ALJDEC decisions subject to certification as final

2020-052-POST · Peace Officers Standards and Training · 2022-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Dominick A. Horn,

Applicant

No. 2020-052-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2022

APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Mark Brachtl. Dominick A. Horn failed to appear.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Dominick A. Horn (Applicant) was attending the Western Arizona Law Enforcement Training Academy (WALETA) as a recruit for the La Paz County Sherriff’s Office (LPCSO).

On or about March 22, 2020, at 2:09 a.m., Applicant pushed an individual to the ground, outside of BJ’s bar. Applicant was later cited for Disorderly Conduct in violation of A.R.S. §13-2904(A), and on June 4, 2020, entered into a stipulated guilty plea in the Lake Havasu City Municipal Court.

Also on March 22, 2020, Applicant was interviewed by detectives about the incident. Applicant informed the detectives that he saw the individual running at him at a fast pace, and that he pushed the individual because he was unsure of the individual’s intentions. In addition to the citation for Disorderly Conduct, a citation was issued for False Reporting in violation of A.R.S. §13-2907.1. This charge, however, was dismissed.

On March 24, 2020, the Arizona Peace Officer Standards and Training Board (POST) received a termination report from LPCSO indicating that the Applicant’s conduct may have violated POST’s rules.

On or about April 25, 2022, POST issued a Notice of Denial to Applicant informing him that it was POST’s intent to deny Application an Arizona peace officer certification based upon the two charges.

Applicant requested a hearing, and on or about August 24, 2022, a Notice of Hearing was issued setting a hearing on October 20, 2022, before the Office of Administrative Hearings, and independent state agency.

Hearing Evidence

Although the hearing was delayed fifteen minutes, Applicant failed to appear and the tribunal proceeded in his absence.

Rita Schaefer who was an Administrative Assistant for post, provided extensive testimony as to how Applicant was notified about the present action. Ms. Schaefer testified that Applicant had signed a certified mail receipt of the Notice of Decision.

As to the Notice of Hearing, Ms. Schaefer testified that it was mailed via regular mail and certified mail to Applicant. However, the United States Postal Office could not locate any deliver information as to the certified mail. Ms. Schaefer testified too that neither the regular mail nor the certified mail came back as “undeliverable”. Ms. Schaefer also testified that POST tried personal service of the Notice of Hearing at Applicant’s address of record at least five times, and tried to serve the documents at Applicant’s mother’s house in Palm Springs, California.

Dave Toporek, a Case Specialist for POST, also testified that he also sent a text message of the Notice of Hearing to Applicant’s phone number of record (which was the same number Applicant had called Mr. Toporek), and that was not returned as “undeliverable”. Mr. Toporek also reviewed Applicant’s vehicle registration to ensure POST had the correct address. Finally, Ms. Schaefer also testified that she e-mailed a copy of the Notice of Hearing to Applicant’s address of record and that too did not come back as undeliverable.

As to the charges as the impetus for the Notice of Dismissal, Mr. Toporek testified that they violated A.A.C. R13-4-109(A)(7) and (12) which constituted cause to deny certification. Further, Applicant became bound by POST’s rules as soon as he became appointed by the LPCSO.

Lake Havasu City Police Detective Kevin Levine testified that he was dispatched to the fight on March 22, 2020. Detective Levine testified that he interviewed Applicant approximately seven hours later. Applicant informed Detective Levine that the individual was running or charging at him. However, Detective Levine showed a video of the incident to Applicant, but Applicant indicated that the individual “got in his space which is why he pushed him.”

Next, Lake Havasu City Police Detective Nathan Hovdal testified. Detective Hovdal testified that he approached Applicant who appeared to be evasive with his responses to questioning. However, Applicant informed Detective Hovdal that he was not involved in any fight and was just waiting for a friend. Detective Hovdal testified that he believed Applicant was dishonest because the video clearly showed he was involved in the incident. Finally, Detective Hovdal testified that Applicant should have admitted he was involved and that his answers were dishonest.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction. See A.R.S. § 41-1821 et seq.

At the outset, the tribunal finds that the Notice of Decision and the Notice of Hearing were both properly served upon Applicant pursuant to A.A.C. R2-19-108(F), as the Notice of Decision was signed for by the Applicant, and the Notice of Hearing was mailed by 1st class mail to Applicant.

Applicant bears the burden of proof to establish claim, right, or entitlement to 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). 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 “[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. See A.R.S. § 41-1822(C)(1). POST may deny an officer’s certification under A.A.C. R13-4-109(A) if it determines that he has committed acts that constitute any of the following:

7. The commission of 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.

As mentioned above, Applicant failed to appear at the hearing for which he had proper notice, and as such the tribunal proceeded in his absence. A.A.C. R2-19-117. Applicant provided no proof, and therefore failed to meet his burden, that he was honest in his interactions with Detectives Levine and Hovdal, and that his conduct did not jeopardize public trust in the law enforcement profession. In fact, the opposite was proven. Applicant forcibly shoved an individual down who was not “charging” at him as the police interviews indicated. Even after he was shown the video, Applicant still denied his involvement. This lack of trustworthiness is unacceptable and jeopardizes public trust in the law enforcement profession.

Therefore, POST established cause to deny Respondent’s peace officer certification under A.A.C. R13-4-109(A)(7) and (12).

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-137160-45720000Done this day, October 28, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director

Peace Officers Standards and Training

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-137160-45720000By Miranda Alvarez

Legal Secretary