                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


            BRIAN BERNDT, a single man, Plaintiff/Appellant,

                                     v.

ARIZONA DEPARTMENT OF CORRECTIONS, an agency of the State of
Arizona; ARIZONA STATE PERSONNEL BOARD, an agency of the State
of Arizona; CHARLES L. RYAN, in his capacity as Director of the Arizona
             Department of Corrections, Defendants/Appellees.

                           No. 1 CA-CV 14-0622
                             FILED 12-3-2015


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000653-001
               The Honorable Crane McClennen, Judge

        REVERSED AND REMANDED WITH INSTRUCTIONS


                                 COUNSEL

Bihn & McDaniel, PLC, Phoenix
By Martin A. Bihn, Donna M. McDaniel
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michelle Kunzman, Mark Brnovich
Counsel for Defendant/Appellee Arizona Department of Corrections

Jackson Lewis, P.C., Phoenix
By Jeffrey A. Bernick
Counsel for Defendant/Appellee Arizona State Personnel Board
                          BERNDT v. ADOC et al.
                           Opinion of the Court



                                 OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Judge Peter B. Swann joined and Judge Samuel A. Thumma joined
in part and dissented in part.


J O N E S, Judge:

¶1            Brian Berndt appeals the superior court’s order on appeal
affirming his termination as a corrections officer with the Arizona
Department of Corrections (Department). The Arizona State Personnel
Board (Board) had determined allegations of sexual harassment and
insubordination against Berndt were unfounded, classified Berndt’s actions
as horseplay, a less serious offense, and ordered the discipline reduced to
an eighty-hour suspension. The Department rejected the Board’s decision,
and the parties now dispute whether the Department was authorized to do
so.

¶2             To resolve the issue we interpret Arizona Revised Statutes
(A.R.S.) section 41-783,1 governing the administrative review of disciplinary
actions involving covered State employees, in light of A.R.S. § 38-1101(K)
(Supp. 2013),2 governing administrative review of d5isciplinary actions
involving law enforcement officers. Reading the statutes together, we hold
that when the employee at issue is a law enforcement officer, the statutes
(1) authorize the employing agency to amend, modify, reject, or reverse the
Board’s decision only upon a finding that it is arbitrary and capricious, and

1      Absent material changes from the date of Berndt’s termination in
July 2013, we cite a statute’s current version unless otherwise noted. See
Blancarte v. Ariz. Dep’t of Transp., 230 Ariz. 241, 245 n.2, ¶ 13 (App. 2012)
(applying the statute in effect at the time the state employee was
terminated).

2       While relevant to these proceedings, this section was repealed
effective January 1, 2015 and recodified at A.R.S. § 38-1106(H). 2014 Ariz.
Sess. Laws ch. 240, §§ 4, 8 (2d Reg. Sess.). Although there have been no
material changes to the statute, within this decision we refer to the version
of Title 38, Chapter 8 of the Arizona Revised Statutes in effect at the time of
Berndt’s termination.



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                          Opinion of the Court

(2) require the employing agency to provide an explanation for the
amendment, modification, rejection, or reversal of the Board’s decision.
Because the Department did not comply with either requirement, we
reverse the judgment of the superior court and remand to the superior court
with instructions to enter an order reversing the Department’s termination
of Berndt’s employment and reinstating the disciplinary sanctions ordered
by the Board.

                FACTS AND PROCEDURAL HISTORY

¶3            In October 2007, Berndt began working as a corrections officer
II at the Department’s state prison in Tucson. In June 2013, the Department
issued Berndt a notice of charges citing an incident in which he was
observed twisting his nipples in the presence of several other staff
members. The Department alleged Berndt’s actions violated its policies
against sexual harassment3 and insubordination4 and warranted discipline.
In response, Berndt explained another officer had licked his lips at him as a
joke, and Berndt responded by rubbing his nipples; however, he denied the
gesture was sexually explicit or violated any applicable standard of
conduct. The Department then determined that, by denying any
wrongdoing while admitting he engaged in the reported conduct, Berndt
committed an additional offense of dishonesty. The Department thereafter
terminated Berndt’s employment in July 2013.

¶4             Berndt appealed the termination to the Board. Following an
evidentiary hearing, a hearing officer issued proposed findings of fact and
conclusions of law that were later adopted by the Board. The Board
determined the Department had failed to prove the material facts upon
which the discipline was based by a preponderance of the evidence.
Specifically, it found no support for the Department’s claims that: (1)
Berndt’s actions were sexually explicit, (2) Berndt lied about his behavior,

3      Department Order 501 describes sexual harassment as “[v]erbal or
physical conduct of a sexual nature in the work place imposed upon any
employee as a condition of employment or creating a sexually intimidating,
hostile or offensive work environment.”

4      Pursuant to a statewide human resources bulletin issued by the
Arizona State Personnel System in September 2012, “‘[i]nsubordination’
means the knowing refusal or failure to obey an order or a directive, given
by a person in authority,” and also includes “failure or refusal to perform
the employee’s job duties as assigned [and] the failure or refusal to follow
laws, rules, policies, guidelines and procedures.”

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                          BERNDT v. ADOC et al.
                           Opinion of the Court

or (3) Berndt willfully or intentionally refused to obey any specific direction
from his employer. The Board also found evidence the Department acted
arbitrarily and capriciously in terminating Berndt because it had made “no
real effort” to locate, question, or discipline the other officer allegedly
engaged in the purported misconduct. The Board noted the record
contained an internal human resources document from the Department
authorizing Berndt’s termination the same day he was issued the notice of
charges and before he had an opportunity to respond.

¶5            The Board concluded the Department failed to prove the
charges against Berndt by a preponderance of the evidence and that
Berndt’s behavior “would more properly fall into the category of
‘horseplay.’” Relying upon the Department’s established policy to
implement progressive discipline in the case of less serious acts of
misconduct,5 the Board ordered Berndt be reinstated to his previous
position and the sanction be reduced to an eighty-hour suspension without
pay.

¶6            In December 2013, the Department advised Berndt it was
“rejecting the Board’s recommendation in its entirety and upholding the
dismissal action,” offering no explanation for its decision. Berndt appealed
to the superior court, arguing the Department’s decision was arbitrary and
capricious, not supported by the evidence, and constituted an unlawful
procedure.

¶7            On appeal, the superior court determined the matter was
governed by A.R.S. § 41-783(E), which does not require the Department to
state reasons for accepting, modifying, or rejecting the Board’s decision.
Granting deference to the Department as the final decision-maker under
A.R.S. § 41-783(E), the superior court declined to “second-guess” the
Department’s decision to terminate Berndt and affirmed.




5       The Department’s Employee Handbook states that while “[g]rave
acts of misconduct may warrant dismissal of an employee without previous
counseling, warning, reprimand or other discipline,” “less serious acts of
misconduct may warrant the use of progressive discipline to give the
employee a chance to reform [his] conduct.”



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                          BERNDT v. ADOC et al.
                           Opinion of the Court

¶8            Berndt timely appealed.6 We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), and 41-783(G).

                               DISCUSSION

I.     Corrections Officers Employed by the State of Arizona are Entitled
       to the Protections of Title 38.

¶9            Berndt first contends the superior court erred in failing to
apply the rules contained in Title 38, Chapter 8, of the Arizona Revised
Statutes, governing the rights and responsibilities of law enforcement
officers. See A.R.S. §§ 38-1101 to -1104 (Supp. 2013). Pursuant to A.R.S.
§ 38-1101(K):

       [A]n employer . . . may amend, modify, reject or reverse a
       decision made by a hearing officer, administrative law judge
       or appeals board after a hearing . . . if the decision was [(1)]
       arbitrary or without reasonable justification and [(2)] the
       employer or person acting on behalf of the employer states
       the reason for amendment, modification, rejection or reversal.

This section applies to law enforcement officers, specifically including “[a]
detention officer or corrections officer, other than a probationary employee,
who is employed by this state.” A.R.S. § 38-1101(P)(4)(b).

¶10         The Department contends Title 41, Chapter 4, governing
employment of state personnel generally is more recent and therefore
trumps the application of A.R.S. § 38-1101. The provisions of Title 41,
Chapter 4, apply to “a covered employee,” specifically including “an

6      The Board asks us to determine whether: (1) it is a necessary party to
an employee’s appeal from the final decision of the employing agency on a
disciplinary matter, and (2) the Board is within its authority to hear appeals
from law enforcement officers subject to the requirements of Title 38.
Because these issues were not decided by the superior court and are entirely
unrelated to those identified by Berndt within his notice of appeal and
opening brief, we decline to consider them, particularly where, as here, the
Board has not filed a notice of cross-appeal. See Maricopa Cnty. v. Ariz. Corp.
Comm’n, 79 Ariz. 307, 310 (1955) (“In the absence of a cross-appeal the
appellee can defend only as to the items allowed below and cannot present
rejected claims.”); Progressive Specialty Ins. v. Farmers Ins. Co. of Ariz., 143
Ariz. 547, 548 (App. 1985) (declining request to provide guidance on
principles of law unnecessary in settling the rights of the litigants).



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                           BERNDT v. ADOC et al.
                            Opinion of the Court

employee who . . . [b]efore September 29, 2012 is in the state service [and]
is employed as a . . . correctional officer II . . . and has remained in covered
status without a break in service since that date.”7 A.R.S. §§ 41-741(5)(b),
-783(A). Of greatest import to the Department, A.R.S. § 41-783(E), if
controlling, does not place any restrictions upon, or require the employer
to provide any explanation for, its acceptance, modification, or rejection of
the Board’s decision following review of the termination of a covered
employee.

¶11            We review questions of statutory interpretation de novo. See
In re Estate of Riley, 231 Ariz. 330, 332, ¶ 9 (2013). The basic principles of
statutory interpretation are well-established:

       If a statute is unambiguous, we apply its terms without
       resorting to other tools of statutory interpretation, unless
       doing so leads to impossible or absurd results. . . . And when
       statutes relate to the same subject matter, we construe them
       together as though they constitute one law and attempt to
       reconcile them to give effect to all provisions involved.

Fleming v. Dep’t of Public Safety, 237 Ariz. 414, 417, ¶ 12 (2015) (citing Bell v.
Indus. Comm’n, 236 Ariz. 478, 480, ¶ 7 (2015), and Orca Commc’ns Unlimited,
L.L.C. v. Noder, 236 Ariz. 180, 182, ¶ 9 (2014)) (internal quotations omitted).
Only if two statutes truly conflict do we apply the more recent or more
specific provision and disregard the other. Baker v. Gardner, 160 Ariz. 98,
101 (1988) (citing Pima Cnty. v. Heinfeld, 134 Ariz. 133, 136 (1982), and State
v. Davis, 119 Ariz. 529, 534 (1978)).

¶12           Although A.R.S. §§ 38-1101(K) and 41-783(E) differ, we find
no conflict prohibiting the reasonable application of both or that would


7      The Department suggests Arden-Mayfair, Inc. v. State, Dep’t of Liquor
Licenses & Control, 123 Ariz. 340 (1979), superseded by statute as recognized in
City of Phx. v. 3613 Ltd., 191 Ariz. 58, 60-61 (App. 1997), supports this
position. We do not find Arden-Mayfair persuasive on this point. There, our
supreme court concluded the Administrative Procedure Act (APA), A.R.S.
§§ 41-1001 to -1092.12, was the “general comprehensive statute,” and
hearings before the liquor board were controlled, instead, by the specific
provisions of Title 4 dealing with the licensing, regulation, and control of
alcoholic beverages. Id. at 342. Although we need not reach the issue,
Arden-Mayfair supports a finding that Title 38, Chapter 8, dealing
specifically with law enforcement officers, is the more specific statutory
scheme.

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                           BERNDT v. ADOC et al.
                            Opinion of the Court

otherwise require one to be applied to the exclusion of the other. As a
covered employee within the meaning of A.R.S. § 41-741(5)(b), Berndt is
entitled to appeal his termination under A.R.S. § 41-783(E). As a law
enforcement officer within the meaning of A.R.S. § 38-1101(P)(4)(b),
however, Berndt is afforded additional statutory protections — namely,
restrictions upon the circumstances under which the employing agency
may reject the Board’s decision — which are not contained in Title 41. See
A.R.S. § 38-1101(K).

¶13            While we need not consider the legislative history or purpose
of A.R.S. § 38-1101(K) to effectuate its plain language, see Fleming, 237 Ariz.
at 417, ¶ 12, our conclusion is bolstered by the legislature’s apparent
intention, in adopting a separate set of statutes to address the rights,
responsibilities, and protections afforded law enforcement officers, that
disciplinary actions against these specifically delineated employees be
subject to greater scrutiny. Moreover, we presume “the legislature, when
it passes a statute, knows the existing laws.” Daou v. Harris, 139 Ariz. 353,
357 (1984) (citing Ariz. State Bd. of Dirs. for Junior Colleges v. Phx. Union High
Sch. Dist. of Maricopa Cnty., 102 Ariz. 69, 72 (1967)). We find no indication
within the language, history, or purpose of the statutes that the legislature
intended to exclude corrections officers from the enhanced protections of
Title 38 when it enacted Title 41. To the contrary, the legislature has not
limited those persons included within the definition of “law enforcement
officer” despite numerous amendments to Title 38 in 2014 — after A.R.S.
§ 41-783(E) was enacted. See 2014 Ariz. Sess. Laws 240. Nor has the
legislature suggested corrections officers be excluded from Title 38 in the
current wave of proposed reform. See S.B. 1467, 52d Leg., 1st Reg. Sess.
(Ariz. 2015) (proposing to expand requirements placed upon employers
relating to administrative investigations of law enforcement officers subject
to termination of their employment). And, the legislature has specified that
the rights and duties of Title 41, Chapter 4 are intended to add to — not take
away from — those created and imposed by other statutes. A.R.S. § 41-
1002(A)-(B); see also 3613 Ltd., 191 Ariz. at 60-61 (imposing additional
procedural requirements of the APA to hearings before the liquor board,
which are otherwise specifically addressed within Title 4).

¶14           The Department’s reliance upon A.R.S. § 41-1830.16, which
provides a mechanism for appeal from a disciplinary proceeding against a
full authority peace officer,8 is likewise unavailing. No one argues Berndt

8      “‘Full authority peace officer’ means a peace officer whose authority
to enforce the laws of this state is not limited by the rules adopted by the



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                           BERNDT v. ADOC et al.
                            Opinion of the Court

is a full authority peace officer and, therefore, that statute has no application
here.

¶15           Accordingly, we hold that because Berndt was employed as a
law enforcement officer within the meaning of A.R.S. § 38-1101(P)(4)(b), the
Department could reject the Board’s decision only if it: (1) found the Board’s
action was arbitrary and capricious, and (2) provided reasons for its
rejection, as set forth in A.R.S. § 38-1101(K). The Department did not
comply with either requirement and thereby erred in rejecting the Board’s
decision.

II.    The Board Did Not Act Arbitrarily or Capriciously in Reducing the
       Sanction to an Eighty-Hour Suspension.

¶16            The Department urges us to remand the matter to allow it to
explain its rejection of the Board’s decision and termination of Berndt. See,
e.g., Caldwell v. Ariz. State Bd. of Dental Exam’rs, 137 Ariz. 396, 401 (App.
1983) (noting “[r]emand to an administrative agency or board is
appropriate where the agency has been found to have violated a statutory
procedural requirement”). However, we decline to do so where it is
apparent as a matter of law that the Board’s decision was not arbitrary and
capricious, and therefore, the Department was without discretion to reject
it. See Levandoski v. Ford, 52 Ariz. 454, 459 (1938) (“To remand the case . . .
when it is clear that another trial would disclose the situation now before
us would be requiring a futile thing and courts do not take actions of this
character.”).

¶17           In arriving at that conclusion, we are mindful that a
punishment will rarely be found arbitrary when it falls within the
permissible range. See Coplan v. Ariz. State Bd. of Appraisal, 222 Ariz. 599,
601-02 (App. 2009) (citing Maricopa Cnty. Sheriff’s Office v. Maricopa Cnty.
Emp. Merit Sys. Comm’n, 211 Ariz. 219, 222 n.6, ¶ 16 (2005)). Both Berndt
and the Department rely upon the range of options provided by the chart
of disciplinary sanctions adopted by the Department in advancing their
arguments. Relevant to Berndt’s position within the chart, the Board found
the facts proven by the Department amounted to horseplay, a class three
offense. Relying upon information reported by the Department, the Board
further found this to be Berndt’s second class three offense. The Board
rejected the only potential aggravating factor, a prior history of discipline,
because the most recent incident remained subject to a pending grievance


Arizona peace officer standards and training board.”              A.R.S. § 41-
1380.16(H)(4).

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                           BERNDT v. ADOC et al.
                            Opinion of the Court

procedure. Applying the Department’s rules and policies — which the
Board noted the Department was obligated to follow — the Board ordered
Berndt receive the maximum penalty designated within the chart of
disciplinary sanctions for a second class three offense: an eighty-hour
suspension. Accepting the Board’s findings of fact and conclusions of law,9
the imposition of an eighty-hour suspension is both a reasonable response
to Berndt’s conduct and within the recommended range.

¶18              This conclusion is supported by additional findings of the
Board suggesting the Department’s decision to terminate Berndt was
arbitrary and capricious. First, the Board noted the Department “made no
real effort . . . to locate, question, nor discipline” the officer involved in the
events giving rise to Berndt’s termination. See Maricopa Cnty. Emp. Merit
Sys., 211 Ariz. at 222 n.6, ¶ 16 (“Arbitrariness can arise . . . when similarly
situated employees receive differing sanctions for the same offense.”)
(citing Pinal Cnty. v. Pinal Cnty. Emp. Merit Sys. Comm’n, 211 Ariz. 12, 18,
¶ 18 (App. 2005)). Second, the Department authorized Berndt’s termination
the very same day it issued the notice of charges. Doing so violated specific
Department policy, whereby the employee has the right to provide a
written response to the notice of charges and the Department is instructed
to consider that response prior to making a decision to impose discipline.
Where it does not permit the fact finding process to run its course before
making a decision, the Department impermissibly acts as judge and jury
without the benefit of a meaningful appeal, thereby eviscerating any real
opportunity for Berndt to be heard regarding the alleged misconduct before
a predetermined sanction is imposed. See Comeau v. Ariz. State Bd. of Dental
Exmn’rs, 196 Ariz. 102, 106-07, ¶ 20 (App. 1999) (noting due process requires
“the opportunity to be heard at a meaningful time and in a meaningful
manner”) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) (internal
quotations omitted); Deuel v. Ariz. State Sch. for Deaf & Blind, 165 Ariz. 524,
526 (App. 1990) (recognizing continued employment with a state agency is
a constitutionally protected property interest triggering a procedural due


9       The Department argued both within its brief and in oral argument
that it rejected only the level of discipline imposed by the Board. This
position is inconsistent with the Department’s ten-page objection to the
hearing officer’s findings of fact and conclusions of law. Nevertheless,
based upon this concession, we accept the findings and conclusions
adopted by the Board as undisputed, and therefore need not address
Berndt’s assertion that the employing agency is unequivocally bound by
the Board’s findings.



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                          BERNDT v. ADOC et al.
                           Opinion of the Court

process right) (citing Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 774, 777
(9th Cir. 1982)).

¶19           We conclude, as a matter of law, the Board acted within its
discretion in finding the Department had failed to prove the basis for
discipline by a preponderance of the evidence and reducing the sanction to
an eighty-hour suspension. Because the Board’s actions were not arbitrary
and capricious, the Department had no authority to reject its decision.10

                              CONCLUSION

¶20           We reverse the order of the superior court and remand to the
superior court with instructions to enter an order reversing the
Department’s termination of Berndt’s employment and reinstating the
disciplinary sanctions ordered by the Board.

¶21          Berndt requests his attorneys’ fees and costs on appeal
pursuant to A.R.S. § 12-348(A)(2) and ARCAP 21. As the prevailing party,
Berndt is awarded his reasonable attorneys’ fees and costs incurred on
appeal upon compliance with ARCAP 21(b).




10    Having reached this conclusion, we need not address Berndt’s
contention that the Department improperly relied upon evidence outside
the administrative record in rejecting the Board’s decision.

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                         BERNDT v. ADOC et al.
                       Thumma, J., Dissenting in part

T H U M M A, Judge, dissenting in part:

¶22            I would remand the matter to the Department. See, e.g., Zavala
v. Ariz. State Pers. Bd., 159 Ariz. 256, 267 (App. 1987) (“‘The general rule
seems to be that where an administrative agency has been found to have
acted in violation of procedural requirements or arbitrarily, the
administrative agency is entitled to have the proceedings returned to it.’”)
(citation omitted); Caldwell v. Ariz. State Bd. of Dental Exam’rs, 137 Ariz. 396,
401 (App. 1983) (“Remand to an administrative agency or board is
appropriate where the agency has been found to have violated a statutory
procedural requirement.”) (citation omitted). In all other respects, I join in
the analysis set forth above.




                                      :ama




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