Case Information
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T HE U TAH C OURT OF A PPEALS
T AYLORSVILLE C ITY T AYLORSVILLE C ITY P OLICE D EPARTMENT , AND T AYLORSVILLE P OLICE C HIEF D EL C RAIG ,
Petitioners, v.
T AYLORSVILLE C ITY E MPLOYEE A PPEAL B OARD AND O FFICER B RADLEY G ILLESPIE , Respondents.
Opinion No.
Filed March
Original Proceeding this Court
Phillip W. Dyer, B. Kent Morgan, Benjamin R. Dyer, Attor
neys Petitioners Ryan B. Hancey, Attorney for Respondent Officer Bradley Gillespie
J UDGE C AROLYN B. M C H UGH authored this Opinion, J UDGES J AMES Z. D AVIS M ICHELE M. C HRISTIANSEN concurred.
McHUGH, Judge: (the City) appeals from decision (the Board) reversing
City’s Officer Bradley Taylorsville (the Department). We set aside Board’s remand proceedings consistent decision. Taylorsville
BACKGROUND
¶2 The Department hired Gillespie a officer on December 15, 2008, subject a one ‐ year probationary period. During year, Department provided Gillespie monthly performance evaluations indicated he “need[ed] improve ‐ ment” in exercise of judgment and in his ‐ making. While still on probation, Gillespie entered a private home illegally and deployed his taser on a young female who resisted his attempts enter. As a result, Department provided Gillespie a corrective action plan. Before Gillespie completed plan, removed him probationary status and granted him merit employment status. Shortly thereafter, Gillespie deployed his taser on a handcuffed and restrained suspect and was disciplined use excessive force in form written reprimand and ten ‐ day suspension. While Gillespie’s appeal excessive force discipline was pending, he was involved a series incidents are subject appeal.
¶3 incident involved pornographic video Gillespie stored on his personally ‐ owned cellular telephone (the pornography incident). initial image video appeared one half inch one ‐ half inch icon on screen his phone, touching icon immediately played video full screen. While on duty sometime fall 2010, Gillespie “briefly” showed icon another on duty officer explained “it was act oral sex.” October 2010, while Gillespie was off duty but volunteering canine training, showed icon another officer. second incident occurred on November while off duty intoxicated at home (the intoxication incident). At Gillespie’s invitation, on duty police went home joined two other on duty officers. According one officers, “was very intoxicated jumped up hood [the officer’s police] car,” denting it. announced car surfing. One Taylorsville other officers administered portable breath test Gillespie, which registered an alcohol concentration .198 grams. [1] ¶5 Based these allegations, Police Chief (the Chief) initiated an internal affairs (IA) investigation. An IA investigator (the Investigator) interviewed other officers involved both incidents and then called Gillespie and told him report for interview next day. Upon inquiry, Investigator revealed investigation concerned intoxication incident, but he mention pornography incident. Immediately before interview following day,
Investigator provided two documents read and sign. copy Department’s policy ‐ ‐ 02.08 on “member questioning,” which provides “[m]embers are required answer accurately and completely, all questions about official duties directed them superiors other authorized members. Failure do so may subject member appropriate disciplinary action, including termination, insubordination and/or misrepresentation.” second document IA investigation notice, indicated charged violating “[s]tandards conduct,” had “an obligation under [policy] ‐ ‐ 02.08 . . . answer accurately completely all questions about official duties,” “[r]efusal do so is grounds termination.” signed copy 02.08 acknowledged read and understood both documents. Investigator then proceeded with interview. For comparison, under Utah law, “blood breath alcohol concentration .08 grams greater” over legal limit, rendering person unable drive legally. Code Ann. § 6a 502(1)(a) (LexisNexis 2010).
¶7 With respect intoxication incident, Gillespie initially stated that he “kinda leaned up against [another o]fficer’s car and then leaned back,” “sitting on [the] trunk.” He acknowledged that he mentioned car surfing but said he meant comment a joke. Gillespie also claimed have consumed only “two three” alcoholic beverages prior incident and that he had inspected vehicle for damage that night and found none. Later interview, however, Gillespie conceded that he probably stood on car also admitted drinking heavily. ¶8 When questioned about pornography incident, Gillespie denied that he had such a video on his cellular telephone but later only denied showing other officers. After further questioning, included information about statements given other officers, Gillespie admitted that two officers saw pornographic icon that he had deleted his phone two three days before interview. He also admitted that he had offered show image another who had declined view it. Based interviews Gillespie other officers, Investigator reported that there substantiated evidence that
Gillespie had damaged patrol vehicle while off duty and intoxicated, Gillespie had shown other officers porno graphic image. The Investigator indicated Gillespie dishonestly answered some questions during interview. As result, Investigator violated several policies. Investigator recommended receive written warning for intoxication incident, he receive forty hours leave without pay for showing pornographic image other officers, “be terminated being truthful [IA] investigation.” Investigator reasoned appropriate Gillespie’s could used impeach credibility were called testify against criminal defendant. assistant police chief agreed should terminated dishonesty. ¶10 After reviewing the report, the Police Chief provided Gillespie with written “Notice Intent to Impose Termination,” stated that Gillespie subject to for “Misrep ‐ resentation and Obstructing IA Investigation,” lack “Atten ‐ tion Duty,” and “Private Life, Public Discredit, Equipment Damage.” The notification also advised Gillespie his right to appeal. Police Chief then met Gillespie and his attorney later reviewed Gillespie’s written statement mitigation. Ultimately, the Chief terminated Gillespie’s employment the Department. Gillespie appealed the Board. ¶11 After briefing hearing, Board held that City had improperly terminated Gillespie. It determined that Gillespie did not violate Department policies requiring him attentive his duties by displaying pornographic image. Board reasoned that Gillespie had displayed image during “down time” that therefore did not result neglect work. Next, Board ruled Gillespie did “embar rass himself or Department” showing image other officers. reaching conclusion, Board interpreted Department’s policy prohibiting only “actions discredit[] Department eyes members public.” Where never showed image member public, Board ruled had violated Department policy. noted although City’s witnesses testified “zero tolerance pornography,” City’s written anti pornography policy extended only city ‐ owned devices. As result, policy prohibit possession pornography his personally owned cellular telephone.
¶12 With respect charges, stated that required answer questions about his official duties “accurately completely” explained “would violate [s]ection 04.05 Department [p]olicies [IA] investigation failed accept responsibility actions attempting conceal, divert mitigate his Board culpability.” The Board then found that during interview, Gillespie “denied several times that he had shown an[ image] sexual act his cell phone other officers” “failed fully disclose reason for lack recall” about intoxication incident, “which later acknowledged due part his intoxication.” Additionally, Board found that Gillespie’s “assertion that checked hood [the police] car damage that night lacks credibility was effort mitigate his responsibility.” Thus, Board that “this conduct interview violated [s]ection 2.08(1) [s]ection 04.05 [p]olicies.” ¶13 Nevertheless, Board determined that termination for dishonesty related pornography incident was not appropri ate because Gillespie was notified that investigation would include those allegations. Board noted that answered truthfully about pornography incident “after becoming fully aware questioning that part investigation.” ¶14 As intoxication incident, Board determined had actual notice investigation therefore deficiency written regard charge was harmless. However, found there insufficient evidence damaged vehicle. decided conduct “did involve [Gillespie’s] public safety duties,” terminating him regard conduct merited. As result, reversed Chief’s Gillespie. now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 The argues either abused its discretion acted arbitrarily capriciously applying “more City v. City Board expansive of review” than the “substantial evidence” standard. particular, City contends the erred in failing afford deference Department’s interpretation of its own policies. next argues abused its discretion overturning decision terminate Gillespie failed show dispropor ‐ tionate sanction. Finally, argues erred by concluding due process right of charges against him at investigative stage.
¶16 Our review Board’s decision “on record appeal board” limited determining whether “abused discretion exceeded authority.”
See
Code
Ann. § 10 3 1106(6)(c) (LexisNexis 2012);
[2]
Howick v. Salt Lake City
Emp. Appeals Bd.
,
ANALYSIS
I. Standard of Review
¶17 The argues exceeded discretion
by setting own standard of review. Although not
define this “more expansive” standard, appears to have afforded
no deference to Chief’s interpretation Department
policies his reasoning Gillespie’s in interview
could used impeach credibility were called a
witness during future criminal trial. Because City’s authority
create an appeal board is based statute, begin our analysis
this issue by examining legislation. “Our primary objective
interpreting statute is give effect intent legisla ‐
ture.”
In re J.M.S.
(continued...) v. City ¶19 The Board in absence action by City, could set its own standard review. contends exceeded its discretion in doing so. response, Gillespie claims failed act, “was free apply whatever standard review believed most appropri ‐ ate.”
¶20 Although Utah Legislature has indicated cities may
prescribe standard review applied by their employee
appeal boards, nothing in statute addresses standard applicable absence such an ordinance.
See id.
§§ 10 ‐ 3 ‐ 1105 ‐ 1106. Likewise, there is nothing sections 10 ‐ 3 ‐
1105 or 10 ‐ 3 ‐ 1106 grants appeal board authority set
own review.
See id.; cf. Pearson South Jordan Emp.
Appeals Bd.
2009 App 204, 14,
“governing body” of and exceeded its authority by
adopting its own “more expansive” standard of review.
¶21 Because act and not autho ‐
rized do so, we now consider what standard of applies
when a municipality fails exercise authority granted by Utah Legislature. Although look plain language of
statute, often “statutory text may plain read in
isolation, but may become so light linguistic, structural,
statutory context.”
In re J.M.S.
reaching upholding rules, district court applied a substantial evidence standard, concluding “the rule should upheld if quantum quality of evidence [OGM] relied upon adequate convince a reasonable mind support [the agency’s] conclusion.” Id. ¶ (second alteration in original) (citation internal quotation marks omitted). ¶23 On appeal, supreme court upheld district court’s decision, stating, “[i]f a statute is silent as what standards review apply under provisions, . employ applicable standards review as previously enunciated our decisional law.” Id. ¶ 17. supreme court further indicated the applicable standard review dependent upon nature particular challenge. Id ¶ 19. With respect contractors’ claim OGM misinterpreted operative terms rules, supreme court deferred agency’s expertise, adopting a standard “arbitrariness capriciousness.” Id. Next, court considered contractors’ claim rules were not based substantial evidence. Id. ¶ See generally Utah Code Ann. § 63G 602(4)(a)(ii) (LexisNexis 2011) (identifying as a ground declaring rule invalid situations “the rule is supported substantial evidence viewed light whole administrative record”). Because viewed substantial evidence challenge injecting adjudicatory concepts eviden ‐ tiary proof into realm rulemaking, court applied review outlined previous cases under Adminis trative Procedures Act. Associated Gen. Contractors 112, 21; see Code Ann. §§ 63G ‐ (2011 & Supp. 2012). It held “in determining whether rule supported by substantial evidence, courts must decide relevant findings were ‘reasonable rational,’ although such assessment ‘does constitute de novo reweighing evidence.’” Id. (quoting Larson Limestone Co. State, Div. Oil, Gas & Mining , 430–31 1995)). ¶24 Although the present case involves a challenge the standard of review applied by Board, rather than a district court, we consider reasoning of Associated General Contractors instructive. Accordingly, look both nature of chal ‐ lenge ruling our decisional law for guidance. We begin an examination of our precedent. In addition provisions governing appeal boards, the
Utah Municipal Code authorizes establishment civil service
commissions.
See
Code Ann. § 10 ‐ 3 ‐ 1003 (2012). These
commissions serve a role similar employee appeal boards, but
they review termination employees fire
departments second class cities.
See id
§§ 10 ‐ 3 ‐ 1001 ‐ Like employee appeal boards, civil service commissions
“shall fully hear determine matter” an employee
appeals a department.
id.
§ 10 ‐ 3 ‐
1012(2) (civil service commission);
id.
§ 10 3 1106(3)(b)(ii) (em ‐
ployee appeal board). However, unlike appeal boards, Utah
Legislature has granted cities authority establish a
standard review civil service commissions.
Compare id.
§ 10 3 ‐
1106(7)(a) (“[T]he procedure conducting appeal [before appeal board] standard shall prescribed by governing body each municipality ordinance.”),
id
§§ 10 ‐
‐ 1012 (containing no similar provision). Accordingly, civil service commissions are posture much like appeal
board city has adopted review.
¶26 Decisions our appellate courts have explained proper role civil service commission address two ques ‐
tions: “‘(1) do facts support charges made depart ment head, and, so, (2) do charges warrant sanction
imposed?’”
Kelly Salt Lake Civil Serv. Comm’n
App
16, (quoting
re Discharge Jones
P.2d
1986)). Here, ruled facts did
support charges, concluding conduct
during interview violated regarding
v. City
truthfulness and candor. Thus, consider only second
issue—the determination charges did
warrant termination.
¶27 This second inquiry “is limited one” “[t]he [Police
Chief] must manage direct his deputies, is in best
position to know whether their actions merit discipline.”
See In re
Discharge Jones
, 720 P.2d at Accordingly, if facts support
charges, “must affirm [Police Chief’s] disciplinary
action, unless finds sanction so clearly disproportionate the
charges as amount abuse [Police Chief’s] discretion.”
id.
¶28 More recently, in
Harmon v. Ogden Civil Service Commis ‐
sion
, UT App 336,
II. Notice
¶30 We next consider City’s claim exceeded discretion by holding did have adequate notice charges against him. According City, violated City’s due process rights considering on own motion whether due process rights were violated inadequate investigation’s scope. contends raise issue, Board’s consideration deprived “opportunity be heard meaningful way.” generally Dairy Prod. Servs., Inc. v. Wellsville responds based due process rights but limited interpretation Department’s own policy, clearly at issue. ¶31 reversing the Chief’s Gillespie’s employment, the Board reasoned the Department had failed to give Gillespie the notice required Department policy 02.03(5) (the Notice Policy), which provides, “Prior to any formal interview accused member as part an [IA] Investigation, members will given written notification the allegations and informed their rights responsibilities relative investigation accordance with the Member Questioning Policy.” Interpreting the Notice Policy, the Board stated, “Gillespie did not receive the Notification Form until sat down with [Investigator] interview. We do not believe that immediately prior beginning interview prior notice required policy.” It further indicated even written notice presented day interview could considered timely, notice deficient because it merely stated investigation involved “[s]tandards of conduct” did outline specific allegations against Gillespie. explained “use word ‘allegations’ policy requires Notification Form list general terms factual allegations being investigated so officer can properly prepare interview.” then that failed comply with its own Notice Policy and, in doing so, “failed provide due process was entitled.”
¶33 Despite single reference “due process,” we agree with basis City’s failure comply own Notice Policy concept of constitutional due process. does reference either Constitution United States Constitution, address of legal concepts traditionally associated deprivation of constitutional due process. Lucas Murray Civil Serv. Comm’n Ct. App. 1997) (holding failure provide notice required under department not deprive due process actual the excessive force charge being investigated was provided an opportunity heard before terminated). Instead, the focus the analysis is on the City’s failure give Gillespie written notice allegations, as required Department’s Notice Policy. We therefore reject City’s contention that violated City’s due process rights introducing due process argument on behalf Gillespie.
A. Interpretation Notice Policy ¶34 We next consider City’s alternative argument required interpret Department’s Notice Policy consistently with Department practices. “In disciplinary proceedings, public body must comply with its own rules an employee being disciplined is entitled rely upon those rules.” Id. at contends complied Notice Policy. support, relies testimony from Police Chief indicating notice standard document used in IA investigations since at least testimony Investigator Department’s standard procedure is to provide immediately prior an IA interview. Even accepting these practices reflect Chief’s interpretation Department’s Notice Policy, interpretation is entitled deference only is reasonable. See Westside Dixon Assocs., LLC Power & Light Co./PacifiCorp 7, (holding court applies an intermediate considering agency’s interpretation own rules, “deferring agency’s interpretation long as it both reasonable rational”). Here, Department’s interpretation Notice Policy reasonable rational. ¶35 First, Notice Policy uses precise language, indicating that must given “written notification allegations” prior IA Investigation. We agree “allegations” requires something more than vague reference “policy violations.” Black’s Law Dictionary (9th ed. 2009) v. (defining “allegation” as “a party’s formal statement a factual matter as being true provable”). Second, the requirement the notice the allegations be provided to the officer “prior to any formal interview” should be interpreted manner that renders the Notice Policy meaningful. Cf. Fierro Park Mun. Corp. , UT App (“It would illogical the statute explicitly require municipality to establish an appeal process through an employee has an opportunity to refute the allegations against him, yet view as not requiring that city give that employee clear notice allegations should be prepared address.”). Department’s practice providing written notice officer who subject IA investigation at time officer arrives formal interview serves little no purpose therefore unreasonable. Accordingly, free reject Chief’s interpretation Notice Policy, do disturb conclusion that City failed comply it.
B. Harmfulness Inadequate Notice ¶36 Despite conclusion, found had actual notice would questioned about intoxication incident. Lucas at (holding actual notice sufficient despite failure give written notice charges against him required identical City’s); see Yardley Corr. App 49U, paras. 6–7 (mem.) (holding correction department’s failure follow own procedures use committee was harmless where petitioner’s pretermination hearing “reviewed same issues would have been covered committee review” petitioner contest factual allegations against him). does challenge finding, other findings, appeal. Accordingly, City’s failure provide written allegations regarding intoxication incident prior interview harmless. City City
¶37 However, there no indication the record that Gillespie actual notice that the IA interview would include questions about the pornography incident. City argues that this was harmless because, while Gillespie may have known that he would be questioned about pornography incident, he had ample notice that he could be terminated if he failed answer all questions “accurately completely.” Although claims he dishonest because he “was caught off guard” questioning about pornography incident, he admitted prior IA interview, knew he could be fired giving inaccurate, false, misleading answers questions. ¶38 The City also notes overly restrictive interpretation Notice Policy would limit Department’s disciplinary authority offenses aware prior investigation. Under Board’s interpretation, if officer revealed information indicating inappropriate conduct Department was unaware before interview, would immune from disciplinary action. We agree interpretation is unreasonable. Even failure notify would questioned about pornography incident could protect him from discipline regarding incident—an issue do not decide—it would prevent disciplining also contends fundamental requirements due process were met “Notice Intent Impose Termination” included detailed information about allegations against Gillespie. Lucas Murray Civil Serv. Comm’n 949 him for violations it could have notified Gillespie about they had yet occurred or because Department was unaware them. Accordingly, hold that Gillespie had sufficient notice prior to interview that he could disciplined for dishonesty.
¶39 Additionally, Board determined that Gillespie was equally untruthful evasive when answering questions about intoxication incident despite actual knowledge investigation. that “failed to fully disclose . . . reason for his lack recall about incident . . . , which he later acknowledged due in part his intoxication.” determined that Gillespie’s claim that “checked hood [another officer’s] car damage night lacks credibility effort mitigate responsibility.” Thus, even when actual notice subject matter IA investigation, answered dishonestly.
¶40 We therefore hold exceeded discretion determined any error provided to harmful such way warranted reversing Chief’s terminate employment. policy 2.2 02.04, related member questioning, states officers must answer “accurately and completely all questions about official duties.” Policy 2.2 02.04 further clarifies “[a]ny act or omission intent hinder, prevent, delay, or interfere IA complaint investigation breach discipline.” Additionally, 04.05 indicates “failure cooperate fully any internal administrative investigation failing provide complete and accurate information regard issue under investigation” constitutes dereliction duty, does “[f]ailure accept responsibility member’s actions attempting conceal, divert, mitigate their true culpability.”
III. Appropriateness Termination ¶41 The argues abused discretion determined that, although violated Department policies with evasive and dishonest answers during investigation, this conduct merit termination. As discussed, required uphold Chief’s decision if termination “(1) appropriate offense and (2) consistent previous sanctions imposed department.” Harmon Ogden Civil Serv. Comm’n , UT App 336, 8, P.3d (citation internal quotation marks omitted). A. Proportionality Sanction Offense ¶42 We consider was appropriate sanction dishonesty. The Department’s discipline policy states,
In determining type severity disciplinary action, [Police] Chief . . shall consider aggravating mitigating circumstances include, but are limited to, repeated nature misconduct; prior disciplinary action imposed; severity misconduct; employee’s work record; effect . Department City’s operations; and/or potential misconduct harm person(s) or property information presented employee result pre disciplinary hearing. consistent authority this court. Nelson v. Orem City, Public Safety App P.3d cert. granted 2012), court identified several factors relevant issue whether sanction is proportional misconduct, stating, v.
[E]xemplary performance by employee may serve evidence against termination, while job violations continued misbehavior could weigh favor dismissal. may consider following factors: (a) whether violation directly related to employee’s official duties significantly impedes his or her ability carry out those duties; (b) whether offense was a type adversely affects public confidence department; (c) whether offense undermines morale and effectiveness department; or (d) whether the offense committed willfully or knowingly, rather than negligently inadvertently.
Id. (alteration original) (citations internal quotation marks omitted). According City, failed provide any evidence on these factors therefore did not meet his burden establishing termination disproportionate sanction.
¶43 Although not
merited based dishonesty, specifically
address these factors. Most troubling Board’s failure to
consider Police Chief’s concern would a
credible witness future criminal trials due in
IA interview.
generally Giglio United States
U.S. 150,
(1972) (holding prior false testimony witness must be
disclosed defense “[w]hen reliability given witness
may well determinative guilt innocence” (citation and
internal quotation marks omitted));
cf. Tolman Salt Lake Cnty.
Attorney
Ct. App. 1991) (holding county’s career services council abused discretion failing address party’s legal contentions “because prevented [career services council] properly performing decision terminate [his] employment”). addition, does reflect deference Chief’s
Board
advantaged position evaluate level of appropriate discipline.
See re Discharge of Jones
pornography intoxication incidents about Gillespie was dishonest. ruled was dishonest and evasive answering questions about both incidents, specifically holding he “violated [s]ection ‐ 2.08(1) and [s]ection 04.05 Department [p]olicies.” However, concluded termination unwarranted because violate showing pornographic image other officers. Although Board’s determination officer cannot violate section 2.05.05(7) unless is specifically interacting member public dubious, need reach issue because Police Chief independent basis for terminating Gillespie. Therefore, focus whether Gillespie’s behavior during intoxication incident could subject disciplinary action because he off duty also misplaced. Chief fired because lied about intoxication incident pornography incident, not participated them. Thus, issue before should have been whether sanction was appropriate Gillespie’s violation policy regarding honesty candor—an issue independent merits separate sanctions recommended conduct during intoxication pornography incidents.
¶45 Accordingly, Board exceeded discretion it ignored Police Chief’s assessment impact Gillespie’s dishonesty on ability perform duties expected police officer. It also exceeded discretion failing defer the Police Chief’s advantaged position evaluate discipline appropriate under circumstances. As result, set aside on this issue remand for further proceedings applying this focusing on relevant issue—whether sanction termination is proportional violation requiring police officers be honest candid.
B. Consistency Discipline Similar Incidents ¶46 Even if sanction appropriate, must determine whether it proportional. Here, never reached this issue was an appropriate sanction. Because issue may relevant on remand, we address convenience parties. See generally State Verde (providing guidance trial court on remand).
¶47 The argues level discipline imposed on was consistent discipline imposed other officers guilty dishonesty. particular, highlights Police Chief’s testimony although officer terminated dishonesty during IA interview, two other officers facing similar allegations chose resign rather than face termination. Chief indicated Gillespie’s more egregious than behavior prior cases, explaining “it clear cut” other officers had lied “in official investigation.” assistant chief recall been given opportunity resign. response, argued hampered his
attempts prove disproportionality refusing his requests for personnel files, thereby preventing him independently evaluating whether other officers who had been dishonest during IA investigations been terminated. disputed position on ground his request was too broad sought production all IA files irrespective whether issue. Board never resolved this dispute considered substantive issue whether Gillespie’s consistent other disciplinary actions. On remand, may make appropriate findings fact regarding consistency sanction imposed for dishonesty.
CONCLUSION
¶49 The exceeded discretion adopted its own under not afforded sufficient notice. exceeded discretion by failing give deference Chief considering proper factors assessing appropriateness sanction. We therefore set aside remand for proceedings consistent decision.
Ct. App. 1997). notes attorney met Police Chief prior then sent Chief statement mitigation. As discussed, however, was based on Department’s failure follow own Notice Policy, violation due process. While due process sets minimum requirements, adopted providing more protection members force.