McSo v. Duncanson

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARICOPA COUNTY SHERIFF’S OFFICE, Plaintiff/Appellee,

v.

WALTER DUNCANSON, Defendant/Appellant.

No. 1 CA-CV 16-0651
FILED 10-26-2017

Appeal from the Superior Court in Maricopa County
No. LC 2015-000404-001
The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness PC, Phoenix
By Dennis I. Wilenchik, John D. Wilenchik, David Timchak
Counsel for Defendant/Appellant

Maricopa County Attorney’s Office, Civil Services Division, Phoenix
By Brandon A. Newton, Douglas Arthur Schwab, Joseph Branco
Counsel for Plaintiff/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.

D O W N I E, Judge:

¶1 Walter Duncanson appeals the superior court’s judgment
reversing a final decision by the Maricopa County Law Enforcement
Officers Merit System Commission (“Commission”), thereby reinstating
his demotion. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Maricopa County Sheriff’s Office (“MCSO”) initiated
internal investigations into two separate incidents involving a deputy
(“C.A.”), whom Duncanson supervised. The first matter involved C.A.
taking custody of a minor child without a warrant or paperwork
authorizing such action. MCSO alleged that Duncanson approved C.A.’s
written report regarding that incident without questioning or
investigating C.A.’s actions, which were in violation of MCSO policy.

¶3 The second incident involved C.A.’s stop of a vehicle for
expired registration. The driver claimed she was a “sovereign citizen”
and produced identification issued by the “Allodical American National.”
When C.A. insisted she give him the identification, the driver became
irate. C.A. arrested and handcuffed the driver, placing her in the back of
his vehicle. C.A. requested assistance, and Duncanson, another deputy,
and a volunteer posse member responded. While on the scene,
Duncanson telephoned the Maricopa County Attorney’s Office (“MCAO”)
for guidance on dealing with the driver. During that call, the handcuffed
driver became physically combative, requiring C.A. to obtain leg irons
from Duncanson. During a struggle to attach the leg irons, the posse
member’s arm was injured. MCSO alleged that Duncanson, by remaining
on the telephone, had taken himself out of position as a direct supervisor.

¶4 MCSO Deputy Chief Edward P. Lopez determined that
Duncanson’s conduct in connection with the traffic stop violated two
MCSO policies and that his failure to review C.A.’s report regarding the
child custody incident and take appropriate action also violated two

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policies. Lopez considered Duncanson’s prior disciplinary history, which
consisted of a 32-hour suspension in July 2014 for failing to “assume
command of a critical incident by failing to provide direct supervision to
deputies” at a homicide scene. Concluding that Duncanson’s “actions
constitute a serious violation of departmental policies and regulations,”
Lopez ordered him demoted from Deputy Sergeant to Deputy.

¶5 Duncanson appealed to the Commission, which appointed a
hearing officer. After two days of hearings, the hearing officer concluded
MCSO had proven that Duncanson’s “inefficiency and neglect of duty
warranted discipline” and that removing him from supervisory duties,
“which required a demotion to deputy sheriff,” was appropriate. The
hearing officer issued proposed findings of fact and conclusions of law.

¶6 The Commission adopted all of the hearing officer’s
proposed findings of fact and added one finding of its own: that MCSO
lacked a policy “directing where a supervisor stands in proximity to a
subject’s vehicle during a traffic stop.” 1 The Commission also adopted
the hearing officer’s conclusion of law that Duncanson, by approving
C.A.’s report about the child custody transfer without following up,
violated MCSO policies “regarding taking appropriate supervisory action
which therefore constitutes inefficiency and neglect of duty in violation
of Maricopa County Law Enforcement Officers Merit System Resolution,
Sections 15 (C) 3 and 5.” The Commission rejected the hearing officer’s
proposed conclusion that Duncanson committed policy violations
relating to the traffic stop.

¶7 Despite having adopted all of the hearing officer’s findings
of fact, as well as the conclusion Duncanson violated established policies
regarding the child custody incident, by a vote of 2-1, the Commission
determined that MCSO had not proven the charges against Duncanson by
a preponderance of the evidence and that his demotion was arbitrary and
without reasonable cause.

¶8 MCSO sought judicial review. The superior court ruled that
the Commission’s decision “was contrary to law and was arbitrary or
capricious” and reinstated Duncanson’s demotion. Duncanson filed a
timely appeal. This Court has jurisdiction pursuant to Arizona Revised

1 As MCSO correctly notes, Duncanson was not disciplined for
where he stood “in proximity to a subject’s vehicle.”

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Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -913. See Svendsen v. Ariz.
Dep’t of Transp., 234 Ariz. 528, 533, ¶ 13 (App. 2014) (Reference to
“supreme court” in § 12-913 “has been construed as also allowing an
appeal to the court of appeals, which was created after § 12-913 was
enacted.”).

DISCUSSION

¶9 We will uphold the Commission’s decision unless it “is
contrary to law, is not supported by substantial evidence, is arbitrary and
capricious or is an abuse of discretion.” A.R.S. § 12–910(E). We give
deference to the Commission’s factual findings, but we review de novo
whether the Commission applied the correct legal standards in reaching
its decision. 2 Golob v. Ariz. Med. Bd., 217 Ariz. 505, 509, ¶ 11 (App. 2008)
(court does not substitute its judgment as to factual matters); Ritland v.
Ariz. State Bd. of Med. Exam’rs, 213 Ariz. 187, 189, ¶ 7 (App. 2006) (court
reviews agency’s application of law de novo). The Commission has a
“narrow and deferential” role in reviewing actions by an appointing
authority. See Maricopa Cty. Sheriff’s Office v. Maricopa Cty. Emp. Merit Sys.
Comm’n (Juarez), 211 Ariz. 219, 222, ¶ 13 (2005). 3

¶10 The allegation stemming from the child custody incident
was that Duncanson “approved [C.A.’s] report of the incident without
criticism of [C.A.’s] actions and that [Duncanson] failed to open an
investigation into [C.A.’s] actions.” As to that incident, the Commission
found:

2 Even assuming arguendo that the superior court erroneously
articulated the standard of review at one point in its ruling, our review is
de novo. See Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13 (App.
2007) (“On appeal, we review de novo the superior court’s judgment,
reaching the same underlying issue as the superior court: whether the
administrative action was not supported by substantial evidence or was
illegal, arbitrary and capricious, or involved an abuse of discretion.”).
3
Although Juarez interpreted the merit rules governing
employees who are not law enforcement officers, the Commission’s
standard of review is the same. See Maricopa Cty. Emp. Merit Sys. Res. §
16.F., available at https://www.maricopa.gov/DocumentCenter/View/427.

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On January 16, 2014, [C.A.] investigated a child custody
situation in which he took custody of a minor child and gave
the child to the child’s mother, even though no warrant had
been issued to take physical custody of the child. [C.A.]
completed a report which he submitted for [Duncanson’s]
approval. On January 25, 2014, [Duncanson] approved the
report without comments about [C.A.’s] actions in the
custody dispute.

The Commission also found that, when Duncanson was shown C.A.’s
report during the internal investigation, he stated, “I don’t know how I
could have missed this,” and said he would have “jumped all over this”
and “never would have let this fly” had he recognized C.A.’s policy
violations.

¶11 The Commission specifically concluded that Duncanson
violated established policies vis-à-vis the child custody incident, stating:

[Duncanson’s] action in approving an incident report
created by [C.A.] involving the custody transfer of a minor,
which custody transfer was in violation of law and Sheriff’s
Office policies, where [Duncanson] did not initiate an
investigation into such violations, constitutes a violation of
Sheriff’s Office policies, CP-2, GF-4, and GB-2, regarding
taking appropriate supervisory action which therefore
constitutes inefficiency and neglect of duty in violation of
Maricopa County Law Enforcement Officers Merit System
Resolution, Sections 15 (C) 3 and 5.

Because the Commission expressly found that Duncanson violated MCSO
policies, we disregard its irreconcilably contrary conclusion that MCSO
failed to prove its allegations regarding the child custody incident by a
preponderance of the evidence.

¶12 As for the traffic stop, the Commission found that C.A.
called for back-up, including a sergeant, after the driver “became angry
and irate” and began “cursing and yelling at [C.A.].” Duncanson, another
deputy, and a posse member arrived on the scene. The driver “began
kicking and flailing her legs and she continued yelling and screaming.”
C.A. obtained leg irons from Duncanson while Duncanson was on the
telephone, but C.A. and the posse member encountered difficulty
attaching them because the driver “continued flailing around, trying to
prevent the attachment of the leg iron.” The Commission found that, “All

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the while, [Duncanson] remained at his vehicle and did not approach
[C.A.’s patrol vehicle] until after [the driver’s] other leg was secured.
During the struggle to attach the leg iron, [the posse member’s] arm hit
the cage and his arm began bleeding.”

¶13 Chief Lopez testified without contradiction that in a use of
force setting, a supervisor should be “closer to assist in the situation and
observe; see and hear exactly what’s going on in that confined space of the
patrol car.” Lopez also expressed concern that the detained driver’s
husband was “directly behind the deputy who was taking action in the
patrol car,” which he described as “concerning” from an officer safety
perspective. Lopez testified that when force is deployed, “we have to
follow policy to a T with our training, with our policies, and what is
happening at the exact time it’s happening.” The Commission’s own
factual findings, coupled with the undisputed evidence of record,
established that Duncanson committed neglect of duty and incompetency
as to the traffic stop incident. 4

¶14 Once the Commission found misconduct, it was required to
uphold MCSO’s chosen discipline “unless arbitrary or taken without
reasonable cause.” Juarez, 211 Ariz. at 222, ¶ 13. “A decision is not
arbitrary and capricious if it is exercised honestly upon due consideration
for facts and circumstances, even though there may be room for diverse
opinions and it is believed that an erroneous conclusion has been
reached.” Evans v. State ex rel. Ariz. Corp. Comm’n, 131 Ariz. 569, 574 (App.
1982). The Commission may not substitute its judgment for that of the
employer:

[R]easonable 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.

Juarez, 211 Ariz. at 223, ¶ 17.

4 “Neglect of Duty” includes failure of supervisory staff to “provide
proper direction, coordination, and control of subordinate personnel.”
“Incompetency” includes “the inability, unwillingness, or failure to
perform assigned duties in an acceptable manner.”

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¶15 Although Duncanson contends demotion was outside the
permissible range of discipline, the Commission made no such finding,
and the record does not support that assertion. MCSO’s discipline matrix
establishes that for a second offense of a category 3 level, a non-exempt,
regular-status employee such as Duncanson may be suspended for eight
to 80 hours, and demotion is permissible if the conduct warrants an 80-
hour suspension or more. The question of whether Duncanson’s
violations fell within matrix category 2 or 3 was not litigated below.
However, evidence of record supports a category 3 designation. Category
3 encompasses “[c]onduct that has a pronounced negative impact on the
operations or professional image” of MCSO, as well as conduct that falls
within a lower category but is a repetitive offense. Examples of category 3
misconduct include “[f]ailure to take corrective action when warranted”
and “[f]ailure to report improper activity or violation of a policy or
procedure to a supervisor.” In addition to the testimony recounted supra,
Chief Lopez testified that Duncanson had demonstrated a “pattern of lack
of supervision,” and he stated that either incident, standing alone, was
cause for demotion. “Only in a rare situation can a punishment be found
arbitrary when it falls within the permissible range.” Juarez, 211 Ariz. at
222 n.6, ¶ 16. This is not such “a rare situation.”

¶16 Duncanson’s contention that he received inadequate notice
of the range of possible discipline is similarly unavailing. As noted supra,
the disciplinary matrix authorized his demotion, and Chief Lopez advised
Duncanson from the outset that MCSO was “considering taking
disciplinary action against you in the form of a demotion.” We also reject
Duncanson’s contention that MCSO failed to inform him that “the failure
to conduct an internal investigation” into C.A. could lead to discipline.
MCSO Policy GB-2, “Command Responsibility,” requires supervisors to
investigate unlawful or improper conduct of subordinates, and MCSO
Policy GF-4, “Office Reports,” requires a supervisor to review
subordinates’ reports and take action when major deficiencies are noted.
Duncanson admitted failing to comply with these policies.

¶17 Although Duncanson argues his discipline was “inconsistent
with the discipline imposed” on similarly situated employees, he did not
make this argument during the administrative proceedings, and
Appendix F to his opening brief is not part of the administrative record.
See DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 340 (App. 1984) (“The
general rule is that failure to raise an issue before an administrative
tribunal precludes judicial review of that issue on appeal unless the issue
is jurisdictional in nature.”). We therefore decline to consider this
argument.

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¶18 Finally, we are unpersuaded by Duncanson’s reliance on the
phrase “grave acts of misconduct” in MCSO’s discipline policy. The
section at issue states, in pertinent part:

Progressive Discipline: In order to protect the integrity and
reputation of the Office, discipline may be imposed as a
corrective or punitive measure in response to an employee’s
misconduct or deficient job performance. Acts of
misconduct or deficient job performance may warrant the
use of progressive discipline. However, grave acts of
misconduct may warrant suspension, demotion, or dismissal
of an employee without previous counseling, reprimands, or
other discipline. Accordingly, lesser discipline should
generally be imposed first, unless the misconduct is of a
more grievous nature.

If Duncanson had no prior disciplinary history, his argument might carry
more force. But he was previously disciplined for inadequate supervision,
and demotion here is consistent with stepping up the level of discipline
for repetitive offenses. Moreover, Duncanson has not disputed the
hearing officer’s determination that demotion was required to remove him
from supervisory duties.

CONCLUSION

¶19 For the foregoing reasons, we affirm the judgment of the
superior court. We deny Duncanson’s request for an award of attorneys’
fees and costs because he has not prevailed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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