eCases

; see also Pima County v.
Pima County Law Enforcement Merit Sys. Council,

128 Ariz. 62

, 63,

623 P.2d 851

, 853
(App. 1980) (Klein).
¶9            The County Employee Merit System authorizes a county employer, or
“appointing authority,” to dismiss an employee “by written order, stating specifically the
reasons for the action.”6 A.R.S. § 11-356(A). A merit commission may modify or revoke
the decision of an appointing authority “only if its action was arbitrary or taken without
reasonable cause, or the penalty imposed was ‘so disproportionate . . . as to be shocking to
a sense of fairness.’”7 Pima County v. Pima County Merit Sys. Comm’n,

186 Ariz. 379

,
6
The Pinal County Uniform Merit Rules mirror these requirements for terminating an
employee for a disciplinary reason.
7
Similarly, although the Pinal County Uniform Merit Rules do not mention any
“shocking to a sense of fairness” standard, they provide: “If, after the hearing, a majority of
the Commission determines that the appealed action was arbitrary or taken without
reasonable cause, the action shall be revoked or modified. Otherwise the action shall be
affirmed.”
7
381,

923 P.2d 845

, 847 (App. 1996) (Logan), quoting Gottsponer,

.
¶10            An appointing authority’s disciplinary action is “arbitrary” if it is
“‘unreasoning action, without consideration and in disregard of the facts and
circumstances.’” Mathis,

189 Ariz. at 568

, quoting Tucson Pub. Sch.
Dist. No. 1 v. Green,

17 Ariz. App. 91

, 94,

495 P.2d 861

, 864 (1972). Reasonable cause
implies “some substantial shortcoming which renders the continuance of the officer in his
position detrimental to the discipline or efficiency of the service.” Civil Serv. Comm’n v.
Livingston,

22 Ariz. App. 183

, 187,

525 P.2d 949

, 953 (1974). If a commission finds that
“the evidence does not support the charge,” it must revoke the disciplinary order as arbitrary
or lacking reasonable cause. Mathis,

189 Ariz. at 568

.
¶11            Here, although it conducted a full-day evidentiary hearing, the Commission
did not expressly find whether the evidence supported or failed to support the charges
against Serb. Its written “findings of fact” merely describe the testimony of the various
witnesses and state that Serb “allegedly assaulted a restrained inmate by hitting [him] in the
face with his open hand. Serb also allegedly was using rude and insulting language as to put
the inmate in an aggravated state.” But based on uncontroverted evidence adduced at the
hearing and the commissioners’ recorded, post-hearing discussion about the charges, it is
8
clear that Serb’s having committed the acts charged was undisputed.8 In fact, Serb admitted
to having hit the inmate, and the evidence was uncontroverted that Serb subsequently had
asked other officers to let the inmate “up out of the chair and . . . see how bad he is.”
¶12           Thus, because the Commission implicitly “determine[d] the evidence
support[ed] the charge[s],” some form of disciplinary action “not otherwise prohibited” was
warranted.

Id. at 568, 569

944 P.2d at 510, 511

. In its deliberations and decision, the
Commission apparently questioned the permissibility of PCSD’s termination decision and
focused on a portion of PCSD’s Discipline Policy Manual (the manual) that addressed
excessive force. That section provided progressive discipline for first, second, and third
offenses that also “depend[ed] on [the] extent of injury.” The Commission concluded that
the section of the manual “regarding Excessive Force was vague in that it said that it depends
on the extent of the injuries and the minimum discipline action for a [first] Offense ranged
from a Performance Improvement Recommendation to 15 days off.” To the extent that
statement suggests that termination was not permitted, we disagree.
¶13 The very first paragraph of the manual’s pertinent section on which the
Commission relied states: “Although it is the intent of the Pinal County Sheriff’s
Department to use progressive discipline whenever possible, it is not required to do so. The
8
During the Commission’s post-hearing deliberations, the chairman stated: “I don’t
think there is any question among those of us that have listened today that there was
inappropriate behavior, several different inappropriate behaviors. That has been agreed to,
I think, by all parties.”
9
severity of the infraction will determine at which level the disciplinary measures will begin.”
In addition, that section of the manual states that “[t]he acts and/or infractions listed herein
are . . . meant as guidelines” and that “[t]he Sheriff has the discretion to make changes and
alterations to these standards as needed.” Thus, the manual permitted PCSD to apply a
harsher disciplinary measure, including dismissal, for serious infractions.9
¶14 Additionally, Serb was charged with violations of the Pinal County Uniform
Merit Rules and the PCSD General Orders. See n.4, supra. Those violations, which the
Commission failed to address, also would have permitted PCSD to terminate Serb.
¶15 Because the evidence supported the charges against Serb and because dismissal
was “within the range of permissible disciplinary acts,” Gottsponer,

, the Commission could not revoke PCSD’s action entirely and could only
modify PCSD’s order under limited circumstances.10 A merit commission may modify the
discipline imposed if it determines “the penalty imposed was ‘so disproportionate . . . as to
be shocking to a sense of fairness.’” Logan,

, quoting
9
The two witnesses on whose testimony Serb primarily relies, Sergeant Stokes and
Lieutenant Lairmore, acknowledged that Serb’s conduct was a “serious infraction” and
violated other rules. Although the Commission’s chairman characterized Serb’s conduct as
“accidental and a lapse of judgment,” the Commission did not find or suggest that Serb’s
“inappropriate behavior” was minor or insignificant.
10
The Commission members exhibited some confusion after the hearing on whether
they had authority to modify the discipline and apparently concluded they could take no
action other than upholding or rejecting PCSD’s termination decision. The member who
moved to “reject dismissal as proper punishment,” however, also remarked that
“[p]unishment is called for.”
10
Gottsponer,

; see also Mathis,

189 Ariz. at 568-69

944 P.2d at 510-11

. While noting the difficulty of applying that rather subjective standard,
Logan,

, this court has outlined several factors to consider:
“[I]t may be ventured that a result is shocking to one’s sense of
fairness if the sanction imposed is so grave in its impact on the
individual subjected to it that it is disproportionate to the
misconduct, incompetence, failure or turpitude of the
individual, or to the harm or risk of harm to the agency or
institution, or to the public generally visited or threatened by
the derelictions of the individuals. Additional factors would be
the prospect of deterrence of the individual or of others in like
situations, and therefore a reasonable prospect of recurrence of
derelictions by the individual or persons similarly employed.
There is also the element that the sanctions reflect the standards
of society to be applied to the offense involved.
....
Paramount too, in cases of sanctions for agencies like the police,
is the principle that it is the agency and not the courts which,
before the public, must justify the integrity and efficiency of
their operations.”

Id.,

 quoting Pell v. Bd. of Educ. of Union Free Sch. Dist. No. 1,

313 N.E.2d 321

, 327-28
(N.Y. 1974). Finally, as we noted in Logan,

id.,

 the Gottsponer court also focused on
whether the employee had been “treated differently from other, similarly situated
employees.”

150 Ariz. at 373

723 P.2d at 722

.
¶16           In this case, termination undoubtedly affected Serb negatively, particularly
financially. But, we cannot say that impact is “disproportionate to the sustained charge.”
Logan,

. As the Commission noted, Serb’s actions in
11
striking a fully restrained inmate and then profanely suggesting that other officers allow him
to fight the inmate were completely inappropriate for any detention officer, particularly one
in a supervisory position as was Serb. In addition, the Commission did not find, nor can we
say, that the impact on Serb is disproportionate to the harm or risk of harm to PCSD.
Rather, the record supports the county’s assertion that “[t]here was a legitimate concern that
Serb’s conduct would bring discredit to the department.”
¶17           Likewise, although we cannot speculate on the likelihood that Serb would
commit a similar act in the future, the county’s position that “[i]t is crucial that the PCSD
be able to deter such behavior,” is not unreasonable. PCSD could reasonably conclude that
deterring other officers from assaulting fully restrained inmates in response to mere verbal
provocation is critical, and we cannot find it “shocking” for PCSD to terminate an offending
officer as a means of accomplishing that goal. Nor does PCSD’s choice of sanction for
Serb’s behavior clearly fall outside the “standards of society.” Logan,

. In fact, Serb entered a diversion program to avoid being charged with
aggravated assault as a result of the incident. We cannot say, therefore, that discharging Serb
was an excessive or arbitrary response to what society clearly views as a serious offense.
¶18           Finally, we must consider PCSD’s treatment of similarly situated employees.
The Commission heard testimony that another officer had struck an inmate in handcuffs in
1997. The witness testified that he “believe[d]” that the officer in that prior incident had
merely been demoted. But, the record does not suggest that the inmate in that incident had
12
been fully restrained or that the other officer had continued to curse at and threaten the
inmate after having hit him. No evidence was presented that the other officer had reported
to the same supervisor(s) as did Serb or that the same standards of behavior or discipline had
been in effect at the time. Thus, the record does not establish, and the Commission did not
find, that Serb was “similarly situated” to that officer; nor does Serb so argue. Gottsponer,

150 Ariz. at 372-73

723 P.2d at 721-22

; cf. Mitchell v. Toledo Hosp.,

964 F.2d 577

, 583
(6th Cir. 1992) (in federal employment discrimination case, “similarly situated” means
individuals with whom the plaintiff compares “must have dealt with the same supervisor,
have been subject to the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it”).
¶19           In the end, as we pointed out in Logan, PCSD “alone ‘must justify to the
public the integrity and efficiency of its operations.’”

923 P.2d at 848

,
quoting Bishop v. Law Enforcement Merit Sys. Council,

119 Ariz. 417

, 421,

581 P.2d 262

, 266 (App. 1978). The Commission stated that PCSD “had not sustained its burden to
prove the punishment was reasonable,” but PCSD bore no burden of proving the
reasonableness of its actions. Rather, the Commission’s revocation of PCSD’s order of
dismissal and reinstatement of Serb hinged on his having proven PCSD’s disciplinary action
was arbitrary or taken without reasonable cause, findings neither made by the Commission
nor supported by the record. And, even had the Commission decided to modify the
13
termination, it would have been required to first determine that PCSD’s action was
“shocking to a sense of fairness.” Gottsponer,

.
¶20           Although a majority of the Commission members found it “shocking to their
sense of fairness that Serb be discharged using the Sheriff’s Discipline Policy Manual as a
basis,” the Commission cited no evidence to support that finding, and we find none.
Similarly, the Commission expressed its “belie[f] that the Sheriff’s gauge for punishment was
arbitrary and capricious,” but again, cited no evidence to support any finding that PCSD’s
termination decision constituted “‘unreasoning action, without consideration and in
disregard of the facts and circumstances.’” Mathis,

189 Ariz. at 568

,
quoting Green,

17 Ariz. App. at 94

495 P.2d at 864

; see also Ariz. Dep’t of Corrections
v. State Personnel Bd.,

202 Ariz. 598

, ¶ 10,

48 P.3d 1208

, 1210 (App. 2002) (“A
disciplinary action is not arbitrary if it falls within the range of permissible discipline.”).
¶21           In the absence of any actual findings of fact by the Commission, and finding
no reasoned basis or substantial factual support for its ultimate conclusions, we conclude
the Commission erred in revoking Serb’s termination.11 See Logan,

, 923
11
In support of the Commission’s decision, Serb variously asserts he was a “valued
and respected employee who consistently performed his job”; the inmate “was not
physically hurt by the single slap” and filed no grievance or legal action against Serb; and
Serb had merely displayed a “lapse in judgment.” Even had the Commission cited or relied
on such “mitigating facts,” however, they do not establish arbitrariness in, or lack of
reasonable cause for, PCSD’s order of dismissal; nor do they render that sanction “so
disproportionate under the circumstances to shock one’s sense of fairness.” Logan,

923 P.2d at 848

 (Commission’s decision to reinstate discharged detention
officers not justified despite evidence that officers had been provoked by inmate, lacked
14
P.2d at 848 (Commission erred in reinstating three discharged employees when record
contradicted “Commission’s finding that the Department’s sanction against [employees] was
arbitrarily imposed” and did not support a finding that dismissal “was shockingly
disproportionate to the offense”); Gottsponer,

 (“Although
the Commission’s order states the sanction against Gottsponer was arbitrarily imposed, we
find no evidence to support such a finding.”). “[I]t was not the Commission’s prerogative,
nor is it the courts’, to merely substitute its opinion for that of the Department.” Logan,

923 P.2d at 848

.
DISPOSITION
¶22           The superior court’s judgment affirming the Commission’s decision is reversed,
and the case is remanded for entry of an order reversing the Commission’s decision and
reinstating the disciplinary action imposed by PCSD.12 As a necessary corollary to this
result, the attorney fee and back pay awards in favor of Serb also are reversed. See
Bentivegna v. Powers Steel & Wire Prods., Inc.,

206 Ariz. 581

, ¶ 26,

81 P.3d 1040

, 1047
supervision, and had “high performance ratings”); Gottsponer,