ALJDEC decisions subject to certification as final

2023-082-POST · Peace Officers Standards and Training · 2024-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Ismael A. Verdugo

Applicant

No. 2023-082-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 26, 2024

APPEARANCES: Police Recruit Ismael Verdugo (Applicant) appeared on his own behalf. The Arizona Peace Officers Standards and Training Board (POST) was represented by Assistant Attorney General Joseph Dylo.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: POST Exhibits 1- 6 were admitted. Applicant’s exhibits 1, 2, 3, 6, 11, 15, 16, and Surveillance Recordings 2, 3, and 4 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

On March 20, 2023, Applicant started the Gilbert Police Regional Academy (Academy).

Officer Danielle Covey was employed as a Recruit Training Officer (RTO) at the Academy at all relevant times.

On April 25, 2023, Academy staff, to include RTO Covey, RTO Sean Johnson, RTO Thomas Sliwinski, RTO Phillip Alva, and Academy Sergeant Timothy Brown, conducted vehicle compliance checks on vehicles parked on Academy grounds and noted Applicant’s vehicle displayed a temporary registration plate expiring that day.

Academy staff decided they would check registration again in the following days to confirm that Applicant updated his registration and was displaying a current plate.

On April 27, 2023 Academy staff stopped Applicant in his personally owned vehicle, prior to leaving Academy grounds. RTO Covey checked the back of the vehicle and observed Applicant was still displaying the (now expired) temporary tags.

RTO Covey asked Applicant to meet her at the back of the vehicle where she asked Applicant about the expired registration. Applicant immediately responded that the registration was not expired.

RTO Covey pointed to the expiration date on the temporary plate, and Applicant advised his registration was up to date, but that he just had not updated his plate/tags yet.

RTO Covey asked Applicant when he received his updated registration, and Applicant replied, “I just got it.”

RTO Johnson walked over and spoke with Applicant, explaining he (RTO Johnson) had purchased many vehicles in the past and had never received the plates on the exact day his 45-day temporary registration was set to expire. RTO Johnson asked Applicant to be honest, and Applicant admitted he had his new permanent Arizona license plate, but had not yet put the actual license plate on his vehicle because he was “overwhelmed.”

RTO Covey asked Applicant where the updated plate and registration were, and Applicant stated they were inside his vehicle.

RTO Covey asked Applicant to show her the license plate and the printed registration form. After being provided these items, RTO Covey noted the registration form had a print date/time of “03/23/2023 12:03.”

RTO Covey asked Applicant what his excuse was, now knowing he had been in possession of the new registration and plate for approximately one entire month prior to their conversation. Applicant then informed RTO Covey he had ordered a custom license plate cover and it had not yet been delivered. He was waiting to change his plate/tags until it came.

Applicant’s agency was subsequently informed of his infraction.

On April 27, 2023, at approximately 1839 hours, Applicant spoke with his Gila River Police Department (GRPD) liaison Officer Bryant and stated that he had “[f]ucked up and was sure Officer Bryant would find out from the Academy staff.”

Applicant told Officer Bryant that he “forgot” about his license plate in his glove box. This statement contradicted the information Applicant had previously provided to Academy staff.

On May 8, 2023, Applicant was dismissed from the Academy due to two integrity violations. Applicant was presented with Non-Graduate Separation paperwork and failed to add any “Recruit Comments” disputing the allegations.

On May 8, 2023, Applicant was terminated from the GRPD.

On May 9, 2023, POST received a termination report from the GRPD with an effective date of May 8, 2023, regarding Applicant, which indicated that the agency was aware of conduct that may violate POST rules.

On October 18, 2023, based on the information received, POST issued a denial of an application for certification as a peace officer.

Applicant appealed the denial.

On November 16, 2023, POST issued a Notice of Hearing. The Notice of Hearing charged Applicant with violating Arizona Administrative Code (Ariz. Admin. Code) R13-4-109(A)(12).

On March 26, 2024, 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.

Hearing Evidence

Applicant testified on his own behalf.

Applicant testified that everything RTO Covey wrote was a lie and that nothing she said was truthful. Applicant further testified that he felt that he was purposefully isolated, singled out, and that the entire event and his removal was pre-planned and pre-determined.

Applicant further testified that when he was confronted, RTO Covey did so with incoherent screaming and yelling.

Applicant testified that, when he was presented with the separation document on May 8, 2023, he was told that he was being dismissed due to “these violations,” and did not state anything specific. He further stated that he was shown the document and advised that if he wanted to contest any facts regarding the vehicle issue, he could place that information in the document. Otherwise, he was free to go. Applicant further testified that when he was presented with the separation paperwork, he felt he was not given any time to add his rebuttal comments to the document.

Applicant testified he was never interviewed by the Academy or by GRPD and he was never asked to give a statement by Michelle Blanco. He claimed that he was never asked to do any of these things because his removal was all pre-planned and “they didn’t need it.”

Applicant testified that, during the April 27, 2023 incident, he had a passenger in his vehicle as he had carpooled that day. The passenger was asked to stay inside the vehicle while the Academy staff engaged him.

Applicant also testified that it was a one on one conversation between him and RTO Covey and that it was his word versus her word.

Applicant never addressed what actually happened that day during his testimony, other than to say that everything RTO Covey stated was a lie.

Applicant’s testimony consisted mostly of speculative arguments as to his theory that his removal was pre-planned and that he was targeted.

RTO Covey testified on behalf of POST and testified consistently with the preceding Findings of Facts and consistently with her report.

Michelle Blanco, POST Compliance Officer, testified on behalf of POST. Ms. Blanco testified that she became aware of Applicant through a termination report. The termination report indicated potential misconduct. As a result of receiving this report, Ms. Blanco started her investigation. Ms. Blanco testified that Gila River Police Department provided her with case relevant documents that she reviewed. She testified that she also conducted interviews. One of the people Ms. Blanco spoke to was Sergeant Brown. Ms. Blanco testified that Sergeant Brown stated that he placed his comments in the Non-Graduate Separation Report and presented the report to Applicant to allow him to read it and provided Applicant with ample time to provide a statement in the “Recruit Comments” section if he wanted to. Applicant declined.

Ms. Blanco testified that she also spoke with Applicant during the investigation and Applicant advised her that he was just going to have to “own up” to the incidents and hope for a temporary denial. Ms. Blanco testified that Applicant never told her anything else regarding the incident.

Ms. Blanco testified that, based on her analysis, she concluded that there was a potential violation of POST rules for dishonesty, specifically by misleading the known facts when Applicant was asked a direct question. Ms. Blanco concluded that the statements that Applicant provided to Academy staff were different than what was provided to Officer Bryant; therefore, the conclusion was that Applicant was dishonest with one or the other.

Ms. Blanco then prepared a charging order for presentation to POST and presented it to the Board on October 18, 2023. The Board voted to deny Applicant’s application.

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.

Applicant bears the burden to demonstrate that Applicant meets the minimum qualifications for appointment set forth in Ariz. Admin. Code R13-4-105.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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.”

Under Ariz. Admin. Code 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. POST may deny an applicant certification under Ariz. Admin. Code R13-4-109(A)(12) if it determines that he has committed acts that constitute any of the following:

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

The public expects police officers to be honest. Taken together, Applicant’s inconsistent statements established that Applicant engaged in “conduct or pattern of conduct that tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.”

The preponderance of the evidence established that Applicant provided false information to Academy staff, changing his explanation three times during questioning, as well as providing conflicting testimony to Officer Bryant. This constitutes cause under Ariz. Admin. Code R13-4-109(A)(2) for POST to deny Applicant certification.

-54864001

001

-137160-45720000Done this day, April 15, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Matt Giordano, Director

Peace Officers Standards and Training

Ismael A. Verdugo

37730 W. Olivo Street

Maricopa, AZ 85138

[email redacted]

Joseph E. Dylo

Assistant Attorney General - SGD/LES

2005 N. Central Avenue

Phoenix, AZ 85004

[email redacted]

By: OAH Staff