Does a sheriff in Arizona have the legal authority to appoint someone as a deputy or even chief deputy who has been rejected by the state board responsible for certifying peace officers across the state?
That is the question the Arizona Peace Officers Standards and Training (AZPOST) board unanimously voted this month to ask Arizona Attorney General Mark Brnovich after Pima County Sheriff Chris Nanos recently took the position that he, and not the state board, has the ultimate say in who gets sworn in to work for him.
Such a position could lead to Pima County having deputies on the street who cannot obtain a certification to work for a municipal, state, or other county law enforcement agency, or who have lost their certification due to a serious breach of conduct rules.
Under Arizona Revised Statutes, the AZPOST board is required to establish the minimum training curriculum and requirements for peace officer recruits at the 15 accredited law enforcement academies operating in Arizona. AZPOST must also establish and audit continuing training requirements for certified peace officers.
In addition to reviewing applications for new certifications, AZPOST has several compliance specialists responsible for reviewing agency reports of possible misconduct involving violation of AZPOST rules.
Assistant Attorney General Mark Brachtl is assigned to work with AZPOST Executive Director Matt Giordano. However, the legal advice provided by Brachtl is considered informal and non-binding, AZPOST’s executive director Matt Giordano explained during the board’s May 18 meeting.
“We would like to get an official, formal, legal opinion from the Attorney General’s Office on certification status,” said Giordano. “As you know things have come up about who can do what, who can be a peace officer, who cannot.”
The letter from AZPOST seeking Brnovich’s opinion focuses on the scope of the AZPOST board’s statutory authority under ARS Title 41 as it relates to a county sheriff’s power under ARS Title 11. A legal opinion on how to interpret those statutes is necessary, Giordano told the board, so that moving forward “we are giving clear and consistent advice to all our partner agencies.”
In Arizona, all 15 elected county sheriffs are automatically granted special AZPOST certification regardless of the normal certification process. Anyone else wishing to serve as a sworn peace officer with a municipal, county, or state agency must meet AZPOST’s stringent background, training, and conduct criteria to become obtain certification.
But Nanos has publicly stated he believes state law allows him to appoint a deputy or other sworn PCSD personnel regardless of whether they possess an AZPOST certification.
The issue first arose when Arizona Daily Independent broke the news in February that PCSD Chief Deputy Richard Kastigar’s AZPOST certification lapsed in May 2019. Despite that, he has been serving as Nanos’ second in command since early 2021.
Even if Nanos is statutorily permitted to bypass the AZPOST certification process for his deputies, several considerations could influence whether he ever actually does so. For instance, Pima County’s civil liability could be negatively impacted if a non-certified deputy is found to have violated a criminal law or engaged in unlawful civil conduct.
In the meantime, Kastigar has submitted a new application for certification but on March 16 his AZPOST record was flagged “does not meet standards” for certification. Details of why AZPOST staff made that determination are not listed, but Kastigar is the subject of a complaint alleging he violated state and federal law in connection with a March 2021 traffic stop he allegedly initiated.
In addition, Kastigar has been called out for violating PCSD policy for wearing clothing which clearly identified himself as a sheriff’s department official during a news interview about a lawsuit he filed as a private citizen.
Another member of Nanos’ command staff is the subject of an AZPOST compliance investigation due to conflicting statements he made to former Sheriff Mark Napier and to a Pima County merit commission related to disciplinary action taken against a subordinate.
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The AZPOST board is expected to be updated on the issue during its June 15 meeting.
