ALJDEC decisions subject to certification as final

18A-101-POST · Peace Officers Standards and Training · 2020-07-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Keanu Curley,

Respondent

No. 18A-101-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 25, 2020

APPEARANCES: Respondent Keanu Curley appeared on his own behalf. The Arizona Peace Officers Standards and Training Board was represented by Assistant Attorney General Mark Brachtal.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about June 22, 2012, Keanu Curley (Respondent) submitted a personal history statement to the Navajo Division of Public Safety in which he indicated he had used, tried, or experimented with marijuana only one time in May 2009, and never after he turned 21. On the continuation sheet, Respondent explained his response as follows:

I experienced marijuana for the first time in high school. I was at a friend’s house when I was presented the rolled substance. I acted off of curiosity and decided to inhale once. I have only smoked marijuana once and the only time was my first experience during high school.

The June 22, 2012 personal history statement included a Certification that provided as follows:

I hereby certify under penalty of law that the entries on this statement and the attached Continuation Sheet are true, complete and correct to the best of by knowledge and belief. These entries are made in good faith. I understand that a false or misleading statement on this form constitutes a violation of the law and is cause to deny, suspend or revoke peace officer certification.

Respondent signed the personal history statement directly under the certification language.

On or about August 20, 2012, Respondent underwent a personal interview with the Navajo Division of Public Safety during which he stated he had last used marijuana when he was 18 years old.

On or about September 12, 2012, Respondent was appointed as a peace officer by the Navajo Division of Public Safety.

On or about October 5, 2012, Respondent was terminated as a peace officer by the Navajo Division of Public Safety.

On or about November 17, 2014, Respondent submitted a new personal history statement to the Navajo Division of Public Safety in which he indicated he had used, tried, or experimented with marijuana only one time in January 2009, and never after he turned 21. On the continuation sheet, Respondent explained his response as follows:

The first time using marijuana was new years in the year of 2009. The drug was inhaled using rolling paper from a friend. The motivation involved was the instinct of just trying it. The joint smoked was used just that one for the night. After the use I stopped and did not try the drug again.

The marijuana smoked that night was also smoked through a can. This night was the only night that I first smoked marijuana and the last time I smoked marijuana.

The November 17, 2014 personal history statement included an advisement that provided as follows:

A FALSE OR MISLEADING STATEMENT ON THIS FORM IS A CRIME UNDER A.R.S. §§ 33-2704, 13-2907.01 AND 39-161 AND IS CAUSE TO DENY OR REVOKE PEACE OFFICER CERTIFICATION.

Respondent signed the personal history statement on the same page under this advisement.

On or about January 20, 2015, Respondent underwent a personal interview with the Navajo Division of Public Safety during which he stated that he had used marijuana just one time while he was in high school in 2009 or 2010.

On or about June 15, 2015, Respondent was appointed as a peace officer by the Navajo Division of Public Safety.

On or about December 3, 2015, Respondent graduated from NARTA academy.

On or about December 30, 2016, Respondent submitted a personal history statement to the Fort McDowell Tribal Police Department in which he indicated he had used, tried, or experimented with marijuana a total of two times, with the first use in 2009 and the last use in 2013, including one use after he turned 21. On the continuation sheet, Respondent explained his response as follows:

First time using marijuana was while attending high school. A friend brought over the drug rolled as a joint. Friend then handed me the joint and said to just try it, and I inhaled once to see how it would feel.

Another time being involved with marijuana was while attending college in Durango, CO. A night of drinking with friends at the bars. Consumed a large amount of alcohol and vision became hazy. Remember friend having marijuana, and handed me a bowl. Inhaled the drug once that night.

The December 30, 2016 personal history statement included a Certification that provided as follows:

Respondent signed the personal history statement directly under the certification language.

On or about March 18, 2018, Respondent submitted a personal history statement to the Fort McDowell Police Department in which he indicated he had used, tried, or experimented with marijuana a total of three times, with the first use in 2009 and the last use in 2013, including two uses after he turned 21. On the continuation sheet, Respondent explained his response as follows:

First time inhaling marijuana was in high school. A friend brought it over after having a few alcoholic beverages. Second time inhaling marijuana was also at a friend’s house. Also after a few drinks. Marijuana was smoked twice.

The March 18, 2018 personal history statement included a Certification that provided as follows:

Respondent signed the personal history statement directly under the certification language.

On or about June 21, 2018, during a polygraph pre-test questionnaire, Respondent indicated he had only used marijuana two times. In the polygraph report, the polygrapher reported that Respondent stated that had only used marijuana on two occasions, once in January 2009 and once in January 2013. Although he had reported using marijuana on three occasions on his personal history statement, Respondent could only remember two instances of use.

On or about July 2, 2018, Respondent separated from the Navajo Division of Public Safety.

On or about July 9, 2018, Respondent was appointed by the Fort McDowell Tribal Police Department as a peace officer.

On or about July 18, 2018, William Caldwell, Compliance Specialist with POST, conducted a new hire audit for Respondent with respect to his appointment with Fort McDowell Tribal Police Department. Mr. Caldwell informed Commander Jesse Crabtree that during the course of the audit, he had discovered the different answers Respondent had given on different applications as to the number of times he had used marijuana.

On or about July 24, 2018, Commander Crabtree talked to Respondent about the discrepancies in his personal history statements. Commander Crabtree informed Mr. Caldwell of that conversation via email and described it as follows:

When asked about the marijuana use discrepancies between Navajo DPS (2009) and Ft. McDowell Police Department (2-3 times in 2009 and 2013). [Respondent] told me that he had two AzPOST applications with Navajo DPS. That he applied with Navajo DPS two times and filled out two AzPOST applications. [Respondent] said on his first application that he filled out and submitted to Navajo DPS, he was told that he was not eligible due to his recent marijuana use. He was told to come back a year later. When he came back about six later, he filled out another AzPOST application and that had the correct information on it. [Respondent] could not recall if this application with the November 2014 date was the first or second application. He did say that the Recruitment drives were held in Chinle, Arizona. The first on was coordinated by a Sergeant Redhouse and the second one was by a Sergeant Marvin Curley. I explained to [Respondent] that according to the FMPD AzPOST that he filled out and was verified with a polygraph examination that he disclosed the 2009 and 2013 dates, and if he became certified during the summer of 2015 with NPD, the 2013 to 2015 dates are within the 3 year mark for prohibited use of marijuana. Which would have made him ineligible for AzPOST certification. [Respondent] seemed to be having a hard time remembering dates of applications with NPD and marijuana use.

. . . .

[Respondent] was told that in light of these findings, we were re-evaluating our options on his employment with FMPD. On July 25, 2018, [Respondent] submitted his letter of resignation effective at 1300 hours on the same date.

On or about September 19, 2018, the Board issued a Complaint to Respondent advising him that POST had voted to initiate proceedings to take disciplinary action against his Arizona peace officer certification. Respondent filed a timely request for hearing.

On March 16, 2020, POST issued a Notice of Hearing. The Notice of Hearing charged Respondent with violations A.A.C. R13-4-109(A)(2), (8), and (9).

On June 25, 2020, a hearing was held at the Office of Administrative Hearings on the issue of whether cause existed for POST to discipline Respondent’s peace officer certification.

At hearing, Respondent acknowledged that the incorrect or incomplete answers were mistakes on his part. Respondent asserted that his last marijuana use was in 2012, not in 2013, and that he had just forgotten the exact year. Respondent denied using marijuana in 2013 or in 2014, and believed it may have been in November 2012. Respondent admitted that in 2012, he was informed of POST’s policy as to marijuana use as it relates to the ability of an individual to be certified as a peace officer in the state of Arizona.

Mr. Caldwell testified that POST rules provide an individual may not be certified as a peace officer in the state of Arizona if they have used marijuana more than 20 times in their lifetime, more than five times after they turn 21, or have used at all in the previous three years.

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 “deny certified status or suspend or revoke the certified status of a peace officer for any of the following violations:

2. Willfully providing false information in connection with obtaining or reactivating certified status;

. . . .

8. Committing malfeasance, misfeasance, or nonfeasance in office;

. . . . or

12. Engaging in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

Malfeasance is defined as “[a] wrongful or illegal act.” Misfeasance is defined as “[a] lawful act performed in a wrongful manner.” Nonfeasance is defined as “[t]he failure to act when a duty to act existed.”

The uncontroverted evidence established that Respondent provided different information regarding his marijuana use on different personal history statements submitted to different agencies. Respondent’s assertion that he forgot his 2012 or 2013 marijuana use on his November 17, 2014 personal history statement but remembered it on his December 30, 2016 personal history statement and his March 18, 2018 personal history statement was not credible. Respondent acknowledged he knew of the POST policy on marijuana use in 2012. Therefore, he knew or should have known that had he indicated marijuana use in 2012 or 2013 on the November 17, 2014 personal history statement that he would not have been eligible for certification.

Therefore, the preponderance of the evidence established that Respondent willfully provided false information in connection with obtaining certified status relating to his answers about marijuana use on his personal history statement. This constitutes cause under A.A.C. R13-4-109(A)(2) and (8) for POST to discipline his peace officer certification.

The public expects police officers to be honest. Taken together, Respondent’s failure to fully disclose the details of his marijuana use establishes that Respondent engaged in “conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.” This constitutes cause under A.A.C. R13-4-109(A)(12) for POST to discipline Respondent’s certification.

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-137160-45720000Done this day, July 15, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director

Peace Officers Standards and Training

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-137160-45720000