ALJDEC decisions subject to certification as final

2021-167-POST · Peace Officers Standards and Training · 2024-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding

the Peace Officer Certification of:

Jesus O. Norzagaray,

Respondent.

No. 2021-167-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 9, 2024

APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Mark Brachtl. Respondent Jesus O. Norzagaray was represented by Thomas Griffin.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Peace Officer Standards and Training Board Exhibits 1-14 and Respondent’s Exhibits 1-4 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Jesus O. Norzagary (Respondent) completed peace officer training and received certification from the Arizona Peace Officer Standards and Training Board (POST). Respondent worked for the Yuma Police Department (YPD) from May 2, 2016 until August 31, 2021.

On August 27, 2021, a termination report was received from the YPD with an effective date of August 27, 2021, regarding Respondent.

The YPD provided records and documentation to AZPOST regarding Respondent’s employment with the police department.

4 On August 27, 2021, Respondent was terminated by YPD after an internal affairs investigation (IA 2021-0011) sustained policy violations. In the body of the 2021 IA report was the disclosure of a separate agency investigation from 2019.

5. The separate agency investigation from 2019 is captioned (IA 2019-0037). Based on this 2019 investigation, on January 14, 2020, the Chief of Police for YPD sustained a policy violation captioned Dissemination of Information. Specifically- “personnel shall treat the official business of the Police Department as confidential. Information regarding official business shall be disseminated only to those for whom it is intended.” The end result was that Respondent was suspended for eighty (80) hours. Upon completion, Respondent returned to work in patrol.

6. What led to the 80 hour suspension is as follows. On October 25, 2019, Respondent responded to a traffic stop where off duty YPD Officer Goodrich had been stopped for a criminal traffic violation. Officer Prieto, who conducted the stop, thought Officer Goodrich might be impaired so he called for a supervisor, Sergeant Auricchio. Officer Prieto’s police vehicle, was equipped with a digital video dash cam camera system. Referred to as the “Panasonic Arbitrator” system, it is used, by the police, to collect evidence.

7. Sergeant Auricchio conducted a DUI investigation but did not arrest Officer Goodrich for DUI. Instead, the Sergeant issued Officer Goodrich a misdemeanor criminal traffic citation for reckless driving in violation of ARS § 28-693(A). Sergeant Auricchio prepared a police report 2019-00067570 and instructed the officers who were on scene, at the traffic stop, to write a supplemental report. This included Respondent.

8. Officer Goodrich was already on administrative leave prior to the traffic stop over an unrelated matter. However, the October 25, 2019 traffic stop resulted in a second professional standards investigation involving Officer Goodrich.

9. Over the next several days, from October 25, 2019 to October 28, 2019, Respondent accessed the Department’s Panasonic Arbitrator system to view the dash cam video from Officer Prieto’s vehicle. Respondent also read the police report 2019-00067570. Respondent then shared confidential information from his review of these records with Officer Goodrich. Respondent and Officer Goodrich were personal friends.

Meanwhile, Respondent wrote a two page supplement in which he did not document if he field tested Officer Goodrich’s breath, and he did not document what odors he smelled, if any.

The 2019 investigation also investigated the supplemental report prepared by Respondent.

Ultimately, the report concluded as to that issue, “[t]his investigation failed to prove or disprove that [Respondent] knowingly and/or intentionally falsified information about his observations of GOODRICH in his case supplement.”

The 2021 investigation was conducted by Daniel Simpson, who was the Professional Standards Manager for YPD at that time.

Mr. Simpson’s investigation concluded that Respondent, was untruthful during his interviews with the 2019 investigation as well as during a conversation with Lieutenant Legros on May 19, 2021. Mr. Simpson found specifically:

Given the sustained truthfulness allegation above, the preponderance of the evidence supports the allegation: [Respondent] intentionally failed to include observational evidence in his supplemental report...which was potentially detrimental to the criminal case and administrative investigation against the suspect, [G], who was [Respondent’s] coworker and friend. Therefore, the allegation regarding Falsification of Records against [Respondent] is SUSTAINED.

On or about October 15, 2021, POST sent a letter to Respondent informing him that a POST case would be opened.

On or about May 17, 2023, POST issued a Complaint to Respondent.

Respondent requested an administrative hearing on POST’s decision. POST referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing.

On March 26, 2024, POST issued a Notice of Hearing. The Notice of Hearing charged Respondent with violating A.A.C. R13-4-109(A)(8), and (12) by committing the following alleged misconduct:

On or about October 25, 2019, Officer Norzagaray intentionally failed to include observational evidence in a written supplement report (19-67570). The observational evidence was material to the criminal traffic investigation of the suspect driver, who was his friend and fellow officer.

Between October 25, 2019 – October 28, 2019, Officer Norzagaray provided information concerning an active criminal case via text message and telephone call to the suspect, who was a City of Yuma Police Officer and friend of Norzagaray.

At hearing, POST presented the testimony of Sergeant Buitrago and Mr. Simpson.

Sergeant Buitrago testified as to the details in his report, as well as serving as Respondent’s trainer in the police academy for the Impaired Driver training.

As to the training, Sergeant Buitrago testified that Respondent went through 16 hours of training, and specifically trained on how to spot and observe suspected drunk drivers. Sergeant Buitrago testified that officers should observe for not only the smell of alcohol but the smell of “cover up” odors like mints or chewing gum.

Sergeant Buitrago also testified as to his investigation into Respondent. He testified that there was a tip from Officer Cerecedo that Respondent told him he had Officer Goodrich blow in his face and that he believed that Respondent said he smelled alcohol. This was again repeated in an interview with Officer Cerecedo.

Sergeant Buitrago also testified that Respondent told him that Officer Goodrich blew in his face, and that he smelled mints. Sergeant Buitrago stated that Respondent should have included this in his supplemental report as per his training but that DUI’s are highly litigious.

Sergeant Buitrago testified further, that he believed that Respondent’s friendship with Officer Goodrich clouded Respondent’s judgment as to whether put the information into his supplemental report.

POST also offered the testimony of Mr. Simpson. Mr. Simpson testified that he was a part of the initial investigation in 2019, during Respondent’s interview.

Mr. Simpson testified that Lieutenant Legros contacted him after a conversation Lieutenant Legros had with Respondent wherein Respondent stated he could not smell the odor of alcohol or marijuana. He commenced an investigation once he heard that Respondent was applying for a vacant DUI Officer position at YPD, as he recalled the interview from 2019 about the smells from the traffic stop.

In addition, Mr. Simpson testified that during his investigation, he reviewed all of the documents and interviews from 2019 and interviewed Respondent again. Mr. Simpson also reviewed Respondent’s reports from his DUI cases, as he believed that Respondent was either untruthful in the reports, or untruthful in his conversation with Lieutenant Legros.

Mr. Simpson testified that he did not re-interview any of the other officers on the scene from the traffic stop.

Finally, Mr. Simpson testified that he believed that Respondent was untruthful during the 2019 investigations/interviews and during his conversation with Lieutenant Legros. Also, Mr. Simpson testified that he believed that Respondent intentionally failed to include the observational evidence in the supplemental report.

Respondent testified that he agreed that his supplemental report from the 2019 stop did not include any information about Officer Goodrich blowing in his face and what he smelled or did not smell at that time. Respondent also agreed with the investigator that his report was poorly written, and that he should have documented everything.

Respondent also testified that he went to an ENT doctor who diagnosed him with a diminished level of smelling. He also testified that generally, the higher level of Blood Alcohol Content a suspect had the easier it would be for him to smell.

CONCLUSIONS OF LAW

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

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), 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 discipline an officer’s certification under A.A.C. R13-4-109(A)(8), or (12) if it determines that he has committed acts that constitute any of the following:

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

As to the allegation that Respondent provided case information to Officer Goodrich, the parties stipulated that the actions by Respondent constituted grounds to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8), and (12).

As to the allegation that Respondent intentionally failed to include observational evidence in his written supplement report. The tribunal finds that Respondent committed nonfeasance by failing to act when a duty to act existed. It is immaterial whether or not Respondent requested Officer Goodrich to “blow in his face”, and what he smelled, be it alcohol, mints or cologne. The fact remains that any observation should have been in the report, and it was not. Respondent too admitted he could have written a better report, yet he failed to do so. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8).

Thus, Respondent’s actions resulting from the traffic stop jeopardized public trust in the law enforcement profession. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8) and (12).

-54864001

001

-137160-45720000Done this day, July 24, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Matt Giordano, Director

Peace Officers Standards and Training

Mark Brachtl

[email redacted]

Thomas Griffin

[email redacted]

By: OAH Staff