ALJDEC decisions subject to certification as final

18A-135-POST · Peace Officers Standards and Training · 2021-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Herlen Yeomans,

Respondent.

No. 18A-135-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 05-06, 2021.

APPEARANCES: Assistant Attorney General Gino Duran, Esq. appeared on behalf of the Arizona Peace Officer Standards and Training (“POST”) with Richard Todd Wright, Scott Ketchum, Steve Jacobs, and Tevia Lindow as witnesses. Edmundo Robaina, Esq. appeared on behalf of Herlen Yeomans (“Respondent”) with Don Damron, Leo Gardia, William Ponce, and Respondent as witnesses. Catherine Hawse, Arlene Heckel, Michelle Blanco, Tamara Scliefer, Lori Wait, Dan Ciernia, Michael Giammarino, Sandra Sierra, Michale Orose, Ben Henry, Michael Puenté, Matt Giordano, Michael Deltenere, Rick VanKeuren, and Kevin Asbell, Esq. observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 41-1092.01 and 41-1822(B)(1) and the Arizona Administrative Code (“Ariz. Admin. Code”) R13-4-118, and issues such findings to the POST Board (“the Board”).

FINDINGS OF FACT

Background and Procedure

On December 19, 2018, the Board issued Complaint No. 18A-135-POST which alleged Respondent violated Ariz. Admin. Code R13-4-109(A)(8) and (A)(12) based on the following [amended] factual allegations:

On October 12, 2018, [Respondent], under false pretenses, used his position as a peace officer to obtain two passes for a boat racing event.

On October 18, 2018, [Respondent] provided false information to investigators by denying he solicited two passes for a drag boat racing event.

On July 20, 2021, pursuant to a timely appeal and request for administrative hearing received by Respondent, the Board issued a Notice of Hearing and referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

From October 05, 2021, through October 06, 2018, an administrative hearing was held on the issue of whether cause existed for POST to discipline Respondent’s peace officer certification. Exhibits 1-13 and a Motion to Amend the Notice of Hearing were admitted by POST. POST presented the testimonies of witnesses Todd Wright, Chief Ketchum, Steve Jacobs – Investigator, and Tevia Lindow – Staff Accountant. Exhibits A-C were admitted by Respondent. Respondent testified on his own behalf and called Don Damron, Leo Gardia, and William Ponce as witnesses.

Hearing Evidence

At 20 years of age, Respondent left Mexico for collegiate studies in the United States. Although he was enrolled in English as a Second Language studies, Respondent withdrew from his courses and entered into the workforce. It was there he met a law enforcement officer who inspired him to join the force. In March 0f 2005 Respondent graduated from the Law Enforcement Training Academy. Shortly thereafter, Respondent became a citizen and joined the Cocopah Police Department (“CPD”) in March of 2005. Eleven months later Respondent left CPD and joined the Quartzite Police Department (“QPD”). Approximately five and a half years later Respondent left QPD and joined the Colorado Indian Tribes (“CRIT”) Police Department (“PD”). Since that time, Respondent has served as a CRIT Patrol Officer working on the graveyard shift.

Respondent owns a mobile home in Parker, Arizona that is located next to the Bluewater Resort and Casino (“Bluewater”). In 2018 Bluewater hosted its annual Drag Boat race between the 13th and 14th. CRIT assigned Respondent and his partner, Luis Sandoval (“Ofc. Sandoval”), to work a security detail at the race, which anticipated attracting thousands of spectators.

On October 12, 2018, Respondent returned home from work after the end of his shift, at about 7:15 a.m. Upon arrival he was greeted by his elderly next door neighbor, Don Damron, who inquired with Respondent abut passes for pit access for their handicapped neighbor. Respondent agreed to inquire for Mr. Damron.

After he changed out of his uniform and into civilian clothing, Respondent was challenged to a race to the Administrative Booth by his other next door neighbor, Leo Gardia, once he got into his personal golf cart. Respondent and Mr. Gardia drove their golf carts to the race’s Administrative Booth, where they were directed to the Security Trailer to see the race’s head of security, Todd Wright.

After receiving the information he needed for Mr. Damron, Respondent advised Mr. Wright that he was working he event the following day asked if he needed a pass to use his personal golf cart. Mr. Wright advised that a pass would not be necessary if Respondent was in uniform. After a brief conversation about their respective law enforcement careers, Mr. Wright asked Mr. Gardia if he was also “working the event” with Respondent, to which Mr. Gardia replied, “Yes I am.” Mr. Wright provided Respondent with two passes; one for Respondent and one for his partner, each with “CRIT” written across them.

Once Mr. Wright left to attend a matter with Tevia Lindow, Respondent admonished Mr. Gardia for insinuating that he was a law enforcement officer, and warned him that he could be disciplined as a result of Mr. Gardia’s behavior.

Moments later, Respondent saw his supervisor, Sergeant Greg Sciotto (“Sgt. Sciotto”), approach the Security Trailer. Respondent asked Sgt. Sciotto if he could use his personal golf cart for his boat drag race shift(s). Sgt. Sciotto instructed Respondent to use CRIT issued vehicles for the event.

When Mr. Wright returned to the Security Trailer minutes later, Respondent alerted him that Mr. Gardia was not a law enforcement officer, and clarified that he would be working the event with Ofc. Sandoval. Mr. Wright thanked Respondent for the clarification, and Respondent took leave back to his residence.

Once Respondent returned to the mobile home park, he provided Mr. Damron with the information he was given by Mr. Wright, and offered to escort him to the Administrative Booth. Mr. Damron, who had obtained permission from a friend competing in the drag boat race to register his golf cart as a “pit cart” under his racing number, paid $50.00 so that he could transport his handicapped friend and neighbor throughout the event. The pass itself was not designated as “handicapped.”

Respondent returned home around 11:00 a.m. and went to bed.

Later that evening, Mr. Wright met with Sgt. Brady and informed him that he had issued two golf cart passes to Respondent earlier that day. Sgt. Brady advised Mr. Wright that Respondent and Ofc. Sandoval were using CRIT vehicles for the event, and that there was no need for them to have passes. Incensed, Mr. Wright told Sgt. Brady that he felt as though Respondent had “swindled” him, said he wanted both passes returned, and asked for Respondent to be removed from the event’s security detail. Mr. Wright subsequently filed a formal complaint against Respondent with CRIT PD.

At around 6:00 p.m. he was awoke to loud knocking on his door. Respondent opened the door to find Sergeant Robert Brady (“Sgt. Brady”), who demanded Respondent return the passes to Mr. Wright because he obtained them under false pretenses. Respondent demurred, and stated he had obtained the passes so that he could use one for his personal golf cart and one for a CRIT vehicle. Mr. Damron, who heard the commotion two units down, approached and inquired if everything was okay. Mr. Damron was abruptly rebuffed by Sgt. Brady, who turned and left in frustration.

Later that evening, Respondent was informed via text by Sergeant Sonny Fischer (“Sgt. Fischer”) that he was taken off of the detail for the Bluewater event.

Shortly afterward Sgt. Sciotto came to Respondent’s home, where he permitted Respondent to explain his perspective regarding the circumstances of how he came to be in possession of the drag boat race passes. Sgt. Sciotto advised Respondent to memorialize his recitation in writing, and secured the passes from Respondent which were ultimately returned to Mr. Wright.

On the morning of October 13, 2018, Mr. Damron attempted to speak with Mr. Wright at the Security Trailer, but was “blown off.”

On October 15, 2018, Respondent was suspended by Sgt. Fischer.

On October 18, 2018, Chief Oscar Welch, commander of the tribal police force, assigned Scott Ketchum (“Investigator Ketchum”) to investigate the underling events of October 12-13, 2018. As part of his investigation, Investigator Ketchum interviewed multiple parties, including Respondent. Investigator Ketchum determined, in part, that statements Respondent made in his written narration and interview were not consistent with one another, nor did they comport with other witness statements.

On October 22, 2018, Respondent was terminated from employment for “obtaining gratuities” in violation of CRIT policies.

On July 02, 2020, Sherry Mosely, CRIT Human Resources Director, issued a Letter of Reinstatement regarding Complaint No. 18A-135-POST wherein she declared that Respondent had a “cleared employment record” and had received “full exoneration due to the investigations and the allegations made October 2018.” Ms. Mosely also noted that Respondent had returned to duty on June 24, 2019, with retroactive pay.

On August 14, 2019, Respondent submitted for a pre-employment polygraph examination administered on behalf of CRIT. No significant reactions or deceit were noted for any questions posed to Respondent.

Although Respondent’s adjudication was pending, he was taken off evidence assignment and put back on patrol in November 2019. On February 10, 2020, because Respondent’s adjudication was still pending, he was taken off patrol and placed back on evidence assignment.

Additional Evidence

CRIT PD Code of Ethics provides “All members of the [CRIT PD], whether sworn, non-sworn, or in a voluntary position such as the reserves program, are responsible for holding themselves to a high standard in their private and professional lives. This is a guideline to which all members shall adhere to.”

CRIT PD Code of Conduct provides the following:

All sworn members of the CRIT [PD] shall abide by the tenets of the CRIT Law Enforcement Code of Ethics:

As a law enforcement officer, my duty is to serve my community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence and disorder, and to respect the Constitution [sic] rights of all men to liberty, equality and justice.

I will keep my private life unsullied as an example to all: maintain courageous calm in the face of dangers [sic] scorn or ridicule; develop self-restraint; and be constantly mindful of the welfare of others.

Honest is [sic] thought and deed in both my personal and official life. I will be exemplary in obeying the law of the land and the regulations of my department.

Whatever I see or hear of a confidential nature or that is confided in me in my official capacity will be kept ever secret unless revelation in [sic] necessary in the performance of my duty.

I will never act officiously or permit personal feelings, prejudice, animosities or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence, and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith and I accept it as a public trust to be help so long as I am true to the ethic of police services as a CRIT Police Officer.

I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession ... law enforcement.

On April 12, 2012, Respondent affirmed his compliance and adherence to the aforementioned policies.

On August 05, 2015, and February 18, 2016, Respondent reaffirmed his compliance and adherence to the aforementioned policies.

Closing Arguments

POST

In closing, POST argued that Respondent knowingly violated his oath of office by abetting Mr. Garcia to impersonate a law enforcement officer and by using his badge to obtain two boat racing passes. Respondent failed to immediately correct Mr. Garcia’s affirmative response to Mr. Wright, and solicited boat racing passes he knew or should have known he did not need to work the event. POST also argued that Respondent obtained the boat race passes after his supervisor, Sgt. Sciotto, had already told him to use official CRIT vehicles for his assignment, and that after obtaining the passes Respondent further failed to notify anyone in his chain-of-command or obtain permission to use the passes. POST opined that neither Mr. Wrigh, nor Ms. Lindow had a reason to be dishonest, and that their testimonies were more credible than Respondent’s. Ultimately, POST further argued that Ms. Mosely “exoneration” of Respondent, did not bar or have any impact on POST’s jurisdictional authority to discipline Respondent’s peace officer certification. To that end, POST contended that sufficient evidence in the record existed to conclude Respondent violated Ariz. Admin. Code R13-4-109(A)(8) and (A)(12).

Respondent

In closing, Respondent essentially argued that he was being subject to unnecessary discipline regarding an even that occurred three years prior; which resulted in a full exoneration, cleared employment record, and back-pay. Respondent opined that a series of miscommunications and interrupted opportunities to express his intent and explain his actions, resulted in the perception that he had acted inappropriate and/or in violation of department policy. Respondent argued he had not solicited boat race passes from that Mr. Wright, but that Mr. Wright had given them to him and he had not had an opportunity to ask a supervisor if he could utilize them before he was approached by Sgt. Brady. Respondent also argued that he had been so shocked by Mr. Gardia’s statement to Mr. Wright that he was unable to correct him in that moment, but did so the next time he saw Mr. Wright. To that end, Respondent noted that as a part of his reinstatement, he was subject to a polygraph examination that did not indicate any deception regarding the events of October 12-13, 2018. Respondent further opined that there was insufficient evidence in the record to conclude he violated Ariz. Admin. Code R13-4-109(A)(8) or (A)(12).

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction and was properly brought before OAH.

POST bears the burden of proof to establish cause to discipline Respondent’s peace officer certification by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses 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.”

Pursuant to Ariz. Admin. Code 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. POST may also discipline an officer’s certification under Ariz. Admin. Code R13-4-109(A)(8) or (12) if it determines that he has committed acts that constitute any of the following:

Committing malfeasance, misfeasance, or nonfeasance in office;

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 “[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.” The Arizona Supreme Court in Holmes v. Osborn, 57 Ariz. 522, 540, 115 P.2d 775, 783 (1941) held that “[m]alfeasance is doing that which officer has no authority to do, and is positively wrong or unlawful. Misfeasance by an officer is doing in a wrongful manner that which the law authorizes or requires him to do. Nonfeasance by an officer is the substantial failure to perform duty.”

Ariz. Admin. Code R13-4-202(C) outlines POST’s Code of Ethics, which provide in pertinent part that an officer “[w]hether on or off duty, in uniform or not, shall conduct [himself] in a manner that will not bring discredit or embarrassment to [his] agency or the state of Arizona.”

Here, the material facts are clear and will be identified in a bifurcated manner.

Allegation #1

On October 12, 2018, [Respondent], under false pretenses, used his position as a peace officer to obtain two passes for a boat racing event, in violation of Ariz. Admin. Code R13-4-109(A)(8) and/or (A)(12).

The preponderance of the evidence establishes that this allegation is true.

Mr. Damron’s request for assistance the morning of October 12, 2018, to secure a handicap pass is a red herring and unrelated to the underlying offense(s). So too is the tenuously related polygraph examination; which is unreliable because the questions that were posed to Respondent did not specifically address the context in which he obtained the boat race passes from Mr. Wright or how he intended to use them.

The record is also clear that Mr. Wright did not ask Respondent to return the passes once he was informed that Mr. Gardia was not a law enforcement officer, and Respondent maintained possession and control over the passes and never gave a pass to Mr. Gardia or Ofc. Sandoval.

However, Mr. Wright explicitly advised Respondent that he did not need a pass if he was going to be in uniform while working the underlying boat race event, which Respondent confirmed he would be. Nevertheless Respondent took the passes from Mr. Wright. When he asked Sgt. Sciotto shortly thereafter if he could use his personal golf cart for his shift, Respondent was unambiguously instructed to use an official CRIT vehicle. It was at that pivotal moment that Respondent had an opportunity to notify Sgt. Sciotto of his possession of the passes and ask for express consent to use them, but he did not. Once he returned home, arguably affording him additional time to recognize his error, Respondent still failed to notify a supervisor or obtain permission to use the boat race passes for his detail the next day. Because Respondent acted without authority to do something he knew or should have known was wrong, is conduct that amounts to malfeasance.

Therefore, POST has established cause to discipline Respondent’s peace officer certification under Ariz. Admin. Code R13-4-109(A)(8) and/or (A)(12).

[Amended] Allegation #2

On October 18, 2018, [Respondent] provided false information to investigators by denying he solicited two passes for a drag boat racing event, in violation of Ariz. Admin. Code R13-4-109(A)(8) and/or (A)(12).

The preponderance of the evidence establishes that this allegation is true.

Solicitation is generally defined as the act of asking for or trying to obtain something from someone else, and is not inherently unlawful conduct. Respondent was forthright when he told investigators that he asked how a handicapped pass could be obtained for Mr. Damron, and that he was given two passes by Mr. Wright for his use after he asked if they were required. Respondent’s inquiries are not to be conflated. However, Respondent’s acceptance of the passes, particularly in light of his instruction by Sgt. Sciotto shortly thereafter, constitutes his acceptance of a gratuity in violation of CRIT policies and POST regulations. When asked by investigators, Respondent was not genuinely honest about his intent or his behavior. Although Respondent did not solicit boat race passes from Mr. Wright, he knew he should not have accepted them. Respondent’s conduct would not be so egregious had he returned the passes on his own accord, when he spoke with Mr. Wright to clarify Mr. Gardia’s earlier statement. While the record is clear that Respondent never gave out either of the passes, or used one for himself, that does not make Respondent’s act of accepting a gratuity any less appropriate. Such conduct diminishes the public trust or brings embarrassment to a law enforcement agency.

Therefore, POST has established cause to discipline Respondent’s peace officer certification under Ariz. Admin. Code R13-4-109(A)(8) and/or (A)(12).

OPINION

After careful consideration of the evidence presented at hearing and relevant Arizona law, as well as the arguments of both parties, this tribunal finds that the Peace Officer Standards and Training Board has shown by a preponderance of the evidence that grounds exist to take disciplinary action against Herlen Yeomans’ peace officer certification under Ariz. Admin. Code R13-4-109(A)(8) and /or (A)(12).

Because the type and number of established violations in the case at bar is minimal, discipline beyond an official written reprimand is not suggested in this matter.

Done this day, October 29, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director

Peace Officers Standards and Training