NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

IN THE COURT OF APPEALS DIVISION ONE

FILED: 07/03/2012
STATE OF ARIZONA RUTH A. WILLINGHAM,
DIVISION ONE CLERK
BY: sls

JOHN S. TURNER, ) No. 1 CA-CV 11-0531

)
Plaintiff/Appellant, ) DEPARTMENT D
)
v. ) MEMORANDUM DECISION
) (Not for Publication -
ARIZONA LAW ENFORCEMENT MERIT ) Rule 28, Arizona Rules of
SYSTEM COUNCIL, an ) Civil Appellate Procedure)
administrative agency; ANDREW )
LUCK; GAIL GOODMAN; and ENRIQUE )
CANTU, all in their official )
capacities as members of THE LAW )
ENFORCEMENT MERIT SYSTEM COUNCIL; )
ROBERT HALLIDAY, in his official )
capacity as Director of the )
Department of Public Safety, )
)
Defendants/Appellees. )
__________________________________)

Appeal from the Superior Court in Maricopa County

Cause No. LC2010-000700-001

The Honorable Crane McClennen, Judge

AFFIRMED

Law Office of Dale Norris, LLC Phoenix

By Dale F. Norris
Attorney for Plaintiff/Appellant
Thomas C. Horne, Arizona Attorney General Phoenix
By Robert J. Sokol, Assistant Attorney General
Attorneys for Defendants/Appellees LEMSC, Luck, Goodman, and
Cantu
And
By Dennis D. Carpenter, Jr., Assistant Attorney General
Attorneys for Defendant/Appellee Halliday

S W A N N, Judge

¶1 Appellant John S. Turner appeals from the superior

court’s judgment affirming the decision of the Arizona Law

Enforcement Merit System Council (“LEMSC”) to uphold the

termination of his employment by the Arizona Department of

Public Safety (“ADPS”). Turner argues that he was deprived of

pretermination and posttermination due process in connection

with his termination. We conclude that Turner received adequate

due process, and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Turner was employed by ADPS as a sworn, full-time

highway patrol officer. In October 2008, Turner’s personal

psychologist contacted ADPS and advised that Turner be

temporarily relieved from duty so that he could be treated for

psychosis and paranoid schizophrenia, which was causing him to

see demons in traffic violators. The psychologist stated that

Turner had given him permission to make this disclosure.

¶3 ADPS promptly relieved Turner from duty and placed him

on paid administrative leave. With Turner’s permission, his

2
psychologist’s records were released to an ADPS-contracted

psychologist. ADPS then ordered Turner to submit to a fitness-

for-duty evaluation by the ADPS-contracted psychologist.

¶4 The ADPS-contracted psychologist met with Turner in

December 2008 and issued a detailed report to ADPS in January

2009. The report was sent to ADPS only. In the report, the

psychologist summarized Turner’s self-reported history, his

medical records, and interviews with his wife and his personal

psychologist; interpreted his performance on various

psychological tests; and opined that he was not fit for duty

because of serious psychiatric symptoms. The psychologist also

made recommendations for Turner’s care.

¶5 Some months later, ADPS received a letter from

Turner’s neurologist opining that Turner’s hallucinations had

been caused by medications he was no longer taking. But in June

2009, ADPS notified Turner that it had determined he was unable

to properly perform his job responsibilities. ADPS removed

Turner from administrative leave and gave him the option to use

his accrued leave and request Family and Medical Leave Act

leave. ADPS explained in its notification letter that the

decision was based on “the results of the Fitness for Duty

evaluation” set forth in its psychologist’s January 2009 report,

but neither described those results nor provided Turner with a

copy of the report.

3
¶6 Turner immediately responded by providing a report

from his personal psychiatrist, in which the psychiatrist stated

that Turner’s treatment would continue. A few months later, in

September 2009, Turner asked to return to work in a limited

capacity and provided a second report from his psychiatrist

opining that he was able to do so. ADPS denied Turner’s

request. Less than a month later, Turner asked that he be

allowed to return to full active duty and provided a handwritten

note from his psychiatrist opining that he was fit to do so.

¶7 ADPS responded to Turner’s request to return to work

by ordering him to submit to a second fitness-for-duty

evaluation. The same ADPS-contracted psychologist met with

Turner and issued a report to ADPS in January 2010. Again, the

report was sent to ADPS only. The report updated Turner’s

history and treatment progress, interpreted his performance on

re-administered psychological tests, and opined that he was

still not fit for duty.

¶8 After receiving the second report, ADPS terminated

Turner’s employment by letter dated February 11, 2010. The

letter stated that Turner’s employment was discontinued

effective the next day because “it has been determined by

competent medical authority that you are no longer capable of

performing the essential functions of the classification in

which you are employed, OFFICER.” The letter further stated

4
that “[t]his action is not considered discipline[,]” and

informed Turner that he could apply for reinstatement within a

year if he became capable of performing his job functions.

¶9 Turner appealed his termination and requested a

hearing. The LEMSC first held a hearing on jurisdiction, and

then held a hearing on the merits of Turner’s termination.

Turner was represented by counsel at both hearings. About a

month before the merits hearing, the parties submitted written

briefs to the LEMSC, and ADPS attached copies of all of the

parties’ correspondence, both fitness-for-duty reports, and

copies of all reports and correspondence from Turner’s doctors.

This was the first time that Turner saw the fitness-for-duty

reports.

¶10 At the merits hearing, Turner’s counsel called

Turner’s former chief (whom he had subpoenaed) and Turner to

testify under oath, admitted various documents into evidence,

and gave a closing and rebuttal statement. The LEMSC found by a

preponderance of the evidence that Turner was unable to perform

the essential functions of his job due to medical reasons, and

upheld his termination.

¶11 Turner appealed to the superior court and the superior

court affirmed. Turner timely appeals. We have jurisdiction

pursuant to A.R.S. § 12-913.

5
 DISCUSSION

¶12 Turner contends that he was denied due process both

before and after his termination. We review constitutional

claims, such as an alleged denial of due process, de novo.

Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13, 153

P.3d 1055, 1059 (App. 2007). On this record we conclude that

Turner received adequate due process.

I. TURNER’S RIGHT TO DUE PROCESS IN CONNECTION WITH THE

TERMINATION OF HIS EMPLOYMENT WAS NOT DIMINISHED BY THE NON-
DISCIPLINARY NATURE OF THE TERMINATION.

¶13 As a permanent ADPS employee, Turner had a

constitutionally protected property interest in his employment

and could not be deprived of that interest without due process

of law. Ariz. Dep’t of Econ. Sec. v. Redlon, 215 Ariz. 13, 17,

¶ 8, 156 P.3d 430, 434 (App. 2007). As an initial matter, we

address ADPS’s argument that Turner’s property interest in his

employment was diminished because he was terminated for a non-

disciplinary reason and not “for cause.”

¶14 A termination for a physical or mental disability is a

termination “for cause” under A.R.S. § 41-1830.15(A)(7) -- and,

contrary to ADPS’s contentions, may be just as stigmatizing as a

termination for disciplinary reasons. The employee’s right to

due process is the same in either situation.1 We therefore

1
ADPS is correct that the procedures set forth in A.A.C. R13-5-
702 and -703 contemplate disciplinary terminations. But this

6
conclude that Turner’s property interest in his employment, and

his entitlement to due process, were unaffected by the nature of

the termination.

II. TURNER RECEIVED ADEQUATE DUE PROCESS.

¶15 In Cleveland Board of Education v. Loudermill, the

United States Supreme Court held that due process requires “some

kind of a hearing” before an employee with a constitutionally

protected property interest in his employment may be terminated.

470 U.S. 532, 542 (1985). This requirement balances the

employee’s interest in retaining employment, the government’s

interest in the expeditious removal of unsatisfactory employees

without significant administrative burden, and the parties’

shared interest in avoiding erroneous decisions. Id. at 542-45.

The Court held that these interests may be balanced by a

pretermination “hearing” that need not be elaborate and is

“something less” than a full evidentiary hearing. Id. at 545.

The Court explained: “[T]he pretermination hearing need not

definitively resolve the propriety of the discharge. It should

be an initial check against mistaken decisions -- essentially, a

determination of whether there are reasonable grounds to believe

does not mean that an employee’s due process rights are any less
substantial in the context of disability terminations. Any
policies or procedures established by ADPS pursuant to A.A.C.
R13-5-803 for disability terminations must include appropriate
procedural safeguards with respect to both pretermination and
posttermination proceedings.

7
that the charges against the employee are true and support the

proposed action.” Id. at 545-46. The Court held that due

process is satisfied so long as the employee receives “oral or

written notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of

the story.” Id. at 546.

¶16 We have interpreted Loudermill to require “only the

barest of a pretermination procedure, especially when an

elaborate posttermination procedure is in place.” Williams v.

Pima Cnty., 164 Ariz. 170, 174, 791 P.2d 1053, 1057 (App. 1990)

(citation omitted). Accordingly, we have held on more than one

occasion that a pretermination written exchange is sufficient

when coupled with a full posttermination evidentiary hearing.

Johns v. Ariz. Dep’t of Econ. Sec., 169 Ariz. 75, 79-80, 817

P.2d 20, 24-25 (App. 1991); Carlson, 214 Ariz. at 428, 430-31,

¶¶ 5, 6, 15, 153 P.3d at 1057, 1059-60. The procedural

requirements for the posttermination hearing may vary depending

on the case, but generally require adequate written notice of

the grounds for termination, disclosure of the evidence

supporting termination, the opportunity to confront and cross-

examine available adverse witnesses, the opportunity to be heard

in person and present evidence, the opportunity to be

represented by counsel, a fair and impartial decision-maker, and

a written statement by the decision-maker as to the evidence

8
relied upon and the reasons for the decision. Deuel v. Ariz.

State Sch. for the Deaf & Blind, 165 Ariz. 524, 526-27, 799 P.2d

865, 867-68 (App. 1990).

¶17 Turner received adequate due process. Despite having

not been provided copies or a detailed description of the

fitness-for-duty evaluation reports before his termination,

Turner was fully aware of the nature of the allegations against

him and had multiple chances to present his side of the story.

He effectively self-reported his disability through his

psychologist and provided ADPS with three separate reports from

his psychiatrist over the course of the next year. His

neurologist also submitted a letter. This was not a case in

which an employee was terminated on a whim, or without a

meaningful understanding of the grounds for termination. We

conclude that the pretermination due process requirements were

satisfied on these specific facts.

¶18 Well in advance of the posttermination hearing before

the LEMSC, ADPS provided Turner with copies of all relevant

documents, including the fitness-for-duty evaluation reports.

Turner was represented by counsel at the hearing, and he was

able to subpoena and examine his former chief, offer his own

testimony, and present evidence. There is no indication or

argument that the LEMSC was not fair and impartial, and the

9
LEMSC’s explanation of its decision, though brief, was

sufficient.

¶19 In these circumstances, we find that the parties’

written exchanges before Turner’s termination, when coupled with

the state of his knowledge of ADPS’s concerns and the

evidentiary hearing after his termination, constituted adequate

due process. Turner had the opportunity to present his side of

the story both before and after his termination. We caution,

however, that in cases where the nature of an alleged disability

or grounds for adverse employment action is not so well-known to

the employee, a governmental employer’s failure to provide the

employee with copies of pertinent records or more than

conclusory explanations of its evidence before termination may

deprive the employee of a meaningful opportunity to be heard and

therefore run afoul of due process.

10
 CONCLUSION

¶20 On this record we find that Turner received adequate

pretermination and posttermination due process. We affirm the

superior court’s judgment. We deny Turner’s request for

attorney’s fees and costs.

/s/
___________________________________
PETER B. SWANN, Judge

CONCURRING:

/s/
____________________________________
JOHN C. GEMMILL, Presiding Judge

/s/
____________________________________
ANDREW W. GOULD, Judge

11