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Romley v. Arpaio2/19/2002
Commission further supports a conclusion that the word "parties" in Rule 10.07 refers only to appealing employees. Upon authorization by the legislature, see A.R.S. §§ 11-351 to -356 (1990), the Board passed a resolution, which created both the Maricopa County Employee Merit System and the Commission. The Board empowered the Commission to hear and decide employee appeals regarding suspensions, demotions, and dismissals. The Board further authorized the Commission to create rules "not inconsistent with Resolution" that are "proper and necessary." Maricopa County Employee Merit System Resolution § 12(B)(11) (Rev. 12/15/97). The Board expressly resolved that employees may represent themselves or secure lay or legal representation in Commission appeals. Id. at § 16(C). The resolution is silent regarding the employing official's representation options.
After its formation, the Commission adopted procedural rules, including Rule 10.07, which the Board thereafter ratified. The fact that the Board had specifically recognized that employees can employ lay representation, which parroted supreme court Rule 31(a)(4)(B), further supports a conclusion that the "parties" referenced in Rule 10.07 are employees and not county officials.
Finally, as the County Attorney points out, the Board has expressly created a mechanism within the Maricopa County Procurement Code that outlines a method for county officials to employ independent legal counsel. The Code provides that the County Director of Materials Management can delegate to any county governmental unit the authority to employ professional services, including legal counsel. Maricopa County Procurement Code §§ MC1-201(D), -203(C) (Feb. 19, 1999). The Code further provides the manner in which counsel may be selected, id. at § MC1-504(D), and that the Board must approve any contracts with the selected attorney. Id. at § MC1-203(A). The County Attorney produced Board minutes reflecting the Board's adherence to the Code's procedures. Specifically, the minutes document the Board's appointment of the County Attorney and several deputy county attorneys as procurement officers authorized to solicit legal services for fiscal years 1999 and 2000 via requests for proposals.
In light of the manner of delegation set forth in the Procurement Code and the Board's adherence to that methodology, we would expect the Board to have been more precise if it had intended to vary from this procedure for Commission appeals and, instead, give county officials unchecked authority to retain independent counsel. This is particularly true as an outcome of a Commission appeal in favor of an employee can result in a debt owed by the county, such as back wages, and may be binding in any civil litigation arising from the employment dispute and filed against the county. See Hawkins v. State, Dept. of Econ. Sec., 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995) ("Both doctrines of res judicata and collateral estoppel may apply to decisions of administrative agencies acting in a quasi-judicial capacity."). For this additional reason, we interpret Rule 10.07 to avoid this result by construing the term "parties" to mean employees and not county officials.
In summary, we hold that Rule 10.07 allows only employees to represent themselves or secure lay or legal representation in appeals. Absent authorization by the Board, county officials must use counsel obtained by the County Attorney to represent their interests in Commission appeals. See A.R.S. § 11-532(A)(9) (2001). Because neither the Board nor the County Attorney authorized the Sheriff to use Lebowitz as counsel before the Commission in the Gerberry appeal, we affirm the trial court's entry of judgment in the
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