Phoenix And Plain View Project In State Court

Written on 10/07/2022
Will Aitchison

Only days before the Ninth Circuit decided the case involving Phoenix Police Sergeant Juan Hernandez, the Arizona Court of Appeals weighed in on a completely different disciplinary issue arising out of the penalties im­posed by the Department arising out of social media posts highlighted by the Plain View Project (PVP).

The case involved now-retired Sergeant Stefani McMichael-Gombar, who who was suspended for 24 hours for a post she made on her private Facebook account identified by the PVP. McMichael-Gombar appealed the suspension to an appointed hearing officer through the City’s personnel system, arguing that the Department’s Social Media Policy was “overbroad and unconstitutional” and the sanc­tion excessive given that her post was private. The hearing officer refused to allow McMichael-Gombar to present any evidence on the constitutionality of the Policy.

The City’s Civil Service Board upheld the hearing officer’s decision, accepting the City’s argument that “we have volunteers from the community on the Civil Service Board. They are not constitutional scholars.” McMi­chael-Gombar challenged the decision in the Arizona Court of Appeals.

The Court ruled in McMi­chael-Gombar’s favor and remanded the case back to the hearing officer to consider evidence of the constitution­ality of the City’s Policy. The Court found that “a city charter is effectively, a local constitution. A merit board is bound to act in accordance with the City Charter provision which created it, and the rules and regulations which the board has established under that authority. As a City Charter institu­tion, the Phoenix Civil Service Board’s authority and powers are pre-eminent over any board, commission or institu­tion created by City ordinance when touching upon the same subject matter.

“The cornerstone of our analysis is the ‘Purpose and Policy’ provision of Chapter XXV of the City Charter which provides that it is the purpose of this chapter to designate those City employees in the classified services; set forth the rights and privileges of those employees; and to state the City’s obligations in establishing and maintaining a merit system. The City has determined the necessity of estab­lishing a merit system of personnel ad­ministration based on merit principles and professional methods governing the appointment, tenure, promotion, transfer, layoff, separation, discipline, and other incidents of employment relating to City employees. These merit principles include ‘assuring impartial treatment of applicants and employees in all aspects of personnel adminis­tration without regard to political affiliation, race, color, national origin, sex, religious creed or handicap, and with proper regard for their privacy and constitutional rights as citizens.’”

The Court noted that “the Char­ter’s directive to the Phoenix personnel system to ‘assure impartial treatment with proper regard for employees’ privacy and constitutional rights as citizens’ is unique among the personnel systems adopted by Arizona’s charter cities. Including Phoenix, four Arizona charter cities have adopted a Civil Service Board or Commission system as part of their personnel management systems, but only Phoenix has adopt­ed language requiring its personnel system to assure employees’ and applicants’ constitutional rights and privacy are given proper regard in all aspects of personnel administration. We cannot construe this Charter assurance as ‘mere surplusage.’ The Phoenix Charter required the Board to treat McMichael-Gombar impartially, give proper regard to her constitutional rights as a citizen, and take these rights into account and consider them when adjudicating her sanction.”

“Under the Phoenix Charter, regardless of whether the Board ulti­mately rejects the substance of Mc­Michael-Gombar’s First Amendment claims, it must at least take evidence and argument concerning whether the sanction gives proper regard to those rights. Both the City and the Board argue that such a directive would take the Board beyond its role by requiring it to consider legal issues. We disagree. The Board’s primary role is that of a factfinder, but the City concedes that in affirming the hearing officer’s rul­ings the Board separately affirmed the preclusion of McMichael-Gombar’s evidence and argument – a purely legal issue that required the Board to act as more than a factfinder. The apparent longstanding practice and interpretation of the City’s charter by the City or the Board does not supplant this Court’s obligation to view the City charter as ‘a local con­stitution’ governing the exercise of the Board’s power.

“The Superior Court noted that ‘constitutional issues should be decid­ed by the courts, not boards or panels of citizens.’ This is only partially correct. The non-lawyer or volunteer composition of a board does not ren­der it incapable of considering the impact of its decisions on the exercise of the constitutional rights of those appearing before it. This is especially true, where, as here, the text of the Phoenix Charter nonetheless requires the Board to consider constitutional and privacy concerns. We are aware of no authority that establishes a bright-line rule elevating constitutional rights beyond those legal issues – for instance, jurisdiction or the applica­tion of ordinances – that a state or city board similarly staffed with laypersons or members of non-legal professions necessarily considers in the lawful exercise of its power.”

McMichael-Gombar v. Phoenix Civil Service Board, 73 Arizona Cases Digest 4 (Az. App. 2022).

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