IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STEFANI MCMICHAEL-GOMBAR,
Petitioner/Appellant,
v.
PHOENIX CIVIL SERVICE BOARD, ET AL.,
Respondents/Appellees,
CITY OF PHOENIX,
Real Party in Interest/Appellee.
No. CV-22-0176-PR
Filed December 5, 2023
Appeal from the Superior Court in Maricopa County
The Honorable Timothy J. Thomason, Judge
No. LC2020-000308-001
AFFIRMED
Opinion of the Court of Appeals, Division One
253 Ariz. 429 (App. 2022)
VACATED
COUNSEL:
Steven J. Serbalik (argued), Steven J. Serbalik, PLC, Scottsdale, Attorney for
Stefani McMichael-Gombar
Richard K. Mahrle, Gammage & Burnham P.L.C., Phoenix, Attorneys for
the City of Phoenix Civil Service Board
Diane M. Johnsen, Alexis E. Danneman (argued), Perkins Coie LLP,
Phoenix, Attorneys for The City of Phoenix
MCMICHAEL-GOMBAR V. PHOENIX CIVIL SERVICE BOARD
Opinion of the Court
VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, LOPEZ,
BEENE, MONTGOMERY, and KING joined.
VICE CHIEF JUSTICE TIMMER, Opinion of the Court:
¶1 The City of Phoenix (the “City”) briefly suspended Phoenix
Police Sergeant Stefani McMichael-Gombar for posting content to her
Facebook page that violated the Phoenix Police Department’s Social Media
Policy (the “Policy”). On appeal, the Phoenix Civil Service Board (the
“Board”) upheld the suspension. The issues here are whether the Board
needed to consider McMichael-Gombar’s arguments that discipline was
either unwarranted or excessive because (1) the Policy is overbroad and
violates the First Amendment to the United States Constitution, or (2) she
reasonably believed she had a First Amendment right to make the Facebook
post. We conclude the Board lacked authority to decide whether the
Policy is unconstitutional, either facially or as applied. But
McMichael-Gombar was entitled to argue and introduce supporting
evidence that she believed she acted within her First Amendment rights.
BACKGROUND
¶2 After receiving notice of her suspension, McMichael-Gombar
timely appealed to the Board, giving the following explanation in her
written appeal: “I did make the [F]acebook post alleged. I believe the
[P]olicy is overbroad and unconstitutional, and that the discipline is
excessive and not supported by just [cause]—particularly because my
Facebook was set to private.” Before McMichael-Gombar’s hearing, the
City asked the assigned hearing officer to preclude her from introducing
evidence or presenting arguments “regarding the constitutionality of the
Police Department’s Social Media policy.” The hearing officer granted the
City’s request, and according to McMichael-Gombar, she was “not allowed
to elicit testimony nor present evidence related to how the [Policy] was
unconstitutional nor how it impacted her ability to participate in her private
affairs and express her First Amendment rights.” The hearing officer
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ultimately recommended that the Board uphold McMichael-Gombar’s
suspension.
¶3 The Board reviewed the hearing officer’s recommendation
during a subsequently held meeting. On the advice of its counsel, the
Board, like the hearing officer, declined to consider whether the Policy
violated McMichael-Gombar’s First Amendment rights. According to
McMichael-Gombar, she was therefore “barred from advancing evidence
or arguments related to how [the Policy] was over broad [sic] and
unconstitutional—both on its face and as-applied.” The Board then
upheld the suspension.
¶4 McMichael-Gombar next sought special action relief in the
superior court. For the first time, she argued that the Board’s refusal to
consider the constitutionality of the Policy violated “merit principle[s]”
underlying the City’s personnel system, as stated in the Phoenix City
Charter (the “Charter”). She asked the court to remand the matter to the
Board for a new hearing “with instructions to permit testimony and
evidence relating to the constitutionality of the Policy.”
¶5 The superior court declined special action jurisdiction and
dismissed the complaint. It reasoned that the Charter neither requires the
Board to consider the constitutionality of the City’s policies nor authorizes
it to do so. The court found that the Board is only required to “determin[e]
if the City has proven that the allegations against an employee in a
disciplinary notice are true, and if so, whether an appropriate level of
discipline was administered.”
¶6 The court of appeals vacated the superior court’s ruling and
remanded the matter for the Board to consider McMichael-Gombar’s
evidence and arguments. McMichael-Gombar v. Phx. Civ. Serv. Bd., 253
Ariz. 429, 437 ¶¶ 32–33 (App. 2022). The court determined that the Board
did not have to decide whether the Policy was unconstitutional, either
facially or as applied. Id. at 436–37 ¶ 31. But the court concluded the
Board must “determine whether the sanction gives ‘proper regard’ to
McMichael-Gombar’s constitutional rights.” Id. at 436. The court did not
explain what the Board must do to give “proper regard” to those rights.
See id.
¶7 We granted review of the Board and the City’s petitions for
review to determine the extent of the Board’s authority to decide or
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Opinion of the Court
consider constitutional issues in disciplinary matters, an issue of statewide
importance. Although McMichael-Gombar has retired from the Phoenix
Police Department, the matter is not moot because reversing the suspension
decision could affect her financially. We have jurisdiction over this matter
pursuant to article 6, section 5(3) of the Arizona Constitution.
DISCUSSION
¶8 We will affirm the Board’s decision unless it is “arbitrary,
capricious or involved an abuse of discretion.” Woerth v. City of Flagstaff,
167 Ariz. 412, 417 (App. 1990) (quoting City of Tucson v. Mills, 114 Ariz. 107,
111 (App. 1976)). A legal error, like the Board misinterpreting its powers
and duties under the Charter, may constitute an abuse of discretion. See
Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255, 259 ¶ 13 (2022).
A. The Charter Defines The Board’s Powers And Duties.
¶9 The City organized its government under the Charter, which
the City’s electorate enacted pursuant to the Arizona Constitution’s “home
rule charter” provision. See Ariz. Const. art. 13, § 2 (authorizing cities with
populations greater than 3,500 to “frame a charter for its own government
consistent with, and subject to, the Constitution and the laws of the state”);
Phx. City Charter, Preamble. Within those boundaries, the Charter
effectively acts as the City’s “local constitution.” Piccioli v. City of Phx., 249
Ariz. 113, 118 ¶ 15 (2020) (quoting State ex rel. Brnovich v. City of Tucson, 242
Ariz. 588, 598 ¶ 39 (2017)). But unlike a constitution, which is “a limitation
of power,” a city charter grants power. Paddock v. Brisbois, 35 Ariz. 214, 220
(1929).
¶10 The Charter established a personnel system for classified
employees, created the Board, and divided responsibilities for the system
among the City Council, the City Manager (acting as the “Personnel
Official”), and the Board. See Phx. City Charter, ch. 25, §§ 3, 6–7. The
Board consists of five volunteer “residents, citizens and electors of the
City,” who are appointed by the City Council and serve staggered
three-year terms. See id. § 2.
¶11 Among other powers and duties, the Charter tasks the Board
with hearing appeals of disciplinary suspensions from classified
employees, including police officers like McMichael-Gombar. See id.
§ 3(3). To fulfill this duty, the Board may adopt procedural rules, hold
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hearings, and authorize hearing officers to conduct those hearings. Id.
§ 3(1), (3). When addressing discipline imposed on police officers, the
Board is also bound by the “peace officers bill of rights” (“POBR”), which
provides minimum rights for all peace officers in Arizona. See A.R.S.
§§ 38-1101 to -1120. The Board makes the final, binding disciplinary
decision, and no further appeals are permitted. See Phx. City Charter, ch.
25, § 3(3).
¶12 As an administrative body, the Board holds “no common law
or inherent powers.” See Kendall v. Malcolm, 98 Ariz. 329, 334 (1965). The
Charter, as the authority creating the Board, restricts the Board’s powers
and duties to those explicitly described in the document or in personnel
rules approved by the City Council. See id.; see also City of Phx. v. Phx. Civ.
Serv. Bd., 169 Ariz. 256, 259 (App. 1991) (concluding that the Board’s powers
and duties are “strictly limited” by the Charter); Phx. City Charter, ch. 25,
§ 8(2)(f) (requiring the City Council to adopt personnel rules governing
disciplinary actions). The Board can also exercise powers necessarily
implied to effectuate powers expressly granted. See City of Flagstaff v.
Associated Dairy Prods. Co., 75 Ariz. 254, 257 (1953) (“Implied powers do not
exist independently of the grant of express powers and the only function of
an implied power is to aid in carrying into effect a power expressly
granted.” (quoting Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395
(1949))). Thus, whether the Board has the power or duty to overturn or
modify a disciplinary decision—either because it concludes that the
personnel policy underlying it is unconstitutional or that the disciplined
employee reasonably believed it so—depends on the scope of authority
granted to the Board by the Charter, the personnel rules, and the POBR.
B. The Board’s Powers And Duties Do Not Include
Deciding The Constitutionality Of Personnel Policies.
¶13 We review the Charter’s meaning de novo as a legal issue.
See Piccioli, 249 Ariz. at 118 ¶ 15. In doing so, we “examine the [Charter]
as a whole along with related provisions in the Charter.” Id. If a
provision is ”subject to only one reasonable interpretation, we apply it
without further analysis.” See id. (quoting Glazer v. State, 237 Ariz. 160, 163
¶ 12 (2015)). But “[i]f more than one reasonable interpretation exists, we
will consider secondary principles, including the purpose . . . and the
effects and consequences of different interpretations, to identify the correct
one.” Id.
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¶14 McMichael-Gombar first argues that chapter 25, § 1(2)(e) of
the Charter required the Board to consider whether the Policy violates the
First Amendment. She does not assert that the Board could declare the
Policy unconstitutional and bind the City and others to that determination.
Rather, she contends § 1(2)(e) required the Board to consider evidence and
arguments that the Policy is unconstitutional in deciding whether she was
appropriately disciplined.
¶15 Section 1(2)(e) provides in relevant part:
Sec. 1. Purpose and policy.
2. The City has determined the necessity of establishing a
merit system of personnel administration based on merit
principles and professional methods governing the
appointment, tenure, promotion, transfer, layoff, separation,
discipline, and other incidents of employment relating to City
employees. These merit principles include:
....
e. Assuring impartial treatment of applicants and
employees in all aspects of personnel administration without
regard to political affiliation, race, color, national origin, sex,
religious creed or handicap, and with proper regard for their
privacy and constitutional rights as citizens.
Phx. City Charter, ch. 25., § 1(2)(e) (emphasis added). McMichael-Gombar
seizes on the above-italicized language to support her contention that the
Board must consider whether the Policy violates the First Amendment,
either facially or as applied, and, if so, rescind or modify her discipline.
¶16 We disagree that § 1(2)(e)’s statement of merit principles
creates powers or duties for the Board. By its plain language, that
provision broadly states principles underlying the creation and governance
of the entire personnel system and does not create powers or duties for
anyone administering that system—the City Manager, the City Council, or
the Board. See id. § 1(2). Other Charter provisions explicitly provide
those powers and duties. See id. §§ 3, 6–7 (creating powers and duties,
respectively, for the Board, the City Manager, and the City Council).
Indeed, § 1 is titled “Purpose and policy” and nowhere mentions the Board.
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Conversely, § 3 is titled “Powers and duties of the Board,” leaving no doubt
which provision addresses the Board’s authority.
¶17 Also, the Charter provides that the Board is only authorized
to exercise authority “specifically reserved” to it in § 3. See id. § 6(1)
(granting authority to the City Manager as “the City’s Personnel Official”
to “[a]dminister all the provisions of this chapter and of the personnel rules
not specifically reserved to the [Board] pursuant to Sec. 3 herein or to the
City Council pursuant to Sec. 7 herein”). Thus, we cannot interpret
§ 1(2)(e) as empowering the Board to perform any function—including
deciding whether City policies are unconstitutional—because § 6(1) limits
the Board’s powers and duties to those specifically reserved to it in § 3.
¶18 If the Board is empowered to decide whether the Policy is
unconstitutional, that authority must be found in § 3. That section
provides:
Sec. 3. Powers and duties of the Board.
The Board shall:
1. Adopt such rules and hold such hearings as it finds
necessary in order to perform the duties and
responsibilities vested in it by this chapter.
2. Submit periodic advisory reports to the Council
regarding the activities of the Board as they relate to the
application of merit principles in City personnel
management.
3. Notwithstanding the provisions of Chapter III, Section
2B(1) of this Charter the Board shall hear appeals from
disciplinary demotions, discharges, and suspensions by
classified employees who have completed the prescribed
probationary period. The Board may delegate to hearing
officers the authority to conduct hearings. The decisions of
the Board shall be final and binding.
4. Administer oaths, compel attendance of and examine
witnesses and compel production of and examine
documents.
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5. Hear appeals from classified employees from
interpretations of the personnel rules approved by the
Council.
6. Propose personnel rules and amendments thereto.
Id. § 3. Nothing in this provision suggests that the Board’s appellate
authority requires or empowers it to decide the constitutionality of the
City’s policies. Notably, although the Charter explicitly delineates the
Board’s powers in carrying out its duties—for example, holding hearings,
administering oaths, interpreting personnel rules, and examining witnesses
and documents—nowhere does it permit the Board to decide the
constitutionality of policies, rules, or regulations. See Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012)
(“Nothing is to be added to what the text states or reasonably
implies . . . . That is, a matter not covered is to be treated as not covered.”).
And because the Board does not possess any inherent powers, it is limited
to the powers “granted specifically” in § 3. See Kendall, 98 Ariz. at 334.
Thus, the Board is not empowered to decide whether a personnel policy is
unconstitutional.
¶19 We disagree with the court of appeals that § 3(2) specifically
reserves to the Board the power to apply § 1(2)(e)’s merit principle in a
disciplinary appeal. See McMichael-Gombar, 253 Ariz. at 435 ¶ 24. Section
3(2) requires the Board to periodically report its activities to the City
Council “as they relate to the application of merit principles in City
personnel management.” But that section “does not [itself] add or expand
the activities in which the Board is otherwise authorized to engage.” City
of Phoenix, 169 Ariz. at 260. And the Board can fulfill this duty without
deciding the constitutionality of the City’s policies. For example, the
Board could propose new or amended personnel rules that promote
impartial treatment of employees and report those efforts to the City
Council. Or it could report rescinding an employee’s discipline because
similarly situated employees received no discipline for the same infraction.
¶20 The personnel rules approved by the City that govern
disciplinary appeals also do not authorize the Board to decide whether a
city policy is unconstitutional. Phoenix Interim Personnel Rule 22e(3)(B)
confines the substance of an appeal to challenging whether (1) the employee
committed an alleged violation, and/or (2) the discipline imposed was too
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severe. No rule authorizes an appeal on the basis that a city policy is
“overbroad and unconstitutional,” as McMichael-Gombar alleged as one
basis for her appeal. Consistently, the rules require the hearing officer to
summarize factual findings in the final report and recommendation to the
Board but do not require any legal conclusions. See Phoenix Interim
Personnel Rule 22g(3)(L). And the Board must decide whether to uphold,
modify, or reject the hearing officer’s recommendation based on the parties’
arguments, including those addressing alleged factual errors in the report,
and any additional evidence permitted. See id. Rule 22i(5), (8). No rule
authorizes the Board to decide whether a city policy is unconstitutional.
¶21 This interpretation of the Board’s authority under § 3 and the
personnel rules is consistent with the POBR. Although A.R.S. § 38-1106
provides requirements for disciplinary appeals before decision-makers like
the Board, nothing requires the decision-maker to decide the
constitutionality of a policy, rule, regulation, ordinance, or law underlying
a disciplinary decision. On the other hand, the decision-maker must “state
in every finding of disciplinary action whether or not just cause existed for
the disciplinary action.” § 38-1106(L). “Just cause” means:
(a) The employer informed the law enforcement officer of the
possible disciplinary action resulting from the officer’s
conduct through agency manuals, employee handbooks, the
employer’s rules and regulations or other communications to
the officer or the conduct was such that the officer should
have reasonably known disciplinary action could occur.
(b) The disciplinary action is reasonably related to the
standards of conduct for a professional law enforcement
officer, the mission of the agency, the orderly, efficient or safe
operation of the agency or the officer’s fitness for duty.
(c) The discipline is supported by a preponderance of
evidence that the conduct occurred.
(d) The discipline is not excessive and is reasonably related
to the seriousness of the offense and the officer’s service
record.
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§ 38-1101(7). Significantly, “just cause” does not depend on the
constitutionality or lawfulness of any policy or rule violated by the officer.
See id.
¶22 McMichael-Gombar correctly points out that claimants
routinely raise constitutional arguments in administrative proceedings.
We reiterated in Mills v. Arizona Board of Technical Registration, 253 Ariz. 415,
422 ¶ 19 (2022), that agencies “may apply constitutional doctrines when
resolving claims.” An agency, however, can only apply those doctrines to
issues it is authorized to resolve. See Kendall, 98 Ariz. at 334; see also
Moulton v. Napolitano, 205 Ariz. 506, 513 ¶ 20 (App. 2003) (finding that the
revenue department had authority to apply constitutional doctrines in
deciding whether a taxpayer received the proper tax credit because the
legislature authorized it to consider “any legal theory, including a
constitutional one”). Here, for example, because the Charter requires the
Board to interpret personnel rules in an employee’s appeal, see Phx. City
Charter, ch. 25., § 3(5), it may apply the First Amendment in discarding an
interpretation that would violate an employee’s rights when resolving that
appeal. But as we have explained, neither the Charter, the rules governing
disciplinary proceedings, nor the POBR authorizes the Board to decide
whether a city policy underlying discipline is unconstitutional.
¶23 Significantly, we also stated in Mills that only courts may
declare laws and rules unconstitutional, either facially or as applied, and
enjoin their application. 253 Ariz. at 422–23 ¶ 20. Here,
McMichael-Gombar sought to introduce evidence and argue that the Policy
is overbroad and unconstitutional under the First Amendment. Although
she did not seek a binding declaration, her request for relief from discipline
on that basis effectively asked the Board to decide the constitutionality of
the Policy and enjoin its application. And because the Board’s decision is
final and non-appealable, see Phx. City Charter, ch. 25., § 3(3), if the Board
decided the issue, the courts would have no opportunity to review that
decision. The Board would have usurped the courts’ constitutionally
granted authority to decide the Policy’s constitutionality. See Mills, 253
Ariz. at 422–23 ¶ 20; see also Moulton, 205 Ariz. at 513 ¶ 20 (“Only the courts
have authority to take action that runs counter to the expressed will of the
legislative body.” (quoting Estate of Bohn v. Waddell, 174 Ariz. 239, 249
(App. 1992)) (cleaned up)). Our narrower interpretation of the Board’s
authority avoids this infringement on judicial authority. See State v.
Brearcliffe, 254 Ariz. 579, 585 ¶ 22 (2023) (stating that when interpreting
statutes and rules the courts “avoid interpretations that unnecessarily
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implicate constitutional concerns” (quoting Scheehle v. Justices of the Sup. Ct.,
211 Ariz. 282, 288 ¶ 16 (2005))).
¶24 McMichael-Gombar secondarily argues the Board
erroneously precluded her from arguing that her suspension was either
unwarranted or excessive because she reasonably believed she had a First
Amendment right to make the Facebook post. We agree that
McMichael-Gombar was entitled to make this argument and introduce
supporting evidence. The Board essentially serves as the community’s
conscience and is charged with deciding whether the employer had cause
to discipline the employee and whether the discipline imposed was
unwarranted or too severe. See Phx. City Charter, ch. 25, § 3(3); Phoenix
Interim Personnel Rule 22e(3)(B). It can apply popular values and
common sense in deciding whether an employee was fairly disciplined.
Thus, as the City conceded at oral argument, the Board could have
considered whether McMichael-Gombar reasonably believed her speech
was constitutionally protected. It also could have considered whether her
posting violation was excusable because similarly situated employees were
treated differently; whether discipline was fairly imposed in light of her
Facebook privacy setting; and whether other relevant facts cast doubt on
the appropriateness of the disciplinary decision. Some of these factors
may overlap with the Charter’s merit principles, which we have said do not
impose any powers or duties on the Board. See Part B ¶ 16. Regardless,
the Board was authorized by § 3(3) to consider such factors in determining
whether suspending McMichael-Gombar was an excessive disciplinary
sanction.
¶25 As the party seeking special action relief, McMichael-Gombar
had the burden to provide a record supporting her claims. See Ariz. R.P.
Spec. Act. 4(d). The sparse record here, however, does not show that the
Board prevented McMichael-Gombar from arguing or presenting evidence
that she believed she had a First Amendment right to make the Facebook
post. The record does not contain the Policy or the contents of the post; it
does not reflect the evidence or arguments she successfully presented to the
hearing officer or the Board; and it does not describe with any detail the
evidence she was precluded from introducing. The record reflects only
that the hearing officer and the Board precluded her from arguing or
introducing evidence that the Policy itself was overbroad and therefore
violated the First Amendment.
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¶26 Our decision does not leave classified employees like
McMichael-Gombar without a remedy to challenge the constitutionality of
personnel policies and rules. Just like unclassified employees who lack
appeal rights before the Board, see Phx. City Charter, ch. 25, §§ 3(3), 5,
classified employees have access to the courts to vindicate their
constitutional rights. For example, classified employees could file a
complaint with the state or federal courts pursuant to 42 U.S.C. § 1983,
challenging the Policy as depriving them of rights secured by the First
Amendment. See Wyatt v. Cole, 504 U.S. 158, 161 (1992) (explaining that
§ 1983 aims “to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails”). Indeed, other Phoenix police
officers filed such an action in the federal district court, claiming that parts
of the Policy are facially invalid under the First Amendment and seeking to
enjoin the imposition of discipline for the officers’ violations. See
Hernandez v. City of Phx., 43 F.4th 966, 975 (9th Cir. 2022). Officers could
also file a complaint with the superior court seeking declaratory and
injunctive relief, as occurred in Mills. 253 Ariz. at 419 ¶ 7.
¶27 In sum, we agree with the superior court that the Board did
not fail to exercise or abuse the discretion it had a duty to exercise. See
Ariz. R.P. Spec. Act. 3 (providing the operative questions for a special action
complaint). Neither the Charter, the personnel rules, nor the POBR
authorized the Board to decide whether the Policy violated the First
Amendment, either facially or as applied. Although McMichael-Gombar
could have presented evidence or argued that she believed she had a First
Amendment right to make her Facebook post, she did not satisfy her
burden to show that the Board precluded her from doing so. For these
reasons, the superior court correctly dismissed her special action complaint.
CONCLUSION
¶28 We vacate the court of appeals’ opinion and affirm the
superior court’s order dismissing McMichael-Gombar’s special action
complaint.
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