Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.
5
Shelton first contends the Directors decision to terminate him
was unsupported by substantial evidence. We disagree.
6
A.R.S. 41-1830.15(A)(9) authorizes the Director to dismiss a
DPS employee for being impaired by alcohol while on duty. See also
Arizona Administrative Code (A.A.C.) R13-5-702(B) (authorizing
disciplinary action for reasons listed in 41-1830.15). Additionally, DPS
Although A.R.S. 12913 states that the superior courts decision may
be appealed to the supreme court, we have interpreted the statute as
permitting appeals to this Court. See Svendsen v. Ariz. Dept of Transp., Motor
Vehicle Div., 234 Ariz. 528, 533, 13 (App. 2014).
Not
Improperly
Reject
the
Councils
10
We also disagree with Sheltons contention that the Directors
rejection of the Councils recommendation was contrary to law. Our
analysis is based on the statutory scheme in effect at the time of Sheltons
termination.3
Pursuant to A.R.S. 28-1381(G)(3), a person is presumed to be under
the influence of intoxicating liquor with an alcohol concentration of .08 or
more.
3
The relevant statutes have since been amended. The Councils role
is now more limited in cases when the employing agency proves just cause
for discipline by a preponderance of the evidence. See, e.g., A.R.S. 411830.12(D), 41-1830.16(C) (2015).
2
18
Finally, Shelton asserts due process violations. He contends
the Director is not a fair and impartial decision maker because he failed to
fairly apprise himself of the record, conduct an adequate review of the
evidence, and is represented by the same attorney who prosecuted the case
before [the Council]. However, under Arizona law, adjudicators are
presumed to be fair and may be disqualified only upon a showing of actual
bias; mere speculation regarding bias will not suffice. Pavlik v. Chinle
Unified Sch. Dist. No. 24, 195 Ariz. 148, 152, 11 (App. 1999). Agencies may
combine investigation, prosecution, and adjudication functions absent a
showing of actual bias or partiality. Comeau v. Ariz. State Bd. of Dental
Examrs, 196 Ariz. 102, 108, 26 (App. 1999).
19
A party asserting bias bears the burden of rebutting the
presumption of fairness and establishing a disqualifying interest. Pavlik,
195 Ariz. at 152, 11. Shelton has not carried his burden. He presents no
evidence of bias or partiality by the Director. And the record reflects that
DPS made a considered decision to terminate Shelton based on its belief his
termination was in the best interest of DPS and the public after attempts to
curb Sheltons alcohol abuse failed.
CONCLUSION
20
We affirm the decision of the superior court. We deny
Sheltons request for an award of attorneys fees incurred on appeal because
he has not prevailed.
:ama