Arizona Court of Appeals Division One Holds That a Tie Vote by a Quorum of the Maricopa County Employee Merit System Commission Renders that Administrative Decision Without Force and Effect.

Saldate, a peace officer and detective for the Maricopa County Attorney’s Office (“MCAO”), was terminated.  He appealed his termination to the Maricopa County Employee Merit System Commission (“Commission”).  An appointed hearing officer held a 4-day hearing and prepared proposed findings of fact and conclusions of law for the Commission, recommending that the Commission sustain Saldate’s termination.

With four members present, the Commission considered Saldate’s appeal and the hearing officer’s recommendations.  The Commission members voted 2-2 on whether to sustain the appeal, resulting in a tie.  The Commission then denied Saldate’s appeal, citing Resolution § 16(F) and stating that an appeal can only be sustained when a majority of Commission members vote in favor of the action.  Because there was no majority vote in this matter, the Commission dismissed Saldate’s appeal and sustained his termination.

Saldate sought review in superior court.  The superior court ruled that the Commission’s tie vote was of no force and effect because it was not a majority vote.  The superior court vacated the Commission’s order and remanded for the Commission to reconsider Saldate’s appeal.  Saldate appealed, arguing that a tie vote is a final administrative decision which demonstrates that MCAO did not meet its burden to prove cause for termination.

The Court of Appeals noted that the legislature enacted A.R.S. § 11-352 to grant counties limited authority to pass resolutions establishing employee merit systems.  The Maricopa County Board of Supervisors used that authority to establish the Merit System and Commission through Resolution § 1.  The resolution also requires the Commission to adopt rules to properly enforce the resolution.  Although the legislature did not provide minimum requirements for the Commission’s vote on an employee’s appeal, the legislature did require that the Commission have 5 members and issue findings of fact.

Relying on Resolution § 9(D), the Court of Appeals found that the Commission generally is required to act by the majority of its members present at a meeting.  The resolution states:  “Three members shall constitute a quorum for the transaction of business.  A majority of the quorum may take legal action in all areas of the Commission’s duties and powers.”  As four Commission members were present at Saldate’s hearing, the Court of Appeals reasoned that a consensus among three of these members was required for the Commission to take legal action. 

The Court also reviewed that Rule 10.16, which provides that if, after a hearing on appeal, “a majority of the Commission members present at the meeting where the vote is taken, determine that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be dismissed.”  The Court reasoned that this rule could be interpreted as holding that a tie vote does not constitute a majority and, therefore, the appeal must be dismissed.  On the other hand, the Court also recognized that based on the reasoning of Wicks and Wolkin, it could be argued that MCAO had failed to meet its burden to sustain the termination.  Wicks v. City of Tucson, 112 Ariz. 487, 543 P.2d 1116 (1975) (applying Tucson Civil Service Commission rules under Tucson City Charter); Wolkin v Civil Service Commission of City of Tucson, 21 Ariz. App. 341, 519 P.2d 194 (1974) (same).

Ultimately, however, the Court of Appeals found that Wicks and Wolkin were specific to the Tucson civil service scheme and determined that Resolution 9(D) read together with A.R.S. § 11-356 and Rules 10.14 and 10.17 make clear that the Maricopa County Commission must make a final decision by making findings of fact, conclusions of law, and issuing an order – all of which require a majority vote by a quorum.  See A.R.S. § 11-356(F) (“the commission shall affirm, modify or revoke the order” after a hearing); Resolution § 9(D) (“A majority of the quorum may take legal action in all areas of the Commission’s duties and powers.”); Rule 10.14 (“The Commission shall…make written findings of fact, conclusions of law and issue an order…”).   Because a majority of the quorum present at Saldate’s appeal did not reach a consensus and did not make findings of fact and conclusions of law, the superior court correctly concluded that there was no final Commission action and the Commission’s purportedly final order has no legal effect.

Judge Kessler authored the opinion; Judges Downie and Swann concurred.