ALJDEC decisions subject to certification as final

18A-152-POST · Peace Officers Standards and Training · 2019-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2019, and April 22, 2019 APPEARANCES: Applicant Levi W. Leeder was represented by Steven J. Serbalik. The Arizona Peace Officer Standards and Training Board was represented by Seth Hargraves ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On or about May 4, 2018, Levi W. Leeder (Applicant) submitted an online Employment Application to the City of Glendale in which he answered, “No” to the question, “Have you ever been terminated, discharged, or forced to resign from any position?” 2. The application contained the following certification: “By clicking on the ‘Accept’ button, I certify that all statements made on this application are true and complete to the best of my knowledge.” 3. On or about May 16, 2018, Applicant submitted an Arizona Peace Officer Standards and Training Board Personal History and Application for Certification to the Maricopa County Sheriff’s Office in which he listed the following relevant employment history and reason for leaving: 6/15/16 – 4/1/18 Brandon Cox – Farmer’s Promoted to Sales 6/1/14 – 6/15/16 Bethel Baptist Church Moved 4/1/14 – 6/1/14 Bible Baptist Church Church closed

4. The application contained the following certification: “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 my 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.” 5. On or about May 16, 2018, Applicant submitted a Maricopa County Sheriff’s Office Statement of Personal History in which he answered, “No” to the question, “Have you been terminated, or left employment in lieu of termination within the past 3 years?” 6. The personal history instructions provided “Answer all questions completely and accurately” and “REMEMBER THAT ANY OMISSION, DECEPTION, OR FAILURE TO FOLLOW THE INSTRUCTIONS GIVEN IN FILLING OUT YOUR PACKET COULD DELAY OR DISQUALIFY YOU FROM FURTHER CONSIDERATION.” 7. On or about May 16, 2018, Applicant submitted a Maricopa County Sheriff’s Office Personal History Supplement in which he listed the following relevant employment history and reason for leaving: 6/2016 – 4/2018 Brandon Cox – Farmers Ins. Promoted to Sales 6/2014 – 6/2016 Bethel Baptist Church Relocated 4/2016 – 6/2016 Bible Baptist Church Church Closed

8. The personal history supplement instructions provided “Answer all questions completely and accurately” and “REMEMBER THAT ANY OMISSION, DECEPTION, OR FAILURE TO FOLLOW THE INSTRUCTIONS GIVEN IN FILLING OUT YOUR PACKET COULD DELAY OR DISQUALIFY YOU FROM FURTHER CONSIDERATION.” 9. On or about May 16, 2018, Applicant submitted an Arizona Department of Public Safety Sworn Applicant Personal History Questionnaire in which he answered “No” to the questions, “Have you ever been dismissed, asked to resign or laid off from any employment?” and “Have you ever left a place of employment because you thought you were going to be dismissed or asked to resign?” 10. The questionnaire contained the following certification: “I certify under penalty of law that the answers on this application are true and complete to the best of my knowledge. . . . I further understand if an investigation discloses untruthful or misleading answers, any lies, deception, misrepresentation or omission, no matter how slight, may result in my immediate disqualification from consideration.” 11. On or about May 18, 2018, Applicant submitted an Arizona Peace Officer Standards and Training Board Personal History and Application for Certification to the Arizona Department of Public Safety in which he listed the following relevant employment history and reason for leaving: 6/15/16 – 4/1/18 Brandon Cox – Farmer’s Promoted to Sales 6/1/14 – 6/15/16 Bethel Baptist Church Moved 4/1/14 – 6/1/14 Bible Baptist Church Church closed

12. The application contained the following certification: “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 my 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.” 13. On or about June 5, 2018, during an interview with Maricopa County Sheriff’s Office background investigator Applicant answered “No” to the questions “Have you ever been terminated or asked to resign from any employment?” and “Have you ever resigned from a job to avoid discipline or termination?” 14. At the conclusion of conclusion of the interview, Applicant signed a form that included the following advisement: “Do not hesitate to notify your background investigator if there is any information that has been left out of this interview. We understand that people do occasionally remember things after they have left our office. I tis important that you let us know as soon as that information comes up. Don’t let yourself get disqualified due to holding back information that you remembered after leaving your interview today.” 15. On or about June 12, 2018, Applicant was unable “to clear” a polygraph examination conducted during the course of his background investigation with Maricopa County Sheriff’s Office. During a post- polygraph interview, Applicant was asked additional questions regarding his employment history. The polygraph examiner documented Applicant’s disclosures during that interview as follows: The applicant admitted to being fired from Brandon Cox – Farmers Insurance in April of 2018. The applicant stated when his supervisor’s wife took over HR, he felt like they were trying to push him out. The applicant felt like she incorporated a “three strike” policy to get him out. The applicant stated once she took over, he felt her “looming” over him and “it all fell apart.” The applicant stated they fired him because he was “unable to perform tasks at HR’s level.” The applicant stated policies were “falling through the cracks” and he was not performing at the highest level he could. The applicant stated because of all of this occurring, it gave them a reason to fire him. The applicant acknowledged he intentionally provided false information when documenting this on his personal history supplement that he was promoted to sales at Denny Smith – Farmers Insurance. The applicant acknowledged lying about the reason for leaving Brandon Cox – Farmers Insurance because of perception. The applicant stated he never received any type of discipline from this employer that has not already been documented in his background interview. The applicant admitted to being asked to resign from Bible Baptist Church in June of 2016. The applicant acknowledged he intentionally provided false information when documenting that the church closed on his personal history supplement. The applicant stated he was let go and told by the pastor that things were not working out. The applicant acknowledged lying about the reason for leaving Bible Baptist Church. The applicant stated he never received any type of discipline from this employer.

16. After the polygraph, Applicant was informed he was not selected for hire, but that he could reapply after December 2018. 17. On or about July 7, 2018, Applicant submitted a Glendale Police Department Applicant Questionnaire to the Glendale Police Department in which he answered “No” to the question “Have you ever resigned from a job to avoid being fired or terminated?” and initially answered “No” and subsequently answered “Yes” to the question “Have you ever been fired or terminated from any employment?” 18. The questionnaire contained the following affirmation: “Under penalty of perjury . . . I hereby state and declare that the above statements are true. I make this declaration fully aware that the Glendale Police Department may choose to verify the truth of these statements through either a polygraph examination, and/or a background investigation. Further, if it is proven that I have made a false statement; I understand this would be grounds for my disqualification as a candidate, or termination of my employment.” 19. On or about July 13, 2018, Applicant submitted an Arizona Peace Officer Standards and Training Board Personal History and Application for Certification to the Phoenix Police Department in which he listed the following relevant employment history and reason for leaving: 6/2016 – 4/2018 Farmers Brandon Cox Was told they were going a different direction 9/2014 – 6/2016 Bethel Baptist Church Moved to help father in law’s church 5/2014 – 7/2014 Bible Baptist Church Was told it wasn’t going to work out

20. The application contained the following certification: “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 my 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.” 21. On or about July 23, 2018, Applicant submitted an Arizona Peace Officer Standards and Training Board Personal History and Application for Certification to the Phoenix Police Department in which he listed the following relevant employment history and reason for leaving: 6/16 – 4/18 Farmers Ins. – Brandon Cox Was told they were going a different direction 9/14 – 6/16 Bethel Baptist Church Decided to leave for religious differences 4/14 – 6/14 Bible Baptist Church Was told it was not going to work out

22. The application contained the following certification: “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 my 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.” 23. On or about August 9, 2018, during an interview with a Phoenix Police Department background investigator regarding his employment history, Applicant answered “No” to the questions “Have you received any discipline, counseling, reduction in pay, suspension or been terminated from any employers past or present?” and “Have you ever left a place of employment because of circumstances that led you to believe you could be dismissed, terminated, demoted, suspended, or asked to resign?” 24. On September 24, 2018, Applicant was appointed by Phoenix Police Department and October 22, 2018, Applicant began attending the Phoenix Regional Police Academy. 25. After his appointment, Applicant’s information was forwarded to POST for a new hire audit. Billy Caldwell conducted an initial review of Applicant’s file. During the review, he discovered the response from MCSO and the negative reference letter from Reverend Steve Carrier of Bethel Baptist Church and brought them to the attention of Steve Jacobs. 26. On or about December 4, 2018, Detective Nethaniel Bull drafted a memorandum to Applicant’s file in which he documented his memory of his interview with Applicant on August 9, 2018, as it related to Applicant’s employment history. In the memorandum, Detective Bull indicated that in response to the question, “Have you received any discipline, counseling, reduction in pay, suspension or been terminated from any employers past or present (i.e. tardiness, poor work performance, policy or procedure violations, etc.)?” Applicant answered “NO”, but then brought up an incident in which he was terminated because a pastor there became a realtor and sold the church he was working at. Detective Bull reported that when asked if he would have still been working there if the church was not sold, Applicant believed he would have. 27. On or about December 6, 2018, Mr. Jacobs and Lori Wait, Compliance Specialist, interviewed Applicant. 28. During the interview, Applicant described his separation from Bible Baptist Church as follows: Um, we – the church atmosphere is a little different. Uh, we got there. We were working with him. And then, uh – uh, people started gravitating towards us a little bit. And it was kind of taking away from the authority from him. And so I told – I went to him and said, “Listen. I don’t want this. Um, I don’t want us to cause a split. Uh, but I think it would be wise for us to stay here ‘till December until we can figure something out and – and part ways.” And, uh, he just made the decision to just part ways. And so we left there and went to Odenton. . . . . Bible Baptist Church did close. It has since closed. But the reason I left was because he wanted us to leave. He wanted us to just part ways.

29. During the interview, Applicant described his time separation from Bethel Baptist Church as follows: Uh, we just, uh, he wanted – he wanted to, uh, he wanted to retire but he didn’t want to retire. And he – he – he just said, uh, you know, we just were working and everything was fine and everything was good. And I – and then I – I said, uh, “You know, it’d probably be good for me to come and help my father-in-law here.” Uh, with his church. And – ‘cause he’s a pastor here in – in Glendale.

30. During the interview, Applicant described his time separation from Brandon Cox as follows: Well, I left (Brandon Cox) Agency, I didn’t leave there. They said they were going a different direction and wanted me to go to (Denny Smith)’s Agency. So I left this one to go to that one.

31. During the course of the interview, Applicant offered greater information regarding his separation from the three employments at issue and his thinking when he filled out each of the applications described above. Specifically, Applicant referenced the post- polygraph interview with the Maricopa County Sheriff’s Office in which he explained what occurred with Brandon Cox’s Farmers Insurance Agency and the examiner told him the events he was describing constituted a termination or resignation in lieu of termination. Therefore, Applicant admitted during that post-polygraph interview that he had provided false information in his application because he denied having been terminated or resigned in lieu of termination. 32. Applicant also denied telling Detective Bull that he would still have been employed at Bible Baptist Church had the church not closed. Applicant acknowledged that had he not left the church, he would not have been able to stay. Applicant stated that “in the church atmosphere, uh in my mind it was all about perception” and admitted that his earlier applications were misleading because he did not “want to have that negativity be looked upon.” 33. On or about January 22, 2019, POST issued a Notice of Denial to Applicant advising him that POST had voted to initiate proceedings to deny him peace officer certification. Applicant filed a timely request for hearing. 34. On February 26, 2019, POST issued a Notice of Hearing. The Notice of Hearing charged Applicant with violations A.A.C. R13-4-109(A)(2), (7), and (12). 35. On April 19, 2019, and April 22, 2019, a hearing was held at the Office of Administrative Hearings on the issue of whether cause existed for POST to deny Applicant peace officer certification. 36. Applicant testified that he was not terminated for misconduct from any of the jobs at issue and that all of his answers were partly true. As to Brandon Cox’s Farmers Insurance, Applicant stated that he did not consider it a termination or resignation in lieu of termination because they helped him secure a new job with Denny Smith’s Farmers Insurance that he started the next day. Applicant acknowledged that he was told they wanted to go in a different direction, but still did not consider it a termination. Applicant stated that after the post- polygraph interview, he better understood how it could have been seen as a termination by some law enforcement agencies, so he changed his response on some of his answers following the interview. As to Bible Baptist Church, Applicant testified that he and the pastor had agreed he would leave in December, but after a specific event, the pastor told him he needed to leave before December. As to Bethel Baptist Church, Applicant stated that he was told it was “not a good fit.” Applicant denied that he had ever been terminated in the sense of getting a pink slip and given a box to pack his belongings. Applicant denied lying to look better, but acknowledged he did not paint a clear picture of what had happened at those places. Applicant submitted an April 18, 2019 email from Michael Olsen, Trustee with Bethel Baptist Church, who stated that Applicant voluntarily resigned and was not terminated as Reverend Carrier suggested in his reference letter. 37. Detective Bull, Phoenix Police Department, testified that during his interview with Applicant, they talked about his separation from the places of employment and none of the information Applicant provided indicated a termination or resignation in lieu of termination. Detective Bull stated that he did not believe Applicant deliberately lied to him and, if he did believe that, he would not have recommended him for hire. Detective Bull testified that Phoenix Police Department was still pleased with its decision to hire Applicant. 38. Lieutenant Anthony Lopez, Phoenix Police Department, testified that he became aware of a possible issue with Applicant’s hiring during the POST audit. Lt. Lopez stated that upon investigating the issue of Applicant’s employment history answers, he felt that they had an understanding of why he left those positions. Lt. Lopez acknowledged that some of the questions could have been answered differently and offered more clarity. Lt. Lopez reviewed Applicant’s interview with Mr. Jacobs and Ms. Wait and stated that the interview did not change his opinion of Applicant’s hiring. Lt. Lopez testified that applicants often learn more about how the application process works through different agencies. Lt. Lopez also noted that different people can view a separation as a firing or a voluntary resignation based on their perceptions. In his example, if a supervisor tells an employee that “things are not working out,” some employees may quit on the spot, other employees may go on a performance plan and show sufficient improvement to maintain their position, while others may quit a week later after realizing it was not working out. In that situation, some may say they quit voluntarily while others say they were fired or resigned in lieu of termination. 39. Sergeant Brian Fernandez, Phoenix Police Department, testified that Bible Baptist Church submitted a negative reference of Applicant, but that the reference did not affect the hiring decision. Sgt. Fernandez stated that applicants often have a negative employer reference, but they review the balance of the application as a whole. Sgt. Fernandez testified that Applicant was a strong candidate for hire in part because he had a Bachelor’s Degree and was fluent in sign language, which outweighed the one negative employer reference. Sgt. Fernandez stated that in the civilian world, people often fill out applications or resumes that paint a better picture of themselves, but going through the hiring process for different law enforcement agencies is a learning experience in which applicants realize what is expected of them. Sgt. Fernandez maintained that Phoenix Police Department understood the entire story of his employment history and he did not tell Mr. Jacobs and Ms. Wait anything new. 40. Commander Darren Viner, Phoenix Police Department, testified that Applicant “brings a lot to the table” and stood by the decision to hire. Comd. Viner stated that the nuances involved in Applicant’s past employment history could not be fully explored during the interview with Mr. Jacobs and Ms. Wait because the questioning was not open-ended and “painted him into a corner” so he had to answer a certain way. 41. Mr. Jacobs testified that during his interview with Applicant, he felt that Applicant was trying to rationalize some of the answers he had given. Mr. Jacobs acknowledged that none of Applicant’s conduct disqualified him from certification. Mr. Jacobs denied having any position on whether Applicant should receive certification and stated that his job is to gather information to provide to the Board for their decision. CONCLUSIONS OF LAW Applicant bears the burden of proof and must establish that he is qualified to receive peace officer’s certification by a preponderance of the evidence. See A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1201 (6th ed. 1990). A.A.C. R13-4-109(A) allows POST to deny certified status for the following causes: 2. Willfully providing false information in connection with obtaining or reactivating certified status; . . . . 7. Committing 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; . . . . 12. Engaging in any conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.

Specifically, the Notice of Hearing identified the offense involving dishonesty to be violations of A.R.S. § 13-2704(A)(1), unsworn falsification; A.R.S. § 13-2907.01, false reporting to law enforcement agencies; and A.R.S. § 39-161(A), presentment of false instrument for filing. The uncontroverted evidence established that Applicant could have been more clear with each of his answers relating to his employment and separation from the three jobs at issue in this matter. As to Applicant’s responses to employment questions about Brandon Cox’s Farmers Insurance, Applicant consistently maintained that he was not terminated, but was told that they were going in a different direction and was assisted in starting in a new job with a different agency in the days immediately following that decision. While some individuals may interpret that as a termination, others could reasonably interpret it as a voluntary resignation. As Applicant could reasonably have a belief that he had not been terminated or would be terminated if he did not accept the new position, his answers on the applications he submitted were consistent with that understanding. Therefore, the preponderance of the evidence failed to establish that Applicant willfully provided false information or committed an offense involving dishonesty relating to his answers about Brandon Cox’s Farmers Insurance. As to Applicant’s responses to employment questions about Bethel Baptist Church, most of Applicant’s answered indicated that he moved as the reason for the separation until after the post-polygraph interview. Again it was reasonable for someone who has been told that “things aren’t working out” or “we’re going in a different direction” to make the decision to leave not strictly as a resignation in lieu of termination, but rather as a decision to do what is right for him or her in that situation. Applicant’s decision to move the Phoenix area to help his father-in-law may be been in part due to his view of his relationship with Bethel Baptist Church at that time, but that does not mean he did not leave the church because he decided to move. The email from Mr. Olson supported Applicant’s answers that he was not fired or resigned in lieu of termination. Therefore, the preponderance of the evidence failed to establish that Applicant willfully provided false information or committed an offense involving dishonesty relating to his answers about Bethel Baptist Church. As to Applicant’s responses to employment questions about Bible Baptist Church, Applicant’s answers that he left because the church closed were demonstrably false. Applicant acknowledged that he saw the church had closed after he left and he listed that as the reason he left. As Applicant put it, the church had closed, but that was not why he was no longer there. Applicant did indicate that he originally had an agreement with the pastor that they would leave the church in December, but that due to an incident, that date was accelerated. No evidence offered suggested that the original December date was related to the church closing, i.e. that Applicant agreed to leave because the church was going to close, and then left earlier due to other reasons. Even if this was the case, it would be concerning that Applicant would continue to maintain that he left the church because it closed. Therefore, the preponderance of the evidence established that Applicant willfully provided false information or committed an offense involving dishonesty relating to his answers about Bible Baptist Church. This constitutes cause under A.A.C. R13-4-109(A)(2) and (7) for POST to deny Applicant certification. The public expects police officers to be honest. Taken together, Applicant’s failure to fully disclose the details of his employment history establishes that Applicant 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 deny Applicant’s application for certification.

Done this day, May 28, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director Peace Officers Standards and Training

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826