Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CV201200718 The Honorable Joseph R. Georgini, Judge
Lando M. Voyles, Pinal County Attorney, Florence By Gina E. Gutierrez and Seymour G. Gruber Counsel for Plaintiff/Appellant
Leonard & Felker, P.L.C., Tucson By Donna M. Aversa Counsel for Defendant/Appellee Pinal County Employee Merit Commission
Fitzgibbons Law Offices, P.L.C., Casa Grande By Denis M. Fitzgibbons and Karen J. Stillwell Counsel for Defendant/Appellee James
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 Appellant Pinal County Sheriffs Office (PCSO) appeals from the superior court's order upholding the decision of the Pinal County Employee Merit Commission (hereafter "the Commission") in favor of former deputy Cardest James, reinstating his employment and awarding him back pay. For the following reasons, we affirm the commission's action and the superior court's decision on charges one and two, but reverse as to charges three, four, and six through ten, and remand for consideration of whether the discipline imposed was arbitrary and without reasonable cause.
Factual and Procedural Background
¶2 In May of 2009, PCSO terminated James's employment, specifying ten charges that were the basis for termination. James appealed his termination to the Commission, which held a three-day evidentiary hearing. In its January 2010 order, the Commission concluded that PCSO had not presented sufficient facts or evidence to support the charges against James. PCSO filed a complaint in superior court seeking review of the Commission's decision, and the superior court reversed the Commission and upheld James's termination. James appealed that decision to this court, which found that both the trial court and Commission had based their decision on several erroneous considerations and therefore remanded the case to the Commission for further proceedings. Pinal Cnty. Sheriff's Dep't v. James, No. 2 CA-CV 2011-0013, ¶ 26 (memorandum decision filed Oct. 19, 2011).
¶3 Upon remand, the Commission again overturned James's termination. PCSO appealed this determination to the superior court, which upheld the Commission's decision. PCSO now appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-913.
¶4 Merit commissions must follow local rules when deciding employees' appeals from disciplinary actions. See Maricopa Cnty. Sheriffs Office v. Maricopa Cnty. Emp. Merit Sys. Comm'n (Juarez), 211 Ariz. 219, ¶¶ 9-11, 119 P.3d 1022, 1024 (2005). Pinal County imposes a fairly high burden on the Commission, requiring a majority of the Commission to "determine that the appealed action was arbitrary or taken without reasonable cause" in order to revoke or modify the appointing authority's decision. Pinal County Uniform Merit System Rule 13.4(Q). On the other hand, Rule 9(A)(1) and (B) of the Pinal County Employee Merit System Commission Rules of Procedure on Appeals provide that the burden is on the appointing agency to show "by a preponderance of the evidence that the disciplinary measure applied . . . was taken for reasonable cause, and was neither arbitrary nor capricious."
¶5 In explaining the Commission's role in relation to the employer, our supreme court has described the Commission as a "neutral fact-finder . . . not bound by the facts asserted by the employer, but . . . required to independently find the facts warranting discipline." Pima County v. Pima Cnty. Law Enforcement Merit Sys. Council (Harvey), 211 Ariz. 224, ¶ 21, 119 P.3d 1027, 1031 (2005); see also Juarez, 211 Ariz. 219, ¶ 13, 119 P.3d at 1025 (noting "Commission's initial task is to create a record and to ascertain the facts" by preponderance of evidence). However, the Commission may not substitute its judgment for that of the employer. Juarez, 211 Ariz. 219, ¶ 15, 119 P.3d at 1025. Considering the "arbitrary or taken without reasonable cause" standard, the court has explained, "'arbitrary action' has been characterized as 'unreasoning action, without consideration and in disregard of the facts and circumstances.'" Id. ¶ 14, quoting Pima County v. Pima Cnty. Merit Sys. Comm'n (Mathis), 189 Ariz. 566, 568, 944 P.2d 508, 510 (App. 1997). "Similarly, the phrase 'without reasonable cause' indicates the lack of evidence sufficiently strong to justify a reasonable person in the belief that the acts charged are true." Id.
The role of the Commission is thus limited as a matter of law. The Rule [13.4(Q)] 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.
Id. ¶ 15.
¶6 County merit commission decisions involving an employee's dismissal, suspension, or reduction in rank or compensation are themselves reviewable pursuant to A.R.S. § 11-356(G), which states, "The findings and decision of the commission shall be final and shall be subject to administrative review as provided in [the Administrative Review Act, A.R.S. §§ 12-901 through 12-914]." Judicial review of the Commission's decision is therefore limited by the standard set forth in § 12-910. We will uphold its action unless it "is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." § 12-910(E); accord Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, ¶ 13, 153 P.3d 1055, 1059 (App. 2007).
¶7 We do not reweigh evidence but defer instead to the factual findings reached by the Commission. See Taylor v. Ariz. Law Enforcement Merit Sys. Council, 152 Ariz. 200, 202, 731 P.2d 95, 97 (App. 1986); Petras v. Ariz. State Liquor Bd., 129 Ariz. 449, 451, 631 P.2d 1107, 1109 (App. 1981). Questions of law, on the other hand, are subject to our independent review, including whether substantial evidence supports the merit commission's determinations. See, e.g., Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, ¶ 7, 48 P.3d 505, 507 (App. 2002); Mathis, 189 Ariz. at 569, 944 P.2d at 511. Consequently, when reviewing the Commission's findings on appeal, we remain mindful of the narrow standard it was required to apply to PCSO's decision to terminate James. To the extent the Commission substituted its own judgment for that of PCSO without diverging from PCSO's factual findings relating to the charged conduct, such action would be contrary to law. See Juarez, 211 Ariz. 219, ¶¶ 9-12, 119 P.3d at 1024-25 ("arbitrary or without reasonable cause" is objective standard that does not permit commission to engage in determination of appropriateness of disciplinary measure); see also Pinal County v. Pinal Cnty. ...