Leavitt v. Salt Lake City Corporation , 442 P.3d 1217 ( 2019 )

2019 UT App 70THE UTAH COURT OF APPEALS
AARON LEAVITT,
Petitioner,
v.
SALT LAKE CITY CORPORATION AND SALT LAKE CITY CIVIL
SERVICE COMMISSION,
Respondents.
Opinion
No. 20170715-CA
Filed May 2, 2019
Original Proceeding in this Court
Erik Strindberg and Jonathan K. Thorne, Attorneys
for Petitioner
John E. Delaney and Mark E. Kittrell, Attorneys for
Respondent Salt Lake City Corporation
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 In the wake of an on-duty incident at a homeless shelter,
Salt Lake City Police Sergeant Aaron Leavitt was terminated
from the police force for “conduct unbecoming” a police officer.
Leavitt appealed his termination to the Salt Lake City Civil
Service Commission (the Commission), which affirmed the
decision to terminate him. Leavitt now seeks judicial review of
the Commission’s decision, and we decline to disturb it.
Leavitt v. Salt Lake City Corporation
BACKGROUND 1
Leavitt’s Work History
¶2 Leavitt began working for the Salt Lake City Police
Department (the Department) in 1996 and, other than a one-year
stint in 2002–03 at a police department in Texas, Leavitt worked
continuously for the Department for nearly twenty years. At
first, he was assigned to be a patrol officer, but he rose through
the ranks, earning a promotion to detective in 2004 and to
sergeant in 2013.
¶3 During the time Leavitt worked for the Department he
was generally a good employee, and in his annual evaluations he
was never rated as less than “meeting standards.” He had never
been the subject of serious discipline, and had never before been
charged with “conduct unbecoming.” However, he had been the
subject of three disciplinary matters during the course of his
employment with the Department. The first two matters
occurred in the early years of his work for the Department and
were relatively minor, involving written reprimands for poor
driving and improperly caring for his shotgun. The third matter
occurred in 2013 or 2014, after he had been promoted to
sergeant, and was somewhat more significant: Leavitt received a
sixty-hour suspension for improperly using a taser as part of a
prank while working security at a professional basketball game.
In September 2015, when the events giving rise to this case
occurred, Leavitt held the rank of sergeant, and was only a few
1. The Commission made extensive findings of fact after a two-
day evidentiary hearing, and we draw heavily upon those
findings in reciting the facts here. Specifically, any unattributed
quotations included in our factual recitation are taken verbatim
from the Commission’s findings.
20170715-CA 2 2019 UT App 70Leavitt v. Salt Lake City Corporation
months short of twenty years of service, a milestone that would
have made him eligible to retire with full benefits.
The Incident at the Shelter
¶4 On the night of September 20, 2015, Leavitt was on patrol
when he received a request for additional assistance near a
homeless shelter (the Shelter) in downtown Salt Lake City. A few
minutes earlier, another officer had stopped a group of three
males—including two black juveniles (Juvenile 1 and Juvenile
2)—for “jaywalking” across the street in front of the Shelter.
After stopping the group, the officer ordered them to sit on the
curb so he could issue them jaywalking citations. As the officer
was writing up the citations, Juvenile 1’s mother (Mother)
arrived on scene, and at roughly the same time Juvenile 1’s sister
(Juvenile 3) proceeded to jaywalk across the street and into the
Shelter. Another officer ordered her to stop, but she did not
comply, and so that officer followed her into the Shelter and
brought her outside with the other juveniles.
¶5 All this commotion near the Shelter began to attract
attention, and a crowd began to gather. Officers radioed for
assistance, and Leavitt (and others) heard their call. After some
discussion, Juvenile 3 was detained and placed in the back of a
Department car that was parked in front of the curb, and the
crowd began to dissipate. At about this point, Leavitt arrived on
scene, and he observed that the situation had calmed down and
“appeared to be under control.” Indeed, Leavitt’s first action
upon arrival was to instruct dispatch to “slow everybody
down,” meaning that additional officers en route to the scene
need not hurry to arrive. Leavitt met with the officers on scene to
obtain additional information, and then set a security perimeter,
gave other officers instruction, and released some officers whose
presence he deemed no longer necessary. However, as Leavitt
was doing so he made a series of comments—that were captured
by his body camera—to other officers and to himself,
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complaining about having to deal with the residents of the
Shelter area, and lamenting that he could no longer get “rough”
with them “like we used to” back in the day. 2
¶6 A few minutes after making these comments, Leavitt
approached the car where Juvenile 3 was detained and began
talking to the officers. During the conversation, Leavitt “made a
comment and pointed in the general direction” of where Juvenile
1 and Juvenile 2 had been sitting on the curb. In response,
Mother began arguing with Leavitt. At about the same time,
Juvenile 3 was released from the car and Leavitt confronted her
by “point[ing] his finger in [her] face while lecturing her about
her behavior.” Leavitt then walked over to the curb and began
lecturing Juvenile 2 about his behavior.
¶7 A few minutes later, after Leavitt had returned to his
police car, he witnessed a group of individuals—including
Juvenile 1, Juvenile 3, Mother, and other juveniles—walking on
the sidewalk in front of the Shelter. Leavitt later testified that he
“heard one of the juvenile males make a threat to either [Leavitt]
or to other [officers] in the area.” 3 Leavitt then crossed the street,
by himself, to confront the juvenile who had allegedly made the
threat, and a heated exchange ensued. As shown in the footage
from Leavitt’s body camera, which Leavitt activated as he
2. Specifically, Leavitt grumbled that “[h]ere we are again, and
just because they won’t let us do what we need to do down here,
and that means get a little rough and hands on like we used to”;
that “[t]here needs to be zero tolerance”; and that “[t]here’s rules
and if you don’t follow the rules, you’re going to get man
handled, that’s the way it is down here.”
3. The threat was not captured by Leavitt’s body camera because
his body camera was not activated at the time the threat was
allegedly made, and no other officers heard the threat.
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approached the group, Leavitt first asked an unidentified male
juvenile, in a challenging manner, “You got something to say
now, I’m standing right here.” Then, in response to a statement
made by one of the individuals in the group regarding freedom
of speech, Leavitt replied, “Freedom of speech isn’t protected
like you think it is.” Following this exchange, Leavitt turned his
attention to a female juvenile in the group after she said, “Get
the fuck outta here nigga.” Leavitt replied, “Did you tell me to
get the fuck out of here nigger, is that what you just said?” The
female juvenile replied, “No, nigga clean your fucking ears,”
after which Leavitt ended the exchange by saying “nigga” in a
tone the Commission found to be “mocking.”
¶8 Leavitt continued to walk alongside the group, all the
while engaging the entire group—and Mother specifically—in
various argumentative exchanges. After arguing with Leavitt for
a few minutes, Mother directed the group to return to the
Shelter. At about the same time, a female juvenile said to Leavitt,
“Oh, you don’t like what you’re hearing,” to which Leavitt
responded, “No, I don’t like what I hear, I don’t like the
disrespect from you, ’cause you’re not so bad, you’re not tough,
you run your mouth and walk away.”
¶9 By the end of this exchange the group had arrived at the
Shelter doors. Leavitt, however, continued to argue with Mother
and then pointed his finger directly at Mother, and then at a
female juvenile, saying, “I’m gunna confront you.” In response
to Leavitt’s actions, Juvenile 1 pointed his finger at Leavitt and—
accidentally or not—poked him in the face near the eye. In
response, Leavitt reached into the Shelter doorway and grabbed
Juvenile 1 by the neck, sparking what the Commission described
as a “melee.” People inside the Shelter, including Mother and
Juvenile 3—Juvenile 1’s family—began to push and shove
Leavitt, and a crowd gathered. In response, numerous officers
ran across the street to the Shelter doorway to assist Leavitt. As
officers arrived at the doorway they were surrounded by the
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crowd in a confined environment, a situation the Commission
described as a “fatal funnel” that jeopardized officer safety by
leaving the officers subject to attack by armed individuals. The
officers were eventually able to break up the melee and, after a
number of minutes, they detained Juvenile 1 and Juvenile 3 and
took them outside the Shelter and handcuffed them.
¶10 After the melee was contained, Leavitt returned to the
street in front of the Shelter where he met with other officers and
discussed, among other things, “what had transpired, what
charges would be issued against the people involved, how the
situation was going to be wrapped up, and whether the identity
of the juvenile who allegedly made the threat was known.”
During these discussions, captured by Leavitt’s body camera,
Leavitt again made comments to other officers, and himself,
about how dissatisfied he was with the current state of policing
and with being told not to be “rough” with people. Among other
comments, Leavitt declared:
The degradation of the moral fabric of our
community, of our world, look what’s happened
ever since that bullshit in Ferguson. President
Clinton came—or uh Obama—not standing up and
he keeps running his mouth, all of them, and the
judge is saying oh, it’s no big deal, thanks Baxter.[4]
The Investigation
¶11 Within a day or two of the Shelter melee, the Department
began an investigation into Leavitt’s actions that night. The
investigation was formally initiated by a complaint submitted by
a Department lieutenant, and Leavitt was placed on paid
4. The reference to “Baxter” is presumably a reference to Judge
John Baxter of the Salt Lake City Justice Court.
20170715-CA 6 2019 UT App 70Leavitt v. Salt Lake City Corporation
administrative leave pending the outcome of the investigation.
The investigation, conducted by the Department’s Internal
Affairs (IA) division, included interviews with officers who were
on the scene during the incident, as well as a review of body
camera footage (Body Cam Footage) from all of the officers on
the scene, including Leavitt. After reviewing all the facts
gathered during the investigation, and particularly Leavitt’s
Body Cam Footage, the head of IA determined that Leavitt “had
violated Department and City policies,” and issued a pre-
determination notice (the Notice) setting forth facts “that
illustrated the policy violations.” It was not, however, up to IA
to determine the level of discipline, if any, that would be
imposed; that decision was solely in the hands of the Salt Lake
City Police Chief (the Chief). A pre-disciplinary hearing was
held shortly after the release of the Notice.
¶12 After the hearing, the Chief was required to decide
whether to uphold IA’s finding that Leavitt violated Department
policies and, if so, what penalty would be appropriate under the
circumstances. In making his decision, the Chief reviewed and
considered the findings of the IA investigation, all of the Body
Cam Footage, and written submissions made by Leavitt at the
hearing. The Chief also considered the “impact of [Leavitt’s]
actions on the public trust, on the integrity of the Department,
and on Department officers, including [Leavitt].” In the end, the
Chief agreed with IA that Leavitt had violated Department and
city policies, and concluded that the appropriate sanction, under
the facts of this case, was to terminate Leavitt’s employment.
¶13 Leavitt appealed the Chief’s decision to the Commission.
After a two-day evidentiary hearing, during which the
Commission heard testimony from numerous witnesses,
including the Chief and Leavitt, and reviewed numerous
exhibits, including the Body Cam Footage, the Commission
unanimously voted to uphold Leavitt’s termination, and issued a
written decision setting forth its findings and conclusions.
20170715-CA 7 2019 UT App 70Leavitt v. Salt Lake City Corporation
ISSUE AND STANDARD OF REVIEW
¶14 Leavitt now seeks judicial review, and specifically asks us
to set aside the Commission’s decision to uphold his
termination. When reviewing the Chief’s decision, the
Commission “is required to give deference to the Chief, as he is
best able to balance the competing concerns in pursuing a
particular disciplinary action.” Harmon v. Ogden City Civil Service
Comm’n (Harmon II), 2007 UT App 336, ¶ 6, 171 P.3d 474(quotation simplified). Our review, in turn, of the Commission’s
decision is similarly limited; indeed, we are instructed by statute
to review such decisions only “for the purpose of determining if
the [C]ommission has abused its discretion or exceeded its
authority.” Utah Code Ann. § 10-3-1012.5 (LexisNexis 2015). We
will therefore not disturb the Commission’s decision to uphold
the Chief’s decision to terminate Leavitt’s employment “unless it
exceeds the bounds of reasonableness and rationality.” Harmon
II, 2007 UT App 336, ¶ 6 (quotation simplified). Under this
standard, “it is not this court’s place to substitute its judgment as
between two reasonably conflicting views” as to the appropriate
punishment, “even though we may have come to a different
conclusion had the case come before us for de novo review” or
had we been the decisionmakers in the first instance. See
EAGALA, Inc. v. Department of Workforce Services, 2007 UT App
43, ¶ 16, 157 P.3d 334 (quotation simplified); see also Murray v.
Utah Labor Comm’n, 2013 UT 38, ¶ 30, 308 P.3d 461 (stating that
“a discretionary decision involves a question with a range of
‘acceptable’ answers, some better than others, and the agency . . .
is free to choose from among this range without regard to what
an appellate court thinks is the ‘best’ answer”).
ANALYSIS
¶15 In Utah cities with a population of more than 65,000,
decisions about whether, and how severely, to discipline police
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officers for misconduct are made in the first instance by the
officers’ department heads, usually the city’s Chief of Police. See
Utah Code Ann. §§ 10-3-912, -1012 (LexisNexis 2015); see also id.
§ 10-2-301(2). Where cities have established a civil service
commission—and Salt Lake City has done so—a department
head’s disciplinary decisions may be appealed to that
commission. See id. §§ 10-3-1003, -1012. However, upon review,
commissions must choose between upholding or reversing a
department head’s disciplinary decisions; they may not “modify
suspension or termination decisions or . . . remand such
decisions for further proceedings.” Salt Lake City Corp. v. Salt
Lake City Civil Service Comm’n, 908 P.2d 871, 875–76 (Utah Ct.
App. 1995) (interpreting Utah Code section 10-3-1012, and
stating that a commission may only give “a simple thumbs up or
thumbs down” to the department head’s decision).
¶16 Accordingly, “when reviewing appeals brought by
suspended or discharged employees,” a civil service commission
is to make two inquiries: “(1) do the facts support the charges
made by the department head, and, if so, (2) do the charges
warrant the sanction imposed?” Id. at 876 (quotation simplified).
Put differently, “the Commission must first determine if
discipline was warranted, and, if so, whether the discipline
imposed was appropriate.” Kelly v. Salt Lake City Civil Service
Comm'n, 2000 UT App 235, ¶ 16, 8 P.3d 1048. If the Commission
determines that discipline was either not warranted, or that the
discipline imposed was disproportionate to the offense, it must
reverse the department head’s action. Id.
¶17 To his credit, Leavitt does not dispute that his actions at
the Shelter constituted conduct unbecoming an officer, and that
he therefore violated the policies under which he was charged.
His challenge is focused solely on the second ground: Leavitt
asserts “that the charges do not warrant the sanction imposed.”
Harmon II, 2007 UT App 336, ¶ 6, 171 P.3d 474. In assessing
whether a sanction is warranted, the Commission is required to
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consider two questions: “(1) Is the sanction proportional? and (2)
Is the sanction consistent with previous sanctions imposed by
the department pursuant to its own policies?” Burgess v.
Department of Corr., 2017 UT App 186, ¶ 35, 405 P.3d 937(quotation simplified). “[I]f the discipline is either not
proportional to the offense or is not consistent with previous
sanctions, a sanction may be reversed by [the Commission] or
overridden by this court.” West Valley City v. Coyle, 2016 UT App
149, ¶ 29, 380 P.3d 327.
¶18 In support of his position that termination was too strong
a sanction in this case, Leavitt argues that his punishment was
both disproportionate and inconsistent with sanctions levied by
the Department in previous cases, and in addition argues that
his termination was improper because the Department failed to
comply with certain procedural requirements when it
terminated him. We address each of Leavitt’s arguments in turn.
A
¶19 Leavitt first contends that termination is a penalty
disproportionate to his offense. In Ogden City Corp. v. Harmon
(Harmon I), 2005 UT App 274, 116 P.3d 973, this court identified a
nonexclusive list of factors—known as the Harmon factors—that
may be considered in determining the proportionality of a
sanction:
(1) whether the employee has “an exemplary
service record,” (2) whether the evidence of
misconduct is tenuous, (3) whether the employee
has been dishonest, (4) whether there are
numerous violations, (5) whether there has been
“ineffective progressive discipline,” (6) “whether
the violation is directly related to the employee’s
official duties and significantly impedes his or her
ability to carry out those duties,” (7) “whether the
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offense was of a type that adversely affects the
public confidence in the department,” (8) “whether
the offense undermines the morale and
effectiveness of the department,” (9) “whether the
offense was committed willfully or knowingly,
rather than negligently or inadvertently,” and (10)
whether the misconduct is likely to reoccur.
Burgess, 2017 UT App 186, ¶ 38 (quoting Harmon I, 2005 UT App
274, ¶ 18). This nonexclusive list of factors is not to be rigidly
applied; indeed, “[t]here is no single set of factors that must be
considered when conducting a proportionality review.” Coyle,
2016 UT App 149, ¶ 30. The Harmon factors are merely aids in
determining whether the sanction imposed was proportional.
¶20 Applying the Harmon factors to the case at hand, the
Commission determined that Leavitt’s termination was
proportional to his conduct, and we discern no abuse of
discretion in that determination. The Commission’s analysis was
based on its findings that a number of the Harmon factors
weighed in favor of a stern punishment. And although the
Commission did not specifically cite each Harmon factor, its
findings are amply supported by the record evidence.
¶21 For example, the Commission’s findings demonstrate that
it considered whether the Chief had properly weighed Leavitt’s
service record when terminating Leavitt. See Harmon I, 2005 UT
App 274, ¶ 18. The Commission specifically recognized that
Leavitt’s service record was good, that his annual evaluations
had been generally favorable, and that he had received multiple
letters of commendation. However, the Commission also
recognized that Leavitt had been the subject of several
disciplinary matters, including a more significant violation a
year or two before the incident in question. Moreover, the
Commission also gave weight to the Chief’s testimony on the
issue, in which he stated that Leavitt’s past service record could
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not “make up for the egregious nature of [Leavitt’s] conduct on
that night,” and that during his twenty-six-year police career, the
Chief had never “seen behavior such as that demonstrated by
[Leavitt] on the night of [the incident].”
¶22 The Commission’s findings also address whether
Leavitt’s violation is directly related to his official duties, and
whether it significantly impeded his ability to carry out those
duties. See id. Moreover, Leavitt himself concedes that this factor
weighs in favor of substantial discipline, because the violation
related directly to his official duties, and the way he handled the
situation impeded his ability to perform those duties.
¶23 The Commission also made findings regarding the effect
Leavitt’s actions had, or could have, on the public’s perception of
and confidence in the Department, as well as the effect on the
morale and effectiveness of other officers in the Department. See
id. Based on the record evidence, the Commission concluded that
the Chief’s decision to terminate Leavitt was based in part on the
Chief’s evaluation of “the impact of [Leavitt’s] actions on the
public trust, on the integrity of the Department, and on
Department Officers, including [Leavitt].” Specifically, the
Commission was persuaded by the Chief’s testimony that
Leavitt’s “admitted misconduct adversely affected the public
confidence” in the Department, and that if Leavitt’s Body Cam
Footage were to be aired on the local news or posted on the
internet it could significantly impact “the Department’s
reputation within the community” and “cause lasting damage to
the Department.” The Chief also testified that these potential
consequences would necessarily impact the morale and
effectiveness of the Department because Leavitt’s actions directly
reflect on the integrity and character of each Department officer.
Although Leavitt resists the Chief’s conclusion on this point, and
contends that it is nothing more than speculation, we are unable
to conclude that the Commission abused its discretion in
deciding to credit the Chief’s testimony on this point.
20170715-CA 12 2019 UT App 70Leavitt v. Salt Lake City Corporation
¶24 Finally, the Commission considered whether the offense
was committed willfully or knowingly. See id. For example, the
Commission credited the Chief’s testimony “that he believed
[Leavitt’s] actions on the night of [the incident] were not simply
negligent or inadvertent,” but rather “it seemed like [Leavitt]
was looking for a fight, that his actions were calculated, that
[Leavitt] knew what was going on in this situation, and that the
situation was not spontaneous because it developed over time
and [Leavitt] engaged in verbal altercations that escalated the
situation, confronting one person after another.” Moreover, the
Commission also credited Leavitt’s own testimony that “his
misconduct was at least influenced by his frustration that the
Department had, in recent years, gotten away from what he
thought was a more effective policing method.” Thus, the
Commission concluded that several Harmon factors militate in
favor of a harsh punishment and, because that conclusion was
supported by record evidence, it was not an abuse of discretion. 5
¶25 A few Harmon factors support the opposite view, and
Leavitt points hopefully to those factors as support for his
position. For example, Leavitt notes that he has always been
honest about his misconduct, and that he has even conceded that
his conduct violated Department policies. See Harmon I, 2005 UT
App 274, ¶ 18. He also highlights the fact that his termination
was the result of only one incident, rather than multiple
violations occurring on various occasions. See id. And because
Leavitt had not engaged in serious misconduct prior to the
incident in question, there had been no “ineffective progressive
discipline.” See id.
5. In addition, although the Commission did not expressly
mention it, it is evident that the second Harmon factor—whether
the evidence of misconduct is tenuous—also weighs in favor of a
stern sanction in this case. Here, not only was the conduct almost
entirely captured on video, but Leavitt admitted wrongdoing.
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¶26 However, not all the Harmon factors have to weigh in
favor of stern punishment for the Commission’s decision to be
reasonable. In instances like this one, in which some factors cut
in one direction and others in another, the Chief had several
reasonable alternatives from which to choose. We will not
disturb the Commission’s decision to affirm the Chief’s choice
unless it “exceeds the bounds of reasonableness and rationality.”
Harmon II, 2007 UT App 336, ¶ 6 (quotation simplified); see also
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 30, 308 P.3d 461(stating that “a discretionary decision involves a question with a
range of ‘acceptable’ answers, some better than others, and the
agency . . . is free to choose from among this range without
regard to what an appellate court thinks is the ‘best’ answer”).
¶27 In sum, the Commission rationally and reasonably
determined that the Chief’s decision to terminate Leavitt was
proportionate to his offense. Although the Commission did not
make a finding on every Harmon factor in reaching its decision, it
was not required to do so. See Coyle, 2016 UT App 149, ¶ 30. And
although the Chief could have imposed a lesser sanction on
Leavitt, based on the record evidence, the Commission did not
abuse its discretion in concluding that the Chief’s decision did
not “exceed[] the bounds of reasonableness and rationality.”
Harmon II, 2007 UT App 336, ¶ 6 (quotation simplified).
B
¶28 Leavitt next contends that his termination is not
consistent with prior discipline imposed on other officers for the
same offense. In support of this argument, Leavitt points to
“comparable” information about five other officers who violated
the same policy as Leavitt—“conduct unbecoming”—but had
received a lesser sanction than termination.
¶29 When challenging a sanction’s consistency, the “burden of
establishing inconsistent discipline rest[s] with [the disciplined
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employee] at the Commission level.” West Valley City v. Coyle,
2016 UT App 149, ¶ 37, 380 P.3d 327. The employee “must first
make out a prima facie case by pointing to specific instances or
statistics, rather than relying on an unsupported assertion of
inconsistent punishments.” Kelly v. Salt Lake City Civil Service
Comm’n, 2000 UT App 235, ¶ 30, 8 P.3d 1048. And while “our
case law does not require comparison to identically situated
employees,” Coyle, 2016 UT App 149, ¶ 37, it does require the
employee to show “some meaningful disparity of treatment
between himself and other similarly situated employees,” Burgess
v. Department of Corr., 2017 UT App 186, ¶ 49, 405 P.3d 937(quotation simplified).
¶30 Here, Leavitt offered as evidence information on five
“comparable” cases in an attempt to demonstrate the
inconsistency of his discipline for “conduct unbecoming.” In
exhibits submitted to the Commission, Leavitt describes
instances where five other officers were charged with “conduct
unbecoming,” each resulting in a lesser discipline than
termination. For each example, Leavitt provided a brief
description of the officer’s actions and the discipline received. 6
6. The first officer received twenty hours without pay after
making a threatening and profane comment (“watch your back
asshole”) to a civilian while on duty at a professional baseball
game in Salt Lake City. The second officer received verbal
counseling after referring to a black man as “boy” and making
lewd comments about the size of the man’s genitalia. The third
officer received a ten-hour suspension after making comments to
someone insinuating that he or she was involved in criminal
conduct. The fourth officer, a sergeant, received a letter of
reprimand after using threatening language during a phone
conversation with another officer. The fifth officer received a
(continued…)
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¶31 After reviewing this evidence, the Commission concluded
that Leavitt “failed to offer sufficient evidence to show that the
sanction imposed on him was inconsistent with the discipline
imposed on other similarly situated officers.” In reaching this
conclusion, the Commission found that the evidence Leavitt
offered was inadequate because Leavitt had not demonstrated
that the officers in the “comparable” cases were “similarly
situated officers.” The Commission reasoned that
(1) the alleged “comparable” examples offered by
[Leavitt] involved patrol officers, not officers
holding the rank of Sergeant or above;[7] (2) none of
[Leavitt’s] examples involved a command officer
who engaged in verbal altercations through loud
and inappropriate language, confronting one
person after another, including minors, for such an
extended period of time; and (3) none of the
(…continued)
letter of reprimand—that was later withdrawn—after engaging
in a public dispute with a civilian.
7. Leavitt correctly notes that the Commission erred on this
point, inasmuch as one of the five comparable cases Leavitt
offered involved an officer holding the rank of sergeant.
However, the Commission’s error on this point does not
invalidate its ultimate finding because Leavitt cannot show that
the error mattered, i.e., that a contrary finding would have
changed the outcome. See Ha v. Trang, 2016 UT App 155, ¶ 12,
380 P.3d 337 (“On appeal, the appellant bears the burden of
showing not only that an error occurred, but that it was
substantial and prejudicial.” (quotation simplified)). Other than
the rank of the officer (“sergeant”) and the charge (“conduct
unbecoming”), the facts of that episode are not at all factually
similar to the incident at issue here.
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examples . . . involved the escalation of a situation
that had already calmed down, doing so in a very
difficult part of the city, involving such a large
number of people, and that put the safety of other
Department Officers at risk.
In addition, the Commission also found that Leavitt had not
introduced sufficient evidence “about the tenure or prior
disciplinary histories” of the officers in the “comparable” cases,
and therefore it was unable to determine the extent to which the
other cases were (or were not) similar to Leavitt’s.
¶32 We discern no abuse of discretion in the Commission’s
conclusions. The “comparable” information Leavitt presented to
the Commission was insufficient to establish a prima facie
case of inconsistent discipline. As this court has recognized, “[a]
disciplined employee must do more than show that
other employees received lighter punishments for similar
offenses. The disciplined employee must identify employees
in similar circumstances—employees with similar disciplinary
histories and service time, for example—who received
lighter punishments for similar offenses.” Perez v. South Jordan
City, 2014 UT App 31, ¶ 30, 320 P.3d 42; see also Phillips v. South
Jordan City, 2013 UT App 183, ¶ 18, 307 P.3d 659 (rejecting an
employee’s argument that his termination was inconsistent
when the employee failed to include “the performance
histories or length of service . . . which information may
explain or justify the lesser discipline”). Here, Leavitt has
not provided information that we have previously recognized
as being crucial to demonstrate inconsistent discipline, such
as the “disciplinary histories and service time” of the
officers offered as “comparable” examples. See Perez, 2014 UT
App 31, ¶ 30; see also Phillips, 2013 UT App 183, ¶ 18 (recognizing
that “detailed information pertinent to a determination of
whether the circumstances (not just the actions) of other
20170715-CA 17 2019 UT App 70Leavitt v. Salt Lake City Corporation
officer sanctions were similar” is important in determining
whether a sanction is inconsistent). 8
¶33 Moreover, based on the limited “comparable”
information Leavitt did provide, the conduct of the officers in
the other cases appears to be vastly different from Leavitt’s
conduct here. While each was accused of “conduct
unbecoming,” that is a category encompassing such a wide
range of potential conduct that—in this case—mere reference to
an identical charge does not by itself demonstrate similarity. See
Nelson v. Orem City, 2012 UT App 147, ¶ 27, 278 P.3d 1089(“Meaningful disparate treatment can only be found when
similar factual circumstances led to a different result without
explanation.” (quotation simplified)), aff’d, 2013 UT 53, 309 P.3d
237. The conduct exhibited by the officers in the five
“comparable” situations is not similar enough to the incident in
question. None of the “comparable” officers had engaged in
extended verbal altercations, had antagonized and harassed
juveniles, had needlessly escalated a situation that had already
calmed down, had jeopardized officer safety, or had made
repeated comments about wanting to get “rough” with people.
¶34 On this record, we conclude that the Commission’s
determination that Leavitt had failed to carry his burden of
proving disparate treatment was not an abuse of discretion. The
Commission engaged in a thorough analysis of the evidence—
including the “comparable” evidence offered by Leavitt—and
reasonably concluded that Leavitt had not made the required
showing.
8. Leavitt does not contend that he was unable to obtain
information about comparable cases from the City upon request.
Indeed, Leavitt admits that he “sent several letters to the City
asking for ‘comparator’ information” and that the City produced
the information he requested.
20170715-CA 18 2019 UT App 70Leavitt v. Salt Lake City Corporation
C
¶35 Finally, Leavitt contends that the Chief failed to strictly
follow Department procedures in making his disciplinary
decision, and asserts that the Commission abused its discretion
by overlooking those procedural violations. Leavitt identifies
three alleged procedural violations.
¶36 First, Leavitt contends that the Chief failed to comply
with the requirements of an agreement (the MOU) between the
Salt Lake Police Association and the Department setting forth
certain procedural rights that are to be afforded to officers
during an investigation that can result in discipline. Article 15 of
the MOU provides that the “[p]ersons deciding the disposition
of an investigation may not be the person who made the initial
allegation(s), either directly or indirectly.” Leavitt argues that
this article was violated because the Chief—who was ultimately
responsible for deciding Leavitt’s disposition—was also the
person who made the initial complaint. Leavitt alleges that the
Chief “hid[] the fact that [the Chief] was the [original]
complainant” by instructing another officer to sign the form that
“formally” started the investigation. We are not persuaded. As
established by the Commission in its factual findings, which
Leavitt does not contest, a Department lieutenant—not the
Chief—submitted the initial complaint against Leavitt. The
Commission was unwilling to find that the Chief had made the
initial complaint, either directly or indirectly, and Leavitt does
not challenge that finding. Affording appropriate deference to
that finding disposes of Leavitt’s argument: the lieutenant who
submitted the initial complaint was not responsible for making
the final decision to terminate Leavitt’s employment, and there
was therefore no violation of the MOU.
¶37 Second, Leavitt argues that the Chief violated both Salt
Lake City Ordinance 2.72.210 (the Ordinance) and Salt Lake City
Police Department Policy IV-050 (the Policy) by making his final
20170715-CA 19 2019 UT App 70Leavitt v. Salt Lake City Corporation
decision to terminate Leavitt before the Chief had reviewed the
report from a Citizen Review Board (CRB). Both the Ordinance
and the Policy require the Chief to review and consider the CRB
report prior to making a decision about discipline. Leavitt
correctly points out that the Chief violated both the Ordinance
and the Policy inasmuch as he did not review the CRB report—
dated March 9, 2016—prior terminating Leavitt on February 22,
2016. However, Leavitt has not shown how this procedural
infirmity could possibly have been harmful. See Lucas v. Murray
City Civil Service Comm'n, 949 P.2d 746, 754–55 (Utah Ct. App.
1997) (stating that a party asserting procedural violations in this
context must show “how these procedures would have resulted
in a different outcome” had they been followed).
¶38 As an initial matter, it is important to note that, while the
CRB is asked to weigh in on whether it believes the officer in
question violated the relevant standards, it is not asked to offer
any recommendation regarding appropriate punishment.
Moreover, in this case the CRB sustained the allegations against
Leavitt, specifically finding that Leavitt engaged in conduct that
violated the Department’s “conduct unbecoming” policy. Thus,
Leavitt has not shown that it would have made any difference if
the Chief had waited an additional two weeks to review a report
that aligned with his determination as to whether a violation
occurred, and that made no recommendation about discipline.
¶39 Finally, Leavitt points again to the Policy, which
requires that all serious allegations of alleged misconduct
must be investigated by IA, and that, following the conclusion
of the IA investigation, IA’s findings are to be forwarded
to a Bureau Commander for review. In the event the
complaint is sustained, “the Bureau Commander will make a
recommendation of disposition to the Chief.” But it remains
the Chief’s ultimate prerogative to make the final determination
as to the level of discipline. Leavitt correctly points out that
the Policy was not strictly followed because, after IA completed
20170715-CA 20 2019 UT App 70Leavitt v. Salt Lake City Corporation
its investigation, its findings were never sent to an independent
Bureau Commander for review, and an independent
recommendation for discipline was never made. While we
do not condone the failure to strictly follow the Policy, we do
not discern any abuse of discretion on the part of
the Commission in stating that it did “not find [Leavitt’s]
arguments on this point persuasive.” Based on Leavitt’s
testimony at the hearing that he violated the Department and
City policies for which he was charged, as well as the Body Cam
Footage, there is no doubt that IA’s identical finding was
accurate. Moreover, Leavitt fails to identify any specific way in
which this particular procedural infirmity harmed him, since
even if the Bureau Commander had made a disciplinary
recommendation, the Chief was not bound to follow it or even
defer to it; indeed, Leavitt does not contest the fact that, under
applicable law, the Chief alone makes the final decision as to
discipline.
CONCLUSION
¶40 When the Chief made his initial decision about which
punishment to impose upon Leavitt for his admitted violations
of Department policies, he could have selected any one of
several options. For instance, and among other things, he could
have opted to impose a sanction that at least allowed Leavitt to
remain employed—at a desk job, if necessary—for a few more
months until he reached the twenty-year milestone. For well-
articulated reasons, however, the Chief elected to terminate
Leavitt immediately, and the Commission upheld that decision.
Our authority to review this case is circumscribed: the question
presented is not whether we would have done the same thing
had we been in the Chief’s shoes; instead, our review is limited
to consideration of whether the Commission abused its
discretion in upholding the Chief’s decision to terminate Leavitt.
20170715-CA 21 2019 UT App 70Leavitt v. Salt Lake City Corporation
And we discern no such abuse of discretion. Accordingly, we
decline to disturb the Commission’s decision.
20170715-CA 22 2019 UT App 70