ALJDEC decisions subject to certification as final

22F-001-ADM · Department of Administration · 2026-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Reginald Givens,

Appellant,

Arizona Department of Administration,

Respondent.

No. 22F-001-ADM-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2026 at 9:00 AM.

APPEARANCES: Monique Wilhoit, Esq. appeared on behalf of Reginald Givens (“Appellant”). Assistant Attorneys General Pamela Sullivan, Esq. and Lena Kalkbrenner, Esq. appeared on behalf of the Arizona Department of Administration (“Department” and “Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: All evidence previously admitted June 19, 2023, remains a part of this hearing record. Additionally, Department Exhibits A-H, Appellant Exhibits 1-3, the Under Advisement Ruling in LC2023-000342-001 DT dated July 07, 2025, and January 15, 2026, Order Granting Reopening & Setting Oral Argument were added to the evidentiary record in this matter.

_____________________________________________________________________

After review of the reopened hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Department.

FINDINGS OF FACT

Background and Procedure

On April 27, 2022, the Arizona Department of Administration (“Department”) referred the above-captioned matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 22, 2022, to determine whether grounds existed for the Department to deny Appellant’s Retiree Accumulated Sick Leave (“RASL”) program application pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) § 38-615 et. seq.

On July 05, 2023, the undersigned issued an Administrative Law Judge Decision (“Decision”) recommending the denial of Appellant’s RASL program application and dismissal of appeal. Correspondence was not returned as undeliverable to either party.

On August 29, 2023, after no action was taken by the Director of the Department to accept, reject or modify the Decision, OAH certified the Decision as the Final Administrative Decision of the Department pursuant to Ariz. Rev. Stat. § 41-1092.08(D). Correspondence was not returned as undeliverable to either party.

On September 29, 2023, Appellant appealed the Final Administrative Decision to Maricopa County Superior Court pursuant to Ariz. Rev. Stat. § 12-904.

On July 15, 2025, in LC2023-000342-001, acting under authority granted in Ariz. Const. art. VI § 16 and Ariz. Rev. Stat. §§ 12-124 and 12-905(A), Hon. Joseph Mikitish reversed the Final Administrative Decision on the basis of equitable estoppel, holding that Appellant’s RASL application should be considered as if his retirement were timely submitted. The matter, deemed final pursuant to Arizona Rules of Civil Procedure (“Ariz. R. Civ. P.”) 54(c), was remanded to the Department “for further proceedings, as necessary.” The order further advised that it was “a final order pursuant to J.R.A.D. 13 and Ariz. R. Civ. P. 54(c).”

On October 02, 2025, the Department reprocessed Appellant’s RASL application and issued a $20,687.42 benefit payment to him in accordance with the Under Advisement Ruling.

On October 30, 2025, Appellant submitted a Request for Reconsideration to the Department regarding the amount of his RASL payment. Specifically, Appellant appealed the denial of his request for “eligible legal fees” per Ariz. Rev. Stat. § 41-1007, and argued that his legal costs exceeded that of his benefit by approximately $8,000.00.

On November 13, 2025, Appellant submitted a Request for Reopening to adjudicate the limited issue of attorney’s fees pursuant to Ariz. Rev. Stat. § 41-1007.

On November 14, 2025, the Department submitted an objection to Appellant’s reopening request, arguing that Appellant submitted his request untimely; one hundred and twenty-nine (129) days after Judge Mikitish’s order was issued on July 15, 2025, in violation of Ariz. Rev. Stat. § 41-4007(C) [sic] which required an applicant to apply for an award of fees within thirty (30) days of a final decision or order.

On December 06, 2025, Appellant submitted a Request for Oral Argument and opined that Judge Mikitish’s order could not be the “final decision or order” because it was set aside.

On December 30, 2025, the Tribunal issued an Order granting Appellant’s Request for Reopening and added the Final Administrative Decision in LC2023-000342-001, issued by Hon. Joseph Mikitish July 15, 2025, to this administrative record. The Tribunal further required Appellant to submit an amended demand in compliance with Ariz. Rev. Stat. § 41-1007(C)(1-3) by January 14, 2026.

On January 14, 2026, Appellant submitted an Amended Demand and Application for Attorney’s Fees, a Declaration of Counsel in Support of [Appellant’s] Application for Attorney’s Fees, and an itemized time sheet from Appellant’s counsel.

On January 15, 2026, the Tribunal issued an Order Granting Reopening & Setting Oral Argument that scheduled oral arguments for 9:00 a.m. on February 23, 2026, to address the issues of an award of attorney’s fees per Ariz. Rev. Stat. § 41-1007(C), and whether OAH has the jurisdiction to make such a finding and/or issue such an award.

Pertinent Facts

Appellant was employed by the Department for over 12 years. On May 05, 2021, Appellant was terminated from employment. At that time Appellant’s sick leave balance was 984.10 hours.

When he was separated from employment Appellant was provided an Employee Separation Sheet (“Separation Sheet”) that contained information for employees separating from state service, including an explanation of the RASL benefit. The Separation Sheet advised that “an employee with accrued sick leave between 500 and 1500hrs may be eligible to receive the payment based upon a percentage of their current salary.” The Separation Sheet further advised that a RASL application “must be submitted within 180 days of retirement,” but did not provide notice that in order to receive the RASL benefit an employee also needed to “establish a retirement date not later than 31 days after termination of employment by qualifying with an authorized retirement system or plan of the state” per statute

On July 27, 2021, Appellant applied for medical benefits with Department. Appellant’s retirement plan benefits were initially denied because he did not apply within 31 days of separation of service. Appellant appealed the decision, arguing that he was not given complete and accurate notice of the requirements to obtain his full benefits with Department. The Department approved the appeal and backdated Appellant’s effective retirement date for medical benefits to May 15, 2021, whereby he began to receive retirement benefits.

On or about August 18, 2021, Appellant applied to revise his spouse’s insurance coverage. The request was initially denied because the change was requested more than thirty (30) days after the effective date of retirement. Appellant appealed the decision on the basis that he was not informed about the requirements to qualify for benefits and that his retirement date had been revised to May 15, 2021. The Department granted the appeal.

Appellant’s July 27, 2021, RASL benefit application was denied by the Department.

On October 28, 2021, Appellant submitted a request for reconsideration.

On December 10, 2021, the Department denied Appellant’s request for reconsideration and upheld its initial RASL program ineligibility determination.

On December 17, 2021, Appellant submitted a State Fair Hearing.

Hearing Evidence

At the June 19, 2023, hearing, Tracy Smith of the Department’s Office of General Accounting testified that there have been instances in which an employee did not comply with the “180-day requirement” because the RASL application was not timely received through no fault of the employee, and the RASL benefit was approved nonetheless.

Under Advisement Ruling

In LC2023-000342-001 Hon. Mikitish held as follows:

Although the statements on the Separation Sheet were factually accurate, they omitted key information relevant to employees terminated from state employment. Pointedly, the Separation Sheet refers to timelines from the date of “retirement,” but does not explain the timelines from the date of “termination.” While it is true that termination is not synonymous with retirement, that distinction may be lost on persons leaving state employment, especially in circumstances where termination is sudden and unexpected. Because the timelines for individuals to apply for benefits such as RASL may have significant financial consequences on those separating from state employment, it is even more important that state agencies provide both accurate and complete information.

In failing to provide accurate and complete information to Appellant at the time of his termination from employment, the Department repudiated its obligation to “[disseminate] the information regarding the policies and procedures governing this Program to its employees.”

Appellant relied on the Department’s representations reasonably and in good faith. Although the Separation Sheet stated that Appellant could reach out to the Arizona State Retirement System for more information, that notice would not cause a reasonably prudent separated employee to understand their need for more information. The misunderstanding of the requirements easily could have been prevented by the Department adding a simple statement providing notice to an impacted employee that they “must retire within 31 days after termination of state employment to be eligible for RASL benefits.” Adding language in the standard Separation Sheet to ensure that all employees have clarity as to the requirements would also cure any further impacts on future state budgets.

Oral Arguments

Appellant

Counsel for Appellant noted that she sought a reasonably calculated award of $49,948.00 in attorney’s fees, together with $420.00 in recoverable costs, pursuant to Ariz. Rev. Stat. § 41-1007, because Appellant prevailed “on the most significant issue” between the parties, and opined that the Department’s position was not “substantially justified.”

Per Counsel, Appellant faithfully served the State of Arizona for over twelve years as Deputy Director of the Arizona Department of Housing, and that his termination from employment occurred with only two hours’ notice as part of a political reorganization. Counsel opined that because the Department did not appeal the Under Advisement Ruling it acquiesced to all of Hon. Mikitish’s findings, and that an award of attorney’s fees was needed to make Appellant whole.

Counsel argued that a position resting on selective enforcement and incomplete agency guidance could not be substantially justified within the meaning of Ariz. Rev. Stat. § 41-1007(A)(1); particularly where judicial intervention to correct their mistake had been required.

Counsel noted that although the above-captioned matter spanned nearly four (4) years, from May 2022 to date, that she only expended approximately three (3) hours per month at a rate of $400.00 per hour in legal representation – exercising “efficient and proportionate litigation of a complex administrative and appellate matter.” Counsel also noted that her original agreement with Appellant, wherein the $11,400.00 he paid Counsel would be credited against the total fee award, did not exceed Appellant’s contractual exposure and fully complied with Ariz. Rev. Stat. § 41-1007(D).

In defense of her hourly rate, Counsel proffered that she is an attorney licensed to practice law in the State of Arizona and the owner of Branscomb Wilhite – the law firm representing Appellant throughout these proceedings, with thirty (30) years of experience in criminal, civil, and appellate matters. Prior to opening her practice Counsel previously served the State of Arizona as a Maricopa County Attorney, a Maricopa County Legal Defender, and a Federal Criminal Justice Act Panel attorney.

To support the totality of her award request, Counsel avowed that she spent approximately 124.87 intermittent hours working on this case on behalf of Appellant.

Department

Department argued, overall, that OAH lacked jurisdiction to address the issue of attorney’s fees in this matter as the related Under Advisement Ruling resulted in a final decision that the Department had no authority to accept, reject, or modify under Ariz. Rev. Stat. § 41-1092.08, and that the only available option was for either party to appeal the decision to the Court of Appeals or for Appellant to timely seek an award of attorney’s fees from Superior Court. The Department also argues that the Tribunal lacks jurisdiction because the matter is not “before” it. Specifically, the Department opines that Ariz. Rev. Stat. § 41-1007(C) only authorizes OAH to award attorney’s fees for administrative proceedings and that Appellant could have properly sought them in Superior Court per Ariz. Rev. Stat. § 41-1007(E). To that end, the Department demurred that any such attorney’s fees that could be awarded by the Tribunal were confined to expenses incurred by representation occurring between May 2022 through August 29, 2023.

The Department also argued that Appellant’s petition for attorney’s fees is untimely. Specifically, the Department opined that Appellant had thirty (30) days from August 29, 2023, the date of certification, to submit its request by September 28, 2023, in violation of Ariz. Rev. Stat. § 41-1007(C).

The Department also argued that Appellant was not the “prevailing party” on appeal because it had not been established that (a) the Department’s position was not substantially justified, and (b) that Appellant received rulings in his favor on the most significant issue(s) – as evidenced by Hon. Mikitish’s finding that Appellant’s “...claim that he established a retirement plan within thirty-one (31) days was not supported by the record,” and because His Honor did not opine or allege that the Department and/or Decision were arbitrary, capricious, contrary to law, or otherwise abused their respective discretions.

The Department also argued that Counsel’s fee scheme was unreasonable. Specifically, the Department noted that per Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188, (Ct. App. 1983), a fee agreement stipulating an amount of fees to be paid was only binding to the extent that they are reasonable. Per the Department, Ariz. Rev. Stat. § 41-1007(D) requires that the Tribunal limit any award by not exceeding the amount paid or agreed to be paid. Thusly, the Department opined that Counsel cannot recover for time spent preparing or otherwise litigating unsuccessful claims. In this matter, Appellant argued five (5) separate and distinct claims but only succeeded on one (1). Accordingly, Counsel should not be awarded fees for unsuccessfully litigated claims.

The Department further opined that Counsel’s single invoice for her representation of Appellant in this matter, as opposed to a collection of contemporaneous time records made at or near the time when the underlying event(s) took place, was created months later and do not provided the same level of accuracy that could have been obtained if Counsel tracked her work in real-time. Counsel’s invoice for “$49,948.00, together with $420.007 in recoverable costs” does not show what Appellant was actually obligated to pay under the fee agreement. Appellant conceded that the cost of his action “exceeds that of the [RASL] benefit by approximately $8,000.00,” and that he paid Counsel “[F]lat fees totaling $11,400.00, consisting of $4,200.00 for the administrative phase and $7,200.” Per the Department, the best indicator of what Appellant was obligated to pay is the $11,400.00 actually paid, not an attestation that he “[A]greed to seek collection of those hourly fees only if and to the extent a fee award is granted, with all flat fees paid credited against the total amount.” The Department argued, per Sunland Dairy LLC v. Milky Way Dairy LLC, 251 Ariz. 64, 71 (Ct. App. 2021), that when a prevailing party has a contingency agreement with their attorney, the court is not required to use the agreement as a basis for determining an award under the fee-shifting statute. The Department further argued that the Tribunal has a duty to analyze the amount expended in light of the amount at stake to determine reasonableness of fees. Here, the amount at stake in the underlying dispute, the RASL payout, is set forth in statute at Ariz. Rev. Stat. § 38-615(A) and easily ascertainable, totaling $20,687.42.

Ultimately, the Department beseeched the Tribunal to find that Appellant’s application for attorney’s fees is improper because it fails procedurally and substantively.

CONCLUSIONS OF LAW

The Department has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 12-821; 15-1628; 35-131; 38-615 to -616; 38-727, 38-761; 38-844.03; 38-881; 38-884, 41-722; 41-763, and Ariz. Admin. Code R2-5-404. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

Appellant bears the burden of proof to establish whether an award of attorney’s fees is lawfully appropriate in this matter per Ariz. Rev. Stat. § 41-1007, and if so, whether Branscomb Wilhite’s request of $49,948.00 in attorney’s fees, together with $420.00 in recoverable costs, may be awarded by the Tribunal. The standard of proof on all issues in this matter is that of a preponderance of the evidence.

“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; 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.”

An agency’s authority is limited to that which is found in its enabling legislation.

The primary goal when construing statutes is to fulfill the intent of the legislature.

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The tribunal may not expand or extend a statute to include that which is not within its provisions. The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

Ariz. Rev. Stat. § 12-821.01(A) provided that “[p]ersons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues.”

Ariz. Rev. Stat. § 41-1007(A)(1-2) provides, in pertinent part, that and Administrative Law Judge shall award fees and other costs to any prevailing party in a contested case or an appealable agency action brought pursuant to any state administrative hearing authority. A person is considered to be a prevailing party only if the agency's position was not substantially justified and the person prevails as to the most significant issue or set of issues.

Ariz. Rev. Stat. § 41-1007(C)(1-3) provides, in pertinent part, that a party that seeks an award of fees or other costs shall apply to the Administrative Law Judge, within thirty (30) days after the final decision or order, providing evidence of the party's eligibility for the award, the amount sought, and an itemized statement from the attorney(s) and expert(s) stating (a) the actual time spent representing the party, and (b) the rate at which the fees were computed.

Ariz. Rev. Stat. § 41-1007(D) provides that the award of reasonable attorney fees need not equal or relate to the attorney fees actually paid or contracted, but an award may not exceed the amount paid or agreed to be paid.

Ariz. Rev. Stat. § 41-1007(E) provides, in pertinent part, that a decision of an Administrative Law Judge under this section is subject to judicial review. If fees and other costs were denied by the Administrative Law Judge because the party was not the prevailing party but the party prevails on appeal, the court may award fees and other costs for the proceedings before the Administrative Law Judge if the court finds that fees and other costs should have been awarded.

Ariz. Rev. Stat. § 41-1092.08(B) provides, in pertinent part, that within thirty (30) days after the date the Tribunal sends a copy of the Administrative Law Judge's recommended decision to the head of the agency, the agency head may review the decision and accept it, reject it, or modify it. If the agency head declines to review the Administrative Law Judge's recommended decision the agency shall serve a copy of that decision on all parties.

Ariz. Rev. Stat. § 41-1092.08(F)(1) provides that the decision of the agency head is the final administrative decision unless the agency head does not review, reject, or modify the Administrative Law Judge's recommended decision, the Administrative Law Judge's recommended decision shall be the final administrative decision.

Ariz. Rev. Stat. § 41-1092.08(H) provides that a party may appeal a final administrative decision pursuant to title 12, chapter 7, article 6.

Ariz. Rev. Stat. § 41-1092.12(C) provides that if a party prevails, the agency shall pay reasonable costs and fees to the party from any monies appropriated to the agency and available for that purpose or from other operating monies of the agency. If the agency fails or refuses to pay the award within fifteen days after the demand, and if no further review or appeal of the award is pending, the prevailing party may file a claim with the department of administration. The department of administration shall pay the claim within thirty (30) days in the same manner as an uninsured property loss under chapter 3.1, article 1 of this title, except that the agency is responsible for the total amount awarded and shall pay it from its operating monies. If the agency had appropriated monies available for paying the award at the time it failed or refused to pay, the legislature shall reduce the agency's operating appropriation for the following fiscal year by the amount of the award and shall appropriate that amount to the department of administration as reimbursement for the loss.

Statutes shall be liberally construed to affect their objects and to promote justice. Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The crux of the issue in this matter is whether OAH has the jurisdiction to address the issues of an award of attorney’s fees per Ariz. Rev. Stat. § 41-1007, and if so, whether Appellant has established by the requisite evidentiary standard that his petition for attorney’s fees should be granted.

Here, the credible evidence of record establishes that fees and other costs were not denied by the Administrative Law Judge at the June 19, 2023, hearing because Appellant did not seek any such relief at that time. Appellant also did not petition for attorney’s fees in his September 29, 2023, appeal of the certified Final Administrative Decision to Maricopa County Superior Court in LC2023-000342-001. As a result, in LC2023-000342-001 Hon. Mikitish did not explicitly make a determination whether Appellant was the “prevailing party” on “the most significant issue,” or whether the Department’s position was “not substantially justified.” Instead, he reversed the certified Final Administrative Decision, holding that Appellant’s RASL application was to be considered as if his retirement were timely submitted, and remanded the matter back to the Department “for further proceedings, as necessary,” specifically noting that the order was final per J.R.A.D. 13 and Ariz. R. Civ. P. 54(c). It is undisputed that after the remand the Department issued a $20,687.42 RASL benefit payment to Appellant but took no further action on appeal regarding the Under Advisement Ruling. It is also undisputed that Appellant did not submit a request for attorney’s fees to the Tribunal until November 13, 2025.

The Tribunal is in agreement with Appellant that the certified Final Administrative Decision of August 29, 2023, was set aside by the Ruling of July 15, 2025, but disagrees that Hon. Mikitish’s order does not constitute the Final Order in the above-captioned matter because it supposedly “falls outside” the purview of Ariz. Rev. Stat. § 41-1007(C) as it is now “reopened at the agency level by operation of law.” Appellant’s argument is not supported by the plain unambiguous language of the statute. Ariz. Rev. Stat. § 41-1007(C) clearly requires a party that seeking an award of fees or other costs to submit a request to the Administrative Law Judge, within thirty (30) days after the final decision or order. Here, the Final Order was issued July 15, 2025, which means that a request for fees and/or costs had to be submitted by Appellant no later than August 06, 2025. Appellant has not provided an exception by statute, rule, or other binding authority to excuse or otherwise justify its untimely request. Analysis regarding eligibility, reasonableness, including jurisdictional considerations, and/or substantial justification are not required as Appellant is unable to overcome the issue of timeliness.

In consideration of the foregoing, the undersigned finds that Appellant’s January 14, 2026, Amended Demand and Application for Attorney’s Fees must be denied.

ORDER

Therefore,

it is ordered that Appellant’s Amended Demand and Application for Attorney’s Fees be dismissed.

IT IS FURTHER ORDERED that Appellant’s request for associated costs, inter alia, is also dismissed.

NOTICE

In the event of certification of the Administrative Law Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be the date of that certification. See Ariz. Rev. Stat. §§ 41-1092.08(B, D, F1). A party may appeal a Final Administrative Decision pursuant to Title 12, Chapter 7, Article 6, except as provided in § 41-1092.09(B).

Done this day, March 12, 2026.

Office of Administrative Hearings

/s/ Hon. Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Andy Tobin, Director

c/o Kimberly Suciu, Associate General Counsel

Department of Administration

100 N. 15th Ave., Ste. 400

Phoenix, AZ 85007

[email redacted]

Lena Kalkbrenner, Esq., Assistant Attorney General

Pamela Peiser, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for the Department

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Reginald Givens, Appellant

c/o Monique Wilhite, Esq.

Branscomb Wilhite Law, Counsel for Appellant

5045 W. Baseline Rd., Ste. 105-207

Laveen, AZ 85339

[email redacted]

By: OAH Staff