Filed on 2/15/2012 11:00:56 AM

IN THE SUPERIOR COURT

1:33 p.m. Hearing starts 1:53 p.m. Hearing ends

PINAL COUNTY, STATE OF ARIZONA

Date: 02/13/2012 THE HON GILBERTO V FIGUEROA, Courtroom: 2C

Court Reporter: MICHELLE WELLNER

CHAD A ROCHE, CLERK

By Deputy Clerk: REGINA SIQUIEROS

CARLTON AKI STANT,

Plaintiff(s), vs.

THE CITY OF MARICOPA EMPLOYEE MERIT BOARD, an administrative body; et al.,

Defendant(s).

) ) S1100CV201100737 ) ) ) MINUTE ENTRY ACTION: ) ) ) STATUS REVIEW HEARING ) )

PRESENT: Plaintiff appearing by counsel, James Cool, appearing telephonically. Defendant appearing by counsel, Sonya Boun, appearing telephonically. Formal ORDER is signed and filed this date. The Court announces now is the time set for a Status Review Hearing at the request of the parties and advises the record has been reviewed. The Court notes the preliminary conclusions reached by this Court to be addressed are as follows: The Court FINDS that the Boards conclusion that it was just one interview is not supported by the record; the Court FURTHER FINDS that the Boards conclusion that the Plaintiff was not the focus of the investigation was the incorrect legal standard to use, therefore, the Board erred as a matter of law with respect to that conclusion; the Court FURTHER FINDS it appears from the record that Chief Fitch did order a second interview by Det. Burns; the issue then becomes whether or not during the second interview the Chief or Det. Burns reasonably believed that that interview could result in discipline for the Plaintiff. The Court FURTHER FINDS that that issue is open for additional factual findings; the Court FURTHER FINDS that if during the second interview either the City Manager, Chief of Police or Det. Burns, which is the employer by definition, reasonably believed that the interview could result in discipline, then A.R.S

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38-1101 does apply and at a minimum, the second interview would violate the provisions of A.R.S 38-1101(A). However, that does not conclude the analysis. This Court believes that if A.R.S. 38-1101 does apply, then that calls into play A.R.S. 381101(I), which would then require that the Merit Board determine whether or not there was good cause, assuming A.R.S. 38-1101(A) was violated, to be able to use any of the information or evidence gathered during the second interview for purposes of any discipline as to the Plaintiff; The Court notes those findings having been made this date, this Court concludes the only way to proceed is to remand to the Merit Board for follow-up on the two (2) issues that this Court has left as not final formal conclusions. The Court further notes the first issue is for the Board to consider the two (2) interviews that occurred. First, to evaluate whether the Maricopa City Police Department, the Chief, Det. Burns or the City Manager, i.e. the employer, had a reasonable belief that the first interview could result in discipline. The Court further notes, upon this Courts review of the facts, it does not appear that the Board will make a finding that during the first interview the employer had a reasonable belief discipline could occur. The Court believes it is a finding that the Board has to make itself. The Court further notes the second issue to be remanded to the Board is whether during the second interview, the City, i.e. the employer, had a reasonable belief that the interview could result in discipline; in that regard the board may consider whether the Chiefs instructions to read the policy to the Plaintiff was a precursor to potential discipline. This Court believes that is a factual and legal decision that has to be made by the Board before this Court can review it. The Court further notes that if the Board determines that in the second interview there was reasonable belief that discipline could result, then the Board needs to determine pursuant to A.R.S. 38-1101(I) whether there was good cause to allow the City to use any evidence gathered during the second interview as part of the disciplinary process or as the basis for the disciplinary actions; the Board shall make specific Findings of Fact and Conclusions of Law to support such a good cause finding. The Court further notes that if the Board decides that during the second interview there were reasonable grounds to believe that it could result in discipline and it decides to exclude the evidence of the second interview, the Board must then decide whether there was enough evidence from the first interview to determine that discipline was appropriate for Plaintiffs refusal to answer questions; in that regard, then the Board needs to consider and make findings as to whether or not the attorney-client privilege applies at all. This Courts understanding of the attorney-client privilege in a corporate or union setting is that the privilege only applies as between the attorney and Officers dealing with specific legal advice. The Court notes in this case, it appears from the record, that both

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the attorney and the Plaintiff acknowledged that the factual questions that were being asked could be answered without reference to the legal advice that was provided and it is in that context that the Board needs to determine whether or not the privilege applies. Counsel for Plaintiff presents statements to the Court regarding the attorney-client privilege and the interview that took place with the Plaintiff. Discussion of the Court and counsel regarding the issue of the attorney-client privilege. 1:49 p.m. THE RECORD MAY SHOW the Court disconnects and reconnects with counsel telephonically. Discussion of the Court and counsel regarding the setting of a future Hearing before this Court. Further discussion of the Court and counsel regarding the attorney-client privilege.

Mailed/distributed copy: 2/15/12 JAMES COOL SONYA BOUN Office Distribution: JUDGE/FIGUEROA

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