                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 ROBERT NYSWANER, 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; JOSEPH C. SMITH, in his capacity as a member of the
    Arizona State Personnel Board; MARK ZISKA, in his capacity as a
 member of the Arizona State Personnel Board; JIM THOMPSON, in his
 capacity as a member of the Arizona State Personnel Board; PATRICK
   QUINN, in his capacity as a member of the Arizona State Personnel
 Board; MARK STANTON, in his capacity as a member of the Arizona
               State Personnel Board, Defendants/Appellees.

                             No. 1 CA-CV 14-0015
                               FILED 2-12-2015


           Appeal from the Superior Court in Maricopa County
                        No. LC2012-000685-001
               The Honorable Crane McClennen, Judge

                                  AFFIRMED
                        NYSWANER v. ADC, et al.
                          Decision of the Court

                                 COUNSEL

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

Ryley Carlock & Applewhite, PA, Phoenix
By Lisa S. Wahlin
Counsel for Defendant/Appellee Arizona Department of Corrections

Jackson Lewis, LLP, Phoenix
By Jeffrey A. Bernick
Counsel for Defendants/Appellees Arizona State Personnel Board and its
members


                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1           Robert Nyswaner challenges a decision by the Arizona
Department of Corrections (“ADC”) to demote him from correctional
Lieutenant to correctional Sergeant following admitted misconduct.
Nyswaner argues that his disciplinary proceedings did not comply with
timelines specified by ADC policy. Nyswaner further argues that the State
Personnel Board (“Board”) erred by remedying an alleged discovery
violation by ADC by ordering a new hearing, rather than by permanently
precluding the evidentiary use of untimely disclosed documents. For
reasons that follow, we reject Nyswaner’s arguments and affirm the
superior court’s decision to uphold the discipline imposed by the Board.

                              BACKGROUND

¶2            Nyswaner became a correctional Lieutenant at the Arizona
State Prison Complex-Lewis (“Prison”) in 2002. In June 2011, Nyswaner’s
supervisors commenced an investigation into allegations that Nyswaner
had committed numerous violations of ADC procedures and policies,
including the unauthorized possession of a restricted file cabinet key (“Key



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                       NYSWANER v. ADC, et al.
                         Decision of the Court

Charge”) and several instances of staff/inmate misconduct (“Inmate
Misconduct Charge”).1

¶3            As a result of a contemporaneous audit, the Prison Warden
learned that Nyswaner had authorized and submitted incorrect and
unverified personal attendance reports (“PAR”) prepared by a correctional
officer under his supervision. The audit led to an additional investigation
and charge against Nyswaner (“PAR Charge”). Although he attempted to
justify and minimize his conduct, Nyswaner admitted the Key and Inmate
Misconduct Charges, and he admitted he did not verify his subordinate’s
attendance reports as required before submitting them to payroll.

¶4          The Warden requested three extensions of time to investigate
and conclude the disciplinary process. Each request was approved, and on
December 16, 2011, the disciplinary proceedings ended with Nyswaner
being demoted to Sergeant.

¶5            Nyswaner appealed his demotion to the Board, arguing he
did not violate ADC’s policies and procedures as alleged. The Board,
pursuant to Nyswaner’s request, issued a subpoena duces tecum directing
ADC to produce, among other items, internal documentation of the
Warden’s extension requests (“Extension Memoranda”). ADC did not
disclose the Extension Memoranda to Nyswaner prior to the February 17,
2012 appeal hearing (“First Hearing”).



1     ADC alleged in particular that Nyswaner:

      (1)    removed a file cabinet key from a restricted key set without
      authority, personally possessed the key, and when confronted,
      untruthfully responded that he did not have the missing key;
      (2)    permitted unauthorized inmates to use a State-owned
      computer that could access the internet, the prison’s intranet, and
      administrative “shared drives,” and, on a separate occasion, to
      download music to that computer;
      (3)    allowed an inmate to have an unauthorized “food visit;”
      (4)    allowed a subordinate officer to give an inmate a personal
      note the officer’s six-year-old daughter had written to the inmate;
      and
      (5)    had knowledge of, but did not report, the fact that several
      inmates had been improperly released from their cells to assist in
      work projects, including cleaning a restricted room known as the
      “War Room” that contained sensitive information and equipment.
                                    3
                         NYSWANER v. ADC, et al.
                           Decision of the Court

¶6            During opening statements at the First Hearing, Nyswaner
asserted for the first time that ADC had not timely completed the
disciplinary proceedings at issue. The hearing proceeded, and, while
questioning the Warden during its case-in-chief, ADC referred to the
Extension Memoranda. Nyswaner objected to the evidentiary use of the
documents because they had not been disclosed. Nyswaner agreed,
however, with conditionally admitting the Extension Memoranda into
evidence “to just get the hearing done,” and requested that he be given an
opportunity to present further evidence and argument if the hearing officer
were to conclude that the documents were relevant to the decision.

¶7             At the conclusion of evidence, the hearing officer
recommended that the Board reset a de novo hearing to ameliorate any
prejudice to Nyswaner from the untimely disclosure of the Extension
Memoranda. The hearing officer found: (1) the failure to timely disclose
was unintentional; (2) administrative case law generally favors resolving
cases on the merits rather than on procedural grounds; and (3) a new
hearing would “render[] the [disclosure] violation harmless.” See Duron v.
State ex rel. Dep’t of Econ. Sec., 145 Ariz. 99, 100, 699 P.2d 1330, 1331 (App.
1985) (“It is the announced general policy of the law that cases should be
tried on their merits and not disposed of on technicalities.”) (internal
quotation marks and citation omitted). Nyswaner objected to the
recommendation, arguing that the hearing officer should have instead
rendered a decision without considering the Extension Memoranda. The
Board rejected Nyswaner’s arguments and ordered that a new hearing be
conducted by a different hearing officer.

¶8            On August 31, 2012, Nyswaner and the Warden testified at
the reset hearing (“Second Hearing”), and the hearing officer admitted the
Extension Memoranda over Nyswaner’s objection. Nyswaner again
admitted the allegations against him, and the hearing officer recommended
denying Nyswaner’s appeal and sustaining his demotion. The hearing
officer expressly rejected Nyswaner’s argument that his demotion should
be reversed because the Board had violated its procedures and policies by
extending the time to conduct the misconduct investigation. The Board
unanimously adopted the hearing officer’s recommended findings,
conclusions, and disposition.

¶9            Nyswaner appealed to the superior court, again arguing ADC
violated Arizona law by failing to timely disclose the Extension
Memoranda, and that the proper remedy was exclusion of the evidence, not
a de novo hearing. Nyswaner also argued that ADC violated its own policies
regarding the granting of investigation extension requests. In a signed

                                      4
                          NYSWANER v. ADC, et al.
                            Decision of the Court

minute entry, the superior court affirmed the Board’s decision. Nyswaner
moved for reconsideration. Before the court ruled on Nyswaner’s post-
judgment motion, Nyswaner timely appealed from the court’s minute entry
ruling. 2 We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§
12-913 and 41-783(G).3

                                 DISCUSSION

I.     Standard of Review.

¶10           A party may appeal the Board’s decision to the superior court
on the ground that the decision was “[f]ounded on or contained [an] error
of law,” was “[u]nsupported by any evidence as disclosed by the entire
record,” was “materially affected by unlawful procedure,” violated a
constitutional provision, or was arbitrary or capricious. A.R.S. § 41-783(F).4

¶11          In reviewing the superior court’s judgment, we reach the
same underlying issues as did that court in reviewing the Board’s decision.
See Pima Cnty. v. Pima Cnty. Merit Sys. Comm’n, 189 Ariz. 566, 569, 944 P.2d
508, 511 (App. 1997). We review a hearing officer’s admission of evidence


2       Relying on Craig v. Craig, 227 Ariz. 105, 253 P.3d 624 (2011), ADC
asserts that the notice of appeal Nyswaner filed was premature because of
his pending motion for reconsideration in superior court. In Craig, the
Arizona Supreme Court held that “a notice of appeal filed in the absence of
a final judgment, or while any party’s time-extending motion is pending
before the trial court, is ‘ineffective’ and a nullity.” Id. at 107, ¶ 13, 253 P.3d
at 626. Here, neither of these preconditions are implicated. The signed
minute entry ruling was a final judgment (and Nyswaner timely appealed
from it), and Nyswaner’s motion for reconsideration was not a time-
extending motion. See Focal Point, Inc. v. Court of Appeals, 149 Ariz. 128, 129,
717 P.2d 432, 433 (1986) (holding that a minute entry is a final judgment if
it is signed by a judge and filed with the clerk); Ariz. R. Civ. P. 7.1(e)
(motions for reconsideration “shall not operate to extend the time within
which a notice of appeal must be filed.”).

3     Absent material revisions after the relevant date, we cite a statute’s
current version.

4      Effective September 29, 2012, the statute was renumbered from
A.R.S. § 41-785 to A.R.S. § 41-783. 2012 Ariz. Sess. Laws, ch. 321, § 122 (2nd
Reg. Sess.).


                                        5
                          NYSWANER v. ADC, et al.
                            Decision of the Court

for an abuse of discretion. See Epperson v. Indus. Comm’n, 26 Ariz. App. 467,
471, 549 P.2d 247, 251 (1976) (“Hearing officers, like trial judges, have broad
discretion in determining whether to admit matters into evidence.”). We
review issues of statutory interpretation and other questions of law de novo.
Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980 (2006); City of
Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178, ¶ 5, 181 P.3d 219,
225 (App. 2008).

II.    Proper Remedy for Disclosure Violation.

¶12            Pursuant to statute and the subpoena issued to ADC, the
agency was required to disclose the Extension Memoranda to Nyswaner no
later than ten business days before the First Hearing. A.R.S. § 38-1101(D)(2)
(2012)5 (“[N]o later than ten business days before the appeal hearing, the
employer and the law enforcement officer . . . shall exchange copies of any
documents that may be introduced at the hearing and that have not
previously been disclosed.”). Because ADC did not timely disclose the
Extension Memoranda, the admissibility of those documents in the
administrative hearings is governed by A.R.S. § 38-1101(H), which provides
as follows:

       A party who violates . . . subsection E . . . of this section, unless
       the violation is harmless, shall not be permitted to use that
       evidence at the hearing, except on a showing of good cause.
       The hearing officer or administrative law judge, on a showing
       of good cause, may grant the opposing party a continuance,
       otherwise limit the use of the evidence or make such other
       order as may be appropriate.

¶13          Nyswaner argues the Board erred as a matter of law by
ordering the Second Hearing instead of finding that the Extension
Memoranda was inadmissible. Nyswaner asserts that the disclosure
violation was not harmless or justified by good cause, and thus the Board
did not have discretion under § 38-1101 to remedy the violation other than
by ordering the Extension Memoranda inadmissible. Nyswaner also
contends the “specific statute,” A.R.S. § 38-1101, controls the “general rule”




5      The legislature revised and renumbered § 38-1101 effective August
2, 2012. See 2012 Ariz. Sess. Laws, ch. 276, § 1 (2nd Reg. Sess.). Therefore,
throughout this decision, we cite the version in effect at the time of the First
Hearing. See 2011 Ariz. Sess. Laws, ch. 230, § 4 (1st Reg. Sess.).
                                        6
                        NYSWANER v. ADC, et al.
                          Decision of the Court

favoring resolution of administrative actions on the merits instead rather
than on procedural grounds.

¶14           We reject Nyswaner’s arguments for two reasons. First,
although § 38-1101 can be a basis for preventing a party from using
untimely disclosed evidence at a hearing, the statute does not preclude the
option of vacating the hearing and setting a new one so the prejudiced party
has an adequate opportunity to review the late-disclosed materials. And
any alleged prejudice was in fact harmless because Nyswaner was afforded
time to review the documents at issue prior to the Second Hearing.6

¶15           Second, ADC showed good cause to justify the late disclosure.
Prior to opening statements at the First Hearing, Nyswaner had not
indicated an intent to challenge his demotion on the basis that ADC’s
investigation was untimely. ADC’s attorney thereafter explained that the
failure to disclose was inadvertent, and Nyswaner did not dispute that
characterization. Indeed, Nyswaner’s attorney expressly did not fault the
Warden or opposing counsel and admitted they “probably didn’t know
that I didn’t have [the documents] until today.” These comments by
counsel support the Board’s finding that the late disclosure was
unintentional, and on this record, we conclude the Board acted within its
broad discretionary authority under § 38-1101(H) by ordering the Second
Hearing, rather than precluding ADC from introducing in evidence the
Extension Memorandum.

III.   Timeliness of Demotion.

¶16            Nyswaner argues that he is entitled to relief because ADC
violated its policy requiring imposition of employment discipline within 60
days of the date an employee receives notice of misconduct allegations and
does not dispute them. He claims ADC’s policy does not allow extensions
to the 60-day limit; thus, because he did not dispute the charges, Nyswaner
contends the extensions in this case were improper. Additionally,
Nyswaner argues that no extension request was made regarding the PAR
Charge, and he asserts the third extension request violated ADC policy
because it did not specify the reasons an extension was needed. Based on


6       We reject Nyswaner’s position that the Second Hearing unfairly
prejudiced him because it resulted in continued stress and expenditures of
resources. This is not the type of due process prejudice contemplated under
§ 38-1101. Further, contrary to Nyswaner’s implication, § 38-1101 does not
require specific findings regarding harmlessness and/or good cause
justifying a particular remedy imposed for a discovery violation.
                                     7
                         NYSWANER v. ADC, et al.
                           Decision of the Court

the purported lack of evidence that ADC followed its own policies
regarding the timeframes within which to impose discipline, Nyswaner
asserts the Board arbitrarily and capriciously upheld his demotion. We
disagree.

¶17           ADC’s alleged failure to follow its own policies was not
actionable in this context. Nyswaner does not assert that the disciplinary
timelines were part of a negotiated employment agreement or were
otherwise contractually mandated. Nor does Nyswaner assert that the
alleged delay prejudiced his ability to defend against the allegations.
Accordingly, he has not established a basis for relief.

¶18           Furthermore, the record reflects that the extensions were
granted at least in part for Nyswaner’s benefit. The Warden requested
extensions so the three charges against Nyswaner could be combined into
one disciplinary action. By combining the charges, Nyswaner avoided
being immediately dismissed from employment, which was an available
option for any of the charged offenses. Moreover, the evidence showed that
Nyswaner was voluntarily absent from work for six weeks during the
investigation, which contributed to the need for the second and third
extensions.

¶19           Finally, the record reflects that ADC in fact followed its
policies. Although ADC’s written policy only addresses extensions in cases
involving the 120-day time limit, the policy does not preclude extensions in
cases involving the 60-day time limit, and the court properly admitted
testimony from the Warden that she interpreted the policy as allowing such
extensions.7 See, e.g., Baca v. Ariz. Dep’t of Econ Sec., 191 Ariz. 43, 45–46, 951
P.2d 1235, 1237–38 (App. 1997) (agency’s interpretation of statutes and its
regulations “entitled to great weight”). Further, the Warden testified that,
because Nyswaner did not fully admit to the “totality of the [PAR]
allegation” (an allegation that also required inquiry into the subordinate
officer’s apparent misconduct), extensions were necessary to conduct the
investigation and determine the appropriate discipline.

¶20           For the foregoing reasons, the Board did not abuse its
discretion or unfairly prejudice Nyswaner by ordering a de novo hearing.



7      The written policy states: “In extenuating circumstances,
Investigators and approving authorities shall submit a request to the
Director, through their respective chain of command, requesting approval
to extend the 120-calendar day time frame.”
                                        8
                       NYSWANER v. ADC, et al.
                         Decision of the Court

The Board’s decision upholding Nyswaner’s demotion was not legally
erroneous and was neither arbitrary nor capricious. See A.R.S. § 41-783(F).

                             CONCLUSION

¶21          We affirm the Board’s decision upholding Nyswaner’s
demotion.




                                  :ama




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