ALJDEC decisions subject to certification as final

14A-019-POST · Peace Officers Standards and Training · 2015-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2014; November 18, 2014; March 2, 2015; March 3, 2015; and March 4, 2015; with the record held open until April 27, 2015. APPEARANCES: Kimberly A. Celaya was represented by Kathryn R.E. Baillie. The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Nancy J. Beck. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. On October 18, 1999, the Yuma Police Department hired Kimberly A. Celaya (Respondent). Respondent reached the rank of Sergeant while at the Yuma Police Department. Respondent received certification from the Arizona Peace Officer Standards and Training Board (POST). 2. On June 10, 2012, the Goodyear Police Department hired Respondent. Respondent reached the rank of Lieutenant while at the Goodyear Police Department (GPD). 3. On February 5, 2014, POST received a Termination Report from GPD informing POST that Respondent had been terminated from GPD and the agency was aware of conduct that may violate A.A.C. R13-4-109(A)(1-9). 4. POST assigned Compliance Specialist Jeff Kirkham to investigate whether the circumstances of Respondent’s termination from GPD provided cause to discipline her peace officer certification under POST’s administrative regulations. On March 19, 2014, Mr. Kirkham presented a case overview to POST. 5. After Respondent’s case was presented to POST, it determined that cause existed to discipline her certification. 6. Respondent 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. 7. On May 1, 2014, POST issued a Notice of Hearing. The Notice of Hearing charged Respondent with violating A.A.C. R13-4-109(A)(7), (8), and (9) by committing the following alleged misconduct: 1. On November 23, and 24, 2013, Lieutenant Celaya hit her boyfriend and kicked him in the head. 2. On November 26, 2013, and December 2, 2013, Lieutenant Celaya was dishonest with IA investigators concerning events associated with the incidents of November 23, and 24, 2013.

8. On November 17, 2014, November 18, 2014, and March 2, 2015, through March 4, 2015, a hearing was held at the OAH on the issue of whether cause existed for POST to discipline Respondent’s peace officer certification. POST submitted 27 exhibits and presented the testimony of seven witnesses: (1) Alvin Beard; (2) Keila Mincey; (3) Wayne Bearden; (4) Officer Joseph Pinuelas of GPD;[1] (5) Lieutenant John Singleton of GPD; (6) Sergeant Justin Hughes of GPD; and (7) Lori Ketron, Compliance Specialist with POST. Respondent submitted 22 exhibits, testified on her own behalf, and presented the testimony of six witnesses: (1) Sergeant Joe Pacello of GPD; (2) Chief Jerry Geier of GPD; (3) Captain Randall Chapman of Yuma Police Department; (4) Officer Nick Nitelet of Yuma Police Department; (5) Sergeant Ronald Rodriguez retired from the Yuma Police Department; (6) Susan Lewis Simons, Founder of the nonprofit organization Under the Shield. Hearing Evidence 9. On the evening of Saturday, November 23, 2013, sometime between 5:30 p.m. and 6:00 p.m., Alvin Beard (Al) picked up Respondent from her home in Goodyear, Arizona. Respondent and Al had been dating on and off for approximately three years and had lived together for part of that time. Most recently, Al had moved out of Respondent’s residence and was living with mutual friends of Respondent and Al, Wayne Bearden (Wayne) and Keila Mincey (Keila). 10. At about 6:00 p.m., Al and Respondent arrived at Majerle’s Bar (Majerle’s) in Goodyear, Arizona to watch a fight. While there, Respondent texted Keila that she and Al were at Majerle’s and that she was on her third round of drinks. Wayne and Keila then joined Al and Respondent at the bar. While at Majerle’s, Respondent had four to five vodka and cranberry juice drinks. 11. Around 10:00 p.m., Respondent, Al, Wayne, and Keila left Majerle’s and drove to the Draft House in Chandler, Arizona. Al drove Respondent’s SUV and all four individuals traveled together. 12. While at the Draft House, Respondent had four more drinks, three vodka and cranberry juice drinks and one shot of tequila. 13. Around 1:00 a.m., the group left the Draft House and drove to Roman’s Oasis Bar (Roman’s) in Goodyear, Arizona. Again, Al drove Respondent’s SUV. Wayne was sitting in the front passenger seat, Respondent was sitting in the rear driver’s side seat, and Keila was sitting in the rear passenger side seat. 14. During the drive to Roman’s, Respondent and Keila were acting unruly in the back seat. They were rolling down the windows, yelling at other drivers, and generally being loud. At some point, Respondent stood up in the back, turned around, and began to shake her rear end between the front seats. Al yelled at Respondent telling her to sit down because there was a police vehicle nearby and he did not want to draw attention to their vehicle. Al rolled up the windows and engaged the window lock to prevent Respondent or Keila from opening the windows again. Al also turned up the volume on the radio so as to prevent them from being heard. 15. During the drive, Respondent was antagonizing Al by yelling at him, covering his eyes, touching his head, and slapping him. Al got frustrated and yelled at Respondent to sit down and shut up. Respondent felt Al was disrespecting her and she started slapping Al. Keila held Respondent’s hands to keep her from hitting Al any further. 16. Around 1:45 a.m., the group arrived at Roman’s. Respondent had another vodka and cranberry juice drink. Respondent went to the restroom and on the way back, a man approached Respondent and shook her hand. As he began talking to her, he would not let go of her hand. Al approached and pushed the man’s hand away. 17. Around 2:00 a.m., the bouncer announced it was closing time. Al put his glass on the bar, motioned to the group that he was leaving, and went outside. 18. Respondent, Wayne, and Keila finished their drinks and went outside to join Al. In the parking lot, Respondent began arguing with Al about her perception that he had disrespected her by leaving her alone in the bar with Wayne and Keila. The group got into the vehicle in the same positions as earlier. 19. The events that occurred in the vehicle during this trip are at the center of this matter. It is not possible to know exactly what happened during this time, as the four people present all have differing accounts and there was a certain level of alcohol consumption during the night that may have affected each person’s perceptions and recollections. 20. According to Wayne, the following events occurred: a. Respondent was “really pissed” that Al had left her inside Roman’s by herself. b. Wayne suggested that they drop Respondent off at her home, then Al could take Wayne and Keila back to Majerle’s to get their vehicle. This suggestion upset Respondent even more. c. Keila tried to hold Respondent to keep her from hitting Al any further. d. When the vehicle reached Estrella Parkway,[2] Respondent acted out. e. Wayne turned and saw Respondent’s feet come forward one at a time and saw her kick Al twice in the head. f. After Respondent kicked Al twice, Al slammed on the brakes and stopped in the middle of the road. g. Al reached around and hit Respondent in an effort to get her to stop kicking him. 21. According to Keila, the following events occurred: a. Respondent was “angry” after they left Roman’s. b. Respondent slapped Al’s arm, so Keila moved between Respondent and Al facing the rear of the vehicle. Keila attempted to grab Respondent’s arms to keep her from hitting Al any further. c. Keila was holding Respondent and pinning her to the back seat. Keila felt Respondent’s knee raise up as she kicked Al in the head. d. Keila saw Respondent kick Al a second time. e. After the second kick, Al said something to the effect of, “Stop fucking kicking me,” and reached into the back seat and punched Respondent. f. Respondent then kicked Al a third time. g. Al slammed on the brakes and stopped in the middle of Estrella Parkway. Keila was uncertain if this occurred before or after he hit Respondent. 22. According to Al, the following events occurred: a. Respondent was upset about Al leaving her inside Roman’s by herself. b. As he was driving on Estrella Parkway, Respondent kicked him twice in the back of the head. c. When he turned around, Respondent kicked him in the face. d. Al then reached out and swung at Respondent, but Al did not punch Respondent until after she had kicked him. e. Respondent kicked Al three times on the back of the head and the back of the neck. f. After Al hit Respondent, he stopped the car and then pulled into a parking lot. 23. According to Respondent, the following events occurred: a. Al “slammed” his glass down on the bar before he left, which let Respondent know that he was “pissed” at her. b. When Respondent reached the vehicle, she confronted Al about leaving her in Roman’s by herself. Respondent was angry and asked several times why he would leave her standing in the bar by herself. Al did not respond. c. Respondent was slapping Al’s arm to get his attention so he would respond to her questions. d. Al yelled at Respondent to “shut the fuck up” and warned her not to touch him again. Respondent slapped his arm again. e. Al said, “That’s the last time you’re going to fucking hit me,” and Keila took Respondent’s hands to keep her from hit Al again. Al slammed on the brakes and Keila and Respondent went forward in the seat. f. Without warning, Al turned around and punched Respondent leaving a bloody laceration on her left cheek and causing a black eye. g. Respondent then began kicking to prevent Al from hitting her again. Respondent did not kick Al until after he had punched her. h. Al then pulled into a parking lot. 24. Once in the parking lot, the parties exited the vehicle. Wayne came around the front of the vehicle, grabbed Al, and said, “You can’t do this man.” 25. After a brief argument in the parking lot, Respondent left and walked to her house approximately one mile away. 26. The exact series of events following the incident are unclear as far as who went where, who had conversations at different points in time, and what was said. 27. It is uncontested that Respondent went to the Emergency Room to seek treatment. However, Respondent was unwilling to provide any information regarding the injury and left without seeing any health care provider. As she was going to her car, Respondent observed Al going in to the Emergency Room. Respondent called Keila and said that she was about to lose her job over this incident. 28. Al experienced pain from Respondent’s kick. Respondent had undergone cervical spinal fusion surgeries in December 2012 and January 2013 and was under a doctor’s care through November 2013. 29. As Respondent left the hospital, she called the GPD dispatch to contact the on-duty supervisor to gain access to the police training building. GPD dispatch put Respondent in contact with Sgt. Pinuelas. Sgt. Pinuelas met Respondent at the police training building and let her into the facility. Respondent spent approximately 30 minutes inside. When she came out, Sgt. Pinuelas saw she had been crying and could see the injury to her cheek. Respondent refused to tell Sgt. Pinuelas any details about the incident. Respondent asked Sgt. Pinuelas not to make any report to a superior. 30. Sgt. Pinuelas contacted Lt. Singleton, who then spoke to Respondent. Lt. Singleton encouraged Respondent to speak to Chief Geier or Deputy Chief Rogers. 31. Respondent attempted to contact Chief Geier, but he was out of town at the time and they spoke only briefly. Respondent then met with Deputy Chief Rogers and relayed her version of the events that resulted in her injury. 32. Deputy Chief Rogers contacted the Maricopa County Sheriff’s Office to report the incident for investigation of any criminal activity. 33. Both Respondent and Al refused to give a statement to the deputies. The sheriff’s department report lists Respondent as the victim and Al as the suspect because Respondent brought the incident to the attention of law enforcement. No charges were brought and the report was for informational purposes only. 34. On the morning of November 26, 2013, after receiving a Garrity warning,[3] Respondent was interviewed by Sgt. Pacello and Sgt. Hughes of the GPD Professional Standards Bureau (internal affairs). 35. At the beginning of the interview, Sgt. Pacello provided Respondent with a Notice of Interview and read the allegations to her. The Notice of Interview provided the allegations as follows: Between November 23, 2013 and November 24, 2013 it is alleged you were involved in a physical altercation (Domestic Violence, ARS 13-3601) with your significant other, Alvin, while off-duty. It is alleged this incident occurred after an argument ensued between You and Alvin at the Romans Oasis bar located in the City of Goodyear and ultimately culminated into a physical altercation in which You struck Alvin several times inside of a vehicle while near Estrella Parkway in the City of Goodyear.

POST Exhibit 6 at p. 54. The Notice of Interview also included the following instructions:

You are hereby advised and ordered to comply as follows: 1. You are ordered to answer any and all questions asked of you, during and related to this investigation, fully and truthfully. 2. You will be asked questions specifically, directly, and narrowly related to the performance of you official duties and/or fitness for duty. . . . . 8. You are ordered not to discuss this investigation, including your interview, with anyone other than the investigator(s), your attorney, minister, employee representative, healthcare professional or spouse.

POST Exhibit 6 at p. 54. 36. After some preliminary questions, Sgt. Pacello asked, “Why don’t you go ahead and uh, tell us exactly what – what happened and – from the beginning to the end. Be as descriptive as possible. Um, let us know how it started and progressed and how it ended.” POST Exhibit 6 at 3. 37. Respondent answered as follows: A group of us went out to meet a mutual friend and actually um, our evening had started over in Chandler, and uh, nothing had happened. We were just all having a good time and hanging out. We came back to Goodyear and uh, I had heard from one of my daughter’s friends that her and her husband had been over at (Romans) and wanted me to come by – wanted us to come by. So when we got back into Goodyear we went by (Romans), and it was probably about 1:15 or so, so I guess that would be Sunday. And uh, again, I don’t know the exact time. Uh, we went into (Romans) and nothing had happened. We were all getting along. There was no issues. I’ve been over this over and over and over again about what could’ve honestly triggered any of this, so that’s why I’m just telling you the whole thing. Keila and I went into the bathroom, like as soon as we got to (Romans), and when we left we had passed a couple in the hallway. I didn’t think anything of it. Then I went right over to the bar where they were sitting, Wayne and Al, and they had ordered us drinks.

POST Exhibit 6 at 3.

38. During the course of the interview, Respondent indicated she had three vodka and cranberry juice drinks at The Draft House and one at Roman’s. POST Exhibit 6 at 6 and 11. Respondent stated that during the drive from Roman’s, she kept saying things to Al like, “Why the fuck do you leave me standing in there looking stupid?” and “”How can you be so disrespectful?” Respondent acknowledged hitting Al in the arm as she was talking to him. Respondent then asserted that Al “put on the brakes and he turn[ed] around and he just punched me dead in my face, and I would’ve never expected that.” Respondent stated that “I had wiped my face and saw the blood and – and I just remember looking at him, and I just started, you know, kicking with my feet.” POST Exhibit 6 at 14. 39. Later in the interview, Sgt. Pacello asked how the group ended up together at the beginning of the evening. Respondent stated that she picked them up because they went in her car. Sgt. Pacello specifically asked, “So you drove to pick up Wayne, Keila, and (Al) and (Al) took over driving?” to which Respondent answered, “Yes.” POST Exhibit 6 at p. 21. 40. Respondent was asked more specific questions regarding the events of the evening and she consistently maintained that Al hit her and that she had kicked him in response. 41. Later in the day on November 26, 2013, Sgt. Pacello and Sgt. Hughes interviewed Al, Keila, and Wayne, individually. 42. During the interview, Al was asked “How did – how did Saturday start?” Al stated that he and Respondent were at Majerle’s to watch the fight. Al indicated that Respondent “maybe” had five vodka and cranberry juice drinks at Majerle’s. POST Exhibit 8 at p. 5 and 6. Al did not know how many drinks Respondent had while at The Draft House. POST Exhibit 8 at p. 8. Al also stated that Respondent ordered a drink in Roman’s, but was not certain if she had finished the drink or not. POST Exhibit 8 at p. 11. 43. As to the trip from Roman’s, Al said that Respondent was upset he had left her alone inside Roman’s and was hitting his arm. Al stated that Respondent kicked him twice in the back of the head, and as he turned toward her, kicked him again in the side of the face. Al then reached back and hit Respondent. POST Exhibit 8 at p. 15. 44. During the interview with Keila, she also confirmed she and Wayne met Al and Respondent at Majerle’s. Keila believed that Respondent had five vodka and cranberry juice drinks while at Majerle’s. POST Exhibit 9 at p. 7. Keila stated that Respondent had three drinks at The Draft House, one shot of tequila and two vodka and cranberry juice drinks. POST Exhibit 9 at p. 9. In Roman’s, Respondent ordered another drink and finished it after Al had left the bar. POST Exhibit 9 at p. 15. 45. According to Keila, once outside Roman’s, Respondent was upset and was yelling and cussing at Al. POST Exhibit 9 at p. 16. Keila stated that Respondent continued yelling at Al and hitting him during the trip. Keila said that after going through a light on Estrella Parkway, “all hell just breaks loose.” POST Exhibit 9 at p. 17. Keila reported that Respondent kicked Al twice as she was trying to prevent Respondent from making any further contact with Al. POST Exhibit 9 at p. 27. After the two kicks, Al punched Respondent and then she kicked him again. POST Exhibit 9 at p. 27. 46. During the interview with Wayne, he also confirmed that he and Keila met Al and Respondent at Majerle’s. Wayne observed Respondent have one drink after he and Keila arrived, but did not know if she had another drink. POST Exhibit 10 at p. 4. Wayne believed Respondent had up to four drinks while at The Draft House, one shot of tequila and three vodka and cranberry juice drinks. POST Exhibit 10 at p. 5-6. Wayne reported that Respondent had another drink at Roman’s. POST Exhibit 10 at p. 8. 47. According to Wayne, while in the vehicle after leaving Roman’s, Respondent was angry at Al and was yelling at him. POST Exhibit 10 at p. 14. Wayne saw Respondent’s raised leg come forward, but was uncertain if Respondent made contact with Al’s head or if she missed. POST Exhibit 10 at p. 17. Al then slammed on the brakes and reached back and hit Respondent. POST Exhibit 10 at p. 17-18. 48. Based on the subsequent interviews, Sgt. Pacello had additional questions for Respondent to address the inconsistencies between her version of events and those of Al, Keila, and Wayne. 49. On December 2, 2013, Sgt. Pacello and Sgt. Hughes interviewed Respondent again. At the beginning of the interview, Sgt. Pacello provided Respondent with a Notice of Interview and read the addendum to the original Notice of Interview to her. The Notice of Interview provided the allegations as follows: ***** Addendum to Original NOI ***** It is alleged that during your interview with PSU Investigators on Tuesday November 26th, 2013, you gave false or misleading or misrepresented information and or statements, or omitted information in reference to the following: 1. That your evening originally started in Chandler 2. That you failed to disclose that you were are Majerles Bar and Restaurant prior to going to Chandler 3. That you started your evening by picking up Al, Wayne, and Keila with your vehicle prior to going to Chandler 4. The amount of alcohol you had consumed on the evening of Saturday November 23rd, 2013 from approximately 1800 hours until Sunday November 24th at 0200 hours 5. That there was a verbal argument with Al during the drive back from Chandler to Goodyear in reference to him turning the radio volume up due to you being verbally disruptive which you found to be disrespectful 6. That the verbal argument between you and Al while driving back from Chandler involved physical contact by you and Al to include: hitting Al on the arm and covering his eyes while he was driving back from Chandler 7. “Al’s” actions inside the Roman’s Oasis Bar where he “slammed” his drink and exited the bar 8. That you kicked Al in the back of the neck/head and face while he is driving on Estrella Parkway prior to Al striking you in the face 9. After walking home from Safeway; that you left by yourself in your daughter’s vehicle after Keila, Wayne, and Al left your residence 10. That you failed to disclose you drove with Keila to Keila and Wayne’s house after leaving your residence prior to going to West Valley Hospital. 11. That you drove straight to West Valley Hospital ER after Keila, Wayne, and Al left our residence

It is further alleged that on Sunday November 24, 2013 sometime between the hours of 0200 and 0230, you committed the misdemeanor offense of Assault, Domestic Violence, by: 1. Striking Al in the upper arm with an open hand while he was operating a motor vehicle 2. Striking Al a second time in the upper arm with an open hand while he was operating a motor vehicle after being told by Al to not hit him again 3. Kicking Al three times in the head/neck/face area while he was operating a motor vehicle

It is further alleged that on Sunday November 24, 2013 sometime between the hours of 0430 and 0500, you told Acting Sergeant Joe Pinuelas he did not need to call his boss to report your physical condition and that you requested he keep it confidential

POST Exhibit 7 at p. 65.

50. During the interview, Respondent acknowledged that the night began at Majerle’s. Respondent stated that she did not know why she did not mention it during the initial interview. POST Exhibit 7 at p. 4-5. 51. Because Respondent did not disclose the time at Majerle’s during the initial interview, she also did not include the alcoholic drinks she consumed at Majerle’s. During the second interview, Respondent stated she thought she had “maybe” two drinks while at Majerle’s and did not remember texting Keila that she was on her third round. POST Exhibit 7 at p. 9. 52. When asked about her statement from the first interview that the she picked up Al, Wayne, and Keila to start the evening, Respondent answered, “I literally was going off of when our evening started together of when we all left Goodyear to go to Chandler. There was no intent of discrepancies involved in that.” POST Exhibit 7 at p. 11. 53. Respondent acknowledged that she had three vodka and cranberry juice drinks and a shot of alcohol for a total of four drinks while at The Draft House. POST Exhibit 7 at p. 16. Respondent estimated that she had had eight or nine drinks during the course of the night. POST Exhibit 7 at p. 39. 54. When told that the video from Roman’s was not consistent with her account that Al “slammed” his glass on the bar before he left, Respondent stated that she did not know how it would show anything else as that was her memory of the evening. POST Exhibit 7 at p. 24. 55. Respondent consistently maintained that she did not kick Al until after he had punched her. 56. On December 27, 2013, Deputy Chief Paul Marzocca issued a Pre-Dismissal Notice to Respondent indicating that he was recommending the termination of her employment with the City of Goodyear based on her dishonesty and committing assault and disorderly conduct. POST Exhibit 18. 57. During the pretermination interview with Chief Jerry Geier, Respondent admitted that she had talked to Al about the investigation and said, “Do you know what you’re doing to me?” POST Exhibit 23 at 12:36. Such discussions were in violation of the warnings she was provided and acknowledged prior to both interviews with internal affairs. 58. On January 17, 2014, Chief Geier issued a Notice of Termination to Respondent. POST Exhibit 19. Respondent did not appeal the termination. 59. As a result of the sustained allegations of dishonesty, the Maricopa County Attorney’s Office placed Respondent on the “Brady List.” POST Exhibit 21. 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 Respondent’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). Respondent 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)(7), (8), or (9) if it determines that he has committed acts that constitute any of the following: 7. The commission of a felony, an offense that would be a felony if committed in this state, or an offense involving dishonesty, unlawful sexual conduct, or physical violence; 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 established Respondent committed a felony or an offense involving dishonesty or physical violence. A.R.S. § 13-1203(A) provides that “[a] person commits assault by: 1. Intentionally, knowingly or recklessly causing any physical injury to another person.” A.R.S. § 13-2904(A) provides that “[a] person commits disorderly conduct if, with intent to disturb the peace or quiet of a . . . person, or with knowledge of doing so, such person: 1. Engages in fighting, violent or seriously disruptive behavior.” Respondent admitted that she kicked Al in the head and/or neck. Even assuming that Respondent did not kick Al until after he had punched her in the face, that does not negate that Respondent physically attacked Al. Thus, Respondent committed assault and disorderly conduct. As to the allegation that Respondent was not truthful during the investigation, POST established that Respondent provided numerous inaccurate statement’s during her first and second interview. Specifically, in the first interview, Respondent stated that she had picked up Al, Wayne, and Keila and then the night began at The Draft House in Chandler, Arizona. During the second interview, she admitted that Al picked her up and that they met Wayne and Keila at Majerle’s in Goodyear, Arizona. Even assuming that Respondent understood the questions to be limited to the events directly surrounding the incident, that does not explain why Respondent falsely stated that she had picked up Al, Wayne, and Keila. Further, Respondent’s assertion that Al “slammed” his glass down on the bar before leaving Roman’s was not consistent with the testimony of Al, Wayne, and Keila or with the video from Roman’s. The video showed that Al slid his glass across the counter and then tapped his hand or fingers on the bar. Nothing in the video supports Respondent’s statement that Al “slammed” his glass down. As to Respondent’s statements that she did not kick Al until after he had punched her, Respondent was consistent in her statements. Respondent’s consistency, however, does not necessitate a determination that she was being truthful. The statements of Al, Wayne, and Keila when interviewed by internal affairs and when testifying during the hearing in this matter, while not identical, were consistent in detailing that Respondent kicked Al before he punched her. Thus, the greater weight of the evidence presented established that Respondent kicked Al at least twice before he punched her and then once after he punched her. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(7). Similarly, POST established Respondent committed malfeasance, “[a] wrongful or illegal act;”[4] misfeasance, “[a] lawful act performed in a wrongful manner;”[5] or nonfeasance, “[t]he failure to act when a duty to act existed.”[6] Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8). POST established Respondent engaged in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4- 109(A)(9). As an aggravating factor, Respondent has refused to acknowledge her fault in this matter. Respondent addressed the nature of the relationship she had with Al and that she should have ended the relationship earlier. Respondent also acknowledged that she should not have engaged in the verbal back and forth with Al in the vehicle. Respondent did not acknowledge that she should not have kicked Al. As a further aggravating factor, Respondent failed to comply with the Garrity warning when she spoke to Al and asked him, “Do you know what you’re doing to me?” after her interviews with internal affairs. This reflects negatively on Respondent’s character and integrity. Done this day, May 26, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Lyle W. Mann, Executive Director Peace Officers Standards and Training ----------------------- [1] Officer Pinuelas was Acting Sergeant at the time of the incident in question. Throughout the rest of the decision, he will be referred to as Sgt. Pinuelas for consistency with the record. [2] Estrella Parkway was referred to as Estrella Boulevard in some of the interviews and documents. Estrella Parkway will be used throughout this decision for consistency. [3] 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. [4] Black’s Law Dictionary 976. [5] Black’s Law Dictionary 1021. [6] Black’s Law Dictionary 1080.

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