ALJDEC decisions subject to certification as final

19A-228-POST · Peace Officers Standards and Training · 2022-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Marcos R. Rodriguez,

Respondent.

No. 19A-228-POST

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 27 and 28, December 29, 2021

APPEARANCES: Marco R. Rodriguez on his own behalf; Gino Duran, Esq. for the Peace Officer Standards and Training Board

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 16, 2021, the Arizona Peace Officer Standards and Training Board (“POST”) issued a Notice of Hearing setting the above-captioned matter for hearing beginning on September 28, 2021 at the Office of Administrative Hearings.

The matter was continued and the hearing was conducted on October 27 and 28, and December 29, 2021.

POST alleges that Officer Marcos Rodriguez (1) was unprofessional in his duties on August 26, 2018 when he used his authority to convert an enforcement contact with Marcela Guzman into a social relationship; and (2) that his actions on that date “met the elements of a felony when he made contact with Ms. [Guzman] at her residence and recklessly displayed his backup firearm, frightening Ms. [Guzman].”

Regarding the second allegation, POST more specifically alleges that Mr. Rodriguez removed his backup firearm and held it to Ms. Guzman’s ribs.

POST alleges that Mr. Rodriguez’s actions violated Ariz. Admin. Code sections R13-4-109(A)(7) (committing a felony, to wit Ariz. Rev. Stat. section 13-2904(A)(6)(disorderly conduct involving a deadly weapon)); R13-4-109 (A)(8)(malfeasance, misfeasance, or nonfeasance); and R13-4-109(A)(12)(engaging in conduct that tends to diminish trust in law enforcement).

POST relies on statements Ms. Guzman made to the Phoenix PD and other information the Department gathered during its investigations of her allegations.

Mr. Rodriguez acknowledged that he was unprofessional in his duties on August 26, 2018 when he used his authority to convert an enforcement contact with Ms. Guzman into a social relationship. He also acknowledges that while in her apartment on that date, he removed his backup firearm from his vest, but he denies holding it to Ms. Guzman’s ribs.

POST called Mr. Rodriquez as its first witness and then presented the testimony of Phoenix PD’s Sgt. Carmina Theriault and Sgt. Brandon Warner, and POST employees Rick VanKeuren and Mike Deltenre.

On August 26, 2018, Mr. Rodriguez was employed by the Phoenix Police Department where he worked for three years prior to being fired based on the incident at issue in this matter; he also has four years’ experience as a police officer in Puerto Rico, he spent nine years in the U.S. Army and, at least as of February 2020, he was still in the Army reserves.

Sgt. Warner was assigned Professional Standards Bureau (“PSB”) that conducted an internal investigation of the facts and allegations at issue and Sgt. Theriault was assigned to the Special Investigations Division (“SID”) that conducted a criminal investigation of the facts and allegations at issue.

On August 26, 2018, Mr. Rodriguez was in a police vehicle when he almost collided with a vehicle driven by Ms. Guzman. Recognizing that he was at fault, Mr. Rodriguez sought to flag her down to apologize and verify that she was ok. He did so, and Ms. Guzman gave him her business card that included her phone number but not her address. Evidence in the record shows that Ms. Guzman told Mr. Rodriquez about personal problems she was experiencing and that there may have been a tentative arrangement for the two to talk at a later time.

Phoenix PD interviewed Officer Christine Norris who was following Mr. Rodriguez on August 28th. She saw, but did not hear, Mr. Rodriquez’s interaction and discussion with Ms. Guzman. Mr. Rodriquez showed Ofc. Norris Ms. Guzman’s business card and told her that Ms. Guzman gave him her card because she obviously wanted to hook-up with him and that this happens all the time. Ofc. Norris also told investigators that Mr. Rodriguez had made similar comments in the past.

Later on August 28th, Mr. Rodriquez and Ms. Guzman engaged in a phone call lasting just shy of thirty minutes and then exchanged text messages in which she sent him her address and the access code for the gate.

Still on August 28th, Mr. Rodriguez went to Ms. Guzman’s apartment and she let him enter. Ms. Guzman told investigators that she had not expected Mr. Rodriguez to appear, that he was demanding and she begrudgingly let him in. Mr. Rodriguez’s position was to the effect that by providing him her address, Ms. Guzman had invited him to come over and that she welcomed him in.

According to Mr. Rodriguez, he went to her apartment to apologize and because he was concerned that Ms. Guzman might file a complaint against him.

Mr. Rodriguez had his computer and began working on a report. The two engaged in conversation, including discussion regarding their respective sexual preferences. According to Mr. Rodriguez, he talked about his childhood and created a rapport.

According to Mr. Rodriguez, Ms. Guzman indicated that she was currently ok, but that she might need a sexual partner in the future.

According to Ms. Guzman, she told Mr. Rodriguez that she had to leave to see a movie. The two may have hugged or she may have reached out touching his chest to avoid a hug. Ms. Guzman felt something hard and asked what it was. He told her it was his backup weapon and took it out of the vest carrier. According to Ms. Guzman, he held her and placed the tip of the weapon on her ribs. According to Mr. Rodriguez, he placed the weapon on a piece of furniture while he adjusted the vest and he told her why he had a backup weapon.

Ms. Guzman told Mr. Rodriguez that she was terrified of guns and he returned the weapon to his vest after a few seconds.

Mr. Rodriguez left the apartment after spending between fifteen to twenty-five minutes there.

The two exchanged text messages over several days.

On September 4, 2018, Ms. Guzman went to a police station to file a report. At the time she was directed to PSB, and Sgt. Warner took her statement by telephone.

On September 4th, Ms. Guzman did not allege that Mr. Rodriguez placed the gun on her ribs.

On September 4th, Ms. Guzman lied to police investigators telling them that she did not know how Mr. Rodriguez got her address and that she believed that he must have accessed it improperly by running her license.

On September 5, 2018, PSB again interviewed Ms. Guzman to clarify things, at which time she alleged that Mr. Rodriguez had held the weapon to her ribs.

PSB then referred the matter to SID for criminal investigation and Sgt. Theriault interviewed Ms. Guzman.

On September 6, 2018, Sgt. Theriault arranged for Ms. Guzman to make a one-party consent call to Mr. Rodriguez. The conversation was in Spanish; Sgt. Theriault, who is certified to translate, listened in on the call.

During that call, Ms. Guzman several times raised the question or issue of Mr. Rodriguez putting the weapon to her ribs and Mr. Rodriguez did not explicitly deny doing so. Consequently, officers felt there was probable cause and arrested Mr. Rodriguez.

When she was asked if Ms. Guzman and Mr. Rodriguez were flirting during the one-party call, Sgt. Theriault acknowledged that the two appeared comfortable and that Mr. Rodriguez appeared to be trying to further a personal relationship with Ms. Guzman, whereas she was trying to prove her allegations.

At one point during the one-party call, Ms. Guzman stated that Mr. Rodriguez should have put something other than a gun in her ribs, to which he replied “like what” and asked “what else” should I have put there. Sgt. Theriault’s opinion was to the effect that Mr. Rodriguez thought that Ms. Guzman was engaging in sexual banter.

On September 7, 2018, SID interviewed Mr. Rodriguez who described his interaction with Ms. Guzman and explained that when leaving, he gave her a hug and she asked about what she felt, so he opened his vest and took out his secondary weapon that was in a holster. Detectives asked Mr. Rodriquez about Ms. Guzman’s allegation of aggravated assault in detail, and he denied pointing the weapon at her.

Mr. Rodriguez first told investigators that he removed the weapon to show it to her, but later said he did so to adjust his vest.

Later on September 7th, 2018, Mr. Rodriguez called SID and said he was confused during Ms. Guzman’s call and he thought that she meant penis when she said gun. In Puerto Rico, gun is a slang term for penis.

During the one-party consent call, there were times when substituting the word “penis” for “gun” would make no sense. For example, Mr. Rodriguez noted that a gun cannot go off unless the trigger is pulled.

At the hearing, Mr. Rodriguez acknowledged that not every instance in which Ms. Guzman said gun could be read to mean penis.

In an interview on December 4, 2018, Mr. Rodriguez told PSB that in his opinion, Ms. Guzman fabricated the allegation that he held the weapon to her ribs so she could remain in the US and get citizenship. In support of that assertion, Mr. Rodriguez presented a police report in which Ms. Guzman’s husband told police that Ms. Guzman had done work on expediting citizenship and that one method included becoming the victim of a crime.

On December 12, 2018, Phoenix PD submitted felony charges to the Maricopa County Attorney’s Office alleging that Mr. Rodriguez had committed Aggravated Assault with a Deadly Weapon in violation Ariz. Rev. Stat. section13-1204(A)(2) and Disorderly Conduct involving a Deadly Weapon in violation of section 13-2904(A)(6).

The County Attorney declined to prosecute based on no reasonable likelihood of conviction.

On April 16, 2019, Ms. Guzman filed a complaint in superior court in which she named the City, Mr. Rodriguez, Sgt. Theriault, Sgt. Warner, and another officer as defendants. Among Ms. Guzman’s allegations are that: Mr. Rodriguez had pointed his weapon at her face and laughed at her and then he put the gun to her ribs; that Sgt. Theriault was rude and screamed at her and accused Ms. Rodriguez of just wanting money from the police department; and that she had not given Mr. Rodriguez her address before he came to her apartment on August 26th.

Ms. Guzman settled her lawsuit for $125,000.

Through a memoranda to Chief Jeri L. Williams dated July 26, 2019, PSB presented the results of its investigation sustaining allegations that Mr. Rodriguez was unprofessional on August 26, 2018 when he used his authority convert a police contact into a social relationship and that his actions met the definition of a felony when he recklessly displayed his firearm. In an August 14, 2019 Notice of Findings for Internal Investigation, both allegations were sustained.

Mr. Rodriguez was terminated from his position with the Department.

Mr. Rodriguez appealed his termination and the City conducted a hearing on February 27, 2020. Through a Hearing Report dated March 12, 2020, in addition to providing background information, the Hearing Officer provided the following information:

Issues Presented: “Did Appellant’s conversion of an enforcement contact into a social relationship and his removal of his secondary firearm from his ballistic (bullet-proof) vest in the social contact’s apartment violate City of Phoenix Personnel Rules and Police Department Operations Orders and warrant his dismissal?”

When Mr. Rodriguez first spoke to Ms. Guzman on August 26th, he asked how to contact her and she gave him a business card after telling him she had personal problems and agreeing to talk to him about it.

Later on August 26th, she sent Mr. Rodriguez her address and the gate code in a text, after which he went to her apartment.

On September 4, 2018, Ms. Guzman was untruthful when she told investigators that she did not know how Mr. Rodriguez got her address, whereas she had texted her address and gate code to him.

On September 4th, Ms. Guzman did not allege that Mr. Rodriguez held a weapon to her ribs.

On September 5, 2018, at a second interview she raised the allegation about the weapon.

Ms. Guzman “gave three different accounts of the gun incident in her interviews with PSB, Special Investigations Detail (“SID”) and in her application for an order of protection, which police staff directed her to obtain.”

Mr. Rodriguez denied pointing or placing the gun in Ms. Guzman’s ribs.

“The PSB investigator stated that he could not determine what happened with the weapon inside the complaining party’s apartment except that Appellant removed it from his ballistic vest. At all times, Appellant’s secondary firearm was holstered. PSB did not charge Appellant with pointing the gun at the complaining party or placing it on her ribs.”

“PSB did not come to a conclusion about what happened with the weapon in the complaining party’s apartment so Appellant was not charged with pointing a gun at the complaining party or placing it on her ribs.”

The matter went to the Police Chief and a Loudermill Hearing. The Chief decided to dismiss Mr. Guzman for violating Personnel Rules and Operation Orders. Ms. Guzman’s lawsuit against the City was a factor in that determination.

Mr. Rodriguez admitted violating the Operations Order prohibiting conversion of police contacts into social relationships.

Mr. Rodriguez’s conduct in pursuing a personal relationship with Ms. Guzman was reprehensible and brings discredit to the Department.

Mr. Rodriguez denied he recklessly displayed his gun, stating it was only out of his vest for five seconds.

Mr. Rodriguez was not charged with pointing a gun at Ms. Rodriguez, nor was he charged with placing a gun on her ribs.

Ms. Guzman “was untruthful in several ways.”

“The Hearing Officer finds insufficient evidence that Appellant’s actions of removing his weapon to adjust his ballistic vest for 5 seconds constituted reckless handling or display of a deadly weapon. The Hearing Officer finds Appellant did not violate A.R.S. §13-2904.”

Mr. Rodriguez did violate several Personnel Rules and Operations Policies.

There was insufficient evidence to show that Mr. Rodriguez violated Operations Order 3.13.6.B(5) which prohibits committing acts where the elements of felony or misdemeanor crimes are met.

The Hearing Officer recommended that Mr. Rodriguez be reinstated and that his discipline be modified to a twenty-four hour unpaid suspension.

The Civil Service Board met on July 9, 2020, and upheld the firing of Mr. Rodriguez.

Mr. Rodriguez asserts that the City had a bias against him and that he was being treated more harshly than other police officers who committed violations of policy.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction. See Ariz. Rev. Stat. § 41-1821 et seq.

POST may “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules prescribing reasonable minimum qualifications for officers. See Ariz. Rev. Stat. § 41-1822(D)(1).

POST bears the burden of persuasion to show that cause exists to discipline Mr. Rodriguez’s certification. Ariz. Rev. Stat § 41-1092.07(G)(2); Ariz. Admin. Code § R2-19-119.

The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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 1373 (10th ed. 2014).

Ariz. Admin. Code section R13-4-109(A) provides that POST may suspend or cancel certified status for reasons including:

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;

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

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

Ariz. Rev. Stat. section 13-2904 provides in part:

A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

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6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.

B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 is a class 1 misdemeanor.

Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

Administrative Law Judge Decisions must be based on evidence that is substantial, reliable and probative. Ariz. Rev. Stat. § 41-1092.07(F)(1).

“Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citation omitted).

Mr. Rodriguez admits that he converted a professional encounter into a social relationship and his actions bring discredit to the Department. Consequently, Mr. Rodriguez has violated Ariz. Admin. Code sections R13-4-109(A)(8) and (A)(12).

Ms. Guzman did not appear and testify and POST did not prove that her statements are reliable. And to the contrary, there is substantial evidence to show that Ms. Guzman is not reliable: she lied to investigators about how Mr. Rodriguez got her address, a lie that she repeated in her complaint against the City; the City’s Hearing Officer concluded that she told three different versions of her story; and in her complaint against the City, she asserted that Mr. Rodriguez pointed the gun at her face, an allegation that does not appear anywhere else. The evidence also suggests that Ms. Guzman made her allegation regarding the weapon to her ribs because she thought it would help her in obtaining citizenship.

Because Ms. Guzman’s statements have not been proven to be reliable, these statements cannot be considered substantial evidence.

POST has not proven that Mr. Rodriguez violated Ariz. Admin. Code section R13-4-109(A)(7) because it has not proven its allegation that Mr. Rodriguez held the weapon to Ms. Guzman’s ribs and it has not shown that he recklessly handled or displayed his weapon when he removed it from his vest for a few seconds.

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-137160-45720000Done this day, March 21, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director

Peace Officers Standards and Training

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