 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Arizona Division of Occupational Safety and Health v. Superior Court6/17/1993
Petitioners Arizona Division of Occupational Safety and Health (ADOSH) and its employees Darin Perkins and Marshall Krotenberg seek review of the trial court's order enforcing subpoenas issued by the Phoenix Civil Service Board (Board), ordering Perkins and Krotenberg to appear and testify in an appeal from the City's disciplinary actions involving two employees suspended after a safety violation for which the City has been cited by ADOSH. The issue raised in this special action is whether the ADOSH employees are statutorily exempt from compulsory appearance before the Board under A.R.S. § 23-408(E).
Special Action Jurisdiction
The City brought this action in superior court to enforce the subpoenas under authority of A.R.S. § 12-2212. Such a
proceeding is essentially one for contempt, see A.R.S. § 12-2211, from which an appeal cannot be taken. See generally Riley v. Superior Court, 124 Ariz. 498, 605 P.2d 900 (App.1979). Because petitioners have no adequate remedy by appeal, and because this is an issue of first impression and statewide importance, we accepted special action jurisdiction. See Matera v. Superior Court, 170 Ariz. 446, 825 P.2d 971 (App.1992).
Facts and Procedural History
On June 25, 1992, Perkins and Krotenberg, as employees of ADOSH, visited a City of Phoenix Water Distribution construction site. They observed one City employee, Robert Hudak, operating a frontend loader with a fully loaded bucket, and another City employee, Raymond Martinez, working in a trench under the fully loaded bucket. At the time, Martinez was employed as a water service worker, and Hudak was employed as a water service crew leader. Pursuant to A.R.S. § 23-415, ADOSH issued a citation to the City as a result of this incident for a violation of 29 C.F.R. 1926.651(e). The citation imposed a $400 penalty.
Based on the citation, the City issued discipline notices to Martinez and Hudak, charging them with violation of City Personnel Rules, and suspending them each for one day. Both employees appealed their suspensions; hearings were set before the Board for January 14, 1993, on the Martinez appeal and for January 27, 1993, on the Hudak appeal. At the request of the City, the Board issued subpoenas duces tecum to Perkins and Krotenberg, requiring them to appear with " ll documents and/or files pertaining to Raymond Martinez." The City also protested the ADOSH citation pursuant to A.R.S. § 23-420, and a hearing was set in that matter before the Industrial Commission for January 13, 1993. The City requested a continuance in the ADOSH case until after the Board hearings on the basis that the ADOSH hearing might influence the Board hearings. The ADOSH hearing was continued until March 23, 1993.
On January 14, 1993, ADOSH filed a Motion to Quash Subpoena Duces Tecum in the Martinez disciplinary matter on the ground that Perkins and Krotenberg, as employees of ADOSH, were not required to appear based on the authority of A.R.S. § 23-408(E), which provides that no ADOSH employee can be compelled to appear or testify "at any deposition, trial or hearing . . . unless the appearance is related to a hearing held pursuant to this article."
When Perkins and Krotenberg did not appear either in person or through Industrial Commission counsel at the Board hearing on January 14, the hearing officer recommended that the motion to quash be
Page 1 2 3 4 5 6 7 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|