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7/26/2019 Melendres # 1715 Joint Submission Re Internal Investigations
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Cecillia D. Wang (Pro Hac Vice)cwang@aclu.org
Nida Vidutis*nvidutis@aclu.orgACLU FoundationImmigrants Rights Project39 Drumm StreetSan Francisco, CA 94111Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Daniel J. Pochodadpochoda@acluaz.orgBrenda Muoz Furnishbmfurnish@acluaz.orgACLU Foundation of Arizona3707 N. 7th Street, Suite 235Phoenix, AZ 85014Telephone: (602) 650-1854Facsimile: (602) 650-1376
*Application for admissionpro hac viceforthcoming
Attorneys for Plaintiffs (Additionalattorneys for Plaintiffs listed on next
page)
John T. Masterson, Bar #0Joseph J. Popolizio, Bar #0
Justin M. Ackerman, Bar #JONES, SKELTON & HO40 North Central Avenue, Phoenix, AZ 85004Telephone: (602) 263-1700Facsimile: (602) 200-7846jmasterson@jshfirm.com
jpopolizio@jshfirm.comjackerman@jshfirm.com
Attorneys for Defendant Jo
his official capacity as She
County, AZ
Robert J. Moossy, Jr.Deputy Assistant AttorneySteven H. Rosenbaum (NYTimothy D. Mygatt (DC BJennifer L. Mondino (NY BPaul Killebrew (LA Bar NMatthew J. Donnelly (IL BCynthia Coe (DC Bar No.
Maureen Johnston (WA BaU.S. Department of JusticeCivil Rights DivisionSpecial Litigation Section601 D Street NW, Suite 52Washington, DC 20004
Attorneys for the United St
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres et al NO CV 07 02513 P
Case 2:07-cv-02513-GMS Document 1715 Filed 06/14/16 Page 1
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Additional Attorneys for Plaintiffs:
Andre I. Segura (Pro Hac Vice)asegura@aclu.orgACLU FoundationImmigrants Rights Project125 Broad Street, 17th FloorNew York, NY 10004Telephone: (212) 549-2676Facsimile: (212) 549-2654
Anne Lai (Pro Hac Vice)alai@law.uci.edu401 E. Peltason, Suite 3500Irvine, CA 92697Telephone: (949) 824-9894Facsimile: (949) 824-0066
Stanley Young (Pro Hac Vice)syoung@cov.com
Covington & Burling LLP333 Twin Dolphin Drive, Suite 700Redwood Shores, CA 94065Telephone: (650) 632-4700Facsimile: (650) 632-4800
Tammy Albarran (Pro Hac Vice)
talbarran@cov.comLauren E. Pedley (Pro Hac Vice)lpedley@cov.comCovington & Burling LLPOne Front StreetSan Francisco, CA 94111Telephone: (415) 591-7066
Facsimile: (415) 955-6566
Jorge M. Castillo (Pro Hjcastillo@maldef.orgJulia Gomez*jgomez@maldef.orgMexican American LegaEducational Fund634 South Spring StreetLos Angeles, CA 90014Telephone: (213) 629-25Facsimile: (213) 629-02
James B. Chanin (Pro Hjbcofc@aol.comLaw Offices of James B3050 Shattuck Avenue
Berkeley, CA 94705Telephone: (510) 848-47Facsimile: (510) 848-58
*Application for admiss
forthcoming.
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Pursuant to the Courts order during a conference on May 31, 20
jointly submit this memorandum stating their respective positions on th
investigations that should be conducted by an independent authority an
that should apply in such investigations. See Findings of Fact (Doc. 16
Plaintiffs and the United States note that, after providing Defend
Plaintiffs and the United States sections of the memorandum and cond
telephonic conference, Defendants provided their sections of this joint m
on the date of filing and did not advise Plaintiffs that Defendants intend
briefing and legal argument. Plaintiffs and the United States note that t
already had an opportunity to brief these issues in their May 27 memor
Defendants submission is beyond the scope of the Courts direction fo
memorandum. Plaintiffs and the United States respectfully request leav
brief if helpful to the Courts consideration of the matters herein. Defe
with Plaintiffs characterization of the timing and content of Defendant
Joint Memorandum. If the Court allows Plaintiffs to file a responsive b
request, Defendants request that the Court grant them the opportunity t
Plaintiffs response.
PLAINTIFFS AND THE UNITED STATES POSIT
I. Procedural Matters and Vesting of Independent Authorit
Plaintiffs and the United States maintain that the Court-appointe
be authorized to conduct the internal affairs investigations that should b
pursuant to Paragraph 903 or initiated pursuant to Paragraphs 904 or 90
in which members of the Monitor team have a conflict that cannot be re
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Plaintiffs and the United States also maintain that the Monitor, o
independent authority where one is appointed by the Court, should hav
to determine discipline according to the applicable MCSO discipline m
opened under Paragraph 903 or initiated under Paragraphs 904 and 905
Plaintiffs and the United States propose that if the Monitor (or other ind
authority, if appointed) decides that the appropriate discipline is suspen
termination, the employee should receive a letter notifying him or her o
discipline. The employee should then be given an opportunity to have a
hearing before the Monitor (or independent authority, if appointed). Th
adequate to protect the employees due process rights under Cleveland
Loudermill, 470 U.S. 532 (1985). After the Monitor (or independent au
appointed) imposes final discipline, employees should be afforded the r
final decision of the Monitor (or independent authority, if appointed) to
County Law Enforcement Merit Commission (the County Merit Comm
Employees have a right to such an appeal under state law, which this C
upon a showing that the state law stands as an impediment to the enforc
court orders or federal law. See,e.g.,Missouri v. Jenkins, 495 U.S. 33,
(finding that a district court order imposing a tax increase to fund a des
contravened the principles of comity that must govern the exercise of
equitable discretion because the district court could have ordered the l
authority to raise the necessary revenue itself). The Monitors (or if ap
independent authoritys) findings and disciplinary decision should be p
County Merit Commission. If the County Merit Commission alters or
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(Doc. 1677), the 180-day statute of limitations under A.R.S. 38-1110
to the enforcement of federal law and the Courts orders. This finding i
by the Courts previous Findings of Fact and implicit in its order that in
void must be re-done. The Court should also order the County Merit Co
rescind or alter investigatory findings or discipline based on the statute
Plaintiffs and the United States submit that all findings of fact m
in the contempt proceeding (Doc. 1677), after a full evidentiary hearing
the basis for findings in internal investigations (i.e., Sustained, Not Sus
Unfounded) and for imposition of discipline in matters relating to these
For future investigations undertaken by the Monitor under Parag
Plaintiffs and the United States request that the Court order procedures
Monitor to conduct such IA investigations and to determine discipline
appeal procedures outlined above), and as set forth in Plaintiffs Memo
Remedies for Civil Contempt (Doc. 1684) at 8-9. However, in order to
personnel with training and guidance for sustainable reform, Plaintiffs
States submit that the Court should grant the Monitor the authority to d
responsibilities to MCSO personnel in individual cases, in full or in par
and supervision by the Monitor. Consistent with this Courts Order of
2014 (Doc. 795) at 18, individual members of the Monitor team who be
conducting investigations should be walled off from other members of
1As set forth in Plaintiffs Memorandum on Remedies for Civ1684), Plaintiffs and the United States maintain that the Monitorauthority in all IA cases involving policy violations bearing on issues rincluding all potential policy violations relating to improper deten
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Plaintiffs and the United States further submit that any recently i
investigations based upon the review of newly reviewed Armendariz-r
(see, e.g., Doc. 1710) should be subject to the procedures ordered by th
Paragraph 905.
II. Matters Subject to Immediate Determination of Disciplin
Plaintiffs and the United States request that, as to the principals
as contemnors and therefore had an opportunity to be heard (Chief Dep
Lieutenant Sousa), the Monitor or the Court immediately determine app
in the IA 14-542 and 14-543 cases relating respectively to commanders
supervision of Deputy Charley Armendariz and violations of the Court
injunction. The Courts contempt findings thoroughly address the facts
investigations and no further investigation or process is necessary for th
Plaintiffs and the United States also request that the Monitor or t
immediately determine appropriate discipline for the making of willful
made to the Court and the Monitor by Chief Deputy Sheridan (Doc. 16
326, 333-39, 348, 385, 816, 832).
Plaintiffs and the United States also submit that all final discipli
reached in the internal investigations listed in Defendants spreadsheets
related investigations (Doc. 1673-1 and Doc. 1674) should be immedi
the Monitor to determine whether the facts as set forth in the IA files co
discipline imposed and the applicable MCSO discipline matrix. This p
focused on compliance with the discipline matrix in these IA cases, sho
re-investigation of any of the facts underlying these matters as set forth
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A. IA Cases 14-542 and 14-543: As to employees involved
underlying these two investigations other than Chief Deputy Sheridan a
Sousa, these cases should be re-investigated and proper discipline impo
B. Policy Violations in Mishandling of Internal Investiga
Investigation of Chief Deputy Sheridan, Captain Bailey, Sergeant Tenn
Zebro, and any other MCSO personnel for violations of MCSO policy
internal investigations relating to this litigation. This should include, a
1) The IA cases found by this Court to have been invalid
as listed in the Appendix to the United States Memor
Response to Findings of Fact (Doc. 1685).3 Priority s
an investigation of mishandling of the 14-295 and 14-
to thefts and mishandling of civilian property by MCS
to improper practices in IA case 14-221 including the
of multiple instances of misconduct and attribution of
apparently committed by numerous individuals to a de
2)
The Defendants apparent failure to initiate IA investi
events of May 14, 2014 (Count Three).
3) The handling of the investigation of the 1,459 IDs in S
possession, including the conduct of Chief Deputy Sh
Bailey, among others.
4) The failure to investigate clear indications of retaliatio
MCSO deputy in connection with his internal compla
against fellow deputies in the IA 12-11 case. SeeEx.
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ground that he was not the only deputy involved in th
the property. Ex. 2062; Tr. of Sept. 24, 2015, at 120
6) Examination of the disciplinary findings in IA case 14
concerned derogatory racist comments about Mexican
MCSO detention sergeant and directed toward a Latin
officer. The record indicates that the allegations were
categorized under the MCSO discipline matrix. SeeE
of Oct. 27, 2015, at 3584-89.
C. Truthfulness Violations
1) Investigation of policy violations in connection with w
statements made to the Court and the Monitor by Chie
Captain Bailey. SeeDoc. 1677, 87, 229-30, 326, 3
816, 832.
2) Investigation of any MCSO personnel who have claim
in their possession, or otherwise not properly account
for training purposes, to determine whether such state
truthful. Id. 638.
D. Mishandling of the Courts Orders Relating to Preser
Documents
1) Re-investigation of the 1,459 IDs in Sergeant Knapp
2) Investigation of the handling of the 50 hard drives obt
Defendants from Dennis Montgomery.
E. Policy Violations During Recorded Stops
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suggested that the MCSO investigator did not bother t
eyewitnesses (the passengers in the vehicle). Ex. 278
2015, at 3845-48.
3) Re-investigation of IA cases 14-545 (see Doc. 1677,
and 14-563, which involved recorded traffic stops in w
reviewing MCSO lieutenant believed there was no ap
stop. Ex. 2943; Tr. of Oct. 28, 2015, at 3804-05.
F. Theft and Mishandling of Property: Investigations int
items of evidence/property. Priority should be given to:
1) Re-investigation of the IA 14-295 and IA-541 matters
Deputy Cisco Perezs allegations of pocketing of ite
Human Smuggling Unit personnel. (This investigatio
specifically include, among other issues, the role of O
Montoya in connection with allegations of theft includ
IA 15-18, also listed below.)
2)
Re-investigation of IA 15-18 concerning the discovery
departmental reports, license plates, IDs, and a passpo
found this investigation to be invalid. Doc. 1677, 73
3) Re-investigation of IA 15-21 (and criminal case CIA
the possible theft of $260. The Court found this matte
investigated. Id. 748-51.
4) Re-investigation of cases IA 14-774 through IA 14-78
and/or license plates linked to deputies other than Dep
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5) Re-investigation of IA 14-801, which involved the im
license plate from a Plaintiff class member and the im
the IA investigation. Id. 720 n.40.
6) Investigation of Detective Frei for destruction of evid
memorandum to Captain Bailey) in the course of an IA
relating to mishandled IDs. Id. 699.
7)
Re-investigation of IA case 15-22 concerning mishand
Deputy Hechavarria. Ex. 2062; Tr. of Sept. 24, 2015,
IV. Provision for Monitor or Parties To Raise Additional Ma
Investigation
Plaintiffs and the United States request that the Court permit the
Monitor to identify additional matters for investigation as the foregoing
investigated and facts are developed and disclosed. Plaintiffs and the U
request that documents relating to investigations by the Monitor be pro
parties, subject to any appropriate protective orders, after the investigat
and discipline is determined.
SHERIFF ARPAIOS POSITION
I. INDEPENDENT THIRD PARTY NOMINATION & POWE
A. Proposed appointment procedure for the Independent
Cognizant that the Court wishes to swiftly see the appointment o
third party to oversee both new and re-opened IA investigations set fort
of Fact, the parties suggest the following expedited nomination procedu
Plaintiffs and Defendants will nominate three candidaf th i d d t thi d t iti
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by a date and time certain as ordered by the Court.
After which, the remaining names will be submitted b
Parties to the Court without identifying which Partynominated the candidate. The Court will then select tIndependent Third Party.
This procedure is an accelerated one that will permit the parties to prov
candidates from each party for the Courts consideration.
B. Disciplinary powers of the Independent Third Party.
The independent third party can impose discipline pursuant to th
MCSO disciplinary matrix.4 In addition, any determination made by th
party regarding the IAs ordered by the Court should be final, subject to
administrative and/or appellate process provided under Arizona state la
II.
NEW AND RE-OPENED IA INVESTIGATIONS.
A. New and re-opened IA Investigations to be conducted
1. Sheriff Arpaios concerns regarding use of the Cto conduct IA investigations and impose discipl
While the Court has inherent power to invoke the weight of the
if state and local authorities, who have the primary responsibility for cu
violations, fail in their affirmative obligations to correct constitutional
Milliken v. Bradley, 433 U.S. 267, 281 (1977), there are limits to the Co
power to do so. Under Article III, the judicial power granted to federal
unconditioned authority to determine the constitutionality of legislative
Planned Parenthood of Heartland v. Heineman, 724 F. Supp. 2d 1025,
2010). Injunctive relief must be tailored to the actual harm proven at tr
Casey, 518 U.S. 343, 358 (1996). Moreover, a courts exercise of its c
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Rizzo v. Goode, 423 U.S. 362 (1976), is instructive on this issue
were allegations that the Mayor, Police Commissioner of Philadelphia,
permitted a pervasive pattern of illegal and unconstitutional mistreatme
minority citizens and other residents. Id.at 366. The district court imp
comprehensive program for addressing such complaints. Id.at 362-63.
Court struck down the district courts injunction, holding that the distri
overstepped its constitutional bounds. [T]he principles of federalism .
important part in governing the relationship between federal courts and
. . . [w]hen it injected itself by injunctive decree into the internal discip
this state agency, the District Court departed from these precepts. Id.
added). The Supreme Court continued:
Where, as here, the exercise of authority by state officiattacked, federal courts must be constantly mindful ospecial delicacy of the adjustment to be preserved betfederal equitable power and State administration of itslaw.
Id.at 378 (citations and quotations omitted).5 This delicate balance req
to have the widest latitude in the dispatch of its own internal affairs.I
Cafeteria and Restaurant Workers Union Local473 A.F.L.-C.I.O. v. M
886, 896 (1961).
The failure to protect these sovereign choices is a failure to abid
Clause in Article IV, 4, the Tenth Amendment of the United States C
ignores the federal judiciarys duty to preserve the healthy balance of
States and the Federal Government [designed to] reduce the risk of tyra
from either front. Gregory v. Ashcroft, 501 U.S. 452, 458, 463 (1991)
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(quoting U.S. Const. art. IV, 4).6 The overarching concern is particul
given that Arizona county sheriffs derive their powers directly from the
Constitution. AZ. CONST., art. XII, 3, 4 (A county sheriff occupies
created, independently-elected county office with powers . . . as prescr
Vesting final decision making authority over IA investigations in
authority is counter to the well-established rule that [a local governme
traditionally been granted the widest latitude in the dispatch of its own
Rizzo, 423 U.S. at 378-79 (internal quotations and citations omitted); se
Jenkins, 495 U.S. 33, 52 (1990) (local officials should at least have the
devise their own solutions to [their own] problems before intervention
district court). Nevertheless, in a good faith effort to reconcile the Cou
remedial efforts required to restore the Courts and the communitys co
processes and the required latitude afforded to MCSO in handling its in
Sheriff Arpaio agrees to vest such authority in an independent objectiv
2. Sheriff Arpaios concerns regarding constitutioissues and the Arizonas Police Officers Bill of
Sheriff Arpaio also reiterates to the Court his constitutional due
regarding re-opening closed IA investigations and potential issues invo
A threshold requirement to a substantive or procedural due process cla
showing of a liberty or property interest protected by the Constitution.
California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994
Regents v. Roth, 408 U.S. 564, 569 (1972); Kraft v. Jacka, 872 F.2d 86
1989). A protected property interest is present where an individual has
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expectation of entitlement deriving from existing rules or understandin
an independent source such as state law.Roth, 408 U.S. at 577. A rea
expectation of entitlement is determined largely by the language of the
extent to which the entitlement is couched in mandatory terms.Associ
Co. Deputy Sheriffs v. Gates, 716 F.2d 733, 734 (9th Cir. 1983), cert. d
937, 104 S. Ct. 1909, 80 L.Ed.2d 458 (1984). Although procedural requ
ordinarily do not transform a unilateral expectation into a protected pro
an interest is created if the procedural requirements are intended to be
substantive restriction on ... decision making. Goodisman v. Lytle, 72
(9th Cir.1984) (citations omitted).
The Ninth Circuit has found that various state statutes and city c
constitutionally protected due process rights. See Wedges, 24 F.3d at 6
is created by the Phoenix City Code requiring the city to issue an opera
coin-operated machine satisfies the regulatory definition of a game of
City of Santa Ana, 915 F.2d 424, 429 (9th Cir. 1990) (finding constitut
property interest in merit pay where city grievance procedure implicit
City's authority to demote an employee).7
Similarly, Defendant Arpaio reiterates that the Arizona Police O
Rights createsfederallyprotected constitutional rights. Arizona has co
comprehensive police officers bill of rights. A.R.S. 38-1101-111
this statutory scheme is to provide special protections for law enforcem
including those at MCSO, who are subject to an internal affairs investig
disciplinary action. See A.R.S. 38-1101(8)(c) (Law enforcement off
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nonprobationary regularly appointed and paid deputy sheriff of a count
scheme, in part, ensures that officers receive adequate notice of an inter
(A.R.S. 38-1104(A)), the names of all individuals associated with the
(A.R.S. 38-1106(A)(1)), notice of similar discipline ordered against o
(A.R.S. 38-1104(E)), just cause for termination (A.R.S. 1101(7), s
for conducting an IA investigation (A.R.S. 38-1110), and specific app
a disciplinary decision (A.R.S. 38-1106, -1107). These statutes crea
protected due process rights because they stem from state law and cont
standards or criteria to create a property interest. Allen v. City of Beve
367, 370 (9th Cir. 1990); see also Roth, 408 U.S. at 577; Gates, 716 F.2
With respect to 903-905 of the Courts Findings of Fact (Doc
38-1110 provides that an employer shall make a good faith effort to co
investigation of employee misconduct within one hundred eighty calen
employer receives notice of the allegation by a person authorized by th
initiate an investigation of the misconduct. Failure to conduct an inve
one hundred eighty calendar days may result in the appeal board dismis
ordered if it is determined that the employer did not make a good faith
the investigation within one hundred eighty calendar days. A.R.S. 38
addition, if an officer is successful in reversing a termination on appeal
awarded monetary damages and attorneys fees. See A.R.S. 38-1106
(E). Invalidating previous IA investigations, disciplinary decisions, an
decisions by MCSO and instituting new ones in their place might viola
provisions of the statutory scheme. Likewise, the new investigations o
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Enforcement Merit System Counsel8or an Arizona court, and such disc
it is questionable whether this Court can lawfully invalidate that decisio
Gruntz, 202 F.3d 1074, 1078 (9th Cir. 2000) (Thus, it follows that fed
have no authority to review the final determinations of a state court in j
proceedings.) (citation omitted).10
3. The Courts Findings of Fact should not be inclinvestigation ordered by the Court.
In order to accommodate the due process rights stated in the sect
investigations ordered by this Court should be wholly separate, and ind
Courts Findings of Fact (Doc. 1677). Sheriff Arpaio, Chief Deputy Sh
Sousa, and the other unnamed parties in this action were never on notic
of the contempt proceedings was to conduct a fact finding investigation
of MCSOs internal affairs investigations, or the adequacy of discipline
result of those investigations. [See Doc. 880 (setting forth the issues to
contempt proceeding as follows: (1) failing to implement and comply w
8
The Law Enforcement Merit System Counsel operates indepenCounty.9 Pursuant to A.R.S. 38-1106, -1107, it is an individua
discipline imposed as a result of any IA ordered by this Court to thCourt. See also A.R.S. 38-1107(A) (If a law enforcement offterminated as the result of an employer reversing the decision or rehearing officer, administrative law judge or appeals board the law emay bring an action in superior court for a hearing de novo ontermination.). If the Court orders new IAs and MCSO agrees to t
Arpaio believes that any new IA resulting in a demotion or terminemployee would implicate this statutory provision. Moreover, becausthe parties agree that MCSOs disciplinary matrix will be applied to anfrom the new and re-opened IA investigations, Sheriff Arpaio assertsPolice Officers Bill of Rights applies to any investigations ordered by
10Accord Dubinka v. Judges of Superior Court of State of Cal
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preliminary injunction; (2) violating discovery obligations; and (3) acti
the Courts May 14, 2014 Order)].11
As such, the civil contemnors and others did not have a full and
address the full gamut of the issues involved in the IA investigations in
Court and future ones that the Court has contemplated in its Findings o
Specifically, the Courts Findings of Fact invalidated previous IA inves
suggested additional investigations on the basis that [a]n effective and
affairs policy is a necessary element of the MCSOs self-regulation an
litigated for the court were relevant to assessing relief in the contemp
[Doc. 1677 at 889]. Therefore, given that the Courts Findings of Fac
investigations went to the remedy the Court would order as part of the t
defined topics in the Courts Order to Show Cause, and were not intend
evaluation of the investigations themselves or the discipline to be impo
independent fact finding and investigation should occur duringany new
Court.
4.
Investigations involving MCSO command staffthe Courts Findings of Fact, and those that invof the plaintiff class should be conducted by thethird party.
Any investigation or re-investigation of MCSO command staff s
Courts Findings of Fact should be conducted by the appointed indepen
authority. In order to have a truly independent investigation into matte
Findings of Fact, the person conducting the investigation should not be
is an agent of the Court. An inherent conflict exists if the Monitor reac
conclusion in its investigation than the Court reached in its Findings of
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in light of the due process concerns expressed in the preceding sections
investigations should be entirely new investigations, based on an objec
review of the facts, and carried out by an independent authority that ha
prior involvement in the events at issue.
Sheriff Arpaio reiterates that during the May 31, 2016 hearing, t
stated that it will carefully consider Sheriff Arpaios proposals on this i
extent the Court and the Sheriff can arrive at an agreement, that the Couought to make that effort. [5/31/16 RT at 75-76]. In light of the conce
Sheriff regarding the independence of the Courts Monitor, Sheriff Arp
reasonable middle ground for the IAs that the Court is going to order a
Findings of Fact is that they should be performed by the independent th
5. Investigations involving other MCSO personneperformed by MCSO with the Monitors superv
Any investigation or re-investigation not involving MCSO comm
interests of the plaintiffs class should be performed by MCSOs Profes
Bureau (PSB), and be completely transparent to the Courts Monitor
IA function is being carried out in a responsible manner. Pursuant to th
recommendations, the following is Sheriff Arpaios proposed procedur
PSB will conduct the initial investigation, which wpresented to Captain Stephanie Molina for findings.
Upon completion of the findings, the packet will be s
the legal liaison for Compliance to complete its qcontrol check. If there is an identifiable issue that PSB attention, the packet will be resubmitted to PSB.
Once approval from Compliance is obtained, the pwill then be presented to the Appointed Authority.
k t l t t ffi th A i t d A t
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Authority regardless of whether PSB makes a sustainnon-sustained finding.
The Chief Deputy will make a final review oAppointed Authoritys findings.13
All findings and discipline imposed by the AppoAuthority and Chief Deputy will be reported tMonitor and the Court.
If the investigation is at the District level, the following pr
followed: The assigned district investigator (a MCSO command
deputy) will perform the investigation.
Once completed, PSB will perform the quality contall district investigations. Additional sworn pershave been added to PSB to assist with the incrcaseload and quality control with district cases.
If the district investigation is not satisfactory, it wreturned to the district for completion.
Chief Kenneth Holmes will review the dinvestigation and make a final determination.
All findings and discipline imposed by Chief KeHolmes will be reported to the Monitor.
B. Use of the Courts Findings of Fact during new and reinvestigations.
As stated above, Sheriff Arpaios position on this issue is that th
conducted by either the independent third party or MCSO cannot rely o
Findings of Fact, especially when direct application of the Courts Find
implicate termination under MCSOs disciplinary matrix. Discharge o
assumes a constitutional dimension when the employee has a property i
continued employment and, therefore, he may not be terminated withou
g
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of Regents v. Roth, 408 U.S. 564 (1972)).
Application of the Courts Findings of Fact, particularly those th
findings of truthfulness, to any future IA investigation would preclude
investigation of facts and determination of discipline by the independen
simply move straight to imposing discipline. This is not the kind of du
Supreme Court and the Ninth Circuit has held is required for such a sig
deprivation of a deputys property interest in continued employment atCleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (the r
of the Due Process Clause is that an individual be given an opportunit
beforehe is deprived of any significant property interest.).
III. NEW IAS LISTED BY PLAINTIFFS.
Plaintiffs have listed various IA investigations in Section III of t
this Court should order to be investigated. Without waiving any rights
Courts authority to invalidate or institute new IA investigations, Sherif
contest the institution of any IA ordered by this Court pursuant to its Fi
with the exception outlined below regarding the Chief Deputy.14
Howe
Arpaio cannot waive a principals right to challenge the re-opening
new IAs ordered by this Court based on any applicable state or fed
IV. IA INVESTIGATIONS TO BE CONDUCTED INVOLVINGDEPUTY SHERIDAN.
1.
The Chief Deputy is not subject to MCSOs dis
The Maricopa County Attorneys Office (MCAO) recently iss
opinion stating that the Chief Deputy of MCSO is not subject to the MC
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matrices because he is an unclassified employee and that only the Sher
the Chief Deputy. [See MCAO Opinion No. 2016-001, attached as Exh
Accordingly, pursuant to the authority stated in MCAO Op. No. 2016-0
Deputy will not agree to be subject to discipline pursuant to MCSOs d
for any new or re-opened IA ordered by the Court.
2. The Chief Deputy agrees to application of the dfor IA 543.
Although not required, the Chief Deputy will accept the original
findings of Donald Vogel that Chief Michael Olson previously sustaine
40 hours, (but then overturned following Chief Sheridans name clearin
outlined in the Courts Findings of Fact at paragraph 435. As a gesture
light of the Courts Findings of Fact, Chief Deputy Sheridan will acceppreviously imposed (a suspension of 40 hours) for these findings pursu
disciplinary matrix.15
* * *
DATED this 14th day of June, 2016.
By: /s/ Cecillia D. WangCecillia D. Wang (Pro Hac VAndre I. Segura (Pro Hac ViNida Vidutis*ACLU Foundation
Immigrants Rights Project
15 While Defendants are committed to doing everything in their
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Daniel PochodaBrenda Muoz FurnishACLU Foundation of Arizon
Anne Lai (Pro Hac Vice)
Stanley Young (Pro Hac VicTammy Albarran (Pro Hac VLauren E. Pedley (Pro Hac VCovington & Burling, LLP
Jorge M. Castillo (Pro Hac VJulia Gomez*Mexican American Legal DeEducational Fund
James B. Chanin (Pro Hac V
Attorneys for Plaintiffs
*Applications for admission pro hac vice forthcoming
Jones, Skelton & Hochuli, PBy: /s/John T. MastersonJohn T. Masterson
Joseph J. PopolizioJustin M. Ackerman40 North Central Avenue, SuPhoenix, Arizona 85004Attorneys for Defendant Jos
the Maricopa County Sheriff
Robert J. Moossy, Jr.Deputy Assistant Attorney GCivil Rights Division
Steven H. RosenbaumChi f S i l Liti ti S
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Matthew J. Donnelly (IL BarCynthia Coe (DC Bar No. 43Maureen Johnston (WA Bar Trial AttorneysU.S. Department of JusticeCivil Rights DivisionSpecial Litigation Section601 D Street NWWashington, D.C. 20004Telephone: (202) 305-3239
paul.killebrew@usdoj.gov
Attorneys for the United Stat
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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of June, 2016, I caus
document to be filed electronically with the Clerk of Court through the
for filing; and served on counsel of record via the Courts CM/ECF sys
/s/ Cecillia D. Wang
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SHERIFF ARPAIO
EXHIBIT A
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ffiIurropn
@oun
ty
ttwfiey
Brr-r-
MorurcoMERY
301 WESTJEFFERSON
STREET, SUITE
8OO
PHoENIX,
ARIZoNA
85OO3
WVVW. MARICOPACOUNTYATTORNEY.ORG
Joseph
M.
Arpaio
Maricopa County Sheriff
550
W.
Jackson
St.
Phoenix,
Arizona
85003
SYLLABUS:
PH.
(602)
506-1 260
TDD
(60
5,06-4352
FAX
(602)
506-8
102
[Government
Advice
-
Maricopa
County
Sheriff's
Office
-
Chief
Deputy]
Opinion No.20l6-001
June
14,
2016
The
Maricopa County Sheriff
is
the appointing authority under
Arizona law
for
the
Chief Deputy of
the
Maricopa
County
Sheriff's
Office.
The
Chief
Deputy
was lawfully
appointed;
his
current employment status
is
unclassified;
and he
is exempt
from
the
Fair
Labor and
Standards Act.
The
Chief
Deputy
qualifies
as
a
law enforcement officer under Title 38, but
he
is
not subject
to
the
protections
set forth in
Title
38 due
to his
unclassified
( at
will ) employment status. Similarly,
the
Chief
Deputy
is
exempted
from
the Law Enforcement Officers Merit
System. As an unclassified,
exempt employee,
the Chief
Deputy
is
subject
to the Maricopa County
Sheriff's
Office
Disciplinary
Policy,
GC-17, dated
December
4,2013;
however,
he is not subject to the discipline
matrices in
the
policy because
they only
apply
to
classified
(exempt
and non-exempt)
employees.
Procedure 10
of
Disciplinary
Policy
GC-17
applies
to
the
Chief
eputy
because
it
governs
the discipline of
unclassified
employees.
Specifically,
it
entitles
unclassified
employees
to a
name clearing hearing following
the
imposition
of certain
discipline. Under
Arizona law,
only
the
appointing
authority or
his designee
may impose
discipline on
employees,
including the
Chief
Deputy.
Finally,
Arizona
law
specifically
requires
the Chief
Deputy
to
serve as Sheriff
in
the
event of a
vacancy.
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Sheriff Arpaio
June 14, 2016
Page
2
Dear Sheriff
Arpaio
You
have
asked for an
opinion about the
legal status of
the
Chief
Deputy
position
with
respect
to: the
Chief
Deputy's employment
status;
whether the
Chief
Deputy is subject
to
the
Disciplinary
Policy and
its
matrices;
and
a
summary
of
the Chief
Deputy's
statutory duties.
L
Backqround Rules and
Statutes
The appointment
of employees
in the Maricopa
County
Sheriff's Office
is
governed
by the
following Arizona
Revised
Statutes
in
whole or
part:
S
11-401. Enumeration of officers
A. The officers
of the county are:
1. Sheriff...
S
11-409.
Deputies and
employees:
appointment
The county
officers enumerated
in
section
11-401,
by and with
the
consent of,
and
at salaries
fixed
by the
board,
may
appoint
deputies,
stenographers,
clerks
and
asslstants
necessary
to
conduct
the
affairs
of their respective
offices.
The
appointments
shall
be in writing.
S
1 1-419. County
salaries
. .
.
C. Each of the
officers
named in subsections
A
and B, other
than the board of supervisors
and
the county
attorney, may
appoint
a chief deputy who
shall
receive an annual salary
agreed
upon by
the board
of supervisors
and the
officer appointing
the deputy.
Pursuant
to the above statutes,
the Sheriff may
appoint
in
writing
a Chief
Deputy,
subject to
the
consent of
the Board
of Supervisors,
at an
annual
salary
agreed
upon by the Sheriff and
the
Board. After a Chief
Deputy is
properly
appointed,
only the Sheriff
has
the
authority
to discipline the
Chief
Deputy.
See
Hounshell
v.
White,
220 Ariz. 1, 202 P.3d
466
(App.
2009)
(holding
that county sheriff
was the
sole
appointing
authority
with
respect
to his or
her
own
deputies
and
employees
pursuant
to
statute which
permits
only
the
appointing
authority to
dismiss, suspend, or reduce in
rank).
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Sheriff Arpaio
June 14,2016
Page 3
Also applicable
to
your
inquiry are the
following Arizona
Revised Statutes
from Title 38:
S
3B-1 101 . Definitions
ln
this article, unless
the context otherwise
requires:
. .
.
8,
Law
enforcement
officer
means:
(a)
An
individual, other
than
a
probationary
employee,
who is
certifed by
the Arizona
peace
officer
standards and traning
board,
other than a
person
employed
by
a
multi-county
water
conservation
district.
(b)
A
detention or corrections
officer, other than
a
probationary
employee or
juvenile
detention offcer, who
is
employed by this
state or a
political
subdivision
of
this
state.
(c)
A nonprobationary
regularly appointed
and
paid
deputy
sheriff of
a county.
(d)
A nonprobationary
regularly
employed
police
officer in a city or town
s
38-1102. Peace officers bill
of
rlct
hts
:
nreemnlion
A
peace
officers bill of
rghts is
established.
This article
does not
preempt
agreements that
supplant, revise
or otherwise
deviate
from
the
provisions
of this article,
including written
agreements
between
the employer and the law
enforcement officer or the
law
enforcement
officer's
lawful
representative
association.
These
statutes
govern
whether
a
law
enforcement
officer
is entitled to the
protections
set forth in the
peace
officers
bill of rights section of Title
38.
The Law Enforcement Officers Merit System specifically
exempts the
Chief Deputy
from
coverage.
Both the
Law Enforcement Officers Merit
System
Resolution
Section 6 and Law Enforcement
Officers Merit Rule
2.03
state:
[O]ne
Chief Deputy
who
is
designated either
by
statute
or
the
Sheriff to act and
perform
duties
of
the Sheriff during
his absence
or
incapacity
shall be
exempt from the
provisions
of this
Resolution.
The
Maricopa County Sheriff's Office
Disciplinary Policy, GC-17, dated
December 4,
2013,
is also
relevant to
your
inquiry because
it applies
to
all
employees,
regardless
of
classification
and Fair
Labor
and
Standards
Act
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SheriffArpaio
June 14, 2016
Page
4
( FLSA )
status,
and is attached to
this
opnion.
Procedure 10
of
the
policy
specifically
governs the discipline of
unclassified
employees
and provides:
Suspension. Dengtign.
.. And
Dismissal
of an
Unclassified
Employee:
An
unclassified
employee is
not
covered
by
a Merit
System and, therefore, shall not
be
granted
a PDH
prior
to
imposing
suspension,
demotion, or dismissal.
An
unclassified
employee,
will,
however,
be
given
the option of attending
a
Name
Clearing
Hearing
prior
to any suspension,
demotion
or
dismssal.
A.
An
unclassified
employee is not obligated
to attend
the
Name
Clearing
Hearing
as
attendance
is
voluntary.
B.
Any
verbal
or
written
statements
made
during
the
Name
Clearing
Hearing
may be used to incriminate the employee.
C.
The
Name
Clearing
Hearing
will be recorded.
D.
Employees
may
submit
information in
writing in
addition
to
or
instead
of
attending
the hearing.
E.
The
employee may
be
placed
on Administrative
Leave with Pay,
as specified
in
this Policy.
F.
Discipline
imposed is not subject
to appeal
to the
County Merit
Commission.
Also
relevant
to this opinion is
the
Maricopa
County
Human Resources
Department's
Employee
Acknowledge Form
because
it
is a written
record of an
employee's
appointment
and status
in Maricopa
County. Accordingly,
the
current Chief
Deputy's form
is attached.
Finally,
the following
statute assigns
a specific duty to the Chief Deputy:
S
11-443. Vacancy in
office
When
a vacancy
occurs in the otfice of
sheriff the chief deputy shall
execute
the office untilthe vacancy
is filled.
Collectively,
the
statutes,
case
law,
policy,
and employment
agreement
are relevant
to
your
inquiry because
they
govern
the
issues
presented
for
analysis below.
of the Chief
De
l
Emplovment
Status.
Position and th Chief
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Sheriff
Arpaio
June
14,2016
Page
6
As an
unclassified
and
full-time employee,
Procedure
10
of
the
policy
applies in
the
event
that the
Chief Deputy
s
subject
to
discipline.
Among other
things,
Procedure 10
specifically
gives
the Chief
Deputy the
opportunity
to
participate
in a
name clearing hearing,
authorizes administrative
leave
with
pay,
and
prohibits
an
appeal
of
any
disciplinary
decision. Therefore, any
discipline
imposed
on
the Chief
Deputy must
comport with
this
procedure.
The disciplinary
matrices
in
MCSO
Disciplinary
Policy GC-17 only
apply
to
exempt
and non-exempt
regular
status MCSO
employees. The
policy
specifically
defines
regular
status
employees
as
the
standing
an
employee
receives
under
the
applicable County Merit
System
when occupyng a
position
of
the
classified service following
the
successful completion
of
the
initial
probation
period.
ln shoil,
only classified
employees
have
regular
status .
Unclassified
employees
do not have
regular
status
and are
not subject to the
disciplinary
matrices
in the
policy.
Thus,
the Chief Deputy,
an unclassified
employee, is
not
subject
to the
disciplinary
matrices.
V.
The Statutory
Duties
of
the Chief
Deputy
The
duties of
the
Chief
Deputy
are
generally
subject to
the discretion
of
the Sheriff
in
executing
the
powers
and duties assigned
to him
by A.R.S. Title 11,
Chapter
3, Aicle
2
Sheriff,
primarily
A.R.S.
S
11-441,
One statute, however,
applies
specifically
to the
Chief
Deputy,
A.R.S.
g
11-443,
which provides, When
a vacancy
occurs in
the office
of
sheriff
the chief
deputy shall execute
the
office
until
the vacancy
is
filled. As a result,
unlike vacancies
in other
county
officer
positions,
the
statute
automatically
promotes
the
Chief
Deputy
to Sheriff
in the
event
of a vacancy
until it
is
filled, likely
in order
to
ensure
public
safety
during
an
unexpected
vacancy.
Aside from
this
statute,
the Chief Deputy
does
not
have
any
specific
statutory
duties.
Very
truly
yours,
MARICOPA COU
NTY ATTORNEY
Recommended