SUPREME COURT OF ARIZONA
En Banc
PIMA COUNTY, a political ) Arizona Supreme Court
subdivision of the State of ) No. CV-04-0356-PR
Arizona, and CLARENCE DUPNIK, )
PIMA COUNTY SHERIFF, ) Court of Appeals
) Division Two
Plaintiffs/Appellants, ) No. 2 CA-CV 04-0004
)
v. ) Pima County
) Superior Court
PIMA COUNTY LAW ENFORCEMENT ) No. C20031396
MERIT SYSTEM COUNCIL and GEORGIA )
BROUSSEAU, MICHAEL HELLON, )
HERSCHELLA HORTON, ROSEMARY ) O P I N I O N
MARQUEZ, PAUL JULIEN, and JAMES )
WATSON, in their official )
capacities, and acting as Pima )
County Law Enforcement Merit )
System Council, )
)
Defendants/Appellees, )
)
JOSEPH HARVEY, )
)
Real Party in Interest. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Leslie B. Miller, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
209 Ariz. 204, 99 P.3d 19 (App. 2004)
VACATED
________________________________________________________________
GABROY, ROLLMAN & BOSSÉ, P.C. Tucson
By John Gabroy
Lyle D. Aldridge
Richard A. Brown
Attorneys for Pima County and Clarence Dupnik,
Pima County Sheriff
COREY & KIME Tucson
By Barry M. Corey
Michelle S. Michelson
Jason E. Smith
Attorneys for Pima County Law Enforcement
Merit System Council, Georgia Brousseau,
Michael Hellon, Herschella Horton, Rosemary
Marquez, Paul Julien, and James Watson
PICCARRETA & DAVIS P.C. Tucson
By Michael L. Piccarreta
Jefferson L. Keenan
Michael W. Storie
Attorneys for Joseph Harvey
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 This case arises out of the dismissal of Deputy
Sheriff Joseph Harvey from the Pima County Sheriff’s Office. We
granted review to decide whether Pima County Law Enforcement
Merit System Council (“LEMSC”) Rule XIII-4(I), which gives the
Council broad discretion to revoke or modify the employer’s
disciplinary action, is consistent with “recognized merit system
principles of public employment,” as required by Arizona Revised
Statutes (“A.R.S.”) section 38-1003 (Supp. 2004), and therefore
whether the Council’s reinstatement of Deputy Harvey was lawful.
We conclude that Pima County LEMSC Rule XIII-4(I) is consistent
with A.R.S. § 38-1003.
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I. FACTS AND PROCEDURAL BACKGROUND
¶2 Deputy Harvey testified in a criminal case that to
effectuate an arrest, he had hit the arrestee with the butt of
his gun and later slapped the handcuffed, shackled, and wounded
man. He stated that he slapped the arrestee not only to elicit
incriminating statements, but also to keep the arrestee from
losing consciousness before medical personnel arrived.
¶3 After reviewing that testimony and other reports of
the incident, Pima County Sheriff Clarence Dupnik concluded that
Deputy Harvey had used excessive force, engaged in inappropriate
interview techniques, and showed poor judgment. Dupnik decided
to terminate Harvey’s employment. The termination notice cited
the arrest incident and also alleged other rule and policy
infractions, including Harvey’s “career-long pattern of failure
and/or unwillingness to comply with Department Rules and
Regulations,” his disregard of commands from a fellow officer,
his absence without leave to drive an intoxicated friend home,
and his inclusion of false information on booking forms.
¶4 Harvey appealed his termination to the Pima County Law
Enforcement Merit System Council. He testified before the
hearing officer that he had slapped the arrestee to revive him,
not solely to elicit incriminating statements. Officers who
witnessed the incident corroborated Harvey’s account. Some law
enforcement supervisors, however, testified that slapping a
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suspect is not an acceptable way to render first aid. Harvey
did not deny the other accusations of misconduct, but minimized
them. He questioned the timing of his termination, which
occurred nearly eighteen months after the incident with the
arrestee.
¶5 The hearing officer accepted Harvey’s version of the
slapping incident and found that it did not warrant discipline.
For the other infractions, the hearing officer recommended the
imposition of lesser sanctions than dismissal. The Council
unanimously adopted the hearing officer’s recommendations.
¶6 Pima County and Sheriff Dupnik sought review by filing
a special action in the superior court. Finding no arbitrary or
capricious actions by the Council or abuse of the Council’s
discretion, the court denied relief.
¶7 Pima County and Sheriff Dupnik appealed. The court of
appeals reversed the superior court decision, concluding that
A.R.S. § 38-1003, which limits the Council’s authority to those
powers exercised “pursuant to recognized merit system principles
of public employment,” requires deference to the discipline
imposed by the Sheriff. Pima County v. Pima County Law
Enforcement Merit Sys. Council, 209 Ariz. 204, 208, ¶¶ 13-14, 99
P.3d 19, 23 (App. 2004) (“Harvey”). The court of appeals
examined several merit system cases, from which it deduced that
the legislature had “recognized” review of employer actions by
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the “arbitrary and capricious” standard of review as a merit
system principle. Id. at 208-09, ¶ 16, 99 P.3d at 23-24. It
therefore concluded that a similarly deferential standard of
review was required for all merit system councils and that the
less deferential standard of review set forth in LEMSC Rule
XIII-4(I) violated A.R.S. § 38-1003. Id. at 210, ¶ 22, 99 P.3d
at 25.
¶8 We granted review. We have jurisdiction pursuant to
Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §
12-120.24 (2003).
II. DISCUSSION
¶9 The powers and duties of a law enforcement merit
system council are described in A.R.S. § 38-1003. The statute
requires each law enforcement merit system council, “pursuant to
recognized merit system principles of public employment,” to
create a process to ensure “fair and impartial” hiring and
firing decisions for “all classified law enforcement officers.”
Id. It also requires each council to adopt rules of procedure
and to “[h]ear and review appeals” relating to employee
discipline. Id. § 38-1003(5), (6). Nothing in the statute
requires a council to adopt any particular standards within
those rules. It requires only that the rules and standards
selected comport with merit system principles.
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¶10 As authorized by A.R.S. § 38-1003, the Pima County Law
Enforcement Merit System Council adopted rules, including LEMSC
Rule XIII-4(I), creating a process for reviewing hiring,
discipline, and dismissal decisions relating to Pima County law
enforcement officers.
¶11 Before 1999, Pima County LEMSC Rule XIII-4(I) required
the Council to affirm the employer-imposed discipline unless
“the Council determines that the action appealed from was
arbitrary or taken without reasonable cause.” Harvey, 209 Ariz.
at 206, ¶ 7, 99 P.3d at 21. In 1999, however, the Council
amended Rule XIII-4(I), replacing the “arbitrary or taken
without reasonable cause” standard with a less deferential
standard of review. Id. The rule now provides that if the
Council finds just cause for the discipline imposed by the
employer, the discipline must be affirmed. LEMSC Rule XIII-
4(I). But if the Council finds that just cause did not exist,
“either (1) because some or all of the charges were not proven
to the satisfaction of the Council, and/or (2) whether or not
all of the charges were proven, the disciplinary action imposed
was, in the sole discretion of the Council, too severe a penalty
for the conduct proven,” then the Council must revoke or modify
the disciplinary action. Id. (emphasis added). Rule XIII-4(I)
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then confers on the Council “the power to direct appropriate
remedial action.” Id.1
¶12 We are asked to determine whether the rule, which
vests broad discretion in the Council, comports with “recognized
merit system principles of public employment,” as required by
A.R.S. § 38-1003, or whether the rule exceeds the Council’s
authority.
¶13 Interpretation of rules and statutes is a legal
matter, which we review de novo. See Bilke v. State, 206 Ariz.
462, 464, ¶ 10, 80 P.3d 269, 271 (2003) (interpreting statute);
Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.
1996) (interpreting court rule). Our task in this case is to
ascertain what the legislature meant in A.R.S. § 38-1003 by
requiring merit system rules to be consistent with “recognized
1
Pima County Law Enforcement Merit System Rule XIII-4(I)
provides, in full, as follows:
If, after the hearing, a majority of the Council
determines that there was just cause for the
disciplinary action imposed, then the order shall be
affirmed. If the Council determines that there was
not just cause for the disciplinary action taken
either (1) because some or all of the charges were not
proven to the satisfaction of the Council, and/or (2)
whether or not all of the charges were proven, the
disciplinary action imposed was, in the sole
discretion of the Council, too severe a penalty for
the conduct proven, then the order shall be revoked or
modified. The Council shall have the power to direct
appropriate remedial action and shall do so after
taking into consideration just and equitable relief to
the employee in the best interest of the County and
the public.
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merit system principles of public employment,” and then to
determine whether Rule XIII-4(I) comports with those principles.
See City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677
P.2d 1283, 1286 (1984) (stating that court’s primary goal in
interpreting statutes is to ascertain and give effect to the
intent of the legislature). Because administrative agencies
derive their powers from their enabling legislation, their
authority cannot exceed that granted by the legislature. See
Kendall v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965).
Thus if Rule XIII-4(I) conflicts with A.R.S. § 38-1003, the rule
must yield. See Ariz. State Bd. of Regents v. Ariz. State Pers.
Bd., 195 Ariz. 173, 175, ¶ 9, 985 P.2d 1032, 1034 (1999).
A. What are “recognized merit system principles of public
employment”?
¶14 The phrase “recognized merit system principles of
public employment” is not defined in A.R.S. § 38-1003 or in the
legislative history accompanying that statute. Generally,
however, merit systems embrace the notion that hiring,
retention, and dismissal of public employees should be based on
the employees’ merit and competence, and not on political
considerations. See Donaldson v. Sisk, 57 Ariz. 318, 330-31,
113 P.2d 860, 865 (1941); 15A Am. Jur. 2D Civil Service § 1
(2000). In addition, this court has recognized that a proper
merit system must provide an aggrieved merit system employee
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with a hearing in front of a neutral body before discipline
decisions become final. See, e.g., City of Phoenix v.
Sittenfeld, 53 Ariz. 240, 246-47, 88 P.2d 83, 86 (1939); see
also Hamilton v. City of Mesa, 185 Ariz. 420, 424-25, 916 P.2d
1136, 1140-41 (App. 1996); Deuel v. Ariz. State Sch. for the
Deaf and Blind, 165 Ariz. 524, 526-27, 799 P.2d 865, 867-68
(App. 1990) (setting forth due process rights of covered public
employees); accord 5 U.S.C. § 2301 (1996) (setting forth federal
merit system principles); see generally Daryl Manhart, Commment,
Property and Liberty Limitations on the Dismissal of Arizona
Public Employees, 1977 Ariz. St. L.J. 835, 853-54 [hereinafter
“Manhart”] (discussing law enforcement merit systems).
¶15 The right to treatment based on merit and a hearing by
a neutral board before discipline becomes final are therefore
central merit system principles of public employment for
purposes of A.R.S. § 38-1003. See Evans v. State ex rel. Ariz.
Corp. Comm’n, 131 Ariz. 569, 572, 643 P.2d 14, 17 (App. 1982)
(recognizing requirement that State Personnel Board be “a fair
and impartial tribunal”); Bishop v. Law Enforcement Merit Sys.
Council, 119 Ariz. 417, 422, 581 P.2d 262, 267 (App. 1978)
(requiring the State Law Enforcement Merit System Council to
provide a “fair and impartial hearing”).
¶16 None of the authorities we reviewed, however,
indicated whether procedural matters such as burdens of proof or
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standards of review were basic merit system principles. We
therefore examine whether the burden and standard in Rule XIII-
4(I) are consistent with merit system principles.
B. Whether the “satisfaction of the Council” standard
comports with recognized merit system principles.
¶17 Pima County LEMSC Rule XIII-4(I) requires the Council
to revoke or modify discipline if “some or all of the charges
were not proven to the satisfaction of the Council.” The
Sheriff and Pima County argue that such a standard is “no
standard” at all and renders decisions of the Council virtually
unreviewable.
¶18 The Council itself reasonably interprets this part of
the rule as imposing a burden on the employer to prove the
charges warranting discipline by a preponderance of the
evidence. We defer to an agency’s reasonable interpretations of
its own regulations. Ariz. Water Co. v. Ariz. Dep’t of Water
Res., 208 Ariz. 147, 154, ¶ 30, 91 P.3d 990, 997 (2004) (citing
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984)).
¶19 Arizona courts have recognized the application of the
preponderance of the evidence standard in previous merit system
cases. See, e.g., Wicks v. City of Tucson, 112 Ariz. 487, 488,
543 P.2d 1116, 1117 (1975) (stating that the Tucson Civil
Service Commission requires an employer to bear the burden of
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proving facts by a preponderance of the evidence); Woerth v.
City of Flagstaff, 167 Ariz. 412, 415, 808 P.2d 297, 300 (App.
1990) (stating that the Flagstaff Personnel Board requires that
the employer establish facts by a preponderance of the
evidence).
¶20 Therefore, although such a standard may not be
required by the language of Pima County LEMSC Rule XIII-4(I), in
applying the preponderance standard for proving the grounds for
discipline, the Pima County Law Enforcement Merit System Council
is in fact employing the standard used by other merit system
boards in Arizona. Furthermore, the County and Sheriff do not
argue that a preponderance standard conflicts with recognized
merit system principles.
¶21 Requiring the employer to establish the alleged
grounds for discipline by a preponderance of the evidence is
consistent with basic merit system principles because it ensures
the employee that any discipline imposed is based not on mere
allegations by the employer, but on facts found more likely than
not to be true by a neutral fact-finder. The Council is not
bound by the facts asserted by the employer, but is required to
independently find the facts warranting discipline. For that
reason, we hold that the portion of Pima County LEMSC Rule XIII-
4(I) that requires the Council to overturn discipline if “some
or all of the charges were not proven to the satisfaction of the
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Council,” as interpreted by the Council to require a
preponderance of the evidence burden of proof, is consistent
with recognized merit system principles of public employment.
C. Whether the “in the sole discretion of the Council”
standard comports with recognized merit system
principles.
¶22 Rule XIII-4(I) requires the Council to revoke or
modify a disciplinary action if “the disciplinary action imposed
was, in the sole discretion of the Council, too severe a penalty
for the conduct proven.” This language gives the Council sole
authority to approve or modify the discipline for the behavior
in question. Even though this provision affords the Council
broad discretion, we nonetheless conclude that it comports with
“recognized merit system principles of public employment.”
¶23 Although the legislature could have imposed such a
requirement, nothing in A.R.S. § 38-1003 obligates merit system
councils to employ any particular standard of review or to defer
to the employer’s choice of discipline. In responding to the
mandate to establish merit system rules, the various merit
system councils and commissions in Arizona2 adopted differing
2
Several merit systems, merit commissions, and merit
councils exist throughout the state, including the State
Personnel Board, see A.R.S. §§ 41-781 to -786 (2004 & Supp.
2004); the county employee merit systems, see A.R.S. §§ 11-351
to -356 (2001); the State Law Enforcement Merit System Council,
see A.R.S. §§ 41-1830.11 to -1830.15 (2004); the Maricopa and
Pima County Law Enforcement Merit System Councils, see A.R.S. §§
38-1001 to -1007 (2001 & Supp. 2004); and several other county
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standards. Some of these systems require deference to the
appointing authority’s choice of discipline. E.g., Maricopa
County Employee Merit Sys. R. 10.16, reported at
http://www.maricopa.gov/human_resources/pdf/msr.pdf at 37
(requiring deference unless employer action is “arbitrary or
taken without reasonable cause”); Maricopa County Law
Enforcement Merit Sys. R. 11.16, reported at
http://www.maricopa.gov/human_resources/pdf/leomsr.pdf at 44
(same).
¶24 Other Arizona merit systems, however, do not require
such deference. E.g., A.R.S. § 41-785(D) (Supp. 2004)
(authorizing State Personnel Board to modify discipline found to
be “disproportionate to the proven offense in light of
mitigating circumstances”); Ariz. Admin. Code (“A.A.C.”) R13-5-
703(E) (requiring State Law Enforcement Merit System Council to
sustain, modify, or rescind disciplinary actions after
ascertaining whether the “law and the evidence” support the
discipline); Pima County Employee Merit Sys. R. 14.4(A),
reported at http://www.pima.gov/hr/pdf/MeritRules.pdf at 51
(imposing just cause standard); Tucson City Charter ch. XXII,
§ 3(c) (requiring Tucson Civil Service Commission to apply just
cause standard).
¶25 The State Merit System is an example of a system that
and municipal systems, see Manhart, supra ¶ 14, at 854-56.
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employs a nondeferential standard. See A.R.S. § 41-785(D). The
State Personnel Board’s rules, which also must conform to
“recognized merit principles of public employment,” see A.R.S.
§ 41-1830.12(A)(3), authorize the Board to modify a disciplinary
penalty, inter alia, if it “finds the penalty to be
disproportionate to the proven offense in light of mitigating
circumstances.” A.R.S. § 41-785(D). The standard required of
the State Personnel Board suggests that the legislature does not
consider deference to the disciplinary authority to be a basic
or necessary merit system principle, for the legislature itself
modified A.R.S. § 41-785(D) in 2004 to incorporate this non-
deferential standard of review. Presumably the legislature
thought that the amended standard that it imposed satisfied its
own requirement that merit system rules must conform to
recognized merit system principles. See 2004 Ariz. Sess. Laws,
ch. 163, § 1 (H.B. 2305). Thus the legislature seems not to
consider a deferential standard of review to be a necessary
attribute of a recognized merit system.
¶26 The County nonetheless argues that Arizona courts have
repeatedly reversed merit system board decisions that modified
disciplinary actions in the absence of arbitrary and capricious
action by the employer. The court of appeals also cited with
approval several cases applying the “arbitrary or capricious”
standard. Harvey, 209 Ariz. at 208-09, ¶ 16, 99 P.3d at 23-24
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(citing Ariz. Dep’t of Corr. v. State Pers. Bd., 202 Ariz. 598,
601, ¶¶ 15-16, 48 P.3d 1208, 1211 (2002); Pima County v. Pima
County Merit Sys. Comm’n (“Logan”), 186 Ariz. 379, 382, 923 P.2d
845, 848 (App. 1996); Maricopa County v. Gottsponer, 150 Ariz.
367, 372-73, 723 P.2d 716, 721-22 (App. 1986)). From these
cases, the court of appeals reasoned that a deferential standard
is required for the rule to comply with recognized merit system
principles. Id. at ¶¶ 16-19, 98 P.3d at 23-24.
¶27 The fault in this reasoning is that the foregoing
cases interpreted rules or statutes that expressly required
deference to the employers’ decisions or application of the
“arbitrary or capricious” standard. The Maricopa County Merit
System Commission and Maricopa County Law Enforcement Merit
System Council rules, for example, both require that the
employers’ actions be sustained unless they are “arbitrary or
taken without reasonable cause.” See Maricopa County Employee
Merit Sys. R. 10.16; Maricopa County Law Enforcement Merit Sys.
R. 11.16. The cases interpreting these rules merely apply the
codified standard. E.g., Gottsponer, 150 Ariz. at 371 n.2, 723
P.2d at 720 n.2.
¶28 Similarly, in Pima County v. Pima County Merit System
Commission (“Mathis”), 189 Ariz. 566, 568, 944 P.2d 508, 510
(App. 1997), and Pima County Sheriff’s Department v. Smith, 158
Ariz. 46, 48, 760 P.2d 1095, 1097 (App. 1988), the court of
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appeals reviewed the Pima County Law Enforcement Merit System
Council and Pima County Employee Merit Commission rules,
respectively, before they were amended by the councils. At the
time Mathis and Smith were decided, both rules expressly
required affirmance of the employer’s actions unless those
actions were “arbitrary or taken without reasonable cause.”
Mathis, 189 Ariz. at 568, 944 P.2d at 510; Smith, 158 Ariz. at
48, 760 P.2d at 1097.
¶29 The court of appeals’ and the County’s reliance on
those cases to support a conclusion that the “arbitrary or
capricious” standard must always apply in merit system cases is
misplaced. In each of those cases, the rule or statute being
interpreted required review for arbitrariness or capriciousness.
But nothing in any of the opinions cited by the court of appeals
purported to require that the “arbitrary or taken without
reasonable cause” standard of review apply in all merit system
cases or to systems whose rules specify a different standard of
review.
¶30 In an opinion issued contemporaneously with this one,
we require the Maricopa County Merit Commission and reviewing
courts to apply the deferential “arbitrary or taken without
reasonable cause” standard when reviewing a disciplinary action
taken against a Maricopa County detention officer who hit a
restrained detainee. Maricopa County Sheriff’s Office v.
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Maricopa County Employee Merit Sys. Comm’n, ___ Ariz. ___, ___,
¶ ___, ___ P.3d ___, ___ (2005) (“Juarez”). Here, in an opinion
that arrives at a facially contradictory result, we permit the
Council to determine the appropriate punishment without
deferring to the employer’s choice of discipline. The
distinction is that in each case, we require the reviewing
commission or council to apply the standard of review required
by the governing rule. In Juarez, Maricopa County Employee
Merit System Rule 10.16 requires the commission to defer to the
employer’s disciplinary action. In Harvey, Pima County LEMSC
Rule XIII-4(I) requires non-deferential review. All we hold
today is that Pima County LEMSC Rule XIII-4(I) comports with
recognized merit system principles and therefore may be applied
by the Council.
¶31 When enacting A.R.S. § 38-1003, the legislature did
not provide a standard of review for law enforcement merit
system councils. The legislature, by statute, could have
dictated that merit system councils defer to the employers’
disciplinary decisions. Instead, the legislature opted to let
the councils set their own standards, as long as the standards
of review chosen fall within recognized merit system principles
of public employment. We conclude that employing a reasoned
standard less deferential to the employer’s chosen discipline is
consistent with recognized merit system principles because it
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does not deny merit system employees treatment based on merit or
deprive them of a decision by a neutral reviewing body. We
therefore hold that Rule XIII-4(I) is consistent with recognized
merit system principles by helping to ensure that Pima County
law enforcement employees receive a hearing by a body
independent of the employer.
III. CONCLUSION
¶32 We affirm the decision of the superior court, vacate
the opinion of the court of appeals, and reinstate the decision
of the Council.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
______________________________________
Ruth V. McGregor, Chief Justice
______________________________________
Michael D. Ryan, Justice
______________________________________
Andrew D. Hurwitz, Justice
______________________________________
Charles E. Jones, Justice (Retired)
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Pima County v. Pima County Law Enforcement Merit System Council
Court: Arizona Supreme Court
Date filed: 2005-09-21
Citations: 119 P.3d 1027, 211 Ariz. 224
Copy CitationsCombined Opinion