Ariz. at 371 n.2, 723

P.2d at 720 n.2.

¶28 Similarly, in Pima County v. Pima County Merit System

Commission (“Mathis”), 189 Ariz. 566, 568, 944 P.2d 508, 510

(App. 1997), and Pima County Sheriff’s Department v. Smith, 158

Ariz. 46, 48, 760 P.2d 1095, 1097 (App. 1988), the court of

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appeals reviewed the Pima County Law Enforcement Merit System

Council and Pima County Employee Merit Commission rules,

respectively, before they were amended by the councils. At the

time Mathis and Smith were decided, both rules expressly

required affirmance of the employer’s actions unless those

actions were “arbitrary or taken without reasonable cause.”

Mathis, 189 Ariz. at 568, 944 P.2d at 510; Smith, 158 Ariz. at

48, 760 P.2d at 1097.

¶29 The court of appeals’ and the County’s reliance on

those cases to support a conclusion that the “arbitrary or

capricious” standard must always apply in merit system cases is

misplaced. In each of those cases, the rule or statute being

interpreted required review for arbitrariness or capriciousness.

But nothing in any of the opinions cited by the court of appeals

purported to require that the “arbitrary or taken without

reasonable cause” standard of review apply in all merit system

cases or to systems whose rules specify a different standard of

review.

¶30 In an opinion issued contemporaneously with this one,

we require the Maricopa County Merit Commission and reviewing

courts to apply the deferential “arbitrary or taken without

reasonable cause” standard when reviewing a disciplinary action

taken against a Maricopa County detention officer who hit a

restrained detainee. Maricopa County Sheriff’s Office v.

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Maricopa County Employee Merit Sys. Comm’n, ___ Ariz. ___, ___,

¶ ___, ___ P.3d ___, ___ (2005) (“Juarez”). Here, in an opinion

that arrives at a facially contradictory result, we permit the

Council to determine the appropriate punishment without

deferring to the employer’s choice of discipline. The

distinction is that in each case, we require the reviewing

commission or council to apply the standard of review required

by the governing rule. In Juarez, Maricopa County Employee

Merit System Rule 10.16 requires the commission to defer to the

employer’s disciplinary action. In Harvey, Pima County LEMSC

Rule XIII-4(I) requires non-deferential review. All we hold

today is that Pima County LEMSC Rule XIII-4(I) comports with

recognized merit system principles and therefore may be applied

by the Council.

¶31 When enacting A.R.S. § 38-1003, the legislature did

not provide a standard of review for law enforcement merit

system councils. The legislature, by statute, could have

dictated that merit system councils defer to the employers’

disciplinary decisions. Instead, the legislature opted to let

the councils set their own standards, as long as the standards

of review chosen fall within recognized merit system principles

of public employment. We conclude that employing a reasoned

standard less deferential to the employer’s chosen discipline is

consistent with recognized merit system principles because it

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does not deny merit system employees treatment based on merit or

deprive them of a decision by a neutral reviewing body. We

therefore hold that Rule XIII-4(I) is consistent with recognized

merit system principles by helping to ensure that Pima County

law enforcement employees receive a hearing by a body

independent of the employer.

III. CONCLUSION

¶32 We affirm the decision of the superior court, vacate

the opinion of the court of appeals, and reinstate the decision

of the Council.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

______________________________________
Ruth V. McGregor, Chief Justice

______________________________________
Michael D. Ryan, Justice

______________________________________
Andrew D. Hurwitz, Justice

______________________________________
Charles E. Jones, Justice (Retired)

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