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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                   TERRY LINCOLN, Plaintiff/Appellant,

                                       v.

   STATE OF ARIZONA; ROBERT HALLIDAY, Defendants/Appellees.

                            No. 1 CA-CV 15-0370
                              FILED 5-19-2016


          Appeal from the Superior Court in Maricopa County
                       No. LC 2014-000386-001
              The Honorable Crane McClennen, Judge

                      VACATED AND REMANDED


                                  COUNSEL

Yen Pilch & Landeen PC, Phoenix
By Neil Landeen, Michael Pang
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michelle Kunzman
Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.
                          LINCOLN v. STATE et al.
                            Decision of the Court

D O W N I E, Judge:

¶1            Terry Lincoln challenges the superior court’s ruling affirming
a decision by Robert Halliday, former Director of the Arizona Department
of Public Safety (“DPS”), to terminate her employment. For the following
reasons, we vacate the superior court’s order and remand for further
proceedings.

                 FACTS AND PROCEDURAL HISTORY

¶2           Lincoln was employed as a sergeant with DPS. In August
2013, she was terminated for inefficiency,1 dishonesty, and “[c]onduct
adverse to the department.”             See Ariz. Rev. Stat. (“A.R.S.”)
§ 41-1830.15(A)(3), (6), (16); Ariz. Admin. Code (“A.A.C.”) R13-5-702(B).

¶3            The termination decision stemmed from events occurring in
Lincoln’s personal life. In May 2011, Lincoln’s sister-in-law filed a
complaint with the Payson Police Department alleging that Lincoln and her
husband had improperly persuaded Lincoln’s mother-in-law and an
elderly family friend, Jack Monschein, to transfer assets to the Lincolns in
violation of A.R.S. § 13-1802(B).2 Specifically, the sister-in-law alleged that:
(1) Lincoln convinced Monschein to make her a beneficiary of his life
insurance; and (2) Lincoln’s husband convinced his mother to quitclaim
property to himself and Lincoln. In connection with these allegations,
Lincoln was served with an order of protection naming her mother-in-law
and sister-in-law as protected parties. Although the Payson Police
Department referred the case to the Gila County Attorney and the Attorney
General, the record does not indicate that any charges were filed against
Lincoln.




1      Inefficiency “means the failure to produce as required for reasons
other than incompetency.” Ariz. Rev. Stat. § 41-1830.15(B)(2).
2      Section 13-1802(B) provides that a person “commits theft if, without
lawful authority, the person knowingly takes control, title, use or
management of a vulnerable adult’s property while acting in a position of
trust and confidence and with the intent to deprive the vulnerable adult of
the property.” Vulnerable adult means “an individual who is eighteen
years of age or older and who is unable to protect himself from abuse,
neglect or exploitation by others because of a physical or mental
impairment.” A.R.S. § 46-451(A)(9).



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                          LINCOLN v. STATE et al.
                            Decision of the Court

¶4            After learning of the above-referenced events, DPS opened an
internal investigation. DPS thereafter terminated Lincoln, concluding that
she: (1) failed to notify her supervisor of the order of protection; (2)
influenced Monschein to name her as a beneficiary, then lied about this fact;
(3) made conflicting statements during the investigation about whether she
knew her mother-in-law planned to quitclaim property to her and her
husband; and (4) brought discredit to DPS.

¶5            Lincoln appealed her termination to the Law Enforcement
Merit System Council (“Council”). See A.R.S. § 41-1830.12(A)(4), (D). The
Council conducted an evidentiary hearing and issued a decision
recommending that the termination decision be reversed. See id. at (D);
A.A.C. R13-5-703(E), (U). The Council concluded that DPS had failed to
prove the allegations of dishonesty and conduct adverse to the agency by a
preponderance of the evidence. Finding that the failure to notify allegation
was supported by the evidence, the Council recommended that Lincoln’s
discipline be reduced to a letter of reprimand.

¶6            The Director rejected the Council’s recommendation as
“arbitrary and without reasonable cause” and terminated Lincoln. See
A.R.S. § 41-1830.13(A). Lincoln appealed, and the superior court affirmed.
See A.R.S. §§ 12-904, 41-1830.13(B). This timely appeal followed. We have
jurisdiction pursuant to A.R.S. § 12-913.3

                               DISCUSSION

¶7            In reviewing the superior court’s decision, we consider the
same question addressed by that court: whether the Director erred by
rejecting the Council’s determination as arbitrary or without reasonable
cause. See A.R.S. § 12-910(E). As we discuss supra, the Director’s review is
materially limited by statute.

I.     The Council’s Recommendation

¶8           Pursuant to A.R.S. § 41-1830.12, the Council was first required
to determine whether DPS had proven the material facts supporting
Lincoln’s termination by a preponderance of the evidence. See A.R.S.

3    Although A.R.S. § 12-913 authorizes appeals to the “supreme court,”
we have interpreted this statute as permitting appeals to this Court. See
Svendsen v. Ariz. Dep’t of Transp., Motor Vehicle Div., 234 Ariz. 528, 533, ¶ 13
(App. 2014).




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                          LINCOLN v. STATE et al.
                            Decision of the Court

§ 41-1830.12(D)(1) (Council shall “determine whether the employing
agency has proven by a preponderance of the evidence the material facts
on which the discipline was based.”4); see also A.A.C. R13–5–703(E) (Council
“shall determine whether the cause for the disciplinary action is supported
by law and the evidence.”). Upon a finding that DPS had not carried its
burden of proof, the Council was authorized to “recommend a proposed
disciplinary action in light of the facts proven.” A.R.S. § 41-1830.12(E). As
our supreme court has observed, the preponderance of the evidence
standard serves an important purpose in the merit system:

        Requiring the employer to establish the alleged grounds for
        discipline by a preponderance of the evidence is consistent
        with basic merit system principles because it ensures the
        employee that any discipline imposed is based not on mere
        allegations by the employer, but on facts found more likely
        than not to be true by a neutral fact-finder. The Council is not
        bound by the facts asserted by the employer, but is required
        to independently find the facts warranting discipline.

Pima Cty. v. Pima Cty. Law Enf’t Merit Sys. Council (Harvey), 211 Ariz. 224,
228, ¶ 21 (2005).

¶9           The Council’s findings of fact reflect that it properly applied
the standard of review set forth in A.R.S. § 41-1830.12. Weighing the
evidence presented at the hearing, the Council concluded:

       There is no credible and reliable evidence that Sergeant
        Lincoln submitted undue influence on Mr. Monschein to
        change his life insurance policy.
       There is no reliable and credible evidence Sergeant Lincoln
        was dishonest in her responses to DPS or Payson Police
        Department investigators.
        ...

       There are no credible or reliable witnesses or evidence to
        dispute Sergeant Lincoln’s claim.



4      Our analysis is based on the statutory scheme in effect at the time of
Lincoln’s termination. The relevant statutes have since been amended. See
H.B. 2377, 52nd Leg., 1st Reg. Sess. (Ariz. 2015).



                                       4
                          LINCOLN v. STATE et al.
                            Decision of the Court

          ...
         There is no evidence of misconduct on or off the job by
          Sergeant Lincoln that would bring discredit upon DPS.
¶10           Based on its findings, the Council concluded DPS had not
proven the material facts supporting the charges of dishonesty and conduct
adverse to the agency by a preponderance of the evidence. It further
concluded DPS had proven the failure to notify charge by a preponderance
of the evidence.5 Because it determined termination was “excessive” as to
that one charge, the Council recommended reversal of the termination
decision, with Lincoln receiving a letter of reprimand and back pay.

II.       The Director’s Decision

¶11            The Director had the statutory authority to review the
Council’s recommendation. See A.R.S. § 41-1830.12(A)(4). His review,
though, was limited by A.R.S. § 41-1830.13(A), which mandated at the time
that he “accept the council’s recommendation unless the recommendation
is arbitrary or without reasonable justification.”6 An “arbitrary action” has
been defined as “unreasoning action, without consideration and in
disregard of the facts and circumstances.” Pima Cty. v. Pima Cty. Merit Sys.
Comm’n (Mathis), 189 Ariz. 566, 568 (App. 1997). “A decision is not arbitrary

5      Lincoln admitted that she had not informed her supervisor of the
order of protection.
6      DPS’s reliance on Ritland v. Arizona State Board of Medical Examiners,
213 Ariz. 187 (App. 2006), is misplaced. Ritland dealt with an appeal from
the Arizona Medical Board’s decision to revoke a physician’s license. Id. at
189, ¶ 5. Pursuant to A.R.S. § 32-1451(J) and (M), the Board could institute
formal proceedings against a licensed physician and impose disciplinary
action. See 213 Ariz. at 189, ¶ 8. Neither the Medical Practice Act, A.R.S. §§
32-1401 to -1491, nor A.R.S. § 41-1092.08 (which applied to such
proceedings) limited the Board’s authority to review and disagree with the
recommendation of a hearing officer except to require written justification
for such disagreement. See 213 Ariz. at 189, ¶ 8. Section 41-1830.13(A) is
materially different. It limits the Director’s authority to reject the Council’s
recommendation solely on the basis that the recommendation was arbitrary
or without reasonable justification. Thus, our holding in Ritland that the
Board could reject the ALJ’s recommendation if it reviewed the record and
found factual support for declining to adopt the ALJ’s credibility findings,
213 Ariz. at 188, ¶ 1, has no application here. Nor does our record establish
that the Director independently reviewed the Council’s proceedings.



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                         LINCOLN v. STATE et al.
                           Decision of the Court

and capricious if it is exercised honestly upon due consideration for facts
and circumstances, even though there may be room for diverse opinions
and it is believed that an erroneous conclusion has been reached.” Evans v.
State ex rel. Ariz. Corp. Comm’n, 131 Ariz. 569, 574 (App. 1982). This Court
has defined “without reasonable cause,” a phrase similar to “without
reasonable justification,” to mean a “lack of evidence sufficiently strong to
justify a reasonable person in the belief that the acts charged are true.”
Maricopa Cty. Sheriff’s Office v. Maricopa Cty Emp. Merit Sys. Comm’n (Juarez),
211 Ariz. 219, 222, ¶ 14 (2005).

¶12             The record does not support the Director’s conclusion that
the Council’s decision was arbitrary or without reasonable cause. Instead,
it reveals differing positions regarding a family dispute about the transfer
of assets. DPS and Lincoln presented conflicting evidence at the Council
hearing. The Council’s role as the neutral fact-finder was to weigh that
evidence and determine the credibility of the witnesses. See Harvey, 211
Ariz. at 228, ¶ 21 (describing the role of a merit system council as a “neutral
fact-finder”); Mathis, 189 Ariz. at 568 (quasi-judicial body determines
credibility of witnesses, reconciles conflicting evidence, and weighs
sufficiency of the evidence).

¶13           DPS charged Lincoln with “dishonesty” — alleging that she
denied proposing the change in Monschein’s life insurance beneficiary and
made conflicting statements about whether she knew her mother-in-law
was planning to quitclaim property to herself and her husband. The
Council, however, found that “[w]itness statements, including those of
Dr. David Glow MD and Attorney Doris Wait, indicated that Mr. Jack
Monschein was not mentally incapacitated when he changed his $10,000
Life Insurance Policy to name Terry Lincoln as his beneficiary.” In addition,
the Council accepted Lincoln’s testimony that she was not present when a
notary declined to execute documents based on her mother-in-law’s
condition.7

¶14         DPS also charged Lincoln with “conduct adverse to the
department” — alleging that the Payson Police Department’s investigation


7    As part of its investigation, DPS interviewed Lincoln for 16 hours and
administered a polygraph examination. The Director considered the
polygraph results in terminating Lincoln. However, at the Council hearing,
the deputy director testified there was sufficient evidence supporting
Lincoln’s termination without the polygraph results.




                                      6
                          LINCOLN v. STATE et al.
                            Decision of the Court

of Lincoln “brought discredit” to the agency.8 Based on the hearing
evidence, the Council found “no evidence of misconduct on or off the job
by Sergeant Lincoln that would bring discredit upon DPS.” The Council
further found that the police department’s investigation “was the result of
dubious claims made by [Lincoln’s sister-in-law]” and that “DPS ignored
the obvious bias and misinformation in the Payson Police Department
reports, statements from several witnesses and omissions of several
witnesses who would be favorable to Sergeant Lincoln.” The Council also
noted that neither the Gila County Attorney nor the Attorney General had
filed charges and concluded they “are unlikely to do so.”

¶15           “[M]erit systems embrace the notion that hiring, retention,
and dismissal of public employees should be based on the employees’ merit
and competence . . . .” Harvey, 211 Ariz. at 227, ¶ 14. Although there is
room for differing opinions about the facts uncovered in the internal
investigation, the record establishes that the Council made its findings and
recommendation “honestly upon due consideration for facts and
circumstances.” Evans, 131 Ariz. at 574. Because the Council’s decision was
not arbitrary or without reasonable justification, the Director abused his
discretion by rejecting it. Cf. Berndt v. Ariz. Dep’t of Corr., 238 Ariz. 524, ¶ 2
(App. 2015) (Employing agency may “amend, modify, reject, or reverse the
Board’s decision only upon a finding that it is arbitrary and capricious”).
Having determined that the Director erred by rejecting the Council’s
recommendation, we need not address Lincoln’s constitutional arguments.
See Freeport McMoRan Corp. v. Langley Eden Farms, LLC, 228 Ariz. 474, 478,
¶ 15 (App. 2011) (Appellate courts “do not issue advisory opinions or
decide unnecessary issues.”).

                                CONCLUSION

¶16           We vacate the order of the superior court and remand for
entry of an order reinstating Lincoln and for further action under A.R.S.
§ 38-1107(C).9 Lincoln requests an award of attorneys’ fees and costs on

8    It does not appear that the Director specifically disagreed with the
Council’s findings regarding this allegation.
9    Section 38-1107(C) states:

       If the superior court finds that just cause for a demotion or
       termination did not exist, the court shall order the officer
       reinstated to the officer’s previous position with the law
       enforcement agency and may award to the law enforcement



                                        7
                       LINCOLN v. STATE et al.
                         Decision of the Court

appeal. Pursuant to A.R.S. § 12-348(A)(2), we will award Lincoln
reasonable attorneys’ fees and costs upon compliance with Arizona Rule of
Civil Appellate Procedure 21(b).




                               :ama




      officer monetary damages that shall not exceed the officer’s
      combined total of wages and benefits during the period of
      imposed disciplinary action that was lost as a result of the
      demotion or termination.



                                      8
