Evans v. State ex rel. Arizona Corp. Commission

643 P.2d 14, 131 Ariz. 569, 1982 Ariz. App. LEXIS 383
CourtCourt of Appeals of Arizona
DecidedFebruary 2, 1982
DocketNo. 1 CA-CIV 5099
StatusPublished
Cited by6 cases

This text of 643 P.2d 14 (Evans v. State ex rel. Arizona Corp. Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. State ex rel. Arizona Corp. Commission, 643 P.2d 14, 131 Ariz. 569, 1982 Ariz. App. LEXIS 383 (Ark. Ct. App. 1982).

Opinion

OPINION

WREN, Chief Judge.

Appellee, Lawrence J. Evans, Jr., brought this action to challenge his discharge from his position as a hearing officer for the Arizona Corporation Commission. The superior court reversed the Arizona State Personnel Board’s (Personnel Board or Board) order of dismissal and held that the appel-lee was wrongfully dismissed from state service, remanding this matter to the Personnel Board for further action. We reverse the judgment of the superior court and reinstate the Personnel Board’s decision of dismissal.

Appellee commenced work for the Arizona Corporation Commission as a hearing officer in September of 1972. Thereafter, in 1974, he became Chief Hearing Officer. On October 30, 1975, the executive secre[571]*571tary of the Corporation Commission wrote appellee a letter informing him that he was no longer to exercise supervisory duties. After receipt of the letter the appellee’s duties were to be the same as those of another hearing officer, David Kennedy; all directives theretofore issued by the ap-pellee concerning the conduct of hearing officers and forms of orders were cancelled; all assignment of, and directives to, hearing officers were to be made by the executive secretary or his designee; and the appellee was to cease using the title of “Chief Hearing Officer.” Although the import of this letter was to substantially change the scope of appellee’s duties, there was no accompanying change in his salary. Further, the letter contained no indication or inference that the change in the appellee’s duties was precipitated by the Corporation Commissioners’ dissatisfaction with appellee’s performance of his duties.

On June 21, 1976, the executive secretary terminated the appellee’s employment, by letter, stating as reasons: (1) willful disobedience, (2) insubordination and (3) improper attitude.

Pursuant to A.R.S. § 41-785(A), appellee appealed his • dismissal to the Personnel Board. A hearing was held before a duly appointed hearing officer who issued findings and recommended that appellee be reinstated as a hearing officer.

Following the hearing, the Personnel Board rejected the findings of the hearing officer, made findings and conclusions of law of its own and denied the appellee’s appeal.

Appellee then appealed to the superior court pursuant to A.R.S. § 41-785(D). After reviewing the record established before the Personnel Board and hearing oral argument, the superior court issued a memorandum opinion and order reversing the decision of the Personnel Board to dismiss ap-pellee, and remanding the matter to the Personnel Board for further action. An appeal was noticed from the memorandum opinion. Subsequently, this court dismissed the appeal, holding that the memorandum opinion and order was not a final judgment within the meaning of A.R.S. § 12-2101(B). A formal judgment was subsequently entered by the superior court on August 29, 1979, and this appeal perfected.

The appellants contend that the superior court exceeded the scope of review permitted under A.R.S. § 41-785(D), by weighing the evidence and substituting its own judgment for that of the Personnel Board. They cite ample evidence in the record to support the grounds for dismissal found by the Board and assert that the superior court can only reverse a Personnel Board’s decision where there is no evidence in the record to support the Board’s findings.

The dismissal of a permanent public employee is limited to situations involving cause. State Personnel Commission v. Webb, 18 Ariz.App. 69, 500 P.2d 329 (1972). Under the laws governing personnel administration, insubordination, willful disobedience and improper attitude, among other grounds, constitute cause for dismissal or discipline of a state employee. A.R.S. § 41-770. An employee may appeal his dismissal to the State Personnel Board. A.R.S. § 41-785(A).

As was the case herein, the Personnel Board may assign an appeal to a duly appointed hearing officer. State Personnel Board Rule: R.2-5-33(B)(4). The hearing officer acts as the representative of the Personnel Board and is authorized to take such action as the Board itself is authorized to take by law and by the rules of the Personnel Board, “other than making the final findings of fact, conclusions of law, and order.” (emphasis added). Id.

The principal function assigned to the hearing officer, after receiving the evidence, is to “write and submit a report embodying findings of fact, conclusions of law and recommendations, as well as a brief statement of reasons for his findings and conclusions.” Id.

In the instant case the hearing officer concluded: “(1) The Corporation Commission failed to prove by a preponderance of the evidence the existence or validity of the reasons advanced for dismissing the appel-[572]*572lee from state service in the ‘dismissal letter’; (2) The evidence did not establish that the appellee was guilty of willful disobedience, insubordination or had an improper attitude.” Therefore, the hearing officer came to the legal conclusion that appellee did not violate the provisions of A.R.S. § 41-770(4), (6) and (14), and should not have been dismissed by the appellant.

After a review of the transcript of the testimony at the hearing and the exhibits and other documents submitted at the hearing, the Board rejected the hearing officer’s findings of fact, in part, and made new findings of fact and conclusions of law. The Board’s action was taken pursuant to the Personnel Board Rules and Regulations which provide, “the Board may affirm, reverse, adopt, modify, supplement, amend or reject the hearing officer’s report in whole or in part, may recommit the matter to the hearing officer with instructions, may convene itself as a hearing body, or may make any other appropriate disposition of the appeal.” R.2-5-33(13).

It is clear, both by statute and regulation, that the Personnel Board is the final fact finder and that the function of the hearing officer is advisory only.

We find nothing constitutionally infirm in this procedure. The Personnel Board possesses no supervisory authority over the state employees whose appeals it hears and therefore satisfies the requirement of being a fair and impartial tribunal. See, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Moreover, when the Board delegates its responsibility to conduct an evidentiary hearing to a hearing officer, it does so as a convenience to itself alone.

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Evans v. STATE, EX REL. ARIZONA CORP. COM'N
643 P.2d 14 (Court of Appeals of Arizona, 1982)

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Bluebook (online)
643 P.2d 14, 131 Ariz. 569, 1982 Ariz. App. LEXIS 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-state-ex-rel-arizona-corp-commission-arizctapp-1982.