SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC DT 09/06/2013 THE HON. CRANE MCCLENNEN

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1 Michael K. Jeanes, Clerk of Court *** Electronically Filed *** 09/11/2013 8:00 AM THE HON. CRANE MCCLENNEN CLERK OF THE COURT J. Eaton Deputy TIMOTHY MCKEE KEVIN KOELBEL v. PEORIA UNIFIED SCHOOL DISTRICT (001) KATHY KNECHT (001) MARY ELLEN SIMONSON OFFICE OF ADMINISTRATIVE HEARINGS REMAND DESK-LCA-CCC RECORD APPEAL RULING / REMAND Plaintiff-Appellant Timothy McKee asks this Court to review the action taken by the Board of Defendant-Appellee, the Peoria Unified School District, in voting to dismiss him as a teacher. For the following reasons, this Court reverses the action of the Board. I. FACTUAL BACKGROUND. Plaintiff-Appellant Timothy McKee (McKee) was a teacher employed by Defendant-Appellee the Peoria Unified School District (the District). On May 12, 2010, McKee s P.E. class was in the swimming pool at Ironwood High School. At about 11:30 during the free swim, Larry Allen s (Allen) P.E. class came to the pool. McKee and Allen agreed McKee would watch the shallow end and Allen would watch the deep end. Because student J.P. was a beginning swimmer, McKee restricted J.P. to the shallow end. Just before Allen s P.E. class arrived, J.P. asked McKee for a kickboard. McKee checked the office and storage area, but could not find one. At about 11:32, McKee told J.P. he could not find a kickboard; McKee then watched as J.P. swam toward the center of the shallow end. McKee then walked to the awning where Allen was seated and sat down in a chair. Within a minute of sitting down, McKee heard a cry for help. McKee and Allen went to the edge of the deep end of the pool where a student surfaced with J.P. At 11:33, Allen called The Glendale Fire Department soon arrived and assumed medical control. J.P. died 2 days later. The District and the Glendale Police Department investigated. The police interviewed Mc- Kee, Allen, and the students present in the pool at the time of the drowning. The Medical Examiner concluded the death was accidental, and that J.P. was unaccounted for for approximately 30 seconds. The Maricopa County Attorney s Office did not charge McKee with any crime. Docket Code 513 Form L512 Page 1

2 The District s Human Resources Director, Tahlya Visintainer (Visintainer), investigated to determine whether any policies of the District s Governing Board (Board) had been violated. Visintainer and the Board s counsel, Mary Ellen Simonson (Simonson) and Kirstin Story (Story), interviewed McKee, Allen, the students present in the pool, and other District employees. Visintainer then assisted the Board s counsel in preparing a Statement of Charges to dismiss McKee. On August 4, 2010, McKee met with Simonson, who informed him of their investigation. McKee was then given an ultimatum resign or be fired. McKee requested time to obtain an attorney. Once he had done so and the attorney offered to meet with Simonson, she refused. On August 17, McKee informed the Board he believed it was not in compliance with the Intergovernmental Agreement with the city and county regulations requiring lifeguards at its pool. On August 20, the Board met in executive session with District Superintendent Denton Santarelli, Visintainer, and Simonson to discuss the Statement of Charges and have Simonson provide legal advice to the Board. The Board adopted the Statement of Charges that day. On August 24, McKee made a public records request to the District to assist him in determining whether to request a hearing on the charges. Because the District had not produced any documents by September 6, which was the deadline to request a hearing, McKee requested a hearing, which was then set for October 4. On September 9, McKee filed suit on his records request. The District did not make its final disclosure until October 3. The hearing was on held October 4, 5, and 12. On November 24, the Hearing Officer issued his Findings of Fact, Conclusions of Law, and Recommended Decision, making 18 findings of fact and 19 conclusions of law. Those conclusions of law included the following: 17. Insufficient evidence exists in the record of this matter on which to conclude that Timothy McKee engaged in any unreasonable actions or ignored his professional responsibilities such that he created or perpetuated any harmful conditions which failed to protect the health and safety of students. 18. Insufficient evidence exists in the record of this matter on which to conclude that Timothy McKee violated any Governing Board policies on May 12, Insufficient evidence exists in the record of this matter on which to conclude that Timothy McKee s employment with the Peoria Unified School District should be terminated. (Conclusions of Law at pages ) The Hearing Officer recommended that the Board find that McKee did not engaged in any unprofessional conduct or violate any of the Board s policies. (Recommended Decision at page 12.) The Hearing Officer further recommended that the Board dismiss the Statement of Charges. (Id. at 12, 21.) On December 6, the Board held its meeting. The Board made six modifications to four of the Hearing Officer s Findings of Fact: Findings of Fact #7 (one modification); #8 (one modification); #9 (three modifications); and #11 (one modification). The Board then voted to dismiss McKee. In January 2011, the Board approved written minutes of that meeting. Docket Code 513 Form L512 Page 2

3 On January 5, 2011, McKee filed a Complaint for Judicial Review of Administrative Decision, which the Clerk of the Court returned because it was not in the proper format. On January 6, 2011, McKee re-filed his Complaint for Judicial Review of Administrative Decision. This Court has jurisdiction pursuant to A.R.S (A) and A.R.S (A). II. GENERALSTANDARDS FOR REVIEW. The Arizona statutory authority and case law define the scope of administrative review: The court may affirm, reverse, modify or vacate and remand the agency action. The court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion. A.R.S (E). The court must defer to the agency s factual findings and affirm them if supported by substantial evidence. If an agency s decision is supported by the record, substantial evidence exists to support the decision even if the record also supports a different conclusion. Gaveck v. Arizona St. Bd. of Podiatry Exam., 222 Ariz. 433, 215 P.3d 1114, 11 (Ct. App. 2009) (cites omitted). [I]n ruling on the sufficiency of the evidence in administrative proceedings, courts should show a certain degree of deference to the judgment of the agency based upon the accumulated experience and expertise of its members. Croft v. Arizona St. Bd. of Dent. Exam., 157 Ariz. 203, 208, 755 P.2d 1191, 1196 (Ct. App. 1988). A trial court may not function as a super agency and substitute its own judgment for that of the agency where factual questions and agency expertise are involved. DeGroot v. Arizona Racing Comm n, 141 Ariz. 331, 336, 686 P.2d 1301, 1306 (Ct. App. 1984). [The reviewing court must] view the evidence in a light most favorable to upholding the Board s decision and will affirm that decision if it is supported by any reasonable interpretation of the record. Baca v. Arizona D.E.S., 191 Ariz. 43, 46, 951 P.2d 1235, 1238 (Ct. App. 1998) (cites omitted). A question of statutory interpretation involves a question of law, and [the reviewing court] is not bound by the trial court s or the agency s conclusions [about] questions of law. Siegel v. Arizona St. Liq. Bd., 167 Ariz. 400, 401, 807 P.2d 1136, 1137 (Ct. App. 1991). On appeal, [the reviewing court] is free to draw its own conclusions in determining if the Board properly interpreted the law; however, the Board s interpretation of statutes and... regulations is entitled to great weight. Baca, 191 Ariz. at 45 46, 951 P.2d at Docket Code 513 Form L512 Page 3

4 Judicial deference should be given to agencies charged with the responsibility of carrying out specific legislation, and ordinarily an agency s interpretation of a statute or regulation it implements is given great weight. However, the agency s interpretation is not infallible, and courts must remain the final authority on critical questions of statutory construction. U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (Ct. App. 1989) (cites omitted). III. ISSUE:WAS THERE SUBSTANTIAL EVIDENCE TO SUPPORT THE ACTION OF THE AGENCY, AND WAS THE ACTION OF THE AGENCY CONTRARY TO LAW, ARBITRARY AND CAPRICIOUS, OR AN ABUSE OF DISCRETION. On review, McKee makes the following contentions: A. The District denied McKee due process. 1. The Board was not an impartial tribunal. a. The Board and the District are the same entity. b. The Board predetermined the case. c. The Board was biased. (1) At the time of dismissal, the Board was litigating a case against McKee. (2) The Board has a direct pecuniary interest in the outcome of the hearing. d. The Board did not adopt relevant policies until after the hearing. e. The Board relied on evidence from outside the hearing. f. The Board did not review the entire record before changing the findings of fact. g. The Board never identified the policy, statute, or regulation it claimed McKee violated. h. Two Board members based their decision on matters outside the scope of the Statement of Charges. 2. The Statement of Charges did not provide adequate notice. 3. The Board did not provide a written statement identifying the evidence upon which it relied or the reasons for its decision. B. The dismissal process violated A.R.S and The Statement of Charges did not comply with A.R.S (F). 2. The Statement of Charges did not comply with A.R.S (C). 3. The District never served the Statement of Charges on McKee. 4. The hearing was not held within the statutory time frame. C. McKee is being held to a standard not recognized in Arizona. D. McKee was subject to disparate treatment. On review, the District makes the following contentions: A. This Court s review of the Board s decision is not de novo, and this Court may overturn the Board s decision only on very narrow grounds. Docket Code 513 Form L512 Page 4

5 B. The governing standards permit dismissal of teachers who are unfit to discharge teaching duties or who engage in unprofessional conduct that breaches the duties owed to students under their care. C. The Board determined, through specific findings and conclusions, that good cause existed for dismissing McKee as a District employee. D. Substantial evidence supports the Board s decision. E. McKee was not denied due process. 1. The District properly separated the adjudicative and prosecutorial functions during those stages of the dismissal process when both functions were taking place. 2. McKee has proffered no evidence that the Board predetermined the case. 3. McKee s decision to notice a claim against the District and file suit against the District did not render the Board impermissibly biased. 4. McKee has not determined that the Board had any pecuniary bias in connection with his termination. 5. The District s subsequent adoption of policies for pool use does not constitute evidence that McKee was denied due process. 6. McCord s observation of the swimming pool is not a basis to overturn McKee s termination. 7. Douglas s decision was not based on matters outside the scope of the Statement of Charges. 8. The Board did not lack access to or refuse to review the record. 9. The Board is authorized to modify the hearing officer s recommendation. 10. The Board s decision was based on the Statement of Charges and grounded in applicable policies, statutes, and regulations. 11. The Statement of Charges provided adequate notice. 12. The Board appropriately articulated its decision. F. McKee has not demonstrated any violation of the process prescribed by statute that materially affected the outcome of the proceedings. 1. McKee was not dismissed for inadequate classroom performance, and therefore was not entitled to a 60-day cure period. 2. McKee has not demonstrated that the proceedings were materially affected by the failure to attach copies of statutes to the Statement of Charges. 3. McKee was served with the Statement of Charges by an administrator, and the use of an administrator rather than a self-designated process server had no material effect on the proceedings. 4. McKee has not articulated any material effect on the proceedings associated with the timing of the hearing. G. McKee s allegations about disparate treatment provide no basis to overturn the Board s decision. Docket Code 513 Form L512 Page 5

6 Both sides have provided to this Court authorities and arguments in support of their position. This Court concludes the authorities and arguments provided by McKee are well-taken, and this Court adopts those authorities and arguments in support of its decision. IV. CONCLUSION. Based on the foregoing, this Court concludes there was not substantial evidence to support the changes in the findings of fact made by the Board, and further concludes the Board s actions were contrary to law, arbitrary and capricious, and an abuse of discretion. This Court further concludes McKee is entitled to costs and reasonable attorneys fees. IT IS THEREFORE ORDERED reversing and vacating the decision of the Board of the Peoria Unified School District. IT IS FURTHER ORDERED, by September 26, 2013, counsel for McKee shall submit to this Court a proposed form of Order for this Court s signature. IT IS FURTHER ORDERED, if McKee would like this Court to award costs and reasonable attorneys fees, counsel for McKee shall submit to this Court a request and the necessary supporting documentation, and shall include in the proposed form of Order places for this Court to make an award of costs and reasonable attorneys fees Docket Code 513 Form L512 Page 6

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