ALJDEC decisions subject to certification as final

15A-126-POST · Peace Officers Standards and Training · 2018-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the Peace Officer Certification of:

Paul V. Chavez.

No. 15A-126-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 16, 2018, at 9:00 a.m.

APPEARANCES: The Arizona Peace Officers Standards and Training Board (“AzPOST”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General; Paul V. Chavez (“Respondent” or “Officer Chavez”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

The parties presented evidence and made argument about whether Respondent had violated Arizona Administrative Code (“A.A.C.”) R13-4-109)(A)(8) or (9), thereby furnishing cause for AzPOST to penalize his Peace Officer Certification.

Pursuant to A.R.S. §§ 41-1092.01 and 41-1822(B)(1) and A.A.C. R13-4-118, the Administrative Law Judge makes the following Findings of Fact and Conclusions of Law to AzPOST.

FINDINGS OF FACT

Background and Procedure

Respondent has been a certified peace officer in Arizona since on or about July 28, 2008. On December 19, 2011, Respondent was hired by the City of Scottsdale Police Department (“SPD”) as a patrol officer.

On or about August 17, 2015, AzPOST received an electronic Peace Officer Termination Report from SPD, informing AzPOST that Respondent’s employment had been terminated on August 14, 2015, and that Respondent’s actions that led to the termination may have violated AzPOST’s administrative regulations.

The matter was assigned to AzPOST Compliance Specialist Lori Wait for investigation. Ms. Wait obtained documents regarding SPD’s internal affairs investigation into the alleged incidents that led to Respondent’s termination and, on June 21, 2017, presented a case overview to AzPOST.

After Respondent’s case was presented to AzPOST, it determined cause existed to penalize his certification. AzPOST subsequently received Respondent’s request for an administrative hearing.

AzPOST referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On February 2, 2018, AzPOST sent a Notice of Hearing to Respondent.

The notice charged that Respondent had violated A.A.C. R13-4-109(A)(8) and (9), which rules were quoted in their entirety, by committing the following alleged acts of misconduct:

Between May 2013 and March 2014, Officer Paul V. Chavez met with Ms. NM, a confidential informant, off-duty and in his personal vehicle.

2. Between May 21 and June 9, 2015, Officer Paul V. Chavez violated a written Garrity warning and contacted Ms. NM, a witness in an investigation.

3. On June 9, 2015, Officer Paul V. Chavez was less than truthful with investigators reference his off duty contact with Ms. NM.

4. On June 10, 2015, Officer Paul V. Chavez was less than truthful during a polygraph examination reference his off duty contact with Ms. NM.

On April 16, 2018, a hearing was held. AzPOST submitted 21 exhibits and presented the testimony of three witnesses: (1) Lieutenant Patrick Regan of SPD, who conducted its Internal Affairs investigation; (2) Lieutenant Chris Blumling of SPD, who assisted Lt. Regan in the IA investigation; and (3) Ms. Wait. Respondent testified on his own behalf and submitted two exhibits.

Additional Evidence Presented at the Hearing

On or about May 14, 2015, SPD was informed that after a female suspect, MG, was arrested in another matter, she informed arresting officers that Respondent had placed her in handcuffs and taken her to a remote location where he sexually assaulted her. SPD opened a criminal investigation into MG’s allegation and the investigating officer informed Lt. Regan of the allegation against Respondent.

Lt. Regan explained that, because the criminal investigation was ongoing, the IA investigation was a place holder and that SPD officers would not actively investigate the IA matter until the criminal investigation was completed.

During the criminal investigation, MG told SPD criminal investigators that it was well-known in the community that Respondent had had sex with another woman in the laundry room of her apartment building. SPD officers contacted another woman named Priscilla, who identified the woman that Respondent allegedly was sexually involved with as NM.

SPD criminal investigators eventually tracked down NM and on May 16, 2015, interviewed her. NM initially denied that she had engaged in any sexual conduct with Respondent, stated that her last contact with him was three months earlier, and indicated that she did not have his personal cell phone number.

On May 16, 2015, after the interview, NM left a voicemail for Respondent on his personal cell phone, stating that SPD was investigating whether he sexually assaulted MG.

On May 21, 2015, SPD officers interviewed NM a second time with her probation officer present as part of their criminal investigation. NM alleged that she had consensual sex with Respondent three times, including once while he was on duty and in uniform.

On or about May 21, 2015, Lt. Regan and Lt. Blumling met with Respondent, placed him on non-disciplinary suspension, and provided him with a Notice of Investigation. The Notice of Investigation informed Respondent that the allegation against him was that he “engaged in sexual conduct while on duty.”

The Notice of Investigation provided a so-called Garrity warning and further advised Respondent in relevant part as follows:

G. During the course of the investigation, you have the responsibility to bring to the attention of the investigating supervisor any witness information or mitigation or exculpatory evidence you believe is relevant to the investigation.

. . . .

I. In order to avoid inappropriately influencing the investigation and/or disrupting the workplace, you are advised and cautioned not to discuss this investigation, your interview(s), written statement(s), or examination(s) with any other employee, or potential witnesses to this investigation other than the investigating supervisor(s), your observer and/or your legal representative.

Respondent signed the Notice of Investigation.

Lt. Regan testified that the May 21, 2015 meeting with Respondent was brief. Lt. Regan testified that Respondent was “snapping” at two IA officers. Lt. Regan testified that he told Respondent to let the process play out and reiterated that he was not to contact any potential witness or to become involved in the investigation.

Approximately an hour after Respondent signed the Notice of Investigation, he called NM back and discussed the criminal investigation. Respondent also received texts from others about SPD’s criminal investigation.

Respondent initially testified that he contacted NM because he thought she might be a witness. He also stated that he did not know whether she was a witness and just wanted to know what she knew about what was going on because the Notice of Investigation did not tell him who, what, or when. Respondent also testified that he was trying to get a witness on his side.

On June 9, 2015, SPD closed the criminal investigation into whether Respondent had sexually assaulted MG.

On June 9, 2015, Lt. Regan and Lt. Blumling interviewed Respondent, cautioning him that he needed to be honest. The investigators informed Respondent had NM alleged that he had sex with her while he was on duty and asked him to describe his relationship with NM.

During the June 9, 2015 interview, Respondent told Lt. Regan and Lt. Blumling that he was trying to cultivate NM as a confidential informant and that their relationship was strictly professional. Respondent stated that approximately a year and a half or two years earlier, after none of the information that NM provided had panned out, he stopped talking to her.

Respondent acknowledged that once, he met with NM in his personal vehicle after work and that she was in his vehicle because she was cold. Respondent denied ever having any kind of sexual conduct involving NM. Lt. Regan cautioned Respondent, “I don’t want to find out later that something actually happened and now you lose your job because you lied about when all you had to do is be honest about it.”

Lt. Regan testified that Respondent’s meeting with NM alone in his personal vehicle after hours to do SPD work violated SPD policy. It was a safety issue and placed SPD in a negative light because Respondent knew that NM’s associates were saying that he was having an affair with NM and Respondent dealt with both NM and her associates while he was on duty as an SPD officer.

After the June 9, 2015 interview, SPD arranged for Respondent to take a polygraph on June 10, 2015. Although the recording equipment was malfunctioning, Lt. Regan and Lt. Blumling were in a separate room, watching and listening to the polygraph examination, as well as the pre- and post-polygraph interviews. The polygrapher summarized Respondent’s answers to the pre-test questions as follows:

Mr. Chavez stated that he knew [NM] and had known her for about two years. He said that he spoke with her on the phone about 20 times and spoke with her in person as many as 20 times. He stated that he also contacted her once while he was off duty trying to convince her to be an informant. He denies ever having any sexual contact with her. He claims all of his contact with her was strictly professional.

Lt. Regan and Lt. Blumling confirmed that they had heard Respondent provide that information before the polygraph.

The results of the polygraph were that Respondent’s reactions to the questions indicated deception. After the polygraph examination, Respondent acknowledged in the post-polygraph interview that when he had met with NM in his personal vehicle, her interaction with him was not purely professional:

[Respondent] stated that he knows that he should have never contacted [NM] when he was off duty. He stated that during this off duty contact, she did get very close to him and was in his space. He stated that at some point he recalls that she “rubbed up on” him. He stated during this contact with her, she made sexual comments and made sexual innuendoes. He stated during this contact with her, she showed him a picture on her phone of “boobs”. He stated he did not know if it was a picture of her “boobs” or not. He stated she kept making sexual innuendoes and he knows that he should have ended the contact before any of this happened. Based on her comments and actions, he believes she wanted to have sex with him.

Lt. Regan and Lt. Blumling confirmed that they had heard Respondent provide that information after the polygraph.

Respondent denied at the hearing that NM rubbed up against him. He acknowledged that, while she was in his personal vehicle, she was “flirty,” invaded his personal space, and showed him a picture on her phone of female breasts, but that he did not know whether the breasts were hers.

Respondent denied ever providing false information to SPD. He testified that before the polygraph examination, he had forgotten NM’s behavior in his personal vehicle.

On July 1, 2015, SPD issued a second Notice of Investigation, in relevant part as follows:

SEXUAL CONDUCT ON DUTY

It is alleged that Officer Paul Chavez #1372 committed an on-duty sexual assault against [MG] while she was in his custody and inappropriately engaged in sexual conduct with [NM] both on an off-duty.

POOR JUDGMENT

It is alleged that Officer Paul Chavez #1372 exercised poor judgment by driving to the residence of [NM] (who Officer Chavez described as a potential confidential informant) after his shift. During this visit, Officer Chavez allowed [NM] to sit inside of his personally owned vehicle where he states [NM] flirted with him, moved close to him in his “space”, made sexual comments and innuendos, showed him a photo of bare female breasts on a cellular telephone, “rubbed up on” him, and gave him the impression that she was interested in having a sexual relationship with him. Officer Chavez did not speak with a supervisor about his relationship and interactions with [NM] until he was interviewed by Internal Affairs.

UNPROFESSIONAL CONDUCT

It is alleged that Officer Paul Chavez #1372 engaged in unprofessional conduct, conduct that tends to bring discredit to the employee, department, or the city, by driving his personally-owned vehicle to [NM’s] residence after a work shift and allowing her to sit inside of his private vehicle during their interactions.

POLICY VIOLATION (USE OF INFORMANTS)

It is alleged that Officer Paul Chavez #1372 violated [SPD] Field Operation Order 1021 (Using Informants) in the manner in which he interacted with [NM].

On July 1, 2015, Lt Regan and Lt. Blumling interviewed Respondent again. Respondent insisted that he had been truthful and that NM was a “tweaker” making up a story.

After completing the IA investigation, SPD did not sustain the allegation that Respondent had sexual conduct on duty, whether with MG, NM, or anyone else, or that he had violated SPD policy in meeting with NM. SPD sustained that Respondent committed unprofessional conduct and showed poor judgment.

On August 14, 2015, SPD terminated Respondent’s employment. On September 3, 2015, the Maricopa County Attorney informed SPD that after a thorough review of the materials that SPD had submitted of its IA investigation of Respondent, he would be placed on the so-called Brady list.

CONCLUSIONS OF LAW

The Arizona Legislature has empowered AzPOST to “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules prescribing reasonable minimum qualifications for officers. This matter lies within AzPOST’s jurisdiction.

Pursuant to this legislative grant of authority, AzPOST has adopted A.A.C. R13-4-109(A), which includes the following among the grounds for revocation, suspension, or cancellation of a previously granted peace officer certified status:

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.

Malfeasance is “[a] wrongful or unlawful act; esp. wrongdoing or misconduct by a public official.” Misfeasance is “[a] lawful act performed in a wrongful manner.” Nonfeasance is “[t]he failure to act when a duty to act existed.”

AzPOST bears the burden of proof to establish cause to penalize a peace officer’s certification by a preponderance of the evidence. Respondent bears the burden of proof to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Respondent acknowledged that between May 2013 and March 2014, he met with NM, whom he wished to cultivate as a confidential informant, off-duty and in his personal vehicle. Therefore, AzPOST established the first factual allegation in the Notice of Hearing.

As Lt. Regan testified, Respondent’s actions violated SPD policy meant to protect officers. Respondent’s meeting NM in his personal vehicle constituted misfeasance and put Respondent, SPD, and the law enforcement profession in a poor light, especially in light of the gossip in the community about Respondent’s sexual relationship with NM. Therefore, AzPOST established grounds to take action against Respondent’s peace officer certification under R13-4-109(A)(8) and (9).

SPD did not establish in its IA Investigation and AzPOST did not allege in the Notice of Hearing that Respondent had a sexual relationship with NM or MG. Respondent’s poor judgment in meeting with NM after hours in his personal vehicle was not the sort of bad decision that should have ended his law enforcement career if he had owned up to the mistake, as Lt. Regan and Lt. Blumling tried to tell him in the June 9, 2015 interview.

Respondent also acknowledged that he contacted NM on May 21, 2015, after receiving a written Garrity warning that warned him not to contact potential witnesses. Respondent testified that he contacted NM to gain a personal advantage, rather than letting the criminal and IA investigations play out. Respondent’s violation of the Garrity warning constituted malfeasance. Because Respondent’s violation of the Garrity warning could have jeopardized both the criminal and the IA investigations, it is conduct that that tends to jeopardize public trust in the law enforcement profession. Therefore, AzPOST established additional grounds to take action against Respondent’s peace officer certification under R13-4-109(A)(8) and (9).

On June 9, 2015, Respondent told investigators that he had met once with NM in her personal vehicle while he was off-duty, but insisted that their contact was strictly professional and that no sexual conduct occurred. Respondent later acknowledged that NM had acted flirty, had gotten into his personal space, and had shown him a photograph of female breasts, which could have been hers. Respondent’s initial account was not completely true or wholly accurate. Respondent’s testimony that he did not remember the details of NM’s sexual conduct toward him while she was in his personal vehicle until he took the polygraph was not credible.

Because peace officers’ duties include testifying in court about their investigations, they must tell the truth, even about uncomfortable topics, whenever they are in their professional role. The public expects peace officers to tell the truth, even when it does not serve the officer’s personal interests. Therefore, AzPOST established additional grounds to take action against Respondent’s peace officer certification under R13-4-109(A)(8) and (9).

Respondent also acknowledged that in the pre-polygraph interview on June 10, 2015, he did not tell the polygrapher about NM’s sexual conduct while she was in his personal vehicle and, instead, insisted that the contact had been purely professional. After the polygraph was administered, he admitted that NM’s conduct toward him had been sexual. For the reasons noted above, AzPOST established additional grounds to take action against Respondent’s peace officer certification under R13-4-109(A)(8) and (9).

Done this day, April 25, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jack G. Lane, Executive Director

Peace Officers Standards and Training