ALJDEC decisions subject to certification as final

2021-131-POST · Peace Officers Standards and Training · 2023-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Andrew B. Lowery

Respondent

No. 2021-131-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 5, 2023

APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Mark Brachtl. Respondent Andrew B. Lowery was represented by Dale Norris.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On January 2, 2020, Mr. Lowery completed an Arizona Department of Public Safety (AZDPS) employment application. On Question #115, Ms. Lowery marked that he received an “Honorable” discharge from the U.S. Army. On Question #120, Mr. Lowery marked that he had never been the subject of a report or investigation by the military police or other investigative service.

On January 6, 2020, Mr. Lowery completed the AZ POST Personal History Statement. On Question #17, Mr. Lowery indicated that he received an Honorable discharge from the US Army for his service from October 2003 through October 2014. Also on that same question, Mr. Lowery indicated that he had never been the subject of a report or investigation by the military police or other investigative service. On Question #21, Mr. Lowery indicated that he resigned from the US Army.

On or about April 30, 2021, Mr. Lowery was notified of an AZDPS internal investigation. Mr. Lowery was terminated from employment with AZDPS thereafter.

AZDPS then referred the matter to AZ POST for investigation. AZ POST conducted its investigation which ultimately culminated in a Complaint on January 24, 2022.

Applicant requested a hearing, and on or about February 1, 2023, a Notice of Hearing was issued setting a hearing on April 5 and 6, 2023, before the Office of Administrative Hearings, and independent state agency. The Notice of Hearing indicated that the conduct was alleged to violation A.A.C. R13-4-109(A)(2), (8), and (12).

Hearing Evidence

At hearing AZ POST offered the testimony of Rick VanKeuren, Blake Richardson, Marc Snyder and Arlene Heckel. AZ POST also submitted 6 exhibits into evidence.

Rick VanKeurin was a Training Specialist with AZ POST. Mr. VanKeuren testified that he had conducted about 20-30 background checks during his tenure with AZ POST. Also, Mr. VanKeuren testified as to records received from the U.S. Army. Mr. VanKeuren explained generally the process for discipline in the Army and the chain of command the process takes.

In addition, Mr. VanKeuren testified that in January 2014, an investigation was initiated as Mr. Lowery had an extra-marital affair with a subordinate. At the time of the misconduct, Mr. Lowery was a Warrant Officer 1, and led a team as part of the Criminal Investigation Department (CID). Ultimately, on June 20, 2014, Mr. Lowery was “eliminated” from the CID program. On or about September 16, 2014, Mr. Lowery was involuntary eliminated from the United States Army and was discharged with a designation of “General, Under Honorable Conditions”.

Mr. VanKeuren also testified as to the two Certificates of Release or Discharge from Active Duty (DD214), issued to Mr. Lowery. Mr. VanKeuren explained that every member of the US Army received a DD214 once discharged from service. He also explained that a DD214 is issued if a member switches positions as Mr. Lowery did. Thus, Mr. Lowey received a DD214 for the time period of October 29, 2003 through March 27, 2012, and a DD214 for the time period of March 28, 2033 through October 14, 2014, which represented his service as a Warrant Officer. Mr. VanKeurn also testified that on the first DD214, the “Character of Service” section indicated “Honorable” and on the second DD214 “Character of Service” section indicated “Under Honorable Conditions (General).” Mr. VanKeuren also testified that it was not common to see the designation, “Under Honorable Conditions (General)”.

Finally, Mr. VanKeurn testified that had Mr. Lowery resigned, he would have to submit the request and it would have to go up and down the chain of command. Further, there was no documentation of this occurring from the records provided by the US Army.

Blake Richardson was a background investigator for DPS who conducted the investigation on Mr. Lowery’s initial application, and prepared a report regarding the same on or about May 11, 2020.

Mr. Richardson testified that on his application, Mr. Lowery answered “No” to question 99, which inquired if he had been “dismissed, asked to resign or laid off from any employment?” Further, Mr. Richardson testified that Mr. Lowery only supplied the DD214 from his first term of service. However, Mr. Lowery later submitted the second DD214, however it was the “short form” or Member 1 copy, not the full form or the Member 4 copy as required by the application.

Next, AZ POST offered the testimony of Sergeant Marc Snyder. Sergeant Snyder conducted the Internal Affairs investigation for AZDPS.

Sergeant Snyder testified generally that there was an expectation for all applicants to be honest. Sergeant Snyder testified that he conducted an interview with Mr. Lowery on April 30, 2021. Sergeant Snyder also testified that Mr. Lowery stated that he was being honest while filling out the application, however, that towards the end of the interview, Mr. Lowery admitted that he should have checked the “yes” box, when answering the question about dismissal.

Arlene Heckel was a Compliance Specialist for AZ POST. Ms. Heckel testified that she received the Peace Officer Termination report from AZDPS, which then led her to complete her own investigation.

Ms. Heckel testified that she prepared a Case Overview for the AZ POST charging Board, in which she found seven allegations of misconduct. She testified that on January 19, 2022, the Board initiated a cause of action and issued a Complaint.

Ms. Heckel testified that it was her belief that Mr. Lowery provided misleading responses on his application and personal history statement, such that he was dishonest.

On cross-examination, Ms. Heckel testified that she only examined the AZDPS application and not Mr. Lowery’s most recent application with the Mohave County Sherriff’s Office. Ms. Heckel also testified that Mr. Lowery actually initiated contact with her to provide her with his statement.

Respondent, Andrew Lowery testified on his own behalf and offered four exhibits into evidence. Mr. Lowery testified that he currently was employed with Veterans Affairs.

Mr. Lowery testified that he was 17 and a half years old when he enlisted in the Army. After working in the military police and as a dog handler, he applied to become a warrant officer with the CID.

While in that position, he engaged in an extra-marital affair with a subordinate and admitted that his conduct was “abhorrent”. Mr. Lowery testified that during that time, he was going through a lot of personal turmoil and was putting his job in front of his morals.

Once confronted with the investigation into the extra-marital affair, Mr. Lowery had the choice of going back to simply an enlisted member or resigning, as he did not have enough years of service to retire. Mr. Lowery testified that he did not want to go back down to enlisted status, so he prepared a letter of resignation on a Word document with several reference letters. Mr. Lowery testified that this was completed sometime between May to June 2014. Mr. Lowery testified further that he did not have copy of his resignation packet, and was unsure as to why those documents, as well as the investigation report, were not included with the documents sent by the Army.

Mr. Lowery testified that he was truthful while he completed the applications and was aware that his Army file would be released to AZDPS so he had no reason to not truthfully complete the application. Mr. Lowery testified that he was not aware that there was a difference between “honorable discharge” and “under honorable conditions (general)”, which is why he answered the way he did. Mr. Lowery testified that the way the question was written, he believed that the only distinction in type of discharge was “honorable” or “dishonorable”.

Further, Mr. Lowery testified he was being accurate when he stated he was not the subject of an investigation by the military police or other investigative service as he believed they were asking for criminal infractions and not the type of conduct he admitted to.

Also, as to the DD214 form, Mr. Lowery testified that he gave Mr. Richardson what he had on hand, as he had just gone through a move and did not have the full form.

CONCLUSIONS OF LAW

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

AZ POST bears the burden of proof to establish cause to discipline Respondent’s peace officer 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); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 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), AZ 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). AZ POST may deny an officer’s certification under A.A.C. R13-4-109(A)(2), (8), and (12) if it determines that he has committed acts that constitute any of the following:

2. Willfully providing false information in connection with obtaining or reactivating certified status;

. . .

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

. . .

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

Upon examination of the evidence, it was clear that Mr. Lowery had no problem disclosing the extra-marital affair on his AZDPS application. Further, the tribunal believes that while he could have, and should have, clarified his discharge as “Under Honorable Conditions (General)”, this does not mean that he willfully provided false information on his application.

However, where the tribunal believes that Mr. Lowery provided false information was failing to initially attach the DD214 from his time as a Warrant Officer, and the circumstances surrounding his discharge. When Mr. Lowery subsequently provided the DD214, it was not the full form as requested by the application. While the tribunal was sympathetic to Mr. Lowery needing to seek immediate employment as he just moved and may not have had the documents at hand, he should have waited then to complete the application until he was sure he had all of the required information.

As to the circumstances surrounding the discharge, there was no evidence provided in the Army file of the resignation letter with the attached references. Further, even in the time between the investigation and the hearing, Mr. Lowery did not provided a copy of the Word document or any further attempts to request the information from the Army. While such evidence would support his position that he resigned, both the tribunal and AZ POST do not have any such information, and as such can only conclude that he did not resign, and thus willfully provided false information on the AZDPS application regarding the end of his service with the Army.

Therefore, AZ POST established cause to revoke the status Respondent’s peace officer certification under A.A.C. R13-4-109(A)(2), (8) and (12).

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, April 20, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Matt Giordano, Director

Peace Officers Standards and Training

By: OAH Staff