Michael K.

Jeanes, Clerk of Court *** Electronically Filed *** 01/02/2013 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC2011-000683-001 DT 12/21/2012

THE HON. CRANE MCCLENNEN

CLERK OF THE COURT J. Eaton Deputy

SHAWN WAGNER v. STATE OF ARIZONA (001) ARIZONA GAME AND FISH DEPARTMENT (001)

MARTIN A BIHN

DENNIS DALE CARPENTER JR.

OFFICE OF ADMINISTRATIVE HEARINGS REMAND DESK-LCA-CCC MINUTE ENTRY AND DECISION Plaintiff-Appellant Shawn Wagner (Wagner) has filed a Complaint pursuant to A.R.S. 38 532 alleging a Prohibited Personnel Practice. For the following reasons, this Court finds and concludes Wagner was the subject of unlawful reprisal in violation of that statute. I. FACTUAL BACKGROUND (AND F INDINGS OF FACT). Wagner has been employed by the Arizona Game and Fish Department (AzG&F) since 1994, and has been a Wildlife Manager since 1997. (R.T. of Jul. 12 & 13, 2012, at 26.) [Hereinafter cited as R.T. or Id.] In September 2010, Wagner was bow-hunting for elk with Kenny Clay Jr. (Clay Jr.), Kenny Clay III (Clay III), Paul Greer (Greer), and James Weeks (Weeks) in the Pinetop area. (Id. at 47.) Clay Jr. is a retired Wildlife Manager; Clay III and Greer are current Wildlife Managers; and Weeks is a judge pro tem. for the justice courts. (Id. at 4748, 334.) Wagner, Clay Jr., and Clay III are all POST-certified law enforcement officers. (Id. at 26, 33132, 334.) Wagner, Clay III, and Greer had been drawn for the hunt and thus each had an elk tag. (Id. at 48.) Wagner was scheduled for surgery in Phoenix on September 13, so he was to leave Sunday night. On Sunday, September 12, at about 20 minutes before sunset, Wagner and Clay III were sitting in a blind about 48 yards from a water hole when a bull elk appeared. (R.T. at 48, 50.) They agreed Wagner would take the shot, so Wagner shot at the elk while Clay III watched through binoculars. (Id. at 50.) Rather than hitting the elk in the lungs, the arrow hit a few inches back in the elks liver. (Id. at 5051, 330.) The elk jumped over the berm and went out of sight. (Id. at Docket Code 512
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51, 330.) Wagner and Clay III followed the blood trail for about three-tenths of a mile until they ran out of blood and daylight. (Id. at 5152, 331.) They marked their position on their GPS, and returned to the water hole where they met Clay Jr. (Id. at 52.) All three agreed the shot was fatal, and if they found it, they would find it dead. (Id. at 52, 32930, 333.) Clay Jr. and Clay III said they would look for the elk the next day, and if they found it, they would put Wagners tag on it. (Id. at 5253, 33334.) Wagner left his tag in Clays truck and left for Phoenix that night; Clay III later gave the tag to Weeks because Clay III was going to be hunting and did not want to be carrying another persons tag. (Id. at 53, 335.) The next morning, Clay Jr., Clay III, and Weeks began tracking the elk. (R.T. at 33536.) They found the shaft from the arrow but not the broadhead, so they knew the broadhead was still in the elk. (Id. at 33637.) When they found the elk, it was standing on its feet under a juniper tree unable to move. (Id. at 33839.) Clay III decided to dispatch the elk and put it out of its misery, so he shot at the elk. (Id. at 339.) Because the elk was behind the branches, several of Clays shots missed. (Id. at 33940.) One shot hit the elk in its knee, but the elk did not move. (Id. at 340.) Finally, his last arrow went through the elks windpipe, and the elk fell over dead. (Id. at 340.) During this time, the elk never moved from where it had been standing in a pool of blood, which meant it had not moved all night. (Id. at 34142.) All of the persons there agreed Wagner had inflicted the mortal wound and thus they considered it to be Wagners elk, so they decided to put Wagners tag on it. (Id. at 342.) Weeks gave Wagners tag to Clay Jr., and Clay Jr. was the one who actually tagged the elk. (Id. at 335, 345.) During this time, they had not contacted Wagner, so he did not know the elk was still alive that morning. (Id. at 336.) Because Wagner had given Clay III authorization, he signed the transport portion of the tag. (Id. at 346.) They field-dressed, gutted, and skinned the elk, and took it back to camp. (Id.) Wagner had decided to give the meat to a family the FOP Lodge had adopted as a Christmas family charity, so the next day Clay Jr, transported the elk to a meat processor in Winslow. (Id. at 64, 346.) The previous evening when Wagner and Clay III were following the blood trail, Wagner received a call from James Chandler (Chandler), who was the AzG&F Regional Law Enforcement Specialist in the Pinetop area, and was POST certified. (R.T. at 53, 285, 287.) Chandler was on duty at the time and knew Wagner had been drawn for the elk hunt. (Id. at 28788.) Wagner told him about shooting the elk and tracking it, but not being able to find it. (Id. at 54.) As Wagner was on his way to Phoenix, when he was able to obtain a better signal, he called Chandler and gave him more details of the situation, including telling him he had left his tag with the others so they could put it on the elk if and when they found it. (Id. at 5455, 5758, 288.) Chandler did not believe there had been any Title 17 violation because the wound would eventually be mortal. (Id. at 28992.) Neither Chandler nor any of the AzG&F employees who were there had any concerns about what they were doing. (Id. at 5556.) Bob Birkeland (Birkeland) was a Wildlife Manager Supervisor and Wagners supervisor, had worked for the AzG&F for 21 years, and was a POST-certified state peace officer. (R.T. at 121, 131.) Birkeland knew Wagner had been drawn for the elk hunt. (Id. at 128.) On Monday Form L000 Docket Code 512 Page 2

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morning (September 13) at about 6:00 a.m., Wagner called Birkeland and told him about shooting the elk, that it was a shot to the liver, that everyone believed it was a fatal shot, that the others would look for it that morning, and that he had left his tag with them so they could tag the elk if and when they found it. (R.T. at 5859, 106, 128, 155.) Birkeland had no issue with what they were doing and did not believe it was any Title 17 violation. (Id. at 59, 129.) Birkeland was of the opinion that the person who caused the mortal wound to an animal was the one who killed it and thus was the person to whom the animal belonged, and this was true even if another person had to administer a second shot to finish off the animal. (Id. at 12526, 15961.) At about 8:00 a.m., Wagner called Rick Langley (Langley), who was the AzG&F Regional Law Enforcement Specialist for the Pinetop area, and was on duty in the area at that time. (R.T. at 59, 20809, 21112, 21617.) Wagner told Langley about the events, and Langley expressed no concerns and did not think there was any Title 17 violation. (Id. at 5960, 213.) Langley was of the opinion that the person who caused the mortal wound to an animal was the one who killed it and thus was the person to whom the animal belonged, and this was true even if another person had to administer a second shot to finish off the animal. (Id. at 21415, 22224.) Wagner could not remember which it was, but either Chandler or Langley said, if any of the others needed help, he would join them and help look for the elk. (Id. at 60.) Eric Podoll was also an AzG&F Wildlife Manager, and had arrived at the camp Sunday night after Wagner left and agreed to help the others look for the elk. (R.T. at 60.) Monday morning, Podoll sent Wagner a text message telling him they had found the elk, and at about 10:00 a.m., called Wagner and said they had found the elk about 100 to 150 yards from where Wagner and Clay III ended their search Sunday night. (Id. at 6061.) Podoll described the elk as standing on its feet under a juniper tree unable to move, and that Clay III shot it. (Id. at 61.) He said all the persons there agreed Wagner had inflicted the mortal wound and thus they considered it to be Wagners elk, so they put Wagners tag on it. (Id. at 6162.) Right after Wagner finished his call with Podoll, he received a call from Birkeland, and told him about the others finding the elk still alive and shooting and tagging it. (R.T. at 64, 129, 155.) Even with this additional information, Birkeland still did not believe anyone had committed a Title 17 violation. (Id. at 130.) Moreover, in all of these calls to the various AzG&F personnel, no one had expressed any concern about what they were doing with the elk and the tag, and none thought there was any kind of a Title 17 violation. (Id. at 6566.) Wagner discussed the elk hunt with several AzG&F personnel, including Josh Hurst (Hurst), who worked out of the Phoenix office. (R.T. at 10910.) Hurst discussed the matter with his supervisor John Romero (Romero), a POST-certified Law Enforcement Program Manager. (Id. at 108, 11011, 171.) On September 23, Romero went to the Officer of Leonard Ordway (Ordway) to discuss the elk hunt. (Id. at 264.) Ordway was the Assistant Director of Field Operations, and was a POST-certified law enforcement office. (Id. at 22830.) Romero told Ordway there was some stuff that was going on up in the Pinetop area and that it involved several individuals, Docket Code 512
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including Wagner. (Id. at 264, 26768.) Romero told Ordway there were possibly some potential [Title 17] violations, thus Ordway knew this could be a Title 17 criminal investigation. (Id. at 167, 170, 173, 25465, 26869, 273.) On September 23, Birkeland talked to his supervisor, Jon Cooley (Cooley), who was the AzG&F Regional Manager in the Pinetop area, but was not a law enforcement officer and was not POST certified. (R.T. at 16365.) Birkeland talked to Cooley about the elk hunt, and Cooley said he would discuss it with Ordway, who was his supervisor. (Id. at 13132, 150.) Ordway was under the impression the proper procedure was to interview those involved and get statements, and then based on those statements, decide whether to conduct either an administrative or criminal C110 investigation. (Id. at 25960.) Ordway knew a law enforcement office who was interviewed in an administrative investigation had certain rights, but at the time did not know one of those rights was to be told the allegations against the officer. (Id. at 27172.) Ordway said he did not give specific instructions on how to conduct the investigation, but they needed to consider the way C110 was written. (Id. at 27374.) After Ordway met with Cooley on September 24, he knew Birkeland was going to look into this matter, and he assumed Birkeland would be following and looking at the C110 policy. (Id. at 274.) As far as who killed the elk, Ordway was of the opinion that the person who caused the mortal wound to an animal was the one who killed it and thus was the person to whom the animal belonged. (Id. at 238, 242.) Ordway acknowledged the public at large would have an interest in how the AzG&F conducted investigations into complaints against its officers. (Id. at 253, 255, 270.) After Ordway met with Cooley, on September 24 Cooley met with Birkeland, who he knew was a POST-certified police officer. (R.T. at 169, 259.) Although Cooley understood any person had the constitutional right to remain silent, he was only generally familiar with an employees rights under C110 and A.R.S. 381101, but was not thoroughly familiar with them before the events in question. (Id. at 16566, 172, 175, 182, 189.) At that September 24 meeting, Cooley said Ordway wanted to know what had happened and thus instructed Birkeland to look into Shawns elk hunt. (Id. at 132, 150, 152, 166, 168, 173.) Birkeland asked Cooley if this was a C110 or official investigation, and Cooley said it was not. (Id. at 13235, 166, 17677, 18487, 189.) Cooley said they wanted Birkeland to initiate an inquiry to gather facts so they could determine what course of action to pursue based on those facts. (Id. at 16668, 17275, 178, 180.) Cooley knew there were potential criminal violations, and apparently was under the impression the proper procedure was to interview those involved and get statements, and then based on those statements, decide whether to conduct either an administrative or criminal C110 investigation. (Id. at 168, 170, 173, 175, 17778, 186, 18891, 19899.) Because Cooley said this was not a C110 investigation, Birkeland was confused over just what type of inquiry this was. (Id. at 135, 176, 316.) Cooley told Birkeland that he and Ordway would understand if Birkeland was not comfortable with the inquiry, and he should just let them know if he became uncomfortable with it. (Id. at 13536, 173.) Cooley acknowledged the public would be concerned with the way the AzG&F handled potential investigations of its employees. (Id. at 196.) Docket Code 512
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Birkeland called Wagner and told him people in Phoenix were asking about the hunt and wanted Wagner to give a written statement about what had happened. (R.T. at 67, 107, 151.) This concerned Wagner because he had already talked to Birkeland on September 13 and told him everything about the hunt. (Id. at 78.) Wagner knew about the AzG&F Policy C110, which prescribes the conduct for an investigation of AzG&F personnel, asked if this was a C110 investigation, either administrative or criminal; Birkeland said it was not. (Id. at 6768, 76, 10708.) Wagner knew the C110 policy gave personnel certain rights and that he had other rights under A.R.S. 381101, usually referred to as Garrity rights. (Id. at 72, 75.) Wagner said he would cooperate fully if there were a C110 investigation, but if this was some sort of inquiry not authorized by the AzG&F regulations, he would not make a statement. (Id. at 6870, 7374, 112.) Birkeland did not think this was being insubordinate or disrespecting his authority. (Id. at 139, 14849.) Later that day, Wagner again spoke to Birkeland, and Birkeland said Ordway did not order an investigation, he just wants the truth. (Id. at 7172, 113.) After Birkeland had met with Cooley, Birkeland told Wagner he was told to interview everyone involved in the hunt. (Id. at 7677, 113, 114.) This caused concerns to Wagner because it appeared (1) those initiating the investigation were not following the policies required by the AzG&F regulations, and (2) the investigation was criminal in nature, and thus those initiating the investigation were trying to circumvent the regulations in order to get a voluntary statement from him. (Id. at 7879.) On September 29, Wagner met with Birkeland and explained his concerns how the inquiry was being handled and that he thought AzG&F Director Larry Voyles (Voyles) should know about it. (R.T. at 114.) Voyles had worked for the AzG&F for 38 years, had started as a Wildlife Manager, was POST certified, and had been its Director for 4 years. (Id. at 297, 362.) Over the last few days, Birkeland had come to the conclusion the inquiry was now criminal in nature, and thus those involved had certain constitutional and statutory rights. (Id. at 13640, 154.) At that point, he thought he should not continue with the inquiry, and so he wrote a memorandum to that effect to Cooley. (Id. at 136, 14142, 144, 153; Exhibit 3.) Later on September 29, Wagner sent an e-mail with an attached memorandum [Exhibit 5] to Voyles, who was Ordways supervisor, presenting his concerns that Ordway and Cooley were conducting an investigation without following the AzG&F C110 regulations. (R.T. at 7981, 11314, 115.) Wagner believed the public had an expectation that a law enforcement agency such as the AzG&F would act in accordance with their own rules and regulations, and thus would not violate the rights of their personnel when conducting an investigation. (Id. at 82.) Wagner later received a telephone call from Voyles wherein Voyles said what Wagner said in his memorandum was correct and that was not how he expected AzG&F employees to be treated, and thus he was initiating an administrative C110 investigation into the elk hunt and into the conduct to Ordway and Cooley in initiating the informal inquiry. (Id. at 8284, 11416.) Voyles testified Wagners memorandum raised legitimate concerns over the process. (Id. at 312.) Docket Code 512
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Voyles was not aware Ordway and Cooley had begun an inquiry into Wagners conduct, so his first knowledge of this was Wagners September 29 memorandum. (R.T. at 305, 368.) Once he received that memorandum, he stopped the inquiry Ordway and Cooley were doing and began a formal C110 investigation to be conducted by an outside agency, the Arizona Department of Juvenile Corrections (AzDOJC), this investigation to include (1) the conduct of the persons on the elk hunt, and (2) the conduct of Ordway and Cooley for the way they directed their inquiry into the elk hunt. (Id. at 30507, 373.) Deputy Director Gary Horvatter (Horvatter) appears to be the person who was to make contact with the outside agency. (Exhibit 2, at 2.) Although Cooley had told Birkeland this was not a C110 investigation, Voyles later said, Birkeland was asked to review and conduct a formal C110. (R.T. at 316.) This investigation ordered by Voyles was conducted by Charles Adornetto (Adornetto) of the AzDOJC. (Id. at 307.) In October, Adornetto contacted Wagner. (R.T. at 8384, 86.) Adornetto asked Wagner if he knew why they were there, and Wagner said he did not know, whereupon Adornetto showed Wagner his September 29 memorandum to Voyles and said that was the reason: And thats when he held this letter like this to me and said, this is why we are here. You wrote this letter. Then he put it down over here and then never talked about the letter again. (Id. at 85.) At no time did Adornetto advise Wagner of the rights Wagner was entitled to receive under A.R.S. 381101, which included the right to have an representative present. (Id. at 85.) According to the C110 regulations, the investigation was supposed to be concluded within 30 days. By mid-December, Wagner had not heard anything, so he contacted Ordway and asked when the investigation was going to be concluded. (R.T. at 8687.) Ordway said, [I]ts your fault this is taking so long, had you not sent your e-mail [memorandum] to the director we could have been done with this two months ago. (Id. at 8788.) Birkeland was also concerned with how long the investigation was taking, and when he expressed his concerns to Cooley, Cooley said, [W]ell, you guys are the ones that wanted us to play by the rules. (Id. at 147.) Wagner then received a letter from Voyles dated December 30, 2010, imposing a suspension of 16 hours. (Id. at 86; Exhibit 6.) Voyles did not participate in the drafting of that letter; it was instead drafted by Cooley, Diana Shaffer (Shaffer), and Norma Abbel (Abbel), and Ordway worked on it further. (R.T. at 201, 206, 235, 25658, 307, 39798.) Wagner believed he had not been afforded his rights under C124 and A.R.S. 381101 and did not agree with findings in the letter, so he initiated the grievance process. (R.T. at 8990, 30809.) Voyles concluded Adornettos investigation did not comply with AzG&F standards and policies and did not comply with A.R.S. 381101, and the report was too value laden and not factual enough, and thus rescinded the discipline imposed. (Id. at 90, 309, 37475.) The report indicated no wrongdoing on the part of management and compliance with internal procedures; Voyles knew, however, management was not in compliance with internal procedures, but he did not believe there was any willful wrongdoing. (Id. at 310.) He ordered a new investigation, this Docket Code 512
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one conducted by Russell Brodeur of the Arizona Department of [Adult] Corrections (AzDOC). (Id. at 9091, 309, 312; Exhibit 15, at 11.) Again, Horvatter was the person who made contact with the outside agency. (Exhibit 15, at 37, 38, 39, 40.) The report resulting from that investigation did not state any conclusions, but instead relayed facts. (R.T. at 312.) Although Voyles had requested this second investigation include the conduct of Ordway and Cooley, these two were not included in that investigation. (R.T. at 31213; Exhibit 15, at 37, 38, 39, 40.) There is no indication in the record why Deputy Director Horvatter did not have Assistant Director Ordway and Regional Manager Cooley included in the AzDOC investigation. Voyles did not realize until after he received the AzDOC report that it did not include any investigation into the conduct of Ordway and Cooley, but he did not want to drag this thing out or redo that, so he decided Adornettos work on those two was probably good enough and left it at that, even though those two were the subject of Shawns September 29 memorandum to Voyles. (R.T. at 313.) This report ultimately resulted a second letter of discipline, dated April 22, 2011, which imposed the same 16-hour suspension. (R.T. at 9092, 31314; Exhibit 7.) Again, Cooley, Shaffer, and Abbel were involved in the drafting of that letter, and Ordway worked on it further, with Voyles making some changes to it. (R.T. at 201, 206, 235, 25658, 314, 321, 39798.) As Ordway acknowledged, The second letter was adjusted to taketry and take all reference out to any of thewith Mr. Wagner invoking his rights and securing the individuals constitutionality. (Id. at 282.) Voyles discussed the reasons contained in the letter for imposing discipline on Wagner and his reasons for imposing discipline on Wagner, but acknowledged his reasons for imposing discipline were not contained in the letter. (Id. at 32425.) For the actions of Wagner in the elk hunt and the tagging of the animal that had been killed, Voyles acknowledged there was no definition of kill. (Id. at 399.) He acknowledged that, if the elk had been dead when the others found it and someone put Wagners tag on it, Wagner would not have been guilty of violating Subsection (D), the provision the disciplinary letter said he violated. (Id. at 403.) Because Wagner was in Phoenix when the other found the elk, Voyles acknowledged Wagner could not have known the elk was alive, and acknowledged, because Wagner could not have known the elk was alive, Wagner could not have intentionally or knowingly violated Subsection (D). (Id. at 40304.) Wagner again utilized the grievance procedure. (R.T. at 118.) He contacted Shaffer, the Branch Chief of the human resources program, who told him he could not file the grievance with his supervisor (Birkeland) because Birkeland was also filing a grievance, thus Wagner had to proceed first with Cooley and then Ordway and then Voyles. (Id. at 11819.) After Voyles denied the grievance, Wagner filed with the Department of Administration, who upheld the discipline. (Id. at 120.) This Complaint followed. .... .... Docket Code 512
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II. ISSUES (AND FINDINGS OF FACT AND CONCLUSIONS OF LAW). Wagner contends he was punished as a result of his September 29 memorandum. The applicable statute provides as follows: A. It is a prohibited personnel practice for an employee who has control over personnel actions to take reprisal against an employee for disclosure of information of a matter of public concern by the employee to a public body that the employee reasonable believes evidences: 1. A violation of any law. 2. Mismanagement, a gross waste of monies or an abuse of authority. B. The disclosure by an employee to a public body alleging a violation of law, mismanagement, a gross waste of monies or abuse of authority shall be in writing and shall contain the following information: 1. The date of the disclosure. 2. The name of the employee making the disclosure. 3. The nature of the alleged violation of law, mismanagement, a gross waste of monies or abuse of authority. 4. If possible, the date or range of dates on which the alleged a violation of law, mismanagement, a gross waste of monies or abuse of authority occurred. A.R.S. 38532(A) & (B). This Court finds and concludes Wagner has established all the elements of that statute. A. Did Wagner violate AzG&F Regulation R124302(D). Wagners April 22, 2011, disciplinary letter stated Wagner had violated AzG&F Regulation R124302(D), and other regulations and statutes that were based on the assumption Wagner had violated R124302(D). This Court finds and concludes, based on the evidence presented at the hearing, that Wagner did not violate R124302(D). That regulation provides as follows: An individual shall not allow a tag issued to that individual to be attached to wildlife killed by anyone else . . . . R124302(D). The basis for the conclusion that Wagner violated R124302(D) is the assumption Clay III killed the elk and Wagners tag was then attached to it. Thus, the alleged violation was as follows: [Wagner] shall not allow a tag issued to [Wagner] to be attached to wildlife killed by [Clay III]. The evidence presented showed Wagner [and all the others] thought the elk was dead once Wagner shot it, thus when Wagner left his tag at the camp Sunday night, he thought he killed the elk. When the hunting party found the elk the next morning and saw it was still alive, they did not Form L000 Docket Code 512 Page 8

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contact Wagner to tell him the elk was still alive. Nor did they tell Wagner once Clay III shot the elk and it died, and thus did not ask him whether he thought they should put his (Wagners) tag on it or should put Clays tag on it. Assuming Clay III was the one considered to have killed the elk, Wagner did not know Clay III killed it, thus Wagner did not allow his tag to be attached to wildlife killed by anyone else. As Voyles acknowledged, Wagner could not have known Clay III killed the elk, and thus admitted Wagner could not have intentionally or knowingly violated R124302(D). (R.T. at 40304.) The April 22 letter further said Wagner violated A.R.S. 17309(A)(2) when he subsequently possessed the elk you did not kill and/or tag. The evidence presented at the hearing showed Wagner was not present when the others took possession of the dead elk, and that Clay Jr. was the person who transported the elk to a meat processor in Winslow. Thus, Wagner did not possess the elk. Moreover, the above scenario is based on the assumption that Clay III killed the elk, and that is not how the situation was viewed by all the Wildlife Managers who testified. Wagner, Clay III, Birkeland, Langley, and Chandler all believed the person who administered a shot that would be fatal was the one who killed the animal, and this was true even if another person had to administer a second shot to finish off the animal. In determining how to interpret a regulation, a court is entitled to rely on how the personnel of an administrative agency interpret that regulation, as long as that interpretation is reasonable. Because this is a reasonable interpretation of R124302(D), this Court finds and concludes Wagner killed the elk, thus Wagners tag was not attached to wildlife killed by anyone else. AzG&F contends it does not matter whether Wagner did or did not violate R124302(D) because Voyles believed Wagner violated R124302(D) and imposed discipline on Wagner for what he believed was a violation of R124302(D). The record shows, however, Voyles imposed discipline on Wagner based on the letter drafted by Cooley and Ordway, the two individuals whose conduct originally led Wagner to write the September 29 memorandum to Voyles. And as discussed below, it is this Courts opinion that the discipline was imposed on Wagner was a result of the conduct of Cooley and Ordway in conveying their version of the facts to Voyles, and in their drafting of the disciplinary letter to Wagner that Voyles ultimately signed. Although not necessarily relevant to whether Wagner was wrongfully disciplined, this Court would also note Clay III was wrongfully disciplined. The April 22, 2011, disciplinary letter to Clay III said he violated R124302(B) and (C) when he possessed and used Shawn Wagners tag. The evidence presented at the hearing in this matter showed, however, Weeks and Clay Jr. were the ones who possessed Wagners tag, and Clay Jr. was the one who actually placed the tag on the elk. Further, that letter said Clay III violated the regulations when he took, processed and transported the unlawfully tagged elk. The evidence presented at the hearing in this matter showed, however, Clay Jr. was the one who possessed and transported the elk to Winslow. Docket Code 512
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B. Was Wagners September 29 memorandum based on valid statutory concerns. In Wagners September 29 memorandum, he was concerned that Ordway and Cooley were not following AzG&F procedures in conducting the inquiry into the elk hunt. After Wagner sent that memorandum to Voyles, Voyles later called Wagner and told him what he said in his memorandum was correct and that was not how he expected AzG&F employees to be treated, and thus he was initiating an administrative C110 investigation into the elk hunt and into the conduct to Ordway and Cooley in initiating the informal inquiry. When Voyles testified, he said his formal C110 investigation was to include the way Ordway and Cooley conducted their inquiry. Wagners September 29 memorandum thus alleged mismanagement and abuse of authority, and potentially a gross waste of monies. Further, to the extent Ordway and Cooley did not follow the procedures in C110, they violated A.R.S. 17309(A)(1), which prohibits a person from violating any provision of Title 17 or any rule adopted pursuant to that Title. Finally, to the extent Ordway and Cooley authorized an investigation that did not afford the rights provided by A.R.S. 381101, they violated that law. Thus, In Wagners September 29 memorandum satisfied the requirements of both A.R.S. 38532(A)(1) and (2). And based on the detail in that memorandum, it complied with the requirements of A.R.S. 38532(B) C. Did Ordway and Cooley follow proper AzG&F procedure in attempting to find out what happened during the elk hunt.

Wagner was concerned Ordway and Cooley were not following AzG&F procedures in attempting to find out what happened during the elk hunt. This Court finds and concludes Ordway and Cooley did not follow AzG&F procedures. AzG&F Policy C110(B)(1) provides, There are two types of investigations: criminal and administrative. This Court has found no provision for the type of informal inquiry Ordway and Cooley wanted to pursue. Cooley testified he was only generally familiar with an employees rights under C110 and A.R.S. 381101, but was not thoroughly familiar with them before the events in question. (R.T. at 16566, 172, 175, 182, 189.) Ordway too was not familiar with AzG&F procedures for this type of an investigation. (Id. at 27175.) Voyles testified he knew management was not in compliance with internal procedures. (Id. at 310.) Both Ordway and Cooley were under the impression the way to proceed was to have some sort of informal inquiry by which a person (in this case Birkeland) would take statements (verbal or written) about what happened, and then based on those statements, determine whether to initiate a formal C110 investigation, either administrative or criminal. Ordway and Cooley did not seem to understand that, if an AzG&F employee made incriminating statements during this informal inquiry and then AzG&F personnel decided to initiate a formal C110 investigation, the AzG&F could use those statements against that employee, and all the rights that employee would have under C110, C124, and A.R.S. 381101 would be rendered meaningless, which was exactly the point of Wagners September 29 memorandum to Voyles. Based on the testimony Docket Code 512
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presented, this Court finds and concludes Ordway and Cooley were not following AzG&F procedures in attempting to find out what happened during the elk hunt. Moreover, it is not apparent why Ordway and Cooley thought some sort of informal inquiry was necessary. As shown by Ordways notes of September 23 [Exhibit 2], Ordway knew on that date all the details of the elk hunt, including the names of the individuals who were there. Based on that information, Ordway should have been able to determine whether either Wagner or Clay III or Podoll had committed misconduct. Further, Ordway knew those at the elk hunt included non-Department individuals (Ken Clay [Jr.] and Jim Weeks. [Exhibit 2, 1.] If Ordway needed to learn more details or needed to learn exactly what had happened, he could have had Birkeland interview Clay Jr. and Weeks without running afoul of either C110 or C124. Based on all that information, if Ordway thought either Wagner or Clay III or Podoll had committed misconduct, he could have initiated a formal C110 investigation and avoided all the complicated proceedings this incident has caused. It appears Ordway and Cooley thought it would be more expeditious to conduct some sort of informal inquiry rather that going through the more extensive C110 process. It may in fact be a good idea to have some sort of informal inquiry process to use to decide whether to conduct a more formal C110 investigation, but it would be the province of the AzG&F to determine whether to authorize such a process and to determine what that process should be and what rights should be afforded to any AzG&F personnel being investigated. It is not the province of Ordway and Cooley to take it upon themselves to create such a process on their own. It is also interesting to note what did (or did not) happen to the investigation into the conduct of Ordway and Cooley. As noted above, the formal C110 investigation to be conducted by the AzDOJC was to include both the conduct of the persons on the elk hunt, and the conduct of Ordway and Cooley for the way they directed their inquiry into the elk hunt. (Id. at 30607, 373.) The AzDOJC report indicated no wrongdoing on the part of management and compliance with internal procedures; Voyles knew, however, management was not in compliance with internal procedures, but he did not believe there was any willful wrongdoing. (Id. at 310.) Voyles requested a second investigation, which was to include the conduct of Ordway and Cooley, but for some reason Horvatter did not ask the AzDOC to include them in that investigation. (Id. at 312 13; Exhibit 15, at 37, 38, 39, 40.) Voyles did not realize until after he received the AzDOC report that it did not include any investigation into the conduct of Ordway and Cooley, but he did not want to drag this thing out or redo that, so he decided Adornettos work on those two was probably good enough and left it at that, even though those two were the subject of Shawns September 29 memorandum to Voyles. (R.T. at 313.) Thus, the result of Shawns September 29 memorandum to Voyles was an inadequate report by Adornetto that reached conclusions about the conduct by Ordway and Cooley that Voyles knew were incorrect, and no subsequent proper investigation of their conduct.

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D.

Was Wagner punished as a result of sending the memorandum to Voyles.

Wagner contends the AzG&F imposed discipline against him as a result of the September 29 memorandum he sent to Voyles. For four reasons, this Court finds and concludes Wagner was punished as a result of that memorandum. First, by mid-December, when Wagner asked Ordway when the investigation was going to be concluded, Ordway said, [I]ts your fault this is taking so long, had you not sent your e-mail [memorandum] to the director we could have been done with this two months ago. (R.T. at 86 88.) When Birkeland expressed to Cooley his concerns that the investigation was taking a long time, Cooley said, [W]ell, you guys are the ones that wanted us to play by the rules. (Id. at 147.) Ordway and Cooley were clearly displeased that Wagner had sent the September 29 memorandum to Voyles. Second, Ordway and Cooley were responsible in part for the drafting of the April 22, 2011, letter. Because Wagners September 29 memorandum to Voyles accused them of wrongdoing, Ordway and Cooley had an incentive to draft the letter in such a way that they appear blameless in their conduct, and Wagner appear to have violated AzG&F rules and regulations. Third, as discussed above, Wagner did not violate the regulations and statutes the April 22 letter accused him of violating. Wagner did not know the elk was still alive on September 13 when Clay III shot it, thus assuming Clay III killed the elk, Wagner did not intentionally or knowingly allow a tag issued to [Wagner] to be attached to wildlife killed by [Clay III]. Moreover, all the Wildlife Managers involved were of the opinion that Wagner was the person who kill the elk, thus Wagners tag was attached to an elk killed by Wagner. Further, Clay Jr. was the person who transported the elk to Winslow, thus Wagner did not subsequently possess[] the elk you did not kill and/or tag. Once Voyles realized at the hearing held in this matter Wagner did not violate the rules and regulations he was accused of violating, he came up with some new reasons that were never even mentioned in the letter. Such after-the-fact attempt to come up with new reasons does not change the fact that Ordway and Cooley drafted the letter in such a way that it imposed discipline on Wagner as a result of his September 29 memorandum. Fourth, the language of the April 22 letter itself shows Wagner was punished as a result of his September 29 memorandum. On page 2 of the April 22 letter it states, The specific reasons for your suspension are: Following that are four paragraphs describing a version of the elk hunt, and after those four paragraphs are the following three paragraphs: Upon learning of the fact finding that you supervisor, Bob Birkeland was asked to conduct, you sent a memo dated September 29, 2010 to Director Larry Voyles. In that memo you admonished Assistant Director Leonard Ordway and the chain-of-command for not following the C1.10 process. You stated the following in your September 29, 2010 memo: Docket Code 512
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After the investigation was initiated, I was asked to provide a written account of my hunt. I said no. I did not think that was warranted and no other employees I knew had been asked to write an account by their supervisor of their hunt while off duty. I was later told there was not a criminal investigation nor was there in investigation into employee misconduct. I was then told there was not an investigation, but was asked to provide a verbal statement about what happened so my supervisor could provide it to Leonard Ordway at his request because he just wants the truth. I said no. If there is not an investigation, then I am not inclined to do anything since I am not being provided the protections provided to me in those policies and procedures. The issue you noted was caused by actions of your immediate supervisor, not the chain-of-command above him. In your memo you went on further to criticize Assistant Director Leonard Ordway and his chain-of-command for being worried about the Headline Test versus finding out what occurred during your elk hunt instead of relying on office rumor. This is precisely the reason for leadership asking your supervisor, Bob Birkeland, to conduct a preliminary fact finding inquiry to determine if a formal C1.10 investigation was warranted. (April 22, 2011, letter, at 23.) If Wagner was truly being punished for violating R124302(D) and A.R.S. 17309(A)(1) & (2), there was no reason to include those paragraphs. It appears Ordways intention and Cooleys intention was to tell Wagner they did nothing wrong, and to tell Wagner he had no right to criticize them for what they did, and to punish Wagner for criticizing them. Wagner was thus punished for his September 29 memorandum. E. Did Wagners memorandum disclose a matter of public concern. The statute requires the disclosure of information of a matter of public concern. Voyles testified Wagners memorandum raised legitimate concerns over the process. (R.T. at 312.) Ordway acknowledged the public at large would have an interest in how the AzG&F conducted investigations into complaints against its officers. (Id. at 253, 255, 270.) And Cooley acknowledged the public would be concerned with the way the AzG&F handled potential investigations of its employees. (Id. at 196.) This Court therefore finds as a matter of fact Wagners September 29 memorandum disclosed a matter of public concern. In Respondents Closing Argument, filed August 8, 2012, the AzG&F cites authorities and makes arguments why Wagners September 29 memorandum did not disclose a matter of public concern. In Wagners Closing Argument re: Matters of Public Concern, filed October 23, 2012, Wagner cites authorities and makes arguments why his September 29 memorandum did disclose a matter of public concern. This Court finds Wagners authorities persuasive and his arguments well-taken, and based on those authorities and arguments concludes as a matter of law Wagners September 29 memorandum disclosed a matter of public concern. This Court further adopts Wagners proposed Findings of Fact and Conclusions of Law to the extent they are consistent with this Courts Findings of Fact and Conclusions of Law. Docket Code 512
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F.

Has Wagner established a right to recovery.

The statute provides as follows: An employee . . . against whom a prohibited personnel practice is committed may recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal resulting from the prohibited personnel practice as determined by the court. A.R.S. 38532(D). This Court finds Wagner lost regular pay and performance incentive pay as a result of what this Court has determined was a prohibited personnel practice. In Wagners Closing Argument, filed August 9, 2012, Wagner argues he is entitled to an award of general damages. This Court finds the evidence presented fully supports the argument Wagner presents and his claim for general damages. This Court finds Wagner is entitled to an award of general damages in the amount of $100,000.00. III. CONCLUSION. Based on the foregoing, this Court finds and concludes Wagner was the subject of unlawful reprisal in violation of A.R.S. 38532. This Court further finds Wagner has suffered damage as a result. IT IS THEREFORE ORDERED awarding Wagner back pay lost as a result of the 16hour suspension. IT IS FURTHER ORDERED awarding Wagner performance incentive pay lost as a result of the suspension. IT IS FURTHER ORDERED awarding Wagner general damages in the amount of $100,000.00. IT IS FURTHER ORDERED awarding Wagner attorneys fees and costs. IT IS FURTHER ORDERED the Arizona Game and Fish Department shall remove from Wagners personnel file all references to this matter. IT IS FURTHER ORDERED remanding this matter to the Arizona Game and Fish Department for all further appropriate proceedings. IT IS FURTHER ORDERED, within 20 days of the date this Minute Entry and Decision is filed, Martin Bihn, as attorney for Wagner, shall file with this Court the appropriate documenttation to support a claim for attorneys fees and costs. IT IS FURTHER ORDERED, within 20 days of the date this Minute Entry and Decision is filed, Martin Bihn shall file with this Court a proposed form of Judgment, that Judgment to reference this Courts Minute Entry and Decision and include the above Orders, and include with those Orders spaces for this Court to use for the amount of attorneys fees and costs. FILED: Exhibit Worksheet

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