ALJDEC decisions subject to certification as final

2021-170-POST · Peace Officers Standards and Training · 2022-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Nijac Subasic

Applicant

No. 2021-170-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2022

APPEARANCES: Applicant Nijac Subasic appeared on his own behalf. The Peace Officer Standards and Training Board was represented by Assistant Attorney General Mark Brachtl.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about September 1, 2021, Police Recruit Nijac Subasic (Applicant) was participating in a pre-academy ride-along with Avondale Officer Derrick Montgomery.

At approximately 1150 hours, while Officer Montgomery was engaged in apprehending a possible suspect, Officer E. Toxqui observed Applicant leaning out of the open patrol car window and holding his phone in a manner that led Officer Toxqui to believe Applicant was recording the incident. Officer Toxqui informed Avondale Sergeant Brian Heuseveldt of his observations.

At approximately 1240 hours on September 1, 2021, Sergeant Heuseveldt asked Applicant if he had recorded any part of the criminal incident with his cellphone. Applicant replied “no” and stated he was “just texting” his wife.

Between 1541 hours and 1600 hours on September 1, 2021, Applicant informed Officer Montgomery he wanted to tell him something that was bothering him. He proceeded to tell Officer Montgomery he had not recorded anything on scene, however he had taken a couple photographs. Applicant stated he was excited about the job and wanted to show the pictures to his wife. Applicant told Officer Montgomery he panicked and answered no when Sergeant Heuseveldt asked if he had recorded anything on scene. Applicant asked to speak with Sergeant Heuseveldt.

Officer Montgomery contacted Sergeant Heuseveldt and informed him Applicant wanted to speak with him. Officer Montgomery drove Applicant to meet with Sergeant Heuseveldt.

Applicant apologized to Sergeant Heuseveldt for not being forthcoming when asked if he had recorded any part of the scene earlier in the shift. He told Sergeant Heuseveldt he had not taken any video, but had taken photos and texted them to his wife because he was excited about the job. Applicant told Sergeant Heuseveldt that he immediately felt guilty for not fully disclosing what he had been doing on his phone when Sergeant Heuseveldt asked him about recording.

Applicant was asked to meet with Human Resources when he arrived for work on September 2, 2021. When given the choice of resigning or being terminated, Applicant resigned.

On or about September 7, 2021, the Peace Officer Standards and Training Board (POST or Board) received a termination report regarding Applicant from the Avondale Police Department with an effective date of September 22, 2021. The report indicated that the agency was aware of conduct that may have violated POST rules. Board staff reviewed the case.

Based on the information received, POST issued a denial of an application for certification as a peace officer.

Applicant appealed the denial.

After issuance of the denial, Applicant spoke freely to Darcy Nichols, Compliance Specialist, regarding the incident. Applicant stated he was excited about the job and took a photo while he was on scene at a burglary call and then texted it to his wife. Applicant indicated he was “shocked” when Sergeant Heuseveldt asked if he had recorded the scene and answered that he had not. Throughout the conversation of Ms. Nichols, Applicant maintained that he had not made a recording while on scene as he had been asked, but had only taken a photo. Applicant again expressed that he felt guilty about his answer to Sergeant Heuseveldt’s question, so he initiated contact with Sergeant Heuseveldt 30 minutes after answering his initial question although he could have remained silent on the topic. Applicant stated the only reason he waited as long as he did was because he and Officer Montgomery had to transport the suspect to the hospital and Sergeant Heuseveldt left the scene.

On February 28, 2022, POST issued a Notice of Hearing. The Notice of Hearing charged Applicant with violations A.A.C. R13-4-109(A)(8) and (12).

On March 25, 2022, a hearing was held at the Office of Administrative Hearings on the issue of whether cause existed for POST to deny Applicant peace officer certification.

Applicant testified that he did not make any false statements to Sergeant Heuseveldt. He was asked if he made a recording of the incident, and he did not make a video recording. Applicant asserted that he only clarified his answer to Sergeant Heuseveldt later because he wanted to be fully transparent in his response. Applicant stated that he “could have kept quiet, but [his] morals are so high” that he felt the need to explain further. Applicant denied having been instructed on Avondale Police Department policy regarding photography or recording of incidents prior to the September 1, 2021 ride along. Applicant argued that he understood his taking of the photographs was protected by the First Amendment.

Sergeant Heuseveldt testified that he wished he had asked Applicant the question differently and made clear that, even if Applicant had made a videorecording of the incident, he would not have been in trouble. Rather, Sergeant Heuseveldt needed to know if there was potential evidence on Applicant’s phone that needed to be preserved. When asked if he believed Applicant gave an honest answer to his question, Sergeant Heuseveldt stated that he asked Applicant about a recording and Applicant took photos, so he considered Applicant’s answer to be a “half-truth” and a “half-truth is still a lie.”

Sergeant David Jones testified that he was in charge of the pre-academy training program with Avondale Police Department. Sergeant Jones acknowledged that Applicant had not had any instruction regarding ethics or the Code of Conduct prior to the incident at issue. Sergeant Jones stated he believed Applicant’s answer to be dishonest because one should not have to pull information from an officer. Sergeant Jones posited that Applicant should have responded that he did not record the incident, but he took photos that he sent to his wife. Sergeant Jones concluded that omitting information is dishonest.

Darcy Nichols testified that there are many ways to “record” an incident, by videos, photos, or in writing. Ms. Nichols stated she believed Applicant’s answer to Sergeant Heuseveldt’s question was dishonest in that he did “record” the event even though he did not make a video recording of it. Ms. Nichols also asserted that Applicant knew he was dishonest in that he felt guilty about his answer and wanted to clarify his answer to Sergeant Heuseveldt later that day.

CONCLUSIONS OF LAW

Applicant bears the burden of proof and must establish that he is qualified to receive peace officer’s certification by a preponderance of the evidence. See A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1201 (6th ed. 1990).

A.A.C. R13-4-109(A) allows POST to deny certified status for the following causes:

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.

Malfeasance is defined as “[a] wrongful or illegal act.” Misfeasance is defined as “[a] lawful act performed in a wrongful manner.” Nonfeasance is defined as “[t]he failure to act when a duty to act existed.”

The uncontroverted evidence established that Applicant could have been more clear with his answer to Sergeant Heuseveldt’s question regarding whether he had recorded the incident.

Applicant was immediately aware that he had not fully answered Sergeant Heuseveldt’s question, which prompted him to come forward later in the day to clarify his answer.

Therefore, the preponderance of the evidence established that Applicant provided false information to an Avondale Police Sergeant while completing a pre-academy ride along.

The public expects police officers to be honest. Applicant’s failure to fully answer Sergeant Heuseveldt’s question established that Applicant committed misfeasance and engaged in “conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.” This constitutes cause under A.A.C. R13-4-109(A)(8) and (12) for POST to deny Applicant’s application for certification.

It is noted the mitigating circumstances present in this matter. Namely that Applicant had not received any instruction regarding ethics, the Code of Conduct, or the Avondale Police Department policies regarding evidence or recording and photographing incidents prior to the incident at issue.

It is also noteworthy that Applicant came forward within hours to further clarify his answer to Sergeant Heuseveldt’s question and that, had he not done so, no one would have questioned him further regarding his actions.

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-137160-45720000Done this day, April 14, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Matt Giordano, Director

Peace Officers Standards and Training

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-137160-45720000By Miranda Alvarez

Legal Secretary