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Berndt v. Ariz. Dep't of Corr.

Court of Appeals of Arizona, First Division

December 3, 2015

BRIAN BERNDT, a single man, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF CORRECTIONS, an agency of the State of Arizona; ARIZONA STATE PERSONNEL BOARD, an agency of the State of Arizona; CHARLES L. RYAN, in his capacity as Director of the Arizona Department of Corrections, Defendants/Appellees

As Amended December 8, 2015.

Page 142

Appeal from the Superior Court in Maricopa County. No. LC2013-000653-001. The Honorable Crane McClennen, Judge.

Bihn & McDaniel, PLC, Phoenix, By Martin A. Bihn, Donna M. McDaniel, Counsel for Plaintiff/Appellant.

Arizona Attorney General's Office, Phoenix, By Michelle Kunzman, Mark Brnovich, Counsel for Defendant/Appellee Arizona Department of Corrections.

Jackson Lewis, P.C., Phoenix, By Jeffrey A. Bernick, Counsel for Defendant/Appellee Arizona State Personnel Board.

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Peter B. Swann joined and Judge Samuel A. Thumma joined in part and dissented in part.

OPINION

Page 143

Kenton D. Jones, Judge.

[¶1] Brian Berndt appeals the superior court's order on appeal affirming his termination as a corrections officer with the Arizona Department of Corrections (Department). The Arizona State Personnel Board (Board) had determined allegations of sexual harassment and insubordination against Berndt were unfounded, classified Berndt's actions as horseplay, a less serious offense, and ordered the discipline reduced to an eighty-hour suspension. The Department rejected the Board's decision, and the parties now dispute whether the Department was authorized to do so.

[¶2] To resolve the issue we interpret Arizona Revised Statutes (A.R.S.) section 41-783,[1] governing the administrative review of disciplinary actions involving covered State employees, in light of A.R.S. § 38-1101(K) (Supp. 2013),[2] governing administrative review of disciplinary actions involving law enforcement officers. Reading the statutes together, we hold that when the employee at issue is a law enforcement officer, the statutes (1) authorize the employing agency to amend, modify, reject, or reverse the Board's decision only upon a finding that it is arbitrary and capricious, and (2) require the employing agency to provide an explanation for the amendment, modification, rejection, or reversal of the Board's decision. Because the Department did not comply with either requirement, we reverse the judgment of the superior court and remand to the superior court with instructions to enter an order reversing the Department's termination of Berndt's employment and reinstating the disciplinary sanctions ordered by the Board.

FACTS AND PROCEDURAL HISTORY

[¶3] In October 2007, Berndt began working as a corrections officer II at the Department's state prison in Tucson. In June 2013, the Department issued Berndt a notice of charges citing an incident in which he was observed twisting his nipples in the presence of several other staff members. The Department alleged Berndt's actions violated its policies against sexual harassment[3] and insubordination[4] and warranted discipline. In response, Berndt explained another officer had licked his lips at him as a joke, and Berndt responded by rubbing his nipples; however, he denied the gesture was sexually

Page 144

explicit or violated any applicable standard of conduct. The Department then determined that, by denying any wrongdoing while admitting he engaged in the reported conduct, Berndt committed an additional offense of dishonesty. The ...


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