ALJDEC

00A-019-POS · Peace Officers Standards and Training · 2001-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2001. APPEARANCES: Daniel R. Christl, Assistant Attorney General, appeared on behalf of the Arizona Peace Officer Standards and Training Board. Respondent choose not to personally appear but was represented by Joseph P. Rocco ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

In this matter, the Arizona Peace Officer Standards and Training Board (hereinafter the Board) seeks to revoke Appellant Jon R. Cope’s (hereinafter Cope) certified law enforcement officer status. The Board contends that three grounds exist to revoke the license, alleging that Cope (1) violated A.A.C. R13-4-109(A)(6)(commission of a felony or an offense involving dishonesty), (2) violated A.A.C. R13-4-109(A)(7) (malfeasance, misfeasance, or nonfeasance in office), (3) and violated A.A.C. R13-4- 109(A)(8)(any conduct or pattern of conduct that would tend to disrupt , diminish, or otherwise jeopardize public trust in law enforcement). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. . . . . . . FINDINGS OF FACT 1. Cope has been a certified peace officer in the state of Arizona since before March, 1999. 2. At sometime prior to March, 1999, Cope became employed as a Phoenix Police Officer. 3. In March, 1999, the Phoenix Police Department received an anonymous letter indicating that Cope might have stolen an expensive television set at the place of his former employment at the University of Oregon. [1] 4. As a result of the letter, the Phoenix Police Department began an investigation into whether Cope had ever taken a television set. Detectives Mike McElroy and Detective Mark Ling were assigned to investigate the case. The detectives first contacted the University of Oregon to inquire if Cope had ever been employed by the University and whether a television had been stolen from the university. The detectives learned that a Mitsubishi Large Screen television had been stolen from the Erb Memorial Union Building between August 16, 1996 and August 19, 1996. A police report was taken at the time documenting the theft of the television. The report contained a description of the television as well as the serial number of the television. Testimony at the hearing in this matter established that the value of the television at the time of the theft was approximately $2,700.00. 5. The detectives also learned that Cope had been employed by the university at the Erb Memorial Union building from 1992 to August 23, 1996. He had started out as a student worker and was eventually promoted to manager. He held the manager position at the time of the theft of the television. As a manager, Cope had been given keys to the building which allowed him access to the area where the television was kept. 6. After receiving the above information, the detectives contacted Cope at his home. In Cope’s home the detectives found the television that matched the description of the television that had been stolen. The detectives noticed, however, that the sticker on the exterior of the television which contained the serial number had been removed. With Cope’s acquiescence and assistance, the back of the television was removed revealing an interior location to which the serial number was affixed. The serial number of the television found in the apartment matched the serial number of the stolen television as documented in the police report. 7. While at Cope’s home, the detectives interviewed Cope’s roommate, Shawn Disotel (phonetic spelling). Disotel is also a Phoenix Police Officer. Disotel told the detectives that Cope had offered to sell him the television set for $1,000.00. Cope also told Disotel that he had purchased it in Oregon for $2,000.00. 8. On April 27, 2001, Cope was interviewed by detectives of the Phoenix Police Department’s professional standards bureau to determine how he came into control of the television. During that interview, Cope indicated to the detectives that he had purchased the television from a person by the name of Richard Guinand approximately two to four days before he left Oregon to move to Phoenix. Cope indicated that he had purchased the television for $200.00 dollars, a value far below the $2,700.00 value of the television. Cope was asked if he knew any means how to get in touch with Guinand. Cope responded that he did not and that the last he had heard, Guinand had moved to Bangkok, Thailand. 9. Detective McElroy and Phoenix Police Detective Daniel Courtney were in fact able to locate and reach Guinand who was residing in Switzerland. When Guinand was confronted with Cope’s story, Guinand was upset and denied that he had sold the television to Cope. As Detective Courtney stated at the hearing, Guinand’s response was one of shock. Guinand denied any involvement in the theft of the television. Guinand also told Detective Courtney that Cope knew where Guinand was and that Cope had been contacting Guinand by electronic mail (hereinafter e-mail). The detectives also learned that Cope had been using an e-mail address that was generated through a server at Northern Arizona University in Flagstaff. 10. After contacting Guinand, the detectives secured a search warrant to retrieve transmission data from the Northern University Arizona server pertaining to e-mails sent and received by Cope. Two documents, admitted as Exhibits numbers Four and Five at the hearing in this matter, demonstrate that Cope was in fact sending e-mail to Guinand and receiving e- mail from Guinand before, during and after the interview in which Cope denied that he had knowledge of how to contact Guinand. Exhibit Number 5, for example, shows that Cope sent e-mails--sometimes several in one day—to Guinand on April 16, April 19, April 22, April 23, April 28, April 29, and April 30, 1999. The contents of the April 23, 1999 letter from Guinand to Cope indicate that Guinand was apparently in Switzerland, indicating that he was learning to live “as a Swiss . . . ” 11. Subsequently, during an interview with detectives in September, 1999, Cope admitted that he had sent e-mail to Guinand and had received e- mail from Guinand. Cope indicated to the detectives that he had forgotten about the e-mail contacts with Guinand. 12. As a result of the evidence uncovered regarding Cope’s possession of the stolen television as well as Cope’s dishonesty with regards to his knowledge of the whereabouts of Guinand, POST filed this action seeking to revoke Cope’s certified status as a peace officer in Arizona. CONCLUSIONS OF LAW 1. In this matter, the agency bears the burden of proof to show that the allegations contained in the complaint are true. The standard of proof on all issues is one of the “preponderance of the evidence.” Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Administrative Code R13-4-109 provides the grounds for which the Board may seek suspension or revocation of a license. In this case, the Board alleges that three grounds exist under this regulation upon which Appellant’s certification should be revoked: A.A.C. R13-4-109(A)(6), which indicates that the commission of a felony, an offense that would be a felony if committed in this state, or an offense involving dishonesty can be grounds for sanctions; A.A.C. R13-4-109(A)(7), which states that malfeasance, misfeasance, or nonfeasance can be a basis for levying sanctions; and A.A.C. R13-4-109(A)(8), which provides that any other conduct or pattern of conduct that would tend to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession. 3. The Board has demonstrated by a preponderance that Cope’s certification is subject to sanction under A.A.C. R13-4-109(A)(6). The Board’s evidence shows that Cope committed an offense of dishonesty; namely, controlling stolen property of another knowing or having reason to know the property was stolen. This is demonstrated by the facts that (1) Cope had a stolen television in his possession which had been taken from a secured area in a building located in a different state shortly before Appellant left that state; (2) Cope had access to the secured area of the building where the television was located; (3) the external serial number of the television had been removed from the television; (4) Cope had obtained the television, which had a fair market value of approximately $2,700.00 for only $200.00; (5) Cope had told his roommate in Phoenix that he had paid $2,000.00 for the television in Oregon; and (6) Cope quite obviously attempted to “cover his tracks” by misleading the Phoenix Police Department Detectives as to the whereabouts of Guinand when in fact Cope knew of Guinand’s whereabouts and was in almost daily e-mail contact with Guinand. 4. The Board has also demonstrated by a preponderance of the evidence that a sanction is merited for violating A.A.C. R13-4-109(A)(7). Cope’s violation of this regulation is demonstrated by his dishonesty in respect to the investigation of this matter by telling detectives he had no idea of how to contact Guinand. Unquestionably, based on the evidence adduced of the e-mail transmissions to Guinand, and particularly the fact that these e- mail transmissions were occurring at the same time as the investigation, Cope was aware of a means of contacting Guinand. His claim, made only after being confronted with electronically stored records of e-mail transmissions, that he forgot that he could contact Guinand by e-mail, is incredible. This provides a basis for levying a sanction under (A) (7). 5. Finally, the board has demonstrated that Cope’s conduct in knowingly possessing a stolen television and then trying to cover up that fact from the detectives investigating the incident is conduct that would most seriously jeopardize the public trust in law enforcement. Thus, A.A.C. R13-4-109(A)(8) also provides a ground for imposing sanctions. 6. The Board has requested that Cope’s certification be revoked. In this case in particular, Cope’s dishonesty with respect to the investigation, in conjunction with the evidence that at the very least, Cope possessed property which he knew to be stolen, wholly undermines any trust that the public could place in him as a law enforcement officer. Law enforcement is charged with upholding the laws, not violating them or impeding the search for truth. The sanction of revocation, under the facts of this case as set forth above, is merited. RECOMMENDED DECISION Based on the foregoing, it is recommended that the Board revoke Appellant’s certification as a peace officer. Done this day, December 26, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

. . . . . .

Original transmitted by mail this ____ day of December, 2001, to:

Tom Hammarstrom AZ Peace Officer Standards and Training Bd. 2643 East University Phoenix, AZ 85040

By ___________________________ ----------------------- [1] The letter was admitted into evidence at this proceeding. The undersigned, however, accords it no weight whatsoever in the determination of the substantive issues of this case but merely mentions it here as the catalyst which set into motion the ensuing investigation which culminated in this appeal.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826