McMichael-Gombar v. Phx. Civ. Serv. Bd. – 6/23/2022

July 8, 2022

Arizona Court of Appeals Division One holds that the Phoenix City Charter requires the Civil Service Board to give “proper regard” to constitutional concerns in its review of employee sanctions.

The City of Phoenix suspended a police officer for a post she made to her private social media account in violation of the department’s social media policy.  The police officer appealed the suspension and challenged the policy’s constitutionality under the First Amendment.  The hearing officer granted the City’s request to exclude the officer’s constitutional challenge and upheld the suspension.  The police officer appealed to the Civil Service Board, which maintained its decades-long interpretation of the City Charter as excluding constitutional questions from its review of employee sanctions and also affirmed the suspension.

The police officer challenged the Board’s decision by seeking discretionary special action review in superior court.  The court refused jurisdiction, concluding that the Board’s sole role was “to ensure that the City proved the charges” and “that the level of discipline was appropriate,” not to evaluate the constitutionality of City policies.  The police officer appealed.

The Court of Appeals vacated and remanded.  It held that the City Charter—namely, its directive under Chapter XXV, § 1(2)(e) that the City’s personnel system show “proper regard for [employees’] privacy and constitutional rights as citizens”—expressly places constitutional considerations within the Board’s review of employee discipline.  This means that the Board must at least take evidence and argument concerning whether the sanction gives proper regard to those rights.  The Board need not and, given its structure, cannot consider the constitutionality of the underlying policy.  Instead, the Board simply must credit the employee’s constitutional rights in the exercise of its more limited power to review an individual sanction.

Judge Paton authored the opinion; Judge McMurdie and Vice Chief Judge Gass joined.

Posted by: Matthew Stanford