Berndt v. Arizona Dept. of Corrections – 12/3/2015

December 16, 2015

Arizona Court of Appeals Division One holds that in reviewing a disciplinary action against a law enforcement officer, the employer may modify or reverse a decision of the Arizona State Personnel Board only if it finds that the decision is arbitrary and capricious and explains this finding in writing.

A.R.S. § 41-783(E) permits certain state employees to appeal a termination to the Arizona State Personnel Board and permits the employee’s individual Department to determine whether to accept, modify, or reject the Board’s determination, but does not require that the Department justify the deviation from the Board’s recommendation.  A.R.S. § 38-1101(K), however, which applies to law enforcement personnel, permits an employer to modify or reject a decision by the Board only if (1) the decision was arbitrary or without reasonable justification and (2) the employer states the reason for the modification or rejection.  In this case, the Court of Appeals had to decide whether the two statutes are in conflict and, if so, which controlled.

The Department of Corrections fired an employee for actions allegedly in violation of the Department’s sexual harassment and insubordination policies.  He appealed his termination to the Board, which found that his actions amounted to, at most, “horseplay,” and recommended that he be reinstated and given an eighty-hour suspension, the maximum punishment for the stated infraction.  Without explaining why, the Department rejected the Board’s decision and refused to reinstate the employee.  The employee appealed to the superior court, which held that A.R.S. § 41-783(E), being the more recent of the two statutes, applied instead of § 38-1101(K).

The Court of Appeals disagreed.  It reasoned that A.R.S. § 41-783(E) gave certain employees the right to appeal disciplinary actions against them and that § 38-1101(K) afforded law enforcement officers additional statutory protections.  Specifically, it limited the Department’s ability to modify or disregard the Board decision except where it was arbitrary or capricious and added a requirement that the Department provide written notice explaining its reasoning for modifying or rejecting the Board’s decision.  Thus, the statutes were not in conflict.

Additionally, the Court held that the Board’s decision, as a matter of law, was not arbitrary and capricious, and thus ordered the employee’s reinstatement rather than remand to the Department to allow it to explain its rejection of the Board’s decision.

Judge Jones delivered the opinion, in which Judge Swann joined.  Judge Thumma dissented in part, stating that he would remand to the Department rather than reinstate the Board’s decision.