Opposition Brief — Williams v. Pima County

In The

Supreme Court of the United States

October Term, 1990

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JASON WILLIAMS,

Petitioner,

Vv.

PIMA COUNTY, THE PIMA COUNTY

MERIT COMMISSION AND CLARENCE W. DUPNIK,

Sheriff of Pima County,

Respondents.

e—

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Arizona

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BRIEF IN OPPOSITION OF RESPONDENTS

PIMA COUNTY AND CLARENCE W. DUPNIK,

SHERIFF OF PIMA COUNTY

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MicHaet P. CALLAHAN

Pima County Atrorney’s OFFice

Crvi_ Division

32 North Stone, Suite 1500

Tucson, Arizona 85701

(602) 740-5750

Counsel for Respondents

Pima nty and

Clarence W. Dupnik,

Sheriff of Pima County

ONE OR CNL COLLECT Wa) 32.20

BEST AVAILABLE COPY |

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page(s)

Cases

Broderick v. Police Commissioners of Boston, 330

N.E.2d 199 (Mass. 1975) cert. denied, 423 US.

CC eee Pe Seer rey ye he ee ee ee eee 7

Cleveland Board of Education v. Loudermill, 470 U.S.

Ey). ee cece gedbehbateeek mpmapens €4 4,5, 8

DeGroot v. Arizona Racing Comm., 141 Ariz. 331,

CBG PA SED GA. TOE iis sk ep caeiee cece ccc sepsis 1

Gardner v. Broderick, 392 U.S. 273 (1968)......... S, 6, 7

Garrity v. New Jersey, 385 U.S. 493 (1967)........... 5, 8

Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982)..... 7

Lefkowitz v. Cunningham, 431 U.S. 801 (1977)........ 5, 6

Lefkowitz v. Turley, 414 U.S. 70 (1973)............ 3, 6,7

Madsen v. Fendler, 128 Ariz 462, 626 P.2d 1094

S|) Per eT errr ero rey ees tae eee 1

Murphy v. Waterfront Commission, 378 U.S.

ee errr rep ae ys ane rere he) ee 7

O’Brien v. DeGrazia, 544 F.2d 543 (ist Cir. 1976)

ee | rn ee 7

Schade v. Arizona State Retirement ayeem, 109 Ariz.

ee eG RR Ree re eee 1

Uniformed Sanitation Men Assoc. v. Commissioner of

Sanitation of the City of New York, 392 U.S. 820

ort RPE Pee rg Se Bel PR ee ry ee 5, 6

STATUTES

Arizona Revised Statutes, § 11-356................... 1

THE WRIT SHOULD NOT ISSUE

I. Petitioner’s factual claims are not shown by the

record.

Petitioner was dismissed from his employment with

Pima County as a Corrections Officer in September, 1982.

Petitioner was a permanent employee at the time.

Under the system then (and now) in effect, Petitioner

appealed his dismissal to the Merit System Commission,

a statutory body created for that purpose. That body was

the trier of fact issues in deciding upon the propriety of

the dismissal. Arizona Revised Statutes, § 11-356. The

court, in reviewing a decision of the Merit Commission,

must affirm the decision of the commission if there is any

substantial evidence to support it in the record. DeGroot v.

Arizona Racing Comm., 141 Ariz. 331, 686 P.2d 130 (App.

1984). The trial court in conducting judicial review may

not reweigh the evidence to resolve what appear to be

conflicts. Schade v. Arizona State Retirement Sysiem, 109

Ariz. 397, 510 P.2d 42 (1973). Review by the courts is

limited to questions properly raised in the administrative

hearing. Madsen v. Fendler, 128 Ariz. 462, 626 P.2d 1094

(1981). Petitioner’s dismissal was upheld by the commis-

sion.

There is no evidence to demonstrate that Petitioner

developed his claim — Lack of Pre-termination Due Pro-

cess — before the Merit Commission. The existing record

does show that Petitioner “ .. . was aware of the charges

for his termination; that he understood them, but did not

agree with them.” (See Appendix F from Petition, Report

of Merit Commission Hearing Officer at p. A-32 of the

Petition).

Petitioner has made all variety of other factual asser-

tions about things which he claims did not occur:

a. He was not informed of the rules he was

accused of violating. (Petition, p. 4)

b. he was not informed of the evidence

supporting his termination. (/d.)

c. He was not informed of the pendency or

contemplation of a dismissal from employment.

(Id.)

d. He was not given the opportunity to

prepare a response and submit evidence on his

own behalf. (Id.)

e. He was not given the opportunity to

explain why a penalty less than termination

should be imposed. (Id.)

f. He was not”... informed of the specific

reasons for which he was being terminated,

given an opportunity to review the evidence

against him, compare it to the charges against

him or state why the evidence was wrong, why

the violations did not occur or if they did occur,

why he should not be terminated.” (Petition, p.

4)

g. He was notified for the first time of the

rules he was being fired for after his termina-

tion. (Petition, pp. 4-5)

h. He was never given notice of the spe-

cific charges, the employer’s evidence or that he

had a chance to tell his side of the story. (Peti-

tion, p. 10)

i. He was not informed of evidence, no

opportunity to be heard, not informed of ruies

violated, not given notice or opportunity to

respond to charges or punishment. (Petition, p.

14)

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j. He was questioned without disclosing

the evidence on which allegations are based,

without notice that he could be fired, without

telling him what he did that was wrong. (Peti-

tion, p. 16)

These claims provide a dramatic quality to the peti-

tion, and might, but for a complete lack of evidence,

incline the Court to grant the Writ.

Petitioner suggests that if the record is silent, then he

is justified in claiming that the silent record is evidence of

the facts enumerated above. (Petition, pp. 10-11) Under

normal circumstances the lack of logic in this position is

fairly obvious. Where the record is known to be vastly

incomplete, the same contention borders on exaggeration.

In fact the hearing officer’s report shows positively that

Petitioner understood the charges.

When the testimony and other evidence was being

adduced at the Merit commission hearing, a court repor-

ter was making a verbatim record of the proceedings. As

a back-up, tape recordings were also made of the testi-

mony. Both of these methods are in accordance with the

rules of the Commission.

Transcripts of the testimony were never prepared

because the reporter’s notes and tapes were damaged in

October, 1984. As a result, the matter proceeded to judi-

cial review, normally a statutory review on the record, on

the summary of the testimony made by the hearing offi-

cer, together with transcripts of some conversations in the

internal affairs division and other documentary evidence.

A request by Petitioner for trial de novo, based on

unavailability of a complete record, was denied. The

Court, however, left Petitioner the opportunity to present

testimony if necessary (Appendix A). No such testimony

was ever sought or presented by Petitioner.

Petitioner has quoted at length from his Notice of

Appeal, the document which activated his employment

appeal rights. (Petition, pp. 5-6) While it is true that he

claimed lack of due process, there is nothing to indicate

that he ever produced evidence in support of this claim.

The only reference to the subject is in the hearing officer’s

report (see p. A-32 of the Petition) where Petitioner him-

self testified that he was aware of and understood the

grounds for his termination.

In summary, while the record which remains does

show that certain things did occur, lack of evidence, in a

record known to be incomplete, cannot be asserted to

claim that certain things never happened. The existing

record, indeed, shows no effort on petitioner’s part to

produce evidence of a failure of pre-termination due pro-

cess.

II. The portions of the record which do exist were held

by the Arizona Court of Appeals to satisfy procedural

due process in light of Loudermill (Cleveland Board of Edu-

cation v. Loudermill, 470 U.S. 532 (1985)). Petitioner has

contended that the result of that court is inconsistent with

the Loudermill decision.

Petitioner was dismissed for improper handling of

prisoner records at the jail and for disobedience to an

order to answer questions about job-relevant off-duty

conduct. The decision of the Arizona Court of Appeals

found that Petitioner knew about the jail records at his

house and was given an opportunity to provide an expla-

nation for these records being at his house. The same

court found that Petitioner was clearly told that he could

be fired for refusing to answer questions about the off-

duty allegations of impersonating a law enforcement offi-

cer. If Petitioner was suffering from a shortage of infor-

mation on this occasion, the record fails to disclose it.

Petitioner did assert in his administrative appeal such a

claim, but only in broad general conclusory terms. No

evidence supports this claim, and existing evidence

shows that he knew of, understood and disagreed with

the accusations. The Loudermill decision, where Plaintiff

received a plenary post termination hearing, as he did

here, requires nothing more than an ” .. . initial check

against mistaken decisions. .. . ” 470 U.S. 532 at 546.

III. Petitioner’s second issue addresses the scope of

permissible questioning under the doctrine of Garrity v.

New Jersey, 385 U.S. 493 (1967). He contends that he may

not be ordered to answer questions by his public

employer about off-duty misconduct, even where that

off-duty misconduct is of admitted legitimate concern to

the public employer. Cited for this idea are Gardner v.

Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men

Assoc. v. Commissioner of Sanitation of the City of New York,

392 U.S. 820 (1968); Lefkowitz v. Turley, 414 U.S. 70 (1973);

and Lefkowitz v. Cunningham, 431 U.S. 801 (1977). All of

these cases have used the weil known language of Gard-

ner v. Broderick:

“If Appellant, a policeman, had refused to

answer questions specifically, directly and nar-

rowly relating to the performance of his official

duties, without being required to waive -his

imrunity with respect to the use of his answers

or the fruits thereof in a criminal prosecution of

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himself . . . the privilege against self-incrimina-

, tion would not have been a bar to his dis-

missal.” 392 U.S. at 278.

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The operative part of this quotation in the context of

this case is “ . specifically, directly and narrowly

relating to the performance of his official duties. .. . ”

The four cases cited by Petitioner, although they

include this language, have nothing whatsoever to do

with the scope of such questioning. In Gardner, a police

officer was being questioned about accepting bribes; in

Uniformed Sanitation Men, employees were being ques-

tioned about stealing money from the City of New York,

their employer; in Lefkowitz v. Turley, architects with con-

tracts with the State of New York were being questioned

about procurement fraud and bribery; in Lefkowitz v. Cun-

ningham, an officer in a political party was being ques-

tioned about suspected political misdeeds. Each case held

that sanctions could not follow refusal to answer ques-

tions unless the person compelled to answer was pro-

vided the functional equivalent of use immunity. In each

case that immunity was missing.

More importantly the cases do nothing at all to

define the scope of proper questioning. None of these

cases involved scope of questioning as an issue presented

to be ruled on. Each case did suggest that the questioning

that was under consideration was appropriate in consti-

tutional scope, but no such issue was actuaiiy decided by

the court.

Petitioner has not undertaken to cite a single case

which has ruled on questioning about off-duty but job-

Tiemann

relevant conduct. In fact the courts have permitted ques-

tions which touch upon off-duty conduct and other rather

personal matters as relating to job performance where

law enforcement employees are concerned. See Broderick

v. Police Commissioners of Boston, 330 N.E. 2d 199 (Mass.

1975), cert. denied, 423 U.S. 1048; O’Brien v. DiGrazia, 544

F.2d 543 (ist Cir. 1976), cert. denied, 431 U.S. 194; Gulden

v. McCorkle, 680 F.2d 1070 (Sth Cir. 1982).

The result sought by Petitioner would be of liitle

value to public employees’ rights to be free from self-

incrimination. The establishment of use immunity pro-

vides all the protection that exists under the Constitution.

Murphy v. Waterfront Commission, 378 U.S. 52 (1964). Peti-

tioner has admitted that the suspected off-duty criminal

conduct of impersonating a law enforcement officer and

stopping and assaulting women motorists at night, is a

matter of legitimate job-related concern to his public

safety employer, the Sheriff of Pima County. Petitioner

nevertheless contends that his employer may not demand

an accounting for this suspected misconduct from an

employee because it occurred off-duty instead of at work.

Petitioner maintains this position despite the fact that the

use immunity missing in Gardner, Lefkowitz, et al., is

uncontrovertably present here.

To permit Petitioner’s position to prevail would pro-

vide a constitutionally purposeless impediment to infor-

maticn which is acknowledged by Petitioner to be of

proper concern to any employer in the corrections or law

enforcement field.

CONCLUSION

The petition should be denied. Petitioner has asserted

facts in support of his due process claim which are not

supported by the record and in some instances contradicted

by it. The petition makes legal claims, which are equally

unsupported, that the action of the Arizona Court of Appeals

is in conflict with decisions of this court and “almost every”

federal court of appeals and state courts to have ruled on

this issue. This rhetoric ignores both the letter and spirit of

the Loudermill decision in a setting where a full blown post

termination hearing is assured.

The second issue articulated by Petitioner fares no

better. He actually suggests that a public employer cannot

compel an accounting from his law enforcement

employee respecting off-duty conduct of admitted legiti-

mate concern to the employer, even when the use immu-

nity of Garrity v. New Jersey is clearly established. In

support of this, Petitioner cites four decisions which did

not address this issue. If particular off-duty conduct

impacts a legitimate area of employer concern, then it is

related to the performance of duties. If the sheriff could

fire Petitioner for it, why shouldn’t he be able to insist on

answers to questions about it.

The position sought by Petitioner is strained, creating

an artificial, senseless barrier to relevant information.

MICHAEL P. CALLAHAN

Pima County ATTorNEY’s OFFICE

Crvit_ Division

32 North Stone, Suite 1500

Tucson, Arizona 85701

(602) 740-5750

Counsel of Record for Respondents

Pima County and Dupnik

App. 1

APPENDIX A

ARIZONA SUPERIOR COURT, PIMA COUNTY

JUDGE: MICHAEL J. BROWN CASE NO. 206977

Court Reporter: None DATE June 9, 1986

JASON WILLIAMS (P) Kenneth K. Graham :

-vs-

THE COUNTY OF PIMA, et al. (D) Michael P. Callahan

Barry Corey

MINUTE ENTRY

HEARING RE PLAINTIFF’S MOTION TO CONTINUE

AND MOTION FOR TRIAL DE NOVO AND DEFEN-

DANTS’ MOTION TO DISMISS:

Parties not present;

Counsel argue to the Court.

IT IS ORDERED the motion to dismiss is DENIED.

IT IS FURTHER ORDERED the motion for trial de

novo is DENIED.

IT IS FURTHER ORDERED the motion for recon-

sideration of the ruling by Judge Roylston on July 21,

1984 and motion to compel is DENIED.

IT IS FURTHER ORDERED this matter may proceed

in its current posture as an appeal on the record, the file,

exhibits, hearing officer’s report and findings.

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App. 2

IT IS FURTHER ORDERED that motion to continue

trial date is DENIED, and the trial date of August 8, 1986

is CONFIRMED.

Since the facts are no longer in dispute,

IT IS ORDERED the attorneys file with the Court a

briefing schedule.

THE COURT FINDS that if there is some reason

Plaintiff believes that the taking of testimony is necessary

to avoid manifest injustice, Plaintiff is to file a pleading to

that effect.

THE COURT FINDS the dates the hearing being

appealed from were held commencing on October 21,

1982 and completed on October 27, 1982.

THE COURT FURTHER FINDS the date the com-

plaint was filed was January 25, 1983.

THE COURT FURTHER FINDS the fact that pursuant

to uncontroverted affidavit, a full and accurate copy of

the transcripts could have been prepared through the

month of October, 1984.

THE COURT FURTHER FINDS that Plaintiff did not

order the transcript in the complaint and that the denial

of the motion to compel, which included the transcript,

took place 70 days prior to the destruction of the record-

ing of the hearing, and there was no action taken by the

Plaintiff during that period of time to order the tran-

script.

cc: Hon. Michael J. Brown (individually assigned)

Kenneth Graham, Esq. (Law Offices of William Ris-

ner)

App. 3

Michael Callahan, Esq. (Pima County Attorney’s

Office)

Barry Corey, Esq. (Corey & Farrell)