Chair Gephart reconvened the meeting by recognizing Mr. Dan Smith and his attorney Merle Joy Turchik. Chair Gephart informed the Board Ms. Turchik would be presenting the request, and they would hear testimony from Mr. Dan Smith and other witnesses. Chair Gephart asked the Board if they had any comments or questions. There were no comments or questions and the floor was open to Ms. Turchik.
 
Ms. Turchik introduced herself to the Board and explained her role in representing Mr. Dan Smith at today's meeting. Ms. Turchik stated the reason they were here today was to seek a reversal of the Local Board's January 24, 2020, decision which found Mr. Smith ineligible to participate in the Public Safety Personnel Retirement System (PSPRS) retroactive to his original hire date of May 30, 2013, because, reportedly, he was not regularly assigned to hazardous duty.
 
Ms. Turchik stated they would present evidence to substantiate their belief the Board's prior determination was made based on an incomplete presentation of the facts by former Interim Human Resources Director, Kathleen Haggerty. The Board would hear how Mr. Smith's position was recruited through the Oro Valley Police Department, how he was hired by the Police Department, and that he underwent the same processes (including FTO training) as any other lateral hire police officer would undergo. He was required to maintain his AZPOST certification, and upon hire, he received badge number V243, a service weapon, taser, pepper spray, baton, book of Arizona traffic laws, a map book of Oro Valley for use on patrol and authorization to purchase a ballistic vest and police uniforms. He was paid as a police officer, he was listed on Police Department staff rosters and when unavailable to work, his position as Bailiff was covered by other Oro Valley police officers. Additionally, prior Bailiffs hired for the court were all police officers, and when he was hired he was informed he would be eligible to participate in the Public Safety Personnel Retirement System.
 
Ms. Turchik reviewed the PSPRS eligibility requirements that a Local Board is required to use when making a determination of eligibility, specifying two key components. One being a municipal police officer and certified peace officer and two being regularly assigned to hazardous duty. With regard to hazardous duty, Ms. Turchik clarified Mr. Smith's duties as a police officer were in place from May 30, 2013 to January 24, 2020, after which time he no longer performed police officer duties. Prior to January 24, 2020, Mr. Smith was called upon to take police action if he saw anything within the Town municipal complex including responding to calls within the complex, overseeing child custody exchanges which would normally be assigned to a police officer, transportation of prisoners, and leading a weekly warrant detail in which he and two other police officers would issue warrants and make arrests. Additionally, he responded to calls as needed, outside the Town's municipal complex and covered patrol shifts when the Police Department was short on staffing.
 
Ms. Turchik concluded her introduction by pointing out the evidence the Board received in their binders which included several exhibits and letters from former coworkers corroborating Mr. Smith's assertion that he met the eligibility requirement to participate in PSPRS. Ms. Turchick requested permission to call a witness. Chair Gephart granted permission and Ms. Turchik called Mr. Dan Smith.
 
Ms. Turchik asked Mr. Smith to state his full name for the record. Mr. Smith replied his full name is Danny Ray Smith. Ms. Turchik asked Mr. Smith to state his hire date and explain his understanding of the position he was applying for and was hired into. Mr. Smith stated his hire date was May 30, 2013, and it was his understanding he was applying for a certified peace officer position. He also stated he was leaving an existing certified peace officer position to begin employment with the Town of Oro Valley as a Bailiff.
 
Ms. Turchik asked Mr. Smith to draw his attention to Exhibit 1, a cover letter from Dan Smith addressed to the Oro Valley Police Department expressing interest in and applying for the position of Bailiff. When asked why it was addressed to the Police Department, Mr. Smith stated the job posting was through the Police Department. Mr. Smith identified the second page in Exhibit 1 as a background questionnaire used by the Oro Valley Police Department which was a standard AZPOST form used in conducting background investigations for police officers. Mr. Smith clarified he underwent the full standardized AZPOST background investigation which is required of all certified peace officers. Ms. Turchik asked Mr. Smith if he underwent the same process as would be customary for any police officer hired by the Oro Valley Police Department, to which he stated “yes.”
 
Ms. Turchik asked Mr. Smith to turn to the next page of the exhibit which was a job offer letter from Officer Jodi Stevens, Training Coordinator for the Oro Valley Police Department. Ms. Turchik asked Mr. Smith if any of his job offer correspondence came from the Court, and he answered “no.” He further stated after being hired, his first three months were not in the Court, but within the Police Department for his field training. Ms. Turchik asked Mr. Smith to turn to the next page which was an AZPOST appointment/certification form. She asked him to identify which agency he was certified under and what his appointment dates were. Mr. Smith stated the certification was under the Oro Valley Police Department from May 30, 2013 to January 24, 2020. Mr. Smith was directed to turn his attention to the next page of the exhibit which was the Town's employee action form and to identify what position was written on the form. Mr. Smith identified the position as Police Officer (Bailiff) and confirmed the pay rate as being step one of the police officer pay plan. Mr. Smith turned to the next page in the exhibit, which was the original PSPRS membership form acknowledged by the employer. Ms. Turchik asked Mr. Smith to explain who Barb Harnish was. Mr. Smith stated Ms. Harnish worked in HR with the insurances, and she met with him to ensure he was placed appropriately since he was already retired from one job.
 
Ms. Turchik asked Mr. Smith to turn to the next page noting the Oro Valley job description for Bailiff. She asked Mr. Smith if he was able to find the original job description from 2013. Mr. Smith stated he could not obtain a copy of the 2013 job description. However, this job description revised in 2018 was the same as the original job description. Ms. Turchik asked Mr. Smith to read the minimum qualifications for the job as it related to peace officer and AZPOST certifications. Mr. Smith identified the minimum qualifications as completion of police academy, possess at time of application and maintains an AZPOST certificate, and successfully completes Field Training Officer (FTO) process with the Police Department. Mr. Smith also pointed out under the required knowledge, skills, and abilities section of the job description the ability to pass the physical testing required for AZPOST certification; and the ability to maintain physical conditioning adequate to effect an arrest or subdue a defendant.
 
Ms. Turchik asked Mr. Smith if he was in the field training officer process during his first three months of employment. Mr. Smith replied “yes.” Ms. Turchik asked Mr. Smith to describe the equipment he received after successfully completing the FTO process. Mr. Smith stated he received vouchers to obtain full Oro Valley Police Department uniforms, a badge, ballistics vest, and web gear, and he was issued a taser, service weapon, radio, citation book, victims’ rights book, gas mask, personal protective equipment, and all other necessary equipment to be a fully functional police officer. Mr. Smith stated he received all the equipment and vouchers prior to beginning the field training process because he would be working in the field as a police officer during the FTO process.
  
Ms. Turchik asked Mr. Smith to turn to Exhibit 2 and identify the photo that most accurately described him when he went to work. Mr. Smith identified the photo of himself in full police officer uniform receiving his five-year service award from the Town of Oro Valley. Ms. Turchik asked Mr. Smith to describe the two certificates of competency he'd received, also contained in the exhibit. Mr. Smith identified them as Traffic Lidar Operator and Doppler Traffic Radar Operator. When asked if he would use those certifications as a Bailiff, Mr. Smith replied “no,” these certifications were necessary solely for patrol officer purposes.
 
Ms. Turchik asked Mr. Smith to turn to Exhibit 4, and asked him to describe his interactions with the Police Department. Mr. Smith stated his interactions were fine, and he got along good with everybody. It was a professional environment and the Police Department and Court worked well together. Ms. Turchik asked Mr. Smith to explain the memos contained in the exhibit which looked like requests for contact information updates. Mr. Smith explained that his contact information was maintained by the Police Department in order to contact him if they were short-staffed on weekends and needed him to fill in as a patrol officer, also when he was on patrol they would be able to reach him at any time. Ms. Turchik asked Mr. Smith to explain the memorandum sent to Sgt. Dean Nesbitt dated August 26, 2016, regarding Patrol Supervision. Mr. Smith explained this was intended to allow one Sergeant to keep track of his patrol hours. If he applied for any other positions, the department would have record of his time on patrol. This was because as a fill-in officer, he would work under different Sergeants and no one was tracking his time or doing performance evaluations on him annually. The performance evaluations were handled by his supervisor in the Court. Mr. Smith went on to say the number of hours (350) contained at the bottom of the memorandum was his field training hours and not his total hours working patrol since his hire date. He also stated that shortly after this was implemented, Sgt. Nesbitt was reassigned and no one picked up the responsibility to track his hours.
 
Ms. Turchik asked Mr. Smith to turn to the personnel rosters included in Exhibit 4 and asked him to locate his name on those rosters. Mr. Smith identified his name and confirmed he was included with the other certified personnel. Ms. Turchik asked Mr. Smith to explain the next documents within the exhibit. Mr. Smith stated this was a memo to Judge Dunscomb from Lt. Schaefer with a letter of appreciation from the Marana Police Department. The documents were to be included in Mr. Smith's personnel file. Mr. Smith explained he was at another officer's house and a domestic violence situation occurred in the street in front of the officer's house. Both Mr. Smith and the other officer intervened and detained the subjects until the Marana Police Department could respond and make an arrest.
 
Ms. Turchik stated she wanted to review with Mr. Smith the range of duties he performed as Bailiff. Mr. Smith stated his duties as a Bailiff included protecting the Judge, staff, and other individuals within the Court, security checks on individuals appearing in court, including checking those individuals for warrants. If there were any active warrants, Mr. Smith would call for backup from Oro Valley PD, and he and his backup would arrest the individual. Mr. Smith would then transport them to Pima County jail and book them. He pointed out as a police officer he could perform this function, however if he'd been simply a security guard for the Court he would not have been able to. Another primary function was to maintain security for the Court and keep up on warrants including locating suspects, serving warrants and making arrests. Another part of Mr. Smith's duties included transporting defendants to and from jail on Tuesdays. During the time he was transporting defendants, another Oro Valley police officer would cover for him as Bailiff. Additionally, when taking vacation or sick leave, his position was covered by an Oro Valley police officer. Mr. Smith would also handle any defendants that were unruly in court, arrest them and take them to the Pima County jail. Mr. Smith also explained how he was tasked with developing and spearheading a warrant sweep program on Thursdays in which he and other officers would locate suspects with outstanding warrants, serve warrants and arrest the individuals. This warrant sweep program was completed with the help of Sgt. Zach Pierce, Sgt. Matt Horetski and Officers TJ Steele and Christopher Knapp.
 
Ms. Turchik asked Mr. Smith to explain his understanding of what authority the Police Chief had over him. Mr. Smith explained Judge Dunscomb communicated to him that as long as the Court was covered and safe, the Police Department would come first, and he was to provide police officer services to the Department when needed. Mr. Smith stated he used his Spillman computer in his office at the Court to monitor police calls. When he noticed calls were stacking up, if nothing was going on at Court, Mr. Smith would check out a patrol vehicle and would be considered on patrol at large. This meant he was not assigned to a specific beat, but rather at large and could respond as a patrol officer to any calls received by the Department's dispatchers. Mr. Smith also had a police radio, and he would monitor the radio traffic and respond to any issues occurring at the Town's municipal complex.

Ms. Turchik asked Mr. Smith to explain Exhibit 3. Mr. Smith explained this was a small section of the call logs and his activity as a police officer prior to his separation from service on January 24, 2020. He also backtracked and explained that on warrant sweep days he and the other officers would set aside their warrant sweeps and serve on patrol at large if the Department had a need.
 
Ms. Turchik asked Mr. Smith to explain what changed in the duties he performed after January 24, 2020. Mr. Smith stated after that date he did not do any patrol functions, he was unarmed, and he did not wear a uniform. Because there were no policies in place for this change, Mr. Smith mainly took care of administrative and security functions solely within the Court. Ms. Turchik then asked Mr. Smith to turn to the section containing the employer's report initially provided to the Local Board by Interim Human Resources Director, Kathleen Haggerty. Ms Turchik asked Mr. Smith if he'd had a chance to review the memo written by Ms. Haggerty to which he replied “yes.” Ms. Turchik also asked Mr. Smith if this memo provided an accurate description of his job as a Bailiff. Mr. Smith replied “no,” and went on to explain that Ms. Haggerty implied he was a volunteer reserve officer which was not the case. Mr. Smith stated if he'd been a volunteer reserve officer he would not have been able to work police patrol at the level he'd functioned at. He further stated each and every day he reported to work he was suited up as a police officer, and as per Judge Dunscomb, his job was a Police Officer assigned as Bailiff to the Court.
 
In Ms. Haggerty's memo on page two, the final paragraph references contact with Phil Coleman of PSPRS. Ms. Turchik asked Mr. Smith to explain any conversations he might have had with Phil Coleman after the Local Board's initial decision. Mr. Smith stated after the Board met, he received an email notifying him of the Board's decision to vacate his membership within PSPRS retroactive to his hire date, and he needed to enroll in ASRS as soon as possible. He stated the email contained no recourse information or additional steps. He then contacted Mr. Coleman at PSPRS and Mr. Coleman explained to Mr. Smith he had appeal rights and that he could consider consulting with an attorney. Shortly after this, Mr. Smith received a certified letter notifying him of the Board's decision and explaining his appeal rights. Ms. Turchik asked Mr. Smith if during his conversation with Mr. Coleman did Mr. Coleman indicate he agreed with Ms. Haggerty's report and recommendation. Mr. Smith stated Mr. Coleman told him he'd not reviewed any documents, he'd had a hypothetical conversation with Ms. Haggerty and provided an opinion. Mr. Coleman went on to cite another similar case in Northern Arizona where a Police Officer/Bailiff was separated from police duties and offered the opportunity to either transfer to the Police Department as an officer or remain as a Bailiff. This individual elected to remain a Bailiff and would, under this circumstance, no longer be eligible to participate in PSPRS. Mr. Smith also acknowledged that after his police officer duties were removed in January 2020 he no longer met the requirements to participate in PSPRS, but prior to January 2020 he met the requirements.
 
Ms. Turchik asked Mr. Smith if he had anything else he wished to say to the Local Board. Mr. Smith stated that every day he reported to work as a police officer, and that he felt his position was no different from that of a Community Resource Officer or School Resource Officer. Those officers, like himself, may not be patrolling on a daily basis, but they are obligated to respond to situations and to protect and serve under the same standards as any other police officer. Each day they put on the uniform they are in harm’s way or could be at any moment.
 
Mr. Benavidez asked if Attorney Steve Coleman had any questions for the witness. Mr. Coleman introduced himself and identified himself as outside counsel for the employer, Town of Oro Valley. Mr. Coleman stated there was new information learned since the Board's initial decision in January 2020. In light of this new information, the Town would remain neutral in this case and would not be presenting any evidence in opposition to Mr. Smith's request. The Town wanted to ensure the Board had all the information needed to make a decision regarding this request. Therefore, the Town's representatives are present today to answer any questions the Board members may have and to provide assistance, but will not be presenting any opposing evidence.  Mr. Benavidez asked Mr. Coleman if he had any questions for Mr. Smith. Mr. Coleman asked Mr. Smith to give a ballpark estimate of the percentage of time he spent performing police officer duties outside the courtroom versus inside the courtroom. Mr. Smith replied with the estimate of about 25%. Mr. Coleman had no further questions.
 
Chair Gephart asked if any of the Board members had any questions for Mr. Smith. Member Tracy asked Mr. Smith if he knew why, after the Arizona Supreme Court's determination, the Police Department did not bring him back over as a police officer. Mr. Smith replied that he did not know why he was not transferred back over to the Police Department. Mr. Smith explained after his separation from service, he eventually returned to the job he'd retired from as a Criminal Investigator with the state of Arizona's prison system. He said his AZPOST certification meant more to him than any money, and he wanted to maintain that certification. Under AZPOST standards he had not had any lapse in service, so in November 2020, he returned to his former job within the prison system. Mr. Tracy asked Mr. Smith what retirement system he is now in, and Mr. Smith replied he was in ASRS. Mr. Smith and Ms. Turchik provided additional clarification that their request before the Board today was to reinstate Mr. Smith's membership in PSPRS from May 13, 2013 to January 24, 2020. This would allow Mr. Smith to keep his vested retirement in that system and draw from it or transfer it at a later date as opposed to potentially losing what he'd contributed to the system.
 
Chair Gephart asked Mr. Smith, as a “lateral hire,” how many years he had in PSPRS prior to his employment with the Town of Oro Valley. Mr. Smith stated he had zero prior years in PSPRS. He stated he'd been in the CORP retirement system which he'd retired from prior to beginning employment with the Town.
 
Chair Gephart asked if there were any other witnesses, and Ms. Turchik asked if she could briefly call Officer Brown. Ms. Turchik asked Officer Brown to state his name for the record, his position and how long he'd been in his position. Officer Brown stated his name is Timothy Brown, he is a police officer with the Oro Valley Police Department, and he'd been in his position for just under 20 years. Ms. Turchik asked Mr. Brown if he knew Dan Smith and Mr. Brown answered “yes,” that he was Mr. Smith's Field Training Officer. Ms. Turchik asked Mr. Brown if he'd done anything different with Mr. Smith during his field training that he would not have done with any other police officer. Mr. Brown stated “no,” there was no difference in Mr. Smith's field training. He further stated that prior to Mr. Smith's employment as Bailiff, other police officers from the Oro Valley Police Department had applied for and been employed in the position. Mr. Brown also confirmed he served on patrol with Dan, he served on warrant sweeps which Dan led, and that Dan served as any other police officer with the Town. Ms. Turchik had no further questions for the witness. This witness was excused.
 
Chair Gephart asked the other Board members if they had any thoughts, comments or questions. Member Trevizo asked in general discussion what happened that Mr. Smith's position as Bailiff had to get changed or remedied from being a sworn peace officer position to a purely civilian position. Mr. Benavidez explained this was determined by the Arizona Supreme Court in 2020, and there needed to be a separation of powers between the executive/enforcement branch and the judicial branch. It was not a clear separation of powers to have a sworn police officer serving under a judge within the court system. Mr. Benavidez further clarified this change was instituted by the Supreme Court which regulates the municipal courts and the judges.
 
Member Trevizo asked what new information the Board was given versus the information the Board had at its initial meeting in January 2020. Mr. Benavidez stated the Board had not heard from Mr. Smith and had not been provided with police call logs and other detailed information concerning his specific job duties. Member Trevizo asked Human Resources Director Judith Boros how HR remedied the job description issues in question for the Bailiff position. Ms. Boros stated the Town no longer has the job title of “Bailiff” within their job descriptions or salary plans. The Town has a position of Court Security Officer which became effective January 31, 2020. Member Trevizo asked for clarification on how Mr. Smith's position could be required to have AZPOST certification and no longer be eligible to be in the PSPRS system. Ms. Boros stated although not an attorney, she did not believe AZPOST certification was the qualifying issue in determining PSPRS eligibility. Ms. Boros further stated having worked in the Phoenix market, she had created positions and job descriptions that required AZPOST certification, but were civilian positions performing other monitoring and transporting duties.
 
Member Tracy asked Ms. Boros what the Court Security Officer position does and if it is a police officer position. Ms. Boros stated the Court Security Officer position is a civilian position that provides security services for the court, is not a police officer, does not carry a weapon, is not in uniform and is not an AZPOST certified position.
 
Member Reynolds stated Mr. Smith's AZPOST certification was not in question and although a component in this case, it was not the main factor in determining PSPRS eligibility. Member Trevizo stated she felt the full requirements of the job description, including AZPOST certification, placed Mr. Smith in a position to potentially be eligible for PSPRS since he'd not previously been a member of that retirement system. Member Trevizo stated this situation seemed to be a mess-up at the hiring onset. However, she'd worked with Mr. Smith over the years and was very familiar with his duties and his service as a police officer on occasion. Member Trevizo acknowledged that by the letter of the statute Mr. Smith was not on a regular assignment to hazardous duty. However, there is no clear definition of what regularly assigned to hazardous duty means. For example once per week, once per month, etc. Member Trevizo acknowledged other police officer positions not regularly assigned to patrol, such as School Resource and Community Resource Officers, but at any moment those assets could be pulled back into regular patrol. That being said, Member Trevizo felt the spirit of the law versus the letter of the law should be considered. Member Trevizo stated she did not feel it was fair to Mr. Smith that the Department used him as a full police officer when it was convenient and pulled his service when it was no longer convenient. Member Trevizo felt the spirit versus the letter needed to be considered when voting on this issue. Furthermore, if the Board had been given all the information and transparency during its initial decision they may not be in this situation now.