ALJDEC decisions subject to certification as final

14A-024-POST · Peace Officers Standards and Training · 2015-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2015, at 8:00 a.m. APPEARANCES: Justin L. Shelton (hereinafter “Respondent” or “Mr. Shelton”) was represented by his attorney, Dale F. Norris, Esq., Law Office of Dale Norris LLC. The Arizona Peace Officer Standards and Training Board (hereinafter “Board”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent completed peace officer training and received certification from the Arizona Peace Officer Standards and Training Board (hereinafter “POST”). On or about June 19, 1999, Respondent was appointed to the Arizona Department of Public Safety (hereinafter “DPS” or “AzDPS”) on June 19, 1999.[1] 2. On or about February 5, 2014, POST received a Termination Report from DPS informing POST that Respondent had been terminated from DPS and that DPS was aware of conduct that may violate A.A.C. R13-4-109(A)(1-9).[2] 3. POST assigned Compliance Specialist Ted Brandon (hereinafter “Mr. Brandon”) to investigate whether the circumstances of Respondent’s termination from DPS provided cause to discipline his peace officer certification under POST’s administrative regulations. On or about August 20, 2014, 2014, Mr. Brandon presented a case overview to POST.[3] 4. After Respondent’s case was presented to POST, it determined that cause existed to discipline his certification. 5. Respondent requested an administrative hearing on POST’s decision. POST referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 6. On February 16, 2015, POST issued a Notice of Hearing.[4] The Notice of Hearing charged Respondent with violating A.A.C. R13-4-109(A)(6), (8), and (9) by committing the following alleged misconduct: On November 14, 2013, Respondent drove a marked police vehicle to training while under the influence of alcohol.

7. On August 17, 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 23 exhibits and presented the testimony of five witnesses: (1) Sgt. Stephen Robson, (2) Captain Steven Reutter, (3) Major John C. Philpot, (4) Criminologist Ronald J. Skwartz, and (4) Ted Brandon, Compliance Specialist with POST. Respondent submitted 6 exhibits and presented the testimony three witnesses: (1) Himself, (2) Detective Brian Barnes, and (3) Officer Mark P. Haughey. Hearing Evidence 8. On November 14, 2013, at 8:00 a.m., Respondent was prescheduled to attend Mobile Data Computer (“MDC”) training at the Flagstaff District Office for DPS. Respondent was notified of the date and time of the training.[5] 9. On November 14, 2013, at 8:02 a.m., Respondent texted that he had fallen back to sleep but that he was now was on his way to the office for the training program. Respondent drove to the training site in a marked patrol vehicle.[6] 10. Respondent was dressed in civilian attire with a handgun and badge when he arrived at the training site. Respondent was observed driving into the parking lot for the training site in his assigned marked patrol vehicle.[7]

11. When Respondent arrived at the training site, several different officers reported that they could smell the odor of an alcoholic beverage coming from the Respondent. Sgt. Robson was notified of the officers’ observations. Sgt. Robson contacted Respondent at Respondent’s work station. Sgt. Robson could detect the odor of intoxicating liquors on Respondent’s breath and caused dispatch to contact Sgt. Stewart to respond to the training site to confirm the odor of intoxicating liquors on Respondent’s breath.[8] 12. Sgt. Stewart confirmed that he could smell the odor of intoxicating liquors on Respondent’s breath. Sgt. Stewart then asked Respondent when he had last consumed alcohol. Respondent answered that he had consumed several shots of whisky the night of November 13, 2013, but that he had stopped drinking around 2100 to 2200 hours.[9] 13. Respondent was then moved from the training room to an office. Sgt. Robson then printed out a General Order 2.2.10/Internal Investigations form that Respondent was allowed to review and sign.[10] 14. Respondent was then transported to the Coconino County Jail for the purpose of conducting a “For Cause” breath test. The Respondent was first taken to the Coconino County Sheriff’s Office debriefing room. The Intoxilyzer was not in service in the debriefing room and Respondent was then moved to the jail intake area to use an Intoxilyzer 8000 machine located in that area. 15. Respondent was first asked to take a non-recorded breath test. After the non-recorded breath test resulted in a breath alcohol concentration of approximately .06, Respondent was asked to complete two recorded duplicate breath tests. The first recorded breath test showed Respondent’s breath alcohol concentration to be .066 at 1056 hours. The second breath test showed Respondent’s breath alcohol concentration to be .062 at 1102 hours.[11] 16. Sgt. Stewart testified that Respondent appeared to be upset and angry when he saw the results of the two recorded breath tests. 17. Criminologist Ronald J. Skwartz (hereinafter “Mr. Skwartz”) testified that the average elimination rate for alcohol from the human body for a “social drinker” is .015 per hour. Mr. Skwartz testified that the elimination rate for alcohol from the body of a heavy drinker could be much higher. Mr. Skwartz opined that based upon the two recorded breath alcohol concentrations, that the Respondent’s Breath Alcohol Concentration would have been .111 at 0756 hours, .096 at 0856 hours, and .081 at 0956 hours.[12] 18. Ms. Skwartz’ testimony regarding the elimination rate for alcohol from the body is found to be credible. 19. Major John C. Philpot (hereinafter “Major Philpot”) testified that he was aware that Respondent was undergoing a hard divorce and that Respondent was apparently self-medicating with alcohol. Major Philpot stated that he had previously warned Respondent about his use of alcohol. 20. Detective Brian Barnes (hereinafter “Detective Barnes”) testified that he had gone to college with Respondent and had worked with him. Detective Barnes stated that Respondent was “falling apart” during his divorce and that Respondent was drinking heavily during the divorce. Detective Barnes said that Respondent was a good peace officer and that he believed that Respondent had resolved his drinking problem and that he believed that Respondent should be given an opportunity to return to law enforcement work. 21. Officer Mark Haughey (hereinafter “Officer Haughey”) testified that he had worked with Respondent in the past and considered him to be a good peace officer. Officer Haughey stated that Respondent fell apart during his divorce. Officer Haughey said that he believed that Respondent was now stable. Officer Haughey emphasized that Respondent had been completely honest throughout all of the proceedings against him. Officer Haughey opined that Respondent should be given an opportunity to return to law enforcement work. 22. Mr. Shelton testified that he had wanted to be a peace officer all of his life. Mr. Shelton acknowledged that on November 14, 2013, he drove a marked police vehicle to training while under the influence of alcohol. Mr. Shelton stated that he clearly he drank too much alcohol the night before the training. Mr. Shelton emphasized that the circumstances of his divorce, which involved an affair between his wife and one of his superior officers at DPS, was very difficult. Mr. Shelton said that his ex-wife passed away shortly after the divorce and that he was now the sole parent for two teenage children. 23. Mr. Shelton testified that his excessive drinking was situational and that he had hit rock bottom and had stopped drinking. Mr. Shelton said that he and his children were now living with his parents and he was working construction as a block mason. Mr. Shelton stated that he worked days without a problem for DPS after the November 14, 2013 incident. Mr. Shelton said that he wanted to keep his peace officer status so that he could return to work as a peace officer and provide for his children. 24. Mr. Shelton’s testimony is found to be credible. 25. Respondent was terminated from DPS effective January 31, 2014. Respondent appealed his termination through the Law Enforcement Merit System Council (“LEMSC”). On May 6, 2014, the LEMSC Board heard the matter regarding the termination appeal by Respondent. At the conclusion of the hearing, LEMSC issued its Findings of Fact indicating that the DPS had “demonstrated by a preponderance of the evidence that the material facts on which the discipline was based are true.” In addition LEMSC found that Respondent’s actions constituted being impaired by alcohol or drugs as provided for in A.R.S. Title 13, Chapter 34, while on duty, furnishing grounds on which he may be disciplined by DPS. 26. LEMSC concluded that the disciplinary action by DPS was arbitrary and capricious because DPS allowed Respondent to continue working from November 2013, to January 2014. The only other case that had similar circumstances, which LEMSC concluded was more egregious, had a recommendation of a 240- hour suspension without pay. LEMSC concluded that Respondent should have received the same consideration. LEMSC concluded that Respondent’s overall employment history should have been taken into consideration prior to disciplinary action being taken. LEMSC recommended that DPS rescind Respondent’s termination and instead issue a suspension of 240 hours without pay. 27. On June 4, 2014, DPS Director Robert Halliday issued a letter rejecting the LEMSC recommendation as arbitrary or without reasonable justification and upholding Respondent’s dismissal. 28. On July 7, 2014, Respondent appealed his termination to Superior Court. On February 13, 2015, The Superior Court of Arizona, Maricopa County issued a minute entry which provided, in relevant part, as follows: IV CONCLUSION,

Based on the foregoing, this Court concludes there was substantial evidence to support the action of the AzDPS, and the action of the AzDPS was not contrary to law, was not arbitrary or capricious, and was not an abuse of discretion. This Court further determines there is no just reason to delay entry of judgment and no further matters remain pending, and thus this judgment is entered pursuant to Rule 54(c)….

29. The February 13, 2015 Superior Court Order is now on appeal. 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 at 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)(6), (8), or (9) if it determines that he has committed acts that constitute any of the following: 6. Unauthorized use of or being under the influence of spirituous liquor on duty; . . . .

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 that on November 14, 2013, Respondent drove a marked police vehicle to training while under the influence of alcohol. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(6). Similarly, POST established Respondent committed malfeasance, which means “[a] wrongful or illegal act,”[13] misfeasance, which means “[a] lawful act performed in a wrongful manner;”[14] or nonfeasance, which means “[t]he failure to act when a duty to act existed.”[15] Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8). POST established that Respondent engaged in conduct or a pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession because the public expects peace officers to be sober while they are on duty. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4- 109(A)(9). Respondent Justin L. Shelton acknowledged that on November 14, 2013, he drove a marked police vehicle to training while under the influence of alcohol. Mr. Shelton stated that he clearly drank too much alcohol on the night before the scheduled training. This Tribunal concludes that Respondent’s willingness to take responsibility for his actions is a factor that may be considered in mitigation. Done this day, August 27, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Lyle W. Mann, Executive Director Peace Officer Standards and Training Board

----------------------- [1] See Exhibit 2 (Peace Officer Record of Employment Status and Training). [2] See Exhibit 1 (Peace Officer Termination Report). [3] See Exhibit 3 (Case Overview). [4] See Notice of Hearing (Electronic File). [5] See Exhibit 4(DPS Professional Standards Report: Investigative Narrative). [6] See Exhibit 12 (Officer Jason Chacon Summary of Interview). [7] See Exhibit 10 (Officer William Willis Summary of Interview). [8] See Exhibit 7 (Sgt. Stephen Robson Summary of Interview). [9] See Exhibit 13 (Officer Justin Shelton Summary of Interview). [10] See Exhibit 8 (Sgt. Frank Stewart Summary of Interview). [11] See Exhibit 17 [12] A.R.S. § 28-1381(G)(3) provides that an alcohol concentration above .08 may be presumed as being under the influence of intoxicating liquor. [13] Black’s Law Dictionary, supra, at 976. [14] Black’s Law Dictionary, supra, at 1021. [15] Black’s Law Dictionary, supra, at 1080.

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

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