Smith v. Pima County Law Enforcement Council

548 P.2d 1151, 113 Ariz. 154, 1976 Ariz. LEXIS 254
CourtArizona Supreme Court
DecidedApril 27, 1976
Docket12393-PR
StatusPublished
Cited by20 cases

This text of 548 P.2d 1151 (Smith v. Pima County Law Enforcement Council) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Pima County Law Enforcement Council, 548 P.2d 1151, 113 Ariz. 154, 1976 Ariz. LEXIS 254 (Ark. 1976).

Opinions

CAMERON, Chief Justice.

This is a petition for review by defendant Pima County Law Enforcement Merit System Council (hereinafter “the council”) of a decision of the Court of Appeals, Division Two, which reversed the ruling of the trial court holding that plaintiff James M. Smith was entitled to a hearing concerning his dismissal from employment.

We must answer three questions on appeal:

1. Was plaintiff Smith, at the time of his dismissal, a permanent employee of the Pima County Sheriff’s Department so as to be entitled to a hearing on the grounds for his dismissal?
2. Assuming that plaintiff Smith did not attain permanent status, was he, as a probationary but classified employee, entitled to a hearing under A.R.S. § 38-1003(6)?
3. Assuming that plaintiff has no statutory right to a hearing, is he nevertheless entitled to a hearing as a matter of procedural due process of law?

The facts necessary to our decision are as follows. Plaintiff James M. Smith was employed on 19 March 1973 as a Deputy Sheriff in the Pima County Sheriff’s Department. On 8 March 1974, plaintiff was orally informed by the Chief Deputy Sheriff of Pima County that plaintiff’s employment was terminated as of that date. On 18 March 1974, the Pima County Personnel Director received notification that plaintiff’s service was unsatisfactory, and that plaintiff would be separated from his employment in the Sheriff’s Department. Plaintiff received written notice of his termination in the form of a Personnel Action Form on 21 March 1974. The reasons for plaintiff’s termination as specified in the Personnel Action Form were as follows:

“Failure to meet minimum requirements during probationary period. Per Pima County Sheriff’s Policies 3.049 failure to promptly pay just debts. (Grants, property repossessed) 8.176 failure to gain approval from the Sheriff for outside employment. 3.075 B-7 Conduct unbecoming an Officer, (reference conduct at County Attorney Office when filing for criminal complaint) Per Pima County Policies 1-114 A, failure to pay just debts.”

On 25 March 1974, plaintiff sent to the Council a notice of appeal and demand for a hearing concerning his dismissal. Thereafter, on 9 April 1974, there was held before the defendant Council a hearing on the issue of whether plaintiff was entitled to a full hearing regarding his dismissal. At the conclusion of the hearing, the council determined that plaintiff was a probationary employee at the time of his termi[156]*156nation and, consequently, under the Council’s rules, had no right to a hearing.

Plaintiff then filed a special action complaint in the Pima County Superior Court naming as defendants the Pima County Law Enforcement Merit System Council and the individual members thereof. The matter was submitted for trial upon a stipulated set of facts as well as the pleadings, the parties’ memoranda, and the Pima County Law Enforcement Merit System rules.

The trial court, in an opinion and order filed on 18 September 1974, held that plaintiff had no statutory right to a hearing, specifically finding that A.R.S. § 38-1003(6) does not authorize an appeal from every order of dismissal, and that:

“[t]he distinction in the council’s rules between permanent and probationary employees, and the granting of appeal rights to permanent but not to probationary employees, is reasonable and valid.”

The Court of Appeals reversed, holding that plaintiff, whether a permanent or probationary employee, had a statutory right to a hearing.

HAD PLAINTIFF ATTAINED PERMANENT STATUS?

The Pima County Law Enforcement Merit System Rules provide in part as follows :

“ARTICLE VIII — PROBATIONARY PERIOD
“VIII-I DURATION AND PURPOSE
(a) The purpose of the probationary period is to allow the appointing authority an opportunity to evaluate the employee in the new assignment.
(b) The probationary period for the Service shall be one year duration and in no case may the basic probationary period be longer than one year.
“VIII-2 CONDITIONS PRELIMINARY TO PERMANENT STATUS
(a) The appointing authority shall evaluate a probationary employee and submit a report to the Director on a form prescribed by him at least fifteen days prior to the expiration of the employee’s probationary period.
(b) If the appointing authority determines at any time during the probationary period that the services of a probationary employee are unsatisfactory, the employee may be separated upon written notice by the appointing authority. If at the end of the probationary period no notification is sent to the Personnel Director, permanent status will be achieved automatically.”

Under the rules of the Pima County Law Enforcement Merit System, the determination not to retain the employee in permanent status and notification to the personnel director must be done within the one year period. This was done in the instant case. Smith had actual notice of his termination within the one year period and there was no prejudice to him because of the three day delay in receipt of written notification. Written notification to the employee within the one year period is preferable but is not mandatory under the rules as long as the employee is notified within a reasonable time of the decision.

We hold that Smith did not obtain permanent status and for that reason was not entitled to a hearing pursuant to merit system rules.

DOES PLAINTIFF HAVE A STATUTORY RIGHT TO A HEARING?

A.R.S. § 38-1003(6) provides, in relevant part, as follows:

“The [merit system] council, pursuant to recognized merit system principles of [157]*157public employment, shall from time to time:
******
“6. Hear and review appeals from any order of the department head in connection with suspension, demotion, or dismissal of a classified law enforcement officer. * * * ”

The Pima County Law Enforcement Merit System Rules read in part as follows:

“X-l MATTERS WHICH MAY BE APPEALED
“(a) An employee in the classified service who has attained permanent status may appeal:
(1) Within ten days of receipt of a written order from the Sheriff for dismissal, demotion or suspension.
(2) Within ten days after completion of the final step of the problem solving procedure. (PCPP 1-129).”

And:

“XI-2 MATTERS WHICH MAY NOT BE APPEALED
“The Council will not accept appeals ******
“(c) From probationary employees except for alleged discrimination.”

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Smith v. Pima County Law Enforcement Council
548 P.2d 1151 (Arizona Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
548 P.2d 1151, 113 Ariz. 154, 1976 Ariz. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-pima-county-law-enforcement-council-ariz-1976.