ALJDEC decisions subject to certification as final

2019-001-WVFD · Williamson Valley Fire District · 2019-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2019, July 19, 2019, July 22, 2019 through July 24, 2019, July 30, 2019 through August 1, 2019, with the record held open until October 1, 2019 for the purpose of receiving post-hearing briefs. APPEARANCES: Stephen Montoya, Esq. appeared on behalf of Appellant Jared Mr. Fiori. William R. Whittington, Esq. and Donald C. Zavala, Esq. appeared on behalf of Respondent Williamson Valley Fire District. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Appellant Jared Mr. Fiori was employed by Respondent Williamson Fire District (District) as a firefighter and paramedic. 2. On or about November 29, 2018 the District issued a Revised Notice of Intent to Terminate (Notice of Intent) to Mr. Fiori. The Notice of Intent contained allegations that Mr. Fiori had violated District Personnel Policies, including: a. 301.2 – Drug and Alcohol Testing Policy; b. 301.9 – Violence/Threats of Violence/Intimidation/Harassment Policy (A) and (B); c. 307.1 – Standards of Conduct, (A), (B), (L), (U), and (FF); d. 307.9 – Ethics Policy, (IV) D; and e. 301.10 – Fraternization, (I). 3. Mr. Fiori requested a pre-disciplinary meeting regarding the Notice of Intent. 4. On December 14, 2018, the District conducted a pre-disciplinary meeting with Mr. Fiori. 5. On December 24, 2018, the District informed Mr. Fiori that his employment was terminated for the reasons set forth in the Notice of Intent. 6. Mr. Fiori filed an appeal and a request for a hearing. 7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 8. A hearing was held on July 19, 2019, May 13, 2019, July 19, 2019, July 22, 2019 through July 24, 2019, and July 30, 2019 through August 1, 2019. 9. On September 2, 2015, Mr. Fiori transported a patient by ground to a trauma center. See Exhibit 1, Bates WVFD001. Captain Brett Smith of the District had directed Mr. Fiori to transport the patient by ground. Mr. Fiori was not directed to transport the patient by air. 10. On January 23, 2017, Mr. Fiori inquired with Terrorism Liason Officer (TLO) Coordinator Captain Michael Follett about a reserve firefighter’s criminal background after learning that the firefighter may have been involved in illegal activity. Mr. Follet told Mr. Fiori to search the Maricopa County Sheriff’s Office (MSCO) public website. Mr. Fiori searched for the firefighter’s arrest record on the MSCO website. Mr. Fiori discovered that the fellow fire fighter had not been arrested. Mr. Fiori was a Terrorism Liaison Officer (TLO) at the time that he consulted with Mr. Follet. Mr. Fiori did not use any closed- source passwords to access the public website. See Exhibit 4. 11. On January 25, 2017, the District gave Mr. Fiori a verbal warning because he disclosed an affair that he had with the estranged wife of his fellow fire fighter Adam Gallegos, and because Mr. Fiori disseminated text messages regarding the incident to District personnel. The District advised Mr. Fiori to “cease all association including discussion and transferring of electronic media between his personal relations with [Mr. Gallegos’s] wife and the workplace. See Exhibit 5. A Document of Record (DOR) was created regarding the verbal warning and signed by Mr. Fiori on February 9, 2017. 12. On January 31, 2017, Mr. Fiori participated in a local union meeting. Mr. Fiori discussed the District’s plans to advance its Certificate of Necessity (CON) to the outer loop road. Approximately 12-15 people were present at the meeting including the battalion chief from another fire district. After the meeting adjourned, Mr. Fiori gave copies of text messages between himself and Mr. Gallegos during a closed “e-board” session. Mr. Fiori stated at the meeting that Mr. Gallegos had threatened him because he had a sexual relationship with his wife. 13. On February 1, 2017, Mr. Fiori participated in a union chapter meeting. The other attendees were Mike Samudio, Brad Autry, Captain Brandon Rollins, Tom Henry, and Ben Roche. The purpose of the meeting was to discuss elections for the District and the possible resignation of its president. Shortly before the meeting, Mr. Samudio learned that the president did not want to resign and informed the other members. Mr. Samudio asked if anyone had questions. Mr. Fiori took the floor and agreed that they did not need to discuss elections. Mr. Fiori began to discuss discipline actions imposed on him by the District the past weekend. Mr. Fiori stated that he was under investigation and explained the reasons for the investigation. Captain Rollins and Mr. Samudio told Mr. Fiori it was not the time or place to discuss those issues. 14. On March 8, 2017, the District created a DOR with regard to an incident that occurred on March 6, 2017 involving Mr. Fiori. See Exhibit 6. Captain Brandon Rollins reported that Mr. Fiori sent him a text explaining that he had car trouble and that he had contacted Firefighter Sullivan for coverage. As a result, Station 95 did not have proper coverage. The District counseled Mr. Fiori. The District alleging that Mr. Fiori should have contacted Captain Brett Smith. 15. On October 30, 2018, the District created a DOR regarding incidents involving Mr. Fiori that occurred on October 6th and October 7th of 2018. See Exhibit 7. 16. On October 7, 2018, Mr. Fiori was inebriated and called in sick to work at approximately three o’clock in the morning when he was scheduled to report to work at 8:00 a.m. that day. 17. Captain Brett Smith testified that later that day, Mr. Fiori called him and stated that he needed to clean up his house because he had been “fucking hookers all night long.” 18. Captain Mike Love testified that Mr. Fiori called him seeking drugs. Captain Love testified that Mr. Fiori told him that he had been doing cocaine and hookers all night. 19. On October 8, 2018, Mr. Fiori was inebriated and called the District to state that he would not be reporting for work. 20. The District created a DOR regarding the events that occurred on October 7th and October 8th. 21. Mr. Fiori was ordered to undergo a drug screening test by means of a hair specimen analysis. Mr. Fiori timely complied with the order and passed the test. 22. On October 29, 2018, the District requested criminal records form Glendale Police Department with regard to a violent altercation involving Mr. Fiori. See Exhibit 9. The Glendale Police Department provided a statement from, Keith Evanson, who claimed to have an interaction with Mr. Fiori on Facebook regarding a violent incident in Mesa between a Mesa police officer and a civilian. Mr. Evanson alleged that Mr. Fiori harassed him and threatened him after he expressed that he agreed to the use of force against a civilian. See id. Mr. Evanson provided copies of the Facebook posts between himself, Damon Fiori, Mr. Fiori, and Brett Miller. 23. Damon Mr. Fiori is Mr. Fiori’s brother. Damon Fiori was a firefighter for the City of Glendale. Brett Miller was friend of Damon Fiori and Mr. Fiori. 24. Mr. Miller posted a Mesa Police Department article by Scottsdale Police Department regarding force used on Robert Johnson. Mr. Fiori does not know Robert Johnson but he observed a video of Robert Johnson leaned against a wall and within a short time, the police officer punched him in the face. Mr. Fiori did not observe that Robert Johnson was combative. Mr. Fiori only saw Robert Johnson being attacked. Mr. Fiori testified at hearing that there were several videos surfacing of police officers beating minorities. To Mr. Fiori, this was just another instance of such behavior. Mr. Fiori Robert was not a suspect nor was he accused of a crime. Scottsdale Police Department was assigned to independently investigate the incident. Scottsdale Police Department found no misconduct on the part of the Mesa Police Department. 25. Mr. Evanson was a Facebook friend of Brett Miller, expressed that he agreed with the findings of the Scottsdale Police Department. A Facebook disagreement began between Mr. Miller, Mr. Fiori, Damon Mr. Fiori, and Mr. Evanson. 26. Mr. Fiori made the following statement to Mr. Evanson on Facebook: Total fuckface Keith. Even the worst of cops understand that ars 13-1202 needs someone to say “hey (blank) Im going to smash your fucking face in” for it to be threatening and intimidating. But if I were to hypothetically say “Hey Bret and Damon, I am going to find this fuckface keith and kick his fucking teeth in” Well that does not quite fall under the definition of ars 13-1202.

27. Mr. Fiori further commented to Mr. Evanson:

No you forgot the part where you solicited to be fucked in the ass for only $1 bro.

28. Mr. Fiori had a photograph of himself wearing a District t-shirt on his Facebook page. 29. Mr. Fiori posted a picture of Mr. Evanson in a Ku Klux Klan outfit. Mr. Mr. Fiori admitted at hearing that he fabricated the photograph of Mr. Evanson. 30. A DOR was created with regard to the Facebook incident. In the DOR, the District alleged that Mr. Fiori was involved in a social media conflict that escalated to a physical altercation. The DOR also stated that a request for records had been submitted to the Glendale Police Department. Mr. Fiori responded to the DOR and stated that he had “no knowledge of personal involvement of a Facebook conflict that led to any physical altercation that involved Glendale police.” 31. On October 31, 2018, a DOR was created where Mr. Fiori was issued a written reprimand for failing to provide his response to five subjects of the investigation by 17:00. See Exhibit 10. Mr. Fiori provided his response in a format not directed by the DOR at 17:06. However, his response was included in the formal investigation. See id. 32. The District retained a letter from Matthew Griffith which was retained by the District under the October 31, 2018 DOR. The letter provided: Matthew Griffiths

Regarding the incident at the 7-11 between the times of 12:00:00AM and 1:00:00AM involving I myself (Matthew Griffiths) and Mr. Fiori Mr. Fiori.

We transported a pediatric patient to Mandy’s Place and went for coffee at the nearby 7-11 for the ride home. While we were inside the 7-11 it became obvious that a male employee of the store was visibly upset. I wasn’t sure at what exactly, so I looked around and saw Mr. Fiori speaking to the female store employee. I cant’s speak to what exactly, so I looked around and saw Mr. Fiori speaking to the female store employee. I cant’s speak to what was directly said as didn’t overhear it nor did I participate in it. I just simply observed the male employee being visibly upset. I paid for my coffee and left the store without incident.

33. The female store employee of 7/11 referred to in Mr. Griffith’s letter was Samerha Medina. Ms. Medina denied at hearing that Mr. Fiori did anything wrong or inappropriate. Chief Bryan Smith testified at hearing that the allegation that Mr. Fiori had an inappropriate sexual conversation with Ms. Medina was unfounded. Mr. Frank Licattini was the manager of the 7/11 store at the time. Mr. Licattini testified that he investigated the situation and found no basis for the allegation. 34. On or about October 29, 2018, the District created a DOR which contained an allegation that Mr. Fiori had been driving erratically and gesturing with his middle finger at an individual on State Route 93. At hearing, Mr. Fiori denied the accusation but testified that another drive on State Route 93 had been driving recklessly and he reported the conduct to a supervisor at the mine in Bagdad. 35. The District also alleged that Mr. Fiori was involved in a road rage incident in Wickenburg. However, District Chief Bryan Smith testified that there was no evidence that Mr. Fiori did anything wrong and it was not the basis for Mr. Fiori’s termination. District Policy 301.9 – Violence / Threats of Violence/ Intimidation/Harassment 36. Policy 301.9 provides that the District does not tolerate violence acts or threats of violence against employees, visitors, guests or other individuals within its facilities or during any District activity (including off duty periods). 37. Policy 301.9 (A), provides, in relevant part, “Violence may be described as verbal or physical threats, intimidation, and/or aggressive physical contact. Prohibited contact includes, but is not limited to the following”: 1. Intimidation, harassment, assault, battery, stalking or conduct that causes a person to believe that he or she is under a threat of death or bodily injury. …………………… 5. Using obscene or abusive language or gestures in a threatening manner.

District Policy 307.1 – Standards of Conduct 38. Policy 307.1 provides, in relevant part: The following conduct is prohibited and may subject the employee involved to corrective and/or disciplinary action, up to and including dismissal. The list of examples is illustrative of the type of behavior that is not permitted, and it’s not intended to be all-inclusive.

E. Failure to report the use of prescription medications while fulfilling the duties of any operations or communications position.

N. Discussing confidential or proprietary information with individuals not affiliated with the District.

FF. Off-duty conduct that brings discredit upon the District. District Policy 307.9 – Ethics Policy 39. Policy 307.9 provides, in relevant part, as follows: It is the policy of WVFD that all personnel shall avoid any activity, practice or act which might create a conflict or the appearance thereof as a result of their employment or appointment with the Fire District. Any violation of this Policy will subject personnel to disciplinary action up to and including dismissal.

40. In its Memorandum of Facts and Legal Authorities (Memorandum), the District contended that Mr. Fiori had violated other Policy provisions, including: a. 300.5 – Proper Chain of Command and District Organizational Chart Policy; b. 301.6 – Harassment/ Sexual Harassment Policy, (Subsection D); c. 307.1 – Standards of Conduct, (N); 41. Chief Anthony Tunis oversees the Bagdad station where Mr. Fiori worked. Chief Tunis testified that several firefighters told him that Mr. Fiori continued to discuss the affair with Mr. Gallegos’s estranged wife even after Mr. Fiori was ordered not to discuss the matter. 42. Despite the numerous allegations listed in the Notice of Intent, Chief Bryan Smith testified that Mr. Fiori was terminated because he failed to report that he was taking prescription medication and the Facebook incident. 43. At hearing, Mr. Fiori testified to the effect that he discussed his sexual relationship during a closed e-session because he was not receiving support from his superiors. During the times that Mr. Fiori was inebriated and called to state that he would not be coming to work, Mr. Fiori testified that he was suffering from Post-Traumatic Stress Disorder. During that time, Mr. Fiori testified that he was admitted to a psychiatric health care facility. Mr. Fiori asserted that his comments on Facebook were related to issues of police brutality which is a matter of public concern, and that his statements were protected by the free speech clause of the First Amendment. Mr. Fiori asserted that he had the right to ask Jake Thompson to change his statement because his statement was not true. 44. At hearing, the District alleged that Mr. Fiori failed to inform the District that he was taking prescription medication. However, the evidence presented at hearing showed that Captain Brandon Rollins and a District physician was aware that Mr. Fiori was taking prescription medication. Mr. Fiori also provided credible testimony that he kept the medication on his desk. 45. The District contended that Mr. Fiori’s actions on Facebook violated its Policy. Furthermore, the District asserted that Mr. Fiori’s conduct was not protected by the First Amendment of the United States Constitution. CONCLUSIONS OF LAW 1. District Policy 309.1 – Complaint and Appeals Policy (VI) § A (6) designates the OAH as the Appeals Board. Pursuant to an Intergovernmental Agreement between the Arizona Office of Administrative Hearings and the District, the OAH’s rules and procedures are to be used during the hearing process. 2. All decisions of the Office of Administrative Hearings are final and binding. District Policy 309.1 – Complaint and Appeals Policy (VI) § A (6)(I). 3. The burden of proof at an administrative hearing falls to the party asserting a claim, right or entitlement; a party asserting an affirmative defense bears the burden of proving that defense. The standard of proof an all issues is that of the preponderance of the evidence. A.A.C. R2-19-119. 4. 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 1301 (9th ed. 2009). 5. Pursuant to the District’s Policy, “the finding of the Office of Administrative Hearings shall be binding, and the disciplinary decision of the Fire Chief shall be overturned upon a finding that that decision was arbitrary and without substantial evidence.” 6. The preponderance of the evidence shows that Mr. Fiori’s statements to Mr. Evanson on Facebook and his discussion of the District’s intent to expand the area of coverage for its CON at a local union meeting violated District Policy 307.9, 307.1, and 301.9. The preponderance of the evidence also shows that the District’s decision to terminate Mr. Fiori’s employment was not arbitrary and supported by substantial evidence. ORDER IT IS ORDERED that Jared Mr. Fiori’s appeal is dismissed and the District’s December 24, 2018 decision to terminate Mr. Fiori’s employment is affirmed. Done this day, October 21, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted US Mail/ electronically to:

Bryan Smith, Fire Chief Williamson Valley Fire District 15450 Williamson Valley Road Prescott, AZ 86305-7451

Stephen Montoya Montoya, Lucero & Pastor, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012

William R. Whittington Boyle, Pecharich, Cline, Whittington & Stallings, PLLC 125 North Granite Street Prescott, AZ 86301-3001

Donald Zavala Boyle, Pecharich, Cline, Whittington & Stallings, PLLC 125 North Granite Street Prescott, AZ 86301-3001

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