                    SUPREME COURT OF ARIZONA
                              En Banc

MARICOPA COUNTY SHERIFF'S OFFICE, )     Arizona Supreme Court
                                  )     No. CV-04-0046-PR
                                  )
             Plaintiff-Appellant, )     Court of Appeals
                                  )     Division One
                 v.               )     No. 1 CA-CV 03-0028
                                  )
MARICOPA COUNTY EMPLOYEE MERIT    )     Maricopa County
SYSTEM COMMISSION, and DANIEL     )     Superior Court
JUAREZ,                           )     No. CV 2002-001305
                                  )
            Defendants-Appellees. )
                                  )     O P I N I O N
__________________________________)

       Appeal from the Superior Court of Maricopa County
                       No. CV 2002-001305
               The Honorable Gary Donahoe, Judge

              REVERSED; REMANDED WITH INSTRUCTIONS


   Memorandum Decision of the Court of Appeals, Division One
                      No. 1 CA-CV 03-0028

                              VACATED


RICHARD M. ROMLEY, FORMER MARICOPA COUNTY ATTORNEY            Phoenix
ANDREW THOMAS, MARICOPA COUNTY ATTORNEY
     By   Mary C. Cronin, Deputy County Attorney
Attorneys for Maricopa County Sheriff’s Office

KUTAK ROCK, L.L.P.                                      Scottsdale
     By   Michael W. Sillyman
          David M. Park
Attorneys for Maricopa County
Employee Merit System Commission

BIHN & McDANIEL, P.L.C.                                       Phoenix
     By   Martin A. Bihn
          Donna M. McDaniel
And
LAW OFFICE OF LOYD C. TATE                                                              Phoenix
     By   Loyd C. Tate
Attorneys for Daniel Juarez


J O N E S, Justice

¶1             Daniel      Juarez,      a    Maricopa          County     merit          system

employee, worked as a detention officer at the Madison Street

Jail.     He also worked in an extra-duty capacity as an employee

of the Maricopa County Sheriff’s Office (the “MCSO”), assigned

to work at the Gran Mercado Swap Meet in Phoenix.                                 During the

evening of February 11, 2001, two individuals were arrested at

the swap meet on suspicion of criminal activity and brought to

the   sheriff’s       field     office.         Juarez,      assisted        by     a    deputy

sheriff, took the two detainees to the sheriff’s transport van.

¶2             Each     detainee     was     handcuffed          in     front,          with     a

separate    pair      of   handcuffs        connecting       the      two.         The    first

entered the van, but the second resisted and began yelling and

swearing at Juarez.             Juarez grabbed the detainee by his shirt

and pushed him into the van, prompting the detainee to kick

Juarez    in    the     upper    thigh      and      groin     area.         The    detainee

continued to yell and swear at him.                    Juarez then lost composure

and struck the detainee four to five times with a closed fist.

He aimed for the face.

¶3             As   Juarez      threw     the       punches,    the     deputy          grabbed

Juarez’    arm,       attempting     to     restrain      him      both      verbally          and


                                                2
physically.        Juarez       pulled    his      arm    away    and        struck    at   the

detainee at least two more times.

¶4           Based on this incident, the MCSO terminated Juarez’

employment.        Although Juarez had been disciplined in 1995 for

using excessive force on an inmate, MCSO did not rely on the

earlier incident in imposing discipline.                     The discipline, based

on   undisputed      facts,       was    consistent         with    MCSO           policy   and

practice that an employee who strikes a physically restrained

detainee     is     subject       to     discipline         up     to        and     including

discharge.

¶5           Juarez       appealed       the       termination      decision          to     the

Maricopa        County        Employee        Merit      System     Commission              (the

“Commission”)       which,      after     an    adversary        proceeding          before   a

hearing officer who made recommendations, concluded that some

measure    of     discipline      was    appropriate,        but        that       termination

from employment was disproportionate to the offense of striking

a handcuffed detainee.                The Commission also disagreed with the

MCSO’s determination that Juarez’ past employment record was

unimportant.

¶6           The      Commission          reversed          Juarez’            termination,

reinstated him to his position, and reduced discipline to a

fifteen-day       suspension.           The    MCSO      appealed       to    the     superior

court,     which,        in     its     appellate         capacity,          affirmed        the




                                               3
Commission’s decision.             The MCSO then appealed to the court of

appeals    which,    in    a   2-1       memorandum      decision,        affirmed        the

judgment    of    the     superior        court,    citing        deference          to   the

Commission’s decision as the standard of review.                          The MCSO then

petitioned for review in this Court.                         We have jurisdiction

pursuant    to      Article        6,     Section       5(3),       of     the       Arizona

Constitution, Rule 23 of the Arizona Rules of Civil Appellate

Procedure, and Arizona Revised Statutes (“A.R.S.”) section 12-

120.24.

                                           I.

¶7          We granted review to clarify the role of the Maricopa

County Employee Merit System Commission when a merit system

employee    challenges         a    disciplinary          action         taken       by   the

employee’s appointing authority.                In today’s opinion, we define

the   standard    of    review       by    which    the      Commission,         a    quasi-

judicial, fact-finding body, must process appeals in cases that

involve employee discipline.

¶8          The     employer,       referred       to   in    the    statute         as   the

“appointing      authority,”        is    authorized         to   take     disciplinary

action against merit system employees by written order stating

the reasons for the action.                  A.R.S. § 11-356(A);1 see Pima



1
      A.R.S. § 11-356(A) (2001) states,



                                            4
County v. Pima County Merit Sys. Comm’n, 186 Ariz. 379, 381,

923     P.2d    845,   847      (App.   1996)   (“Logan”).        An    employee

dissatisfied with the decision of the appointing authority may

appeal to the Commission, A.R.S. § 11-356(B),2 whose authority

under the statute is broadly stated as the power to “affirm,

modify or revoke the order.”            A.R.S. § 11-356(C).3

¶9             Following a hearing in which evidence is presented de

novo,    the    duty   of    the   Commission   is   to   apply   the   correct



_____________________________
        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.
2
      A.R.S. § 11-356(B) (2001) states,

        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.
3
      A.R.S. § 11-356(C) (2001) states,

        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.



                                          5
standard under which the case must be reviewed.              While § 11-

356(C) grants the Commission broad authority (“affirm, modify

or revoke”), the statute is silent as to the standard of review

to be applied in appeals to the Commission.

¶10          Because the statute is silent, we turn to the rules

of procedure adopted by Maricopa County to be applied in all

Commission    proceedings.     Rule   10.16   of   the   Maricopa     County

Employee Merit System Rules sets forth a standard of review

that restricts the Commission’s remedial powers to cases in

which the action appealed from was “arbitrary or taken without

reasonable cause.”4     That standard, applicable to the Maricopa

County   Commission,5   was   unchallenged    by   any   party   to    these

proceedings.


4
      Rule 10.16 states, in relevant part,

      If, after the hearing, a majority of the Commission
      members present at the meeting where the vote is
      taken determine that the action appealed from was
      arbitrary or taken without reasonable cause, the
      appeal shall be sustained; otherwise the appeal shall
      be dismissed.

(Emphasis added.)
5
     Both Maricopa and Pima Counties, by reason of population
in excess of 250,000, are required by statute to create a
“merit system council” (referred to in Maricopa County as a
“commission”) and to adopt “rules and regulations” to ensure
orderly process and to “[h]ear and review appeals from any
[disciplinary] order of the department head” brought by a merit
system law enforcement employee.    A.R.S. §§ 38-1002 to 1007
(2001).   Rules adopted by counties for the orderly processing


                                      6
                                        II.

¶11          In the instant case, the Commission acknowledged the

Rule 10.16 standard — “arbitrary or taken without reasonable

cause” — but strayed from its proper application.                  It reduced

Juarez’ termination to a fifteen-day suspension on the basis

that discipline is necessarily “arbitrary and capricious” if it

is “so greatly disproportionate to the offense . . . that it is

shocking    to     one’s   sense   of   fairness.”      Merit     Commission’s

Findings of Fact, Conclusions of Law and Order at 17.

¶12          The     “shocking”     standard,        based   on      perceived

disproportionality between the seriousness of the offense and

the severity of punishment, is not found in any statute or rule



_____________________________
of merit system appeals vary among the counties. In a separate
opinion issued today by this court, Pima County v. Pima County
Merit Sys. Comm’n, ___ Ariz. ___, ___ P.3d ___ (2005), we
address the Pima County merit system rule, the counterpart to
Maricopa’s Rule 10.16, which contains a “just cause” standard
of review.    Contrary to the Maricopa rule, the Pima County
standard   gives   the  council   wide   discretion to   modify
disciplinary action that the council, in its judgment, finds
“too severe.”    Maricopa County did not grant its commission
such broad latitude. As today’s two opinions demonstrate, the
divergent rules between counties may, and often will, produce
divergent results on very similar facts. Nevertheless, because
the statute is silent as to a standard of review, we conclude
that either approach is consistent with the mandate in A.R.S. §
38-1003 that county merit system commissions adopt rules
consistent with “recognized merit system principles of public
employment.” For a discussion of the meaning of that language,
see id. at ___, ¶¶ 14-16, ___ P.3d at ___.



                                         7
in    Arizona       and    appears    to   have       been    a     creation     of   court

decisions.           The    dilemma   this      standard      presents      is    that    to

determine whether a disciplinary order is “shocking to one’s

sense of fairness” calls for subjective analysis, effectively

engaging        the        Commission      in       a       determination        of      the

appropriateness of a disciplinary action as measured against

the seriousness of the offense, thereby opening the door to a

substitution of the Commission’s judgment for that of the MCSO.

In contrast, Rule 10.16, given its plain meaning, creates an

objective       standard,      requiring        the     employer’s      discipline       be

upheld unless “arbitrary or taken without reasonable cause.”

Rule    10.16       limits     the    Commission        to     a    deferential       role,

requiring       a     determination        within       fixed       legal   parameters.

Properly stated, the Commission’s role is strictly an objective

one.     It     requires       deference       to     the    appointing     authority’s

decision in all cases in which the appointing authority has

complied with the Rule 10.16 standard.                             Disposition of this

case therefore depends on a correct understanding of what the

Rule 10.16 standard is, and how it should be applied.

                                           III.

¶13           By way of background, we note that the Commission’s

initial task is to create a record and to ascertain the facts.

Generally,          the    employer     must        prove     the     essential       facts




                                               8
warranting discipline by a preponderance of the evidence.              The

disciplined employee, of course, is entitled to challenge any

or all factual assertions through his or her own evidence.

When it is determined from the evidence that some level of

discipline is warranted, the Commission then reviews the action

taken   by   the   appointing   authority,   not   in   a   broad   context

requiring that the severity of discipline be measured against

the seriousness of the offense, but in a narrow and deferential

context under a Rule 10.16 analysis, whether the action, viewed

objectively, was “arbitrary or taken without reasonable cause.”

¶14          The terms “arbitrary” and “without reasonable cause”

have been defined in our jurisprudence.        In Arizona, “arbitrary

action” has been characterized as “unreasoning action, without

consideration and in disregard of the facts and circumstances.”

Pima County v. Pima County Merit Sys. Comm’n, 189 Ariz. 566,

568, 944 P.2d 508, 510 (App. 1997) (“Mathis”) (quoting Tucson

Pub. Sch. Dist. No. 1 of Pima County v. Green, 17 Ariz. App.

91, 94, 495 P.2d 861, 864 (1972) (“Green”).                 An “arbitrary”

action is one taken “capriciously or at pleasure,” or an action

taken “without adequate determining principle.”               Black’s Law

Dictionary 104 (6th ed. 1990).        Similarly, the phrase “without

reasonable cause” indicates the lack of evidence sufficiently

strong to justify a reasonable person in the belief that the




                                     9
acts charged are true.             See Mathis, 189 Ariz. at 568, 944 P.2d

at 510 (“If the Merit Commission determines the evidence does

not support the charge giving rise to the action taken, it must

revoke the [disciplinary] order because the action taken was

arbitrary or taken without reasonable cause.”).

¶15            Both   terms    —    “arbitrary”     and   “without      reasonable

cause”    —    require    analysis     by    reference    to   these    governing

principles.       The role of the Commission is thus limited as a

matter of law.           The Rule 10.16 standard does not permit the

Commission to substitute its independent judgment simply on the

belief    that    a     reduced     level    of   discipline    would    be    more

appropriate to the offense.

¶16            By imposing a fifteen-day suspension, the Commission

obviously believed that some discipline was justified.                        That

being    the    case,    if   the   discipline     originally    imposed      falls

within the permissible range, it would be unlikely the action

could be seen as arbitrary.6                Ariz. Dep’t of Corr. v. State


6
     Only in a rare situation can a punishment be found
arbitrary   when  it  falls   within  the   permissible  range.
Arbitrariness can arise, for example, when similarly situated
employees receive differing sanctions for the same offense.
See Pinal County v. Pinal County Employee Merit Sys. Comm’n,
211 Ariz. 12, 18, ¶ 18, 116 P.3d 624, 630 (App. 2005) (“Serb”).
Moreover, on admittedly rare occasions, a punishment could be
so unreasonably disproportionate to the offense as to be
arbitrary and without reasonable cause. Cf. State v. DePiano,
187 Ariz. 27, 31, 926 P.2d 494, 498 (1996) (noting that this
Court’s exercise of its statutory power to modify sentences


                                            10
Pers. Bd., 202 Ariz. 598, 600, ¶ 10, 48 P.3d 1208, 1210 (App.

2002).      Similarly, if the record contains credible evidence,

either by admission or by sufficient proof, that the employee

in fact committed acts warranting some level of discipline, it

can scarcely be said that discipline within the permissible

range was taken without reasonable cause.

¶17          Admittedly,        reasonable    minds      may    differ      on   the

appropriateness of one discipline over another.                       That people

may   differ,     however,      bolsters     the    notion     that   discipline,

initially     imposed    within    standards       and   policies     set   by   the

appointing authority, should not be disturbed merely because a

reviewing body sees it as disproportionate.                      In an earlier

case, the court of appeals correctly explained the proper role

of an administrative commission when providing review of an

agency decision:

      In determining whether an administrative agency has
      abused its discretion by acting in an arbitrary and
      capricious manner, we review the record to determine
      whether there has been ‘unreasoning action, without
      consideration  and   in  disregard  for   facts  and
      circumstances; where there is room for two opinions,
      the action is not arbitrary or capricious if
      exercised honestly and upon due consideration, even


_____________________________
within a permitted statutory range will only be exercised in a
“rare” case and that “we had not seen such a case in years”)
(overruled in part on other grounds, State v. Davis, 206 Ariz.
377, 384, 79 P.3d 64, 71 (2003)). Neither such circumstance is
presented in this case.


                                        11
       though   it  may   be  believed              that     an      erroneous
       conclusion has been reached.’

Maricopa County v. Gottsponer, 150 Ariz. 367, 372, 723 P.2d

716, 721 (App. 1986) (quoting Petras v. Ariz. State Liquor Bd.,

129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981) and Green,

17 Ariz. App. at 94, 498 P.2d at 864).

¶18        The court of appeals majority in the instant case

relied on Gottsponer.            There, a nurse employed at the Maricopa

Medical    Center     was       demoted     and     placed     on     a     six-month

performance review cycle.               150 Ariz. at 368-69, 723 P.2d at

717-18.      On     appeal,       the    Commission        reduced    the     nurse’s

discipline to a two-day suspension.                 Id. at 369, 723 P.2d at

718.    The superior court affirmed the Commission’s order.                         Id.

at 369-70, 723 P.2d at 718-19.

¶19        The    court     of    appeals       reversed    and     reinstated      the

employer’s disciplinary order, correctly pointing out that the

duty of the Commission is not to substitute its own judgment,

but only to determine whether the appointing agency had abused

its discretion by acting arbitrarily or unreasonably.                         Id. at

370, 373, 723 P.2d at 719, 722.

¶20        Although       the     result    in    Gottsponer        appears    to    be

correct, the opinion contains the language of the “shocking to

one’s sense of fairness” standard that has led to confusion in

subsequent decisions:


                                           12
       [W]here the finding of guilt is confirmed and
       punishment has been imposed, the test is whether such
       punishment is ‘so disproportionate to the offense, in
       the light of all the circumstances, as to be shocking
       to one’s sense of fairness.’

Id. at 372 (quoting Petras, 129 Ariz. at 452, 631 P.2d at 1107,

and 17 Cameron St. Rest. Corp. v. N.Y. State Liquor Auth., 399

N.E.2d 907, 909 (N.Y. 1979)).               Viewed in context, this language

was most likely an imprecise attempt at further defining the

“arbitrary        and   without      reasonable      cause”   standard.        That

imprecision, while well intentioned, has unfortunately led to

the Commission decision we review today, where the Commission

in    effect    held,     applying    the    “shocking”   standard,     that   its

collective sense of fairness could be substituted for that of

the appointing authority.7

¶21            The standard, “shocking to one’s sense of fairness,”

is    not   the    test   under   Rule      10.16.     Indeed,   that     standard


7
     See also Serb, in which Division Two of our court of
appeals reviewed a Pinal County disciplinary order terminating
a county detention officer for striking a fully restrained
inmate. The Pinal County merit commission, under a standard of
review similar to the Maricopa County standard, (“arbitrary or
taken without reasonable cause”), 211 Ariz. at 16 n.7, ¶ 9, 116
P.3d at 628, determined that the officer’s termination was
shocking to one’s sense of fairness and that the termination
should be revoked and the officer reinstated to his job.    The
court of appeals disagreed and upheld the termination. Id. at
19, ¶ 22, 116 P.3d at 631. While, as in Gottsponer, the result
appears to be correct, the court nevertheless approved the
review standard that included disproportionality that is
“shocking to one’s sense of fairness.”    Id. at 17, ¶ 15, 116
P.3d at 629.


                                            13
conflicts with the rule in that it permits analysis by the

Commission      based     on     perceived      disproportionality       without

deference to the appointing authority.                     Rule 10.16, on the

other hand, is narrowly tailored and creates a standard that

requires deference.           The “shocking” standard, when applied as

part of the Rule 10.16 analysis, effectively encourages the

Commission to review the employer’s discipline from its own

perspective when the penalty happens to bother the individual

consciences     of    Commission     members.       Such    review    process   is

inconsistent with Rule 10.16.            Thus, to the extent Gottsponer

and its progeny are inconsistent with the rationale of today’s

opinion, we disapprove of those decisions.

                                       IV.

¶22          The     MCSO’s    discipline    of   Juarez     fell     within    the

permissible range set by its disciplinary policy and there was

evidence   to      support     it.   There   is     no    contention    that    the

discipline      was    different     from    that    imposed     on     similarly

situated employees, nor can it be suggested that the discipline

is so unreasonably disproportionate to the offense as to be

arbitrary or without reasonable cause.                   The determination was

made on the basis that Juarez lacked the self-restraint needed

to work in close proximity to detainees.                   When an officer is

unwilling or unable to use sound judgment concerning the level




                                        14
of force required to maintain control of restrained detainees,

the employer has discretion to impose discipline and to select

the appropriate level.               When that determination is made, the

Commission,        given     Rule        10.16,     may       not    then     invoke      the

“shocking” standard that permits an independent judgment on the

basis of disproportionality between the level of discipline and

the seriousness of the offense.

¶23           We   therefore        hold    that       the    Commission      erred      as   a

matter of law when it reversed the MCSO’s dismissal of Juarez.

We    further      hold    that     disciplinary          appeals     brought      to     the

Commission in Maricopa County are to be reviewed under Rule

10.16 without reference to the standard, “shocking to one’s

sense of fairness.”

                                        DISPOSITION

¶24           For the reasons set forth, the memorandum decision of

the   court     of   appeals        is    vacated       and    the    judgment      of    the

superior court is reversed.                  Because the Commission exceeded

its   legal     authority,        and    because       the    decision      to   discharge

Juarez   was       neither    arbitrary       nor       taken       without      reasonable

cause,   we     remand       this    matter       to    the     superior      court      with

instructions that the Commission be ordered to reinstate the

discipline imposed by the MCSO.




                                             15
¶25       Because Juarez is not the prevailing party in these

proceedings, he is not entitled to attorneys’ fees.   His motion

for fees is denied.



                         ______________________________________
                         Charles E. Jones, Justice (Retired)
CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice




                               16
