melendres # 1715 joint submission re internal investigations

7/26/2019 Melendres # 1715 Joint Submission Re Internal Investigations

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Cecillia D. Wang (Pro Hac Vice)[email protected]

Nida Vidutis*[email protected] FoundationImmigrants Rights Project39 Drumm StreetSan Francisco, CA 94111Telephone: (415) 343-0775

Facsimile: (415) 395-0950

Daniel J. [email protected] Muoz [email protected] 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) [email protected]

[email protected]@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)[email protected] FoundationImmigrants Rights Project125 Broad Street, 17th FloorNew York, NY 10004Telephone: (212) 549-2676Facsimile: (212) 549-2654

Anne Lai (Pro Hac Vice)[email protected] E. Peltason, Suite 3500Irvine, CA 92697Telephone: (949) 824-9894Facsimile: (949) 824-0066

Stanley Young (Pro Hac Vice)[email protected]

Covington & Burling LLP333 Twin Dolphin Drive, Suite 700Redwood Shores, CA 94065Telephone: (650) 632-4700Facsimile: (650) 632-4800

Tammy Albarran (Pro Hac Vice)

[email protected] E. Pedley (Pro Hac Vice)[email protected] & Burling LLPOne Front StreetSan Francisco, CA 94111Telephone: (415) 591-7066

Facsimile: (415) 955-6566

Jorge M. Castillo (Pro [email protected] Gomez*[email protected] American LegaEducational Fund634 South Spring StreetLos Angeles, CA 90014Telephone: (213) 629-25Facsimile: (213) 629-02

James B. Chanin (Pro [email protected] 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)


C 2 07 02513 GMS D 1715 Fil d 06/14/16 P 13


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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


C 2 07 02513 GMS D t 1715 Fil d 06/14/16 P 14


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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


Case 2:07 cv 02513 GMS Document 1715 Filed 06/14/16 Page 1


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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

[email protected]

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

Case 2:07-cv-02513-GMS Document 1715-1 Filed 06/14/16 Page


25/31

SHERIFF ARPAIO

EXHIBIT A

Case 2:07-cv-02513-GMS Document 1715-1 Filed 06/14/16 Page 2 of 7


26/31

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.



27/31

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).



28/31

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



29/31

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


30/31



31/31

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