ALJDEC

98A-120-POS · Peace Officers Standards and Training · 1999-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 1999 at 9:00 a.m. APPEARANCES: The Arizona Peace Officers Standards and Training Board (“the Board”) appeared through its attorney, Jeanne M. Galvin, Esq., Assistant Attorney General; Respondent Ernest M. Forgach did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The Board presented evidence supporting its decision to penalize Mr. Forgach’s Peace Officer Certified Status under Arizona Administrative Code (“A.A.C.”) R13-4-109.A.7 and .8 based on his alleged violations of Arizona Revised Statutes (“A.R.S.”) §§ 4-244.9 and 13-3613. Pursuant to A.R.S. §§ 41-1092.01 and 41-1822.B.1 and A.A.C. R13-4-118, the undersigned makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Procedural Background On September 18, 1993, the Arizona Department of Public Safety (“DPS”) employed Mr. Forgach as a reserve patrol officer. On September 17, 1994, DPS employed Mr. Forgach as a full-time regular patrol officer. Approximately a year after Mr. Forgach became a regular officer, DPS assigned Mr. Forgach to the Clifton/Kearny area. After this assignment, Mr. Forgach moved to Morenci with his wife and three minor children. On December 7, 1998, DPS notified Mr. Forgach that it would terminate his employment for cause effective December 9, 1998 pursuant to A.A.C. R13-5- 47. Mr. Forgach appealed the termination. On December 15, 1998, DPS reported Mr. Forgach’s involuntary termination to the Board. Mr. Forgach subsequently appealed the termination. He appeared with his attorney at the Merit System Council’s March 19, 1999 meeting, at the conclusion of which the Council denied Mr. Forgach’s request for reinstatement as a DPS patrol officer. On August 6, 1999, Mr. Forgach received via certified mail a corrected Complaint, notifying him of the Board’s intent to cancel, suspend or revoke his peace officer certification. Mr. Forgach timely requested a hearing. Under the authority of A.R.S. § 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. On August 30, 1999, Mr. Forgach’s attorney William J. Downey was allowed to review and make copies of the Board’s file and was provided with a copy of the Peace Officer Standards and Training Manual. On October 6, 1999, Rod Covey, Executive Director of the Board, issued a notice of hearing to Mr. Forgach, setting the hearing “to consider your peace officer status,” a copy of which was also mailed to Mr. Forgach’s attorney. The notice informed Mr. Forgach that “the specific allegations at issue” were that, “[o]n or about July 22, 1998, Officer Ernest M. Forgach knowingly provided alcoholic beverages to both his fourteen year old daughter and another 14 year old female.” On December 9, 1999 a hearing lasting 55 minutes was held. Although the start of the hearing was delayed 15 minutes to allow Mr. Forgach additional travel time, he neither appeared, personally or through his attorney, nor contacted the Office of Administrative Hearings to request that the hearing be further delayed or continued. The Board presented the testimony of Steve Jacobs, a Compliance Officer for the Board, and James Warriner, who works in DPS’ Professional Standards Unit, a part of Internal Affairs. The Board also offered into evidence seven exhibits, including transcripts of DPS’ interviews with Mr. Forgach, conducted on August 20, 1998, September 2, 1998, and September 25, 1998 (respectively, Exhibits 4, 5, and 6), and a transcript of the March 19, 1999 Merit System Council Appeal (Exhibit 7). Mr. Forgach’s Admitted Malfeasance Mr. Forgach admitted the conduct that led to DPS terminating him as a patrol officer and the Board seeking to penalize his peace officer certification. The portion of the record in which the admissions were made are set forth below. On July 22, 1998, a Wednesday, Mr. Forgach’s 14-year-old daughter, Brianna, had one of her 14-year-old friends, Rebecca, spend the night. Exhibit 4 at 10. When Mr. Forgach came home shortly after midnight on July 23, 1998, he found the two girls in the living room watching television. Exhibit 4 at 14; Exhibit 6 at 4. Mr. Forgach got himself a 12-ounce can of Budweiser beer and logged onto his computer, which is also located in the living room, to check his e- mail. Exhibit 4 at 17. Mr. Forgach’s daughter Brianna asked if she and Rebecca could have a beer. Although Mr. Forgach initially refused, he eventually consented, and Brianna and Rebecca started drinking beer. Exhibit 4 at 17; Exhibit 7 at 68. Mr. Forgach was trying to be nice to Brianna because he and his wife were having problems, which created tension for their children. Exhibit 4 at 19; Exhibit 6 at 18. Mr. Forgach had a 12-pack of 12-ounce cans of beers in the refrigerator. He drank 3 or 4 beers and the two girls drank the remaining 8 or 9 beers between them. Exhibit 4 at 28; Exhibit 5 at 12-13. Brianna and Rebecca also drank at least a wine cooler apiece. Exhibit 5 at 11, 12; Exhibit 6 at 49. Mr. Forgach felt the effects of the 3 or 4 cans of beer he drank, although he does not believe he was intoxicated. Exhibit 5 at 15. Mr. Forgach administered to Brianna and Rebecca three field tests for intoxication, including the Horizontal Gaze Nystagmus (“HGN”) test, the one- leg stand, and the “walk and turn.” Exhibit 5 at 7, 47; Exhibit 6 at 37- 38. Mr. Forgach had received training and was certified to administer these tests. Exhibit 5 at 7-8. Based on Brianna’s and Rebecca’s behavior and their performances on the tests, Mr. Forgach concluded that both girls had become intoxicated and their blood-alcohol level exceeded .10%. Exhibit 4 at 20; Exhibit 5 at 9. Mr. Forgach realized that giving enough alcohol to his fourteen-year-old daughter and her fourteen-year-old friend to cause them to become intoxicated was wrong. Exhibit 4 at 39; Exhibit 7 at 69. CONCLUSIONS OF LAW In this administrative proceeding, the Board bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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 1064 (6th ed. 1990). The Arizona Legislature has empowered the Board to “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules proscribing reasonable minimum qualifications for officers. See A.R.S. § 41-1822.C.1. The Board may revoke an officer’s certification if it determines that he has committed “[m]alfeasance . . . in office” or “[a]ny other conduct . . . that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.” A.A.C. R13-4-109.A.7 and .8. “Malfeasance” is defined as follows: Evil doing; ill conduct. The commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which person ought not to do at all . . . . Comprehensive term including any wrongful conduct that affects, interrupts or interferes with the performance of official duties. Malfeasance is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all . . . .

Black’s Law Dictionary at 966 (6th ed. 1990). A.R.S. § 4-244.9 makes it unlawful to any person “to furnish, dispose of or give . . . to a person under the legal drinking age . . . spirituous liquor.” The legal drinking age in Arizona is 21 years or older. A.R.S. § 4-101.18. The Board has established by a preponderance of the evidence that Mr. Forgach violated A.R.S. § 4-244.9 during the early morning hours of July 23, 1998 when he furnished beer and wine coolers to his fourteen-year-old daughter and her fourteen-year-old friend. A.R.S. § 13-3613.A provides that “[a] person who by any act, causes, encourages or contributes to the . . . delinquency of a child, as defined by 13-3612, or who for any cause is responsible therefor is guilty of a class 1 misdemeanor.” "‘Child’ . . . means an individual who is under eighteen years of age.” A.R.S. § 13-3623.A.2. “‘Delinquency’ means any act which tends to debase or injure the morals, health or welfare of a child.” A.R.S. § 13-3612.1. The Board has established by a preponderance of the evidence that, when Mr. Forgach provided beer and wine coolers to his fourteen-year-old daughter and her fourteen-year-old friend, he violated A.R.S. § 13-3613.A. Mr. Forgach’s violations of A.R.S. §§ 4-244.9 and 13-3613.A constitute malfeasance and conduct that would “tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession” under A.A.C. R13- 4-109.A.7 and .8. A preponderance of the evidence therefore supports cancellation, suspension or revocation of Mr. Forgach’s certification as a peace officer. Done this day, December 13, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of December, 1999, to:

Peace Officers Standards and Training Board Mr. Rod Covey 2643 East University Phoenix, AZ 85040

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826