Since Personnel Reform in 2012 made changes to the disciplinary appeals process, AHPA has been working to fix a problem that was never broken. The Law Enforcement Merit System Council (LEMSC) lost its authority after those changes were implemented, in essence allowing the agency head to overturn the Council’s final decision on an appeal. This organization is committed to finding sound resolutions to help all DPS employees impacted by personnel reform.
LEMSC was the final decision for (most importantly) a DPS employee’s discipline and termination before personnel reform. Removing LEMSC’s binding authority decreased objectivity and increased superior court cases for employee grievances. Gail Goodman, chair of LEMSC, has stated during multiple legislative hearings that the council’s power has been “gutted”.
After the sunset review of LEMSC last year, AHPA, along with FOP, began working with Representative Sonny Borrelli to change the language for LEMSC’s abilities back to what it was before personnel reform. Representative Borrelli introduced HB 2377 in January and it has been moving through the legislature. The current provisions state:
1. Eliminates the ability of the Director or state agency head to modify, reverse or reject LEMSC’s decision or recommendation related to an appeal of disciplinary action.
2. Specifies LEMSC’s determination is final and binding unless appealed to the superior court by the Director or employee.
3. Removes the requirement for LEMSC to determine whether the employing agency has proven the material facts on which the discipline was based, and instead requires LEMSC to determine whether the agency had just cause to discipline the employee.
4. Permits LEMSC to impose appropriate discipline if the decision of the Director of the employing agency or state agency is reversed.
5. Defines just cause as:
a) the employer informed the officer of the possible disciplinary action resulting from the officer’s conduct through agency manuals, employee handbooks, the employer’s rules and regulations or other communications to the officer, or the conduct was such that the officer should have reasonably known disciplinary action could occur;
b) the disciplinary action is reasonably related to the standards of conduct for a professional officer, the mission of the agency, the orderly, efficient or safe operation of the agency or the officer’s fitness for duty;
c) the discipline is supported by a preponderance of evidence that the conduct occurred; and
d) the discipline is not excessive and is reasonably related to the seriousness of the offense and the officer’s service record.
The bill language was been met with opposition from other agency head’s outside of DPS where their employees are affected by LEMSC’s decision. AHPA and FOP have been working with the Governor’s office to negotiate terms for final language. We understand the language will include the important component of “just cause” (as it is referred to in the Peace Officer’s Bill of Rights – an Arizona Police Association law passed in 2010) and allow employees to appeal final decisions through superior court. However, the Director or head of agencies will continue to have the ability to modify, reverse or reject the council’s decision.
AHPA has also been working with Director Frank Milstead on HB 2377 and he has been supportive to the association’s position. As of today, March 12, an agreement has been made by which Director Milstead will issue a DMR stating the agency will accept final decision by LEMSC. The employees of DPS have a commitment from Director Milstead that he will work on behalf of their best interest. This compromise is proof of that. AHPA is thankful to have the ability to meet regularly with our new Director and work together to address employee concerns.
AHPA will continue to update our members as to HB 2377’s final language and other legislative issues related to DPS employees. If you have any questions, please contact your district representative or an executive board member. We will continue to fight for the rights of our membership.
-AHPA Executive Board