McMichael-Gombar v. Phx. Civil Serv. Bd.

538 P.3d 1032

Stefani MCMICHAEL-GOMBAR, Petitioner/Appellant,

v.PHOENIX CIVIL SERVICE BOARD, et al., Respondents/Appellees,City of Phoenix, Real Party in Interest/Appellee.

No. CV-22-0176-PR

Supreme Court of Arizona.

Filed December 5, 2023

Steven J. Serbalik (argued), Steven J. Serbalik, PLC, Scottsdale, Attorney for Stefani McMichael-Gombar

Richard K. Mahrle, Gammage & Burnham P.L.C., Phoenix, Attorneys for the City of Phoenix Civil Service Board

Diane M. Johnsen, Alexis E. Danneman (argued), Perkins Coie LLP, Phoenix, Attorneys for The City of Phoenix

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, and KING joined.

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 The City of Phoenix (the "City") briefly suspended Phoenix Police Sergeant Stefani McMichael-Gombar for posting content to her Facebook page that violated the Phoenix Police Department's Social Media Policy (the "Policy"). On appeal, the Phoenix Civil Service Board (the "Board") upheld the suspension. The issues here are whether the Board needed to consider McMichael-Gombar's arguments that discipline was either unwarranted or excessive because (1) the Policy is overbroad and violates the First Amendment to the United States Constitution, or (2) she reasonably believed she had a First Amendment right to make the Facebook post. We conclude the Board lacked authority to decide whether the Policy is unconstitutional, either facially or as applied. But McMichael-Gombar was entitled to argue and introduce supporting evidence that she believed she acted within her First Amendment rights.

BACKGROUND

¶2 After receiving notice of her suspension, McMichael-Gombar timely appealed to the Board, giving the following explanation in her written appeal: "I did make the [F]acebook post alleged. I believe the [P]olicy is overbroad and unconstitutional, and that the discipline is excessive and not supported by just [cause]—particularly because my Facebook was set to private." Before McMichael-Gombar's hearing, the City asked the assigned hearing officer to preclude her from introducing evidence or presenting arguments "regarding the constitutionality of the Police Department's Social Media policy." The hearing officer granted the City's request, and according to McMichael-Gombar, she was "not allowed to elicit testimony nor present evidence related to how the [Policy] was unconstitutional nor how it impacted her ability to participate in her private affairs and express her First Amendment rights." The hearing officer ultimately recommended that the Board uphold McMichael-Gombar's suspension.

¶3 The Board reviewed the hearing officer's recommendation during a subsequently held meeting. On the advice of its counsel, the Board, like the hearing officer, declined to consider whether the Policy violated McMichael-Gombar's First Amendment rights. According to McMichael-Gombar, she was therefore "barred from advancing evidence or arguments related to how [the Policy] was over broad [sic] and unconstitutional—both on its face and as-applied." The Board then upheld the suspension.

¶4 McMichael-Gombar next sought special action relief in the superior court. For the first time, she argued that the Board's refusal to consider the constitutionality of the Policy violated "merit principle[s]" underlying the City's personnel system, as stated in the Phoenix City Charter (the "Charter"). She asked the court to remand the matter to the Board for a new hearing "with instructions to permit testimony and evidence relating to the constitutionality of the Policy."

¶5 The superior court declined special action jurisdiction and dismissed the complaint. It reasoned that the Charter neither requires the Board to consider the constitutionality of the City's policies nor authorizes it to do so. The court found that the Board is only required to "determin[e] if the City has proven that the allegations against an employee in a disciplinary notice are true, and if so, whether an appropriate level of discipline was administered."

¶6 The court of appeals vacated the superior court's ruling and remanded the matter for the Board to consider McMichael-Gombar's evidence and arguments. McMichael-Gombar v. Phx. Civ. Serv. Bd. , 253 Ariz. 429, 437 ¶¶ 32–33, 514 P.3d 929, 937 (App. 2022). The court determined that the Board did not have to decide whether the Policy was unconstitutional, either facially or as applied. Id. at 436–37 ¶ 31, 514 P.3d at 936–37. But the court concluded the Board must "determine whether the sanction gives ‘proper regard’ to McMichael-Gombar's constitutional rights." Id. at 436, 514 P.3d at 936. The court did not explain what the Board must do to give "proper regard" to those rights. See id.

¶7 We granted review of the Board and the City's petitions for review to determine the extent of the Board's authority to decide or consider constitutional issues in disciplinary matters, an issue of statewide importance. Although McMichael-Gombar has retired from the Phoenix Police Department, the matter is not moot because reversing the suspension decision could affect her financially. We have jurisdiction over this matter pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶8 We will affirm the Board's decision unless it is "arbitrary, capricious or involved an abuse of discretion." Woerth v. City of Flagstaff , 167 Ariz. 412, 417, 808 P.2d 297, 302 (App. 1990) (quoting City of Tucson v. Mills , 114 Ariz. 107, 111, 559 P.2d 663, 667 (App. 1976) ). A legal error, like the Board misinterpreting its powers and duties under the Charter, may constitute an abuse of discretion. See Shinn v. Ariz. Bd. of Exec. Clemency , 254 Ariz. 255, 259 ¶ 13, 521 P.3d 997, 1001 (2022).

A. The Charter Defines The Board's Powers And Duties.

¶9 The City organized its government under the Charter, which the City's electorate enacted pursuant to the Arizona Constitution's "home rule charter" provision. See Ariz. Const. art. 13, § 2 (authorizing cities with populations greater than 3,500 to "frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state"); Phx. City Charter, Preamble. Within those boundaries, the Charter effectively acts as the City's "local constitution." Piccioli v. City of Phx. , 249 Ariz. 113, 118 ¶ 15, 466 P.3d 1166, 1171 (2020) (quoting State ex rel. Brnovich v. City of Tucson , 242 Ariz. 588, 598 ¶ 39, 399 P.3d 663, 673 (2017) ). But unlike a constitution, which is "a limitation of power," a city charter grants power. Paddock v. Brisbois , 35 Ariz. 214, 220, 276 P. 325 (1929).

¶10 The Charter established a personnel system for classified employees, created the Board, and divided responsibilities for the system among the City Council, the City Manager (acting as the "Personnel Official"), and the Board. See Phx. City Charter, ch. 25, §§ 3, 6–7. The Board consists of five volunteer "residents, citizens and electors of the City," who are appointed by the City Council and serve staggered three-year terms. See id. § 2.

¶11 Among other powers and duties, the Charter tasks the Board with hearing appeals of disciplinary suspensions from classified employees, including police officers like McMichael-Gombar. See id. § 3(3). To fulfill this duty, the Board may adopt procedural rules, hold hearings, and authorize hearing officers to conduct those hearings. Id. § 3(1), (3). When addressing discipline imposed on police officers, the Board is also bound by the "peace officers bill of rights" ("POBR"), which provides minimum rights for all peace officers in Arizona. See A.R.S. §§ 38-1101 to -1120. The Board makes the final, binding disciplinary decision, and no further appeals are permitted. See Phx. City Charter, ch. 25, § 3(3).

¶12 As an administrative body, the Board holds "no common law or inherent powers." See Kendall v. Malcolm , 98 Ariz. 329, 334, 404 P.2d 414 (1965). The Charter, as the authority creating the Board, restricts the Board's powers and duties to those explicitly described in the document or in personnel rules approved by the City Council. See id. ; see also City of Phx. v. Phx. Civ. Serv. Bd. , 169 Ariz. 256, 259, 818 P.2d 241, 244 (App. 1991) (concluding that the Board's powers and duties are "strictly limited" by the Charter); Phx. City Charter, ch. 25, § 8(2)(f) (requiring the City Council to adopt personnel rules governing disciplinary actions). The Board can also exercise powers necessarily implied to effectuate powers expressly granted. See City of Flagstaff v. Associated Dairy Prods. Co. , 75 Ariz. 254, 257, 255 P.2d 191 (1953) ("Implied powers do not exist independently of the grant of express powers and the only function of an implied power is to aid in carrying into effect a power expressly granted." (quoting Associated Dairy Prods. Co. v. Page , 68 Ariz. 393, 395, 206 P.2d 1041 (1949) )). Thus, whether the Board has the power or duty to overturn or modify a disciplinary decision—either because it concludes that the personnel policy underlying it is unconstitutional or that the disciplined employee reasonably believed it so—depends on the scope of authority granted to the Board by the Charter, the personnel rules, and the POBR.

B. The Board's Powers And Duties Do Not Include Deciding The Constitutionality Of Personnel Policies.

¶13 We review the Charter's meaning de novo as a legal issue. See Piccioli , 249 Ariz. at 118 ¶ 15, 466 P.3d at 1171. In doing so, we "examine the [Charter] as a whole along with related provisions in the Charter." Id. If a provision is "subject to only one reasonable interpretation, we apply it without further analysis." See id. (quoting Glazer v. State , 237 Ariz. 160, 163 ¶ 12, 347 P.3d 1141, 1144 (2015) ). But "[i]f more than one reasonable interpretation exists, we will consider secondary principles, including the purpose ... and the effects and consequences of different interpretations, to...