ARIZONA STATE PERSONNEL BOARD
OCTOBER 16, 2013
The Arizona State Personnel Board meeting was called to order by Vice Chair Jim Thompson at 11:10 a.m. The meeting was held at 1400 West Washington Street, Suite 280, Phoenix, Arizona. Board members in attendance were Jim Thompson, Joseph Smith and Mark Ziska. Mark Stanton was not present. Staff members present were Jeff Bernick, Counsel for the Board; Laurie Barcelona, Executive Director and Robin Van Staeyen, Administrative Assistant.
The board called for comments from the public. There being no public comments, the board considered the approval of the minutes from the September 26, 2013 open public board meeting. Joseph Smith moved to adopt the minutes. Mark Ziska seconded the motion which carried unanimously.
Next, the board considered the dismissal appeal of Dario Molina v. Department of Corrections.
Shawn Nelson, Attorney at Law representing Mr. Molina, stated that Mr. Molina mistakenly mailed his appeal to an incorrect address, but the misdirected mail was never returned to him. Mr. Nelson continued by explaining that Mr. Molina called the Personnel Board office to find out that his appeal had never arrived and then faxed his appeal to the Personnel Board, which was five days after the deadline. Mr. Nelson continued by stating that the late appeal had done nothing to prejudice anyone and Mr. Molina made a good faith effort to file the appeal. Mr. Nelson asked the board to allow the appeal to be heard on its merits.
Robert Sokol, Assistant Attorney General representing the Department of Corrections, stated that the statute that gives the board its jurisdiction to hear cases states that appeals must be filed within 10 business days after the effective date of the dismissal; therefore, the board has no jurisdiction to hear this appeal. Mr. Sokol continued by explaining that there was some confusion as to whether Mr. Molina faxed or mailed the original appeal and to what address it was sent. Mr. Sokol stated that Mr. Nelson’s objection to the hearing officer’s recommendation stated that Mr. Molina sent the appeal to 1401 W. Washington Street, Suite 280, but later stated in the objection that the appeal was sent to 1601 W. Jefferson. Mr. Sokol then reiterated that the board has no jurisdiction to hear this appeal regardless of where the appeal was sent because it arrived late to the Personnel Board office.
There being no further discussion, Mark Ziska proposed the following motion:
"I move we adopt the hearing officer’s Findings of Fact and Conclusions of Law as our own. I then move we grant the respondent’s motion to dismiss the appeal as untimely filed and find the board lacks jurisdiction."
Joseph Smith seconded the motion which carried unanimously.
Next, the board listened to comments on the Personnel Board’s rule changes.
Martin Bihn referenced rule R2-5.1-103.K, which allows for exhibits to be given to the appellant at the hearing. Mr. Bihn continued by stating that the appellants’ are at a disadvantage when they receive the exhibits from the respondent the day of the hearing.
Jim Thompson asked that Mr. Bihn clarify that "at the hearing" in section K of R2-5.1-103 be stricken. Mr. Bihn answered in the affirmative.
Mr. Bihn continued by stating that he believes that requested documents should be received some time before the hearing such as 10 or 15 days ahead of the hearing. Furthermore, Mr. Bihn did not believe that the exhibits should be provided to the hearing officer ahead of the hearing. Mr. Bihn continued by stating that the rules should be consistent with A.R.S. §38-1101, which currently applies to law enforcement officers, so that every case is treated the same.
Jim Thompson wanted clarification that Mr. Bihn did not object to exhibits going to the opposing party 10 days prior to the hearing, but objected to sending the exhibits to the hearing officer 10 days prior to the hearing and to provide the exhibits to the hearing officer the day of the hearing. Mr. Bihn answered in the affirmative and added that there should be an allowance for documents that are discovered within a few days of the hearing.
Donna McDaniel stated that she does not support the hearing officers receiving the exhibits before the hearing date because sometimes a document could be produced in a case and later there is a stipulation by the parties before the hearing to not use the document and she would prefer that the hearing officer not ever see the document in the first place. Furthermore, Ms. McDaniel reiterated the comment that Mr. Bihn made about making the rules consistent with A.R.S. §38-1101; thereby allowing appellants who are not law enforcement officers to be afforded the same opportunity to exchange documents 10 days before the hearing. Ms. McDaniel explained that by doing this the appellants can prepare for the hearing and know on what the allegations are based.
Mark Ziska requested confirmation that Ms. McDaniel did not object to the parties exchanging documents ahead of the hearing, but wanted to make allowances for documents that may appear a few days before the hearing. Ms. McDaniel explained that sometimes a document is missed, is not produced 10 days before the hearing, is no fault of either party and it is stipulated to be admitted.
Robert Sokol stated that there should be a "good cause" exception for the hearing officer to admit evidence or a witness that have not been exchanged prior to the hearing. He further stated that if this was the case, the hearing could be continued so that the parties could further prepare their case. Mr. Sokol continued by explaining that this would be beneficial to those who are representing themselves and are not aware of the rule and bring a document to the hearing that has not been produced to the other side prior to the hearing.
Jim Thompson inquired as to whether Mr. Sokol agreed with Mr. Bihn and Ms. McDaniel’s comments. Mr. Sokol stated that he agreed with their comments. He continued by stating that there is rarely any last minute evidence that shows up and agreed that "at the hearing" should be excluded from R2-5.1-103.K. Mr. Sokol also agreed with the point made that the exhibits should not be given to the hearing officers prior to the hearing.
Levi Bolton agreed that the hearing officers should not receive the exhibits prior to the hearing so as to avoid any prejudice.
Jim Thompson inquired as to whether Mr. Bolton agreed with the comments made by the others today. Mr. Bolton answered in the affirmative.
There being no further discussion, Joseph Smith made the following motion:
"I move we table the rule changes for further discussion."
Mr. Thompson offered an amendment to the motion.
"I move that the public hearing process be closed."
Mr. Smith agreed. Mr. Thompson seconded the motion which carried unanimously.
Jim Thompson stated that the November 26, 2013 meeting had already been announced at the September 2013 meeting. The executive session would begin at 10:30 a.m. and the open public meeting would begin at 11:00 a.m.
There being no further business before the board, Jim Thompson proposed the meeting be adjourned. Joseph Smith seconded the motion and the meeting was adjourned at 11:40 a.m.
(Quotations of board members in these minutes have been reviewed by staff for grammatical content, and certain grammatical changes may have been made by staff administratively. No changes to content have been made by staff administratively or otherwise.)
November 12, 2013
Robin Van Staeyen
Administrative Assistant II
Arizona State Personnel Board
This page was last updated
Wednesday, November 27, 2013.