McMichael-gombar v. Phoenix Civil Service ( 2022 )


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  •                                    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STEFANI MCMICHAEL-GOMBAR, Petitioner/Appellant,
    v.
    PHOENIX CIVIL SERVICE BOARD, et al., Respondents/Appellees.
    __________________________________
    CITY OF PHOENIX, Real Party in Interest/Appellee.
    No. 1 CA-CV 21-0469
    FILED 6-23-2022
    Appeal from the Superior Court in Maricopa County
    No. LC2020-000308-001
    The Honorable Timothy J. Thomason, Judge
    VACATED AND REMANDED
    COUNSEL
    Steven J. Serbalik, Esq., Scottsdale
    By Steven J. Serbalik
    Counsel for Petitioner/Appellant
    Gammage & Burnham, PLC, Phoenix
    By Richard K. Mahrle
    Counsel for Respondents/Appellees City of Phoenix Civil Service Board
    Ryan Rapp Underwood & Pacheco, PLC, Phoenix
    By Polly S. Rapp
    Counsel for Respondent/Appellee City of Phoenix
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    OPINION
    Judge Angela K. Paton delivered the opinion of the Court, in which
    Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
    joined.
    P A T O N, Judge:
    ¶1            Retired City of Phoenix Police Sergeant Stefani McMichael-
    Gombar appeals from the superior court’s order declining special action
    jurisdiction over her complaint against the City of Phoenix (“City”), the
    City of Phoenix Civil Service Board (“Board” or “Civil Service Board”), and
    the individual members of the Board, for failing to allow her to present
    evidence that a sanction against her violated her First Amendment rights.
    ¶2            We hold, as a matter of first impression, that the unique
    language of the Phoenix City Charter requires the Civil Service Board to
    consider McMichael-Gombar’s argument and evidence that a sanction
    against her violated her First Amendment rights as a citizen. We therefore
    vacate the superior court’s order and remand for further proceedings
    consistent with this opinion.
    FACTS AND PROCEDURAL HISTORY
    ¶3             The City suspended McMichael-Gombar for twenty-four
    hours for a post she made on her private Facebook page that allegedly
    violated the Phoenix Police Department’s Social Media Policy. The
    substance of her post is not in the record. She appealed the suspension to
    an appointed hearing officer through the City’s personnel system. See
    Phoenix Interim Personnel Rule (“IPR”) 22(d). McMichael-Gombar did not
    dispute making the post but argued the Social Media Policy was
    “overbroad and unconstitutional” and the sanction “excessive” given that
    her post was private. See id. at (e)(3)(B). The City moved in limine to
    preclude her from presenting evidence on the constitutionality of the
    Social Media Policy or “how it impacted her ability to participate in her
    private affairs and express her First Amendment rights” at the hearing. The
    hearing officer granted the City’s motion and subsequently upheld her
    suspension.
    2
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    ¶4            McMichael-Gombar appealed the hearing officer’s rulings to
    the Civil Service Board. See id. at (i). She asserted that the Social Media
    Policy was “overbroad and unconstitutional - both on its face and as
    applied.” The Board’s attorney advised the Board that, consistent with the
    Board’s legal position since 1979, its role did not include considering
    constitutional issues, noting that “[w]e have volunteers from the
    community on the Civil Service Board. They are not constitutional
    scholars.” The Board upheld the hearing officer’s grant of the motion in
    limine and McMichael-Gombar’s sanction without considering
    McMichael-Gombar’s constitutional arguments.
    ¶5            McMichael-Gombar sought discretionary special action
    review in the superior court. The court declined to take jurisdiction,
    reasoning in favor of the Board’s position: “[t]he Board had the obligation
    to ensure that the City proved that the charges against petitioner were true
    and that the level of discipline was appropriate. Petitioner was free to
    present evidence that was relevant to these matters. The Board did what it
    was required to do.”
    ¶6             McMichael-Gombar timely appealed the superior court’s
    final order. See Ariz. R. Civ. P. 54(c). We have jurisdiction pursuant to
    Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12–2101(A)(1).
    See also Bridgeman v. Certa, 
    251 Ariz. 471
    , 473, ¶¶ 2-3 (App. 2021) (discussing
    A.R.S. § 12-2101(A)(1)).
    DISCUSSION
    ¶7            McMichael-Gombar argues that the Board erred when it
    prohibited her from raising her constitutional arguments to the Board. We
    agree. The Board relied on an incorrect reading of the Phoenix City Charter
    in concluding that it could not consider McMichael-Gombar’s
    constitutional arguments.
    I.     Standard of Review
    ¶8             This action comes as an appeal from a denial of jurisdiction
    over a special action. “We conduct a bifurcated review of an appeal taken
    from a non-statutory special action initiated in the superior court.” Files v.
    Bernal, 
    200 Ariz. 64
    , 65, ¶ 2 (App. 2001) (citing Bazzanella v. Tucson City Ct.,
    
    195 Ariz. 372
     (App. 1999)). If the superior court declined jurisdiction, we
    ordinarily limit our review to whether the superior court abused its
    discretion, and if so, remand for the court to take jurisdiction. Bilagody v.
    Thorneycroft, 
    125 Ariz. 88
    , 92 (App. 1979) (citing Genda v. Super. Ct., 
    103 Ariz. 240
     (1968)). “But, when the superior court’s ruling hinge[s] on pure issues
    3
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    of law, we review its legal conclusions de novo.” Ariz. Libertarian Party, Inc.
    v. Bd. of Supr’s of Cochise Cnty., 
    205 Ariz. 345
    , 346, ¶ 2 (App. 2003) (cleaned
    up).
    ¶9            The superior court based its ruling declining jurisdiction on a
    finding that the Board had not abused its discretion, assessing the merits of
    the special action claim. See Ariz. R.P. Spec. Act. 3(c). Because this is a
    question of law, we must address the merits de novo. Ariz. Libertarian Party,
    205 Ariz. at 346, ¶ 2 (quoting Norgord v. State ex rel. Berning, 
    201 Ariz. 228
    ,
    230, ¶ 4 (App. 2001)).
    II.      The City Charter requires the Civil Service Board to
    consider employees’ constitutional arguments when
    reviewing disciplinary actions.
    ¶10             The critical issue is whether the Board’s action was “illegal in
    that it was arbitrary, capricious or involved an abuse of discretion.” Woerth v.
    City of Flagstaff, 
    167 Ariz. 412
    , 417 (App. 1990) (quoting City of Tucson v. Mills,
    
    114 Ariz. 107
    , 111 (App. 1976)). A review of a city personnel board decision
    is limited. Woerth, 
    167 Ariz. at 417
    . The court’s role is not to “consider the
    propriety of the [Board’s] findings nor substitute its judgment for that of the
    [Board].” 
    Id.
     (quoting Mills, 
    114 Ariz. at 111
    ). An error of law, however,
    constitutes an abuse of discretion. Hubert v. Carmony, 
    251 Ariz. 531
    , 533,
    ¶ 7 (App. 2021) (citing State v. Bernstein, 
    237 Ariz. 226
    , 228, ¶ 9 (2015)); see
    Maricopa Cnty. Sheriff’s Off. v. Maricopa Cnty. Emp. Merit Sys. Comm’n, 
    211 Ariz. 219
    , 224, ¶¶ 22-24 (2005) (reversing merit commission decision based
    on an incorrect application of the law). We review questions of law de
    novo, including the interpretation of a city charter. Piccioli v. City of Phoenix,
    
    249 Ariz. 113
    , 118, ¶ 15 (2020) (citing Twin City Fire Ins. Co. v. Leija, 
    244 Ariz. 493
    , 495, ¶ 10 (2018)).
    a. The City Charter and Personnel System
    ¶11            A city charter is “effectively, a local constitution.” City of
    Tucson v. State, 
    229 Ariz. 172
    , 174, ¶ 10 (2012) (citing Ariz. Const. art. 13,
    § 2). When interpreting a city charter, we give words their ordinary
    meaning, Piccioli, 249 Ariz. at 118, ¶ 15 (citing Wade v. Ariz. State Ret. Sys.,
    
    241 Ariz. 559
    , 562, ¶ 14 (2017)), unless the context suggests otherwise.
    Piccioli, 249 Ariz. at 118, ¶ 15 (citing Stambaugh v. Killian, 
    242 Ariz. 508
    , 509,
    ¶ 7 (2017)). In interpreting a specific city charter provision, we also examine
    associated charter provisions. Piccioli, 249 Ariz. at 118, ¶ 15 (citing
    Stambaugh, 242 Ariz. at 509, ¶ 7).
    4
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    ¶12            A merit board “is bound to act in accordance with” the City
    Charter provision which created it, “and the rules and regulations which
    [the board] has established under” that authority. See Stant v. City of
    Maricopa Emp. Merit Bd., 
    234 Ariz. 196
    , 200, ¶ 13 (App. 2014) (quoting City
    of Phoenix v. Sittenfeld, 
    53 Ariz. 240
    , 245 (1939)). “As a City Charter
    institution, the [Phoenix] Civil Service Board’s authority and powers are
    pre-eminent over any board, commission or institution created by City
    ordinance when touching upon the same subject matter.” City of Phoenix v.
    Phoenix Emp. Rels. Bd., 
    207 Ariz. 337
    , 341, ¶ 12 (App. 2004) (citing Paddock v.
    Brisbois, 
    35 Ariz. 214
     (1929)).
    ¶13           Here, the superior court correctly looked to the City of
    Phoenix Charter and the Board’s duties in its analysis. See generally
    Phoenix, Ariz., Charter, Ch. XXV, “Personnel System,” §§ 1 (Purpose and
    policy), 2 ([Composition of the] Civil Service Board), 3 (Powers and duties
    of the Board).
    ¶14             Chapter XXV, Section 1 of the City Charter requires the City
    to establish a merit system according to specified merit principles. Section
    2 creates the Civil Service Board, consisting of “five (5) residents, citizens
    and electors of the City.” Section 3 enumerates the Board’s specific powers
    and duties. For example, Section 3(2) requires the Board to submit advisory
    reports to the Phoenix City Council “regarding the activities of the Board as
    they relate to the application of merit principles in City personnel management.”
    (Emphasis added). Section 3(3) provides that “the Board shall hear appeals
    from disciplinary demotions, discharges, and suspensions by classified
    employees who have completed the prescribed probationary period. The
    Board may delegate the authority to conduct hearings to hearing officers.
    The decisions of the Board shall be final and binding.” Section 3(5)
    authorizes the Board to “[h]ear appeals from classified employees from
    interpretations of the personnel rules approved by the Council.” Section 6
    designates the City Manager as the City’s Personnel Official, responsible for
    “[a]dminister[ing] all the provisions of [Chapter XXV] and of the personnel
    rules not specifically reserved to the Civil Service Board.”
    ¶15           The personnel system is governed by the “merit principles”
    outlined in Chapter XXV, § 1, including the obligation to protect the
    constitutional rights of applicants and employees as citizens. Phoenix,
    Ariz., Charter, Ch. XXV, § 1(2). Unique among merit principles, only
    Section 1(2)(e) specifically mentions that it is to be applied in “all aspects of
    personnel administration.” Similarly, among city government divisions
    given responsibility pursuant to Chapter XXV, only the Board is expressly
    5
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    charged with any specific duty concerning the merit principles as a whole.
    Id. at § 3(2).
    b. The language of the City Charter is uniquely protective of
    constitutional rights in personnel administration.
    ¶16            When interpreting a statute or constitutional provision, “[w]e
    will give effect to each sentence and word so that provisions are not
    rendered meaningless.” Comm. for Pres. of Established Neighborhoods v. Riffel,
    
    213 Ariz. 247
    , 249, ¶ 8 (App. 2006) (citing Bilke v. State, 
    206 Ariz. 462
    , 464,
    ¶ 11 (2003)). “In interpreting statutes, we look to the plain language as the
    most reliable indicator of meaning.” Powers v. Carpenter, 
    203 Ariz. 116
    , 118,
    ¶ 9 (2002) (citing State v. Williams, 
    175 Ariz. 98
    , 100 (1993)).
    ¶17           The cornerstone of our analysis is the “Purpose and Policy”
    provision of Chapter XXV of the City Charter which provides:
    Sec. 1. Purpose and policy.
    1. It is the purpose of this chapter to designate those City
    employees in the classified services; set forth the rights and
    privileges of those employees; and to state the City’s
    obligations in establishing and maintaining a merit system.
    2. The City has determined the necessity of establishing a
    merit system of personnel administration based on merit
    principles and professional methods governing the
    appointment, tenure, promotion, transfer, layoff, separation,
    discipline, and other incidents of employment relating to City
    employees. These merit principles include:
    a. Recruiting, selecting and advancing employees on
    the basis of their relative ability, knowledge, and skills,
    including open consideration of qualified applications
    for initial appointment;
    b. Providing equitable and adequate compensation;
    c. Training employees, as needed, to assure high-
    quality performance;
    d. Retaining employees on the basis of the adequacy
    of their performance, and separating employees whose
    inadequate performance cannot be corrected;
    6
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    e. Assuring impartial treatment of applicants and
    employees in all aspects of personnel administration
    without regard to political affiliation, race, color,
    national origin, sex, religious creed or handicap, and
    with proper regard for their privacy and constitutional
    rights as citizens[]
    ....
    Phoenix, Ariz., Charter, Ch. XXV, § 1 (emphasis added).
    ¶18            To determine the ordinary meaning of the Phoenix Charter,
    we look to established and widely used dictionaries. See Stout v. Taylor, 
    233 Ariz. 275
    , 278, ¶ 12 (App. 2013) (citing Special Fund Div. v. Indus. Comm’n of
    Ariz., 
    232 Ariz. 110
    , 113, ¶ 12 (App. 2013)). As relevant here, “assure” means
    “to cause to know surely; reassure,” “to pledge or promise; give surety of;
    guarantee,” “to make (a future event) sure; ensure,” or “to secure or
    confirm; render safe or stable.” Assure, Random House Webster’s
    Unabridged Dictionary (2d ed. 2001). To give proper “regard” is “to have
    or show respect or concern for” or “to take into account; consider,” or “to
    pay attention.” Regard, Webster’s, supra. And this constitutional-rights
    merit principle permeates the inquiry in “all aspects of personnel
    administration.” See Phoenix, Ariz., Charter, Ch. XXV § 1(2)(e). Thus, while
    other merit principles may fall under the Section 6 City Manager delegation
    provision, this provision is specifically applicable to all Chapter XXV
    personnel administration mechanisms. See id.
    ¶19           The Charter’s directive to the Phoenix personnel system to
    “[a]ssur[e] impartial treatment . . . with proper regard for [employees’]
    privacy and constitutional rights as citizens” is unique among the personnel
    systems adopted by Arizona’s charter cities. See generally id. Including
    Phoenix, four Arizona charter cities have adopted a Civil Service Board or
    Commission system as part of their personnel management systems, but
    only Phoenix has adopted language requiring its personnel system to
    “[a]ssur[e]” employees’ and applicants’ constitutional rights and privacy
    are given “proper regard” “in all aspects of personnel administration.”
    Compare id., with Bisbee, Ariz., Charter, Art. IV, § 4.06(c); and Scottsdale,
    Ariz., Charter, Art. V, § 2 and Scottsdale Rev. Code § 14-1.1; and Tucson,
    Ariz., Charter, Ch. XXII.
    ¶20          Phoenix’s language regarding constitutional rights is also
    unique even considering the four charter cities (Chandler, Douglas, Mesa,
    Tempe) that have adopted a Merit System Board. Compare Phoenix, Ariz.,
    7
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    Charter, Ch. XXV, § 1(2)(e), with Chandler, Ariz., Charter, Art. IV, § 4.02 and
    Chandler City Code § 4.02; and Douglas, Ariz., Charter, Art. IV, § 6 and
    Douglas City Code, Ch. 2.64; and Mesa, Ariz., Charter, Art. IV, §§ 402-403
    and Mesa City Code, §§ 2-5-1, 2-18-1—3; and Tempe, Ariz., Charter, Art. IV,
    §§ 4.01-.02. All remaining charter cities have adopted a personnel system
    that does not establish a Merit System Board or Civil Service Board. See
    Charter Government Provisions in Arizona Cities, League of Ariz. Cities &
    Towns                               (May                                  2015),
    http://azleague.org/ArchiveCenter/ViewFile/Item/250.
    ¶21            We cannot construe this Charter assurance as “mere
    surplusage.” See Welch v. Cochise Cnty. Bd. of Supr’s, 
    251 Ariz. 519
    , 524, ¶ 15
    (2021) (citing Nicaise v. Sundaram, 
    245 Ariz. 566
    , 568, ¶ 11 (2019)). Thus, the
    Phoenix Charter required the Board to treat McMichael-Gombar
    impartially, give proper regard to her constitutional rights as a citizen, and
    take these rights into account and consider them when adjudicating her
    sanction.
    c. The City’s arguments concerning delegation and relief fail.
    ¶22           The City contends that because there is no express delegation
    of power to the Civil Service Board to enforce merit principles, the
    responsibility for this role is delegated to the City Manager acting as
    Personnel Officer. See Phoenix, Ariz., Charter, Ch. XXV, § 6(1). This
    argument fails for two reasons.
    ¶23            First, the Section 1(2)(e) merit principle applies to “all aspects
    of personnel administration.” Id. at § 1(2)(e). We, therefore, distinguish
    Phoenix’s constitutional-rights merit principle from merit principles that
    apply to limited circumstances.            These limited principles include
    “[r]ecruiting, selecting and advancing employees,” with which the Board
    has no express or implied charter or code role and therefore must fall under
    the purview of the City Manager or Phoenix City Council. Compare id. at
    § 1(2)(e), with § 1(2)(a)-(d), (f). Those other merit principles also lack the
    proviso requiring consideration by “all aspects” of the personnel system.
    The superior court read this clause in isolation—finding that because this
    merit principle applies to the whole system, the Board need not apply it.
    But the language of the Charter does not contain a limitation on which
    aspects of the personnel system apply this merit principle. In fact, as noted
    supra at ¶¶ 14-15 and infra at ¶ 24, ¶ Section 3 directly contradicts the
    superior court’s interpretation. See id. at § 3(1)-(3). The delegation to the
    City Manager of other powers and duties does not constrain consideration
    of an otherwise universal principle.
    8
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    ¶24           Second, we do not read the merit principles to be “powers” or
    “duties” delegated under Section 6(1). Of all the city government divisions
    identified in Chapter XXV, only the Civil Service Board is regularly
    required to report to the City Council “regarding the activities of the Board
    as they relate to the application of merit principles in City personnel
    management.” See id. § 3(2) (emphasis added). Thus, the merit principle
    not only applies to the Board in its role as a component of personnel
    administration, but the Charter expressly requires the Board to report on its
    application of these principles to the City Council. Indeed, no similar
    language clarifies the City Manager’s role or Council’s role in applying
    merit principles. To the extent any conflict can be read between the
    delegation provision and the constitutional-rights merit principle or the
    duties of the Board, we view the latter provisions as being specific
    reservations of power to the Board, and therefore controlling over a more
    general delegation provision. See Antonin Scalia & Bryan A. Garner,
    Reading Law: The Interpretation of Legal Texts 183-88 (2012) (discussing the
    general/specific canon of construction).
    ¶25           Here, the Board upheld the hearing officer’s preclusion of
    evidence and testimony relating to the alleged violation of McMichael-
    Gombar’s constitutional rights. The Board’s attorney stated that based on
    the City’s longstanding position, the Board did not address constitutional
    rights, which were reserved for vindication by the courts. But the City’s
    policy of limiting evidence on constitutional rights, longstanding as it may
    be, ignores the Board’s directive to assure the constitutional treatment of
    employees. The Board is empowered to secure and make safe the rights
    and fair treatment of employees and applicants by the City Charter. See
    Phoenix, Ariz., Charter, Ch. XXV, §§ 1(2)(e), 3(1)-(3). But the Board and
    hearing officer purported to excuse themselves from giving any regard to
    McMichael-Gombar’s constitutional rights under the First Amendment
    through their interpretation of the Phoenix Charter, which was error. See
    generally U.S. Const. amend. I. The Phoenix Charter plainly requires the
    Board to consider and take evidence and argument concerning McMichael-
    Gombar’s constitutional rights when evaluating her sanction.
    ¶26            The City argues that McMichael-Gombar changed her
    requested relief from demanding the Board find the Social Media Policy
    unconstitutional to requesting the superior court allow her simply to
    “present relevant evidence related to the merit principle contained in the
    Phoenix City Charter” and back again. The record is less than clear on this
    point, but the Board, in its answer to the special action complaint, admitted
    McMichael-Gombar’s claim that she “was not allowed to . . . present
    evidence . . . [as to] how [the Social Media Policy] impacted her ability to
    9
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    participate in her private affairs and express her First Amendment rights.”
    And the Board unequivocally argued to the superior court that it need not
    consider the merit principle of giving proper regard for constitutional
    rights. Whatever else McMichael-Gombar requested, the Board owed
    “proper regard” of her constitutional rights when taking evidence and
    evaluating her suspension. To the extent she argues the Board can declare
    a policy unconstitutional in a manner that binds future Boards or city
    agencies, as discussed below, we do not agree.
    d. How the Board is to apply Section 1(2)(e)’s Merit Principle.
    ¶27           Under Chapter XXV, § 1(2)(e) of the Phoenix Charter,
    regardless of whether the Board ultimately rejects the substance of
    McMichael-Gombar’s First Amendment claims, it must at least take
    evidence and argument concerning whether the sanction gives proper
    regard to those rights.
    ¶28           Both the City and the Board argue that such a directive would
    take the Board beyond its role by requiring it to consider legal issues. We
    disagree. The Board’s primary role is that of a factfinder, but the City
    concedes that in affirming the hearing officer’s rulings the Board separately
    affirmed the preclusion of McMichael-Gombar’s evidence and argument—a
    purely legal issue that required the Board to act as more than a factfinder.
    Cf. Felder v. Physiotherapy Assocs., 
    215 Ariz. 154
    , 166, ¶ 55 (App. 2007)
    (reviewing evidentiary ruling predicated on a question of law de novo
    (citing Yauch v. S. Pac. Transp. Co., 
    198 Ariz. 394
    , 399, ¶ 10 (App. 2000))). The
    apparent longstanding practice and interpretation of the City’s charter by
    the City or the Board does not supplant this court’s obligation to view the
    City charter as “a local constitution” governing the exercise of the Board’s
    power. See Wolkin v. Civ. Serv. Comm’n of Tucson, 
    21 Ariz. App. 341
    , 344-45
    (1974) (“When the rules promulgated by the Commission are violative of
    the Charter provisions the Commission lacks jurisdiction to implement the
    rules.”). The Board erred as a matter of law by finding that it need not
    consider the merit principle of “proper regard for [employees’] privacy and
    constitutional rights as citizens” when McMichael-Gombar raised it.
    ¶29           The superior court noted that “[c]onstitutional issues should
    be decided by the courts, not boards or panels of citizens.” This is only
    partially correct. The non-lawyer or volunteer composition of a board does
    not render it incapable of considering the impact of its decisions on the
    exercise of the constitutional rights of those appearing before it. Cf. Ariz.
    Const. art. 2, § 2 (“All political power is inherent in the people, and
    governments derive their just powers from the consent of the governed, and
    10
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    are established to protect and maintain individual rights.”). This is
    especially true, where, as here, the text of the Phoenix Charter nonetheless
    requires the Board to consider constitutional and privacy concerns. See
    Phoenix, Ariz., Charter, Ch. XXV, § 1(2)(e).
    ¶30             We are aware of no authority that establishes a bright-line
    rule elevating constitutional rights beyond those legal issues—for instance,
    jurisdiction or the application of ordinances—that a state or city board
    similarly staffed with laypersons or members of non-legal professions
    necessarily considers in the lawful exercise of its power. See e.g., A.R.S.
    §§ 32-106(A)(6), -1307(B)(3) (allowing the Arizona Board of Technical
    Registration and the State Board of Funeral Directors and Embalmers to
    compel witness attendance and take testimony concerning matters coming
    “within [their] jurisdiction”); see also Wonders v. Pima Cnty., 
    207 Ariz. 576
    ,
    578, ¶ 7 (App. 2004) (County Board of Adjustment empowered by statute
    to interpret zoning ordinances (citing A.R.S. § 11-807(B)(1))). “[M]erit
    boards . . . are not judicial bodies, but administrative bodies performing
    judicial functions” and these functions necessarily include interpreting their
    governing law and applying legal principles. Woerth, 
    167 Ariz. at
    416 (citing
    Farish v. Young, 
    18 Ariz. 298
    , 303-04 (1916)) (emphasis added); see City of
    Phoenix v. Wright, 
    61 Ariz. 458
    , 462-63 (1944) (explaining the Board has
    “jurisdiction to determine the status of plaintiff in regard to the civil service
    laws, rules and regulations” and its decisions were to be given “the same
    respect as the judgments of other legal tribunals.” (quoting City of Phoenix
    v. Sanner, 
    54 Ariz. 363
     (1939))). Indeed, IPR 22(l) already delegates the
    interpretation of personnel rules, in part, to the Board. In dealing with legal
    matters, the Board has the aid of its attorney, the arguments of the parties
    and counsel before it, and is not charged with seeking out and resolving
    constitutional issues not presented. See Phoenix, Ariz., Charter, Ch. XXV,
    § 1(2)(e); IPR 22(i)(5). Thus, this charter provision does not leave the Board
    unaided when it conducts the constitutional interpretation with which it is
    charged.
    ¶31           In sum, the Phoenix Charter gives the Phoenix Civil Service
    Board a necessarily more expansive role than mere factfinder. The people
    of Phoenix have chosen to require the Board to ensure that covered
    employees’ discipline respects their constitutional rights and privacy. The
    Board need not determine whether the Social Media Policy itself is
    unconstitutional either facially or as applied. It need only determine
    whether the sanction gives “proper regard” to McMichael-Gombar’s
    constitutional rights. Indeed, the power of the Board is only the power to
    review an individual sanction; it possesses no mechanism to bind future
    Boards or other agencies. See generally Phoenix, Ariz., Charter, Ch. XXV,
    11
    MCMICHAEL-GOMBAR v. PHOENIX CIVIL SERVICE, et al.
    Opinion of the Court
    § 3; IPR 22(j) (with respect to Board decisions only “a record of the final
    action” is retained among the rest of the written record). Thus, we do not
    agree with the City that this will require the Board to opine at length on
    constitutional law or issue opinions discoursing on Cleveland Board of
    Education v. Loudermill, 
    470 U.S. 532
     (1985) or Pickering v. Board of Education
    of Township High School District 205, Will County, Illinois, 
    391 U.S. 563
     (1968).
    The Board’s rules do not require it to state how it weighed the evidence or
    balanced constitutional principles. See generally IPR 22(i)–(j). Giving
    “proper regard” to constitutional rights and privacy is all this merit
    principle requires the Board to do, and the Board’s structure does not
    necessarily require lengthy, technical explanations of its rationale. See
    Phoenix, Ariz., Charter, Ch. XXV, § 1(2)(e).
    e. Relief on Remand
    ¶32           The parties do not ask us to decide the merits of the
    disciplinary action, nor could we on this record. But because the Board
    abused its discretion by declining to consider McMichael-Gombar’s
    constitutional rights in reviewing her sanction, the superior court erred in
    affirming the Board’s decision. Accordingly, we vacate the superior court’s
    ruling. We further direct the superior court to accept jurisdiction of the
    special action, issue an order vacating the Board’s determination, and
    remand the disciplinary matter for reconsideration. On remand, the Board
    must consider McMichael-Gombar’s constitutional rights in evaluating her
    sanction and allow her to submit evidence and argument accordingly.
    CONCLUSION
    ¶33          We vacate the superior court’s order and remand for further
    proceedings consistent with this opinion.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    12