LaWALL v. PIMA COUNTY MERIT COMMISSION And SCAMMON

FILED BY CLERK
IN THE COURT OF APPEALS MAR 15 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
BARBARA LaWALL, Pima County )
Attorney, )
)
Plaintiff/Appellee, )
) 2 CA-CV 2005-0140
v. ) DEPARTMENT B
)
PIMA COUNTY MERIT SYSTEM ) OPINION
COMMISSION; GEORGIA )
BROUSSEAU, Chairman; MIKE )
HELLON, RICHARD HUFF, MANUEL )
MEDINA, and MIKE MINCHEFF, in )
their official capacities, )
)
Defendants/Appellants, )
)
and )
)
JOANN SCAMMON, a single woman, )
)
Real Party in Interest/Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20053047
Honorable Carmine Cornelio, Judge
REVERSED AND REMANDED
Barbara LaWall, Pima County Attorney
By Leslie K. Lynch Tucson
Attorneys for Plaintiff/Appellee
Corey & Kime
By Barry M. Corey and Jason E. Smith Tucson
Attorneys for Defendants/Appellants
Joann Scammon Tucson
In Propria Persona
B R A M M E R, Judge.
¶1 The Pima County Merit System Commission appeals from a decision of the
superior court in a special action filed by Barbara LaWall, the Pima County Attorney. The
trial court found the Commission lacked jurisdiction to hear a claim of coerced resignation
by an employee of the county attorney’s office (PCAO), real party in interest Joann
Scammon. We reverse.
Factual and Procedural Background
¶2 Scammon resigned from her position with the PCAO effective June 1, 2004.
The PCAO had previously mailed Scammon a notice of intent to terminate her, but she
apparently had not read the notice before she submitted her resignation.1 Scammon filed an
1
Pima County Merit System Rule 12 outlines a three-step procedure for the county to
terminate an employee. The employee is first given a notice of intent to terminate, after
which there must be a pre-action meeting between the supervisor and the employee, followed
by an order of termination, which the employee may appeal to the Commission. See Merit
Sys. R. 12, available at http://www.pima.gov/hr/pdf/MeritRules.pdf.
2
administrative appeal with the Commission on June 4, alleging her resignation as a victim
witness advocate for the PCAO had been coerced and she had suffered a “constructive
termination and unlawful discrimination.” The PCAO filed a motion to dismiss the appeal,
asserting a lack of subject matter jurisdiction. The Commission denied the motion, but
continued the appeal pending the filing of the PCAO’s special action in superior court.
¶3 The special action complaint alleged the Commission had exceeded its subject
matter jurisdiction in denying the motion to dismiss the appeal. Following oral argument,
the trial court ruled the Commission “lacks authority to hear Ms. Scammon’s Appeal.” The
trial court noted “[i]t is undisputed that Ms. Scammon was not terminated pursuant to the
three-step procedure set forth in the Pima County Merit System Rules, and that the Pima
County Attorney’s Office never issued a written Notice of Termination.” The trial court
determined the enabling statutes for the Commission, A.R.S. §§ 11-351 through 11-356, must
be construed narrowly and the Commission may only hear an employee’s appeal following
a written order terminating that employee. This appeal followed.
Discussion
¶4 We review a trial court’s interpretation of rules and statutes de novo. Pima
County v. Pima County Law Enforcement Merit Sys. Council (Harvey), 211 Ariz. 224, ¶ 13,
119 P.3d 1027, 1030 (2005). The statutes at issue are A.R.S. §§ 11-351 through 11-356,
which govern county employee merit systems. These statutes permit a county, by resolution
of its board of supervisors, to “adopt a limited county employee merit system for any and all
3
county . . . employees.” § 11-352(A). Section 11-353 mandates that the board, after
adopting such a resolution, appoint a merit system commission. Section 11-354 defines the
powers and duties of a commission as those “necessary to carry out the provisions of this
article.” The procedure for employee appeals is set forth in § 11-356, which provides:
A. Any officer or employee in the classified civil
service may be dismissed, suspended or reduced in rank or
compensation by the appointing authority after appointment or
promotion is complete only by written order, stating specifically
the reasons for the action. The order shall be filed with the clerk
of the board of supervisors and a copy thereof shall be furnished
to the person to be dismissed, suspended or reduced.
B. The officer or employee may within ten days after
presentation to him of the order, appeal from the order through
the clerk of the commission. Upon the filing of the appeal, the
clerk shall forthwith transmit the order and appeal to the
commission for hearing.
C. Within twenty days from the filing of the appeal, the
commission shall commence the hearing and either affirm,
modify or revoke the order. The appellant may appear
personally, produce evidence, have counsel and, if requested by
the appellant, a public hearing.
D. The findings and decision of the commission shall be
final, and shall be subject to administrative review as provided
in title 12, chapter 7, article 6.
The Pima County Merit System Rules (MSR) state: “For the purposes of employee appeals
pursuant to these Rules, a resignation in lieu of dismissal shall be deemed to be a dismissal.”
MSR 1.29, available at http://www.pima.gov/hr/pdf/MeritRules.pdf. Because MSR 14.1
permits an employee to appeal a dismissal to the Commission, it therefore appears the MSR
4
allow an employee to appeal a “resignation in lieu of dismissal.” The Commission argued
to the trial court that a coerced resignation or constructive discharge is a “resignation in lieu
of dismissal,” which permits Scammon to appeal to the Commission if it finds her resignation
was involuntary.2
¶5 The Commission contends a “personnel action form,” the official record of
Scammon’s resignation, can constitute a “written order” meeting the requirements of
§ 11-356(A).3 However, the Commission did not make this argument in the trial court and,
therefore, has waived it. See Cohn v. Indus. Comm’n, 178 Ariz. 395, 398, 874 P.2d 315, 318
(1994). Even if the argument were not waived, the trial court made a factual finding that
there was no written order of termination, and no personnel action form is in the record on
appeal. We presume the record supports the trial court’s finding. See Baker v. Baker, 183
Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
2
As the trial court noted, the Commission believes that its jurisdiction hinges on the
factual determination of whether Scammon’s dismissal was coerced and that it should be
permitted to decide this factual issue to determine if it can properly exercise jurisdiction. The
trial court pointed out: “The Commission has not clearly stated . . . what will occur if it
makes a finding of coercion” and hears the appeal. In its opening brief, the Commission
claims the PCAO would have to “substantiate a basis for dismissal” at a hearing before the
Commission if it found Scammon’s resignation had been coerced.
3
A personnel action form differs from a notice of intent to terminate. The latter is the
first step in the MSR termination procedure, while a personnel action form is a record of a
completed action, in this case, the PCAO’s acceptance of Scammon’s resignation. The
Commission has attached a notice of intent to terminate as Appendix 3 to its opening brief
and what purports to be a personnel action form relating to Scammon as Appendix 5.
Because these items are not part of the record on appeal, however, we do not consider them.
See Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993); Ariz. R. Civ. App.
P. 11(a), 17B A.R.S.
5
¶6 The Commission argues the county merit commission enabling statutes are
remedial in nature and should be “liberally construed to achieve the special purpose of the
statute[s].” Remedial statutes “are designed to redress existing grievances and introduce
regulations conducive to the public good.” Sellinger v. Freeway Mobile Home Sales, Inc.,
110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974). “[W]e construe remedial statutes liberally
to achieve the special purpose underlying the legislation.” Special Fund Div. v. Indus.
Comm’n (Burrell), 191 Ariz. 149, ¶ 9, 953 P.2d 541, 544 (1998). But, we need not decide
if the statutes are remedial in nature because A.R.S. § 1-211(B) requires “[s]tatutes [to] be
liberally construed to effect their objects and to promote justice.” And “the primary rule of
statutory construction is to find and give effect to legislative intent.” Mail Boxes, Etc., U.S.A.
v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995); see also Holland v.
Williams Mountain Coal Co., 256 F.3d 819, 823 (D.C. Cir. 2001) (because all statutes seek
to remedy some problem, remedial distinction is meaningless). Although we will construe
the statutes in question liberally, Harvey dictates that an agency such as the Commission has
no inherent powers. “Because administrative agencies derive their powers from their
enabling legislation, their authority cannot exceed that granted by the legislature.” Harvey,
211 Ariz. 224, ¶ 13, 119 P.3d at 1030.
¶7 The PCAO insists the language of § 11-356 unambiguously limits the
jurisdiction of the county employee merit system to written orders because § 11-356(A)
allows a dismissal “only by written order” and § 11-356(B) only permits an appeal of such
6
order. The PCAO argues, therefore, that because Scammon resigned, the Commission lacks
jurisdiction, even if that resignation was coerced or was a constructive discharge. See Mail
Boxes, Etc., 181 Ariz. at 121, 888 P.2d at 779 (if language of statute is unambiguous, it is
conclusive, absent clearly expressed legislative intent to contrary); Harvey, 211 Ariz. 224,
¶ 13, 119 P.3d at 1030 (administrative agency’s power cannot exceed that granted by
legislature). We disagree. The language in question is not a jurisdictional requirement.
Instead, it protects an employee by dictating the termination procedure and requiring
documentation of the reasons for a discharge. It does not limit the jurisdiction of the county
merit system commission to cases involving written orders. That jurisdiction is granted in
§ 11-352, which permits counties to create a merit system commission, and in § 11-354,
which grants that commission the powers necessary to accomplish the purposes of the merit
system.
¶8 Administrative agencies “have no common law or inherent powers.” Kendall
v. Malcolm, 98 Ariz. 329, 334, 404 P.2d 414, 417 (1965). This does not mean, however, that
those powers must be, as the PCAO claims, “specifically granted by statute.” See Oracle
Sch. Dist. No. 2 v. Mammoth High Sch. Dist. No. 88, 130 Ariz. 41, 43, 633 P.2d 450, 453
(App. 1981) (“A board or commission . . . has only limited powers and it can exercise no
powers which are not expressly or impliedly granted.”) (emphasis added); see also Long v.
Napolitano, 203 Ariz. 247, ¶ 44, 53 P.3d 172, 185 (App. 2002) (“[W]hat a statute necessarily
implies is as much a part of the statute as what is explicitly stated.”). That an employer under
7
§ 11-356(A) may only dismiss an employee by a written order necessarily implies the merit
system commission has authority to ensure that procedure is followed.
¶9 Moreover, to read the “written order” language as a jurisdictional requirement
would be directly at odds with the clearly expressed legislative intent of the county merit
system statutes. The purpose of the system is stated as follows: “The goals and functions
of county employee merit systems are designed to protect employees.” 1981 Ariz. Sess.
Laws, ch. 273, § 1 (emphasis added); see also Wolkin v. Civil Service Comm’n, 21 Ariz. App.
341, 345, 519 P.2d 194, 198 (1974) (purpose of civil service commission is “to provide for
the ‘. . . security of the faithful employee by giving him permanence of employment . . . and
to free such employee from the fear of political and personal prejudicial reprisal’”), quoting
15 Am. Jur. 2d Civil Service § 1 (1964). We fail to see how allowing an employer to avoid
county merit system commission review by coercing an employee’s resignation would serve
the stated legislative purpose of protecting employees.
¶10 Further, when the legislature enacted the county merit system statutes in 1969,
the legislature expressed its intent that the merit system be “adaptable to [the county’s] size
and type.” 1969 Ariz. Sess. Laws, ch. 117, § 1. The legislature also granted county merit
system commissions powers “necessary to carry out the provisions of this article.” § 11-354.
This intended adaptability and grant of authority would be superfluous if the county merit
system commission were limited to reviewing written orders of termination with virtually no
8
other powers or duties.4 Moreover, we believe the legislature implicitly expressed a general
intent to grant a commission jurisdiction to address all matters related to dismissals,
suspensions, or reductions in rank by requiring that all such events be executed by written
order and by giving a commission authority to hear appeals from such orders. See § 11-356.
Thus, we deduce the legislature did not intend to limit a county merit system commission’s
review to terminations by written orders.
¶11 Our supreme court’s decision in Burrell lends support to this conclusion. The
statute at issue in Burrell was A.R.S. § 23-1065(C), a component of Arizona’s workers’
compensation act. 191 Ariz. 149, ¶ 9, 953 P.2d at 545. At that time, § 23-1065(C) required
an employer seeking contribution from the Special Fund Division to produce written records
demonstrating its awareness of an employee’s pre-existing disability. 191 Ariz. 149, ¶ 10,
953 P.2d at 545. The court found that requirement was “‘merely evidentiary’” and refused
to construe it in a way that would defeat the purpose of the statute, “to promote the hiring of
disabled or handicapped workers.” Id., quoting Special Fund Div. v. Indus. Comm’n, 189
Ariz. 162, 165, 939 P.2d 795, 798 (App. 1997) (emphasis deleted).
4
We note that § 11-355 seems to grant a county merit system commission the power
to establish qualifications and standards for county positions. The section provides: “The
minimum qualifications or standards prescribed for any class or grade of employment shall
not be less than those prescribed by law for the class or grade of county officers and
employees.” We do not see, however, how a general intent of adaptability and grant of
authority could refer solely to the power to establish qualifications and classifications.
9
¶12 Admittedly, Burrell is distinguishable from the present case. A writing existed
in Burrell that made it clear the employer had been aware the employee suffered from a
disability, but the writing did not state the nature of the disability. Id. ¶ 2. That the employer
had been aware of the nature of the disability was proved by testimony. Id. ¶ 3. Here, in
contrast, there is no written order at all. However, we find the underlying reasoning of
Burrell compelling. To construe the written order requirement as jurisdictional would
contravene the purpose of the county merit system commission statutes. As our supreme
court did in Burrell, “[w]e therefore interpret the statute in the manner that best carries out
the legislative purpose.” Id. ¶ 10.
¶13 Ross v. Arizona State Personnel Board, 185 Ariz. 430, 916 P.2d 1146 (App.
1995), is also consistent with our conclusion. Ross, a state employee, “[i]n a stressful
moment at work, . . . told her superiors, ‘I give up. I quit.’” Id. at 431, 916 P.2d at 1147.
Ross maintained she had not intended the statement as a resignation, but instead, as a
manifestation of her intent to cease working on a particular project. Id. at 431-32, 916 P.2d
at 1147-48. Her employer, the Arizona Department of Transportation, interpreted her
statement as a resignation and “told her she could not return to work because her resignation
had been accepted.” Id. at 432, 916 P.2d at 1148. Ross appealed what she called her
“dismissal,” but the state personnel board declined to hear her appeal, claiming it lacked
jurisdiction. Id.
10
¶14 The state personnel board’s interpretation of its own rules only permitted an
appeal from a written “disciplinary action.” Id. at 433, 916 P.2d at 1149. The controlling
statute stated: “The personnel board shall hear and review appeals as provided in this article
relating to dismissal from state service, suspension for more than forty working hours or
demotion resulting from disciplinary action as defined in the personnel rules.” The term
“disciplinary action” was not defined in the rules. Id. at 433, 916 P.2d at 1149. The board
contended the term was defined by the procedure its rules mandated, that is, an employer
initiates a disciplinary action in a writing detailing the charges against the employee. Id.
Therefore, the board argued, it lacked jurisdiction to hear the appeal because there was no
such writing. Id. However, the court ruled: “We cannot agree that an employee’s right to
appeal to the Board is conditioned on the employer’s compliance with the personnel rules.”
Id. The court held that, before the board could determine whether it had jurisdiction, it must
first determine if there had been a “dismissal.” Id.
¶15 Ross is not directly on point. The enabling statutes for the state personnel
board give it a broader range of powers and duties than the statutes at issue here give the
Commission. Moreover, the legislature did not condition the state personnel board’s
jurisdiction on the existence of a written order, but only on the existence of a disciplinary
action. Instead, it was the board’s rules that required a written disciplinary action. In
contrast, the written order language central to this case is contained in § 11-356. We note,
however, that an administrative rule has the same effect and force as a statute. See Gibbons
11
v. Ariz. Corp. Comm’n, 95 Ariz. 343, 347, 390 P.2d 582, 585 (1964). Further, we agree with
Ross’s guiding principle: an employee’s right to administrative review should not be
eviscerated by the employer’s failure to follow the statutory procedure. Nothing in the
statutes suggests the legislature contemplated or desired such an outcome.
¶16 The Commission also cites cases from other jurisdictions addressing similar
language in merit or civil service commission statutes. In Haberer v. Woodbury County, 560
N.W.2d 571, 574 (Iowa 1997), the Iowa Supreme Court found a civil service commission
could exercise jurisdiction over a constructive discharge claim. The controlling statute, Iowa
Code Ann. § 341A.12, permitted an employee’s removal “only upon written accusation.”
The court found the civil service commission had jurisdiction despite the lack of a written
accusation because a constructive discharge constitutes a “removal” “attributable to the
actions of an employer.” 560 N.W.2d at 574.
¶17 The Wisconsin Supreme Court reached a similar conclusion in Watkins v.
Milwaukee County Civil Service Commission, 276 N.W.2d 775 (Wis. 1979). The governing
statute required the employer to make charges in writing, but the court found the civil service
commission had jurisdiction to hear a claim of coerced resignation. Id. at 780. The court
relied on the purpose of the civil service commission, to give employees “security of tenure
and impartial evaluation,” and noted coerced resignations “pose[] serious possibilities of
abuse.” Id. at 779.
12
¶18 The Washington Court of Appeals construed a merit commission statutory
scheme similar to Arizona’s in Micone v. Town of Steilacoom Civil Service Commission, 722
P.2d 1369 (Wash. Ct. App. 1986). The court sanctioned a civil service commission’s
conducting a jurisdictional hearing on an allegation of coerced resignation. Id. at 1371. The
statute in question permitted an employee to be dismissed “only upon written accusation.”
Id. The court found a coerced or involuntary resignation was “equivalent to a discharge” and
would “not comply with the procedural requirement[] [of a written accusation].”
Accordingly, the court held a coerced or voluntary resignation fell within the merit
commission’s jurisdiction. Id.
¶19 We find instructive the cases the Commission cites. Each jurisdiction has
treated a written order or accusation requirement as a procedural burden on the employer, not
a jurisdictional limit on the merit or civil service commission. And the court in Micone
authorized the commission to hear an appeal when an employer failed to comply with its
procedural burden rather than limiting the commission’s ability to proceed. The PCAO cites
no cases, and we have found none, in which a court has ruled that “written order” or “written
accusation” language limits the jurisdiction of a merit or civil service commission.
¶20 We find the “written order” language of § 11-356 to be a procedural
requirement that an employer, here the PCAO, must follow. It is not a jurisdictional limit on
the county merit system commission. To hold otherwise would contradict the legislature’s
13
express intent to protect employees from improper dismissals. Accordingly, we reverse the
trial court’s ruling and remand the case for further proceedings consistent with this decision.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
PETER J. ECKERSTROM, Presiding Judge
JOSEPH W. HOWARD, Judge
14