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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                       JUSTIN SHELTON, Appellant,

                                       v.

         STATE OF ARIZONA; ROBERT HALLIDAY, Appellees.

                            No. 1 CA-CV 15-0224
                              FILED 4-14-2016


          Appeal from the Superior Court in Maricopa County
                       No. LC 2014-000320-001
              The Honorable Crane McClennen, Judge

                                 AFFIRMED


                                  COUNSEL

Law Office of Dale Norris, LLC, Phoenix
By Dale F. Norris
Counsel for Appellant

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



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.
                         SHELTON v. STATE et al.
                           Decision of the Court

D O W N I E, Judge:

¶1           Justin Shelton appeals the superior court’s ruling affirming a
decision by Robert Halliday, Director of the Arizona Department of Public
Safety (“DPS”), to terminate Shelton’s employment. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Shelton was employed by DPS as a highway patrol officer.
After he reported for duty under the influence of alcohol, DPS terminated
him.

¶3           Shelton appealed his termination to the Law Enforcement
Merit System Council (the “Council”). The Council conducted an
evidentiary hearing and concluded that DPS had “demonstrated by a
preponderance of the evidence that the material facts on which the
discipline was based are true.” The Council, however, deemed termination
“excessive” and recommended Shelton’s discipline be reduced to a 240-
hour suspension without pay.

¶4            The Director rejected the Council’s recommendation and
issued a final decision terminating Shelton on June 4, 2014. Shelton
appealed to the superior court, which affirmed the Director’s decision. This
timely appeal followed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-913.1

                               DISCUSSION

I.     Substantial Evidence Supports the Director’s Decision

¶5         Shelton first contends the Director’s decision to terminate him
was unsupported by substantial evidence. We disagree.

¶6            A.R.S. § 41-1830.15(A)(9) authorizes the Director to dismiss a
DPS employee for being impaired by alcohol while on duty. See also
Arizona Administrative Code (“A.A.C.”) R13-5-702(B) (authorizing
disciplinary action for reasons listed in § 41-1830.15). Additionally, DPS


1    Although A.R.S. § 12–913 states that the superior court’s decision may
be appealed “to the supreme court,” we have interpreted the 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).


                                      2
                         SHELTON v. STATE et al.
                           Decision of the Court

has adopted a written policy “to maintain a drug and alcohol-free
workplace and work force.” DPS employees are prohibited from: (1)
reporting to duty with the odor of an alcoholic beverage on their breath or
under the influence of alcohol, and (2) operating a DPS vehicle after
consuming alcohol. The policy states that “the inappropriate use of alcohol
by employees may . . . create a danger to public safety, expose [DPS] to civil
liability, jeopardize criminal investigations and prosecutions, and
undermine public confidence.”

¶7            Shelton drove his DPS patrol car and reported to
departmental training with alcohol in his system. After four officers and
two sergeants detected alcohol on his breath, DPS administered duplicate
breath tests that revealed alcohol concentrations of .066 and .062
respectively. Retrograde estimates placed Shelton’s alcohol concentration
at roughly .111 when he drove his DPS patrol car to the training.2

¶8           At the Council hearing, a captain in Shelton’s line-of-
command testified that he had previously warned Shelton about the
consequences of reporting to work under the influence of alcohol. DPS’s
deputy director testified that Shelton’s supervisors had made several
attempts to address Shelton’s drinking. The deputy director stated that
DPS would assume “a lot of risk and a lot of liability” if it retained Shelton.
In a series of memoranda, all four individuals in Shelton’s chain-of-
command recommended his termination.

¶9            The record contains ample evidence supporting the decision
to terminate Shelton.

II.    The Director Did         Not   Improperly     Reject   the   Council’s
       Recommendation

¶10           We also disagree with Shelton’s contention that the Director’s
rejection of the Council’s recommendation was contrary to law. Our
analysis is based on the statutory scheme in effect at the time of Shelton’s
termination.3


2      Pursuant to A.R.S. § 28-1381(G)(3), a person is presumed to be under
the influence of intoxicating liquor with an alcohol concentration of .08 or
more.
3      The relevant statutes have since been amended. The Council’s role
is now more limited in cases when the employing agency proves just cause
for discipline by a preponderance of the evidence. See, e.g., A.R.S. §§ 41-
1830.12(D), 41-1830.16(C) (2015).

                                      3
                         SHELTON v. STATE et al.
                           Decision of the Court

¶11           At the relevant time, the Council was required to first
determine whether DPS had “proven by a preponderance of the evidence
the material facts on which the discipline was based.” See A.R.S. § 41-
1830.12(D)(1) (2012). If the Council answered that question in the
affirmative, as it did here, the statute required it to “affirm the decision of
the director of the employing agency, unless the disciplinary decision was
arbitrary and capricious.” Id. An arbitrary action is one taken “capriciously
or at pleasure,” or an action taken “without adequate determining
principle.” Maricopa Cty. Sheriff’s Office v. Maricopa Cty. Emp. Merit Sys.
Comm’n, 211 Ariz. 219, 222, ¶ 14 (2005) (“Juarez”).

¶12           The Council concluded DPS had established just cause to
discipline Shelton. It stated:

       1. . . . [T]he Council finds that the Arizona Department of
       Public Safety has demonstrated by a preponderance of the
       evidence that the material facts on which the discipline was
       based are true.

       2. The Council finds that [Shelton’s] actions which constitute
       being impaired by alcohol or drugs as provided by ARS Title
       13, Chapter 34, while on duty are grounds on which [Shelton]
       may be disciplined by the Arizona Department of Public
       Safety.

¶13             Arizona law expressly authorizes the Director to dismiss an
employee based on these factual findings. See A.R.S. § 41-1830.15(A)(9). As
such, the Council could recommend modification of the agency’s chosen
discipline only if the Director’s decision was “arbitrary and capricious.” See
Petras v. Ariz. State Liquor Bd., 129 Ariz. 449, 452 (App. 1981) (“[W]here there
is room for two opinions, the action is not arbitrary or capricious if exercised
honestly and upon due consideration, even though it may be believed that
an erroneous conclusion has been reached.”). The Council stated:

       The Council concluded that the disciplinary action was
       arbitrary and capricious because the agency allowed [Shelton]
       to continue working from November, 2013 to January 2014.
       The only other case that had similar circumstances, which the
       Council concluded was more egregious, had a
       recommendation of a 240 hour suspension without pay. The
       Council concluded that [Shelton] should have received the
       same consideration.




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

¶14           The Director was required to accept the Council’s
recommendation “unless the recommendation is arbitrary or without
reasonable justification.” A.R.S. § 41-1830.13(A). In this case, the Director
could reasonably conclude the Council’s recommended discipline lacked
reasonable justification. Even under the more liberal review standards
applicable to the 2014 proceedings, the Council was not authorized to
simply substitute its judgment about the appropriate discipline for that of
the Director. “Only in a rare situation can a punishment be found arbitrary
when it falls within the permissible range.” Juarez, 211 Ariz. at 222 n.6, ¶
16.

¶15            The Council neither explained nor demonstrated how the
termination decision was “without adequate determining principle.”
Juarez, 211 Ariz. at 222, ¶ 14. Although Shelton continued working while
under investigation, he was closely monitored. Moreover, the other case
with reportedly “similar circumstances” also resulted in termination. That
case involved two close-in-time offenses by the same officer that resulted in
simultaneous discipline. DPS gave the officer a letter for a 240-hour
suspension and a termination letter at the same time. Uncontroverted
evidence established that the other officer would have been terminated for
the first offense had it been his only offense.

¶16           We also disagree that the Director acted contrary to law by
failing to detail his reasons for rejecting the Council’s recommendation.
The Director stated:

        1. The Council’s finding that the termination was excessive,
       is not supported by the evidence[, and]

        2. The Council’s Conclusions of Law (number 3), that the
       disciplinary action was arbitrary and capricious is not
       supported by the evidence.

¶17           A.R.S. § 41-1830.13(A) requires the Director to “state the
reason or reasons for rejecting” the Council’s recommendation. The statute
does not, however, mandate findings of fact. When findings of fact are
required in law enforcement merit system proceedings, the regulatory
scheme makes that clear. See, e.g., A.A.C. R13-5-703(U) (“The Council’s
decision shall contain findings of fact.”). “In the absence of a statute or rule
requiring an administrative board to make detailed findings of fact, none
are required.” Justice v. City of Casa Grande, 116 Ariz. 66, 68 (App. 1977).
Although the Director’s stated reasons were brief, they complied with
statutory requirements.



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                        SHELTON v. STATE et al.
                          Decision of the Court

III.   Shelton Did Not Rebut the Presumption of Fairness

¶18           Finally, Shelton asserts due process violations. He contends
the Director “is not a fair and impartial decision maker because he failed to
fairly apprise himself of the record, conduct an adequate review of the
evidence, and is represented by the same attorney who prosecuted the case
before [the Council].” However, under Arizona law, “adjudicators are
presumed to be fair and may be disqualified only upon a showing of actual
bias; mere speculation regarding bias will not suffice.” Pavlik v. Chinle
Unified Sch. Dist. No. 24, 195 Ariz. 148, 152, ¶ 11 (App. 1999). Agencies may
combine investigation, prosecution, and adjudication functions absent a
showing of “actual bias or partiality.” Comeau v. Ariz. State Bd. of Dental
Exam’rs, 196 Ariz. 102, 108, ¶ 26 (App. 1999).

¶19           A party asserting bias “bears the burden of rebutting the
presumption of fairness and establishing a disqualifying interest.” Pavlik,
195 Ariz. at 152, ¶ 11. Shelton has not carried his burden. He presents no
evidence of bias or partiality by the Director. And the record reflects that
DPS made a considered decision to terminate Shelton based on its belief his
termination was in the best interest of DPS and the public after attempts to
curb Shelton’s alcohol abuse failed.

                              CONCLUSION

¶20           We affirm the decision of the superior court. We deny
Shelton’s request for an award of attorneys’ fees incurred on appeal because
he has not prevailed.




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