ALJDEC decisions subject to certification as final

11A-120-POST · Peace Officers Standards and Training · 2012-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2012 APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Nancy J. Beck, Esq., Assistant Attorney General; Respondent Joseph T. Connell was represented by Rebecca Plevel, Esq. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure Joseph T. Connell completed peace officer training and received certification from the Arizona Peace Officer Standards and Training Board (POST). In October 2000, the Flagstaff Police Department (FPD) employed Mr. Connell. (POST Ex. 2) On October 25, 2011, POST received a Termination Report from FPD informing POST that an FPD Internal Affairs (IA) investigation sustained charges that Sergeant Connell[1] had violated FPD policies regarding Unbecoming Conduct and Drugs and A.A.C. R13-4-105(A)(12). (POST Ex. 1, 3, and 5) POST assigned Compliance Specialist Gary Maschner to investigate whether the circumstances of Sergeant Connell’s termination from FPD provided cause to discipline his peace officer certification under POST’s administrative regulations. Mr. Maschner reviewed documents regarding FPD’s IA investigation and on December 14, 2011, presented a case overview to POST. After Sergeant Connell’s case was presented to POST, it determined that cause existed to discipline his certification. Sergeant Connell requested an administrative hearing on POST’s decision. POST referred the matter to the Office of Administrative Hearings (the OAH), an independent state agency, for an evidentiary hearing. On June 18, 2012, POST issued a Notice of Hearing. The Notice of Hearing charged Sergeant Connell with violating A.A.C. R13-4-109(A)(5),[2] (8), and (9) by committing the following alleged misconduct: On September 16, 2011, Sergeant Joseph T. Connell while off duty and attending a concert in Telluride Colorado used marijuana or what he believed to be marijuana on one occasion.

On August 9, 2012, a hearing was held at the OAH on the issue of whether cause existed for POST to discipline Sergeant Connell’s peace officer certification. POST submitted 18 exhibits and presented the testimony of seven witnesses: (1) Sergeant Connell; (2) Corporal Stephen Van Ooteghem of FPD; (3) Sergeant Matthew Wright of FPD, an IA investigator assigned to Sergeant Connell’s case; (4) Chief Kevin Treadway of FPD;[3] (5) Commander Rex Gilliland of the Coconino County Sheriff’s Office; (6) Officer Michael Lavelle of FPD; and (7) Mr. Maschner. Sergeant Connell testified on his own behalf. Hearing Evidence On September 16, 2011, Sergeant Connell was attending the Blues and Brews Festival in Telluride, Colorado. During the course of the day, Sergeant Connell had consumed between 25 and 30 drinks. At the event, Sergeant Connell observed many people smoking what appeared to be marijuana. Sergeant Connell could also smell marijuana smoke throughout the event grounds. While there was a police presence at the event, Sergeant Connell did not witness anyone being arrested for the use of marijuana. On the night of September 16, 2011, Sergeant Connell was moving through the crowd when he was approached by a woman who offered him a straight, wooden pipe filled with what he believed to be marijuana and invited him to “take a hit.” When Sergeant Connell initially refused, the woman accused him that if he would not partake, he must be a “cop.” Sergeant Connell denied being a police officer. When the woman refused to relent, Sergeant Connell eventually took the pipe and “faked a hit.” The woman noted Sergeant Connell’s fake inhalation and again accused him of being a “cop.” Due to his intoxicated state and his desire not to be identified as a police officer, Sergeant Connell accepted the pipe and took a quick “puff” from the pipe. Sergeant Connell was not attempting to and did not get “high” as a result of his actions. Sergeant Connell immediately realized he had made an error in judgment and sent text messages to Corporal Van Ooteghem and Officer Lavelle, whom he considered friends as well as colleagues. Sergeant Connell’s text message to Officer Lavelle read, “So a hot chick made me drag mj. Now what?” Officer Lavelle was also intoxicated on the night of September 16, 2011, and did not understand the meaning of the text message. Sergeant Connell’s text message to Corporal Van Ooteghem also referenced “mj.” Corporal Van Ooteghem was unable to understand much of the text messages he received due to the garbled nature of the messages. Corporal Van Ooteghem initially thought Sergeant Connell’s use of the phrase “mj” was a reference to Michael Jackson. On September 16, 2011, Corporal Van Ooteghem contacted Sergeant Martinez regarding the text messages. The two agreed that they were unable to piece together enough information from the text messages to report the incident to anyone else. Corporal Van Ooteghem sent Sergeant Connell text messages requesting that Sergeant Connell contact him to discuss the text messages he had received. On September 18, 2011, Sergeant Connell called Corporal Van Ooteghem and explained the events that had occurred the night of September 16, 2011. During the course of the conversation, Corporal Van Ooteghem thought there was “a possibility” that he was being asked to look the other way and not say anything. Sergeant Connell did not directly ask Corporal Van Ooteghem to cover up the incident. Sergeant Connell asked for and received the telephone number for Flagstaff Chief of Police Brent Cooper.[4] Sergeant Connell indicated he was going to call Chief Cooper and explain what had happened. On September 18, 2011, Sergeant Connell made telephone contact with Chief Cooper and informed him of the events that occurred on September 16, 2011. Sergeant Connell offered to take a drug test to confirm his account of the events. Chief Cooper indicated that a test would not be necessary and that he would speak to Sergeant Connell when he returned to Flagstaff. On September 19, 2011, Sergeant Connell spoke with Sergeant Wright via telephone. Sergeant Wright notified Sergeant Connell that an internal investigation would be conducted and that Sergeant Wright would be notifying POST of the incident. Sergeant Connell wanted to ensure Sergeant Wright had all the relevant details before he spoke to POST and offered his explanation despite not being formally served with the notice of internal investigation or being admonished of his Garrity rights.[5] Sergeant Connell again offered to take a drug test. Sergeant Wright indicated that a test would not be necessary. On his way back to Flagstaff, Sergeant Connell bought an over-the-counter urinalysis test that he took. The test result was negative for any marijuana metabolites. Sergeant Connell also preserved a sample for examination when he returned to Flagstaff in the event it was requested or needed. On September 21, 2011, Sergeant Connell was interviewed by Sergeant Wright. The relevant portions of the interview included the following: a. Sergeant Wright issued a Notice of Internal Investigation and read the allegations and Garrity warnings. Sergeant Connell read the notification and the Garrity warnings and signed the forms. b. Sergeant Connell admitted to Sergeant Wright that while he believed the pipe contained marijuana when he accepted it from the woman, he had no way of knowing for certain what was in the pipe. c. Sergeant Connell acknowledged alcohol was not an excuse, but indicated that his state of intoxication impaired his judgment as he tried to refuse the woman’s offer of the pipe. d. Sergeant Connell stated he knew he had put Corporal Van Ooteghem in a difficult position. Sergeant Connell stated that when he spoke to Corporal Van Ooteghem on September 18, 2011, about what to do, Sergeant Connell knew that he had to report his actions to his superiors, but realized it may cost him his job. Sergeant Connell was asked to take a drug test at Concentra, which he did. On September 22, 2011, FPD received the results of that test showing a negative result for cannabinoids with a cut off limit of 50 nanograms per milliliter of blood. Sergeant Wright confirmed with a Concentra employee that the test result was not just below the cut off limit, but was an actual result of zero. On October 4, 2011, Deputy Chief Copley and Sergeant Wright sent a Recommendation for Termination and Notice for Pre-Determination Meeting to Sergeant Connell indicating they were considering terminating Sergeant Connell from his job position of Police Sergeant based on the results of the internal investigation and applicable rules and regulations. The rules and regulations alleged to be violated were: a. General Order 1.1 XVI, CONDUCT Sec. A Unbecoming Conduct, Paragraph 7: Other conduct unbecoming an employee/officer of the Department a Class violation; b. General Order 1.1 XVIII, ALCOHOL AND DRUGS Sec. B, Paragraphs 1 and 4; Willful use of any drug or narcotic not prescribed by a licensed physician and possession of illegal or illicit drugs except in the performance of duty both Class 4 violations; and c. Arizona POST Rules/Administrative Code R13-4-105 A.12: Not ever illegally used marijuana while employed or appointed as a peace officer. (POST exhibit 12) On October 11, 2011, Sergeant Connell had a pre-determination meeting with Chief Treadway. As a result of that meeting, Chief Treadway decided to move forward with Sergeant Connell’s termination of employment. Sergeant Connell appealed the termination, and on December 13, 2011, the Flagstaff Personnel Board held a hearing. The Flagstaff Personnel Board determined Sergeant Connell received due process based on the City of Flagstaff procedures, rules, and regulations and the FPD General Orders. POST presented news stories and an editorial that were posted on the Arizona Daily Sun website with some comments submitted by users. The comments included those supporting Sergeant Connell maintaining his position and supporting his firing. Sergeant Connell presented letters of reference from various business owners, community leaders, and personal friends supporting Sergeant Connell being reinstated to his position. CONCLUSIONS OF LAW This matter lies within POST’s jurisdiction. See A.R.S. § 41-1821 et seq. POST bears the burden of proof to establish cause to discipline Sergeant Connell’s peace officer certification by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). Sergeant Connell bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary 1220 (8th ed. 2004). Under A.A.C. R13-4-109(A), POST may “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with duly promulgated rules prescribing reasonable minimum qualifications for officers. See A.R.S. § 41-1822(C)(1). POST may discipline an officer’s certification under A.A.C. R13-4-109(A)(5), (8), or (9) if it determines that he has committed acts that constitute any of the following: 5. The illegal use of marijuana, a dangerous drug, or a narcotic; . . . . 8. Malfeasance, misfeasance, or nonfeasance in office; or 9. Any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

POST was unable to establish Sergeant Connell engaged in “[t]he illegal use of marijuana, a dangerous drug, or a narcotic.” While the totality of the circumstances may have led Sergeant Connell to believe the pipe he accepted had marijuana in it, nothing in evidence corroborates his assumption. Neither the pipe nor the substance was collected for examination; Sergeant Connell felt no intoxicating effects from the substance; and both of Sergeant Connell’s drug tests came back negative with the blood analysis showing no evidence of marijuana use. Therefore, POST failed to establish cause to discipline Sergeant Connell’s peace officer certification under A.A.C. R13-4-109(A)(5). Similarly, POST was unable to establish Sergeant Connell committed malfeasance, “[a] wrongful or illegal act;”[6] misfeasance, “[a] lawful act performed in a wrongful manner;”[7] or nonfeasance, “[t]he failure to act when a duty to act existed.”[8] Therefore, POST failed to establish cause to discipline Sergeant Connell’s peace officer certification under A.A.C. R13-4-109(A)(8). Sergeant Connell credibly testified that he did not accept the pipe from the woman with the intent to get “high,” but because he did not want to be identified as a police officer in a crowd of people engaging in illegal conduct and merely wanted to be “left alone.” Sergeant Connell did not identify any specific threat directed towards him by the woman or any other individual. Rather, Sergeant Connell admitted he had a momentary lapse in judgment when he was unable to get the woman to leave him alone. Further, Sergeant Connell acknowledged that while he had no way of positively knowing what was in the pipe, the totality of the circumstances led him to believe it was marijuana. The public expects peace officers to follow the laws they are charged with enforcing. When Sergeant Connell accepted the pipe from the woman and took a “puff,” no matter how quick, he jeopardized public trust in the law enforcement profession. Therefore, POST established cause to discipline Sergeant Connell’s peace officer certification under A.A.C. R13-4- 109(A)(9). Done this day, August 24, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Lyle W. Mann, Peace Officers Standards and Training ----------------------- [1] Although by the time of hearing, Mr. Connell had been terminated from FPD, the remainder of this decision will refer to him by his former professional title for consistency.

[2] The Notice of Hearing included the language from A.A.C. R13-4- 109(A)(5), but incorrectly identified the rule as A.A.C. R13-4-109(A)(7). Sergeant Connell did not raise any objection regarding notice of the allegations against him. [3] On October 10, 2011, Chief Treadway become the Acting Chief of Police and eventually became the Chief of Police. The remainder of this decision will refer to his current professional title for consistency. [4] Chief Cooper was the Flagstaff Chief of Police at this time. Chief Cooper died unexpectedly on October 9, 2011. [5] See Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). In Garrity, the United States Supreme Court held that the Constitution requires police agencies to inform officers who were the subject of an internal affairs investigation that statements made in interviews could not be used in subsequent criminal investigations if the agency has required the officer to answer all questions as a condition of keeping his or her employment. [6] Black’s Law Dictionary 976. [7] Black’s Law Dictionary 1021. [8] Black’s Law Dictionary 1080.

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