ALJDEC

01A-120-POS · Peace Officers Standards and Training · 2002-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2002 at 9:00 a.m. APPEARANCES: The Arizona Peace Officer Standards and Training Board appeared through Daniel R. Christl, Esq., Assistant Attorney General; Sarah L. Breeze did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The Arizona Peace Officer Standards and Training Board (“the Board”) presented evidence supporting its decision to penalize Sarah L. Breeze’s Peace Officer Certified Status under Arizona Administrative Code (“A.A.C.”) R13-4-109.A.7 and .8, based on certain alleged misconduct, including a lack of forthrightness and veracity. Pursuant to A.R.S. §§ 41-1092.01 and 41-1822.B.1 and A.A.C. R13-4-118, the undersigned makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Background and Procedure Ms. Breeze has received Peace Officer Certification from the Board. Ms. Breeze was employed by the Winslow Police Department between December 4, 1991 and August 22, 2001, when her employment was terminated. After Ms. Breeze’s case was presented to the Board, it determined cause existed to penalize her certification. The Board sent notice via certified mail of its intended action and the right to request a hearing to Ms. Breeze at her most recent address of record, 520 Madison in Winslow. Ms. Breeze responded by requesting a hearing. The matter was referred to the Office of Administrative Hearings and a hearing scheduled in due course. On January 22, 2002, the Board sent the notice of the hearing scheduled on March 5, 2002 at 9:00 a.m. to Ms. Breeze at the Madison address. The notice alleged that Ms. Breeze had violated A.A.C. R13-4-109.A.7 and .8 by committing the following specific misconduct: 5. On May 16, 2001, Officer Sarah Breeze lied to a supervisor when she told him that she needed a few hours off in order to make a doctor’s appointment that she was unable to reschedule.

6. On May 17, 2001, Officer Sarah Breeze lied during the course of an internal affairs investigation when she reported that she had a scheduled “pre-op” appointment on May 16, 2001, for an upcoming surgery.

After the notice of hearing was sent, Ms. Breeze sent a change-of-address notification to the Board, which also indicated that she still wanted a hearing. The Board resent the notice of hearing to the new address Ms. Breeze had provided, 408 Adams, Winslow, AZ 86047. On March 5, 2002, a hearing was held. Although the start of the hearing was delayed fifteen minutes to allow Ms. Breeze additional travel time, she neither appeared, personally or through an attorney, nor contacted the Office of Administrative Hearings to request that start of the hearing be further delayed or that the hearing be continued. At the hearing, the Board presented the testimony of three witnesses and had admitted into evidence eight exhibits, described below. Hearing evidence Ted E. Brandon, the Board’s Compliance Specialist, testified that the trait of veracity is of utmost importance for a peace officer’s integrity and accountability. A peace officer should be truthful at all times in his or her professional and private lives. Evidence that the peace officer has been untruthful may compromise the public’s and the fact-finder’s trust when the peace officer testifies in court in connection with cases he or she investigates. Mr. Brandon testified that, to maintain public trust in the integrity and accountability of peace officers, they are given a “Garrity Warning” when they are the subject of an internal affairs police department investigation. The Garrity Warning tells the peace officer that information that the officer provides during the investigation cannot be used in a criminal proceeding. But the officer is told that the information can be used in the internal investigation and, if the officer refuses to answer questions, he or she may be dismissed from the agency. Sergeant Wayne Lesperance of the Winslow Police Department testified that, on May 16, 2001, he worked the day shift, from 0600 to 1400 hours. Between 1000 and 1200 hours, Ms. Breeze called him and asked him to cover her shift for an hour or so because she had a doctor’s appointment. Ms. Breeze told Sergeant Lesperance that she had tried to reschedule the appointment but could not. Sergeant Lesperance agreed to cover the first part of Ms. Breeze’s shift. The conversation lasted about a minute. Ms. Breeze did not tell Sergeant Lesperance that she also planned to make a court appearance or run personal errands. Ms. Breeze was to be the on-duty supervisor on her shift that day. At approximately 1554 hours on May 16, 2001, Sergeant Lesperance met up with Officer Quentin Hayes. Officer Hayes asked Sergeant Lesperance why he was still on duty and he told him that he was covering for Ms. Breeze, who had a doctor’s appointment she could not reschedule. Officer Hayes said he had had just come from the Navajo County courthouse in Holbrook, where he had seen Ms. Breeze’s personal vehicle parked. Officer Hayes also told Sergeant Lesperance that a court hearing involving Ms. Breeze’s friend, Jackie Oso, had been scheduled for that date. At approximately 1650 hours on May 16, 2001, Officer Hayes asked to meet with Sergeant Lesperance. When they met at the Visitors Center, Officer Hayes said he had just passed Ms. Breeze coming into Winslow from the east on Interstate 40. Ms. Oso had also been in the vehicle. Sergeant Lesperance asked Officer Hayes if he was sure a hearing involving Jackie Oso had been scheduled for that day. Officer Hayes then made a telephone call to the superior court clerk’s office and was told that there had been an evidentiary hearing involving Ms. Oso in Holbrook at 1430 hours. At approximately 1745 hours, Ms. Breeze appeared for her shift. Sergeant Lesperance referred the matter to Lieutenant James Sepi. On the next day, May 17, 2001, Sergeant Lesperance prepared a memorandum of the events of May 16, 2001, a copy of which was admitted into evidence at the hearing. Also admitted into evidence at the hearing was a memorandum dated March 14, 2001 to “All Employees” of the Winslow Police Department from Lieutenant Sepi on “Integrity,” in part as follows: It is the policy of this administration to promote a high ethical standard. One area of great concern is honesty and truthfulness, especially during Internal Affairs Investigations. In the course of an IA Investigation, officers/employees are compelled to provide information and to answer all questions truthfully. In the past, officers were suspended, demoted, or both for lying after Garrity. From a liability standpoint, we can no longer tolerate any form of deception or lying during internal affairs investigations. A failure to answer truthfully, when proven will result in termination of employment.

Perception is reality. If others perceive police department employees as ethical, they will look on the department more favorably. Being perceived as unethical could be damaging to relationships within and outside the department. An effective policy serves the department when others recognize that employees work as a team in meeting the highest ethical standards in every action. It helps define and reaffirm those core values and ensures that the employees have a strong foundation for making crucial decisions in the absence of policies, procedures, or precedent.

A commitment to tell the truth, respect for other employees and to abide by the laws are all integral to ethical conduct. You took an oath when you entered the law enforcement family. I ask that you reaffirm your oath, recognize the badge as a symbol of public faith, and accept it as a public trust to be held so long as you are true to the ethics of the police service.

[Emphasis in original.] Lieutenant Sepi testified the memorandum was put in every employee’s box. Ms. Breeze told him she had received a copy of it. Lieutenant Sepi testified that he spoke to Ms. Breeze on May 17, 2001. At that time she was given the Garrity Warning and informed that Lieutenant Sepi was conducting an Official Departmental Internal Investigation into whether Ms. Breeze had feigned illness to avoid reporting for duty at the beginning of her shift on May 16, 2001. Lieutenant Sepi taped his interview of Ms. Breeze. He explained that the complaint concerned her request for coverage due to an alleged doctor’s appointment, after which she was seen in Holbrook. Ms. Breeze told Lieutenant Sepi that she had called Dr. Stewart in Flagstaff to reschedule her “pre-op” appointment on May 16, 2001, but refused to provide Dr. Stewart’s full name or telephone number. She also said that she told Sergeant Lesperance that she planned to run errands. Ms. Breeze told Lieutenant Sepi that she did not think what happened on May 16, 2001 was “a big deal” and refused to answer any more questions. Lieutenant Sepi called Dr. Nathaniel Stewart’s office in Flagstaff and spoke to his assistant, Logan Hansan, and appointment desk clerk, Angelica “Helis” Zalazar. Both confirmed that Ms. Breeze did not have any appointment for May 16, 2001 and they had no record or recollection that she had called or stopped by Dr. Stewart’s office on that date. Lieutenant Sepi also contacted Deputy County Attorney Cris Candalaria of the Navajo County Attorney’s Office. Lieutenant Sepi learned that Ms. Breeze had attended an evidentiary hearing in the case, State of Arizona v. Orlinda Gonzales, involving Ms. Oso’s mother. The hearing had been scheduled to begin at 1430 but was delayed until 1455 hours because Superior Court Judge Dale Nielson called Ms. Breeze into her chambers for a conference regarding a possible conflict of interest caused by Ms. Breeze’s presence. The hearing had concluded at 1600 hours. Lieutenant Sepi made several more attempts to interview Ms. Breeze to clarify what had happened but she told him she was unavailable. Lieutenant Sepi told Ms. Breeze that he could not prove what she was telling him without more information. He asked her to sign a consent form for release of medical records, but she refused. On June 15, 2001, Lieutenant Sepi conducted a final interview of Ms. Breeze. On the form containing the questions to be administered on the polygraph test, Ms. Breeze admitted that she did not have an appointment with Dr. Stewart’s office on May 16, 2001. The answers on the form were inconsistent because Ms. Breeze still claimed she had tried to reschedule and had called Dr. Stewart’s office and spoken to Mr. Hansan, although she could not remember the time, and that she had gone to Flagstaff and had seen Mr. Hansan, “sometime before noon.” On June 19, 2001, Lieutenant Sepi informed Ms. Breeze that he was recommending that she be terminated from the Winslow Police Department, effective immediately, based on her violations of internal department regulations and the Board’s regulations. CONCLUSIONS OF LAW The notice of the hearing that the Board mailed to Ms. Breeze at the two addresses she provided was reasonable and she is deemed to have received it.[1] The Board bears the burden of proof and must establish cause for penalties to be imposed on a peace officer’s certification by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[4] The Arizona Legislature has empowered the Board to “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules prescribing reasonable minimum qualifications for officers.[5] The Board may penalize an officer’s certification if it determines that he has committed misfeasance or malfeasance in office or “[a]ny other conduct . . . that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.”[6] Malfeasance and Misfeasance (A.A.C. R13-4-109.A.8) “Malfeasance” is: Evil doing; ill conduct. The commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which person ought not to do at all . . . . Comprehensive term including any wrongful conduct that affects, interrupts or interferes with the performance of official duties. Malfeasance is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all . . . .[7]

Misfeasance is “[t]he improper performance of some act which the person may lawfully do.”[8] The evidence that the Board presented at the hearing establishes that Ms. Breeze lied to Sergeant Lesperance and Lieutenant Sepi about her whereabouts on May 16, 2001, when she was scheduled to be the supervising on-duty officer. The evidence also establishes that Ms. Breeze continued to lie to and refused to cooperate with Lieutenant Sepi during the course of his internal affairs investigation. These acts constitute malfeasance or misfeasance and are cause for the Board to impose discipline against Ms. Breeze’s peace officer certification under A.A.C. R13-4-109.A.7. Conduct Tending to Disrupt, Diminish, or Otherwise Jeopardize Public Trust in the Law Enforcement Profession (A.A.C. R13-4-109.A.9)

Peace officers routinely are called as witnesses in the cases they investigate. An officer who lies during the course of an internal investigation compromises her integrity and veracity and the degree of confidence that her colleagues and the public can have in her trial testimony. Ms. Breeze’s self-serving lies also bring her profession into disrepute. Ms. Breeze’s untruthful answers in an official internal investigation therefore jeopardize public trust in the law enforcement profession and are cause for the Board to impose discipline against her peace officer certification under A.A.C. R13-4-109.A.9. Done this day, March 22, 2002.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

Peace Officer Standards and Training Board Tom Hammarstrom, Executive Director 2643 East University Phoenix, AZ 85040

By ___________________________ ----------------------- [1] See A.R.S. § 41-1061(A).

[2] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[4] Black’s Law Dictionary at page 1201 (6th ed. 1990). [5] See A.R.S. § 41-1822.C.1.

[6] A.A.C. R13-4-109.A.7 and .8.

[7] Black’s Law Dictionary, supra, at 966.

[8] Black’s Law Dictionary, supra, at 1000.

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

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