Arkansas Commission on Law Enforcement Standards v. Davis

320 S.W.3d 23, 2009 Ark. App. 458, 2009 Ark. App. LEXIS 579
CourtCourt of Appeals of Arkansas
DecidedJune 3, 2009
DocketCA 08-1248
StatusPublished

This text of 320 S.W.3d 23 (Arkansas Commission on Law Enforcement Standards v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Commission on Law Enforcement Standards v. Davis, 320 S.W.3d 23, 2009 Ark. App. 458, 2009 Ark. App. LEXIS 579 (Ark. Ct. App. 2009).

Opinion

RITA W. GRUBER, Judge.

1 Appellant Arkansas Commission on Law Enforcement Standards and Training appeals the order of the Jefferson County Circuit Court reversing the Commission’s order revoking the certification of appellee, Arlanders Davis. On appeal, the Commission contends that its decision is supported by substantial evidence and therefore that the circuit court erred in reversing it. We agree with the Commission, and therefore we reverse the circuit court’s order and reinstate the Commission’s order.

This appeal arises out of an order of the Commission dated November 14, 2006, revoking the certification of Arlanders Davis pursuant to the Commission’s Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal [investigation.” Testimony at the Commission hearing indicated that Mr. Davis began working as a state police officer on June 20, 1977. At 10:00 a.m. on February 8, 2006, Mr. Davis was ordered by his employer to submit to a random drug test. The results of the test were positive for cocaine in an amount equal to five times the federal cut-off limit for exposure by passive inhalation.

State’s Exhibit One at the Commission hearing included an investigative summary prepared by Sergeant C.A. Beall of the state police internal affairs unit. The summary indicated that on February 10, 2006, Lieutenant Mullins and Sergeant Beall conducted a tape-recorded interview of Mr. Davis. Mr. Davis said that he did not know why he tested positive for cocaine and that he had never used cocaine, but he suggested that some of the medication he was taking might have caused the positive test result. He also mentioned that he had been to a Super Bowl party recently but that he did not know of anyone at the party who was using cocaine.

The next day, February 11, 2006, Mr. Davis called Sergeant Beall at home and told him that he knew where he had been exposed to cocaine. He told Sergeant Beall that on February 7, 2006, he had been riding in his car with a friend, Percy Wilson, and that Mr. Wilson had been smoking homemade cigarettes containing crack cocaine. Mr. Davis said that, at the time he was in the car with Mr. Wilson, Mr. Davis did not know the cigarettes contained cocaine.

|3On February 13, 2006, Mr. Davis provided Sergeant Beall with results from a drug screen taken by Mr. Davis on February 9, 2006, showing a negative result for cocaine. Sergeant Beall showed the negative drug screen to the state police medical review officer, Dr. J.R. Baber, who said that the test, taken twenty-four hours after the initial random drug screen, was “a non factor because of the rapid manner in which cocaine leaves your system.” After reviewing the prescription medications being taken by Mr. Davis, Dr. Baber also concluded that none of the medications would trigger a positive test result for cocaine. Finally, Dr. Baber stated that Mr. Davis would not have reached the cutoff levels for cocaine, which Mr. Davis exceeded, by merely inhaling crack cocaine fumes or vapors second hand.

In a memo to state police headquarters’ staff dated March 6, 2006, Lieutenant Mullins recommended that Mr. Davis be terminated. On March 10, 2006, a disciplinary review board, convened at state police headquarters to review the internal affairs complaint against Mr. Davis, recommended that Mr. Davis be terminated. No action was taken.

On March 31, 2006, Mr. Davis provided two letters to Major Tim K’Nuckles of the Arkansas State Police. In the first letter, Mr. Davis stated in relevant part:

Please accept this letter as my formal notification to the Arkansas State Police of my decision to resign from and take early retirement with the Arkansas State Police, conditioned upon the agreed terms arrived at between your office and my attorney, Bryan A. Ac-horn, which are outlined by Mr. Achorn in his letter to you on today’s date. Assuming that the agreed terms are outlined correctly, it is my intention that this resignation be effective | immediately.

Mr. Davis testified that Major K’Nuckles called Mr. Achorn’s assistant and advised him that the letter was not acceptable and that it needed to state simply that Mr. Davis was retiring. Therefore, Mr. Davis stated that he sent the second letter to Major K’Nuckles, which provided as follows: “The purpose of this letter is to inform you that, effective 5:00 o’clock p.m. on the date of this letter, I am retiring from the Arkansas State Police. Incident to my retirement, I request to be awarded my service revolver.”

On October 12, 2006, the Commission held a decertification hearing for Mr. Davis. The Commission issued an order on November 14, 2006, revoking Mr. Davis’s certification pursuant to its Regulation 1010(3)(a)(iv), finding that Mr. Davis had submitted his resignation from the Arkansas State Police while an internal affairs investigation was pending.

After reviewing briefs and hearing oral arguments on appeal, the Jefferson County Circuit Court vacated the Commission’s revocation and directed the immediate reinstatement of Mr. Davis’s certification. The circuit court found that the record lacked relevant evidence that a reasonable mind might accept to support the conclusion that Mr. Davis resigned from the state police. The court found that the proof was “so nearly undisputed that fair-minded persons could not reach the conclusion that Davis resigned, as opposed to retired.” The Commission brings this appeal from the circuit court’s order.

lfiOur review in this case is directed not to the circuit court’s decision, but to the decision of the Commission. Ark. Hearing Instrument Dispenser Bd. v. Vance, 359 Ark. 325, 327, 197 S.W.3d 495, 497 (2004). Administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456, 458 (1999). We will uphold the agency’s decision if it is supported by substantial evidence and it is not arbitrary, capricious, or characterized by an abuse of discretion. Id. We give the most probative weight to the evidence in favor of the agency’s determination and look to the entire record in making this determination. Vance, 359 Ark. at 327, 197 S.W.3d at 497. Substantial evidence means valid, legal, and persuasive evidence such that a reasonable person might accept it as adequate to support the conclusion. Id. When an agency’s determination is supported by substantial evidence, the decision cannot be arbitrary or unreasonable. Id.

The Commission contends on appeal that substantial evidence supports its decision to revoke Mr. Davis’s certification pursuant to Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal investigation.” The questions before us are whether there is substantial evidence that Mr. Davis was “the subject of a pending internal investigation” and, if so, whether he “resigned” during the investigation.

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Related

Arkansas Hearing Instrument Dispenser Board v. Vance
197 S.W.3d 495 (Supreme Court of Arkansas, 2004)
Arkansas State Police Commission v. Smith
994 S.W.2d 456 (Supreme Court of Arkansas, 1999)
BD. OF EXAMINERS IN COUNSELING v. Carlson
976 S.W.2d 934 (Supreme Court of Arkansas, 1998)

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Bluebook (online)
320 S.W.3d 23, 2009 Ark. App. 458, 2009 Ark. App. LEXIS 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-commission-on-law-enforcement-standards-v-davis-arkctapp-2009.