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Arizona Division of Occupational Safety and Health v. Superior Court6/17/1993
incident in question as well as the isolated nature of the event by reference to its existing safety programs and its prior history of compliance with the applicable regulation. ADOSH's reluctance to have its employees compelled into testifying in unrelated proceedings has not created the "catch 22" situation envisioned by the trial court where the City is unable to defend itself without evidence that only ADOSH can provide.
Under these circumstances, we find that the City's personnel action against its employees is not "related" to an ADOSH proceeding within the legislature's contemplation in enacting A.R.S. § 23-408(E). The clear public policy to conserve state ADOSH resources for the stated purpose of ensuring workplace safety would be defeated by allowing ADOSH employees to be compelled into testifying at administrative hearings or court actions to uphold disciplinary personnel actions against employees who have caused their employers to be charged with an ADOSH violation.
We therefore hold that the Board's subpoenas were unenforceable pursuant to A.R.S. § 23-408(E). For the foregoing reasons, we remand with directions to vacate the order enforcing the subpoenas and to dismiss the complaint.
Although petitioners have requested an award of attorneys' fees incurred in this
special action, they failed to indicate what authority exists as a basis for that award. We therefore deny the request for attorneys' fees.
Special action jurisdiction accepted; relief granted.
General Footnotes
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