McMichael-Gombar v. Phoenix Civ. Serv. Bd. – 12/5/2023
Arizona Supreme Court holds that the Phoenix Civil Service Board does not have the appellate authority to decide the constitutionality of city policies, rules, or regulations, but it can consider whether the employee reasonably believed that the disciplined conduct was within her constitutional rights.
The city suspended a employee for a violation of the police department’s social media policy. The employee appealed her suspension to the Phoenix Civil Service Board, arguing that the policy is unconstitutional and that she reasonably believed she was acting within her First Amendment rights. The board upheld the suspension and declined to consider whether the policy violated the employee’s First Amendment rights.
The employee sought special action relief in superior court. The superior court declined special action jurisdiction and dismissed the complaint. It reasoned that the city’s charter neither requires the board to consider the constitutionality of the city’s policies nor authorizes it to do so.
The court of appeals vacated the superior court’s decision. The court of appeals agreed that the board did not have to decide whether the policy was unconstitutional. But the appellate court concluded that the board must determine whether the sanction gives “proper regard” to the employee’s constitutional rights. The court did not explain what the board must do to give “proper regard” to those rights. The Arizona Supreme Court granted review.
The board’s powers are defined by the city’s charter, personnel rules, and peace officers bill of rights. Neither the charter, the rules governing disciplinary proceedings, nor the peace officers bill of rights authorizes the board to decide the constitutionality of a city policy. Instead, the power to declare a policy unconstitutional is reserved for the courts, and such a constitutional challenge may be brought therein. In determining whether an employee was fairly disciplined, however, the board can apply popular values and common sense, including whether an employee reasonably believed that her conduct was constitutionally protected.
Vice Chief Justice Timmer delivered the unanimous opinion.
Posted by: Brandon T. Delgado