Opinion
2 CA-CV 2021-0103
07-14-2022
Debora Aguilar-Gonzalez, Appellant, v. David Shinn in his capacity as Director of the Arizona Department of Corrections, Rehabilitation & Reentry; Department of Corrections, Rehabilitation & Reentry, an agency of the State of Arizona, Appellees.
COUNSEL Bihn & McDaniel P.L.C., Phoenix By Martin A. Bihn and Donna M. McDaniel Counsel for Appellant Mark Brnovich, Arizona Attorney General By Kirstin A. Story, Assistant Attorney General, Phoenix Counsel for Appellees Jeffrey W. Toppel, Tucson Counsel for Amicus Curiae Arizona State Personnel Board
This Decision Does Not Create Legal Precedent And May Not Be Cited Except As Authorized By Applicable Rules. Not For Publication See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County No. C20203505 The Honorable Kellie Johnson, Judge
COUNSEL Bihn & McDaniel P.L.C., Phoenix By Martin A. Bihn and Donna M. McDaniel Counsel for Appellant
Mark Brnovich, Arizona Attorney General By Kirstin A. Story, Assistant Attorney General, Phoenix Counsel for Appellees
Jeffrey W. Toppel, Tucson Counsel for Amicus Curiae Arizona State Personnel Board
Judge Brearcliffe authored the decision of the Court, in which Presiding
Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1 Debora Aguilar-Gonzalez appeals the superior court's order affirming the decision of Director David Shinn, in his capacity as Director of the Arizona Department of Corrections, Rehabilitation and Reentry ("the Department"), to dismiss her from her position and rejecting the recommendation of the Arizona State Personnel Board ("the Board") to overturn the dismissal. We affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming Director Shinn's decision. Lewis v. Ariz. State Pers. Bd., 240 Ariz. 330, ¶ 15 (App. 2016). Aguilar-Gonzalez was employed by the Department as a Community Corrections Officer.
¶3 Aguilar-Gonzalez and Marcos Pereida have one child in common, Paul. Pereida has an order of protection against Aguilar-Gonzalez that includes him and another of his children, Anne, as protected persons. The order of protection allows Aguilar-Gonzalez to communicate with Pereida about parenting time and to arrange the exchange of Paul. On December 15, 2019, Pereida drove to Aguilar-Gonzalez's home to pick up Paul. A couple minutes after Pereida pulled up to the home, Aguilar-Gonzalez drove up next to him in her vehicle with Paul in the car. Pereida then put Paul in his car and, while he did that, Aguilar-Gonzalez drove away. Pereida then started driving and, upon coming to a turn in the road, he saw Aguilar-Gonzalez's vehicle parked and facing his vehicle. Pereida then turned, and Aguilar-Gonzalez pulled her vehicle out and "starting following him." Pereida pulled over on the right side of the road and stopped to let her pass, but Aguilar-Gonzalez pulled her vehicle behind his and stopped. After a couple of minutes, Aguilar-Gonzalez passed Pereida on the left side of his vehicle and drove away. Pereida then continued on to a bank where he planned to meet his wife, Sarah Pereida; she was to take Paul so Pereida could go to work.
Minors are referred to herein by pseudonyms.
¶4 Moments later, Sarah, who was already at the bank, called Pereida "in fear" and told him that Aguilar-Gonzalez was "driving her vehicle in circles around her" in the bank parking lot. Aguilar-Gonzalez appeared to be recording Sarah and pointing a finger at her. According to Aguilar-Gonzalez, as she did this, Sarah "started yelling 'harassment'" and "flip[ed] [her] off." Sarah had two children in the car, her and Pereida's daughter Anne and Sarah's other daughter, Amy. Pereida and Sarah were "terrified for their safety and the safety of the Minor Children." Pereida told Sarah to drive to his father's house nearby so they could exchange Paul there. Sarah pulled out from the bank and, seeing Pereida in the road ahead, pulled behind Pereida's car; Aguilar-Gonzalez then pulled behind her. Aguilar-Gonzalez "was following [Sarah's] vehicle very closely causing her to slow down significantly." Sarah said she heard one of her daughters repeatedly say "Debora is behind us. Momma why is she doing that? Momma I'm scared . . . ." Sarah ultimately called the police to report that Aguilar-Gonzalez was following them.
¶5 Pereida and Sarah turned into Pereida's father's house and saw Aguilar-Gonzalez drive past the house's street. Once Pereida believed Aguilar-Gonzalez had driven away and law enforcement was on the way, they put Paul into Sarah's vehicle, and Pereida left for work. After Pereida left, Sarah called him and told him that she had seen Aguilar-Gonzalez pass by his father's house at least twice. Shortly thereafter, law enforcement arrived. Later that day, Aguilar-Gonzalez was arrested and charged with violating the order of protection.
¶6 As a Community Corrections Officer, Aguilar-Gonzalez "[w]hile on or off duty, [was] expected to conduct [herself] in a professional manner and adhere to the code of ethics." As a state employee, she was also required, as a condition of employment, to conform to the Standards of Conduct for state employees outlined in A.A.C. R2-5A-501. Additionally, A.R.S. § 41-773(A)(11) provides that "[discourteous treatment of the public" constitutes cause for discipline or dismissal.
¶7 The Department conducted an administrative investigation into Aguilar-Gonzalez's arrest. A special investigator with the administrative investigations unit issued a report detailing the circumstances of the arrest and its interview of Aguilar-Gonzalez. In that interview, and throughout these proceedings, Aguilar-Gonzalez claimed that she had not followed Pereida to the bank, but rather had already intended to go to the bank to get money. And, she said, once at the bank, Pereida had used his vehicle to block her from leaving. She further said that once Pereida and Sarah had left the bank she did not follow them, but merely caught up to them at a stoplight. She claimed she had then called 9-1-1 and the dispatcher had informed her she was in violation of the order of protection and told her to stop following the vehicles. She did so and parked her car at a park that she said was not by Pereida's father's home. Aguilar-Gonzalez claimed to have never driven by Pereida's father's home.
¶8 After the investigation concluded, the Department issued a Notice of Charges of Misconduct to Aguilar-Gonzalez, listing the following charges: violation of the Standards of Conduct for state employees, conducting oneself in an offensive and/or discourteous manner, commission of a serious misdemeanor while off-duty, and commission of a felony. In a written response to the notice, she repeated her account of the incident. While acknowledging the existence of the order of protection, Aguilar-Gonzalez denied any wrongdoing, asserting, among other things, that she had never followed Pereida.
¶9 The Department then submitted to the Arizona Department of Administration ("ADOA") a "Discipline and Dismissal Guidance Worksheet." The worksheet provided that it is a "tool" "designed to provide [the employer] with guidance on important factors to consider when preparing to discipline or dismiss an employee." In the worksheet, the Department stated that the "behavior or performance issue" relative to Aguilar-Gonzalez was that she had violated an order of protection. Further, that this was "[c]ontinued behavior" and that Aguilar-Gonzalez has an "extensive past discipline history."
In the worksheet, the Department referenced an "attached letter" that was not included as an exhibit. In its answering brief, the Department claims the attached letter was a draft of the Notice of Dismissal.
¶10 Almost one month later, the Department made its final disciplinary decision and issued a written Notice of Dismissal. In the Notice of Dismissal, the Department removed the criminal activity charges (that is, any claim of a violation of the order of protection) as a basis for dismissal, but maintained that Aguilar-Gonzalez's conduct constituted insubordination for violation of the Standards of Conduct for state employees and discourteous treatment of the public. As the Notice of Charges and Notice of Dismissal explained, the factual basis for each was Aguilar-Gonzalez's conduct on December 15, 2019. In both the Notice of Charges and the Notice of Dismissal, the Department stated that Aguilar-Gonzalez's prior disciplinary record-which included thirteen disciplinary actions taken between 2009 and 2015-was considered in her dismissal.
¶11 Aguilar-Gonzalez timely appealed her dismissal to the Personnel Board ("the Board") under A.R.S. § 41-783(A). Pursuant to § 41-783(C)(1), the Board must decide whether the Department has "proven by a preponderance of the evidence the material facts on which the discipline was based." If it finds that it has, the Board is to affirm the Department's decision "unless the disciplinary decision was arbitrary and capricious." Id. If it finds that the Department failed to prove the material facts on which the discipline was based by a preponderance of the evidence or that the disciplinary decision was arbitrary and capricious, it may recommend modifications of the disciplinary action. § 41-783(C)(2).
¶12 The Board assigned a Hearing Officer, as provided in § 41-783(B), who conducted an evidentiary hearing at which Aguilar-Gonzalez and the Department were allowed to call, examine, and cross-examine witnesses; provide documentary evidence; and otherwise fully participate in the hearing. Following the hearing, the Hearing Officer issued his Findings of Fact, Conclusions of Law, and Recommendation, recommending that Aguilar-Gonzalez's dismissal be reversed.
¶13 The Hearing Officer found that, after exchanging Paul, Aguilar-Gonzalez had intended to go to the bank in order to get money from the ATM but when Aguilar-Gonzalez saw Sarah in the parking lot, "an altercation developed between them" where they "both began videotaping each other." The Hearing Officer found that after Aguilar-Gonzalez left the bank, she began driving in the same direction as Sarah, and, when she saw Sarah's car, she "began following Sarah's vehicle." He found that Aguilar-Gonzalez had then called 9-1-1 to report Sarah as a suspicious person because of her presence in the bank parking lot and that Sarah had also called 9-1-1 and told the dispatcher that Aguilar-Gonzalez was harassing her.
¶14 The Hearing Officer ultimately concluded that no competent evidence existed that (1) Aguilar-Gonzalez had violated an order of protection or that Sarah had been included as a protected person on the order of protection, (2) Aguilar-Gonzalez had followed Pereida to the bank, or (3) that Aguilar-Gonzalez had driven by Pereida's father's house. The Hearing Officer also determined that there was no competent or credible evidence that Aguilar-Gonzalez had any contact with either Sarah or Pereida. And he further found that Aguilar-Gonzalez "had no way of knowing that her dismissal could arise from a private, off-duty incident that was totally unrelated to her job." The Hearing Officer recommended that the dismissal be rescinded and that Aguilar-Gonzalez be restored to her position with full back pay and benefits.
¶15 Following the issuance of that recommendation, the Department filed a written objection to it, to which Aguilar-Gonzalez responded. The Department objected, claiming that the Hearing Officer had improperly considered that the agency originally asserted a violation of an order of protection as a ground for the agency action. It asserted that the Hearing Officer's proposed Findings of Fact, Conclusions of Law, and Recommendation were "contrary to the law and the record." Despite the Department's objection, the Board adopted the Hearing Officer's Findings of Fact, Conclusions of Law, and Recommendation "as the board's own." The Board's action was then referred to Director Shinn pursuant to § 41-783(E).
¶16 Following referral of the Board's action to Director Shinn, the Department, through its counsel, sent a letter to Shinn requesting that he reject the Board's action. It asserted that the Board's decision had arisen from its (adopted) finding that the evidence did not support that Aguilar-Gonzalez violated an order of protection. This was erroneous, according to the Department, because that charge had not been included in Aguilar-Gonzalez's final Notice of Dismissal. It further asserted that the Board had "ignore[d] incontrovertible evidence" - namely, that Aguilar Gonzalez's own statements supported that she conducted herself in a discourteous and offensive manner towards Sarah and violated the Standards of Conduct for state employees. The Department recommended that Shinn find that the Board's findings of fact and conclusions of law were arbitrary and without reasonable justification. Aguilar-Gonzalez responded in her own letter to Shinn. Although complaining that the Department's counsel's letter to Shinn was improper, she urged Shinn to accept the Board's decision and recommendation.
¶17 Director Shinn rejected the Board's decision, concluding that the Board's conclusions of law and findings of fact had been based on allegations not incorporated into the final disciplinary action and that the Board had ignored incontrovertible evidence - namely, Aguilar-Gonzalez's own statements and admissions about her conduct. He further determined that the Board had applied the wrong standard in determining whether the Department's actions were arbitrary. Shinn ultimately determined that the Department had "met its burden to provide the material facts on which [the] dismissal was based by a preponderance of the evidence" and that "[t]he decision to dismiss [Aguilar-Gonzalez] was not arbitrary or capricious." Shinn affirmed the dismissal.
¶18 Pursuant to § 41-783(F), Aguilar-Gonzalez filed a notice of appeal for judicial review of Director Shinn's decision in superior court. The court affirmed Shinn's decision in a final judgment under Rule 54(c), Ariz. R. Civ. P. Aguilar-Gonzalez appealed the judgment. We have jurisdiction under § 41-783(G).
Analysis
¶19 The gravamen of Aguilar-Gonzalez's argument on appeal is that the standard of review applied by both Director Shinn and the superior court was incorrect. She argues that Shinn erred by failing to give deference to the Board's decision and that the superior court erred in giving deference to Shinn's decision to terminate her employment rather than the Board's decision recommending reinstatement. She further claims that Shinn's decision violated her due process rights because he did not provide adequate notice of the specific grounds and evidence relied upon in reaching his decision and his decision was arbitrary and capricious, factually incorrect, and contained errors of law. We conclude that both Shinn and the superior court applied the proper standard of review and that the Director's action was not otherwise improper.
¶20 In reaching our conclusion, we examine all matters of law de novo. See Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, ¶ 13 (App. 2007); Hannson v. State Bd. of Dental Exam'rs, 195 Ariz. 66, ¶ 6 (App. 1998). Furthermore, we review the superior court's ruling "to determine whether the record contains evidence to support the judgment, and in doing so, we reach the underlying issue of whether the administrative action was illegal, arbitrary, capricious or involved an abuse of discretion." Ariz. Dep't of Corr. v. State Pers. Bd., 202 Ariz. 598, ¶ 8 (App. 2002) (citation omitted). We must affirm the agency's action if any reasonable interpretation of the record supports it. Lewis, 240 Ariz. 330, ¶ 15. "Neither this court nor the superior court may substitute its judgment for that of the agency on factual questions or matters of agency expertise, but we apply our independent judgment . . . to questions of law, including questions of statutory interpretation and constitutional claims." Carlson, 214 Ariz. 426, ¶ 13 (citations omitted).
Director Shinn's Standard of Review
¶21In its judgment, the superior court stated the following principles, derived, in part, from Lewis:
A.R.S. § 38-1106(H) requires an employer amending, modifying, rejecting, or reversing a decision to "state the reason" for doing so. Neither applicable statute [§ 41-783(E) nor § 38-1106(H)] requires an employer to make its own detailed factual findings. See Lewis, 240 Ariz. at 335 ¶ 18, 379 P.3d at 232. Additionally, Director Shinn is not obligated to apply a deferential standard of review when reviewing the recommendations of the Board. Id. at ¶ 19. Finally, Director Shinn is not bound by the Hearing Officer's or the Board's factual findings or legal conclusions. Id. at ¶ 20.
¶22The superior court then noted that "[i]n rejecting the Board's findings and recommendations, Director Shinn issued a written decision stating his reasons for doing so and explained his basis for finding the Board's findings and conclusions were arbitrary and without reasonable justification." Aguilar-Gonzalez claims that the superior court's interpretation of Lewis as "not obligating Director Shinn to apply a deferential standard of review, not binding him to factual and legal conclusions of the Board, and not requiring him to make findings of his own" is inconsistent with the applicable statutes. Aguilar-Gonzalez argues that Shinn was required to defer to the Board's recommendation. We disagree.
¶23 In Lewis, under circumstances akin to those here, a former corrections officer appealed an order of the Department of Corrections dismissing him from his position and rejecting the recommendation of the Arizona State Personnel Board to overturn the dismissal. Id. ¶ 1. Lewis claimed that A.R.S. § 38-1106(H) limits the Department to a purely objective role, which requires deference to the Board unless the Board acts arbitrarily or without reasonable justification. Id. ¶ 19. Lewis claimed that the standard that a reviewing court is not to "substitute its judgment for that of the agency on factual questions or matters of agency expertise," must also apply to the Department. Id. ¶ 21 (quoting Carlson, 214 Ariz. 426, ¶ 13). The Lewis court rejected that, however, concluding that "the Department is an agency and is not obligated to apply the same deferential standard of review as this Court or the superior court when reviewing the recommendations of the appeals board or the hearing officer." Id. ¶ 23.
¶24 Notably, Aguilar-Gonzalez does not cite to any support for her argument that Director Shinn was barred from rejecting the factual findings of the Board, as well as its recommendation, and we find none. Section 38-1106(H) provides that "an employer or a person acting on behalf of an employer may amend, modify, reject or reverse the portion of a decision" that it finds was arbitrary or without reasonable justification. Section 38-1106(H) does not limit the employer's review to conclusions of law, but extends it to any "portion of a decision." It therefore sets no limit on an employer's ability to reject the Board's findings of fact. See also Maricopa Cnty. Sheriffs Off. v. Maricopa Cnty. Emp. Merit Sys. Comm'n, 211 Ariz. 219, ¶ 14 (2005) ("without reasonable cause" means an action taken lacks evidence sufficiently strong to justify a reasonable person in believing the acts charged are true).
Aguilar-Gonzalez also claims that Director Shinn had no authority to determine if the Board applied the correct legal standards. Shinn has the authority to reject the portion of the Board's decision that he determines is arbitrary or without reasonable justification. See § 38-1106(H). A decision is arbitrary if taken "capriciously or at pleasure" or taken "without adequate determining principle." See Maricopa Cnty. Sheriff's Off. v. Maricopa Cnty. Emp. Merit Sys. Comm'n, 211 Ariz. 219, ¶ 14 (2005) (quoting Black's Law Dictionary 104 (6th ed. 1990)). Thus, in his review, Shinn must determine whether the Board's decision applied the appropriate principles in regards to its review. We find no error in Shinn determining that the Board had applied the wrong standard in deciding whether the Notice of Dismissal was arbitrary.
¶25 Additionally, when the Director does reject the Board's findings and conclusions, he need not make detailed findings of his own, as Aguilar-Gonzalez suggests. Section 38-1106(H) merely requires that the employer "state the reason for the amendment, modification, rejection or reversal." Thus, in this circumstance, as Lewis accurately provides, Director Shinn need only have stated the reasons, without more, why he rejected the Board's decision; namely, as he stated, because the Board's determination was arbitrary and without reasonable justification. 240 Ariz. 330, ¶ 18. Contrary to Aguilar-Gonzalez's assertions, Shinn acted within his statutory authority to reject the Board's decision for the reasons stated.
Superior Court's Standard of Review
¶26 Similarly, Aguilar-Gonzalez argues that the superior court erred in giving deference to Director Shinn's decision rather than the Board's decision. She claims the superior court was obligated, in its appellate review, to give deference to the Board's decision. We disagree.
¶27 Section 12-910(A), A.R.S., provides the scope of review in "[a]n action to review a final administrative decision." Section 12-910(F) states that, in reviewing an administrative decision, the superior court "shall affirm the agency action unless the court concludes that the agency's action is contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion." See § 12-901(1) ("agency" means "every agency, board, commission, department or officer authorized by law to exercise rule-making powers"). Unless provided otherwise in a statute, rule, or ordinance, a "final administrative determination," by an agency, in the case of a termination or disciplinary proceeding, is the final determination of the particular government agency employer. § 38-1106(H).
¶28 Consequently, here, the agency action subject to deferential review by the superior court was Director Shinn's rejection of the State Personnel Board's order to the agency to reverse its decision of termination, and to reinstate Aguilar-Gonzalez. It was not, as Aguilar-Gonzalez asserts, the decision of the Personnel Board. The superior court was obligated, therefore, to affirm Shinn's determination absent statutory grounds to reverse. See § 12-910(F) (providing statutory grounds for superior court to reverse the agency action). We find no support for Aguilar-Gonzalez's assertion that, in an appeal of a Director's final administrative decision, the superior court should give deference to the Board's decision.
¶29 Aguilar-Gonzalez cites to JHass Group L.L.C. v. Arizona Department of Financial Institutions, 238 Ariz. 377 (App. 2015), Golob v. Arizona Medical Board of State, 217 Ariz. 505 (App. 2008), and Prebula v. Arizona Department of Economic Security, 138 Ariz. 26 (App. 1983), for the proposition that the reviewing court must give deference to the Board as the entity that reviewed the facts, applied the law, and made determinations. We do not agree that these cases stand for this proposition. In Golob and Prebula, the courts stated that, on appeal, they viewed the evidence in the light most favorable to upholding the decision of the administrative board. Golob, 217 Ariz. 505, n.1; Prebula, 138 Ariz. at 30. But, in those cases, the employee had appealed the decision of the boards and not the decision of the employer agencies. Golob, 217 Ariz. 505, ¶ 7; Prebula, 138 Ariz. at 28. Neither of these cases holds that deference is to be given to the board in a higher-level review of a final agency decision.
¶30 In JHass, the court stated that it cannot substitute its judgment for that of the administrative agency on factual matters of agency expertise. 238 Ariz. 377, ¶ 20 (reviewing the decision of an appeals board that adopted the appeal tribunal's findings of fact and supplemented additional findings and corrections). Here, as explained above, the administrative agency is the Arizona Department of Corrections, Rehabilitation and Reentry. And it was within Director Shinn's authority to reject the findings of fact and conclusions of law of the Board, thus necessarily requiring him to review the facts anew and apply the law to them as if in the first instance. See § 38-1106(H) (after law enforcement officer and employer are equally allowed to call and examine and cross-examine witnesses, provide documentary evidence, and participate in hearing, employer may amend, modify, reject or reverse appeals board decision).
¶31 Fully consistent with, and not contrary to Golob, Prebula, and JHass, the superior court reviews the record to determine whether the agency action-in this case, Director Shinn's decision to reject the Board's decision-was contrary to law, arbitrary, capricious, or an abuse of discretion. See § 12-910(F). And it will affirm if any reasonable interpretation of the record supports the agency's decision. Lewis, 240 Ariz. 330, ¶ 15. The superior court correctly did so here.
Due Process
¶32 Aguilar-Gonzalez next argues that Director Shinn and the superior court deprived her of her right to due process. She claims that "[t]here was not adequate notice of the grounds for termination of [her] as relied on by Director Shinn." She reasons that, because the superior court did not require Shinn to make any factual findings in support of his decision, it deprived her of meaningful appellate review. She claims that she was only apprised of Shinn's factual basis when he made argument to the superior court, after she had already filed her complaint. We disagree.
¶33 As we have already stated, Director Shinn is not statutorily required to provide detailed factual findings in rejecting the decision of the Board. Nor does due process require such findings. Due process requires "that which is reasonably calculated under all of the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Comeau v. Ariz. State Bd. of Dental Exam'rs, 196 Ariz. 102, ¶ 28 (App. 1999) (quoting Iphaar v. Indus. Comm'n, 171 Ariz. 423, 426 (App. 1992)). "For such an opportunity to be meaningful, a terminated employee must be provided advance notice of the specific grounds for termination so he may prepare his defense." Carlson, 214 Ariz. 426, ¶ 17. Thus, "due process requires notice of the nature of the wrong charged and the particular instances of its perpetration." Comeau, 196 Ariz. 102, ¶ 28.
¶34 Aguilar-Gonzalez received notice of the specific grounds for her termination in the Notice of Dismissal, which stated that her conduct constituted "Insubordination for violation of the Standards of Conduct for State Employees, Class 6; and Discourteous Treatment of the Public (To Include Inmates, Offenders and Employees) for conducting oneself in an offensive and/or discourteous manner, Class 2." Immediately preceding this statement is a description of the specific instance of her conduct violating these standards, specifically Aguilar-Gonzalez's conduct on December 15, 2019. These grounds for termination and the specific instance of conduct were also stated in the original Notice of Charges. The Department has consistently and solely referenced Aguilar-Gonzalez's discourteous and offensive behavior on December 15, 2019 as the reason for her dismissal. Aguilar-Gonzalez submitted an argument to the Department and the Board as to why the instances of misconduct on December 15, 2019 had not been proven. Aguilar-Gonzalez therefore knew the charges against her and received sufficient notice of the reasons for her dismissal.
Aguilar-Gonzalez claims that Director Shinn expanded the basis for her dismissal after the review for the Board. She does not, however, provide any evidence or specific basis that demonstrates that Shinn did, in fact, expand the basis for her dismissal.
¶35 Aguilar-Gonzalez seems to take issue with the fact that the Notice of Dismissal did not include criminal misconduct as a reason for dismissal, while the Notice of Charges did include such a charge. She does not, however, claim that this deprived her of any opportunity to be heard. Notably, the remaining non-criminal charges in the Notice of Charges were present in the Notice of Dismissal and were sufficient, if proved, to justify termination. Thus, Aguilar-Gonzalez had adequate notice and opportunity to respond to the grounds for her dismissal. Cf. Carlson, 214 Ariz. 426, ¶ 22 (inadequate notice and opportunity to be heard when dismissal was based on grounds never alleged before the post-termination hearing). Indeed, in providing employees an opportunity to be heard and contest the charges in a written response, it seems inherent that an agency may then modify the reasons for dismissal based on the employee's response. See A.A.C. R2-5B-305(C) (in pre-dismissal procedures, agency must provide employee with an opportunity to present a written response).
Aguilar-Gonzalez makes no argument as to whether the reasons for her dismissal, if proven, amount to "just cause." See A.R.S. § 38-1103(A) (law enforcement officer may only be subject to disciplinary action for just cause).
Propriety of Director Shinn's Final Decision
¶36 Finally, Aguilar-Gonzalez argues that, for a number of reasons, "Director Shinn's decision to reject the Board's decision was arbitrary and capricious, factually incorrect, and contained errors of law." In our appellate review, as in the superior court's, we review the Director's decision to determine "whether the administrative action was illegal, arbitrary, capricious or involved an abuse of discretion." Ariz. Dep't of Corr., 202 Ariz. 598, ¶ 8 (quoting Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 386 (App. 1990)).
Error in Receipt of Argument and Evidence
¶37 Aguilar-Gonzalez first claims that Director Shinn cannot have reviewed the decision of the Board when he did not request a copy of the Board's file. The record does not support this. The record contains an email from the Department's attorney to Shinn containing a copy of the exhibits and testimony admitted at the Board's hearing, as well as the Hearing Officer's recommendation. Consequently, Shinn had full access to the facts presented to the Board.
Aguilar-Gonzalez also claims she was not free to submit arguments and evidence directly to Director Shinn, but only to the Department's attorney. There is an email in the record from Aguilar-Gonzalez's attorney to the Department's attorney claiming that she was instructed to contact any "Department personnel" through the Department's attorney, however, the record does not contain this instruction itself. Even if counsel's claim is true, the record shows that Shinn did receive a letter directly from Aguilar-Gonzalez's counsel reiterating her arguments; thus any instruction to only correspond through Shinn's counsel does not seem to have had any effect.
¶38 Aguilar-Gonzalez then asserts that, once the hearing concluded in front of the Board, Director Shinn had no authority to receive additional arguments or evidence. Aguilar-Gonzalez argues that Shinn was either presented with evidence or arguments that had not been presented to the Board or, at a minimum, he was presented with additional arguments from the parties that he should not have heard. Although it is unclear, we presume this occurred when the Department's counsel, and Aguilar-Gonzalez's counsel, sent letters to Shinn urging him, respectively, to reject or uphold the Board's decision.
¶39 We are not persuaded that Director Shinn considered evidence and arguments that had not been brought before the Board in the first instance. Aguilar-Gonzalez is unable to point to any evidence or arguments that either the Department or her own counsel submitted to Shinn that had not been before the Board. Thus, the record before us does not show that Shinn considered any new evidence or arguments.
Both Aguilar-Gonzalez and the Board in its Amicus Brief claim that allowing Director Shinn to receive new evidence would "eviscerate the appeal rights provided to covered employees before the Personnel Board." Because the record shows Shinn did not, in fact, take new evidence, we need not reach this issue. See Freeport McMoran Corp. v. Langley Eden Farms, LLC, 228 Ariz. 474, ¶ 15 (App. 2011) (explaining that this court does not issue advisory opinions or decide unnecessary issues).
¶40 We also find no legal impediment to Director Shinn, once the matter had been referred to him for resolution, receiving arguments from counsel addressing, and even incorporating and attaching, the same evidence that had been before the Board. The Department, and Shinn, have the authority conferred by the legislature either expressly or by implication. See Cracchiolo v. State, 146 Ariz. 452, 457 (App. 1985). "Not all standards accompanying a grant of powers need be set forth in express terms." Id. Because he is granted express final-decision making authority to "amend, modify, reject or reverse" the Board's decision, § 38-1106(H), we find no bar to Shinn receiving arguments from parties or counsel in advance of his determination to inform his exercise of that authority.
Improper Consideration of Preliminary Charge
¶41 Aguilar-Gonzalez next argues Director Shinn did not have a sufficient reason to reject the Board's decision based, in part, on his determination that the Board improperly focused on preliminary determinations concerning Aguilar-Gonzalez's criminal misconduct. The Hearing Officer, and thus the Board, made nine conclusions of law based on factual determinations, and one such conclusion was that Aguilar-Gonzalez had not violated an order of protection. The Hearing Officer further provided that his recommendation was based, in part, on the Department's material factual error that Sarah was a protected person in the order of protection. The Hearing Officer proceeded to discuss the order of protection further and states that "the investigator and the decisionmakers were fixated on [Aguilar-Gonzalez's] arrest for violation of the Order of Protection but remarkably, nothing about [Aguilar-Gonzalez's] arrest is contained in the dismissal letter."
¶42 Section 41-783(C)(1), provides that the state personnel board "[s]hall determine whether the state agency has proven by a preponderance of the evidence the materials facts on which the discipline was based." As the Hearing Officer recognized, the Department's Notice of Dismissal did not include a charge of criminal misconduct, allege that Aguilar-Gonzalez had violated an order of protection, or state that Sarah had been included in the order of protection. It was thus reasonable for Director Shinn to conclude that the Board improperly focused on the abandoned grounds in the preliminary charges and not the other sufficient reasons stated in the Notice of Dismissal. We find no legal error on this basis.
Review by Arizona Department of Administration
¶43 Aguilar-Gonzalez argues that the Department's failure to obtain "approval" by the ADOA Director for the specific reasons in her Notice of Dismissal has the effect of making Director Shinn's decision arbitrary and capricious. The Department here submitted the ADOA's Discipline and Dismissal Guidance Worksheet approximately one month before it issued the Notice of Dismissal. It provided that the "issue" was that Aguilar-Gonzalez had violated an order of protection. Aguilar-Gonzalez claims that because criminal misconduct was not included as a reason for dismissal in her Notice of Dismissal, the Department did not receive required approval by the ADOA. We do not, however, read the relevant code sections in this manner.
¶44 R2-5B-305(C), A.A.C., states: "Pre-dismissal procedures. Before an employee with permanent status can be dismissed, the agency head shall submit the proposed action to the Director for review as prescribed in R2-5A-802." It then provides the dismissal procedures: "The agency head may dismiss an employee with permanent status only for cause but not before attempting to serve the employee . . . with written notice of the specific reasons for dismissal . . ., with a copy to the Director." R2-5B-305(D). R2-5A-802(B), A.A.C., provides the procedures for review by the ADOA Director, requiring that "[t]he Director shall review the agency head's proposed action and provide notification of concurrence or recommend modification to the proposed action." Then "[w]hen the agency head administers the action to an employee, the agency head shall also send a copy of the employee's letter to the Director." R2-5A-802(C).
¶45 These sections merely require that the ADOA Director review an agency head's proposed action, not that the ADOA Director must "approve" the action before it may be taken. The ADOA worksheet itself states it is merely a "tool designed to provide you with guidance on important factors to consider when preparing to discipline or dismiss an employee and may also help you respond to any ADOA requests for additional information." The requirement that the proposed action be submitted to the ADOA Director for review, rather than for "approval," and that the ADOA Director is given an opportunity to concur or "recommend modification," is consistent with Director Shinn's independent authority to take employment action. Consequently, we do not conclude that the failure of the Department to submit a worksheet or other notice to the ADOA identifying the ultimate precise grounds for the termination invalidate Shinn's action. Moreover, Aguilar-Gonzalez does not cite to, and we do not find, any support for the proposition that an employee may assert a failure to comply with this administrative code section as a defense to termination.
Evidence Supporting Director Shinn's Decision
¶46 Lastly, Aguilar-Gonzalez argues that Director Shinn failed to set forth a reasonable justification for his decision and that he did not identify any relevant evidence that the Board had ignored. But Shinn's decision was supported by appropriate evidence in the record. Again, in our appellate review, we do not reweigh the evidence; rather our role is only to determine whether there was substantial evidence to support the decision. Carondelet Health Servs. v. Ariz. Health Care Cost Containment Sys. Admin., 182 Ariz. 502, 504 (App. 1995).
¶47 In Director Shinn's decision, addressing Aguilar-Gonzalez, he stated that he:
rejected] the Personnel Board's Findings of Fact and Conclusions of Law because . . . [it] ignore[s] incontrovertible evidence-including [Aguilar-Gonzalez's] own statements, admissions, and records that [she] submitted-that substantiates that . . . [she] conducted [herself] in a discourteous and offensive manner toward [her] son's stepmother by approaching
her in her vehicle and photographing her, and then following her in her vehicle.The Notice of Dismissal provided the specific reasons for Aguilar-Gonzalez's dismissal including, that she had followed Pereida to the bank, recorded Sarah with her phone, and then again followed them out of the parking lot. Contrary to Aguilar-Gonzalez's claim that Shinn considered irrelevant facts and evidence, evidence related to these facts is clearly related to her Notice of Dismissal.
¶48 The record contains statements by Aguilar-Gonzalez to support that she recorded or photographed Sarah in the bank parking lot and then followed Pereida and Sarah after leaving the bank. Pereida's and Sarah's statements support that Aguilar-Gonzalez did, for some length of time, follow Pereida after exchanging their son, and then followed Sarah to Pereida's father's house until the 9-1-1 dispatcher told her to stop following Sarah, and that Sarah saw Aguilar-Gonzalez drive past the house. The Board, however, determined that there was no credible or competent evidence that Aguilar-Gonzalez had followed Pereida to the bank, or further followed Sarah to Pereida's father's house, nor any evidence that she then drove past the house. In making this determination, the Board seems to have discredited the statements of Pereida and Sarah while crediting some statements of Aguilar-Gonzalez and essentially ignoring others.
¶49 As discussed above, Director Shinn was not bound by the factual findings of the Board, and was free to reject such findings if he found them to be arbitrary or without reasonable justification. See Ritland v. Ariz. State Bd. of Med. Exam'rs, 213 Ariz. 187, ¶¶ 12, 18 (App. 2006); § 38-1106(H). Furthermore, determining whether certain actions amount to conducting oneself in an offensive or discourteous manner justifying termination is a matter of agency expertise, to which we defer. See Carlson, 214 Ariz. 426, ¶ 13. Shinn's finding that Aguilar-Gonzalez conducted herself in a discourteous manner and his decision to reject the findings of the Board was supported by substantial evidence in the record.
¶50 Director Shinn also stated that he rejected the Board's decision because it had applied the wrong standard as set forth by our supreme court in determining whether the Department's decision was arbitrary. Pursuant to § 41-783(D), "[o]n a finding that the disciplinary decision was arbitrary and capricious, the board shall include the board's reasons for the board's finding and may recommend a proposed disciplinary action in light of the facts proven." In the Hearing Officer's report he, and thus the Board, determined that the Department's decision was arbitrary and capricious because it was "unreasonably related to the standards of conduct for a professional law enforcement officer and is unreasonably related to the mission of the Department of Corrections." Further, the Hearing Officer found that the Department was "overreaching" in applying the standard of "discourteous treatment of the public" in a manner that would allow it to question every private action by an employee. The Hearing Officer found that the conduct in this case had nothing to do with Department business. He also found that Aguilar-Gonzalez's prior disciplinary record relied on by the Department was "totally unconnected" with her conduct here, occurred more than five years prior, and primarily related to attendance issues.
¶51 Our supreme court in Maricopa County Sheriffs Office, explained that an arbitrary action is one characterized as an "unreasoning action, without consideration and in disregard of the facts and circumstances." 211 Ariz. 219, ¶ 14 (quoting Pima Cnty. v. Pima Cnty. Merit Sys. Comm'n, 189 Ariz. 566, 568 (App. 1997)). "An 'arbitrary' action is one taken 'capriciously or at pleasure,' or . . . without adequate determining principle." Id. (quoting Black's Law Dictionary 104 (6th ed. 1990)). Thus, "if the discipline originally imposed falls within the permissible range, it would be unlikely the action could be seen as arbitrary." Id. ¶ 16. Notably, the court explained that "[admittedly, reasonable 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." Id. ¶ 17.
¶52 Thus, here, it was not within the Board's authority to disturb the Department's decision, as long as it was imposed within standards and policies, solely because it sees it as disproportionate. The Board seems to base its decision on its disagreement with the propriety of the statute providing that Aguilar-Gonzalez may be dismissed for "[discourteous treatment of the public," § 41-773, and the Department's policy that corrections officers "[w]hile on or off duty, . . . are expected to conduct [themselves] in a professional manner and adhere to the code of ethics." Furthermore, the Department's Order Manual provides ranges of disciplinary action that factor in prior disciplinary actions, regardless of when the prior disciplinary action occurred or how related the prior conduct is to the current conduct. Thus, contrary to the Board's conclusion, it was well within the Department's authority to consider prior disciplinary action taken against Aguilar-Gonzalez. Dismissal was appropriate here as provided by the Department's Order Manual. We agree with Director Shinn that the Board did not properly determine that the Department's decision to dismiss Aguilar-Gonzalez was arbitrary. See Ariz. Dep't of Corr., 202 Ariz. 598, ¶ 10 ("A disciplinary action is not arbitrary if it falls within the range of permissible discipline.").
Attorney Fees and Costs on Appeal
¶53 Aguilar-Gonzalez requests attorney fees pursuant to A.R.S. § 12-348(A)(2), (5), costs pursuant to A.R.S. §§ 12-341, 12-342, and sanctions pursuant to Rule 25, Ariz. R. Civ. App. P. Because Aguilar-Gonzalez did not prevail, we deny her request.
Disposition
¶54 For the foregoing reasons, we affirm.