Arizona Court of Appeals Division One Holds That Employee’s Due Process Right to Adequate Notice Was Violated When Board Upheld His Termination on Grounds Not Alleged in Dismissal Notice.

ADEQ issued to Carlson a Notice of Charges of Misconduct and a Notice of Dismissal, both alleging that Carlson had violated the department’s sexual harassment policy. After a post-termination hearing, a hearing officer concluded that Carlson’s conduct did not constitute sexual harassment, but did violate several Standards of Conduct for state employees. The hearing officer concluded that Carlson could be dismissed for violations not specifically charged in the Notice of Dismissal because the notices stated that ADEQ had authority to dismiss Carlson pursuant to A.R.S. § 41-770 and the Standards of Conduct. Despite Carlson’s objections that he had not received adequate notice of the charges upon which his dismissal was based, the Board adopted the hearing officer’s findings of fact and conclusions of law. Carlson filed an administrative review complaint; the superior court rejected Carlson’s due process claim and affirmed the Board’s decision. This appeal followed.

The court of appeals concluded that the hearing officer erred by upholding Carlson’s dismissal based on conduct never alleged by ADEQ before the post-termination hearing. The court held that if ADEQ wanted to rely on additional grounds other than those in the Notice of Charges, “it should have set forth with reasonable specificity the amended factual basis and the statutory grounds for its decision in its Notice of Dismissal or a supplemental notice sufficiently in advance of the post-termination hearing to allow Carlson the opportunity to prepare his defense.” The court further held that the Board exceeded its statutory authority by substituting its own reasons for dismissal in place of those asserted by ADEQ. The court vacated the superior court’s decision and remanded for further proceedings.

Judge Gaines concurred with the result and agreed that the notices were insufficient to support the rationale of the hearing officer’s recommendation, but questioned whether the remand would serve a useful purpose or lead to any different result.

Judge Hall authored the opinion, with which Judge Timmer concurred; Judge Gaines authored a special concurrence.