ALJDEC decisions subject to certification as final

08A-2008001-AJFD · Apache Junction Fire District · 2008-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2008 at 9:00 a.m. APPEARANCES: Appellant Dave McCormick appeared through Kathryn R.E. Baillie, Esq., Michael Napier, P.C.; Respondent Apache Junction Fire District appeared through Donna M. Aversa, Esq., Leonard & Felker, P.L.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. Apache Junction Fire District (“AJFD”) provides medical, rescue, and other community services to the public, primarily in Apache Junction, Arizona. 2. AJFD is a paramilitary organization with a clear chain of command. In August 2007, Chief John Flynn led AJFD. Deputy Chief Dan Campbell[1] and Deputy Chief Charles C. Zanella reported to Chief Flynn. Three Battalion Chiefs reported to the Deputy Chiefs. A Battalion Chief commanded each of AJFD’s three platoons. Each platoon is assigned to one of AJFD’s four stations. 3. Crews at each of AJFD’s fire stations work 24-hour shifts. Crews generally consist of four of five personnel: a Captain, an Engineer, and two or three Firefighters, most of whom are also paramedics. Although crews that are assigned to a platoon are under the assigned Battalion Chief’s command, because Battalion Chiefs spend a significant amount of time out on the road, crews are most often under the most direct command of their captain. The Engineer is second in command. 4. Crews live communally during their 24-hour shifts. Each station has a kitchen, where the crew cooks and eats together, a living area, and bunk rooms. 5. AJFD requires fire-fighting personnel to engage in at least two hours of physical training (“PT”) during their 24-hour shifts, an hour of cardiovascular and an hour of weight training, so that they can maintain the physical conditioning necessary to respond to calls for assistance. 6. A firefighter’s job requires that he or she be physically fit for duty. For example, on calls for medical assistance, firefighters may be required to lift heavy patients. On calls for structural fires, firefighters may be required to enter buildings wearing their full gear, which weighs approximately 40 pounds. Firefighters observe the “2 in, 2 out” rule, which means that, if two firefighters go into a burning building, two firefighters must remain outside to rescue their comrades if necessary. The Appeal at Issue 7. Appellant Dave McCormick has worked for AJFD for 21½ years. He has been a captain for 14 years. On October 1, 2005, Capt. McCormick acknowledged receipt of the August 2005 4th Edition of the AJFD Personnel Policy Manual adopted by its governing board. 8. On August 31, 2007, Capt. McCormick was given notice pursuant to AJFD Personnel Policy 116.04.2 that he was under investigation for conduct in violation of AJFD’s policies. The investigation was conducted by his Battalion Chief Mike Farber. 9. On September 10, 2007, Battalion Chief Farber provided his Investigation Report to Chief Flynn. Battalion Chief Farber summarized his investigation and concluded that Capt. McCormick had violated AJFD Personnel Policies 112.03, Failure to Obey an Order,[2] 112.11, False Reports,[3] 113.01 Employee Conduct/Unbecoming Conduct,[4] 113.02, Neglect of Duty,[5] and 114.02, Insubordination.[6] 10. In his September 10, 2007 report, Battalion Chief Farber summarized Capt. McCormick’s disciplinary history of counseling on four occasions since March 7, 2007 for his crew’s failures to meet AJFD’s standards for employee performance, including twice for allowing his crew to sleep during on-duty work hours and once for being unable to hold Firefighter Jim Swann accountable for poor performance issues. Based on the violations that he found and Capt. McCormick’s disciplinary history, Battalion Chief Farber recommended that Capt. McCormick be demoted two levels, to Firefighter. 11. On September 14, 2007, a review panel reviewed Battalion Chief Farber’s report and approved the recommended demotion of Capt. McCormick. 12. On September 18, 2007, Battalion Chief Farber notified Capt. McCormick of his demotion to firefighter, effective September 25, 2007, based on his violation of the four charged policies. 13. On September 24, 2007, Capt. McCormick appealed the demotion to Chief Flynn. Capt. McCormick disputed the facts found by Battalion Chief Farber and the significance of these facts. 14. Chief Flynn appointed a Fact-Finding Advisory Committee consisting of two other Battalion Chiefs and two Captains to review Battalion Chief Farber’s recorded interviews of various witnesses. The Advisory Fact-Finding Committee on November 12, 2007 recommended that the evidence supported Capt. McCormick’s demotion. 15. Effective November 28, 2007, therefore, Capt. McCormick was demoted two levels to firefighter. He appealed the demotion to the Office of Administrative Hearings pursuant to AJFD personnel policy 118.01. 16. A hearing was held on the Office of Administrative Hearings on February 15, 2008. Ten witnesses testified, including Capt. McCormick[7] and Battalion Chief Farber, and 23 exhibits were admitted into evidence pursuant to the parties’ stipulations. Ultimate Frisbee 17. AJFD’s workers’ compensation insurer had threatened to terminate coverage based on the number of injuries that its employees were sustaining on the job by engaging in competitive ball sports for PT. Chief Flynn thereafter issued a directive that employees would no longer be allowed to play ball sports while on duty. Chief Flynn told his subordinates that, “if you can kick it, throw it, or catch it,” the activity was not allowed for the required two hours per shift of PT. 18. “Ultimate Frisbee” or “Frisbee football” does not involve physical contact between players. However, it is somewhat similar to soccer. Players must sprint to catch a Frisbee thrown by a team member. 19. Ultimate Frisbee was a popular PT activity among AJFD crews. It provided a superior cardiovascular workout with far less tedium than running on a track or treadmill. AJFD had no written policy expressly prohibiting Ultimate Frisbee, although there were rumors at AJFD that Ultimate Frisbee was prohibited by Chief Flynn’s policy on ball sports. 20. Deputy Chief Campbell joined AJFD in March 2007. Before that, he had spent five years as the Chief of the fire district in Corvallis, Oregon. 21. Shortly after Deputy Chief Campbell joined AJFD, before he knew about Chief Flynn’s policy on ball sports, AJFD Capt. Craig Horvath asked him what activities firefighters played in Corvallis to maintain fitness. Deputy Chief Campbell described a basketball game similar to “HORSE.” Capt. Horvath described Ultimate Frisbee to Deputy Chief Campbell. Capt. Horvath did not ask permission to play Ultimate Frisbee and Deputy Chief Campbell did not tell Capt. Horvath that Ultimate Frisbee was not allowed on duty. 22. Capt. Horvath was the vice president of AJFD’s union. He told other firefighters, including Capt. McCormick, that Deputy Chief Campbell had said it was okay to play Ultimate Frisbee. In approximately mid-July, 2007, some AJFD crews resumed playing Ultimate Frisbee. The August 2, 2007 Incident 23. On August 2, 2007, Captain McCormick was the captain on duty on Engine 262. The crew on that day consisted of Engineer Andrew (“Drew”) Colby and Firefighters Julanna (“July”) Ritschel and James (“Jim”) R. Swann. 24. On the morning of August 2, 2007, near the beginning of the shift, Engine 262 was challenged to a game of Ultimate Frisbee at playing fields located at an Apache Junction elementary school. This was the first time in a while that Capt. McCormick’s crew had played Ultimate Frisbee against another crew. 25. When Engine 262 arrived at the playing fields, Engine 261 under the command of Capt. Mike Gregorie and Ladder 263 under the command of Capt. Horvath were completing a game of Ultimate Frisbee. 26. It was decided that Capt. Gregorie’s crew would play Capt. McCormick’s crew. Capt. Horvath and his crew left. 27. At some point during the August 2, 2007 Ultimate Frisbee game, while Capt. McCormick was sprinting downfield, he felt a “pull” in the arch of his right foot. 28. After the injury, Capt. McCormick testified that his foot “hurt like heck.” He started walking with noticeable limp. 29. Capt. McCormick and his crew were concerned that that his injury would mean that AJFD crews would no longer be allowed to play Ultimate Frisbee, which was a very popular and potent PT. After news of Capt. McCormick’s injury spread to other AJFD crews, the concern regarding the status of Ultimate Frisbee became more widespread. 30. After Capt. McCormick’s crew completed the game and left the elementary school playing grounds, they joked about the other ways other than playing Ultimate Frisbee in which Capt. McCormick could have injured his foot, such as running to the truck. The conversation was not meant to suggest that the crew engage in any deception as to the cause of Capt. McCormick’s injury. 31. Capt. McCormick testified that he did not hear his crew’s remarks because he was distracted by his pain. He may not have had his headset on. He may have been speaking to his wife on his cellular phone. 32. After Capt. McCormick arrived at Engine 262’s station, he went to the bunkroom, elevated and iced his right foot, and took ibuprofen. He hoped the pain in his foot was caused by a sprain and would resolve on its own. 33. After Capt. McCormick injured his right foot, either during the Ultimate Frisbee game or after Engine 262 returned to the station, it received a low priority medical call, either Code or Code 3. Capt. McCormick responded to the call with his crew. 34. Engineer Colby testified that, at the station, Capt. McCormick was “doing the best he could” to remain on duty, but it was obvious that he would need treatment. When the call was received, Capt. McCormick was able to get into the truck without help. But when the crew got to the call, Capt. McCormick’s movements were “not pretty”; his pain was “obvious.” 35. Firefighter Ritschel testified that she did not remember Capt. McCormick having any difficulty responding to a call. She had spent most of her free time on the August 2-3, 2007 shift studying for a paramedic class. Firefighter Swann did not testify at the hearing. 36. Capt. McCormick completed his August 2-3, 2007 shift and left the station the morning of August 3, 2007. 37. No AJFD firefighters have played Ultimate Frisbee as PT since Engine 262 and Engine 261’s game on August 2, 2007. The Report of and Investigation into the Industrial Injury 38. Capt. McCormick’s symptoms did not improve and, at 9:00 p.m. on August 2, 2007, he called Battalion Chief Farber and reported his injury. Capt. McCormick did not tell Battalion Chief Farber that his injury had occurred during a game of Ultimate Frisbee. 39. Battalion Chief Farber reported in his investigation and testified at the hearing that Capt. McCormick told him that he had injured his foot “running to the truck.” 40. Capt. McCormick denied during the rest of the investigation and at the hearing that he had ever told anyone that he had injured his foot “running to the truck.” 41. On August 2, 2007, after reporting his injury to Battalion Chief Farber, Capt. McCormick completed an AJFD Personal Injury/Illness Investigation Report. Capt. McCormick described the injury as a “Strain, Sprain, Torn Ligament” to his right foot, which had occurred in training. In the space on the form that requested that he “[t]horoughly describe accident,” Capt. McCormick wrote the following: While running, I felt a pull in the arch of my foot. I was not able to run on it afterward. During the day it progressively got worse and bruising occurred midday.

42. After Battalion Chief Farber received the report, he completed the part of the form for the Safety Officer’s Report of the “Acts, Failures to Act and/or Conditions Contributed Most Directly to This Accident (Immediate Cause)” as “Not running on a track with proper shoes.” 43. On August 3, 2007, Capt. McCormick called AJFD Secretary III Rachel Krause and reported his injury and that he had an appointment with his personal physician, a specialist, to evaluate it. Ms. Krause advised Capt. McCormick that he should see an Occupational Health specialist first. 44. Capt. McCormick testified at the hearing that he decided to be evaluated by his personal physician first because he did not know how severe his injury was. Sometimes Occupational Health physicians “took people off the truck for things that they could work through.” 45. Capt. McCormick admitted at the hearing that, in general, firefighters are “not the best people to diagnose their own injuries” because they “usually think that they can work through any injury.” 46. On August 3, 2007, Kimberly Leach, DPM, examined Capt. McCormick and diagnosed a ruptured plantar fascia in his right foot. 47. Capt. McCormick testified that he told Dr. Leach that he had injured his foot playing Ultimate Frisbee. He believed that Dr. Leach’s office communicated with AJFD’s Occupational Health physician regarding the diagnosis. 48. After Capt. McCormick left Dr. Leach’s office, he was seen by Georgia Tsingine, MD, AJFD’s Occupational Health physician. Dr. Tsingine diagnosed him with ruptured plantar fasciitis and placed him on light duty, office work status until his injury improved. 49. Capt. McCormick had the Worker’s Report that he had completed at Dr. Tsingine’s office admitted into evidence. A very faint reference to “Ultimate Frisbee” can be seen on the response to question no. 11, which requested a description of “where and how” the injury occurred. 50. On August 20, 2007, Battalion Chief Farber informed Deputy Chief Zanella of the inconsistency between Capt. McCormick’s alleged statement to him that he had been injured “running to the truck” and later evidence that the injury had occurred during a game of Ultimate Frisbee. Battalion Chief Farber felt that Capt. McCormick had submitted a false report when he stated on the August 2, 2007 Personal Injury/Illness Report that his injury had occurred “while running.” 51. In addition, Battalion Chief Farber reported that Firefighter Dave Pohlman told him that, immediately after the injury, Capt. McCormick had mumbled something about “plantar fasciitis,” which indicated that the injury may have been preexisting. Firefighter Pohlman subsequently consistently denied having made this statement. Hearing Evidence Regarding Policies Supporting Discipline 52. None of the other firefighters who participated in the August 2, 2007 game of Ultimate Frisbee were disciplined. 53. The Fact Finding Advisory Commission on November 12, 2007 summarized its conclusions, thoughts, and impressions of the facts under investigation, in relevant part as follows:[8] 1. The committee feels (and believes McCormick admits to) the fact that he did not fully disclose all of the pertinent information surrounding his injury. Nor was the information disclosed within an acceptable time frame.

2. The only evidence the committee could find that indicated that the injury occurred “while running to the truck” was Chief Farber’s recollection of the conversation that he had with McCormick around 21:00 the night of the injury. After listening to the audio taped interview between Farber and McCormick, some in the committee felt as though Chief Farber wasn’t absolutely positive as to whether McCormick was the one who made that comment.

3. There appeared to be some evidence that someone or multiple people may have suggested that the injury could be reported as having occurred “while running to the truck”. Overall the committee is not convinced that the conversations were truly meant to deceive.

4. This question seemed to be the toughest to answer. At the core of our issue was each committee member’s definition of “change”. Probably better stated as “did the initial reports of the injury intend to deceive”? Overall the committee concluded that the story did not “change”, but that a minimal amount of information was revealed early on. Then as questions were being raised more and more information surfaced.

5. The committee overwhelmingly [felt] as though Captain McCormick’s actions in this matter [were] far from appropriate for a company officer. We believe that intuitively all the company officers, as well as some of the firefighters, knew that they should not have been playing “ultimate Frisbee”. These beliefs lead to some anxiety when McCormick was hurt. Shortly after the injury, McCormick could have reported the injury (as is required by policy) with all the pertinent facts. This would have helped to eliminate the opportunity for informal dialog, about the situation, to take place, as well as being a chance to lead by example.

54. Chief Flynn’s November 28, 2007 memorandum to Capt. McCormick, informing him that the two-level demotion had been upheld also informed him of the basis of the two-level demotion, in relevant part as follows: 1. Your actions in the matter subject to the appeal were in violation of AJFD Policy and standards of conduct.

2. Your conduct in the matter subject to the appeal was inappropriate for a supervisor and negatively impacted the operation and management of AJFD.

55. Chief Flynn admitted at the hearing that, before the hearing, he told Capt. McCormick that if he had not “lied about running to the truck, we would not be here.” A lie is a serious act of misconduct. 56. Chief Flynn testified that disciplinary sanctions are discussed and reviewed to make sure that the sanction is in line for sanctions imposed in the past for similar misconduct. There is some discretion and range in the imposition of sanctions; however, the mere fact that another chief might impose a different sanction does not establish that a sanction is arbitrary or unreasonable. 57. Chief Campbell testified that AJFD’s success is based on its captains’ diligent performance of their supervisory responsibility over their crews. The communal living environment and 24-hour shifts make it difficult for a captain to separate himself from and remain on good terms with his crew. But a captain must be able to separate himself from his crew to make tough and possibly unpopular decisions. 58. Chief Campbell described AJFD as “a forthright group of people with high ideals” who wish to serve the community.[9] Its captains are saddled with the responsibility of upholding their superiors’ decisions on policy and ideals. Captains must be fair but able to discipline their crews when necessary. A captain is held to a high level of trust and expectation. 59. Chief Campbell testified that multiple steps were involved in AJFD’s discipline of Capt. McCormick. A range is disciplinary sanctions is available, from verbal or written warnings to suspension, demotion, or termination. In this case, Chief Campbell testified that termination would have been a reasonable discipline for Capt. McCormick’s violations of AJFD’s policies. 60. Chief Flynn, Chief Campbell, and Battalion Chief Farber all testified that Capt. McCormick was not disciplined for playing Ultimate Frisbee. CONCLUSIONS OF LAW 1. This matter lies within the jurisdiction of the Office of Administrative Hearings under AJFD Personnel Policy 118.01. 2. Mr. McCormick bears the burden of proof and must establish that AJFD’s demotion of him from Fire Captain to Firefighter, two levels, was not reasonable or arbitrary and capricious by a preponderance of the evidence.[10] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[11] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[12] 3. False means untrue. Mr. McCormick has established that he never told anyone that he had injured himself “running to the truck” and that he aggravated a preexisting injury. He therefore has established that any finding of making a false report in violation of AJFD personnel policy 112.11 was arbitrary and capricious. 4. There was no explicit or written AJFD policy against Ultimate Frisbee. Instead, AJFD captains, including Mr. McCormick and Captains Gregorie and Horvath, chose to avoid clarifying and to promote uncertainty regarding AJFD’s policy toward Ultimate Frisbee. But, because Mr. McCormick did not violate any actual AJFD order, he has borne his burden to establish that any finding of failure to obey an order in violation of AJFD personnel policy 112.03 was arbitrary and capricious. 5. Notwithstanding Mr. McCormick’s and other AJFD’s captains’ willful ignorance about the status of Ultimate Frisbee, he was not disciplined for allowing his crew to play Ultimate Frisbee. As noted below, his violations of personnel policy were based on omission, rather than any affirmative act. Mr. McCormick therefore has borne his burden to establish that any finding that he neglected duty in violation of AJFD personnel policy 113.02. 6. Mr. McCormick was reluctant to disclose the factual circumstances of his injury because it might mean that his AJFD superiors would absolutely and explicitly prohibit Ultimate Frisbee, which he and most captains suspected violated AJFD policy but which was a very popular form of PT. As a captain, Mr. McCormick had a duty to lead his crew by confronting the issue and clearly disclosing immediately that his injury had occurred during a game of Ultimate Frisbee. He failed to perform this duty. 7. Mr. McCormick also knew, or should have known as a captain, about his crew’s “chatter” about whether a lie about the circumstances of his injury might avoid having AJFD formally prohibit Ultimate Frisbee games. Especially in light of the unpopularity of such a prohibition, as a captain, Mr. McCormick had a duty to lead his crew by letting him know that even joking about falsification of reports was inappropriate. He failed to perform this duty. 8. Finally, Mr. McCormick testified that he was in too much pain on the trip back to the station after the Ultimate Frisbee game to listen to his crew. His foot “hurt like heck.” He was noticeably limping. This evidence shows that, after Mr. McCormick was injured, he was unfit for duty. He nonetheless served out his shift, in an apparent effort to protect his crew’s ability to play Ultimate Frisbee as PT. His failure to report the injury and leave his station violated AJFD policy and could have endangered his crew or the public. 9. Mr. McCormick therefore has not borne his burden to establish that any finding that he committed Unbecoming Conduct in violation of AJFD’s personnel policy 113.01 and insubordination under AJFD’s personnel policy 114.02 was arbitrary or capricious. 10. With respect to the discipline, Mr. McCormick’s violations of policy were serious and warrant imposition of discipline. However, the misconduct that was eventually established was far less than what was initially charged and found to support a two-level demotion. Moreover, there appears to have been a systemic failure of supervisory communication about Ultimate Frisbee at AJFD, which does not vitiate Mr. McCormick’s violation of policies but should mitigate the discipline. AJFD did not offer evidence of specific instances of comparable discipline for comparable violations. Mr. McCormick therefore has borne his burden to establish that AJFD’s demotion of two job levels for his misconduct was arbitrary and capricious. ORDER Based on the foregoing, IT IS ORDERED upholding AJFD’s finding that Appellant Dave McCormick violated personnel policies 113.01 and 114.02. IT IS FURTHER ORDERED modifying the discipline to a demotion from Captain to Engineer. Done this day, March 6, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of March, 2008, to:

Barbara Hernandez-Chamberlain Apache Junction Fire District 565 N. Idaho Rd. Apache Junction, AZ 85219

Kathryn R.E. Baillie, Esq. Michael Napier, P.C. 2525 E. Arizona Biltmore Cir. Suite 130 Phoenix, AZ 85016

Donna M. Aversa, Esq. Leonard & Felker, P.L.C. 7440 N. Oracle Road, #2 Tucson, AZ 85704

By ___________________________ ----------------------- [1] On January 8, 2008, Chief Flynn retired and Deputy Chief Campbell became the chief of AJFD.

[2] According to the AJFD’s website, this personnel policy provided that “[f]ailure or deliberate refusal of any member to obey any lawful order given by a commanding officer will be deemed as insubordination. Disregarding the authority of any commanding officer by demonstration, disrespect, or reputing the order shall likewise be deemed insubordinate.” [3] This AJFD personnel policy provided that “[a]ny employee who makes any false report or causes false information to enter into AJFD records is subject to discipline, up to and including termination.” [4] This AJFD personnel policy provided as follows: AJFD personnel shall conduct themselves at all times, both on and off duty, in such a manner as to reflect favorably on the AJFD. Unbecoming conduct shall include activities that bring the AJFD disrepute or reflect discredit upon the individual or the AJFD, or that which impairs the operation or efficiency of the AJFD, personnel, and/or members of the public. The AJFD will not tolerate and therefore prohibits any employee from engaging in any act, on-duty or off-duty that:

A. Threatens the safety of one’s self, an employee or member of the public; B. Negatively affects the health, life, or well-being of one’s self, an employee or member of the public; C. Results in damage (whether property damage, physical damage, damage to reputation or other type of damage) to the organization, one’s self, an employee, or member of the public. [5] This AJFD personnel policy provides that “[p]ersonnel shall not engage in any activity or personal business which would cause them to neglect or be inattentive to their duties.” [6] Subsection 114.02(1) of this AJFD personnel policy provides that the purpose of the policy on insubordination was “[t]o describe for employees the appropriate standards for conduct and compliance with supervisors’ directions in order to facilitate operations and maintain mutual respect and courtesy between employees and management representatives.” Subsection 114.02(C) provides that “[a]n employee’s refusal or failure to carry out an assignment or comply with established policies and procedures will be treated as serious misconduct, and shall result in discipline up to and including termination.” [7] Although Capt. McCormick had been demoted by the time of hearing, because he held the rank of captain when all of the events at issue occurred and for consistency, he will be referred to in the remaining Findings of Fact by his former professional title. [8] The questions that the Advisory Committee had been charged to answer were as follows:

1. Were facts concerning the injury fully disclosed, without omission, in a timely manner?

2. Is there sufficient evidence to determine the injury sustained by Captain McCormick was initially disclosed as occurring in “running to the truck”?

3. Is there sufficient evidence to determine if there was discussion with and or amongst the engine company crew about how to report the injury?

4. Is there sufficient evidence to determine whether the position/story changed after the initial report was filed?

5. Were the actions taken by Captain McCormick in this matter appropriate for a company officer? [9] According to its Declaration of Ideals, AJFD’s Mission is that, “[a]s Apache Junction Fire District employees, we share a common desire to be a valued asset of our community as providers of professional life safety and property protection services. We are committed to delivering services that are adaptive, progressive, fiscally responsible, and anticipate the needs of our customers.” [10] See AJFD Personnel Policy 118.05(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [12] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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