McSo v. McLeo ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MARICOPA COUNTY SHERIFF’S OFFICE, Plaintiff/Appellant,
v.
MARICOPA COUNTY LAW ENFORCEMENT OFFICERS MERIT
SYSTEM COMMISSION, et al., Defendants/Appellees.
No. 1 CA-CV 17-0681
FILED 12-6-2018
Appeal from the Superior Court in Maricopa County
No. LC2016-000012-001
The Honorable Patricia Ann Starr, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Christine B. Stutz
Counsel for Plaintiff/Appellant
Napier, Coury & Baillie, P.C., Phoenix
By Michael Napier, Kathryn R. E. Baillie
Counsel for Defendant/Appellee Wade Voeltz
Pierce Coleman PLLC, Scottsdale
By Justin S. Pierce
Counsel for Defendant/Appellee Maricopa County Law Enforcement Officers
Merit System Commission
MCSO v. MCLEO, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
W I N T H R O P, Judge:
¶1 Following an investigation initiated in 2014, the Maricopa
County Sheriff’s Office (“MCSO”) dismissed Deputy Wade Voeltz from his
employment. Voeltz appealed the dismissal to the Maricopa County Law
Enforcement Officers Merit System Commission (“the Commission”),
which concluded that MCSO did not make a good faith effort to complete
its investigation within 120 business days as then-required by statute. See
former Ariz. Rev. Stat. (“A.R.S.”) § 38-1105(B).1 The Commission sustained
1 The legislature substantially revised Title 38 effective January 1,
2015, see 2014 Ariz. Sess. Laws, ch. 240, §§ 1-17 (2nd Reg. Sess.), but the
revisions were not made retroactive, and during the administrative hearing
process, MCSO and Voeltz stipulated that the previous version of Title 38—
that in effect in 2014, when MCSO began investigating Voeltz—would
govern. Throughout this decision, references to the applicable statutes are
to the version in effect before 2015. The pre-2015 version of § 38-1105(B) set
forth a time limitation on disciplinary action against a law enforcement
officer, providing in relevant part:
[A]n employer shall make a good faith effort to complete any
investigation of employee misconduct within one hundred twenty
business days after the employer receives notice of the allegation by
a person authorized by the employer to initiate an investigation of
the misconduct. The investigation is considered complete on
the date the employee is served with the notice of discipline
or the notice of findings. If the employer exceeds the one
hundred twenty business day limit, the employer will
provide the employee with a written explanation containing
the reasons the investigation continued beyond one hundred
twenty business days. On an appeal of discipline by the
employee, a hearing officer, administrative law judge or
appeals board may dismiss the discipline if it is determined
2
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Decision of the Court
Voeltz’ appeal and dismissed the discipline against him, and MCSO
appealed to the superior court. The superior court affirmed the
Commission’s decision, and MCSO appealed to this court. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In late July 2014, personnel of MCSO’s Criminal Employment
Unit (“CEU”) were tasked with conducting a complete audit and
organization of past and present CEU reports that resulted in an arrest, with
the completed product to be used in a series of civil lawsuits. During the
audit, investigators discovered that items including photographs were
missing from a case file involving the search of a Pei Wei restaurant.
¶3 On July 28, 2014, MCSO’s Deputy Chief of Investigations,
Edward Lopez, instructed MCSO Sergeant Dmitrius Whelan to contact
Voeltz, who had served as a detective in the CEU from 2009 to 2012, had
been the Pei Wei case agent from 2010 to 2012, and signed out the original
file from the Property and Evidence Department in early 2012. On July 30,
2014, Whelan questioned Voeltz, who told Whelan that he had returned the
original file to the Pei Wei corporate office in Scottsdale but did not recall
returning any photographs. Voeltz further stated he had “returned lots of
files” and “[v]irtually every time I was a case agent for a case, I returned the
original files to the business owners at some point” after the case closed.
¶4 Whelan briefed Lopez, who directed Whelan to contact
Vanessa Losicco, MCSO’s general counsel. On Friday, August 1, Losicco
instructed Whelan to “pull an IA investigation” number and formally
document his investigation. On August 4, Whelan obtained I/A #14-0443.
¶5 On August 12, Whelan served Voeltz with a notice of
investigation (re. I/A #14-0443) as defined in Sheriff’s Office Policy
(“Policy”) GH-2, Internal Investigations, stemming from an alleged
violation of Policy GJ-4, Evidence Control. That same day, Whelan
reviewed a list of historic CEU cases, finding only six cases on which Voeltz
had been the case agent, then pulled the property logs for those cases, and
concluded, “A review of the property logs show[s] that Deputy Voeltz[‘]
that the employer did not make a good faith effort to complete
the investigation within one hundred twenty business days.
(Emphasis added.)
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removal of CEU[-]related evidence after disposition of the case is not
common practice for him. To date, the evidence reference DR 10-121386
[the Pei Wei case] are the only items which Deputy Voeltz has removed
from MCSO property and evidence.”2
¶6 Whelan interviewed Voeltz on August 27, giving Voeltz a
Garrity warning3 and allowing an employee-observer to be present. At the
end of the interview, Voeltz asked Whelan, “And what’s your timeframe?
And I know you have so many days to get things completed. Where are
you at in that process?” Whelan replied, “I wanna say 120. . . . And, uh, I
think we started beginning of August. . . . August 4th or August 8th,
somewhere around there. So, uh, but it shouldn’t take . . . four months.”
¶7 Sometime in October 2014, Whelan completed his portion of
the investigation relating to I/A #14-0443.4 Relying in part on his August
12 investigation and his previous interviews of Voeltz, Whelan indicated a
concern with truthfulness issues, noting in part and concluding as follows:
Voeltz made statements [on August 27] that he could
specifically remember 2-3 cases in which he had dropped the
original employee files off to the business after the case was
closed. This was shown not to be true.
....
There is evidence to support the allegation that Deputy Wade
Voeltz did not properly document the return of evidence to
Pei Wei. There is also cause to believe that the evidence was
never returned by Voeltz to Pei Wei. This investigation is
2 Voeltz testified he had actually been the case agent on at least twenty
CEU investigations from 2009 to 2012. In several instances, a record in the
property logs related to those cases was marked “RTO,” meaning some
item(s) of evidence had been “returned to owner.”
3 See Garrity v. New Jersey, 385 U.S. 493, 499-500 (1967) (holding that if
a state requires a police officer to answer questions as a condition of keeping
his job, the officer’s compelled statements cannot be used in subsequent
criminal proceedings).
4 Whelan’s investigation report is not dated and does not otherwise
indicate exactly when he completed his portion of the investigation.
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Decision of the Court
being forwarded to the Professional Standards Bureau
[(“PSB”) (formerly Internal Affairs)] for further investigation.
(Emphasis added.)
¶8 On October 24, the division commander, Captain Freddie
Aldorasi, signed off on Whelan’s report, while noting “[o]nly Chief Deputy
[Jerry] Sheridan can sustain on truthfulness violations.” As Aldorasi
summarized:
147 Items of evidence related to [the Pei Wei case] w[ere]
checked out from evidence by W. Voeltz #1658 noted to be
returned to Owner. Some of the items noted to be returned
should not have been returned and are property of MCSO. In
attempts to locate the MCSO[-]owned items, it is alleged by
Owner (Pei Wei) that W. Voeltz did not return any items to
them after removing the items from property and evidence.
¶9 The investigation continued up the chain of command to
Lopez, who agreed with the concern expressed by Whelan and noted by
Aldorasi of an existing issue regarding Voeltz’ truthfulness. Lopez
testified:
[I]n Sergeant Whelan’s report, the original seems that Deputy
Voeltz had personally returned the items to, [] Pei Wei, and
after investigating further with [] Pei Wei, he could not
confirm that that ever occurred.
There are also statements that receipts were generated
upon the return of that, and then brought back to the office,
and gone through the regular protocols to enter them in.
Sergeant Whelan could not confirm that either.
There w[ere] also statements made, I believe, that
when cases were closed, it was standard practice for Deputy
Voeltz to go ahead and return the property to the original
owners of those companies, and in Sergeant Whelan’s
investigation, no other property was ever checked out of the
cases from CEU and returned back to those property owners,
and those statements were all in conflict with each other and
it just gave the appearance of a truthfulness issue.
¶10 Lopez, in turn, forwarded the investigation to Sheridan
because “he is the one who can rule on truthfulness issues.” On November
5
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25, Sheridan requested that Captain S.M. Bailey, Commander of the PSB,
further investigate the possible truthfulness violation. As Lopez later
testified:
Q And so at that point, there was going to be no
action taken on the evidence control issue until the
truthfulness can be resolved; is that accurate?
A Correct.
Q So after -- well, did you have a discussion with
Chief Deputy Sheridan about this particular evidentiary
investigation, the property investigation?
A No, I forwarded it to him and next I heard, it
had been forwarded to PSB to conduct the next internal
investigation regarding the truthfulness issue.
¶11 Rather than open or “pull” a new I/A number, however,
MCSO continued to use the same I/A number, and Bailey assigned
Sergeant Darriell Bone to review I/A #14-0443 and further investigate the
truthfulness issue. Bone later testified as follows:
When I received the case, essentially it was an
investigation that was initiated by Sergeant Dmitrius Whelan.
The allegation that I was investigati[ng] was for truthfulness.
What I did was I took the case that was initiated by Sergeant
Whelan and reviewed it to identify the issues of truthfulness
that I would be addressing later on.
¶12 Upon review, Bone identified three issues involving apparent
conflicting statements by Voeltz: (1) Voeltz’ memory of taking out and
returning personnel files to Pei Wei; (2) Voeltz’ memory of receiving
confirmation the case was closed; and (3) Voeltz’ stated practice of
returning original files to the appropriate business. On December 30, Bone
issued Voeltz a second notice of investigation, which informed Voeltz “that
an official Administrative Investigation has been initiated” based on the
“[i]nconsistent and/or unsupported statements you made while being
questioned during an Administrative Investigation (IA#14-0443).”5 That
5 The term “notice of investigation” is not a statutorily defined term,
and MCSO does not argue that this second notice of investigation triggered
any new timeline. Moreover, the 120-business day time limit is triggered
by notice to the employer, not the employee. See A.R.S. § 38-1105(B).
6
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Decision of the Court
same day, Voeltz acknowledged receipt of the notice of investigation, and
Bone interviewed him.
¶13 Concluding an allegation of untruthfulness could be
sustained as to the third issue, Bone prepared a report and submitted it to
the chain of command. Sheridan reviewed Bone’s investigation and, on
January 22, 2015, signed off on Bone’s report.6 On March 6, Sheridan
sustained the following allegation:
Deputy Voeltz made statements during an Administrative
Investigation that lacked factual basis and gave inconsistent
statements regarding his handling of Property and Evidence
after his cases had been adjudicated.
¶14 On April 3, 2015, MCSO notified Voeltz of its intent to
discipline him and that it was considering dismissing him from
employment. On April 16, MCSO terminated Voeltz’ employment
“subsequent to Internal Investigation #14-0443” and premised on neglect
of duty (Policy GJ-4, Evidence Control) and dishonesty (Policy CP-5,
Truthfulness). The termination letter directed that “[e]ach violation
constitutes separate and independent cause for dismissal.”
¶15 Voeltz appealed to the Commission, where he filed a motion
to dismiss the discipline (and requested reinstatement) based on MCSO’s
failure to make a good faith effort to complete its investigation within 120
business days. See A.R.S. § 38-1105(B). After briefing, a hearing officer
denied the motion to dismiss, finding (1) there were two separate
investigations: a missing-evidence investigation and an untruthfulness
investigation, and (2) the untruthfulness investigation began on November
25, 2014 (when Sheridan referred the case to the PSB), and ended on April
3, 2015 (with the notice of intent to discipline)—i.e., well within the
statutory time limitation. Later, following a two-day evidentiary hearing,
the hearing officer submitted to the Commission findings of fact,
conclusions of law, and a recommendation that Voeltz’ appeal be denied
and his dismissal sustained.
6 The document Sheridan signed indicates Bone had investigated an
alleged policy violation of CP-5, Truthfulness. The document shows both
a “Date of Incident” and a “Date Investigation Started” of July 30, 2014, and
a “Date Completed” of January 6, 2015.
7
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Decision of the Court
¶16 The Commission voted to reject the hearing officer’s report
and sustain Voeltz’ appeal,7 however, based on MCSO’s failure to meet its
burden to prove by a preponderance of the evidence that it met the
statutory requirements of § 38-1105(B) by making a good faith effort to
complete the investigation within 120 business days. According to the
Commission, there was one official investigation that started per MCSO
policy on July 30, 2014 (when Whelan questioned Voeltz) or August 1, 2014
(when Whelan was authorized to “pull” an I/A number), and ended on
April 3, 2015 (with the notice of intent to discipline Voeltz).8 Further, the
Commission concluded, MCSO did not provide a good faith reason for
exceeding the 120-business day requirement. Accordingly, the
Commission exercised its discretion to reject the disciplinary action and
sustain Voeltz’ appeal.
¶17 MCSO appealed to the superior court. See A.R.S. § 12-904.
Concluding the Commission’s determination was not contrary to law,
arbitrary and capricious, or an abuse of discretion, the superior court
affirmed, explaining in part as follows:
The Merit Commission’s decision to dismiss the
discipline against Voeltz has substantial support in the
record. While the Sheriff’s Office argues that it conducted two
separate investigations, the record reflects that the Sheriff’s
Office instead conducted one investigation. After the Sheriff’s
Office began its investigation regarding the disposition of
evidence, it uncovered allegations of untruthfulness, and
expanded its investigation to include those allegations. The
record does not support the Sheriff’s Office[‘s] claim that it
instead opened up a new and different investigation.
The Merit Commission did exactly what A.R.S. § 38-
1105(B) permitted it to do: dismiss the discipline after it
determined that the Sheriff’s Office did not make a good faith
effort to complete its investigation within 120 days. Its
exercise of its discretion under the statute was not contrary to
7 Under Rule 10.16 of the Maricopa County Employee Merit System
Rules, the Commission “may adopt the hearing officer’s report in its
entirety, or modify it, or may itself decide the case upon the record, with or
without taking additional evidence.”
8 From August 1, 2014, to April 3, 2015, equals 167 business days.
8
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Decision of the Court
law, arbitrary or capricious, or an abuse of the discretion
afforded to the Merit Commission under the law.
¶18 MCSO timely appealed to this court. We have jurisdiction
pursuant to A.R.S. § 12-913. See Svendsen v. Ariz. Dep’t of Transp., 234 Ariz.
528, 533, ¶ 13 (App. 2014) (construing § 12-913 as allowing an appeal to this
court).
ANALYSIS
¶19 On appeal, we consider the same underlying issue reviewed
by the superior court: whether the Commission’s decision was contrary to
law, arbitrary and capricious, or an abuse of discretion. See A.R.S. § 12-
910(E); Gaveck v. Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436, ¶¶ 11-
12 (App. 2009); Shorey v. Ariz. Corp. Comm’n, 238 Ariz. 253, 257, ¶ 11 (App.
2015) (citations omitted). We view the facts in the light most favorable to
upholding the Commission’s decision. Shorey, 238 Ariz. at 258, ¶ 14. We
will not reweigh the evidence, see Comm. for Justice & Fairness v. Ariz. Sec’y
of State’s Office, 235 Ariz. 347, 351, ¶ 17 (App. 2014), and will affirm if the
Commission’s decision is supported by substantial evidence, see DeGroot v.
Ariz. Racing Comm’n, 141 Ariz. 331, 335-36 (App. 1984). “Substantial
evidence is any relevant evidence from which a reasonable mind might
draw a conclusion.” Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 12 (App. 2003)
(internal quotations and citations omitted); accord In re Estate of Pouser, 193
Ariz. 574, 579, ¶ 13 (1999). “Whether substantial evidence exists is a
question of law for our independent determination.” Gaveck, 222 Ariz. at
436, ¶ 12 (citations omitted). We give deference to the Commission’s
resolution of issues that draw on “the accumulated experience and
expertise of its members,” Croft v. Ariz. State Bd. of Dental Exam’rs, 157 Ariz.
203, 208 (App. 1988) (citation omitted), but we are not bound by the
Commission’s (or the superior court’s) legal conclusions, including those
involving statutory interpretation, see JHass Grp. L.L.C. v. Ariz. Dep’t of Fin.
Insts., 238 Ariz. 377, 383, ¶ 20 (App. 2015); Comm. for Justice & Fairness, 235
Ariz. at 351, ¶ 17; Gaveck, 222 Ariz. at 436, ¶ 12.
I. Did MCSO Complete the “Investigation” Within 120 Business
Days?
A. Did the “Missing-Evidence Investigation” Trigger § 38-
1105(B)?
¶20 MCSO initially argues the 120-business day limitation is
triggered only by an investigation of employee misconduct the employer or
officer reasonably believes could result in “disciplinary action” (i.e.,
9
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dismissal, demotion, or suspension of more than eight hours). We agree
with MCSO that the statutory language supports this initial argument. See
A.R.S. §§ 38-1101(A), (P)(2), -1105(B).
¶21 Next, relying on its initial argument, MCSO argues a Policy
GJ-4 violation could not result in disciplinary action; therefore, the missing-
evidence allegation could not have triggered the time limitation. See A.R.S.
§§ 38-1101(A), (P)(2), -1105(B). But MCSO offers no factual support for this
argument beyond Lopez’ testimony that “[a]ssuming no prior discipline,”
the failure to properly handle evidence “typically” results in a written
reprimand. Indeed, as MCSO’s April 3 letter warned, and April 16
termination letter directed, Voeltz was disciplined—with dismissal—for the
Policy GJ-4 (Evidence Control) violation, separate and independent from
his violation of Policy CP-5 (Truthfulness).
¶22 Finally, MCSO argues the missing-evidence investigation did
not trigger the time limitation because neither Voeltz nor MCSO reasonably
believed the misconduct could result in disciplinary action. However, the
record supports an inference to the contrary. Voeltz asked Whelan about
the “timeframe” when he was questioned on August 27, 2014, suggesting
Voeltz believed he was facing disciplinary action. For its part, MCSO
afforded Voeltz the procedural safeguards due him under Title 38,
suggesting at least Whelan believed Voeltz was facing disciplinary action.
Although MCSO contends the process was required by MCSO policy,9 not
due pursuant to statute, this explanation is belied by Whelan’s response to
Voeltz’ “timeframe” question: “[W]e started beginning of August. . . .
August 4th or August 8th, somewhere around there. So, uh, but it shouldn’t
take . . . four months.” Accordingly, the missing-evidence investigation
triggered the 120-business day limitation period of § 38-1105(B).
B. Did MCSO Conduct a Separate “Untruthfulness
Investigation”?
¶23 Contending there is “ample evidence” showing a separation
of the missing-evidence and untruthfulness investigations, MCSO argues
the Commission erred by subsuming the untruthfulness investigation into
9 MCSO concedes it was conducting an “official investigation” as of
August 4, 2014 (when Whelan obtained I/A #14-0443).
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the missing-evidence investigation for purposes of § 38-1105(B).10 MCSO
further argues that the purportedly separate untruthfulness investigation
was not authorized until November 25, 2014, when Sheridan referred the
matter to Bailey; accordingly, MCSO maintains that November 25, 2014,
was the date that started the running of the 120-business day limitation
period for the untruthfulness investigation.
¶24 In its order sustaining Voeltz’ appeal, the Commission
concluded, inter alia, that (1) MCSO’s official documentation and policies
supported the conclusion that only one internal affairs investigation, I/A
#14-0443, occurred, (2) both alleged violations (Policy GJ-4, Evidence
Control, and Policy CP-5, Untruthfulness) arose out of I/A #14-0443, (3) the
employer had received notice of Voeltz’ inconsistent statements no later
than August 27, and knew by that date it had 120 business days to complete
its investigation, and (4) MCSO “made no eff[or]t to keep the violations
separate or clearly document on its official records that the cases were
separate investigations with different start dates.”
¶25 When the question is debatable and one in which we might
have reached a different conclusion, we may not substitute our judgment
for that of the Commission if it was persuaded by the probative force of the
evidence before it. See Blake v. City of Phoenix, 157 Ariz. 93, 96 (App. 1988).
Accordingly, we generally defer to the Commission’s resolution of an issue.
See Croft, 157 Ariz. at 208.
¶26 In this case, substantial evidence supports the Commission’s
findings, and those findings support the Commission’s conclusions. Of
particular relevance, we note that (1) two of the three statements at issue—
that Voeltz returned files to Pei Wei after he confirmed the case was
closed—related directly to the Pei Wei case, and the third—that he returned
10 MCSO also argues the Commission erroneously counted 120
business days from July 30, 2014 (when Whelan first questioned Voeltz), see
A.R.S. § 38-1101(D)(2), or from August 1, 2014 (when Whelan was
instructed to “pull” an I/A number after briefing Lopez and consulting
Losicco). Assuming without deciding the Commission erred, the
investigation was completed well past 120 days from August 4 (when
Whelan obtained I/A #14-0443), August 12 (when Whelan conducted his
investigation regarding CEU cases in which Voeltz was the case agent and
served Voeltz with notice of the missing-evidence investigation), or August
27 (when Whelan interviewed Voeltz a second time after concluding that
Voeltz’ July 30 statements were not wholly supported by Whelan’s
investigation).
11
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original files as a matter of practice—related indirectly to that case; and (2)
the same investigation number was used as a basis to support both causes
for dismissal. As Bone confirmed, “What I did was I took the case that was
initiated by Sergeant Whelan and reviewed it to identify the issues of
truthfulness that I would be addressing later on.” Viewing the facts in the
light most favorable to upholding the Commission’s decision, see Shorey,
238 Ariz. at 258, ¶ 14, a reasonable person could conclude that MCSO began
investigating an allegation of untruthfulness on or about July 30, 2014 (and
no later than August 27, 2014), and thereafter an untruthfulness
investigation was “furthered” up the chain of command. See Pouser, 193
Ariz. at 579, ¶ 13 (“Substantial evidence is evidence which would permit a
reasonable person to reach the trial court’s result.” (citation omitted)).
Moreover, to the extent there is ambiguity as to when the truthfulness
portion of the investigation began, the burden lies with MCSO, rather than
Voeltz, to demonstrate MCSO began a new investigation rather than
continuing the old investigation. See A.R.S. § 38-1101(J) (“The burden of
proof in an appeal of a disciplinary action by a law enforcement officer or
probation officer shall be on the employer.”). And although MCSO argues
the Commission “improperly conflated two separate investigations,” we
agree with the Commission that, on this record, MCSO made little or no
effort to delineate between the violations or clearly document on its official
records that the cases were separate investigations with different start
dates.
¶27 MCSO focuses on Sheridan’s November 25, 2014 request that
Bailey further investigate the untruthfulness allegation as the operative
date beginning the 120-business day deadline, but its reliance on that date
is not supported by the policies it cites or the record. Granted, pursuant to
MCSO policy, only the Chief Deputy “may make a finding” of
untruthfulness and a “sustained” violation of Policy CP-5 “shall result in
termination of employment.”11 MCSO Policy CP-5, § 1(F). Specifically,
though, Policy CP-5, § 1(E) provides:
All allegations of untruthfulness shall be documented in a
memorandum and forwarded immediately through the chain of
11 Lopez testified that, under MCSO’s zero tolerance policy and
practice, a truthfulness violation always results in a termination of
employment. Nonetheless, on cross-examination, Lopez acknowledged he
was aware of at least one previous instance in which an MCSO
trainee/employee had been determined to have been untruthful, but still
retained his position with MCSO.
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command to the Chief Deputy. Only the Chief Deputy, or his
designee, may make a finding on a truthfulness allegation.
(Emphasis added.) Thus, Policy CP-5 does not support the inference MCSO
advances—i.e., that only the Chief Deputy can authorize the initiation of an
untruthfulness investigation. See A.R.S. § 38-1105(B). “Truth” is defined as
“[a]ccuracy in the recounting of events; conformity with actuality;
factuality.” Black’s Law Dictionary (10th ed. 2014). MCSO offers no
persuasive explanation, nor can we discern one, how untruthfulness could
be ascertained—much less alleged and documented—before an
investigation into the accuracy, actuality, or factuality of the underlying
statements.
II. Did MCSO Make a Good Faith Effort to Complete Its Investigation
Within 120 Business Days?
¶28 According to MCSO, the Commission erred by concluding
MCSO did not provide a good faith reason for exceeding the 120-business
day requirement. MCSO, however, bore the burden to demonstrate its
“good faith effort” before the Commission. See A.R.S. § 38-1101(J); cf.
McCloud v. State, 217 Ariz. 82, 85, 87, ¶¶ 8, 11 (App. 2007) (recognizing that
a limitation period is customarily subject to equitable tolling, but the party
opposing dismissal based on the limitation period bears the burden of
demonstrating entitlement to equitable tolling). Even assuming MCSO
properly preserved the issue of good faith, we cannot say the Commission
erred in concluding that MCSO failed to meet its burden to show it made a
good faith effort to complete the investigation of Voeltz’ misconduct within
120 business days after MCSO received notice of the allegation. MCSO
provided no real “good faith” explanation or cogent argument to the
Commission in support of its position that it exercised good faith in
exceeding the statutory period. Further, MCSO does not argue, and the
record does not support the conclusion, that MCSO ever provided Voeltz
with a written explanation containing the reasons the investigation
continued beyond 120 business days, see A.R.S. § 38-1105(B), or that any of
the statutory exceptions to the necessary good faith effort apply here, see
A.R.S. § 38-1105(B)(1)-(5).
CONCLUSION
¶29 MCSO has not demonstrated that the Commission’s decision
was contrary to law, arbitrary and capricious, or an abuse of discretion, and
substantial evidence exists to support the Commission’s decision.
Accordingly, we affirm the superior court’s judgment affirming the
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Commission’s orders sustaining Voeltz’ appeal and dismissing the
discipline against him.12 We award taxable costs to Voeltz upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
12 Although Voeltz’ discipline is dismissed, “[t]he allegation regarding
any act, omission or other misconduct may be sustained, and [Voeltz’]
record will reflect that the allegation was sustained but no discipline was
administered due to the finding of the . . . [Commission] that [MCSO] did
not make a good faith effort to complete the investigation in one hundred
twenty business days.” A.R.S. § 38-1105(B). Nevertheless, we understand
MCSO’s concern with Voeltz’ apparent untruthfulness. Upon proper
request, prosecutors must disclose to criminal defendants the names of
police officers accused of professional misconduct; the list of such officers
is called a “Brady List.” See generally Brady v. Maryland, 373 U.S. 83, 87-88
(1963).
14