ALJDEC decisions subject to certification as final

13A-195-POST · Peace Officers Standards and Training · 2015-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 9 and 10, 2015, at 8:00 a.m. on each date; the record was held open until February 25, 2015, for receipt of the court reporter’s transcript. APPEARANCES: The Arizona Peace Officer Standards and Training Board (“POST”) was represented by Nancy J. Beck, Esq., Assistant Attorney General; Respondent David L. Wood (“Sergeant Wood”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure Sergeant Wood completed peace officer training and received certification from POST. Between June 23, 2006, and August 18, 2011, Sergeant Wood was employed by the Pima County Sheriff’s Office. Between May 2, 2013, and May 12, 2013, Sergeant Wood was a reserve officer for the Mammoth, Arizona Police Department (“MPD”). Between May 12, 2013, and October 24, 2013, Sergeant Wood was employed as a full-time officer by MPD.[1] On or about November 13, 2013, POST received a Peace Officer Termination Report signed by MPD Chief Marty McIntosh, informing POST that MPD had terminated Sergeant Wood’s employment on October 24, 2013, and that Sergeant Wood may have violated POST’s administrative regulations.[2] The matter was assigned to POST Compliance Specialist Mike Rosenberger for investigation. Mr. Rosenberger obtained memoranda that Sergeant Wood’s former co-workers wrote after his termination, interviewed Sergeant Wood and other witnesses, and on or about April 16, 2014, presented a case overview to POST.[3] After Sergeant Wood’s case was presented to POST, it determined that cause existed to penalize his certification. Deputy Wood requested an administrative hearing on POST’s intent to penalize his certification. POST referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On or about October 24, 2014, POST issued a Notice of Hearing. The Notice of Hearing charged Sergeant Wood with violating A.A.C. R13-4-109(A)(8) and (9) by committing the following alleged misconduct: 1. Between approximately May, 2013, and October, 2013, Sergeant David Wood made inappropriate and offensive racially based comments to co-workers while on-duty.

2. On or about November 26, 2013, Sergeant Wood contacted one of the complaining employees (Ms. AD) and asked/ pressured her to retract her complaint.

3. On or about December 6, 2013, Sergeant Wood contacted one of the complaining employees (Ofc. AC) and asked/pressured him to retract his complaint.

4. Sometime after October 24, 2013, Sergeant Wood contacted one of the complaining employees (Ofc. KC) and asked/ pressured him to retract his complaint.

On or about December 3, 2014, POST submitted to OAH subpoenas for the testimony of the four complaining co-workers, Ms. AD, Ofc. AC, Ofc. KC, and Mr. PV, as well as Chief McIntosh. The Administrative Law Judge signed the subpoenas and issued them to POST for service on the witnesses. Sergeant Wood did not submit subpoenas for any witnesses, including Chief McIntosh. On February 9 and 10, 2015, a hearing was held at the OAH. POST submitted 18 exhibits and presented the testimony of six witnesses: (1) Ms. AD; (2) Ofc. AC; (3) Ofc. KC; (4) Mr. PV; (5) Jack Lane, POST’s Compliance Manager; and (6) Lori Ketron, the POST Compliance Specialist who was assigned to the case after Mr. Rosenberger became ill. Chief McIntosh did not attend or testify at the hearing. Sergeant Wood submitted seven exhibits and presented the testimony of seven witnesses: (1) Jason Abbott, a former colleague and officer at MPD; (2) Jonathan Wood, Sergeant Wood’s brother; (3) Todd Manges, a former detective at the Tohono O’odham Police Department (“TOPD”) who performed background checks of new hires; (4) Samuel Wood, Sergeant Wood’s brother who is employed as a peace officer by the Apache County Sheriff’s Office; (5) Tami Wood, Sergeant Wood’s wife; (6) William (“Bill”) Naber, a retired peace officer who worked “on and off” for MPD between 1992 and 2001; and (7) himself . Hearing Evidence The Town of Mammoth and Sergeant Wood’s termination from MPD Ms. Ketron testified that the Town of Mammoth has a population of 1,426 persons. Ms. AD testified that MPD has four full-time police officers, six reserve officers, and five civilian dispatchers. After Sergeant Wood was hired as a full-time police officer, he was promoted to a supervisory position and became the field training officer (“FTO”) for new hires without prior peace officer experience at MPD, including Ofc. KC and Ofc. AC. On October 24, 2013, Sergeant Wood was terminated from MPD after his probationary status was rejected. Because Sergeant Wood was a probationary employee, MPD did not conduct an internal affairs investigation or interview anyone, including Sergeant Wood. The MPD Employees’ Memoranda and Testimony Ms. AD Ms. AD is a dispatcher for MPD. On or about October 28, 2013, Ms. AD wrote a memorandum to Chief McIntosh about Sergeant Wood’s remarks to her while both were on duty at MPD. Ms. AD stated that Sergeant Wood had made racially insensitive remarks to her that she found offensive, including that 80% of Black people have AIDS and that the Bible said that it was a sin and an abomination for a White person to have a sexual relationship with or to marry a Black person. Ms. AD reported that she confronted Sergeant Wood about his comments on interracial relationships because her mother is in a relationship with a Black man and that Sergeant Wood responded that her mother was going to hell. Ms. Wood stated that Sergeant Wood said that he had studied the issue and would bring in scriptures to show that he was not lying. Ms. AD’s October 28, 2013 memorandum stated that a couple days after this conversation, Sergeant Wood brought his laptop to work and showed her about two pages of scriptures.[4] Ms. AD testified that Sergeant Wood made these comments while they were both on duty at the MPD police station in a small approximately 10’ x 15’ room. Ms. AD stated that Sergeant Wood’s comments upset her. Ms. AD did not remember the exact date that Sergeant Wood made the comments; she believes that it was around July or August 2013. Ms. AD testified that Chief McIntosh asked her to write the memorandum. Ms. AD denied that Chief McIntosh ordered her to write the memorandum and testified that although she did not want to get involved, she wrote the memorandum because it stated the truth and was the right thing to do. Ms. AD testified that Ofc. AC was present when Sergeant Wood made the racist comments to her and that she believed that Ofc. AC had complained to Chief McIntosh. Ms. AD testified that initially, she felt that she should complain about Sergeant Wood’s remarks but that she did not want to involve herself in “drama.” Ms. AD acknowledged that after she wrote the October 28, 2013 memorandum and the January 3, 2014 memorandum described below, she was promoted to a full-time position at MPD after previously being employed only part-time. Ms. AD explained that during that time, she underwent training by POST to enable her to perform background investigations. Ms. AD acknowledged that Chief McIntosh was married to her aunt’s sister and that she was his niece at the times that she wrote the memoranda. Ms. AD noted that Chief McIntosh and her aunt’s sister are now divorced. Ms. AD testified that her relationship with Chief McIntosh did not affect the accuracy or truth of her memoranda. Mr. PV Mr. PV is currently employed by MPD as a dispatcher supervisor. He has worked as a dispatcher for MPD for three years. On or about October 29, 2013, Mr. PV wrote a memorandum to Chief McIntosh about Sergeant Wood’s remarks to him. Mr. PV stated that a few months after Sergeant Wood started working for MPD, he asked if Mr. PV had ever had sex with a Black woman. Mr. PV stated that after he did not answer the question because it requested private information, Sergeant Wood said that Mr. PV should never sleep with a Black woman because 80% of Black people have AIDS and experience organ failure as a result. Mr. PV stated that he found Sergeant Wood’s remarks to be offensive and as a result, lost respect for Sergeant Wood.[5] Mr. PV stated further in his October 29, 2013 memorandum that after Sergeant Wood was promoted to a supervisory position, he began spending more of his time talking about religion and race at the MPD station and less time performing his MPD duties. Mr. PV started hearing rumors that Sergeant Wood was talking to other dispatchers about race and religion. Mr. PV stated that he did not want to work the same shift as or to be around Sergeant Wood.[6] Mr. PV described the last incident involving Sergeant Wood, which happened about two weeks before his termination, when both Mr. PV and Sergeant Wood were on duty for MPD. Sergeant Wood brought his laptop to the MPD police station and pulled up the Hebrew and King James versions of the Bible, compared the versions, and explained how they related to his Mormon faith. Mr. PV stated that Sergeant Wood went on for about three hours, recited prayers, and even sang two hymns. Mr. PV stated that Sergeant Wood became very emotional, offered to have some Mormon missionaries visit Mr. PV’s home, and informed Mr. PV that he could visit the Mormon Temple in San Manuel. After Mr. PV informed Sergeant Wood that he was not interested, Sergeant Wood went out on patrol. Sergeant Wood then came back to the MPD station and talked about his religion for the last hour of his shift.[7] Mr. PV testified that he told Chief McIntosh that Sergeant Wood was spending substantial time on-duty talking about his religion. Mr. PV stated that Chief McIntosh did not tell him what to say in the October 29, 2013 memorandum. Mr. PV testified that Sergeant Wood’s remarks about race and religion made him and other MPD employees uncomfortable. Mr. PV testified that Sergeant Wood had crossed a line by discussing topics that should not be brought to work and that Sergeant Wood’s remarks about race were definitely not appropriate to the workplace and made Mr. PV very uncomfortable. Mr. PV could not say the exact date that Sergeant Wood’s communications about race and religion occurred. Mr. PV acknowledged that he did not know of anyone other than Ms. AD, Ofc. KC, and Ofc. AC who had complained about Sergeant Wood and that he never saw Sergeant Wood mistreat a member of the public because of race. Mr. PV testified that none of the dispatchers wanted to work with Sergeant Wood. Mr. PV acknowledged that he was promoted to supervisor a few months after Sergeant Wood left MPD. Mr. PV stated that the promotion was not due to having written the October 29, 2013 memorandum. Ofc. KC At the time of the hearing, Ofc. KC had been employed by TOPD for fifteen months. Between August and December 2013, Ofc. KC worked for MPD, where Sergeant Wood was his FTO. Ofc. KC testified that at about the time that MPD terminated Sergeant Wood’s employment, Chief McIntosh asked Ofc. KC if Sergeant Wood had made racial comments to him. When Ofc. KC answered in the affirmative, Chief McIntosh asked him to write a memorandum. Ofc. KC explained that the request was Chief McIntosh’s prerogative. On or about October 30, 2013, Ofc. KC wrote a memorandum to Chief MacIntosh. Ofc. KC stated that after he started working for MPD in August 2013, while driving with Sergeant Wood, Sergeant Wood said that he was Mormon and a very religious person and asked Ofc. KC about his religious and spiritual beliefs. When Ofc. KC said he was not a religious or spiritual person and was not familiar with scriptures, Sergeant Wood stated that Ofc. KC was the devil and that he and his family would burn in hell.[8] Ofc. KC’s October 30, 2013 memorandum also stated that on many occasions, Sergeant Wood brought up racial discussions, stating that any White person in an interracial relationship with a Black man or woman was committing a sin and was going to hell. Sergeant Wood said that over 80% of Black people have AIDS, that the AIDS epidemic started with Africans having sex with monkeys and transmitting it to other Africans, and that these facts were stated on the CDC’s website. Although Sergeant Wood brought his laptop to work, he could not find the information on the CDC website. Ofc. KC testified that Sergeant Wood also showed the laptop to Ms. AD.[9] Ofc. KC testified that he heard Sergeant Wood’s comments to Ms. AD about her mother dating a Black man. Ofc. KC’s October 30, 2013 memorandum also stated that Sergeant Wood said that the great flood was God’s way of cleansing the world of interracial relationships, homosexual people, and people who do not know their place and that the world needed to be cleansed again. Sergeant Wood stated that all African-American men were gay and that it was a proven fact that all African-American men were molested as a rite of passage.[10] Ofc. KC closed the memorandum with the statement that Sergeant Wood was “the epitome of what you don’t want in a police officer.”[11] Ofc. KC acknowledged that he did not know the exact date that Sergeant Wood made the statements that Ofc. KC reported in the October 30, 2013 memorandum. Ofc. KC testified that he wrote the memorandum at home. Ofc. KC explained that that he did not sign the October 30, 2013 memorandum because he emailed the memorandum to Mr. PV, who emailed it to Chief McIntosh. Ofc. KC testified that although the memorandum was true, he did not want to write it because he was going to work at TOPD, where Sergeant Wood’s father worked. Although Ofc. KC testified that he would not have written the October 30, 2013 memorandum if he had not been asked to, he denied that Chief McIntosh told him what to write in the memorandum. Ofc. AC Ofc. AC testified that he was employed by MPD for 19 months. Ofc. AC testified that after he told Chief McIntosh that Sergeant Wood was making racial remarks and that other employees were complaining about the remarks, Chief McIntosh asked him to write a memorandum. On October 29, 2013, Ofc. AC wrote a memorandum to Chief McIntosh. Ofc. AC stated that during the time that Sergeant Wood acted as his FTO, during a conversation in the car, Sergeant Wood said that according to the Bible, racially mixed children with Black heritage were an abomination who did not have a place in this world. Sergeant Wood stated further than all Black males were gay because they all get molested by their male relatives and that over 80% of all Blacks had AIDS, but did not know because they were too ignorant to get tested.[12] Ofc. AC’s October 29, 2013 memorandum also stated that one night when he was at the MPD station with Sergeant Wood while Ms. AD was working as a dispatcher, he heard Sergeant Wood tell Ms. AD that her mother probably had AIDS and according to the Bible, would go to hell because she had been sleeping with a Black man. Sergeant Wood also told Ms. AD that she better pray that her mother and partner never broke up because no self-respecting man of any other race would want her because she was broken goods and disgusting. Ofc. AC stated that he could tell that remark bothered Ms. AD greatly.[13] On cross-examination, Ofc. AC testified that he did not remember the exact dates that the conversation in the car or in the dispatch room had occurred and acknowledged that he did not record his conversations with Sergeant Wood. Ofc. AC’s October 29, 2013 memorandum stated that during his time on FTO, he lost all respect for Sergeant Wood and that he could not understand how a man in Sergeant Wood’s position could be so narrow-minded and ignorant. Ofc. AC stated that Sergeant Wood’s promotion “went to his head instantly.”[14] Ofc. AC testified that if people in Mammoth knew of Sergeant Wood’s remarks, they would be offended. Ofc. AC testified that he wrote the October 29, 2013 memorandum in the police station, he was not sitting next to Ofc. KC at the time, and that Chief McIntosh did not tell him what to say in the memorandum. Sergeant Wood’s Subsequent Communications with Ms. AD, Ofc. KC, and Ofc. AC

Ms. AD On or about January 3, 2014, Ms. AD wrote another memorandum to Chief McIntosh, reporting that on November 26, 2013, Sergeant Wood called her, informed her of POST’s investigation, and asked if she was one of the MPD employees who had written memoranda. Ms. AD stated that after she informed Sergeant Wood that she had written a memorandum about his racist comments, he asked her to write another memorandum retracting everything in the first memorandum, but she declined because she had told the truth in the October 28, 2013 memorandum and she did not want to get more involved.[15] Ms. AD testified that the purported reason for Sergeant Wood’s November 26, 2013 call was that before his termination, he had been considering renting a house that her grandparents owned in Oracle. Sergeant Wood’s brother, Samuel, testified that on November 26, 2013, he was in the car with Sergeant Wood helping him move his belongings from Sahuarita to Tucson, when Sergeant Wood received a telephone call from Ms. AD, which he put on speakerphone. Samuel testified that initially, the conversation was casual and that Ms. AD was excited about a wedding that she was attending. Samuel testified that by that time, Sergeant Wood had received notice of POST’s investigation and knew that the nature of the complaint was racial. Samuel testified that he heard Sergeant Wood tell Ms. AD that he could not believe that the complaint against him was racially oriented and Ms. AD responded, “I know.” Samuel then said that after Sergeant Wood told Ms. AD that four MPD employees had written memoranda, Ms. AD got quiet, then said that she was sorry that Chief McIntosh had forced her to write a statement or face losing her job. Samuel testified that Ms. AD became very apologetic and said that she would lose her job if she told the truth to POST. Ms. AD stated further in her January 3, 2014 memorandum that later on the night of November 26, 2013, one of the MPD officers who had also written a memorandum called to say that Sergeant Wood had said that Ms. AD had stated that Chief McIntosh had forced her to write the October 28, 2013 memorandum.[16] Ms. AD immediately sent an email to Sergeant Wood, accusing him of “twisting [her] words” and lying about what she had told him, which she provided to Chief McIntosh.[17] Ms. AD testified consistently with her January 3, 2014 memorandum and emails to Sergeant Wood. Ofc. KC At the time of Sergeant Wood’s termination from MPD, his father, James Wood, was employed by TOPD as the lead investigator for background investigations. Detective Manges worked with Sergeant Wood’s father, James, at TOPD for 2½ or 3 years. Ofc. KC testified that Sergeant Wood contacted Ofc. KC after MPD terminated Sergeant Wood. Ofc. KC testified that he acknowledged that he wrote the October 30, 2013 memorandum, but that he mostly said what Sergeant Wood wanted to hear to “get him off [Ofc. KC’s] back.” Ofc. KC testified that he never retracted the memorandum or told Sergeant Wood that the memorandum was not true. Ofc. KC testified that at the time MPD terminated Sergeant Wood, Ofc. KC had already been hired by TOPD. Nonetheless, Sergeant Wood called Ofc. KC to congratulate him on his new job and to say that Sergeant Wood was responsible for KC getting the job. Ofc. KC testified that he felt Sergeant Wood’s call was inappropriate. Ofc. KC denied that he ever told Sergeant Wood that he was coerced to write the October 30, 2013 memorandum. Ofc. KC did not record his telephone conversations with Sergeant Wood. Mr. Manges testified that he interviewed Ofc. KC as part of the background investigation of his application to TOPD. Detective Manges testified that Ofc. KC told him that Ofc. KC had retracted the memorandum. Ofc. KC testified that he did not remember saying that to Mr. Manges. Sergeant Wood’s brother, Jonathan, testified that he lived with Sergeant Wood between January 2013, and November 2013. Jonathan testified that on November 6, 2013, he and Mrs. Wood were present when Sergeant Wood had a telephone conversation with Ofc. KC on the speakerphone. Jonathan testified that he heard Ofc. KC say that he had just gotten off the phone with Ofc. AC and that Ofc. AC said that he was sorry for having made the statements in the memorandum and that he wanted Sergeant Wood to call him. Sergeant Wood’s brother, Samuel, testified that on November 26, 2013, while he was in the car with Sergeant Wood helping him move from Sahuarita to Tucson, he either made or received a second call from Ofc. KC, which he put on speakerphone. Samuel testified that he heard Sergeant Wood tell Ofc. KC about his conversation with Ms. AD, and Ofc. KC said, “Let me call you back.” Samuel testified that a few minutes later, Ofc. KC called back, apologized, and said that Chief McIntosh had said the memoranda would not go anywhere, and that Ofc. KC needed to write the memorandum to keep his job. Samuel testified that Ofc. KC said that he did not believe a word of the accusations against Sergeant Wood. Sergeant Wood also submitted a printout of his cell phone records for November 2013, to show calls to and from Ofc. KC and Ms. AD.[18] Sergeant Wood testified that he could not find the December 2013 records. Sergeant Wood acknowledged that the notation, “incoming,” meant that he received a call from the number shown and that if “incoming” did not appear, he had placed the call. Sergeant Wood’s November 2013 cell phone records showed one call from Ms. AD on November 8, 2013, and a total of eight calls from Sergeant Wood to Ms. AD on November 25, 2013 (five calls) and November 26, 2013 (three calls). The records show four calls from Ofc. KC and five calls to Ofc. KC between November 23, 2013, and November 26, 2013, including four calls on November 24, 2013.[19] Sergeant Wood testified consistently with his brother Samuel’s account of his conversations with Ofc. KC and Ms. AD. Samuel testified that both Sergeant Wood and Ofc. KC were considering working at TOPD, that Sergeant Wood told Ofc. KC that he should just tell the truth to the TOPD background investigator and to POST, and that Ofc. KC said that he would write a letter to POST to say that the allegations in the memorandum were not true. Samuel testified that after he stopped driving, he wrote down the date and notes of the conversations that he had overheard. Ofc. KC denied that he ever told Sergeant Wood that he was coerced to write the October 30, 2013 memorandum. Ofc. KC acknowledged that he did not record his telephone conversations with Sergeant Wood. During POST’s rebuttal case, Ofc. KC testified that he never said that his statements in the October 30, 2013 memorandum were untrue. Ofc. KC testified that he told Mr. Manges that he was thinking of retracting the memorandum because he wanted to get Sergeant Wood and Mr. Manges off his back. Ofc. AC Ofc. AC testified that after MPD terminated Sergeant Wood’s employment, he contacted Ofc. AC repeatedly to tell him that if Ofc. AC retracted his October 29, 2013 memorandum, Sergeant Wood’s father would fast-track Ofc. AC’s application at TOPD. On January 7, 2014, Ofc. AC wrote a second memorandum to Chief McIntosh, stating that on approximately November 6, 2013, Sergeant Wood contacted him to ask if he had written a memorandum. After Ofc. AC said that he had written a memorandum, Sergeant Wood stated that Ofc. AC’s “name was dirt in the eyes of all law enforcement agencies in Tucson.”[20] When Ofc. AC stated that did not make sense because it was an integrity issue and that he believed he did the right thing, Sergeant Wood stated that in the eyes of Ofc. AC’s peers, he “was branded a rat and . . . would never be welcomed or accepted.”[21] Ofc. AC’s January 7, 2014 memorandum continued: This really upset me so I decided to go along with his game and see where it took me. So I asked him what I could do to fix this. He told me that I would have to write a memo to AZ POST and retract my previous statement. I told him that if I did this, that AZ POST would consider me a liar and turn their attention on me. He told me that they wouldn’t and he would help me write it. He told me that he had spoken to his father and that his father told him that if I did this he would help me get a job at [TOPD]. I asked how that would be possible since I was branded a rat. He said that his father was just promoted to lead background [investigator] for [TOPD] and that he would talk to the chief and push me through. I told him that it sounded pretty dirty. He said it was sad but that’s how it was in big agencies, it is all about who you know. I told him that I would need time to think about it but it sounded pretty dirty. He told me that he had already spoken to one of the other people who wrote memos about him and that they were going to write one on his behalf.

I spoke to my wife and told her that I wanted to expose him for even thinking that I would ever do such a dirty unethical thing. So I decided to tell him that I would write a memo but I wanted his father to offer me the job in writing first. He told me that I needed to make the first move since I burned his son first, to show good faith. . . .[22]

Sergeant Wood testified that Ofc. AC told him that he wanted to get out of MPD and that he just told Ofc. AC how to get an employment application for TOPD. Sergeant Wood testified that Ofc. AC just wanted information on TOPD’s overtime policy, policy of vehicle use, and the like. Sergeant Wood testified that his father never called Ofc. AC. Sergeant Wood’s brother, Jonathan, testified that on December 6, 2013, after Sergeant Wood got off the phone with Ofc. KC, he called Ofc. AC and put the conversation on speakerphone. Jonathan testified that Ofc. AC was extremely apologetic and said that Chief McIntosh had forced him to write the memorandum, but had assured him that the statements in the memorandum would not go anywhere. Jonathan testified that Ofc. AC said that he needed to keep his job because he had a child with medical issues. Jonathan testified that he worked with Sergeant Wood in the Pima County Corrections System and that his brother was extremely professional, direct, and to the point. Jonathan testified that he found it troubling that an officer of the law, such as Ofc. AC, would not stand up for the truth. Sergeant Wood’s wife, Mrs. Wood, testified that she also heard the conversations between Ofc. KC and Ofc. AC. Although Sergeant Wood tried to find a recorder, he could not do so in time to record the conversations. Mrs. Wood testified that Sergeant Wood said he did not trust Ofc. AC. Mrs. Wood provided largely the same accounts of the conversations as Sergeant Wood’s brother, Jonathan. Mrs. Wood testified that she heard Ofc. AC say that he was willing to talk to background investigators at TOPD because it would not hire Sergeant Wood due to the ongoing POST investigation. During POST’s rebuttal, Ofc. AC testified that Sergeant Wood first brought up possible employment at TOPD. Ofc. AC testified that he had nothing to gain or lose by writing the two memoranda, but that he would lose his integrity if he retracted the true statements. Ofc. AC testified that he applied for a job at TOPD after he wrote the memorandum and Sergeant Wood’s father left TOPD. During POST’s rebuttal, Ofc. AC testified that although he is not afraid of or intimidated by Sergeant Wood, he feared the possibility of what Sergeant Wood might do because he is unstable. Sergeant Wood’s Defense Mr. Abbott testified that he was employed by MPD as a peace officer between May 2013, and September 2013, and that he still is a certified peace officer, although he does not work in law enforcement. Before MPD employed Mr. Abbott, he worked in the prison system for 13 years. Mr. Abbott testified that not long after he started working at MPD, Sergeant Wood became his FTO. Mr. Abbott testified that Sergeant Wood behaved professionally and treated everyone with respect. Mr. Abbott never heard Sergeant Wood make any inappropriate religious or racial comments. Mr. Abbott does not believe POST’s allegations about Sergeant Wood. Mr. Abbott rated Sergeant Wood a “9” or “10” compared to other peace officers that he has met. Mr. Abbott said that Ofc. AC told him that Sergeant Wood was knowledgeable, helpful, and good at taking safety precautions on the street. Mr. Abbott acknowledged that MPD terminated his employment because he did not meet probation. Mr. Abbot added that he did not get along with Chief McIntosh. Sergeant Wood testified that he did not agree with Chief McIntosh’s decision to terminate Mr. Abbott in September 2013. Mr. Manges testified that he worked at TOPD between 2009 and March 2014. Mr. Manges testified that because MPD performed no investigation before terminating Sergeant Wood’s employment and all of MPD’s employees’ memoranda were dated after the termination, POST’s allegations were not credible. Mr. Manges testified that MPD refused to release Sergeant Wood’s file to him and that his communications with Chief McIntosh were not amicable. Mr. Manges testified that he informed Mr. Rosenberger that something is not right with MPD’s termination of Sergeant Wood and POST’s case. Mr. Manges testified that he performed a background investigation of Sergeant Wood for employment at TOPD and found that he was hirable. Mr. Manges testified that TOPD hired Sergeant Wood in 2013, but that after an executive review, he was dismissed after one day. During POST’s rebuttal case, Ms. Ketron testified that following the first day of hearing, she contacted TOPD and was informed that Sergeant Wood had never been hired by TOPD. Mr. Naber testified that he has more than 30 years of experience in law enforcement in Los Angeles, Pima County, Gila County, and other locations. Mr. Naber testified that he worked for MPD as a detective in child crimes and was interim chief on two occasions. Mr. Naber testified that he worked on an off with Chief McIntosh at MPD for ten years. Mr. Naber testified that in his opinion, Chief McIntosh was not competent and had integrity issues. Mr. Naber testified that he and Chief McIntosh once responded a domestic violence call where the subject was able to grab Chief McIntosh’s gun and Mr. Naber had to break the subject’s arm, but at the office, Chief McIntosh said it was all Mr. Naber’s fault. Mr. Naber testified that Chief McIntosh was suspended after having been found to have lied in an internal affairs investigation. Mr. Naber testified that MPD did not follow proper protocol before terminating Sergeant Wood’s employment because it did not conduct witness interviews or provide information on the allegations to Sergeant Wood. Mr. Naber testified that when credibility is an issue, polygraphs must be conducted and the officer must be interviewed. Mr. Naber has never failed to interview a witness who has information in an internal affairs investigation. Sergeant Wood asked Mr. Naber if Chief McIntosh was corrupt; Mr. Naber responded that the Town of Mammoth has asked him to return to being chief to investigate MPD and the Town Council and that he believes that something is “not right” in the Town of Mammoth. Mr. Naber acknowledged that he did not know the particulars of POST’s case. He also acknowledged that if an employee is on probationary status, he could be released for no reason. During POST’s rebuttal case, Ms. Ketron testified that Chief McIntosh was the subject of a POST complaint in which sexual harassment and an open meeting law violation were alleged, but that no complaints involving integrity had ever been made against him. Ms. Ketron testified that POST dismissed with no action the one complaint that had been made again Chief McIntosh. Sergeant Wood testified that he joined he Pima County Sheriff’s Office in 2009. Mr. Wood acknowledged that he resigned in lieu of termination from the Pima County Sheriff’s Office in 2011. Sergeant Wood explained that his wife was ill at the time and he did not want to deal with an internal affairs investigation. Sergeant Wood submitted a statement from Hector Hernandez that he had worked for MPD as a certified peace officer between July 2012, and May 2013, and that he had trained with Sergeant Wood for a short time. Mr. Hernandez stated that Sergeant Wood was not a racist and that he was always professional. On cross-examination, Sergeant Wood testified that he worked with Mr. Hernandez for two to three weeks. POST’s attorney called his attention to POST’s appointment history, which showed that Mr. Hernandez was terminated from MPD on May 13, 2013, the day after Sergeant Wood’s appointment as a full-time officer. Sergeant Wood pointed out that between May 2, 2013, and May 13, 2013, he was an MPD reserve officer. Sergeant Wood testified that Ofc. AC had trouble writing reports, seemed very timid in police work, and did not know how to stand for officer safety, and that Mr. Abbott was a far superior officer. Sergeant Wood testified that although Ofc. AC “sucked up,” there was a rumor going around MPD that when Chief McIntosh retired, Sergeant Wood would be promoted to chief of MPD. Sergeant Wood denied ever making racial comments to anyone while on duty at MPD or at other times. Sergeant Wood testified that Ms. AD was openly religious and that when he told her he was Mormon, she said, “All Mormons are crazy.” Sergeant Wood testified that in August or September 2013, he saw a registered sex offender, Mr. Greenler, stalking a 16-year-old girl. Sergeant Wood testified that after he started an investigation, he learned that Mr. Greenler was the nephew of the Town Manager, who became much less friendly to him. Sergeant Wood testified that eventually, he was asked to stop his investigation of Mr. Greenler. Sergeant Wood testified that he received information that Mr. Greenler was selling methamphetamine and that when he approached Chief McIntosh with the information, he instructed Sergeant Wood to coordinate the investigation with the county attorney. Sergeant Wood testified that he thought it was odd that Chief McIntosh approved the investigation after telling Sergeant Wood to back off. Sergeant Wood testified that the next he heard, he was informed of a supervisor’s meeting and then his employment was terminated. Sergeant Wood testified that he was terminated before he could talk to the confidential informant about Mr. Greenler. Sergeant Wood testified that Chief McIntosh took Ofc. KC and Ofc. AC off FTO before they had sufficient training. Sergeant Wood characterized Mr. Abbott as “less needy.” Sergeant Wood testified that Ofc. AC had a Mormon neighbor whom he did not like and that he bragged about his sexual exploits at work and had to be counselled. Sergeant Wood testified that because he had Ofc. KC and Ofc. AC such a short time, he had to drill them constantly and that although he expressed his concerns about these two officers to Chief McIntosh, he decided to move forward with them. During POST’s rebuttal case, Ofc. AC testified that he does not hate Mormons and although he did not remember the specifics of Sergeant Wood’s criticisms while he was Ofc. AC’s FTO, he did not write the October 29, 2013 memorandum due to any criticism that Sergeant Wood may have made as his FTO. Sergeant Wood submitted emails screens from Ms. AD’s brother, David, on November 4, 2013, expressing his condolences for Sergeant Wood’s loss of job, expressing sympathy, and stating that “we lost a really good cop I’m going to miss you bro.”[23] During POST’s rebuttal case, Ms. AD testified that she never told Sergeant Wood that all Mormons were crazy and that she never told her brother about Sergeant Wood’s racist remarks or that she had written a memorandum. Mrs. Wood testified that her husband is a good man and that she would not have married Sergeant Wood if he was a racist. Mrs. Wood testified that she and her husband have friends who are African-American. Mrs. Wood testified that she did not convert to the Mormon faith until a year after she married Sergeant Wood. Sergeant Wood testified that while he was employed at MPD, he did discuss and show a slide show presentation on blood-borne pathogens because they are his “pet peeve” and a general concern for peace officers. During POST’s rebuttal case, Ofc. KC and Ofc. AC both testified that Sergeant Wood never discussed or showed a slide show on blood-borne pathogens. Sergeant Wood submitted a letter dated January 31, 2014, from Laura Ybarra, stating that she is a former Pima County Sheriff’s Deputy who met Sergeant Wood at the academy and accompanied him on a ride-along on October 6, 2013. Ms. Ybarra stated that she met Ms. AD and Ofc. AC, who had locked himself out of his master bedroom and needed Sergeant Wood’s assistance. Ms. Ybarra stated that she observed cordial relations between Sergeant Wood and Ms. AD and Ofc. AC and that she has never known Sergeant Wood to speak in a racially motivated tone.[24] During POST’s rebuttal case, Ofc. AC acknowledged that he locked himself out of his master bedroom and that he was grateful that Sergeant Wood had picks to let him back in. Ofc. AC testified that before Sergeant Wood started making racially offensive remarks, the two had a cordial relationship. Evidence of Peace Officer Standards Mr. Lane spent 35 years as the Arizona Department of Public Safety, including various positions as a commander and ending as Assistant Director. Mr. Lane testified that if Sergeant Wood made the statements that Ms. AD, Ofc. KC, Ofc. AC, and Mr. PV reported, it would constitute malfeasance because the statements were personally offensive to the persons who heard the statements. Mr. Lane could not fathom how disruptive such statements would be to a police organization. Mr. Lane testified that FTOs should mentor new officers, but the statements ascribed to Sergeant Wood would make it hard for new officers to respect the FTO. Mr. Lane testified that because the statements would raise concerns about the officer’s ability to be unbiased, they would jeopardize the public trust in the law enforcement profession. Ms. Ketron spent 23 years working for the Arizona Department of Public Safety, including six years as a training specialist and FTO. Ms. Ketron testified that Sergeant Wood’s racial remarks at MPD constituted malfeasance. Ms. Ketron testified that if the public knew of those remarks, public respect for the law enforcement profession would be diminished. Ms. Ketron testified that coercing or tampering with a witness’s testimony was a serious offense. CONCLUSIONS OF LAW This matter lies within POST’s jurisdiction.[25] POST bears the burden of proof to establish cause to impose penalties on Sergeant Wood’s peace officer certification by a preponderance of the evidence.[26] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[27] 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.”[28] 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.[29] Under A.A.C. R13-4- 109(A)(8) and (9), respectively, POST may penalize an officer’s certification if it determines that he has committed malfeasance, misfeasance, or nonfeasance in office, or that he has committed “[a]ny other conduct . . . that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.”[30] Ms. AD, Mr. PV, Ofc. KC, and Ofc. AC did not appear to have any animus toward or improper motivation to make complaints about Sergeant Wood. Although none of these witnesses appeared to want to be involved in Chief McIntosh’s or POST’s investigations, their written accounts and hearing testimony were consistent and credible. POST established that between approximately May 2013, and October 2013, Sergeant Wood made inappropriate and offensive racially based comments to Ms. AD, Mr. PV, Ofc. KC, and Ofc. AC while they were all were on duty. POST established that because peace officers should not make offensive racially based comments to co-workers while on duty, Sergeant Wood committed malfeasance when he made those comments, providing cause to discipline his peace officer certification under A.A.C. R13-4- 109(A)(8).[31] The public expects peace officers to refrain from making offensive racially based comments while they are on duty and to spend most of the time that they are on duty performing their official functions, rather than making offensive racially based comments or expounding on the alleged religious justification for the comments. Therefore, POST established that when Sergeant Wood made the comments, he committed conduct that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession under A.A.C. R13-4-109(A)(9), providing additional cause to discipline his peace officer certification. Sergeant Wood and his witnesses acknowledged that he contacted Ms. AD, Ofc. KC, and Ofc. AC after MPD terminated his employment. His cell phone records show repeated attempts over a short time to contact Ms. AD. Ms. AD’s hearing testimony, second memorandum, and text message consistently and credibly stated that Sergeant Wood pressured her to retract the statements made in her first memorandum. Ms. AD was a young woman who still lived at her grandparents’ home; any of Ms. AD’s statements that Sergeant Wood’s brother, Jonathan, overheard may easily be explained by her understandable reluctance to confront her older, male, former supervisor. Therefore, POST established that on or about November 26, 2013, Sergeant Wood contacted Ms. AD and asked/pressured her to retract her complaint. Ofc. AC’s second memorandum and testimony were consistent and credible. Ofc. AC’s statements that after Sergeant Wood offered to have his father fast-track Ofc. AC’s employment application to TOPD in exchange for retracting his first memorandum, Ofc. AC decided “to go along with the game” and to “expose [Sergeant Wood] for even thinking that I would ever do such a dirty unethical thing” explains any comments that Sergeant Wood’s brother, Jonathan, and Mrs. Wood may have overheard. Therefore, POST established that on or about December 6, 2013, Sergeant Wood contacted Ofc. AC and asked/pressured him to retract his complaint. Ofc. KC credibly testified that Sergeant Wood pressured him to retract his memorandum. Ofc. KC’s credible testimony that he said whatever he needed to say to get Sergeant Wood and Mr. Manges “off his back” explains any comments that Sergeant Wood’s brothers, Jonathan and Samuel, and Mrs. Wood may have overheard. Therefore, POST established that sometime after October 24, 2013, Sergeant Wood contacted Ofc. KC and asked/pressured him to retract the complaint. A peace officer should not pressure witnesses to change their testimony to protect himself, especially when the testimony was true.[32] Therefore, POST established that when Sergeant Wood contacted Ms. AD, Ofc. AC, and Ofc. KC to ask/pressure them to retract their complaints, he committed malfeasance, providing additional cause to discipline his peace officer certification under A.A.C. R13-4-109(A)(8). The public expects peace officers to be responsible for their own words and actions, to respect the truth, and to refrain from pressuring witnesses to retract prior truthful testimony and replace the prior truthful testimony with a falsehood to protect the peace officer’s interests. Therefore, POST established that when Sergeant Wood contacted Ms. AD, Ofc. AC, and Ofc. KC to ask/pressure them to retract their complaints, he committed conduct that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession, providing additional cause to discipline his peace officer under A.A.C. R13-4- 109(A)(9). Done this day, March 2, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Lyle W. Mann, Executive Director Peace Officer Standards and Training Board ----------------------- [1] See POST Exhibit 2. [2] See POST Exhibit 1. [3] See POST Exhibit 3. [4] See POST Exhibit 4 at 3. [5] See POST Exhibit 7. [6] See id. [7] See id. [8] See POST Exhibit 9 at 1. [9] See id. at 2. [10] See id. [11] Id. at 5. [12] See POST Exhibit 5 at 1. [13] See id. at 1-2. [14] Id. at 2. [15] See POST Exhibit 4 at 5. [16] See id.at 6. [17] See POST Ex. 15. [18] See Sergeant Wood’s Exhibit E. [19] See id. [20] POST Exhibit 6 at 1. [21] Id. [22] Id. at 1-2. [23] Sergeant Wood’s Exhibit D. [24] See Sergeant Wood’s Exhibit F. [25] See A.R.S. § 41-1821 et seq. [26] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [27] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [28] Black’s Law Dictionary at page 1220 (8th ed. 1999). [29] A.R.S. § 41-1822(C)(1). [30] POST adopted these rules pursuant to A.R.S. § 41-1822(A)(3). [31] Malfeasance is “[a] wrongful or unlawful act; esp. wrongdoing or misconduct by a public official.” Black’s Law Dictionary, supra, at page 976. [32] See A.R.S. § 13-2804 (Inducing with a witness in an official proceeding to withhold testimony or to testify falsely constitutes tampering with a witness, a class 6 felony).

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

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