ALJDEC decisions subject to certification as final -AMENDED

2022-146-POST · Peace Officers Standards and Training · 2024-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding

the Peace Officer Certification of:

Tomas J. Montoya,

Respondent.

No. 2022-146-POST

AMENDED ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 10, 2024

APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Mark Brachtl. Respondent Tomas J. Montoya was represented by Steven J. Serbalik.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Exhibits 1 – 7 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On May 15, 2022 Deputy Montoya was involved in a domestic violence argument with his then-wife Cabrini Montoya while off duty at their residence.

2. During the incident, Deputy Montoya threw a plate of food down on the table, causing the contents of the plate to spill onto the table and floor.

3. Deputy Montoya also pushed over a chair, causing it to fall to the ground. This conduct constituted domestic violence disorderly conduct.

4. As Deputy Montoya continued to argue with Cabrini in the kitchen, their interaction escalated. While they were face to face, Deputy Montoya reached out with both hands and grabbed Cabrini on either side of her neck. While doing so, he shoved her backwards and into a kitchen countertop. Cabrini left the residence, and reported to a witness, and responding law enforcement officers, that Deputy Montoya "choked" her.

5. Deputy Montoya denied "choking" Cabrini both during the criminal and internal investigation, but rather stated that he grabbed her on either side of her neck with his thumbs extended up. Deputy Montoya stated that he did not intend to injure Cabrini, and he stated that he did not impede her airway.

6. Cabrini told responding deputies that she was injured. Responding deputies checked for physical injuries and observed red marks on her neck. Cabrini, however, did not request or receive medical treatment. Additionally, no follow up investigation was conducted to determine the extent of Cabrini's allegation that she was "choked."

7. Deputy Montoya was charged with misdemeanor domestic violence/assault and domestic violence/disorderly conduct.

8. Days later, Cabrini contacted the police investigators and reported “I want to retract my statement, everything was taken out of context.”

9. An internal investigation was conducted, and misconduct allegations involving domestic violence assault were sustained. Deputy Montoya was issued and served a 160 hour suspension. At the time the internal investigation was concluded, the prosecution in the criminal investigation was still proceeding.

10. The criminal investigation resulted in Deputy Montoya accepting diversion for misdemeanor/domestic violence assault and domestic violence/disorderly conduct. Deputy Montoya completed diversion early, and the criminal charges were subsequently dismissed with prejudice.

11. Deputy Montoya's agency did not report this conduct to AZPOST, as they decided to handle the matter by internal discipline, short of termination, and no rule requires that the agency make notification to AZPOST.

12. Prior to the hearing on September 10, 2024, the parties stipulated to the above, and at hearing, Deputy Montoya testified on his own behalf as well as offering the testimony of three character witnesses for the purposes of mitigation.

13. Chief Deputy Mark Crandell testified that he initially met Deputy Montoya as he came out of the police academy and started working at the Greenlee County Sheriff’s Office. Chief Deputy Crandell testified that prior to the incident, Deputy Montoya’s status was beginning to rise in the Office and began to take on leadership roles. Also, Chief Deputy Crandell testified that after the incident, Deputy Montoya took responsibility and that since, Deputy Montoya has become an asset to the Office, and if suspended further, it would hurt the Office and leave it shorthanded. Finally, Chief Deputy Crandell testified that there have been no other incidents from Deputy Montoya and that Deputy Montoya was an outstanding person, cop and father.

14. Eric Ellison worked at the Greenlee County Attorney’s Office and initially met Deputy Montoya when he came out of the academy. Mr. Ellison was in charge of overseeing Deputy Montoya’s diversion program. Mr. Ellison testified that when he met Deputy Montoya for the program, he told Deputy Montoya to pick one counseling session from three choices, but Deputy Montoya chose all three and successfully completed the same. He also paid all fines and successfully completed the program. Mr. Ellison testified that because the community was so small, it was initially upset with the actions of Deputy Montoya, however, it has come to forgive him and that Deputy Montoya is the top of the community.

15. Greenlee County Sherriff Tim Sumner testified that Deputy Montoya was a good employee always willing to help out. Sherriff Sumner testified that he chose to retain and suspend Deputy Montoya rather than fire him because he took responsibility for his action, sought out counseling, stopped drinking, and was very apologetic and even apologized to him in person. Sherriff Sumner believed that this was a “one-off” incident and that Deputy Montoya had learned and grown from the incident, and undertook leadership roles in teaching fellow employees and as well in community trainings.

16. Deputy Montoya testified that he had been a firearms instructor since 2020 as well as a rifle instructor and active shooter instructor. Deputy Montoya testified that it was a lot of fun to interact with the community. As to the incident, Deputy Montoya testified that his actions were out of the norm and was something that should not have happened. Further, Deputy Montoya testified that he had sought additional counseling with anger management, alcohol, parenting and how to interact with his spouse. He also added that he speaks with a “coach” for law enforcement officers to help him on an as needed basis. Deputy Montoya also testified that he has not let this incident and pending action stop him from advancing in his career as he had taken on additional roles at the Office.

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)(7), or (12) if it determines that he has committed acts that constitute any of the following:

7. Committing 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 to the allegation that Respondent provided case information to Deputy Montoya, 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)(7), and (12).

/ / /

However, based upon the testimony provided as well as the letters in Exhibit 7, the tribunal recommends that no further discipline be ordered against Deputy Montoya, as he had already served a significant suspension, and has proven himself to be a valuable asset to the Greenlee County Sheriff’s Office but the Greenlee County community as well.

-54864001

001

-137160-45720000Done this day, September 25, 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]

Steven J. Serbalik

[email redacted]

By: OAH Staff