LaWall v. Pima County Merit Commission; and Scammon – 3/21/2006

March 21, 2006

Arizona Court of Appeals Division Two Holds That the Pima County Merit System Rules Addressing Appeals to the Merit System Commission, Which State that the Commission May Hear Appeals of Dismissals or Discipline Imposed by “Written Order,” Are Procedural in Nature Not Jurisdictional.

An employee of the Pima County Attorney’s Office (PCAO), Joann Scammon, resigned from her position as a victim-witness advocate before receiving a notice of intent to terminate her, which the PCAO is required to send as part of a three-part process for terminating employees, outlined in the Pima County Merit System Rules (MSR). Scammon filed an administrative appeal with the Merit System Commission (the Commission), alleging her resignation was coerced and that she had been discriminated against and constructively discharged.

The PCAO filed a motion to dismiss the appeal, asserting lack of subject matter jurisdiction. The Commission denied the motion and continued the appeal pending the filing of the PCAO’s special action in Superior Court. The trial court ruled that the Commission lacked authority to hear Ms. Scammon’s appeal because she had never received a written notice of termination as required by the enabling statutes for the Commission. In pertinent part, these provide that: “[a]ny . . . employee . . . may be dismissed . . . by the appointing authority after appointment or promotion only by written order . . . a copy thereof shall be furnished to the person to be dismissed, suspended or reduced.” A.R.S. § 11-356(A). Further, “[t]he . . . employee may within ten days after presentation to him of the order, appeal from the order through the clerk of the commission.” A.R.S. § 11 356(B).

Reviewing de novo, the court of appeals reversed, rejecting the PCAO’s argument that because Scammon had never received a written order of termination, the Commission was without jurisdiction to hear her appeal. The court reasoned that the Commission’s jurisdiction is granted in § 11-352, which permits counties to create a merit system commission, and in § 11-354, which grants that commission the powers “necessary to carry out the provisions of this article.” To read “written order” as a jurisdictional requirement would be directly at odds with the legislative intent of the county merit system statutes, the purpose of which is to “protect employees.” 1981 Ariz. Sess. Laws, ch. 273 § 1. The written order requirement is nothing more than a procedural burden on the employer, not a jurisdictional limit on the merit or civil service commission.

Judge Brammer, Jr. authored the opinion; Judge Eckerstrom and Judge Howard concurred.