ALJDEC decisions subject to certification as final

014F-132525-BTR · Board of Technical Registration · 2014-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2014, at 8:00 a.m. APPEARANCES: Gary Phillip Menser II appeared on his own behalf; the Arizona Board of Technical Registration was represented by John R. Tellier, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In 2012, the Arizona Legislature enacted A.R.S. § 32-122.07.[1] This statute provides that the Arizona State Board of Technical Registration (“the Board”) “shall deny an application for certification as an . . . alarm agent” if the agent had been convicted at any time of any of thirteen enumerated crimes, including theft. A.R.S. § 32-122.07(A)(1) (emphasis added). 2. Before the Legislature enacted A.R.S. § 32-122.07, there was no requirement of state certification for a person to work as an alarm agent. Some municipalities adopted certification programs that have various requirements for persons who worked on security systems within their municipal limits. 3. Gary Phillip Menser II submitted an application for certification as an alarm agent. On February 7, 2014, the Board’s executive director sent a letter informing Mr. Menser that the Board had determined to deny his application based on his conviction for theft in approximately 1989. Mr. Menser requested a hearing on the Board’s denial. 4. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 5. A hearing was held on May 9, 2014. Mr. Menser testified on his own behalf and submitted two exhibits. The Board’s attorney questioned Mr. Menser and made legal argument. 6. Mr. Menser acknowledged that he had been convicted of theft in approximately 1989. 7. Mr. Menser testified that his mother died of an overdose when he was three years old. His father fought his maternal grandparents for custody and won. While he was growing up, Mr. Menser lived in trailers and in goat shacks. His father did not provide any supervision and wrote books about hallucinogenic drugs. Mr. Menser’s father taught him that it was acceptable to use drugs. Mr. Menser started using drugs and behaving irresponsibly. 8. In 1994, Mr. Menser was arrested and as part of a plea agreement, was sentenced to serve six months on probation on the condition that he complete a recovery program. Mr. Menser testified that he started the recovery program on July 1, 1994. For the first ninety days, he resisted the program and insisted that he did not have a drug problem. Then he realized that his level of suffering was commiserate with his level of resistance. 9. Mr. Menser testified that once he came to the realization that drugs were ruining his life in 1994, he became clean and sober. He is now 45 years old and has not used drugs since 1994, after he changed “everything” in his life. He married and had a little boy. The judge ended his probation for the 1994 offense. 10. Mr. Menser testified that he went to work for Telos Field Engineering. In 1999, he went back to school for computer training and went to work for NCR. In 2008, he went to work for Diebold, Inc. 11. Mr. Menser testified that he left California after the position with Diebold, Inc. opened up in Lake Havasu City, Arizona. He started doing locks and alarms, but now does everything for the banking industry in his assigned area. He picks bank combinations and has a key that allows him to work on ATMs unsupervised. He works on security cameras and alarms. Because he is a remote technician, he does all of his work unsupervised. If he is unable to perform his job responsibilities, Diebold, Inc. will have to send someone from Yuma, Phoenix, or Flagstaff. He has passed all background checks for his job and has concealed weapon permits in Arizona and in Utah. 12. Mr. Menser submitted a letter of reference from Kevin J. Mazur, National Account Manager at Diebold, Inc., dated March 3, 2014, to the Board that provided in relevant part as follows: For the past six (6) years, Gary Menser has been employed by Diebold, Inc in the capacity of a Customer Service Engineer. Gary is responsible for the service and maintenance of our financial banking and retail customers’ ATM/Alarm/Camera/Vault and V A T equipment. I was Gary’s Customer Solutions Manager and he, my direct report for the last three (3) years. Aware of Gary’s legal history from when Gary was around 15 years old, the jail time he served, and his sobriety since completing rehabilitation 20 years ago, I’m writing to assist in securing his Alarm Agent License. The Alarm Agent License is a critical piece to compliance with state licensing and the work Gary is to perform. As Gary’s former manager, I can attest not only to his work ethic, but also his character as it relates to my personal interaction with him, his engagement with our customer base, and his peer team of technicians.

Gary is a remote technician operating in what we consider a remote geography covering Lake Havasu, Parker, Bullhead, Kingman, Needles, and Laughlin. Diebold provides Gary a company vehicle, cell phone, laptop, parts and tools to be on call for our customers 24 hours a day, 7 days a week. Gary has been a dedicated and flexible employee dropping anything and everything to ensure our customers are satisfied and their equipment up and running at any hour. Gary is entrusted with access to our customers’ vaults, cash in their ATM machines, and after-hour key access to their branches. My personal interaction with Gary is that of a devoted employee where he is appreciative of the job he holds, he strives to achieve every performance metric and goal asked of him, and is participative and readily communicates ideas for continued process improvement. In short, Gary is an exemplary employee and his ideas for improvement come from an honest place of wanting what is best for our customers and our business.

Following each service repair call, our customers have the option to complete a ‛customer satisfaction survey’. Although Gary manages a smaller customer base than say our technicians in Phoenix, he has the highest number of customers completing this optional survey. Gary is our most decorated associate in Arizona for having the highest satisfaction survey scores and customers providing optional comments whereas they mention Gary by name and thank him for exceeding their expectations. . . .

Gary is a valued team member for sharing his ‛lessons learned’ in the field with technicians around the state to improve troubleshooting and ensures processes are followed. As Team Lead, Gary acts as mentor to many of our technicians helping them acclimate, ensures goals are attained and work shifts are covered. Gary is seen as dependable and flexible as he will shift with other technicians to cover an increase in geography to allow for vacation/sick day coverage. His can-do attitude and optimism is contagious and positively impacts those around him.

In summary, I recommend without reservation, issuing the Alarm Agent License to Gary Menser. Again, this license is critical for continued service of our customer base. Please dismiss his faults from twenty years ago as he had the strength to change his future by completing drug rehab and maintaining sobriety. Gary is a changed man. His past does not reflect the Gary employed by Diebold the last six (6) years, the Gary I have known the last three (3) years, the Gary our customers have grown to respect and appreciate the work he performs and the team members he mentors and enlightens.

CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.[2] 2. The use of the word “shall” in the current version of A.R.S. § 32- 122.07(A)(1) indicates a legislative mandate that affords the Board no discretion but to deny Mr. Menser’s application to be certified as an alarm agent because he was convicted of theft in 1989.[3] 3. Mr. Menser testified credibly that he has overcome substantial adversity that he experienced in his youth, that he has been clean and sober since 1994, that he has extensive experience in jobs in which he has access to his clients’ valuable property, that he has invariably and unwaveringly protected his clients’ property and security, and that for twenty years, he has shown integrity in his professional and personal life. Mr. Menser’s testimony was corroborated by Mr. Mazur’s lengthy letter. 4. On April 22, 2014, the Arizona Legislature amended A.R.S. § 32- 122.07(A) to provide that the Board “may deny an application for certification as an alarm agent if . . . an alarm agent lacks good moral character or has been convicted of an act involving moral turpitude. A lack of good character may be established by evidence of past criminal activity and shall be determined by the Board.”[4] This recent amendment will allow the Board discretion to grant an application for certification as an alarm agent if the applicant establishes that he has been rehabilitated, even if in the past he was convicted of an act involving moral turpitude, such as theft. 5. However, the amendment to A.R.S. § 32-122.07(A) is not yet effective. Mr. Menser may submit another application for certification as an alarm agent to the Board after the effective date of the amendment. At that time, the Board may consider Mr. Menser’s evidence of rehabilitation to determine whether or not to grant him certification as an alarm agent.[5] As noted above, however, the Board has no discretion under the current version of A.R.S. § 32-122.07(A) but to deny Mr. Menser’s application for certification as an alarm agent because in approximately 1989, he was convicted of theft. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its decision to deny Mr. Menser’s application for certification as an alarm agent and dismiss this appeal, without prejudice to Mr. Menser’s right to submit another application after the effective date of the amendment to A.R.S. § 32-122.07(A). In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. Done this day, May 28, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director Board of Technical Registration ----------------------- [1] See Laws 2012, Ch. 341, § 5. [2] See A.R.S. § 32-122.07(A). [3] See, e.g., Fields v. Elected Officials' Ret. Plan, 680 Ariz. Adv. Rep. 15, 23 ¶ 37, 320 P.3d 1160, 1168 (2014). [4] House Bill 2546 (51st Legislature, Second Regular Session). [5] The general effective date of legislation that does not contain an emergency clause or a specific effective date is the 91st()123J`ª«³´µ·ËÌíõüý % day after the date on which the session of the legislature that enacted the legislation was adjourned sine die. See Bland v. Jordan, 79 Ariz. 384, 386, 291 P.2d 205, 206 (1955), overruled on other grounds, Kleindienst v. Jordan, 93 Ariz. 188; 379 P.2d 463 (1963). The 51st Legislature adjourned its Second Regular Session sine die on April 24, 2014, at 1:46 a.m. See www.azleg.gov

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