                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                   BENNETT LEWIS, Plaintiff/Appellant,

                                     v.

  ARIZONA STATE PERSONNEL BOARD; MARK ZISKA; JOSEPH
SMITH; MARK STANTON; JOSEPH BEERS; ARIZONA DEPARTMENT
    OF CORRECTIONS; CHARLES RYAN, Defendants/Appellees.

                           No. 1 CA-CV 15-0248
                            FILED 7-7-2016


           Appeal from the Superior Court in Maricopa County
                        No. LC2014-000282-001
               The Honorable Crane McClennen, Judge

                                AFFIRMED


                                 COUNSEL

Yen Pilch & Landeen, P.C., Phoenix
By Neil Landeen, Michael Pang
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Robert J. Sokol
Counsel for Defendants/Appellees Arizona Department of Corrections

Jackson Lewis, P.C., Phoenix
By Jeffrey A. Bernick
Counsel for Defendants/Appellees Arizona State Personnel Board
                   LEWIS v. PERSONNEL BOARD et al.
                          Opinion of the Court



                                 OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.


H O W E, Judge:

¶1            Bennett Lewis appeals the order of the Arizona Department
of Corrections (“the Department”) dismissing him from his position and
rejecting the recommendation of the Arizona State Personnel Board (“the
Board”) to adopt the hearing officer’s recommendation to overturn the
dismissal. Lewis argues that the Department’s order is contrary to law, not
supported by substantial evidence, arbitrary and capricious, and based on
a violation of federal and state constitutional provisions. But because the
Department’s order was legally sufficient and supported by substantial
evidence, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            The Department employed Lewis as a community corrections
and parole officer. His duties included supervising released offenders in the
community. According to the Department Order Manual and Employee
Handbook, Lewis was expected to conduct himself in a respectful,
professional, and ethical manner at all times and to refrain from behavior
that would discredit or embarrass the Department or the State of Arizona.

¶3             An offender who is released is required to report to the parole
office by 3:00 p.m. that day. If the offender does not arrive by that time, the
Department’s office supervisor has the discretion to issue an arrest warrant.
On October 17, 2013, the Department’s transport unit released an
offender—who suffered from mental health problems and needed close
supervision—at a mall at 2:30 p.m. Because the offender did not have a ride
to the parole office, his visually impaired mother and mentally impaired
sister took a bus to meet him at the mall. The offender called the parole
office and spoke to Lewis, but he and his family did not arrive at the office
until 4:30 p.m.

¶4            When the offender and his family arrived at the parole office,
they were escorted into Lewis’ supervisor’s office. Lewis came in and told
the offender that he was supposed to have arrived by 3:00 p.m. and because



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                          Opinion of the Court

he did not, the Department would issue a warrant for his arrest. The
offender explained to the supervisor that the transport unit dropped him
off late and that he arrived at the office as soon as he could. The supervisor
found the offender’s explanation reasonable.

¶5           Lewis, however, repeatedly threatened to send the offender
back to prison, agitating the offender. The offender’s mother and sister
became concerned, repeatedly saying, “Oh, no, no, no. Please don’t send
him back.” The supervisor reassured the offender’s family that he was the
supervisor and that he was not going to send the offender back to prison.
As a result of Lewis’ threats, the supervisor had to direct the offender’s
attention away from Lewis and towards him on several occasions,
reassuring the offender that he would not be sent back to prison.

¶6            The supervisor asked the offender where he wanted to live
during his parole. The offender said he wanted to live with his mother, and
his mother told the supervisor that she was willing to have him live with
her. Although the Department had previously rejected the offender’s
request to live with his mother, the offender’s mother had moved after that
decision and her new housing allowed her son to live with her. Using his
discretion, the supervisor agreed to let the offender live with his mother
because he concluded it “was a better opportunity for that offender.”

¶7            Lewis told the supervisor that he disagreed and that the
offender should be sent to a half-way house. The supervisor nonetheless
instructed Lewis to prepare the offender to stay with his mother for the
evening and to tell him to report to the parole office in the morning, and
Lewis refused to comply. The supervisor instructed Lewis three times to do
as he was told; Lewis refused each time. Moreover, Lewis told the offender
that he would go where the Department told him to go and that he should
“ignore what the supervisor [was] saying.” When the supervisor told Lewis
to leave, Lewis said, “You’re making bad decisions” and “You don’t know
what you’re doing.” The supervisor again told Lewis to leave, but he
refused. After several more orders to leave, Lewis left. After the supervisor
finished the intake process, he walked by Lewis’ cubicle and Lewis said,
without prompting, “I suppose you’re going to write me up. If you do,
make it good.”

¶8            On November 18, 2013, Lewis received an 80-hour suspension
for a separate incident of discourteous treatment of the public. He filed a
grievance challenging the suspension on December 23. That same day, the
community corrections manager issued Lewis a notice of charges for the
October 17 incident. The manager stated in the notice that Lewis’ actions


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                          Opinion of the Court

constituted incompetence by failing to perform required duties; neglect of
duty by disregarding orders or directives of a supervisor; and discourteous
treatment of the public by conducting himself in an offensive and
discourteous manner.

¶9            The manager identified the Department Order Manual
sections Lewis allegedly violated, resulting in two charges. Charge 1 was
that Lewis “engag[ed] in [a] confrontational dialogue with the offender,”
threatened the offender and increased his level of agitation, and
disregarded the offender’s mother and sister’s explanation for the
offender’s late arrival. Charge 2 was that Lewis refused to take direction
from his supervisor and became argumentative with the supervisor in the
presence of the offender and his family. Charge 2 also stated that, although
Lewis’ supervisor redirected him three times, Lewis failed to comply and
instead demonstrated insubordination and unprofessional behavior
toward his supervisor.

¶10            The manager advised Lewis that she was considering a range
of disciplinary actions, including dismissal. She also stated that in issuing
the notice, she considered the November 18 suspension, four other prior
suspensions, and a letter of reprimand. Lewis responded in writing that he
was “very remorseful and sorry that [his supervisor] mistook [his] actions
as rude and unprofessional” and that his “intent [was] to assist him in the
staffing of an offender.”

¶11           In January 2014, the manager dismissed Lewis on the grounds
of incompetence, neglect of duty, and discourteous treatment of the public
as a result of the October 17 incident. The notice of discharge stated that
Lewis’ dismissal was based on the two charges and consideration of the
other disciplinary actions and the November 18 suspension. The
Department dismissed Lewis’ grievance for the November 18 suspension
after he was terminated. Lewis appealed his termination to the Board.

¶12            After an appeals hearing, the hearing officer concluded that
the Department proved the allegations in charge 2, but not charge 1. The
hearing officer also concluded that Lewis was not afforded all his due
process rights because his dismissal was based in part on the November 18
suspension, but his grievance of that suspension had been disallowed by
his subsequent dismissal. The hearing officer further concluded that
because Lewis’ due process rights were violated and because the
Department only proved one of two charges, no “just cause” existed, as
statutorily required, for dismissing Lewis, and the Department’s action was
arbitrary, capricious, or without reasonable cause and an abuse of


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                          Opinion of the Court

discretion. The hearing officer therefore recommended that Lewis’ appeal
be upheld and that the dismissal be overturned. After reviewing the
hearing officer’s recommendation, the Board adopted a resolution that “just
cause” did not exist to impose disciplinary action and recommended that
Lewis be reinstated to his former position.

¶13             The Department’s Director subsequently rejected the Board’s
recommendation as arbitrary and capricious and without reasonable
justification. In explaining his decision, the Director stated that the Board’s
recommendation was “contrary to the evidence presented at the [appeals]
hearing and contrary to the Findings of Fact adopted by the Board” and that
the Board’s factual findings and conclusions were “not supported by the
evidence presented at the hearing.” The Director also explained that the
Board’s order violated A.R.S. § 38–11031, which, among other things,
defines the “just cause” required to subject a law enforcement officer to
disciplinary action, and A.R.S. § 41–783(C), which requires the Board in an
appeal from a disciplinary action to determine whether the Department has
met its burden of proof to impose discipline. Lewis appealed the
Department’s decision to the superior court, and the court affirmed. Lewis
timely appealed the superior court’s order.

                               DISCUSSION

¶14            Lewis argues that the Department’s order is contrary to law,
not supported by substantial evidence, arbitrary and capricious, and based
on a violation of the federal and state constitutions. When reviewing an
administrative decision, the superior court may reverse the decision if the
court finds it is not supported by substantial evidence or is contrary to law,
arbitrary or capricious, or an abuse of discretion. A.R.S. § 12–910(E). “The
court does not conduct a trial de novo, act as the trier of fact, nor substitute
its view of the evidence for that of the agency.” Siler v. Ariz. Dep’t of Real
Estate, 193 Ariz. 374, 378 ¶ 13, 972 P.2d 1010, 1014 (App. 1998).

¶15             We review the superior court’s ruling “to determine whether
the record contains evidence to support the judgment, and in doing so, we
reach the underlying issue of whether the administrative action was illegal,
arbitrary, capricious or involved an abuse of discretion.” Arizona Dep’t of
Corr. v. State Pers. Bd., 202 Ariz. 598, 600 ¶ 8, 48 P.3d 1208, 1210 (App. 2002)


1       The Legislature has amended the relevant statutes since Lewis
initiated his appeal, but because no material changes were made, we cite
the current version of the statutes.



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                          Opinion of the Court

(citation omitted). “Neither this court nor the superior court may substitute
its judgment for that of the agency on factual questions or matters of agency
expertise, but we apply our independent judgment . . . to questions of law,
including questions of statutory interpretation and constitutional claims.”
Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430 ¶ 13, 153 P.3d 1055, 1059
(App. 2007). Additionally, we view the evidence in the light most favorable
to upholding the Department’s decision and will affirm if any reasonable
interpretation of the record supports the decision. See Baca v. Ariz. Dep’t of
Econ. Sec., 191 Ariz. 43, 46, 951 P.2d 1235, 1238 (App. 1997). Because the
Department’s order was legally sufficient and supported by substantial
evidence, we affirm the superior court’s order affirming the Department’s
order dismissing Lewis.

              1. Contrary to Law

¶16            Lewis first argues that the Department’s order is contrary to
law because it did not list reasons for rejecting the Board’s recommendation
as A.R.S. § 38–1106 requires.2 A law enforcement officer may be subject to
disciplinary action only when “just cause” exists. A.R.S. § 38–1103(A). As
relevant, a law enforcement officer is “[a] detention officer or corrections
officer, other than a probationary employee or juvenile detention officer,
who is employed by this state.” A.R.S. § 38–1101(8)(a). To establish “just
cause,” the employer must have informed the officer of the possible
disciplinary action resulting from the officer’s conduct through an agency
manual, employee handbook, or employer’s rules and regulations. A.R.S.
§ 38–1101(7)(a). “Just cause” also requires that the disciplinary action must

2      The Department contends that Title 38, Chapter 8, Article 1,
governing law enforcement officers, does not apply because Title 41,
Chapter 4, governing employment of state personnel generally, is more
recent and specific and therefore trumps the application of Title 38. But we
have already decided this issue. In Berndt, an opinion issued after the
Department filed its answering brief, we held that, although A.R.S.
§§ 38–1106 and 41–783 establish different procedures, no conflict prohibits
the reasonable application of both statutes or would otherwise require one
to be applied to the exclusion of the other. Berndt v. Ariz. Dep’t of Corr., 238
Ariz. 524, 528 ¶ 12, 363 P.3d 141, 145 (App. 2015) (addressing the version of
A.R.S. § 38–1106 before it was amended). We concluded that a law
enforcement officer within the meaning of A.R.S. § 38–1101 “is afforded
additional statutory protections—namely, restriction upon the
circumstances under which the employing agency may reject the Board’s
decision—which are not contained in Title 41.” Id.



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                          Opinion of the Court

be reasonably related to the standard of conduct for the agency’s officers;
be supported by a preponderance of the evidence; and not be excessive, but
reasonably related to the seriousness of the offense and the officer’s service
record. A.R.S. § 38–1101(7)(c)–(d). In an appeal of such a disciplinary action,
the Department may reject the Board’s order if it is arbitrary or without
reasonable justification and the Department states a reason for doing so:

       [A]n employer . . . may amend, modify, reject or reverse the
       portion of a decision made by a hearing officer,
       administrative law judge or appeals board that was arbitrary
       or without reasonable justification. The employer . . . shall
       state the reason for the amendment, modification, rejection or
       reversal.

A.R.S. § 38–1106(H).

¶17          Here, the Department’s order satisfied the statutory
requirements. The order stated that the Department was rejecting the
Board’s recommendation as arbitrary and capricious and without
substantial justification. The Department explained that the Board’s
recommendation was contrary to the evidence and that its factual findings
and conclusions were not supported by substantial evidence. The
Department also asserted that the Board’s order violated A.R.S. § 38–1103,
presumably subpart (A) because “just cause” existed to dismiss Lewis, a
law enforcement officer.

¶18            Lewis counters that the Department’s order was insufficient
because it “fail[ed] to provide any evidence or explanation why the Board’s
Order is arbitrary or without reasonable justification.” Lewis argues that
the statute requires the Department to provide detailed factual findings and
conclusions to support its decision just as the statute requires the hearing
officer and the appeals board to do. The plain language of the statute,
however, does not impose this obligation. In subpart (H), the statute merely
directs the “employer . . . [to] state the reason for the amendment,
modification, rejection or reversal.” A.R.S. § 38–1106(H). In contrast,
subparts (K) and (L) specifically direct the “hearing officer, administrative
law judge or appeals board” to “state in every finding of disciplinary action
whether or not just cause existed for the disciplinary action” and
“document in the record those circumstances where [it] determines that a
party has clearly violated a party’s obligation under this section.” A.R.S.
§ 38–1106(K), (L). The distinction between the specificity of the
documentation required on the part of the hearing officer, administrative
law judge, or appeals board in subpart (L) and the general obligation


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                          Opinion of the Court

imposed on the employer in subpart (H) makes clear that the Legislature
did not intend to impose on the employer the burden Lewis argues exists.

¶19           Lewis further argues that A.R.S. § 38–1106(H) “expressly
limits the [Department] to a strictly objective role, which requires deference
to the Board in all cases in which the Board does not act arbitrarily or
without reasonable justification.” This argument fails because the
Department is not obligated to apply the same deferential standard of
review as this Court or the superior court when reviewing the
recommendations of the appeals board or the hearing officer.

¶20            In contested disciplinary proceedings, the agency makes the
final decision and may adopt, reject, or modify a hearing officer’s or appeals
board’s recommended decision. See A.R.S. § 38–1106(H) (“[A]n employer
or a person acting on behalf of an employer may amend, modify, reject or
reverse the portion of a decision made by a hearing officer, administrative
law judge or appeals board that was arbitrary or without reasonable
justification.”). As the ultimate decision maker, the Department was not
bound by the hearing officer’s or the appeals board’s factual findings or
legal conclusions and may rightfully accept, reject, or modify the
recommendations. See Ritland v. Ariz. State Bd. of Med. Exam’rs, 213 Ariz.
187, 191–92 ¶¶ 12, 18, 140 P.3d 970, 974–75 (App. 2006) (“[A]n agency has
the authority to make independent findings of fact. . . . An agency may only
depart from [the hearing officer’s or the appeals board’s] findings if
substantial evidence supports such a departure.”); see also Pima County
v. Pima Cty. Merit Sys. Comm’n, 189 Ariz. 566, 568–69, 944 P.2d 508, 510–11
(App. 1997) (discussing the County Employee Merit System and providing
that the Merit Commission, the final administrative decision maker, may
affirm or revoke the appointing authority’s order if the Commission
determines that the appointing authority’s action was arbitrary or taken
without reasonable cause).

¶21            Lewis relies on Carlson to support his argument. This Court
stated there that “[n]either this court nor the superior court may substitute
its judgment for that of the agency on factual questions or matters of agency
experience,” Carlson, 214 Ariz. at 430 ¶ 13, 153 P.3d at 1059, and thus, Lewis
argues, that standard of review also applies to the Department. But the cited
language in Carlson refers to the standard of review this Court and the
superior court apply when reviewing an agency action. See id. The
Department is not a court; it is an administrative agency to which we defer
for factual questions and matters of agency expertise. See id. (“Neither this
court nor the superior court may substitute its judgment for that of the agency
on factual questions or matters of agency expertise, but we apply our


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                   LEWIS v. PERSONNEL BOARD et al.
                          Opinion of the Court

independent judgment . . . to questions of law, including questions of
statutory interpretation and constitutional claims.”) (emphasis added).

¶22            Moreover, A.R.S. § 12–910 provides the scope of review when
courts review a final administrative decision and clearly distinguishes
between a court and an agency. Subpart (E) states that “[t]he court shall
affirm the agency action unless after reviewing the administrative record
and supplementing evidence presented at the evidentiary hearing the court
concludes that the action is not supported by substantial evidence, is
contrary to law, is arbitrary and capricious or is an abuse of discretion.”
A.R.S. § 12–910(E). An “agency” is “every agency, board, commission,
department or officer authorized by law to exercise rule-making powers or
to adjudicate contested cases, whether created by constitutional provision
or legislative enactment.” A.R.S. § 12–901(1).

¶23           Here, the Department’s Director by statute adjudicates
contested cases arising from appeals of disciplinary actions imposed on
Department employees. The Director’s order terminated Lewis from his
position as a community corrections officer and therefore affected Lewis’
legal rights as a state employee. See A.R.S. § 12–901(2). The order also
completed Lewis’ grievance proceedings before the agency. See A.R.S.
§ 38–1107(A). Consequently, the Department is an agency and is not
obligated to apply the same deferential standard of review as this Court or
the superior court when reviewing the recommendations of the appeals
board or the hearing officer.

             2. Insufficient Evidence

¶24           Lewis next argues that his due process rights were violated
because in dismissing him, the Department relied on the November 18
suspension, a suspension that Lewis was unable to grieve due to his
dismissal. An agency director has the statutory responsibility for the
direction and control of personnel administration in the agency. A.R.S.
§ 41–743(A). In this capacity, the director must adopt rules governing
“[g]rievance rights specific to covered employees.” A.R.S. § 41–743(B)(3)(h).
Pursuant to this authority, the Department’s Director promulgated A.A.C.
R2-5B-401-03, which is “applicable only to covered employees.” A.A.C. R2-
5B-401. A “covered employee” includes a community corrections officer
who “is appointed to a position in the covered service,” which is an
employment status conferring rights of appeal under A.R.S. § 41–783. A.R.S.
§ 41–741(5)(d). In Carlson, this Court acknowledged that employees may
have certain due process rights post-termination and distinguished
between due process rights afforded pre-termination and rights afforded


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                          Opinion of the Court

post-termination, which are provided for covered employees in A.R.S.
§ 41–783. See Carlson, 214 Ariz. at 430–31 ¶¶ 15–17, 153 P.3d at 1059–60.
Consequently, we disagree with the Department’s argument that Lewis’
right to grieve his November 18 suspension evaporated when he was
terminated. However, because the “just cause” established to justify Lewis’
dismissal in this case was based on several prior disciplinary actions, any
violation of Lewis’ due process rights arising from the November 18
suspension did not invalidate his termination.

¶25            Lewis also argues that insufficient evidence supports the
Department’s order. But the record demonstrates that the Department had
sufficient grounds to dismiss Lewis even without considering the
November 18 suspension. In charge 1, the Department alleged that Lewis
was “engaging in confrontational dialogue with the offender,” which
resulted in a “heightened level of agitation through [his] repeated verbal
threats to arrest.” The Department also alleged that the offender’s mother
and sister attempted to explain the reason for the offender’s late arrival, but
Lewis disregarded their explanation.

¶26           The Department met its burden of proving charge 1. The
record shows that Lewis threatened at least three times to send the offender
back to prison because he was late to the parole office. Lewis’ actions caused
the offender to become agitated and required Lewis’ supervisor to redirect
the offender’s attention repeatedly toward the supervisor and away from
Lewis. Lewis’ threats also caused the offender’s mother and sister to
become concerned, begging the Department to “Please don’t send him
back.” The record also shows that Lewis further agitated the offender by
denying his request to live with his mother and telling him that he would
go wherever the Department told him to—even though the offender’s
mother agreed to the living arrangement and Lewis’ supervisor approved
it. The record further shows that, despite the offender’s mother and sister’s
repeated explanation that they had to take a bus to the mall to meet the
offender and then a bus to the parole office, Lewis did not accept the
explanation. Instead, Lewis told the offender that the Department would
issue a warrant for his arrest and send him back to prison. Consequently,
sufficient evidence supports the Department’s conclusion that it met its
burden of proof that Lewis engaged in a confrontational dialogue with the
offender as alleged in charge 1.

¶27           In charge 2, the Department alleged that Lewis refused his
supervisor’s directive and became argumentative with his supervisor in the
presence of the offender and his family and after completing the intake
process. The Department met its burden of proving charge 2. The record


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shows that Lewis repeatedly disregarded his supervisor’s commands to
stand down and to leave. Lewis’ supervisor told the offender that the
Department would not send him back to prison, but Lewis disregarded his
supervisor’s decision and went so far as to tell the offender to ignore his
supervisor. The record also shows that after Lewis’ supervisor decided to
let the offender live with his mother, Lewis demonstrated insubordinate
and unprofessional behavior by telling his supervisor that he did not know
what he was doing and that he was making a bad decision—in front of the
offender and his family. The record further shows that, after the supervisor
completed the offender’s intake process and was passing Lewis’ work area,
Lewis told his supervisor that if he was going to write a report on Lewis, he
better “make it good.” Consequently, sufficient evidence supports the
Department’s conclusion that it met its burden of proof that Lewis refused
his supervisor’s directive and became argumentative as alleged in charge 2.

¶28           Moreover, Lewis’ dismissal was appropriate under the chart
of disciplinary sanctions the Department adopted in its Department Order
Manual. See Ariz. Dep’t of Corr., 202 Ariz. at 600 ¶ 10, 48 P.3d at 1210 (“A
disciplinary action is not arbitrary if it falls within the range of permissible
discipline.”). Lewis’ conduct under charges 1 and 2 constituted
incompetence by failing to perform required duties, a class 3 offense;
neglect of duty by disregarding orders and/or directives of a supervisor, a
class 4 offense; and discourteous treatment of the public by conducting
oneself in an offensive discourteous manner, a class 2 offense. The manual
provides that for a class 4 offense, the range for a second offense is a
40-hour suspension to dismissal and for the third offense is dismissal. The
policy also provides that “[m]ultiple violations in any class may result in
the imposition of penalties in the next higher class.” Without including the
80-hour suspension, Lewis’ conduct on October 17 that resulted in
dismissal was the fifth time that he had been disciplined for discourteous
treatment of the public by conducting himself in an offensive and/or
discourteous manner and the second time he was disciplined for neglect of
duty by disregarding a supervisor’s orders or directives. Consequently,
dismissal was within the range of discipline the Department could impose
on Lewis because of his prior record. Accordingly, although we agree with
Lewis that his due process rights to grieve the November 18 suspension
were violated, Lewis was not deprived of due process in the instant case.
Sufficient evidence supports the Department’s conclusion that “just cause”
exists to dismiss Lewis.




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              3. The Board’s Role in Appeals

¶29           The Board filed a separate answering brief and argues that the
Board is not a necessary party to an employee’s appeal to the superior court
from the final decision of the employing agency on a disciplinary matter.
The Board also asks this Court to determine whether it is within the Board’s
authority to hear appeals from law enforcement officers subject to the
requirements of Title 38. Although the Board did not file a cross-appeal, see
Maricopa County v. Ariz. Corp. Comm’n, 79 Ariz. 307, 310, 289 P.2d 183, 186
(1955) (“In the absence of a cross-appeal the appellee can defend only as to
the items allowed below and cannot present rejected claims.”), we may
nonetheless use our discretion in determining whether to address the
issues, see Azore, LLC v. Bassett, 236 Ariz. 424, 426–27 ¶¶ 6–7, 341 P.3d 466,
468–69 (App. 2014). Because these issues are readily resolved by statute and
case law, we exercise our discretion to address them.

¶30            First, the Board may appear in the appeal proceedings, but it
is not a necessary party. A.R.S. § 12–908(A) currently states that “[i]n an
action to review a final decision of an administrative agency, the agency
and all persons, . . . who are parties of record in the proceedings may appear
in the proceedings before the superior court as appellees” (emphasis
added). In 2013, the Legislature amended A.R.S. § 12–908: instead of the
agency and all parties of record “shall be made defendants,” the
amendment provided that the agency and all parties of record “may appear
in the proceedings before the superior court as appellees.” 2012 Ariz. Legis.
Serv. Ch. 322 (S.B. 1193) (emphasis added). The amendment therefore
removed the mandatory requirement that the agency and all parties of
record be defendants in the appeal. See State v. Garza Rodriguez, 164 Ariz.
107, 111, 791 P.2d 633, 637 (1990) (noting presumption that “by amending a
statute, the legislature intends to change the existing law”). Accordingly,
the Board may appear in a judicial appeal from an employing agency’s final
decision on disciplinary matters, but it is not a necessary party. See Walter
v. Wilkinson, 198 Ariz. 431, 432 ¶ 7, 10 P.3d 1218, 1219 (App. 2000) (“And, in
fact, use of the word ‘may’ generally indicates permissive intent, while
‘shall’ generally indicates a mandatory provision.”) (citations omitted).

¶31           Second, pursuant to the Board’s authority under Title 41, the
Board may hear disciplinary appeals from law enforcement officers. See
A.R.S. §§ 41–782(A) (“[The Board] shall hear and review appeals as
provided in this article relating to dismissal of a covered employee from
covered service[.]”); –741(5)(b) (defining “covered employees” to include
certain “peace officer[s]” and “correctional officer[s]”). At the same time,
Title 38 grants certain rights to “law enforcement officers,” defined there as


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a “detention or corrections officer, other than a probationary employee or
juvenile detention officer, who is employed by this state or a political
subdivision of this state.” A.R.S. § 38–1101(8)(b). Accordingly, an officer
such as Lewis is both a “covered employee” pursuant to Title 41 and a “law
enforcement officer” pursuant to Title 38. When such an officer appeals a
discipline action to the Board under A.R.S. § 38–1106 pursuant to Title 41,
the appeal therefore is subject to the provisions of Title 38. See A.R.S.
§ 38–1101(1) (defining “[a]ppeal” to which Title 38 rights apply as “a
hearing before a state or local merit board, a civil service board, an
administrative law judge or a hearing officer”). This conclusion has been
previously recognized in Berndt, which held that a state corrections officer
was entitled to protections by both A.R.S. §§ 41–783 and 38–1106 in an
action challenging the Department’s disciplinary determination. See Berndt,
238 Ariz. at 528 ¶ 12, 363 P.3d at 145; see also supra n.2.

             4. Attorneys’ Fees on Appeal

¶32          Lewis requests attorneys’ fees and costs pursuant to A.R.S.
§ 12–348(A)(2). Because Lewis did not prevail, we deny the request.

                             CONCLUSION

¶33          For the foregoing reasons, we affirm.




                                 :AA




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