Lucas v. Murray City Civil Service Commission , 331 Utah Adv. Rep. 15 ( 1997 )

BENCH, Judge

(concurring in the result):

I fully concur with the analysis captioned “Factual Basis for Dishonesty Charge” in section III of the main opinion. As set forth therein, the evidence simply does not support the Commission’s finding that Lucas lied about the position of his gun when he searched Spegar at the station. That discussion being dispositive, I would not opine about other aspects of the case.

As recognized by the main opinion, Lucas asks alternatively for reinstatement or a new hearing. He first contends that the Commission should be reversed and that he should be reinstated with back pay because the facts do not support termination for the dishonesty charge and, in any event, termination is disproportionate to the charge. As an alternative argument, he contends that he is entitled to another hearing because his rights to due process were violated.

I share some of the main opinion’s concerns over whether Lucas was afforded due process at the hearing before the Commission. I am particularly bothered by the Commission’s exclusion of evidence that Lucas was discharged out of retaliation for having filed misconduct claims against Lieutenant Fondaco and the Murray City Police Department. However, given our decision to reinstate Lúeas without any further hearing, the discussions about due process and proportionality are mere dicta, which may or may not be correct.

I therefore concur only in the result.