Clinton Roberts v. State of Arizona

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

CLINTON ROBERTS, ET AL.,
Plaintiffs/Appellants,
v.
STATE OF ARIZONA,
Defendant/Appellee.

No. CV-21-0077-PR
Filed July 8, 2022

Appeal from the Superior Court in Maricopa County
The Honorable Teresa A. Sanders, Judge
No. CV2019-005879
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
250 Ariz. 590 (App. 2021)
VACATED

COUNSEL:

Michael Napier (argued), Cassidy L. Bacon, Juliana Tallone, Napier, Baillie,
Wilson Bacon & Tallone P.C., Phoenix, Attorneys for Clinton Roberts and
Donna Christopher-Hall

Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief
Deputy and Chief of Staff, Wilson C. Freeman (argued), Senior Litigation
Counsel, Drew C. Ensign, Section Chief, Civil Appeals, Kirstin Story, and
Daniel P. Schaack, Assistant Attorneys General, Phoenix, Attorneys for
State of Arizona

Aditya Dynar, Pacific Legal Foundation, Arlington, VA, Attorney for
Amicus Curiae Pacific Legal Foundation
______________
JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES LOPEZ, BEENE, MONTGOMERY,
KING, and PELANDER (Retired) joined.*
_______________

JUSTICE BOLICK, opinion of the Court:

¶1 This case presents the question of whether the State of
Arizona has incorporated the Portal-to-Portal Act, 29 U.S.C. §§ 251–262,
into A.R.S. § 23-392 to govern Arizona corrections officers’ claims for
overtime compensation for time spent in mandatory pre-shift security
screenings. We hold that for purposes of defining “work” to determine
overtime eligibility for law enforcement officers under § 23-392, the state
has not incorporated the Portal-to-Portal Act into § 23-392, and state agency
regulations purporting to do so are not legally binding. Therefore, contrary
to the decisions of the courts below, whether the corrections officers are
entitled to overtime should be decided as a matter of state law.

I.

¶2 Plaintiffs are corrections officers (“the Officers”) who brought
a class action against the State for compensation that was allegedly denied
by the Arizona Department of Corrections, Rehabilitation & Reentry for
time spent in mandatory and “extensive security screening prior to
undertaking their assigned duties.” The complaint alleges the following
facts: The Officers must wait in line at checkpoints for screenings before
gaining access to prison facilities. During the screenings, the Officers must
empty all personal possessions for a search and pass through a scanner and
turnstile. The Officers must then wait for transportation to their assigned
work unit, where the same screening process is repeated. After completing
this second pre-shift screening, the Officers work a full eight-hour shift
without breaks. The Officers allege these screenings add approximately
thirty minutes of unpaid, mandatory time to their shifts.

________________________
* Chief Justice Brutinel is recused from this matter. Pursuant to article 6,
section 3, of the Arizona Constitution, Justice John Pelander (Ret.) of the
Arizona Supreme Court was designated to sit in this matter.

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¶3 In the superior court, the Officers alleged that § 23-392
requires the state to pay overtime compensation for the mandatory pre-shift
security screenings and sought treble damages under A.R.S. § 23-355. The
State moved to dismiss the complaint pursuant to Arizona Rule of Civil
Procedure 12(b)(6), arguing the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201–219, preempts the Officers’ state law claim. Alternatively, the
State argued that Arizona law incorporates the Portal-to-Portal Act (“Portal
Act”), 29 U.S.C. §§ 251–262, an amendment to the FLSA, which renders the
Officers’ time spent in security screenings not compensable.

¶4 The Officers denied that the FLSA preempts state law. They
also argued that the Portal Act has not been incorporated into Arizona law
either by statute or regulation, that the claims are compensable under state
law because of Arizona’s broad interpretation of “work,” and that they are
entitled to overtime compensation even if the Portal Act applies.

¶5 The trial court granted the State’s motion to dismiss. The
court concluded that federal law did not preempt the Officers’ claims, but
that Arizona had adopted the Portal Act by implication, rendering the pre-
shift security screening not compensable.

¶6 The court of appeals reversed and held that the Officers’
claims were not preempted by the FLSA, Roberts v. State, 250 Ariz. 590, 595
¶ 17 (App. 2021), that the Portal Act was incorporated in Arizona through
§ 23-392 and by agency regulations, id. at 597 ¶ 27, and that the pre-shift
screenings were compensable activities under the Portal Act, id. at 599 ¶ 37.

¶7 We granted review on whether, under federal law as
incorporated in Arizona, corrections officers must be compensated for time
spent in pre-shift security screenings. Because this issue assumed that
Arizona law incorporated federal law, following oral argument, we invited
further supplemental briefing on the following issues: (1) Whether, and to
what extent, has the Portal Act been incorporated into § 23-392(A); (2) What
does the language in § 23-392(A)(1) (“if by the person’s job classification
overtime compensation is mandated by federal law”) refer to; and
(3) Whether the Arizona Administrative Code regulations are binding, and,
if so, whether the legislature properly delegated to the Director of the
Arizona Department of Administration (“AZDOA”) the authority to
incorporate federal law and the Code of Federal Regulations beyond what

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§ 23-392(A) does. These are important questions of statewide concern. We
have jurisdiction under article 6, section 5(3) of the Arizona Constitution.
In the context of a Rule 12(b)(6) dismissal, the case presents pure questions
of law, which we review de novo. See State v. Hansen, 215 Ariz. 287, 289 ¶ 6
(2007).

¶8 Although the State has abandoned its argument below that
the FLSA preempts state law regarding the definition of work and eligibility
for overtime, it maintains (as the court of appeals held) that § 23-392(A) and
state agency regulations incorporate the Portal Act, as well as the federal
regulations adopted to effectuate the Portal Act. As this case presents
complex issues of the interaction between state and federal law and the
scope of administrative agency authority, we begin with an overview of the
pertinent state and federal law.

II.

¶9 The FLSA was adopted in 1938. Six years later, the United
States Supreme Court addressed whether activities that are not part of the
job, but are still required by the employer, count as compensable work
under the FLSA. Tenn. Coal, Iron & R.R. Co. v. Muscoda Loc. No. 123, 321 U.S.
590, 593–94 (1944). The Court held that compulsory travel within a mine to
reach the job site could qualify as work because it “is at all times under [the
employer’s] strict control and supervision,” and “is not primarily
undertaken for the convenience of the miners” but “is spent for the benefit
of” the employer. Id. at 598–99.

¶10 Congress narrowed the impact of Tennessee Coal in 1947 by
adding the Portal Act to the FLSA, providing among other things that
employers are not required to pay overtime compensation to nonexempt
employees for “activities which are preliminary to or postliminary to [the]
principal activity or activities” that they are employed to perform. 29 U.S.C.
§ 254(a)(2).

¶11 The leading recent case construing this provision of the Portal
Act is Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014). In
determining what constitutes a “principal activity” under § 254(a), the
Supreme Court focused on whether the activity at issue is an integral and
indispensable part of the employee’s job. Id. at 33 (deciding whether post-
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shift security screenings were compensable). Federal and state courts
applying the Portal Act to security screenings have reached different
conclusions concerning whether the screenings are “integral and
indispensable” to jobs covered by the act. Compare, e.g., Aguilar v. Mgmt. &
Training Corp., 948 F.3d 1270, 1289 (10th Cir. 2020) (holding the pre-shift
security screenings of corrections officers compensable), with Hootselle v.
Mo. Dep’t of Corr., 624 S.W.3d 123, 139–40 (Mo. 2021) (holding the pre-shift
security screenings of corrections officers non-compensable).

¶12 In 1985, the Supreme Court ruled that the minimum wage and
overtime provisions of the FLSA, including the Portal Act, are applicable to
state and local government employers. Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528, 555–56 (1985). However, the FLSA expressly allows
states to enact their own laws providing greater protections to workers than
the FLSA requires. 29 U.S.C. § 218(a). 1

¶13 Arizona adopted § 23-392 to govern overtime compensation
for certain law enforcement officers in 1975 with no reference to federal law.
See 1975 Ariz. Sess. Laws ch. 51, § 1 (1st Reg. Sess.). At that time, § 23-392(A)
read as follows:

Any person engaged in law enforcement activities shall be
compensated, for each hour worked in excess of forty hours
in one work week, at the option of such employer either at a
rate of:
1. One and one-half times the regular rate at which he is
employed; or
2. One hour of compensatory time off in lieu of cash
payment.

¶14 In 1984, the Arizona Court of Appeals decided Prendergast v.
City of Tempe, 143 Ariz. 14, 20–21 (App. 1984), holding that meal periods for
certain officers constituted compensable work. The court observed that
§ 23-392(A) did not define “work.” Id. at 17. The court also noted that 29
U.S.C. § 207(k), a provision in the FLSA that specifies overtime eligibility
for law enforcement officers, “is irrelevant where the issue is the proper

1
This was the basis for the court of appeals’ holding that the FLSA does
not preempt Arizona law in the context presented here. Roberts, 250 Ariz.
at 594–95 ¶¶ 15–16.
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definition of work time.” Id. at 20 n.5. Rather, “[t]he proper and overriding
test is whether the waiting time in issue is predominantly for the employer’s
benefit or for the employee’s benefit.” Id. at 19. More specifically, a court
“must consider what the normal duties of the employee are and whether
the employee’s leisure is so restricted that it cannot be fairly said to be
primarily for the employee’s benefit,” viewed in “the totality of all the
circumstances.” Id. at 20. As the State has acknowledged here, the
Prendergast rule is akin to the definition of work applied by the Supreme
Court in Tennessee Coal and thus provides greater protection for workers
than the FLSA as amended by the Portal Act.

¶15 In 1986, two years after Prendergast, the legislature amended
§ 23-392(A) to provide overtime compensation for “[a]ny person engaged
in law enforcement activities” beyond forty hours per week as follows:

1. One and one-half times the regular rate at which such
person is employed or one and one-half hours of
compensatory time off for each hour worked if by the
person’s job classification overtime compensation is
mandated by federal law.
2. If by the person’s job classification federal law does not
mandate overtime compensation, the person shall receive
the regular rate of pay or compensatory leave on an hour
for hour basis.

1986 Ariz. Sess. Laws ch. 218, § 2 (2nd Reg. Sess.). The statute has been
amended eight times since 1986, but the language at issue here—“if by the
person’s job classification overtime compensation is mandated by federal
law”—remains unchanged, and no further references to federal law have
been added.

¶16 The year after this legislative change, the Attorney General
concluded that the Arizona Legislature had not incorporated § 207(k)’s
method of calculating overtime for corrections officers into § 23-392(A), and
also that state law did not conflict with federal law; therefore, the forty-hour
work week method for calculating overtime compensation specified in state
law would prevail. Op. Ariz. Att’y Gen. I87-158 (1987). The opinion did
not define what constitutes work for purposes of triggering § 23-392(A).
More recently, the court of appeals also applied the forty-hour work week

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method in state law for calculating overtime compensation rather than the
federal law method in § 207(k). Pijanowski v. Yuma County, 202 Ariz. 260
(App. 2002).

¶17 In 2012, the legislature enacted A.R.S. § 41-743, which
authorizes AZDOA’s Director, among other things, to “[a]dopt rules and
procedures relating to personnel and personnel administration,”
§ 41-743(B)(3), encompassing ten specified areas, § 41-743(B)(3)(a)–(j). That
same year, AZDOA adopted Arizona Administrative Code
R2-5A-404(A)(1), which incorporated by reference FLSA regulations 29
C.F.R. §§ 553 and 778. Part 553 covers various topics, such as the treatment
of volunteers, the accrual and use of compensatory time off, and
recordkeeping requirements. Part 778 covers the calculation of pay rates
and FLSA overtime rates. AZDOA did not adopt federal regulations
specifically implementing the Portal Act.

¶18 The court of appeals here, having decided that state law
incorporates the Portal Act, applied Aguilar to the facts of this case and
concluded that pre-shift security screenings are compensable. Roberts, 250
Ariz. at 597–99 ¶¶ 28–37. For the reasons explained hereafter, we conclude
that Arizona law does not incorporate the Portal Act and that whether the
pre-shift security screenings at issue here are compensable should be
decided as a matter of state law. We therefore need not resolve the correct
outcome under federal law.

III.

A.

¶19 The parties agree that the meaning of the statutory
language—“if by the person’s job classification overtime compensation is
mandated by federal law,” § 23-392(A)(1)—is largely dispositive of the
issues presented. The State argues that those thirteen words implicitly
incorporate into Arizona law (or, alternatively, authorize AZDOA to
incorporate into Arizona law through regulation) not only the entirety of
the FLSA, including the Portal Act, but also federal implementing
regulations, federal agency interpretative bulletins, and federal court
jurisprudence construing federal law and regulations. That is a great deal
of freight to load upon such a tiny statutory vessel.

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¶20 The State effectively defeats its own argument by
acknowledging that § 23-392(A) does not expressly incorporate the Portal
Act into Arizona law, but rather does so implicitly. It is a foundational rule
of statutory construction “that courts will not read into a statute something
which is not within the manifest intention of the legislature as gathered
from the statute itself,” and similarly the “court will not inflate, expand,
stretch or extend a statute to matters not falling within its expressed
provisions.” City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965). Beyond its
text, we will construe a statute to include only what is “necessarily implied”
to effectuate the express manifest intention. See, e.g., Maricopa County v.
Douglas, 69 Ariz. 35, 39 (1949).

¶21 This seminal rule of statutory interpretation applies here with
special force. We will not lightly divine legislative intent to displace state
law with sweeping and prescriptive federal statutory law and
administrative regulations. The State argues that the statute evinces no
intent to “diverge from the prevailing federal understanding on
preliminary activities.” But in our system of federalism, we do not start
with federal law and apply it unless the legislature manifests a contrary
intent; rather, we presume that state law prevails unless we find a manifest
intent to adopt federal law. Cf. Varela v. FCA US LLC, 252 Ariz. 451, 457
¶¶ 1–2 (2022) (noting there is no federal preemption under the Supremacy
Clause of the United States Constitution when there is no conflict between
a properly enacted state and federal law).

¶22 Section 23-392(A) does not expressly manifest a legislative
intent to incorporate the entirety of the FLSA, including the Portal Act and
implementing regulations, into Arizona law. To the contrary, the plain
language contains a mere reference to federal law, establishing under state
law that eligibility for overtime compensation depends on whether “by the
person’s job classification overtime compensation is mandated by federal
law.” § 23-392(A)(1)–(2). Contrary to the court of appeals’ far broader
interpretation, see Roberts, 250 Ariz. at 595 ¶¶ 19–20, the unchanged
language leading up to the reference to federal law pertains only to the rate
and method of calculating overtime compensation and does not refer at all to
the definition of work that would trigger such compensation.

¶23 For its broader view of the applicability of federal law, the
court of appeals focused on the words from § 23-392(A) “is mandated by

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federal law.” Id. ¶ 19. But that language only amended § 23-392(A)’s
preexisting standard for entitlement to overtime compensation. The key
added words, in our view, are “if by the person’s job classification overtime
compensation is mandated by federal law.” § 23-392(A) (emphasis added).
That language does not reflect a sweeping incorporation of federal law but
rather merely refers to a slice of federal law that addresses job classifications
for which overtime compensation is mandated under the FLSA.

¶24 In the specific context of corrections officers, we agree with
the Officers that the slice of federal law referred to in § 23-392(A) is § 207(k),
which provides for overtime compensation under certain circumstances for
employees of public agencies engaged in fire protection or law enforcement
activities. Section 207(k) precisely fits the bill for what the legislature
provided in § 23-392(A). It defines a job classification—fire protection and
law enforcement activities including security personnel in correctional
institutions, which corresponds to the subject matter addressed in the state
statute—and then provides for when such personnel are entitled to
overtime compensation. That statute confirms that qualifying corrections
officers are entitled to overtime compensation but does not go on to define
“work” by reference to preliminary and postliminary activities as governed
by the Portal Act or in any other manner. Nothing in the language of
§ 23-392(A) suggests an intent to incorporate federal law beyond its
provisions regarding which job classifications are entitled to overtime.

¶25 The historical sequence supports this interpretation in the
context of overtime compensation for corrections officers. In its 1984
decision in Prendergast, the court of appeals noted that the legislature had
not incorporated § 207(k) into state law. See 143 Ariz. at 20 n.5. Two years
later, the legislature amended § 23-392(A) to include the reference to federal
law. The following year, Attorney General Bob Corbin interpreted the
statute’s revision as referencing the FLSA’s overtime compensation
requirements, which in large part fall under § 207(k). Op. Ariz. Att’y Gen.
I87-158 (1987); see also Pijanowski, 202 Ariz. at 263 ¶ 14 (noting generally the
modest reach of § 23-392 and observing that “modification-by-implication
is disfavored by courts when construing statutes”). We are referred to no
subsequent authority taking a more expansive view of § 23-392(A) until

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AZDOA adopted its regulations at issue here in 2012, twenty-six years after
the statute was modified by adding a reference to federal law. 2

¶26 Nor does the overall statutory context suggest a different
result. The limited reference to “if by the person’s job classification
overtime compensation is mandated by federal law” in § 23-392(A) is the
only such reference to a FLSA provision in the statute’s entirety. Repeated
references to federal law might support the State’s incorporation argument,
but a single reference for a specific, limited purpose strongly suggests the
opposite. By contrast, for example, A.R.S. § 11-251(38) empowers counties
to “establish salary and wage plans incorporating classifications and
conditions prescribed by the federal fair labor standards act.” The
legislature knows how to provide authority to broadly incorporate federal
law into state law when it wishes, and it did not do so here.

B.

¶27 As we conclude that the statute at issue does not incorporate
the entirety of the FLSA, or more specifically the Portal Act, we must
determine whether the pertinent AZDOA rules, as they relate to overtime
compensation for law enforcement officers, are consistent with our state
constitution’s separation of powers. We conclude they are not. At the
outset, then, we set forth our applicable decisional framework.

¶28 The Arizona Constitution embraced the concept of separation
of powers embodied in its federal counterpart. At the federal level,
separation of powers among the three branches of government is not
explicit but rather implicit in the constitutional structure. See, e.g., Miller v.
French, 530 U.S. 327, 341 (2000); see also Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519, 707 (2012) (Scalia, J., dissenting) (“The fragmentation of power
produced by the structure of our Government is central to liberty, and when
we destroy it, we place liberty at peril.”).

2
We do not decide here that § 23-392(A) solely refers to § 207(k), for there
may be other provisions of the FLSA that pertain to eligibility for overtime
compensation for the job classification at issue here. See, e.g., 29 U.S.C.
§ 213(b)(20). Rather, we hold that § 23-392(A) does not extend to provisions
of the FLSA that go beyond mandating overtime compensation for specific
job classifications, such as statutes or administrative regulations defining
“work.”
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¶29 Separation of powers limits both the power that may be
delegated and the method by which it is delegated from the legislative
branch to the executive. As Justice John Marshall stated, there are some
“important subjects, which must be entirely regulated by the legislature
itself” and others “of less interest, in which a general provision may be
made, and power given to [others] to fill up the details.” Wayman v.
Southard, 23 U.S. 1, 20 (1825). “The true distinction . . . is between the
delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring authority or discretion as to
its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.” Marshall Field
& Co. v. Clark, 143 U.S. 649, 693–94 (1892) (citation omitted).

¶30 Thus, the Supreme Court limits the exercise of legislative
power by the executive branch on major policy questions to instances where
a statute “plainly authorizes” executive agency action. Nat’l Fed’n of Indep.
Bus. v. Dep’t of Lab., Occupational Safety and Health Admin. (NFIB v. OSHA),
142 S. Ct. 661, 665 (2022), (invalidating emergency agency standards
governing employer conduct). This doctrine “guard[s] against
unintentional, oblique, or otherwise unlikely delegations of the legislative
power.” Id. at 669 (Gorsuch, J., concurring).

¶31 The Supreme Court recently instructed that, given this
standard, the judicial inquiry “always begins (and often almost ends) with
statutory interpretation. The constitutional question is whether Congress
has supplied an intelligible principle to guide the delegee’s use of
discretion. So the answer requires construing the . . . statute to figure out
what task it delegates and what instructions it provides.” Gundy v. United
States, 139 S. Ct. 2116, 2123 (2019).

¶32 What the United States Constitution structurally implies, the
Arizona Constitution makes explicit. Our constitution’s framers devoted
an entire article to separation of powers, comprised of a single command:
“The powers of the government of the state of Arizona shall be divided into
three separate departments, the legislative, the executive, and the judicial;
and . . . no one of such departments shall exercise the powers properly
belonging to either of the others.” Ariz. Const. art. 3.

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¶33 The article’s plain language, conjoined with the separation of
powers principles described above, establish the pertinent analytical
framework: Is the power to define work (i.e., activities that constitute
compensable work) by incorporating the FLSA and, more particularly, the
Portal Act, properly exercised by an executive agency?

¶34 A unilateral exercise of legislative power by an executive
agency violates separation of powers. See, e.g., Facilitec, Inc. v. Hibbs, 206
Ariz. 486, 488 ¶ 10 (2003). By contrast, the legislature may properly
delegate power to implement a statute so long as it plainly authorizes the
executive agency to do so. See, e.g., id.

¶35 The State, curiously, attaches great weight to this Court’s
decision in State v. Williams, 119 Ariz. 595, 598 (1978), which held that “[i]t
is perfectly legitimate for the Legislature to adopt existing federal rules,
regulations or statutes as the law of this state.” (Emphasis added.) That is
entirely right, but it undermines rather than supports the State’s position.
It establishes the proposition, inherent in the separation of powers, that the
legislature may incorporate federal law. Thus, the threshold question is
whether the legislature plainly adopted or authorized importation of the
relevant federal law in the statutory passage at issue. As we held in the
previous section, the legislature did not adopt the Portal Act; hence we turn
to whether it sufficiently authorized AZDOA to adopt the Portal Act.

¶36 The State argues, and the trial court held, that AZDOA
incorporated the FLSA, including the Portal Act and implementing
regulations, into state law through its rulemaking power. We agree that
AZDOA regulations purport to incorporate the FLSA regulations. But we
hold that AZDOA was not legislatively authorized to incorporate the Portal
Act for purposes of the Officers here. Absent explicit authorization by the
legislature, it would violate our constitution’s separation of powers for
AZDOA to adopt the Portal Act for law enforcement officers, and no such
authorization appears here. “[T]he scope of an agency’s power is measured
by statute and may not be expanded by agency fiat.” Saguaro Healing LLC
v. State, 249 Ariz. 362, 365 ¶ 19 (2020); see also Facilitec, 206 Ariz. at 488 ¶ 10
(“An agency . . . has no powers other than those the legislature has
delegated to it . . . . Any excursion by an administrative body beyond the
legislative guidelines is treated as an usurpation of constitutional powers

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vested only in the major branch of government.” (alteration in original)
(citation omitted) (internal quotation marks omitted)).

¶37 Section 23-392(A) makes no express delegation of power to
anyone. As described above, it merely incorporates a portion of federal law
into state law. It is highly unlikely that the legislature would choose to
bestow sweeping regulatory authority upon an agency in such an oblique
and indirect fashion. See West Virginia v. EPA, No. 20-1530, slip op. at 18
(U.S. June 30, 2022) (“Extraordinary grants of regulatory authority are
rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle
device[s].’” (alteration in original) (citation omitted)); NFIB v. OSHA, 142
S. Ct. at 668 (Gorsuch, J., concurring) (opining that a “lone statutory
subsection does not clearly authorize OSHA’s mandate”).

¶38 In addition to § 23-392(A), AZDOA traces its authority to
§ 41-743(B)(3), enacted in 2012, which authorizes AZDOA’s director to
“[a]dopt rules and procedures relating to personnel and personnel
administration.” The statute then sets forth nine specific areas of
regulation, such as “[t]he establishment and maintenance of classification
and compensation plans,” § 41-743(B)(3)(a), and complaint procedures for
discrimination and harassment, § 41-743(B)(3)(f). Those are followed by a
catch-all regulatory authorization for “[a]ny other aspects of personnel
administration as determined by the director.” § 41-743(B)(3)(j).

¶39 That very same year, AZDOA adopted Ariz. Admin. Code
R2-5A-404. Specifically, this rule provides that “FLSA Regulations 29 CFR
553 and 778 (July 2012), are incorporated by this reference.”
R2-5A-404(A)(1). As we evaluate the applicability of Parts 553 and 778 to
the Officers here, we note that these Parts cover multiple matters not even
remotely within the scope of § 23-392(A), such as treatment of volunteers
(§ 553.100–.106); recordkeeping requirements (§ 553.50–.51); and sleep
(§ 553.222), meal (§ 553.223), and training time (§ 553.226). Part 553 is a
formal regulation providing guidance regarding compensable hours of
work for law enforcement employees. See 29 C.F.R. § 553.221(b). Part 778
is not a regulation at all but a U.S. Department of Labor interpretative
bulletin. Curiously, AZDOA did not adopt the implementing regulations
for the Portal Act. See 29 C.F.R. §§ 785, 790.

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¶40 Despite the vast sweep of Parts 553 and 778, the State
characterizes these regulations as merely an effort to “fill in the details”
from § 23-392(A). Whatever AZDOA’s authority pursuant to § 41-743(B)(3)
to “fill in the details” regarding overtime compensation, Ariz. Admin.
Code R2-5A-404 cannot serve as a basis for incorporating the Portal Act into
state law for purposes of determining overtime requirements for law
enforcement officers, which the legislature has addressed in § 23-392. The
decision whether to incorporate the Portal Act into Arizona law for law
enforcement officers—thereby determining whether time spent on certain
activities is compensable—is the very definition of the type of major policy
question that the legislature alone may determine. As we concluded above,
§ 23-392(A) does not make such a determination. Nor can § 41-743(B)(3),
no matter how broadly AZDOA construes it, authorize AZDOA to
incorporate the Portal Act into our state law for purposes of determining
overtime requirements for law enforcement officers. See, e.g., West Virginia
v. EPA, slip op. at 31 (“A decision of such magnitude and consequence rests
with Congress itself, or an agency acting pursuant to a clear delegation from
that representative body.”). Indeed, even as the legislature assigned
narrow procedural rulemaking authority to AZDOA in § 41-743(B)(3), it
subsequently determined that in actions involving state administrative
agencies, the courts should interpret applicable statutes “without deference
to any previous determination that may have been made on the question
by the agency.” A.R.S. § 12-910(F).

¶41 Here again, the State concedes the legislature has not
expressly authorized AZDOA regulations but asserts that its failure to
countermand the regulations since they were adopted amounts to “implicit
ratification” of the regulations. The State contends that instead of the
express delegation of legislative power that the constitution requires, an
agency may unilaterally initiate what amounts to legislation that will stand
unless the legislature takes positive action to erase it. This novel theory
subverts the command that none of the branches of government “shall
exercise the powers properly belonging to either of the others.” Ariz. Const.
art. 3. Given that the legislative power cannot be outsourced to an executive
agency without a statute delegating that power, see Hibbs, 206 Ariz. at 488
¶ 10, it is inconceivable that it may be surrendered by legislative inaction.

¶42 Nor do we presume, as the State suggests, that the legislature
is aware of all of the regulations adopted by the numerous state regulatory

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 ROBERTS, ET AL. V. STATE OF ARIZONA
Opinion of the Court

agencies and tacitly approves them if it does not take contrary action. Even
in the realm of legislative acquiescence to judicial opinions, we require
some indication that the legislature deliberately did not change the law in
response to a judicial opinion. See, e.g., State ex rel. Brnovich v. Ariz. Bd. of
Regents, 250 Ariz. 127, 133 ¶ 21 (2020) (stating a general reluctance to
presume that legislative silence equates to legislative approval).

¶43 We conclude that the legislature did not incorporate the
Portal Act into § 23-392 nor expressly delegate authority to AZDOA to do
so; and it probably could not have delegated its power given that such a
major public policy decision is inherently legislative in nature, and the
legislative power is inalienable. The legislature must first make the policy
choice, then it may delegate to AZDOA the power to implement it.

¶44 AZDOA possesses only such powers as the legislature
delegates to it, Facilitec, 206 Ariz. at 488 ¶ 10, and the legislature has not
expressly granted it authority to incorporate the Portal Act for purposes of
determining the definition of work to trigger overtime compensation
requirements for law enforcement officers; therefore, AZDOA’s regulations
are not binding as to whether the Officers’ mandatory pre-shift screenings
are work for which overtime compensation is required.

¶45 We do not here decide, as the question is not yet before us,
whether the Prendergast definition of work remains operative, whether
subsequent developments may have altered it, or whether any Arizona
statutory provisions provide guidance on the meaning of work. The trial
court should consider these issues on remand. All we decide today is that
the definition of work is a matter of state law, that § 23-392 does not
incorporate the Portal Act for law enforcement officers, and that AZDOA is
not authorized to do so.
IV.

¶46 The Officers request attorney fees under A.R.S.
§ 12-341.01(A). In our discretion, reasonable attorney fees incurred in this
Court are granted upon compliance with Arizona Rule of Civil Appellate
Procedure 21.

¶47 We vacate the court of appeals’ opinion and reverse the trial
court’s dismissal of the action. We remand the case to the trial court for
further proceedings.
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