ALJDEC

99A-120-POS · Peace Officers Standards and Training · 2000-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7 and 8, 2000; 9:00 A.M.; Phoenix, Arizona APPEARANCES: Arizona Peace Officer Standards and Training Board: Michael W. Sillyman, Esq. Respondent: Stephen G. Montoya, Esq. ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

The Arizona Peace Officer Standards and Training Board (“Board”) initiated this proceeding, pursuant to its Rules R13-4-109(A)(7), -(A)(8), and -(A)(9), Ariz. Admin. Code, to suspend or revoke Officer David Salgado’s peace officer certification. Based upon the evidence presented at the hearing, Administrative Law Judge (“ALJ”) George A. Schade, Jr. submits the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT PROCEDURAL BACKGROUND 1. On January 12, 2000, Rod Covey, former Executive Director of the Board, issued a Notice of Hearing scheduling a hearing on March 22 and 23, 2000, before the Office of Administrative Hearings. 2. The Notice of Hearing contained the “specific allegations at issue” and the “specific rules that the conduct is alleged to have violated.” The Board’s three allegations were: a.) “[On] December 23, 1998, Officer Dave Salgado obtained approximately 20 toys by submitting false or fraudulent forms to the W. Steven Martin Christmas Police Toy Drive. b.) Officer Dave Salgado gave several of the toys to family members and kept three, distributing the rest to families other than authorized recipients. c.) On December 23, 1998, Officer Dave Salgado made false or misleading statements on his official activity worksheet.”[1] 3. On March 6, 2000, after considering motions and responses, ALJ Schade severed the hearing of this matter from Case No. 99A-096-POST (Rick Salgado) and continued the hearing of Officer David Salgado to July 11, 12, and 13, 2000. 4. On May 4, 2000, after telephonic conference with legal counsel and with their consent in order to accommodate the other bifurcated matter, ALJ Schade continued the hearing to September 7, 8, and 11, 2000. 5. Counsel exchanged lists of proposed witnesses and exhibits. The Board filed a pre-hearing motion in limine to exclude (1) the testimony of four witnesses whom it believed would be character witnesses and two other witnesses and (2) 79 proposed exhibits regarding other disciplinary cases and mitigation. The ALJ denied the motion as to the witnesses but granted it as to the exhibits. 6. On September 7 and 8, 2000, a hearing was held. The Board presented (in order of appearance) the testimony of Mr. W. Steven Martin, Director of Community Relations for Clear Communications, Inc.; Sergeant Gail M. Wiegert, Phoenix Police Department; Sergeant (Retired) Leland B. Hiser, Phoenix Police Department; and, Officer David Salgado. The Board submitted ten exhibits which were admitted. Officer Salgado presented the testimony of Sergeant Rolando Vasquez, Phoenix Police Department; Mr. Alfred E. Madrid, U. S. Marshal for the District of Arizona; Mr. Gary R. Maschner, the Board’s Compliance Specialist assigned to this case; Daniel R. Ortega, Jr., Esq.; Officer James A. Mocek, Phoenix Police Department; and, Detective Thomas Marquez, Phoenix Police Department. Officer Salgado submitted four exhibits which were admitted. The record closed on September 19, 2000, to allow both sides to submit proposed findings of fact and conclusions of law, which they timely filed. OFFICER DAVID SALGADO 7. Officer Salgado is a certified police officer who has worked for the Phoenix Police Department since 1991. 8. In December, 1998, at the time of the incidents relevant to this proceeding, Officer Salgado was assigned as a School Resource Officer at the Crockett Elementary School.[2] He had been there since 1994. 9. Officer Salgado has no prior record of professional discipline with the Board. 10. During his service with the Phoenix Police Department, Officer Salgado has received twenty service Commendations and the Department’s Medal of Merit and Distinguished Service Award. THE W. STEVEN MARTIN CHRISTMAS POLICE TOY DRIVE 11. The W. Steven Martin Christmas Police Toy Drive (“Toy Drive”) is an annual function sponsored by a “Section 501(c)(3)”[3] tax exempt charitable corporation. Mr. W. Steven Martin, a well-known local radio personality, has provided the principal guidance and fundraising leadership for the Toy Drive, a program in existence since 1988. 12. The Toy Drive solicits, throughout the year, contributions of toys and funds (to buy toys) from the public for distribution to at risk and needy children in the Phoenix, Flagstaff, Prescott, and Tucson metropolitan areas during the Christmas holidays. In 1997, more than 700 officers distributed over 120,000 toys. 13. The Toy Drive must comply with federal regulations concerning the charitable purposes of the organization and maintain proper records concerning toys and funds collected and distributed. 14. During the Christmas season, the Toy Drive distributes toys utilizing the services of peace officers, who provide names and other information of at risk and needy families and children, and who collect toys from the Toy Drive distribution center. 15. Mr. Martin testified that the “main goal is to reach children who need to see police officers in a different light,” and the Toy Drive’s “underlying goal is to develop trust between children, their parents and police officers.” The Toy Drive is “intended to get officers into the door of homes of at risk children.” The distribution of toys to at risk children by officers not only benefits children who might otherwise receive little or nothing at Christmas but also benefits the officers who gain respect, appreciation and visibility in the communities in which they live and work. A primary purpose of having peace officers distribute toys to at risk and needy children and families is to help officers “make a difference” (Mr. Martin’s testimony) in the lives of the children and their families. Given this purpose, the Toy Drive wants peace officers, and not others, to distribute the toys. 16. Neither the Toy Drive sponsors nor the Phoenix Police Department define the term “at risk children,” but the term is generally understood to mean those children who are likely to have problems with the law or their health and safety due to their environment and home situations. 17. The Toy Drive leaves it to an officer’s best judgment and discretion to determine if a child is at risk or is needy and would benefit from receiving a Christmas toy. According to Mr. Martin, “as long as a child is in need, and an officer can make a difference,” it is proper to give that child a toy. As Officer Mocek testified, he “relied on common sense” to determine who was a needy child who should receive a toy. 18. In 1998, the Toy Drive did not have any written or posted rules regarding who was eligible to receive toys or how the toys were to be distributed. The Toy Drive provided a one-page letter describing the event, but the letter was short and primarily informational. See Board’s Exhibit No. 1. 19. Officers of the Phoenix Police Department have participated in the Toy Drive for many years. 20. In 1998, the Phoenix Police Department did not have any written or officially adopted rules governing the participation of its officers in the Toy Drive. This omission may be due to the fact that the Toy Drive is a private, nonmunicipal activity. 21. Neither the 1998 Toy Drive nor the Phoenix Police Department had a rule or policy prohibiting an officer from donating Toy Drive toys to at risk or needy family members. THE TOY DRIVE DISTRIBUTION FORMS 22. During the 1998 Toy Drive, the Toy Drive volunteers required the completion of a form by the officer (or “Police Santa”) before receiving toys from the Toy Drive distribution center (hereafter for convenience this form will be referred to as “the general distribution form”) (Board’s Exhibit No. 2). A separate form was provided to obtain bicycles from the Toy Drive (a “Bicycle Request” form). 23. Each officer was “strictly limited to two families per officer.” (Underlined emphasis in document). Board’s Exhibit No. 1. A general distribution form was required for each family to whom toys were to be given. 24. The general distribution form required the receiving officer to provide his or her name, identification number, employing police department, mailing address, telephone and fax numbers, and the number of years the officer had participated in the Toy Drive. The next main block of the form asked for the name of the family who would receive the toys and their address. However, the instructions for the 1998 Toy Drive stated that this portion of the form was optional, “This year’s adoption form has an area for the family’s name and address, but providing this information is optional.” Board’s Exhibit No. 1. Lastly, the general distribution form had ten individually numbered spaces for the name, gender, age, and the number of toys for each child who would receive the toys. 25. Completion of the distribution forms assisted the Toy Drive to fulfill the requirements of its tax exempt status and to provide accountability for donated gifts which aided solicitation efforts for future contributions of money and toys. THE 1998 TOY DRIVE 26. Officer Salgado participated in the 1998 Toy Drive. He first participated in the Toy Drive in 1995 and continued to participate through 1998. 27. On December 23, 1998, at around 3:00 A.M., Officer Salgado went to the Toy Drive distribution center[4] to pick up his toys for distribution. The center opened at 8:00 A.M. Officer Salgado went early to get a place in the front of the waiting line. A few hundred peace officers gather to receive the toys, and the earlier one arrives, the faster one proceeds through the line. The Toy Drive allocates an officer’s place in the waiting line by giving each person a “check-in number.” Board’s Exhibit No. 1. Officer Salgado was given check-in number eleven for the waiting line. This was the only time he picked up toys from the Toy Drive that year. 28. Officer Salgado credibly testified he had prepared a list of at risk children and families to whom he planned delivering Toy Drive toys. But he did not have the list with him at the center on December 23, 1998, because he had left it in his office at the Crockett School. The school’s premises were locked for the Christmas holidays. The school was on Christmas vacation, the list was inside his office, and he did not have a key to the school building. Further, Officer Salgado would have lost his good place in the waiting line, if he had returned to the school in the morning to try to retrieve the list. 29. Officer Salgado completed two of the general distribution forms on December 23, 1998, and received toys upon submitting the forms to the Toy Drive volunteers. He also completed two forms to obtain bycicles. 30. On both general distribution forms, Officer Salgado listed fictitious names next to the blank titled “Family’s Name,” but he listed two correct addresses he knew were in at risk neighborhoods. One of the addresses was of an apartment complex located at 1010 North 48th Street, and the other address was of a mobile home park located at 321 North 35th Street, both in Phoenix, Arizona. 31. Officer Salgado was familiar with these two locations through his work at the Crockett School, and he knew this apartment complex and mobile home park were homes of at risk and needy families and children. 32. Officer Salgado completed the sections of the two general distribution forms which asked for the children’s names, genders and ages. The children’s names, genders and ages which he listed on both forms were fictitious, but were coordinated in terms of gender (for example, a male name was listed as a boy). The stated ages ranged from one to sixteen years, and three toys were requested for each child. 33. On one form, Officer Salgado listed the names of two of his fellow officers, Tommy Marquez[5] and Benny Marquez, who were respectively listed as 16 and 14 year old males. Officer Salgado did not have the permission of either officer to use their names on the forms. Officer Salgado testified these listings were a “dumb mistake,” but explained that he used the names to complete the form to obtain the toys and proceed through the line without undue delay. 34. Officer Salgado signed both general distribution forms as the “Receiving Officer” of the toys he collected. 35. The volunteers of the Toy Drive indicated on the general distribution forms that they gave Officer Salgado a total of 50 toys (22 toys for the Juan Garcia family and 28 toys for the Pedro Marquez - Ruben Perez family). They also gave Officer Salgado two bicycles. 36. The Toy Drive has allowed peace officers to take toys for their own families upon request and with permission. If an officer requests toys for his family due to pressing financial circumstances, the Toy Drive would honor the request. This has occurred on several occasions in the past. 37. Officer Salgado did not request permission from Toy Drive officials to give toys he received from the Toy Drive, to his family members. 38. Officer Mocek described the time he gave a toy to a small girl whom he saw while he was driving his patrol car. This giving was not planned in advance but was spontaneously made on the observed need of the moment. Mr. Martin testified that he supported such spontaneous gift-giving gestures as long as the officer benefited. 39. There is no evidence showing that any person or organization was harmed financially or otherwise as a result of Officer Salgado using fictitious names on the forms of the Toy Drive. SERGEANT WIEGERT’S STATEMENTS 40. In December, 1998, Sergeant Wiegert was Officer Salgado’s supervisor. 41. Sergeant Wiegert was at the Toy Drive distribution center on the morning of December 23, 1998. She was with her squad. She saw Lieutenant Michael Cecchini in the crowd, whom she knew was a member of the Professional Standards Bureau (“PSB”). On seeing Lieutenant Cecchini, Sergeant Wiegert told the members of her squad that PSB was present inside the center, there must be a reason why PSB was present, and PSB was probably investigating officers who were not doing what they were supposed to be doing with the toys. Sergeant Wiegert testified she told her squad members to deliver the toys to the families listed on the general distribution forms, but she did not tell them not to give toys to family members. 42. Sergeant Wiegert remembers Officer Salgado being within hearing range when she made her statements. She saw him “chatting” with Lieutenant Cecchini “for a couple of minutes.” 43. The following day, Sergeant Wiegert and her squad, including Officer Salgado, were at the Central City Precinct where some officers were wrapping the Toy Drive presents they had collected. Sergeant Wiegert testified she repeated her statements about giving presents “to the right people” listed on the Toy Drive forms. 44. Officer Salgado testified that he did not hear Sergeant Wiegert’s statements regarding the delivery of toys obtained from the Toy Drive, either at the distribution center or at the briefing room the following day. THE DISTRIBUTION OF THE TOYS 45. Officer Salgado gave his nephew, who was ten years old, a “Street Beat Stereo Cassette player with headphones,” when the boy asked for a toy.[6] 46. He gave one Barbie doll to each of his two nieces, who were minors “about seven years old.” The girls asked for a toy when Officer Salgado went to his sister’s house on his way back from the Toy Drive distribution center, and they knew of the toys. 47. The parents of Officer Salgado’s nieces and nephew were both employed in December, 1998. His sister worked at a local television station earning $10.00 an hour, and his brother-in-law worked as a teacher. They lived in a lower middle class neighborhood. According to Officer Salgado, his sister and her husband were having difficult financial times and economic hardship during the Christmas of 1998. His sister had recently borrowed $400.00 from him, which remained unpaid. 48. Officer Salgado allowed his nineteen-year old son to take two stuffed animals, from the toys Officer Salgado had collected from the Toy Drive, to give to his infant son, Officer Salgado’s grandson. The grandson’s mother (17 years old) and father (19 years old) were both unemployed at the time, and the mother was receiving public assistance. At the time, Officer Salgado’s son was attending barber school and was living with Officer Salgado. Officer Salgado has supported his grandson with financial assistance. 49. At the request of his sister who told him of the family’s financial situation, on December 24, 1998, Officer Salgado gave nine toys to a friend of his sister, a lady named Michelle. Officer Salgado knew Michelle from high school. Michelle and her husband were unemployed at the time and were having financial difficulties. 50. Officer Salgado then went to the apartment complex at 1010 North 48th Street and gave most of the toys he had to a large number of children. He gave one of the bicycles to Jessica Macias. From his work at the Crockett School, he knew that this apartment complex housed at risk and needy children. He saw the children, with great joy, taking the toys as he gave them out of the trunk of his patrol car. 51. On December 24, 1998, Officer Salgado gave an estimated three to four toys to a secretary of the Central City Precinct (part of the staff of the Phoenix Police Department), a “respectful, humble lady” whom he had “known for about eight years.” The secretary asked Officer Salgado to give her some toys that she could give to three boys of a needy family she knew, where the mother of the children had recently died. The secretary knew that Officer Salgado was participating in the Toy Drive. While at the Central City Precinct, he gave her some toys specifically for this family. Officer Salgado, however, did not keep track of the number of toys the secretary took and did not request the name of the family to whom the toys were to be given. 52. On the Toy Drive forms for bicycles, Officer Salgado listed the names of two children - Jessica Macias and Betito - whom he knew through working at the Crockett School. One of the teachers at Crockett referred Jessica to him because Jessica had been diagnosed with cancer, and Officer Salgado had known Betito for four years. 53. Officer Salgado delivered one of the bicycles to Jessica Macias, who lived in the apartment complex at 1010 North 48th Street, Phoenix. This action is not in issue in this proceeding. 54. The second bicycle which Officer Salgado obtained from the Toy Drive was not given to Betito, but was given to another child named Martin Bond, then ten years old. Officer Salgado did not give the bicycle to Betito because Betito was blind and could not ride a regular bicycle. 55. Martin Bond was the son of a known “crackhead” prostitute and a street child. On prior occasions, Officer Salgado would locate Martin at a local restaurant at 32d Street and Van Buren in Phoenix, where the restaurant workers would give the boy a free meal. In December, 1998, Martin Bond was a foster child in Mesa, and Officer Salgado traveled there to give him one of the bicycles. Officer Salgado gave the bicycle to Martin Bond because he could not obtain a tandem bicycle for Betito, the blind child identified on the Toy Drive bicycle form. 56. When the Phoenix Police Department initiated its investigation of Officer Salgado, on December 29, 1998, he had three toys (a clock radio, chess set and a basketball) from the Toy Drive in his possession. He gave these toys to the Phoenix Police Department as part of the investigation. Officer Salgado intended to distribute the three toys to needy children at the Crockett School when school resumed after the Christmas holidays. There was no evidence presented at the hearing showing that Officer Salgado was dishonest in any way regarding these three toys. 57. Officer Salgado credibly testified that he inadvertently and accidentally must have discarded or thrown out the list of the families which he had left behind in his office at the Crockett School when he went to the Toy Drive distribution center. After the investigation began in late December, 1998, he was reassigned to another position and was asked to leave the Crockett School. He vacated his office, and during that process, he must have thrown out the list of names. He was not asked until some four months later, in the spring of 1999, to produce the list of names. By then, he had vacated his office, and according to him, must have thrown out the list of families. 58. In July, 1999, Officer Salgado telephoned Mr. Martin to express his concerns about the effect on the Toy Drive of the newspaper and television publicity regarding his brother Rick and himself. Officer Salgado and Mr. Martin spoke about what was happening with both officers. Mr. Martin testified that Officer Salgado “apologized” for any negative effects the publicity might have on the Toy Drive. Their conversation was cordial. Mr. Martin invited Officer Salgado to remain active in the Toy Drive’s beneficial efforts, and Officer Salgado wanted informed Mr. Martin as to what was happening to his brother and him. CHARACTER WITNESSES 59. Mr. Madrid, the United States Marshal for the District of Arizona and twenty-year veteran of the Phoenix Police Department, testified that in his professional opinion Officer Salgado “is what a police officer should be,” and he is confident that Officer Salgado would not engage in dishonest or fraudulent conduct. Mr. Madrid “has always been proud” of Officer Salgado as a peace officer. Mr. Madrid was involved in the recruitment of Officer Salgado to become a Phoenix Police Department officer. 60. Mr. Ortega, an attorney who has practiced law in Phoenix for almost 25 years and who represents peace officers, testified that Officer Salgado has been “a role model for kids,” is “a credit to the Phoenix Police Department” and “an asset to the community,” and he believes that Officer Salgado would not lie or engage in dishonest conduct. Mr. Ortega and his law firm have worked with Officer Salgado to present a mock trial program at the Crockett School (which Mr. Ortega attended). PHOENIX POLICE DEPARTMENT’S INVESTIGATION OF OFFICER SALGADO 61. The PSB interviewed Officer Salgado on four occasions in connection with his activities in the 1998 Toy Drive. Each interview was tape recorded, and Officer Salgado was assisted at the interviews by a union representative. 62. Sergeant (Retired) Hiser was a member of the investigative team and was present at each of the four interviews of Officer Salgado. Following the completion of the investigation, the taped interviews were transcribed by Phoenix Police Department staff. The transcripts were reviewed by Sergeant Hiser, who testified he verified the accuracy of the transcripts line by line with the aid of headphones as he listened to the tapes and read the transcript. 63. Officer Salgado and his union representative were given copies of the taped interviews and copies of the transcripts and had the opportunity to make corrections. No substantive corrections to the transcripts were made by Officer Salgado or his union representative. 64. Officer Salgado testified that the interviews were conducted in “a very aggressive,” “very intimidating” and unreasonably accusatory manner, and secondly, his first union representative was ineffective, and he requested the substitution of the first union representative. Further, the four transcripts of the interviews were not certified as complete and accurate documents. The ALJ admitted the four transcripts into evidence but with the provision that he would determine the evidentiary weight to give them. He informed counsel that he would address in the findings of fact the evidentiary weight he accorded to the four transcripts. The ALJ accorded them a reasonable but not substantial weight. These findings of fact and conclusions of law are based on the testimony of the witnesses presented at the hearing, which included discussions of portions of the four transcripts.

CONCLUSIONS OF LAW RULE R13-4-109(A) Rule R13-4-109(A), supra, provides in the pertinent subsections cited in the Board’s Notice of Hearing: “A. Causes for denial, suspension or revocation. The Board may deny, suspend or revoke the certified status of a peace officer for: *** 7. The commission of a felony, an offense which would be a felony if committed in this state, or an offense involving dishonesty, unlawful sexual conduct or physical violence;

8. Malfeasance, misfeasance or nonfeasance in office;

9. Any other conduct or pattern of conduct that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.”

CONCLUSIONS OF LAW 1. Officer Salgado is a certified peace officer in the State of Arizona subject to the Board’s regulatory authority.[7] 2. The Board has authority in this matter to suspend or revoke Officer Salgado’s peace officer certification or dismiss the allegations.[8] 3. The standard of proof on all issues is the preponderance of the evidence.[9] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] It “is evidence which is of greater weight or more convincing than the 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.”[11] 4. The preponderance of the evidence shows that Officer Salgado did not violate Rule R13-4-109(A)(7), supra. The Board alleges that Officer Salgado engaged in “an offense involving dishonesty” by: 1). Completing a form with false and fictitious information and submitting it to the Toy Drive in exchange for toys to be distributed to at risk children and families; and, 2). Distributing toys he obtained from the Toy Drive by representing that he was distributing to specified children and families and, instead, distributing some of those toys to his own family members. First, the evidence does not show or establish the offenses, or violations of Arizona statutory law, Officer Salgado committed, which come within the purview of Rule R13-4-109(A)(7). This rule speaks of the commission of a “felony,” and the Board has alleged the commission of “an offense involving dishonesty.” But what these actual offenses might be that Officer Salgado committed, or which criminal statutes might have been violated, were not identified. Secondly, a criminal offense[12] involving dishonesty requires a wrongful intent or mens rea to defraud, deceive or misrepresent.[13] The evidence does not show that Officer Salgado had a criminal intent or mens rea to defraud, deceive or misrepresent the Toy Drive. Admittedly, he provided fictitious names, genders and ages of children, but he listed two correct addresses of places where at risk and needy children resided. He distributed most of the toys at one of these locations (the apartment complex at 1010 North 48th Street, Phoenix). Further, the evidence does not show that when he completed the Toy Drive forms on December 23, 1998, he had a wrongful intent to give Toy Drive toys to his family members or to others for distribution such as the secretary at the Central City Precinct. Only five of 50 toys were given to family members who, incidentally, were not immediate family members. Officer Salgado’s actions do not evidence a criminal intent or mens rea to defraud, deceive or misrepresent, which would support a criminal charge. In this respect, the opinions of Mr. Martin are noted. Mr. Martin thought that Officer Salgado’s actions showed “maybe poor judgment,” but Officer Salgado “was not a crook or a thief.” And Sergeant (Retired) Hiser testified that he “did not believe” that Officer Salgado “stole anything,” and Mr. Hiser “has not ever made such a statement.” As for civil fraud, early, the Arizona Supreme Court held: “Fraud may be said to be an action of a more affirmative evil nature, such as proceeding or acting dishonestly, intentionally, and deliberately, with a wicked motive, to cheat or deceive one party to a transaction with respect to the situation or operations, or such as one which results to his damage or loss and to the advantage or gain of the other party.”[14]

The evidence does not show that Officer Salgado acted with the “wicked motive” or fraudulent intent requisite for a civil fraud action. Lastly, the Toy Drive forms did not require a certification or swearing under oath precluding false swearing and perjury.[15] 5. The preponderance of the evidence shows that Officer Salgado did not violate Rule R13-4-109(A)(8), supra. The Board alleges that Officer Salgado committed malfeasance by his actions of: 1). Completing forms with fictitious information when that information was to be used to obtain property which did not belong to him; 2). Giving toys to his own family when he received those toys for children who were not related to him; and, 3). Allowing toys to be given to people he did not know without determining their financial and at risk status prior to distribution thereby undermining the purposes of the Toy Drive. The Arizona Supreme Court has approved the following definition of the term “malfeasance”: “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 the person ought not to do at all.”[16]

The evidence does not support a conclusion that Officer Salgado’s actions were “evil,” “ill conduct,” “positively unlawful,” or “wholly wrongful.” 6. The preponderance of the evidence shows that Officer Salgado did not violate Rule R13-4-109(A)(9), supra. The Board alleges that the following conduct of Officer Salgado as a peace officer tends to disrupt, diminish and jeopardize public trust in the law enforcement profession: 1). Completing forms which he knew contained false information and providing those forms to a charitable organization in exchange for property; and, 2). Giving toys, intended for others, to his family members. Not all the toys - just five of 50 - were given to Officer Salgado’s family members, and these were not only needy children at the time but also were not immediate family members. The evidence does not show a criminal or evil intent or willfulness to deceive the Toy Drive. Officer Salgado had a three-year history of participation in the Toy Drive. He went to the distribution center very early in the morning of December 23, 1998, to get a good place in the waiting line. It is reasonable not to want to leave a waiting line (to return to one’s office knowing the premises are locked) when one has a place at the front because one made it a point to arrive there five hours before opening time. He may not have heard Sergeant Wiegert’s statements, but he knew who Lieutenant Cecchini was and, in fact, spoke with him while at the center. He delivered a lot of the toys to one of the listed addresses, namely, the apartment complex at 1010 North 48th Street, Phoenix. On the whole, the essential beneficial purposes of the Toy Drive were accomplished. These actions have weight, keeping Officer Salgado’s omissions from rising to the level of “conduct that would tend to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession.”[17] 7. The preponderance of the evidence is insufficient to cancel, suspend or revoke Officer Salgado’s peace officer certification pursuant to Rule R13-4-109(A), supra. When they are undertaken, these disciplinary sanctions must be carefully considered, and when doing so with the evidence in this matter, the conclusion is that suspension or revocation are not appropriate or defensible. The ALJ offers the following observations. In 1997, more than 700 officers distributed over 120,000 toys. These numbers indicate that each officer, on average, distributed some 172 toys. It appears that this would be an inordinate number of toys to be carrying in a patrol car just days before Christmas. Second, if each officer was limited to two adoptive families and ten names on each general distribution form - such as was the case with Officer Salgado - it would mean that, on average, each child received nine toys. From the testimony of Officers Mocek, Sergeant Vasquez and Detective Marquez, it does not appear that every child receives on average nine toys or a large number of toys. These average numbers indicate that most likely a large, if not the greatest, number of toys are given out at social functions or parties, where the names of children would not be a major concern. Lastly, the ALJ is impressed that each officer is expected to know the specific names and ages of twenty at risk and needy children within their areas of patrol. Perhaps they do, but these numbers appear to be a high bar to meet. The ALJ was impressed with Mr. Martin’s sincerity and deep commitment to the Toy Drive. The ALJ surmises that with the publicity this case, and the associated case of Rick Salgado, have received, that there is a risk that officers might be reluctant to participate in future Toy Drives or other similar beneficial community events. The ALJ does not wish to negatively impact the Toy Drive in any manner. 8. Officer Salgado presented character evidence showing that he enjoys a reputation in the community for honesty and is a credit to the Phoenix Police Department and law enforcement. CITY OF PHOENIX PERSONNEL HEARING The ALJ invited counsel to comment on the City of Phoenix personnel matter involving Officer Salgado. The outcome of that proceeding did not have any bearing or influence on the ALJ as he prepared his findings of fact and conclusions of law. But that proceeding was discussed at the hearing, and in order to be as complete as he can be, the ALJ submits the following explanations contained in the proposed findings of fact the Board’s legal counsel submitted. By Discipline Notice dated July 22, 1999, Officer Salgado was given a 240 hour suspension by the Personnel Department of the City of Phoenix for violations of Personnel Rules, Police Department General Orders and Police Department Operations Orders. Officer Salgado appealed that suspension, and a personnel hearing was held before a hearing officer on August 22, 2000. A Hearing Report issued on September 6, 2000. The Board’s counsel submits that “the allegations in the instant proceeding of the commission of an offense involving dishonesty, malfeasance, misfeasance or nonfeasance in office and conduct which tends to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession were not allegations in the personnel hearing on August 22, 2000,” and further, “the findings by the hearing officer in the personnel hearing that Police Department General Orders and Rules, City of Phoenix Rules, Police Operations Orders and Personnel Rules were not violated are irrelevant to the question of whether A.A.C. R13-4-109A (7) (8) or (9) were violated by Officer Salgado,” citing to the Board’s Rule R13-4-109(F), supra.[18] The ALJ admitted a copy of the Hearing Report. Following the personnel hearing, the Hearing Officer recommended as follows: “On the basis of the testimony and evidence presented, I recommend that the 240 hour suspension imposed on Dave Salgado, effective 8/9/99 be rescinded, and that he receive a written warning.” Respondent’s Exhibit No. 1.

The ALJ does not know the outcome of this recommendation or the status of that proceeding.[19]

SUBMITTED this 2d day of October, 2000.

George A. Schade, Jr. Administrative Law Judge

The original Findings of Fact and Conclusions of Law were mailed on October , 2000, to:

Thomas J. Hammarstrom Executive Director Arizona Peace Officer Standards and Training Board 2643 East University Drive Phoenix, Arizona 85034

and pursuant to stipulation of counsel a copy was mailed to:

Michael W. Sillyman, Esq. Kutak Rock, L.L.P. 8601 North Scottsdale Road, Suite 300 Scottsdale, Arizona 85253 Attorney for the Board

Stephen G. Montoya, Esq. 411 North Central Avenue, Suite 520 Phoenix, Arizona 85004 Attorney for Respondent

George A. Schade, Jr. ----------------------- [1] At the hearing, the Board stipulated to the dismissal of this allegation. No evidence was presented regarding this allegation. [2] The school is located at 501 North 36th Street, Phoenix, north of Van Buren Avenue. [3] This is a section of the federal Internal Revenue Code. [4] The distribution center is located at 6103 North 35th Avenue (near Bethany Home Road), Phoenix, Arizona. [5] Officer Salgado called Detective Marquez as a witness. [6] Because of the event’s festive spirit, Officer Salgado had taken his nephew to the Toy Drive distribution center on December 23, 1998, where the boy saw the toys. [7] Arizona Revised Statutes (“A.R.S.”) § 41-1822. [8] A. R. S. § 41-1822(C)(1); Rule R13-4-109, supra. [9] See Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Rule R2-19-119(A), supra. [10] Morris K. Udall, Arizona Law of Evidence, § 5 (1960). [11] BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). [12] From the words used, it appears that the drafters of this subrule intended that it apply to felony convictions or criminal offenses. [13] Dennis v. United States, 341 U.S. 494 (1951); Spitz v. Municipal Court of City of Phoenix, 127 Ariz. 405, 621 P.2d 911 (1980). [14] Eckert v. Miller, 57 Ariz. 94, 102, 111 P.2d 60, 68 (1941). [15] See A.R.S. §§ 13-2702 (perjury) and 39-161 (filing of false instruments and records). [16] Sims v. Moeur, 41 Ariz. 486, 503-4, 19 P.2d 679, 685 (1933), which definition is also found in BLACK’S LAW DICTIONARY 956 (6th ed. 1990); see, Holmes v. Osborn, 57 Ariz. 522, 540, 115 P.2d 775, 793 (1941). [17] Rule R13-4-109(A)(9), supra. [18] This rule states, “No action by an agency or decision resulting from an appeal of that action shall preclude action by the Board to deny, cancel, suspend, or revoke the certified status.” [19] The City of Phoenix Personnel Commission was expected to consider this report a few days after this hearing concluded.

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