ALJDEC decisions subject to certification as final

09A-2009-001-AVFD · Avra Valley Fire District · 2009-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, and September 30, 2009. APPEARANCES: Appellant Ms. Sharon Baker was represented by Mr. Michael J. Petitti, Jr., Attorney-at-Law. The Avra Valley Fire District was represented by Ms. Donna M. Aversa, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record the following Findings of Fact, Conclusions of Law and Order are made: FINDINGS OF FACT 1. The Avra Valley Fire District (AVFD) provides fire and emergency medical services (EMS) within its jurisdictional boundaries located in Pima and Pinal Counties. All of AVFD’s firefighters are certified as either emergency medical technicians (EMT) or paramedics. EMTs and paramedics are certified and regulated through the Arizona Department of Health Services (ADHS) to provide EMS. EMTs provide EMS at the basic Life support (BLS) level. Paramedics have a higher degree of certification and provide EMS at the advanced life support (ALS) level which includes performing invasive procedures and administering controlled substances under the direction and supervision of a base hospital. 2. Appellant Sharon Baker has been employed at the Avra Valley Fire District (AVFD) as a firefighter and paramedic for three years, and for one year as EMS Coordinator. Appellant received positive written job performance evaluations, and was never ranked below the category of “exceeds standards.” At one point in her employment with AVFD Appellant was nominated for a firefighter of the year award. 3. Appellant received one verbal warning from AVFD in October, 2008, but it did not relate to the charges brought against her in this case. 4. AVFD’s policy handbook in effect at all times material hereto commits AVFD to a positive, corrective and progressive disciplinary policy. Verbal warning is the least severe and dismissal the most severe punishment. 5. There are two factual scenarios which led to AVFD’s decision to dismiss Appellant from her employment in this case. These may be referred to by the dates on which they occurred: the December 2, 2008 incident, and the March 9, 2009 incident. 6. The December 2, 2008 incident. On that date Appellant was dispatched to the scene of an electrocution victim. She rode to the scene on engine number 193, belonging to and maintained by AVFD. It is undisputed that she did not take with her the paramedic drug box or cardiac monitor belonging to AVFD and assigned to her by AVFD to use in the course of her job duties. 7. The drug box contains a full complement of the drugs and other ALS supplies that are considered necessary for a paramedic to perform her job at the scene of an emergency such as the one to where Appellant was dispatched on December 2, 2008. The drug box, it may be said, contain the paramedic’s “tools of the trade.” 8. Appellant’s defense for not taking the drug box assigned to her is that engine 193 had no proper secondary compartment for stowing the drug box while en route to the scene. It is undisputed that engine 193, in fact, did not have a proper secondary compartment for stowing and securing the drug box. Arizona state regulation and AVFD policy do require fire districts including AVFD to maintain a proper secondary storage compartment into which the drug box may be fitted and secured if the engine cannot be locked. Engine 193 could not be locked on December 2, 2008. Since engine 193 could not be locked and had no acceptable secondary compartment, Appellant determined that she herself would be guilty of misconduct if she took her drug box with her on engine 193, not having it stowed and secured in a proper compartment. Appellant further contends that without the drug box the cardiac monitor would have been of little use. 9. Upon arrival at the scene of the electrocution the “tools of the trade” were needed, and the emergency medical responders on scene had to wait for another EMS crew to arrive with what Appellant should have brought with her. The electrocuted patient died, but there is insufficient evidence to find that Appellant’s actions caused or contributed to his death. 10. Arizona state regulation does require a paramedic to take with her a fully stocked and properly inventoried drug box when responding to emergency calls. 11. The March 9, 2009 incident. On this date Appellant was dispatched to the scene where a victim had already been receiving EMS treatment from another AVFD paramedic. While that paramedic was on scene he had been bitten by the victim’s dog and consequently he himself became a victim in need. When Appellant arrived on scene she was ordered by her AVFD superior on scene to take over medical care of the original victim. Incidental to that directive she was also directed to take control of the drug box that was assigned to and had been brought to the scene by the injured paramedic. The greater weight of evidence proved that when she took possession and control of the other paramedic’s drug box it was locked with a plastic seal which, as indicated by AVFD policy and procedures, tells one that the drug box has not been tampered with since the previous shift change when AVFD policy dictates that the off-going and on-coming paramedics are to conduct a face-to-face inspection and exchange of the drug box to verify these facts. 12. After returning to the station in possession of the other paramedic’s drug box (who had been taken to a hospital), Appellant had no call to open or inspect the drug box until change of her shift when AVFD policy, as mentioned, required her and the on-coming paramedic to perform their face-to-face inspection and exchange of the drug box, verify its contents are full, close and reseal it with another plastic seal. At this time it was discovered that one vile of morphine was missing from the drug box. 13. The greater weight of evidence proved that the missing vile had been taken or misplaced by another AVFD employee who then tried to cover his tracks by closing and resealing the box with the plastic seal. 14. Subsequent to March 9, 2009, AVFD established policies and procedures to cover this scenario; a scenario which had been unprecedented up to that date. CONCLUSIONS OF LAW 1. An administrative agency’s employment discharge decision must be reasonable and based on a preponderance of substantial and competent evidence. An agency must provide an employee with notice of the policies and procedures that are grounds for the discharge before discharging an employee for allegedly violating those policies. See, e.g. Pima County v. Pima County Law Enforcement Merit System Council, 211 Ariz. 224, 119 P.3d 1027 (2005); Civil Service Commission v. Livingston, 22 Ariz. App. 183, 525 P.2d 949 (1974). 2. AVFD has the burden of proof in this case. A.A.C. R2- 19-119. 3. AVFD has not met its burden of proof to show that its decision to terminate Appellant’s employment was reasonable and based on a preponderance of substantial and competent evidence. 4. The December 2, 2008 incident. Appellant violated A.A.C. R9-25-204(F)(6)(C) when she failed to take her drug box and cardiac monitor with her on the emergency call to aid a victim of electrocution. This is a serious violation as the paramedic’s ability to perform emergency life-saving measures is severely curtailed when she is without her supplies to do the job. 5. Appellant’s proffered justification for not following the above-cited regulation can be understood as facts created by AVFD which placed her in a difficult and uncomfortable position, but not as facts which excuse her from following the regulatory requirement that she possess her drug box and cardiac monitor while on an emergency medical call. It is true that AVFD was legally required to provide Appellant with an engine equipped to store and secure a drug box. A.A.C. R9-25-210(D)(3)(d)(i-iii). AVFD’s own policies require as much. AVFD Manual 7.1.4.1. It is also true that AVFD was in violation of this rule as to engine 193 on December 2, 2008. However, Appellant can make no legal justification for violating her own legal duty as a paramedic because AVFD was violating its legal duty as a fire district. Had Appellant taken her drug box and cardiac monitor on the December 2, 2008 emergency run, and then been accused of violating the rule requiring that equipment to be properly stored on the engine in a secure compartment, she would have had a solid legal defense in as much as the storage requirement is AVFD’s duty, not hers. Her duty is to be prepared to perform emergency services as a paramedic. She breached that duty on December 2, 2008. 6. The March 9, 2009 incident. The facts of the drug box exchange entirely exculpate Appellant. There was no factual evidence that could support a legal conclusion that Appellant’s activities on March 9, 2009 violated any administrative code rule or AVFD policy then in effect. A.A.C. R9-25-204(F)(5) and (6) do require as much as the face-to-face drug box exchange procedures which were followed by Appellant and her relief paramedic. Facts which subsequently came to light proved that Appellant had nothing to do with the missing vial of morphine, and the actual culprit had taken steps to assure that a subsequent possessor of his drug box would have every reason to believe that the drug box had not been tampered with and contained a full complement of supplies. Under existing AVFD drug box exchange policy then in effect, Appellant performed the face-to-face inspection and exchange of the drug box with her relief paramedic at the time she was required to do so, at shift change. That was the earliest possible time the missing vial could reasonably be expected to have been discovered, and upon its discovery the investigation revealed that Appellant was not involved in any way. This factual scenario revealed to AVFD a void in its drug box security procedures which AVFD commendably took steps to fill after the fact. But because AVFD itself was unaware of the need for additional security in the highly irregular circumstances of March 9, 2009 is not evidence that Appellant should have been aware of that which AVFD was not. 7. AVFD is legally entitled to discharge employees in proper circumstances, but no such circumstances exist in the facts of this case. AVFD relies on the two incidents to discharge Appellant, but as has been found and concluded only one of those allegations has factual and legal support. Reasonableness of the discharge in this case must then be considered in light of this remaining violation, the AVFD’s own personnel policy of administering discipline progressively, and Appellant’s employment record. The one allegation having merit includes facts which contributed to an otherwise well-behaved paramedic wrongly but ingenuously thinking that she had a Hobson’s choice of either violating a rule pertaining to storage of her equipment while en route to an emergency, or violating the rule requiring her to be in possession of the same equipment. She wrongly chose to violate the rule requiring her to be in possession of her equipment. 8. AVFD’s policy on Corrective Action/Disciplinary Process at Roman numeral V provides a panoply of disciplinary measures ranging from least to most severe thusly: verbal counseling, verbal reprimand, written reprimand, disciplinary suspension, demotion, and finally dismissal. AVFD in this case unreasonably selected the severest discipline possible to impose on an employee who had no prior record of any significant work-related misconduct, and on the contrary had been repeatedly recognized by AVFD as an exceptionally good employee. 9. AVFD’s policy on Complaint and Appeals Procedure at Roman numeral VI, part D, provides that Appellant can appeal as she has up to the hearing before an Administrative Law Judge (ALJ) in the Office of Administrative Hearings. The policy provides that the findings and decisions of the ALJ “shall be final and binding.” The ALJ’s written findings and decisions shall be provided to the AVFD Fire Chief, who shall be responsible for furnishing a copy to Appellant. 10. The AVFD policy provides that in the event the ALJ overturns the dismissal action, the AVFD Fire Chief “has the option to modify the disciplinary action.” Thus, having concluded that Appellant’s dismissal was unreasonable in this case, it is beyond the prerogative of the ALJ to dictate what lesser disciplinary action the Fire Chief should now impose on Appellant. That is within the Fire Chief’s discretion, not the ALJ’s. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that this matter be remanded to the AVFD Fire Chief for his further consideration of disciplinary action less severe than termination of employment. Done this day, October 30, 2009.

______________________________________ Grant Winston Administrative Law Judge

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

Barry Gerber, Chief Avra Valley Fire District 15790 West Silverbell Road Marana, AZ 85653

By ___________________________

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