Rоbert L. ERNST and Richard D. Crites, Appellants, v. The ARIZONA BOARD OF REGENTS, a political subdivision and body politic organized under Arizona law, Appellee.
No. 13304-PR
Supreme Court of Arizona, In Banc.
May 8, 1978.
579 P.2d 1099 | 119 Ariz. 129
THE TRIAL COURT‘S FAILURE TO INFORM APPELLANT OF THE NATURE AND RANGE OF POSSIBLE SENTENCE PRIOR TO SUBMISSION OF THE CASE
In State v. Woods, 114 Ariz. 385, 561 P.2d 306 (1977), we held that when a submission to a trial court for decision is tantamount to a guilty plea,
“Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open cоurt, informing him of and determining that he understands the following:
“b. The nature and range of possible sentence for the offense to which the plea is offered, including any special conditions regarding sentence, parole, or cоmmutation imposed by statute;”
This requirement was not satisfied in the instant case. However, the point was first raised by appellee, State of Arizona, in its answering brief. In his reply, appellant states that he “makes no claim of prejudice which might flow from the trial court‘s failure to strictly observe the provisions of Rule 17.2(b) as interpreted in Woods.” Therefore, we need not prolong this opinion with consideration of whether the submission herein was tantamount to a guilty plea; appellant has expressly waived this point on appeal. See Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773 (1915).
Having found no reversible error, the judgment оf conviction and the sentence are affirmed.
CAMERON, C. J., STRUCKMEYER, V. C. J., and GORDON, J., concur.
HOLOHAN, J., concurs in the result.
John A. LaSota, Jr., Atty. Gen., Bruce E. Babbitt, Former Atty. Gen., Phoenix by, Jack J. Rappeport, Sp. Asst. Atty. Gen., Tucson, for appellee.
Richard D. Crites, Tucson, for appellants.
This action was brought in the Superior Court of Pima County to compel the Arizona Board of Regents to require the University of Arizona‘s Staff Grievance and Appеals Committee to grant Robert L. Ernst a hearing and for other relief. The action was dismissed in the Superior Court for failure to state a claim.
Petitiоner Ernst was hired in June of 1974 as a police officer by the University of Arizona Police Department. In November of 1975, he was discharged and his employment terminated.
Ernst was not a person subject to Merit System employment,
“A. Career Staff: Staff members of the University who are employed in positions that are expectеd to be continuing shall be considered career staff employees. Personnel employed in careеr staff positions may feel secure in their employment so long as they perform their duties in a satisfactory way and the University‘s budget is adequate to provide for the maintenance of such positions.”
We hold that this language meаns that a Career Staff employee is not guaranteed or promised tenure, only that he “may feel securе” if he satisfactorily performs his duties. Ordinarily a public employee who serves at the pleasure of the aрpointing authority is an employee whose employment may be terminated at will. Ishimatsue v. Regents of the University of California, 72 Cal.Rptr. 756, 266 C.A.2d 854 (1968). Whether the language of the definition of a Career Staff is sufficient to create a property interest in the employment, see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), we find unnecessary to decide.
On Novembеr 18, 1975, when Ernst was notified of his termination by the Assistant Chief of Campus Police, he was also notified in writing that if he wished to appeal the decision to terminate his employment he should conform with provision 19 of the University‘s Personnel Policy Manual. The Personnel Policy Manual provides for a four-step appeal, commencing with
When the Personnel Direсtor did not agree, petitioners filed this action in the Superior Court. There they took the position that Ernst was entitled to a hearing before the University‘s Staff Grievance and Appeals Committee pursuant to the Administrative Procеdure Act, and that by
The Arizona Board of Regents is an agency subject to Arizona‘s Administrative Review Act. Arizona Board of Regents v. Harper, 108 Ariz. 223, 495 P.2d 453 (1972). Plainly, Ernst, had he conformed to provisiоn 19 of the University‘s Personnel Policy Manual and was still dissatisfied, could have had a judicial review of his discharge. In re Carter, 262 N.C. 360, 137 S.E.2d 150 (1964). Instead, hе sought a judicial determination in the Superior Court that the Administrative Procedure Act was applicable and that pursuant to
Section
” ‘Contested сase’ means any proceeding, including but not restricted to rate making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for heаring.” (Emphasis added.)
This is not a contested case. Petitioners have no remedy under the Administrative Procedure Act sinсe Ernst‘s legal rights are not required “by law to be determined by an agency [the Board of Regents] after an opportunity for hearing.”
The judgment of the Superior Court is affirmed.
HAYS, HOLOHAN and GORDON, JJ., concur.
CAMERON, Chief Justice, dissenting.
For the reasons so ably stated in the decision of the Court of Appeals, Division Two, 119 Ariz.App. 135, 579 P.2d 1105 (App. 1977), I dissent.