ALJDEC decisions subject to certification as final

09A-2008001-AJFD · Apache Junction Fire District · 2009-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2008, October 28, 2008 and November 5, 2008. Record closed on December 15, 2008. APPEARANCES: Philip A. Austin, Esq. for Barbara Hernandez- Chamberlain; Donna M. Aversa, Esq. for Apache Junction Fire District ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal ________________________________________________________________ ISSUE The issue before this Tribunal is whether the determination made by the Apache Junction Fire District (“AJFD or District”) to terminate Barbara Hernandez-Chamberlain’s (“Appellant”) employment was taken without reasonable cause or was done arbitrarily. RULING The weight of the credible evidence established that the determination made by the Fire Chief of the AJFD terminating Appellant’s employment with the District was done with reasonable cause and was not arbitrary.

FINDINGS OF FACT Background 1. Appellant has been employed at AJFD for approximately 21 years and has risen to the position of Personnel Officer, which is considered part of AJFD’s command staff. She has served in that position for about 15 years. In that capacity, she was provided with a District Gold American Express card (“the District’s credit card”) to use for District expenses. 2. Appellant’s duties as Personnel Officer included, among other things, formulating personnel policies, conducting personnel investigations, sitting on a pre-disciplinary panel, making recommendations involving employee disciplinary matters. 3. In 2001, Appellant executed a Memorandum of Understanding (Exhibit G) which in pertinent part, states: The fundamental reason the position of Personnel Officer exists is to directly manage the daily operations of the fire district’s administrative services division. The Employee will serve as a member of the command staff and represents the governing board, fire chief and command staff internal and external to the fire district. 4. The above-mentioned Memorandum of Understanding also sets forth expectations that the Fire Chief has for the Personnel Officer, the pertinent provisions are: * * * 3. Function as a positive role model for the fire district’s ideals, values and policies. 4. Communicate the fire district’s ideals, values, and policies through words and actions both internal and external to the organization. * * * 6. Demonstrate continuous efforts to prudently manage the fire district’s resources. 7. Demonstrate continuous effort to provide the leadership necessary for the fire district to achieve its purpose and mission. Exhibit G.

5. John Flynn (“Mr. Flynn”) was the fire chief of the District from 1992 through January 2008. Starting in March 2007, Dan Campbell acted as deputy chief during a transition period wherein he worked along with Mr. Flynn on various matters including personnel matters. 6. In January 2008, Mr. Flynn retired and Deputy Fire Chief Dan Campbell became the District’s fire chief (“Chief Campbell”). 7. In March 2008, after a Labor-Management team meeting, Chief Campbell issued an e-mail to all of the District’s employees, including Appellant, advising that he expects all of the District’s policies to be followed unless changed and that failure to follow such policies may result in discipline. According to Chief Campbell, the e-mail also informed the employees that if there was a “bad” policy, it should be brought to his attention for consideration. 8. During Mr. Flynn’s administration, Appellant, as Personnel Officer, reported directly to and was under the supervision of Mr. Flynn. When Chief Campbell became the District’s fire chief, Appellant remained as the Personnel Officer and reported directly to and was supervised by Chief Campbell. 9. The District’s Command staff consists of the Fire Chief, the two Deputy Chiefs, three Battalion Chiefs and the Personnel Officer. 10. Deputy Chief Zanella was assigned to supervise the accounting department of the District. However, because of the workload he had and the experience that Appellant had, it was decided that Appellant would take on the responsibility of supervising the accounting department. 11. Two of the individuals who were supervised by Appellant were Marie Price (“Ms. Price”), the accountant, and Barbara Duffell (“Ms. Duffell”), Accounting Clerk. 12. In April 2008, Chief Campbell became aware of some unusual credit charges that were made by Appellant on the District’s credit card. While he was waiting for the next month’s credit card statement in order to determine what the situation was and whether that needed further looking into, Ms. Price of the District’s accounting department approached him about an audit of the District’s finances. 13. During the course of the above-mentioned conversation between Ms. Price and Chief Campbell, Ms. Price appeared concerned about a particular item but was fearful to talk about it. She expressed that discussing the item could result in her termination. Chief Campbell assured her that termination would not occur and that she should identify the item. Ms. Price mentioned that there was a reimbursement check issued by Appellant to the District and that the reimbursement check had not cleared due to insufficient funds. At that time, Ms. Price did not provide further information nor did Chief Campbell request further information. 14. A few days later, the next month’s credit card charge statement for the District came in and Chief Campbell saw more unusual charges made by Appellant on the District’s credit card. At that time, he discussed the situation with Deputy Chiefs David Montgomery (“Deputy Chief Montgomery”) and Chuck Zanella (“Deputy Chief Zanella”). 15. Because the Deputy Chiefs knew and had worked with Appellant for a number of years while Chief Campbell was relatively new, they suggested that they approach Appellant about the charges to get further information. Chief Campbell decided to proceed with that suggestion. 16. Around the same time period, Chief Campbell inquired of the District’s counsel as to referrals for an investigator should one be needed. Counsel for the District provided Chief Campbell with the name of Kate Baker (“Ms. Baker”), an investigator that the District had used in the past. 17. On May 29, 2008, Deputy Chiefs Montgomery and Zanella discussed the situation with Appellant and requested that she provide documentation and an explanation as to the use of the District’s credit card. The Deputy Chiefs requested that she go to her home and bring in the receipts she had for the charges at issue. 18. Appellant worked on a flex schedule. When Appellant would come in to the District’s office, she would arrive at about noon. Because of that schedule, Appellant was not readily available to meet with Chief Campbell. 19. Appellant contacted Deputy Chief Zanella and asked for an extension of time to gather the requested information, which was given. 20. On Monday, June 2, 2008, Appellant provided the requested information, which was reviewed. Subsequently, Chief Campbell discussed the situation with the Deputy Chiefs and they all agreed that Appellant should be placed on administrative leave pending an investigation into this matter. 21. Prior to the alleged misconduct, Appellant had good reviews and was considered to be a good employee who made sure that, as the District’s Personnel Officer, employees “followed the letter of the law” with respect to the District’s policies and procedures. 22. After the above-mentioned meeting with the two Deputy Chiefs, Chief Campbell contacted Ms. Baker and hired her to conduct an investigation of Appellant’s use of the District’s credit card. 23. On June 2, 2008, Chief Campbell met with Appellant and informed her that she was being placed on administrative leave pending an investigation. Appellant responded saying that she had a lot of work to complete and requested that she be permitted to complete such work. Chief Campbell informed her that she was not to perform any work on behalf of the District. 24. When Appellant was placed on administrative leave, Appellant was to be available to Chief Campbell, who was to be her only source of contact at the District and return phone calls and e-mail messages. 25. On July 14, 2008, Chief Campbell received Ms. Baker’s report (Exhibit F). The results of the investigation revealed that Appellant had charged items for personal use such as cigarettes, alcohol, groceries, a hotel stay, clothing, jewelry, and gas for her personal vehicle. Ms. Baker concluded her investigation finding that Appellant‘s personal use of the District’s credit card was not accidental, that the use violated various rules and polices of the District, and that Appellant failed to comply with the District’s policies while on Administrative leave. 26. Ms. Baker recommended that the appropriate discipline to be taken by the District was to terminate Appellant’s employment. 27. Chief Campbell met with Deputy Chiefs Zanella and Montgomery and discussed the results of Ms. Baker’s investigation of Appellant and what action, if any, should be taken by the District. Upon concluding such discussion, it was determined that Appellant’s violations of the District’s policies were severe and that the termination recommendation made by Ms. Baker should be followed. 28. The Notice of Intent to Terminate that the AJFD issued on July 15, 2008 effective as of July 25, 2008, provided the following specific grounds for termination: a. 113.01-Unbecoming Conduct: Appellant abused power, authority and trust when Appellant misused District property by purchasing cigarettes and alcohol and groceries with District credit card. Appellant placed subordinate employees in difficult positions relating to Appellant’s misuse of the District’s credit card. Appellant showed a lack of truthfulness during the investigation. b. 113.02-Neglect of Duty: Appellant engaged in activity or personal business causing neglect or inattentiveness to duties as Personnel Officer. Appellant failed to follow District policy and procedure by use of District credit card. c. 113.05-Alcoholic Beverages: Appellant used District credit card to purchase alcohol reflects poorly on District. Because of being in an exempt position, use of the District’s credit card could be interpreted as being on-duty. d. 113.14.1-Prohibited Behavior: Appellant’s actions and violations damaged the reputation of AJFD through loss of public trust in any and all employees by using the District’s credit card for personal use. Such use can be interpreted as “stealing” because in a certain situation claimed credit card purchase as District expense yet during the course of investigation claimed it as a personal and accidental expense. e. 124.03-Use of Personal Vehicle for AJFD Business: Multiple violations, employees using own vehicle are to submit for reimbursement as opposed to charging fuel on the District’s credit card. Two incidents of renting vehicle for personal use using District credit card when not authorized to do so. f. 124.04-Personal Vehicles: Appellant used the District’s credit card to fuel personal vehicle with no appropriate documentation justification or explanation. g. Directive 99-001-Procurement of Supplies, Materials, and Services: Appellant did not properly document or describe purchase or ensure properly accounted for or give complete history of expenditures. No receipts for multiple credit card charges. Actions did not foster public confidence in the integrity of the AJFD. h. Section IV-Procurement Procedures: Appellant did not follow purchase order procedure. In one instance filled out documentation after the fact and not until investigation was underway. This resulted in increased and unnecessary staff time to deal with the personal use of the District’s credit card. i. AJFD Declaration of Ideals: Appellant's actions did not reflect that she placed a “high value on individual responsibility and accountability” and her actions did not reflect professional conduct. j. AJFD Code of Conduct: Appellant did not reflect “the highest standards of professionalism”. Appellant did not follow manuals or written directives of AJFD and her conduct did not reflect positively. Appellant used her position for personal advantage. k. Administrative leave: After first week not responsive. Appellant did not send requested information and failed to reply to fire chief multiple times when contacted. Exhibit I. 29. Appellant’s appeal of the termination determination dated July 21, 2008 states that the determination was unreasonable and unwarranted but did not provide any explanation or new information for Chief Campbell to consider. 30. In a letter dated July 23, 2008, Chief Campbell responded to Appellant’s Appeal and denied the appeal while confirming the effective date of termination. 31. Subsequently, Appellant, through her counsel, requested a meeting with Chief Campbell to present information so he could reconsider the termination decision. 32. Prior to a meeting with Appellant and her counsel, Chief Campbell contacted a member of Corporate Personnel Services (“CPS”) who attended Gold Canyon Resort and verified that no member of CPS stayed at the Gold Canyon Resort an extra day and that the CPS members declined the offer made by Appellant to stay an extra day. Chief Campbell testified that he obtained written documentation and verbal statements as to that situation from the CPS members. 33. At a meeting with Appellant, her counsel, and Deputy Chief Zanella, Chief Campbell asked Appellant about the Gold Canyon situation and Appellant stated that she had secured the room so that members of CPS could stay because their flight had been delayed. 34. Chief Campbell testified that he did not receive any new information at the meeting and, upon reconsideration, upheld his termination decision and informed Appellant of his decision in a letter dated August 15, 2008. See Exhibit L. 35. In the August 15, 2008 letter, Chief Campbell affirmed the termination decision. 36. On August 21, 2008, Appellant appealed and requested an administrative hearing, which brought this matter before the Office of Administrative Hearings. Administrative Leave 37. Chief Campbell testified that during the second week while Appellant was on administrative leave he sent-mails and placed telephone calls to Appellant that went unanswered. He also testified that Ms. Baker attempted unsuccessfully to contact Appellant to obtain information and her calls went unreturned. 38. Out of concern as to Appellant’s well being, on June 22 or June 23, 2008, Chief Campbell and Deputy Chief Zanella went to Appellant’s home. Appellant’s mother answered the door and stated that appellant had gone out to the store and would be back soon. Chief Campbell left his card and asked the mother to give the card to Appellant. 39. Subsequently, when Appellant contacted Chief Campbell, she informed him that she had gone to the store briefly and that while she was aware of being contacted by the District she had been busy with a custody dispute involving her ex-husband. 40. On July 9, 2008, Chief Campbell informed Appellant that all District property, personnel files and the laptop computer used by Appellant, must be returned to the District. 41. On July 10, 2008, Chief Campbell and Deputy Chief Montgomery went to Appellant’s home and retrieved the District’s property from Appellant. Subsequently, Chief Campbell attempted to retrieve certain files from the laptop and discovered that they had been erased. The District utilized the services of a computer technician, a consultant, who determined that the laptop’s hard drive was erased on July 9, 2008. With the purchase of a particular computer program, some but not all of the deleted files were restored. 42. Appellant claimed that the erasure of the District’s files was a mistake and that she intended to erase some personal information that was on the computer. Appellant’s Conduct 43. The use of the credit card for personal use, according Appellant, occurred during Mr. Flynn’s administration and then continued under Chief Campbell’s administration. Appellant testified that she always reimbursed the District for charges made on the District’s credit card that were for personal items. 44. Over time, Appellant’s use of the District credit card for her personal use increased. In May 2008, Appellant had charges at Starbucks, Exxon, Basha’s, Albertson’s, Federal Express, Circle K and Applebees. 45. During the investigation, Appellant told Ms. Baker that there were some charges that she could not identify as either being work related or personal items. She did not bring in the receipts for the charges immediately after using the District’s credit card but put them in a shoe box. 46. Appellant’s reimbursement to the District for charges made on the District credit card often took 30 to 60 days. Appellant would wait unit the District’s accounting staff, generally Ms. Duffel, would review the District’s credit card statement and prepare a list of Appellant’s charges. Appellant would review the list of charges and mark those that were work related and those that were personal. 47. Appellant testified that during her tenure with the District under the command of Mr. Flynn it was a permitted practice for her to use the District’s credit card for her personal use without consequence provided she reimbursed the District for the charges. 48. Appellant testified that she continued her practice of using the District’s credit card for personal use and reimbursing the District after Mr. Flynn retired as AJFD Chief and Chief Campbell became Fire Chief. 49. Certain charges that the District alleged were improper charges were addressed during the hearing and will be specifically referenced below. 50. Mr. Flynn testified that Ms. Price in the District’s accounting department contacted him concerning questionable usage of the District credit card by Appellant in two instances. He reviewed the two instances and found that one had been a mistake and, in the other, Appellant had reimbursed the District so there was no need for further action to be taken at that time. 51. Mr. Flynn testified that he spoke to Appellant about her use of the District’s credit card for personal use but saw no need to take any other action because he was unaware of any further usage of the District’s credit card by Appellant. 52. Mr. Flynn testified that had he been made aware of continued usage of the District’s credit card by Appellant, which should have been caught by the review of credit card charges by the deputy chiefs to which he had delegated that responsibility, he would have taken the District’s credit card from Appellant. 53. Mr. Flynn was not made aware of any additional charges made by Appellant on the District credit card during the reminder of this tenure as fire chief. He was surprised to learn that the checks and balances in place did not catch the use of the card. 54. District credit card purchases were reviewed on several levels, first by accounting, which Appellant supervised, then the fire chief, which during the last two years of Mr. Flynn’s administration was conducted by the two Deputy Chiefs, and then by District Board members. 55. Mr. Flynn testified that it was not reasonable for command staff to repeatedly incur personal expenses and charges to the District. He found it to be an unacceptable practice. He also testified that command staff act as role models for the District employees. 56. Mr. Flynn told Ms. Baker that he informed Appellant to be diligent with the use of the District credit card and that Appellant, as Personnel Officer, knew the rules and knew not to use the card for personal purchases. See Exhibit F at 50. 57. Appellant contends that because of the duration of time Appellant charged personal items on the District’s credit card and then reimbursed the District that it amounts to essentially tacit approval of such acts. 58. Chief Campbell testified that he did not realize what Appellant was doing until April 2008 and then became concerned in May 2008 when the use of the District credit card for personal use by Appellant continued and increased. According to Chief Campbell, the fact that Appellant used the District Credit card in the manner she did and then reimbursed the District from time to time and the District’s failure to discover and/or report the misuse of the credit card does not excuse such use. Appellant also testified that Chief Campbell never informed her that she should not be using the District’s credit card for personal use and then reimbursing the District. 59. While Appellant asserts that she did not personally benefit from such usage, the evidence belies that assertion. Appellant was able to use the District’s credit, while she did not have personal credit card, to delay payment of charges. This extension of credit and payment time was a benefit to Appellant. Appellant’s Characterization of Use of Card 60. Appellant characterized her use of the District’s credit card as “accidental” stating that when she purchased groceries or went to Starbucks or other stores, if she mistakenly took the District’s credit card out to complete the sales transaction instead of her own debit cards, she would let the transaction proceed, knowing and with the intent that she would inform the District that the charge was personal and then reimburse the District for such charges. 61. Appellant testified that her debit cards were gold and looked similar to the District’s gold credit card. However, during her interview with Ms. Baker on June 12, 2008, Appellant stated that she had “had a Gold Visa and Gold Wells Fargo credit card, and had three at one time but she recently got rid of them so she would not have any problem with the AJFD Gold American Express.” Exhibit F at 18. Appellant later stated to Ms. Baker that she had not had any personal credit cards for over one year or more and can tell the difference between the District’s credit card and her personal debit card, which is not gold. See Exhibit F at 19. Placed District Employees in Difficult Position 62. One of the bases stated for termination was that Appellant placed District employees in difficult position and hindered their work. Due to the hierarchy, the fact that Appellant was the acting supervisor of the accounting department that processed the credit card statements of the District, it is understandable that accounting employees were reluctant to voice an opinion as to Appellant’s improper use of the District credit card or go above her to a deputy chief or the fire chief. 63. Appellant testified that Ms. Duffel never informed her that the process of her use of the District’s credit card and reconciliation increased staff time or placed her in a difficult position. Appellant also testified that in May 2008, she was not informed of any concern regarding increase of staff time or placing employees in a difficult position. 64. Appellant testified that no employee mentioned to her that the manner in which she was using the credit card and reconciling and reimbursing the District posed additional work or negatively affected an employee’s work. Rental of Vehicles 65. The evidence of record established that Appellant used the District card to rent a vehicle from Alamo Car Rental in November 2007 and again in March 24, 2008. 66. Chief Campbell testified that, the District’s records show that since 2001, car rentals for the District were not done through Alamo. 67. Chief Campbell also expressed the District’s concern over the use of the District credit card to rent a vehicle for Appellant’s daughter and boyfriend on March 24, 2008, which exposed the District to potential liability. 68. Appellant claimed that the use of the District’s credit card to rent vehicles from Alamo was a mistake and she did not realize that Alamo had the District credit card on file and she had arranged for the rental of the vehicles on-line. Appellant’s explanation may perhaps excuse the first car rental. However, after that time, Appellant either knew or should have known after that transaction that Alamo had the District’s credit card on file because the charges for the November 2007 car rental would have been billed to the District and, according to Appellant’s version of how charges were processed and she made reimbursement to the District, that process should have been completed before March 24, 2008. Other Similar Users of District Credit Card 69. Appellant asserted that other persons in the District used the District’s credit card for personal use, including the deputy chiefs. 70. Chief Campbell testified that purchases made by Deputy Chief Montgomery and Deputy Chief Zanella were shown to be appropriately documented and approved. 71. Mr. Flynn testified that he accidentally used the District credit card for personal use through Hertz. He testified that both his personal and District credit cards were entered in the Hertz on-line rental system.

72. When Mr. Flynn saw that the rental charge was not on his personal credit card statement, he went to accounting and submitted reimbursement to the District because he realized that the personal rental had been charged on the District’s credit card. He did this before he was contacted by accounting. 73. Another situation involving the use of a credit card was by firefighter Andy Kuhn who had a District credit card because he was on the Wildland fire team. When he thought that he had used the card for gas for his personal vehicle he submitted a report to Deputy Chief Zanella . He later learned that he did not use the District’s credit card. To avoid a problem in the future, he put a piece of tape on the District credit card to distinguish it from others he has. 74. The District asserted that Appellant was aware that personal credit card charges on the District’s credit card were to be used only for District business and presented evidence as to the Wildland firefighter team’s use of District card while on Wildland fire team assignments. The Wildland fire team consists of firefighters on contract with the Federal and State Government to handle fire assignments. Appellant, as part of the command staff, was presented when there were discussions about the use of the District’s credit card by the Wildland fire team. 75. Mr. Flynn testified that no one on the Wildland fire team was terminated, reprimanded or counseled regarding the use of the District’s credit card. 76. The evidence of record established that the Wildland fire team situation addressed certain charges that should not have been made by the team but does not relate to Appellant’s use of the District’s credit card and her subsequent reimbursement. It is specific to the Wildland fire team. Stealing District Property 77. In the termination notice, the District characterized the misuse of the District’s credit card as stealing District property. In contrast, Appellant testified that she had no intent to steal and did not steal District property. Alcohol Purchase 78. During her interview with Ms. Baker, Appellant acknowledged that her use of the District card for personal use was a misuse of District property and her purchase of alcohol with the District credit card did not reflect positively on the District, both of which she understood to be violations of the District’s Code of Conduct. 79. Chief Campbell found and the District asserted at the hearing that Appellant’s purchase of cigarettes and alcohol were improper because it reflected poorly on the District and would give impression to the public that cigarettes and alcohol were being purchased for the District. 80. Chief Campbell found that Appellant’s conduct in that regard violated the District’s Code of Conduct as well as policies not to purchase alcohol on duty. 81. Appellant’s charges for cigarettes and alcohol appeared redacted on receipts that Appellant submitted to the District. Appellant testified that she redacted the receipts not to hide the charges but because they did not look appropriate. 82. Appellant had a flex schedule and asserted that she was not on duty when she made those purchases. 83. The Administrative Law Judge finds that because Appellant was in an exempt position and did not work a straight 8:00 -5:00 schedule but had a flex schedule, that at the time she made those purchases, she was not on duty. Bounced Check 84. In August 2007, Appellant’s reimbursement check to the District bounced for insufficient funds and the District was not reimbursed until October 16, 2007. Appellant asserted that the reason for the delay was that she was told to let accounting reprocess the charge and that the processing was delayed. Gas Purchase 85. Appellant used the District’s credit card to charge gas for her personal vehicle and then sought reimbursement for such charges. Appellant testified that the gas charges were work related. 86. There was no policy presented by the parties that addressed reimbursement of gas. Appellant reimbursed the District for two charges that occurred for purchasing gas for her personal vehicle. See Exhibit 14.

April Safeway Charge 87. An April 2, 2008 Safeway charge of $42.91 was initially treated by Appellant as being work related. It was only after Deputy Chief Zanella requested that Appellant bring in the receipts that she brought in the Safeway receipt and marked it “accidental”. 88. Appellant testified that the Safeway charge was a charge for personal use and that she had made a mistake when she treated it as work related. 89. Appellant reimbursed the District for that charge after she met with Ms. Baker. The District alleged that the April 2, 2008 charge made on the District’s credit card by Appellant was not repaid until Appellant went on Administrative Leave in June 2008. 90. Appellant testified that she would have paid the Safeway charge but did not do so because she was placed on administrative leave before she had an opportunity to make that payment. Negative Interaction 91. Appellant contended that negative interaction she had with Chief Campbell prior to May 2008 affected Chief Campbell’s decision to take disciplinary action against her. 92. All of the situations and circumstances presented by Appellant were either testified contrary to by Chief Campbell or were instances that did not involve any negative interaction but Appellant’s perception and characterization of a situation that was not corroborated by reliable or probative evidence. 93. It is determined that no negative interaction occurred between Appellant and Chief Campbell prior to May 2008 that would have impacted his determination to take disciplinary action against Appellant. There were instances that Chief Campbell did not agree with the Appellant but such disagreements were not shown to impact Chief Campbell’s decision making.

Pre-Disciplinary Panel 94. Chief Campbell testified that while Appellant was on administrative leave, with some assistance, he took over the duties of personnel officer for the District. He also testified that the Section 116.04.4 of the District’s Personnel Rules provides for a pre-disciplinary review panel. 95. The Personnel Officer is responsible for establishing the panel, which is to consist of “a platoon commander or division manager (not the investigator), a deputy chief and the personnel officer. The fire chief may assign alternative pre-disciplinary review panel members when an employee would fill more than one designated position on the panel.” See District Personnel Rule Section 116.04.4(B). 96. The pre-disciplinary panel is responsible for reviewing the Investigation Report and determines policy violations and whether the recommended discipline is fair. The Panel forwards its findings to the fire chief. 97. Chief Campbell testified that the meeting that he held with the Deputy Chiefs was the pre-disciplinary panel review and that due the particular circumstances of this matter, complied with the spirit and intent of the disciplinary review panel as Appellant could not sit on the panel. Further, Chief Campbell testified that he was attempting to also honor Appellant’s request that the matter be kept as discrete as possible given her long tenure with the District as well as her position with the District. Progressive Discipline 98. The District’s Personnel Policy Section 116.03 provides for progressive disciplinary action but also provides that a supervisor may implement discipline at any level of the hierarchy of discipline, including termination. 99. Chief Campbell testified that he made the final determination to terminate Appellant. After what the District perceived to be the pre- disciplinary panel review, Chief Campbell prepared a memorandum (Exhibit 22) that, in pertinent part, explains how he arrived at the determination to terminate Appellant. 100. Chief Campbell testified that he considered other options before deciding to terminate Appellant but, given the nature of her position and lack of trust the District had in her, there was no other employment position available in which to place Appellant. CONCLUSIONS OF LAW 1. Pertinent Provisions of AJFD Personnel Manual 109.05 Administrative Suspension

* * * The employee shall be required to be at home during the scheduled work time during the administrative suspension and shall be subject to verification by telephone check, home visit or otherwise. Employees placed on administrative suspension that need to attend personal business during their regular shift/work day must utilize earned leave for such purposes and must notify and obtain authorization from the personnel officer.

111.14 Administrative Leave Employees may be placed on administrative leave with pay by the order of the fire chief. Administrative leave may be used while an investigation of an employee’s conduct is being performed and shall be under the same conditions as an administrative suspension as set froth in section 109.05.

01. Unbecoming Conduct AJFD personnel shall conduct themselves at all times. Both on and off duty, in such a manner so as to reflect

favorably on the AJFD. Unbecoming conduct shall include activities that bring the AJFD disrepute or reflect discredit upon the individual or 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 form engaging in any act, on-duty or off-duty that: * * * C. Results in damage (whether property damage, physical damage, damage to reputation or type of damage) to the organization, one’s self, an employee or member of the public.

02. Neglect of Duty Personnel shall not engage in any activity or personal business which would cause them to neglect or be inattentive to their duties.

113.05 Alcoholic Beverages Personnel shall not purchase, consume intoxicating beverages, be under the influence of intoxicants or have the odor of intoxicants on their breath while in uniform or on duty.

113.14.1 Prohibited Behavior

* * * Such acts include but are not limited to:

* * * 5. Stealing, or attempting to steal, AJFD property, the property of another employee, or the property of a member of the public.

116.01 Disciplinary Guidelines All disciplinary actions within the AJFD which may be undertaken by the fire chief or supervisory personnel shall conform to the guidelines, rules and regulations of the personnel policy of the AJFD.

* * * E. The disciplinary action selected shall be in line with the severity of the misconduct, and shall be imposed only after an investigation has been conducted to determine all pertinent facts.

116.03 Hierarchy of Discipline

* * * The hierarchy of discipline is used as a tool for progressive employee performance modification. However, the supervisor may implement discipline at any level in the hierarchy dependent upon the degree of employee misconduct.

118.05 Appeal Hearing Procedure

* * *

B. Order, Burden and Manner of Proof

* * *

3. . . . The employee is directed to show that the employment action taken was not reasonable.

* * * 4. . . .The administration [AJFD] is directed to show that the employment action taken was reasonable.

* * *

8. The burden of proof shall be by a preponderance of evidence.

* * * F. Findings of the ALJ * * * 1. If the ALJ determines that the appealed action was arbitrary or taken without reasonable cause, the action shall be revoked or modified. Otherwise the action shall be affirmed.

124.03 Use of Personal Vehicles for AJFD Business

* * * B. Employees are not authorized to rent automobiles at AJFD expense except with specific pre-approval of the fire chief.

124.04 Personal Vehicles

Employees are responsible to provide their own transportation in order to report for regular or emergency work assignments.

* * *

If at all possible, AJFD vehicles will be used to conduct the AJFD’s business. If it is necessary to utilize a personal vehicle in order to conduct the AJFD’s business prior authorization must be secured before mileage reimbursement will be allowed. Exhibit A.

2. Pertinent Provisions of AJFD’s Code of Conduct

* * * Professionalism:

Every member of the AJFD should conduct themselves at all times, both on and off duty, to reflect the highest standards of professionalism. Each AJFD member is expected to work in a self- disciplined manner and is responsible to manage his/her own conduct in a positive, productive, and mature way.

MEMBERS SHALL:

( Follow operations manuals and written directives of the AJFD.

* * * • Always conduct themselves to reflect positively on the organization. * * * • Operate safely and use good judgment.

* * * • Be careful with district equipment and property.

Exhibit B.

3. Pertinent Provisions of AJFD’s Declaration of Ideals

* * *

Our Values

* * *

( We conduct ourselves professionally. We believe our performance and attitude are essential to earning citizens confidence and trust.

* * *

We Value Our Workforce

* * * ( We place a high value on individual responsibility and accountability. We recognize self discipline as the cornerstone of organizational success.

Exhibit N.

4. The term “arbitrary” is defined: 1. Determined by impulse or whim. 2. Based on or subject to individual judgment or discretion. Webster’s II, New Riverside University Dictionary 121 (1994). 5. Appellant has the burden of proving by a preponderance of the evidence that the disciplinary action taken by AJFD was not reasonable. AJFD Personnel Policy Section 118.05(c) and A.A.C. R 2-19-119. 6. The Administrative Law Judge has the authority to affirm, reverse or modify the termination determination of the AJFD Fire Chief but unless the Administrative Law Judge finds that the disciplinary action taken was arbitrary or without reasonable cause, the disciplinary action taken must be affirmed. AJFD Personnel Policy Sections 118.05(4) and (4)(a). 7. Appellant asserts that she had no notice that the use of the District‘s credit card constitute violations of District policies and contended there is no specific policy that states that the District’s credit card cannot be used for personal use if charges incurred are reimbursed to the District. In contrast, the District asserted that its policies and rules, as set forth above, prohibits such use and Appellant was aware that such use was prohibited. 8. The Administrative Law Judge finds that it would be virtually impossible for the District to specifically provide each and every circumstance that would constitute a violation of the District’s policies. In the instant matter, as set forth below, not only was Appellant aware that her use of the District’s credit card for personal use was not appropriate but she also acknowledged that she knew it to Ms. Baker. Mr. Flynn, who was called by Appellant in her case-in-chief, testified that Appellant knew that the use of the District‘s credit card was to be for District business and not for personal use. Further, by the extent and frequency of usage of the District’s credit card, Appellant knew that she was excessively and inappropriately using the District’s credit card. 9. The Administrative Law Judge concludes that the above-mentioned Notice of Intent to Terminate provided sufficient notice to Appellant as to the violations that the District relied upon in support of the termination of employment. 10. Appellant’s characterization of the use of the credit card as accidental is not credible given the length of time and number of transactions involved. Additionally, her testimony as to why she redacted certain items, such as cigarettes and alcohol purchases on the receipts she provided to the District in relation to the use of the District’s credit card is not credible and is viewed as an attempt to hide such information from the District. 11. Appellant acknowledged that she knew she should not use the District’s credit card for personal use and continued to do so, making no attempt to curtail or prevent such usage from occurring. Further, Appellant’s use of the District’s credit card increased in May 2008 and she also purchased items for personal use, cigarettes and alcohol that she knew should not be purchased on the District’s Credit card. 12. Appellant’s use of the District’s credit card for personal rental of a vehicle through Alamo is considered improper use. Although it may be that the first use was a mistake as she was unaware that that the District’s credit card was entered into the on-line system of Alamo. However, her explanation or excuse for using the credit card a second time in March 2008 is not plausible. Such use in March 2008 was improper and Appellant knew or should have known that Alamo had the District’s credit card on file and violates sections 124.03 and 124.004 of District Policies. However, Appellant established that she did not intend to steal from the District. 13. Appellant’s use of the District’s credit card for one night at the Gold Canyon Resort is determined to be improper. Appellant’s explanation as to why she incurred such charge is not credible and is outweighed by the evidence presented by the District. The evidence of record shows that Appellant did not respond truthfully to Chief Campbell’s inquiry regarding this charge. 14. It appears that Appellant’s actions in using the District’s credit card and her approach to reconciling the charges with receipts and submissions was cumbersome and added additional work for the District’s accounting Department. However, the weight of the evidence did not show that it made it difficult for District employees to perform their work. 15. Appellant’s purchase of alcohol with the use of the District’s credit card, while not officially on-duty, reflects poorly on the District as it gives the appearance to the public that alcohol is being purchased for the District. 16. There is no District policy that provides Appellant could be reimbursement of gas, she could only, if appropriate, be reimbursed for mileage. 17. The evidence of record reflects that there could have been better communication between the District and Appellant concerning her hours when she was required to be available during administrative leave due to her position and that she worked a flex schedule. Given Appellant’s experience as Personnel Officer and the circumstances that she was to report directly to Chief Campbell, it was not unreasonable for the District to take the position that during normal business hours, Appellant would be available to respond to communication from Chief Campbell or the District’s investigator, Ms. Baker. Although Appellant was undergoing personal and legal situations that required her attention, she should have informed Ms. Baker or Chief Campbell of her need to attend to personal matters and/or responded in a timely manner to contact being made by Chief Campbell and Ms. Baker, none of which occurred. 18. Appellant did not timely accurately identify all personal expenses charged on the District’s credit card as evidenced by the above-mentioned April Safeway expense that was first identified as work related and subsequently identified as personal. Appellant failed to fully document her purchases with the District’s credit card. Appellant did not submit all of the receipts relating the charges she incurred for personal use of the District’s credit card. 19. The evidence of record does not support a finding that Appellant neglected her duties. 20. Given the particular fact and circumstances, the District complied with the spirit and intent of having a pre-disciplinary review panel. Consequently, Appellant’s claim that she was denied due process is not supported by the weight of the evidence presented. 21. Except as noted herein, the Administrative Law Judge concludes that the weight of the credible evidence of record established that Appellant’s conduct did not comply with the above-mentioned District Personnel Policies, Directive 99-001, Code of Conduct or Declaration of Ideals. 22. The termination determination made by Chief Campbell is within the permissible range of discipline permitted under AJFD Personnel Policies. 23. Appellant’s contention that the termination decision was made without reasonable cause and was arbitrary is refuted by the fact that Chief Campbell considered the reports generated during the investigation including but not limited to the interviews of Appellant and others, and Appellant’s employment performance history at AJFD. Consequently, the Administrative Law Judge concludes that the determination made by Chief Campbell to terminate Appellant was not made arbitrarily or without reasonable cause nor was the appeal decision to uphold Fire Chief Campbell‘s determination made arbitrarily or without reasonable cause. 24. Appellant failed to prove by a preponderance of the evidence that the, AJFD’s termination of Appellant’s employment was not reasonable or was done arbitrarily. The District showed that the disciplinary action it took with respect to Appellant was reasonable. Consequently, Personnel Policy Section 118.05(4)(a) requires that the termination determination be affirmed. ORDER AJFD’s decision to terminate Appellant is affirmed. Done this day, January 5, 2009.

___________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Apache Junction Fire District Dan Campbell. Fire Chief 565 N. Idaho Road Apache Junction, AZ 85219

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

Philip A. Austin, Esq. 215 N. Robson Mesa, AZ 85201

By ___________________________

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