Macfarlane v. CSRO , 2019 UT App 133 ( 2019 )

2019 UT App 133THE UTAH COURT OF APPEALS
BRADLEY MACFARLANE,
Petitioner,
v.
CAREER SERVICE REVIEW OFFICE AND
DEPARTMENT OF PUBLIC SAFETY,
Respondents.
Opinion
No. 20180199-CA
Filed August 1, 2019
Original Proceeding in this Court
Bret W. Rawson, Nate N. Nelson, and Jeremy G.
Jones, Attorneys for Petitioner
Sean D. Reyes and Joshua D. Davidson, Attorneys
for Respondent Department of Public Safety
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 After lying to his supervisors about his extramarital
affairs, Bradley Macfarlane lost his position as a training officer
and investigator at Peace Officer Standards and Training (POST),
a division of the Department of Public Safety (DPS). Macfarlane
contends that the agency acted arbitrarily and requests a less
serious sanction than termination. DPS counters that honesty
and integrity are vital to a POST officer’s job duties and that
Macfarlane has lost its trust. The Career Service Review Office
(CSRO) upheld DPS’s decision to dismiss Macfarlane, as do we.
Macfarlane v. CSRO
BACKGROUND 1
POST
¶2 POST is responsible for the training and regulation of
certified law enforcement personnel throughout the state. Its
mission is to “promote and ensure the safety and welfare of
[Utah’s] citizens . . . and provide for efficient and professional
law enforcement by establishing minimum standards and
training for peace officers.” Utah Code Ann. § 53-6-103(3)
(LexisNexis 2015). To that end, POST’s role is to “ensur[e] that
certified individuals meet a minimum level of fitness” and to
“investigate[] allegations regarding those individuals that
implicate [their] certificate.”
¶3 All peace officers are required to be certified, id.§ 53-6-202(4), and officers may have their certification
“suspend[ed] or revoke[d]” for several enumerated reasons, id.
§ 53-6-211(1). Typically, termination of an officer’s employment
does not necessarily suspend or revoke the officer’s certification
unless the termination was for one of the enumerated reasons.
See id. § 53-6-211(5)(a).
¶4 Macfarlane joined POST in 2013 and holds a POST
certification. His job duties at POST included investigating
allegations of misconduct among certified law enforcement
officers and teaching courses on topics such as report writing
and ethics. Immediately before joining POST, Macfarlane
1. “Because the party seeking review of an agency’s order
following a formal administrative proceeding has the burden to
prove that the agency’s factual findings are not supported by
substantial evidence, we state the facts and all legitimate
inferences to be drawn from them in the light most favorable to
the agency’s findings.” WWC Holding Co. v. Public Service
Comm’n of Utah, 2002 UT 23, ¶ 2, 44 P.3d 714.
20180199-CA 2 2019 UT App 133Macfarlane v. CSRO
worked in Summit County as a detective. As a POST employee,
Macfarlane was expected to be “beyond reproach.”
The 2015 Interview
¶5 In the latter part of 2015, Macfarlane’s supervisor at POST
(Director) heard rumors that Macfarlane was having marital
troubles. Director also heard that Macfarlane was having an
affair with a woman named Kay. 2 In a meeting with Macfarlane
(the 2015 Interview), Director asked Macfarlane “if he was
having an extramarital affair with a woman named [Kay].”
Though Macfarlane admitted to an “affair of the heart,” he
truthfully responded “no” to Director’s specific question about a
sexual relationship with Kay. Macfarlane later stated, however,
that he understood that Director “was asking him whether he
was having an affair generally, not specifically [with] one
woman.” And as to that query, Macfarlane did not respond
truthfully. Macfarlane even apologized to another supervisor
(Captain) for “lying to Director” and being “deceptive” during
the 2015 Interview. As put by Macfarlane in a later interview,
“I’m not an idiot. . . . I knew where [Director] was going” with
his question.
Macfarlane’s Affairs
¶6 As it turned out, Macfarlane had affairs with five
women—none of whom were named Kay. One of these women,
Amy, was sexually involved with Macfarlane from November
2014 through late 2015, but they knew each other for a “few
years” before that. In early 2015, Amy called Macfarlane to help
her with a criminal matter she was involved in for writing bad
checks. Macfarlane looked up Amy’s case on a police database
and discovered that the Draper Police Department was handling
2. The names of the women associated with Macfarlane are
changed to preserve their privacy.
20180199-CA 3 2019 UT App 133Macfarlane v. CSRO
the matter and that he knew the detective (Detective) assigned to
the case. He then put Amy in touch with Detective.
¶7 Amy later informed Macfarlane that she resolved her debt
and, with Detective’s assistance, was able to get the charges
against her dismissed. But she also informed Macfarlane that
Detective, after taking her to a restaurant, tried to kiss her in his
patrol car and asked if she wanted to have sex. Amy asked if this
kind of behavior was normal, and Macfarlane responded that he
thought it sounded “predatory” and asked her if she wanted to
file a complaint. Amy declined, and Macfarlane did not record
the incident in POST’s complaint log or notify Detective’s
superiors at the Draper Police Department about what he had
been told.
The Draper Investigation
¶8 Nearly a year later, Macfarlane did tell a sergeant at POST
(Sergeant) about Amy’s incident with Detective. Sergeant
relayed the information to Detective’s supervisor, which
prompted an investigation (the Draper Investigation). The
Deputy Chief at the Draper Police Department (Deputy Chief)
called Sergeant for more information, and Sergeant asked
Macfarlane to contact Deputy Chief and provide what details he
could. After Sergeant made that request, Macfarlane’s
“demeanor changed” and he “appeared extremely nervous.”
Macfarlane asked Sergeant, over and over, “Why did you do
this?” and said, “I’m going to lose my job. I’m going to be in so
much trouble.” Macfarlane explained, “I should have put it on
the complaint log, and I didn’t.”
¶9 Macfarlane then called Deputy Chief, who asked for
identifying information about Amy so that he could investigate
the matter. According to Sergeant, Macfarlane “minimiz[ed] his
knowledge of [Amy]” while “appear[ing] to be helpful.” In
response to Deputy Chief’s inquiry, Macfarlane said that he
knew only Amy’s first name and did not have her telephone
20180199-CA 4 2019 UT App 133Macfarlane v. CSRO
number. He described his interaction with Amy as a “half a
dozen texts, maybe two phone calls, and a face-to-face at the
gym” they both attended. And when asked about Amy’s last
name, Macfarlane said, “It seems to me like it’s a, like a Hispanic
last name, but I can’t recall.”
¶10 Without more information, the Draper Police Department
was unable to find Amy. When Macfarlane asked Sergeant if
they had found Amy, Sergeant responded “no” because they
had only her first name. This answer prompted Macfarlane to
remark how easily he could have found her. On another
occasion, nearly a year after the phone call with Deputy Chief,
Macfarlane came to talk to Sergeant about “how [Macfarlane
was] an awesome detective” and how Deputy Chief “doesn’t
know what he’s doing,” because he should have already found
Amy. Sergeant wondered how the Draper Police Department
should have found Amy with only a “common first name like
that,” and Macfarlane said that “they could have searched
through” his Facebook friends or through her work address.
Sergeant replied, “You never gave her last name,” and
Macfarlane said, “Yes, I did.” Sergeant challenged this assertion 3
and told Macfarlane that “Draper might still be interested in
that” information. Sergeant then asked Macfarlane whether he
was “going to tell them [how to find Amy] today.” Macfarlane
responded, “Not unless they ask.”
¶11 After her conversation with Macfarlane, Sergeant called
Deputy Chief, who was planning to meet with Macfarlane on an
unrelated matter that day. Sergeant suggested that Deputy Chief
ask Macfarlane about Amy because he had more information.
Deputy Chief asked “why . . . Macfarlane sat on this information
for so long,” and Sergeant told him she “did not know.” Deputy
3. The audio recording of the phone call with Deputy Chief
confirms that Macfarlane did not provide Amy’s last name
during the conversation. See supra ¶ 9.
20180199-CA 5 2019 UT App 133Macfarlane v. CSRO
Chief said that he knew “Macfarlane knew more about [Amy]”
than he let on in their earlier phone conversation. On another
occasion, however, Deputy Chief said that he had no issues with
Macfarlane.
¶12 After Macfarlane’s meeting with Deputy Chief,
Macfarlane told Sergeant that “he was able to point out [Amy]
. . . in two seconds” and that “he should be a Deputy Chief
somewhere because it was so easy.” Sergeant asked why he
could not have found Amy last year when Deputy Chief first
asked, and Macfarlane said that he did “not want [Amy] or her
drama in his life.”
The 2017 Interview
¶13 In February 2017, Macfarlane’s supervisors—Director and
Captain—still had concerns about Macfarlane’s work
performance and rumors of his affairs. After interviewing
Macfarlane’s coworkers, who said that Macfarlane was easily
distracted and was often gone from the office for long periods,
Director and Captain interviewed Macfarlane (the 2017
Interview). Director told Macfarlane that he wanted a “very
direct interview” and expected Macfarlane to be “completely
honest.” Captain then gave Macfarlane a written Garrity
warning, which Macfarlane signed.
¶14 A Garrity warning assures officers that their statements
given in a disciplinary interview will not be used against them in
a subsequent criminal prosecution. See Garrity v. New Jersey, 385
U.S. 493, 500 (1967); Kelly v. Salt Lake City Civil Service Comm’n,
2000 UT App 235, ¶ 32 n.9, 8 P.3d 1048. But an officer who
“refuses to respond, or fails to respond truthfully, to questions”
after receiving a Garrity warning is subject to “suspen[sion] or
revo[cation]” of his or her POST certification. Utah Code Ann.
§ 53-6-211(1)(e) (LexisNexis 2015). Indeed, under POST
guidelines, if an officer is untruthful in an interview after
receiving a Garrity warning, the officer’s certification will usually
20180199-CA 6 2019 UT App 133Macfarlane v. CSRO
be revoked. However, it was also POST’s practice at the time
that if an officer initially lied during an interview but told the
truth before the interview ended, POST would not revoke the
officer’s certification based on a Garrity violation.
¶15 Director had not previously used a Garrity warning in
conjunction with a preliminary investigation of DPS employees
for disciplinary matters. But Director decided that a Garrity
warning was warranted in this situation because he “didn’t have
time for someone to decide if they were going to tell . . . the
truth. [He] needed it right away.” Director also wanted to
protect Macfarlane from criminal liability because he “did not
know what was going to come out” during the interview based
on Macfarlane’s “history” and “past conduct.”
¶16 Macfarlane was questioned about a number of topics: an
inappropriate Facebook post; a high-speed pursuit in which
Macfarlane tried to get involved; Macfarlane’s time away from
the office; and, finally, allegations of extramarital affairs. 4 For
approximately twenty minutes, Macfarlane “created detailed
denials” to his supervisors’ inquiries about alleged affairs with
specific women. Macfarlane also texted his wife during the
interview. Macfarlane and his wife had previously decided that
“they would lie about [his] affairs should the need arise.” But
after receiving a text from his wife that it “was up to him”
whether he wanted to divulge the affairs, Macfarlane’s “story
changed.” Before the interview ended, he admitted to having
affairs with five women, including women “he had specifically
denied having affairs with previously.”
4. According to Director, the “main reason for asking about
affairs was to determine whether it was on or off duty because
[on-duty affairs] would fall under [POST’s] jurisdiction to
investigate.” See Utah Code Ann. § 53-6-211(1)(f) (LexisNexis
2015).
20180199-CA 7 2019 UT App 133Macfarlane v. CSRO
¶17 Macfarlane apologized to Director for not initially telling
the truth but explained that he wanted to tell his wife first that
he would be revealing his affairs. Macfarlane said he knew that
his conduct reflected poorly on POST and “disrupt[ed] [its]
trust.” Director then informed Macfarlane that the Office of
Professional Standards, otherwise known as Internal Affairs
(IA), would likely investigate.
IA and the Decision to Terminate
¶18 IA has the responsibility “to investigate allegations of
misconduct” on behalf of DPS employees and “to protect the
good name” of DPS and its divisions. Whereas POST
investigates an officer’s certification, IA investigates “particular
policy violations that relate to” DPS more broadly.
¶19 IA was directed to conduct a “Category I” investigation of
Macfarlane. 5 In a final written report, IA found that “Macfarlane
created a conflict of interest” with regard to the Draper
Investigation and “was less than forthright with his supervisors
when asked about his relationships with other women.”
¶20 Following IA’s investigation and report, DPS gave
Macfarlane its notice of intent to terminate his employment. DPS
identified four of its policies that it believed Macfarlane
violated. 6 The factual bases for its belief included that
(1) Macfarlane omitted information and misled his supervisors
about his extramarital affairs, (2) Macfarlane omitted
5. Category I investigations are reserved for violations “of a
more serious nature . . . that generally involve moral turpitude
issues, honesty issues, and allegations of criminal conduct.”
6. The identified policies generally proscribe dishonesty or
conduct that jeopardizes the public trust, whether an officer is on
or off duty.
20180199-CA 8 2019 UT App 133Macfarlane v. CSRO
information and misled another law enforcement agency in the
Draper Investigation, and (3) Macfarlane compromised the
integrity of POST and DPS.
¶21 Director told Macfarlane that termination, rather than a
less serious sanction such as a transfer, was warranted. Director
could not transfer Macfarlane out of POST because Macfarlane
“had not gone through the requirements that other certified
officers had to go through.” 7 Director also was not comfortable
transferring Macfarlane within POST from investigation to
training, “because [Director] worried about [Macfarlane]
working closely with young recruits” and “was concerned that
[Macfarlane] would be unable to teach the ethics and codes of
conduct with any credibility.” Finally, Director could not keep
Macfarlane as an investigator “due to [his] pattern of
falsehoods.”
¶22 DPS’s Commissioner (Commissioner), who ultimately
had the final say on Macfarlane’s sanction, likewise determined
that termination was appropriate. Commissioner looked for
“comparable cases [that] were on-point with [Macfarlane’s]
conduct” to determine the proper discipline. The human
resource department produced several cases, but Commissioner
concluded that none were comparable to Macfarlane’s situation.
He considered Macfarlane’s actions “especially severe in that he
withheld information from another law enforcement agency,
and . . . had a negative effect on POST’s operations.” Although
DPS tries to use “progressive discipline,” Commissioner
“believed [Macfarlane’s] misconduct was sufficiently egregious
to justify dismissal.” Macfarlane then appealed his termination
to the CSRO.
7. Macfarlane came to POST directly after being a detective in
Summit County. He therefore had not received the same training
that other officers receive through the Utah Highway Patrol.
20180199-CA 9 2019 UT App 133Macfarlane v. CSRO
The CSRO Proceedings
¶23 The issue before the CSRO was whether there was “a
basis in law and fact to support [DPS’s] decision to dismiss
[Macfarlane].” The CSRO concluded that DPS “had substantial
evidence on which to base its decision.”
¶24 Noting its own restricted role in reviewing agency action,
the CSRO concluded that DPS “carried its burden” in showing
that dismissal was warranted. The CSRO found that “POST
required adherence to the highest ethical standards” and that
Macfarlane “failed to cooperate with a separate law enforcement
agency”; “repeatedly lied to his supervisors”; “failed to
volunteer information he had, or easily could have obtained”;
and “only eventually revealed the truth” after being pressured.
All in all, the CSRO determined that DPS “took appropriate
action after being confronted with extensive evidence that
[Macfarlane] had violated DPS and POST policies and rules, and
harmed (or potentially harmed) the credibility and reputation of
a Division which needs to operate at the highest standards if it is
to have any credibility at all.”
¶25 The CSRO also rejected Macfarlane’s contention that
POST had abused its prior Garrity practice. Macfarlane asserted
that he did not “lie under Garrity,” and therefore should not
have been punished, because he was eventually truthful in the
2017 Interview. The CSRO reasoned that “[i]f . . . POST[] had
attempted to take action against [Macfarlane’s] POST
certification . . . , that argument might be compelling.” But the
CSRO determined that that “is not what happened”; POST did
not take action against Macfarlane’s certification but only
became concerned that Macfarlane “had lied to them for some
time” and “had violated a number of DPS and POST policies and
rules.” POST then referred the matter to IA for an investigation,
which confirmed that Macfarlane had violated a number of DPS
policies.
20180199-CA 10 2019 UT App 133Macfarlane v. CSRO
¶26 Finally, the CSRO went through the proportionality
factors set forth in Ogden City Corp. v. Harmon, 2005 UT App 274,
116 P.3d 973, and concluded that DPS’s “decision to dismiss
[Macfarlane] was not disproportionate to his conduct.”
Specifically, the CSRO concluded that the following factors
weighed in favor of DPS’s decision: (1) Macfarlane was
“dishonest”; (2) Macfarlane’s violations were “directly related to
[his] official duties and significantly impede[d] his . . . ability to
carry out those duties”; (3) Macfarlane’s offenses were “of a type
that adversely affects the public confidence in the department”;
(4) Macfarlane’s offenses “undermine[d] the morale and
effectiveness of the department”; and (5) Macfarlane’s offenses
were “committed willfully or knowingly, rather than negligently
or inadvertently.” (Quoting factors (3), (6), (7), (8), and (9) from
Burgess v. Department of Corr., 2017 UT App 186, ¶ 38, 405 P.3d
937.)
¶27 Macfarlane now petitions this court for review of the
CSRO’s decision upholding his dismissal from POST.
ISSUES AND STANDARDS OF REVIEW
¶28 Macfarlane raises three issues. First, he contends that the
CSRO lacked substantial evidence on “two core findings”
supporting DPS’s decision to terminate his employment: that he
was dishonest with Director in the 2015 Interview and that he
did not cooperate in the Draper Investigation. Second,
Macfarlane contends that the CSRO erred in concluding that
POST did not violate its prior practice regarding Garrity
interviews. Finally, he contends that the CSRO failed to make
adequate findings on the proportionality and consistency of
DPS’s decision to terminate.
¶29 This court’s authority to review the CSRO’s decision is
derived from the Administrative Procedures Act (Act). Utah
Code Ann. § 63G-4-403(1) (LexisNexis 2016); Burgess v.
20180199-CA 11 2019 UT App 133Macfarlane v. CSRO
Department of Corr., 2017 UT App 186, ¶ 14, 405 P.3d 937. That
Act provides that we may grant relief only if we determine that a
petitioner “has been substantially prejudiced” by, among other
things, (1) the agency acting contrary to its prior practice or
(2) the agency basing its action upon a factual determination
“that is not supported by substantial evidence when viewed in
light of the whole record before the court.” Utah Code Ann.
§ 63G-4-403(4)(g), (h)(iii).
¶30 As the Act itself suggests, we review a challenge to the
CSRO’s findings of fact to determine whether substantial
evidence supported POST’s allegations. Id. § 63G-4-403(4)(g);
Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242.
And we review claims that an agency decision is contrary to the
agency’s prior practice to determine if the agency’s explanation
for its action is reasonable and rational. 8 Utah Code Ann.
§ 63G-4-403(4)(h)(iii); Benson v. Peace Officer Standards & Training
Council, 2011 UT App 220, ¶ 11, 261 P.3d 643.
¶31 As for Macfarlane’s adequacy-of-the-findings challenge,
an agency’s findings “should be sufficiently detailed to disclose
the steps by which the ultimate factual conclusions, or
8. Macfarlane argues for a correctness standard for POST’s
alleged deviation from prior practice. His argument misses the
mark. He relies on Pickett v. Utah Department of Commerce, 858
P.2d 187 (Utah Ct. App. 1993), for the proposition that challenges
under Utah Code section 63G-4-403(4)(h)(iii) (contrary to prior
practice) are reviewed for correction of error. But in Pickett, we
applied the correctness standard only to our review of the
agency’s interpretation of that section of the Act, explaining that
our review of the agency’s explanation for its deviation from prior
practice “will be on the basis of ‘reasonableness and
rationality.’” Id. at 191 (quoting SEMECO Indus., Inc. v. Auditing
Div. of the Utah State Tax Comm’n, 849 P.2d 1167, 1174 (Utah 1993)
(Durham, J., dissenting)); see also id. at 191 n.8.
20180199-CA 12 2019 UT App 133Macfarlane v. CSRO
conclusions of mixed fact and law, are reached.” Milne Truck
Lines, Inc. v. Public Service Comm’n of Utah, 720 P.2d 1373, 1378
(Utah 1986).
ANALYSIS
I. The CSRO’s findings are supported by substantial evidence.
¶32 Macfarlane contends that the CSRO lacked substantial
evidence for two findings: (A) that he was dishonest with
Director in the 2015 Interview and (B) that he did not cooperate
with the Draper Investigation.
¶33 “‘Substantial evidence’ is that quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” First Nat’l Bank of Boston v. County
Board of Equalization of Salt Lake County, 799 P.2d 1163, 1165 (Utah
1990). “It is more than a mere scintilla of evidence and
something less than the weight of the evidence.” Burgess v.
Department of Corr., 2017 UT App 186, ¶ 16, 405 P.3d 937 (cleaned
up). “In determining whether substantial evidence supports [the
CSRO’s] decision we will consider all the evidence in the record,
both favorable and contrary, and determine whether a
reasonable mind could reach the same conclusion as the [CSRO].”
See Pen & Ink, LLC v. Alpine City, 2010 UT App 203, ¶ 16, 238 P.3d
63 (emphasis added) (cleaned up). And in reviewing the CSRO’s
findings, we do not “reweigh the evidence.” Lucas v. Murray City
Civil Service Comm’n, 949 P.2d 746, 758 (Utah Ct. App. 1997).
Moreover, “we defer to the [CSRO’s] findings on issues of
credibility.” Id.¶34 As we defer to the CSRO, we note that the CSRO must
likewise defer to the agency. See Sorge v. Office of Att’y Gen., 2006
UT App 2, ¶ 22, 128 P.3d 566. The CSRO “is restricted to
determining whether there is factual support for the [agency’s]
charges against a grievant.” Id. (cleaned up). Under these
20180199-CA 13 2019 UT App 133Macfarlane v. CSRO
standards, we examine whether the CSRO’s two core findings
are supported by substantial evidence.
A. There is substantial evidence that Macfarlane was
dishonest in the 2015 Interview.
¶35 In the 2015 Interview, Director asked Macfarlane about an
extramarital affair with Kay. Macfarlane asserts that he “was
honest in his response to the specific question he was asked” and
that the CSRO erred in finding otherwise. He reasons that, in
effect, the CSRO “determined that [he] was dishonest because he
knew or should have known what was being asked of him, even
though he was not actually asked about affairs generally.”
Further, Macfarlane cautions that “[i]f an agency can simply re-
cast questioning after the fact and assert that an officer should
have known what [the questioner was] really getting at[,] merit
employee protections would become meaningless.” (Cleaned
up.)
¶36 There is some force to this argument. Indeed, answering a
specific question honestly would not normally serve as grounds
for a finding of general dishonesty. But Macfarlane ignores a
unique fact in this case: he admitted to Director and Captain that
he “l[ied] to Director” and was “deceptive” during the 2015
Interview. Macfarlane told Director that he knew Director “was
asking him whether he was having an affair generally, not
specifically [with Kay].” Macfarlane also apologized to Captain
for “lying to Director” and being “deceptive” in the 2015
Interview. And in his interview with IA investigators, he said,
“I’m not an idiot . . . I knew where [Director] was going” with
his questioning. We do not decide whether there would be
substantial evidence of dishonesty in the 2015 Interview absent
Macfarlane’s explicit and numerous admissions of deceit. But
given the unique facts here, we conclude that “a reasonable
mind could” conclude that Macfarlane was dishonest with
Director in the 2015 Interview and that substantial evidence
20180199-CA 14 2019 UT App 133Macfarlane v. CSRO
therefore supports the CSRO’s finding. See Pen & Ink, 2010 UT
App 203, ¶ 16 (cleaned up).
B. There is substantial evidence that Macfarlane failed to
cooperate in the Draper Investigation.
¶37 Macfarlane next contends that the CSRO erred in finding
that he “failed to cooperate” with the Draper Investigation.
According to Macfarlane, Sergeant had only “speculation and
conjecture” that Macfarlane minimized his knowledge of Amy
and could have found her sooner. And Macfarlane views as
“dispositive” Deputy Chief’s belief that Macfarlane had been
helpful in the investigation.
¶38 The CSRO found that “it defies belief that [Macfarlane]
could not have assisted [Deputy Chief] more in his efforts to
locate [Amy] or at least recalled her surname. [Macfarlane] was
aware that another law enforcement agency was attempting [to]
locate a witness, and [he] did not cooperate.” We do not
“reweigh the evidence” and instead “defer to the [CSRO’s]
findings on issues of credibility.” See Lucas v. Murray City Civil
Service Comm’n, 949 P.2d 746, 758 (Utah Ct. App. 1997).
¶39 In our view, there is ample evidence that Macfarlane did
not cooperate in the Draper Investigation. The Draper Police
Department was unable to find Amy for nearly a year. But
Macfarlane was able to locate her “in two seconds” once
Sergeant informed Deputy Chief that Macfarlane had more
information. Macfarlane repeatedly bragged about how easily he
could have found Amy but chose not to because he did “not
want [Amy] or her drama in his life.” And in his phone call with
Deputy Chief, Macfarlane claimed not to know the last name, or
any other identifying information, of a woman he had been
friends with for years and with whom he had had an affair for
approximately one year. Further, Deputy Chief’s subjective
belief that Macfarlane had been helpful in the investigation does
not weigh any heavier than Sergeant’s belief, supported by clear,
20180199-CA 15 2019 UT App 133Macfarlane v. CSRO
reasonable inferences, that Macfarlane withheld information for
personal reasons. See id. After all, Deputy Chief may have
perceived Macfarlane as cooperative, but he was not privy to
Macfarlane’s conversations with Sergeant, which suggested that
Macfarlane knowingly withheld information. We therefore
conclude that the CSRO had substantial evidence that
Macfarlane did not cooperate in the Draper Investigation. See
Pen & Ink, 2010 UT App 203, ¶ 16.
II. POST did not violate its prior Garrity practice, and even if it
did, Macfarlane has not shown harm.
¶40 Macfarlane next contends that POST violated its prior
practice regarding Garrity interviews. He asserts that “POST’s
prior practice regarding Garrity interviews was undisputed:
should an officer make misstatements but subsequently clarify
those misstatements before the conclusion of the interview, the
officer was not determined to have lied.” Because Macfarlane
was truthful by the end of the 2017 Interview, he argues that his
termination was unlawful.
¶41 We disagree. It is Macfarlane’s burden to demonstrate a
prima facie case that POST acted contrary to prior practice. See
Taylor v. Department of Commerce, 952 P.2d 1090, 1094–95 (Utah
Ct. App. 1998). Macfarlane has not met his burden. He claims
that POST’s prior practice was that no one would be terminated
for lying under Garrity if the individual was eventually
forthright. But the evidence on this score draws a more nuanced
picture. What the CSRO found is that if an officer is eventually
truthful, POST will not seek to revoke the officer’s certification.
The evidence Macfarlane points to in the record confirms the
CSRO’s understanding. 9 Here, POST did not take action against
9. Captain testified that “[i]f [officers] tell the truth in a Garrity
interview before the end of that interview, there are no charges
for violating Garrity that are brought forth” and clarified that by
(continued…)
20180199-CA 16 2019 UT App 133Macfarlane v. CSRO
Macfarlane’s certification. See Utah Code Ann. § 53-6-211(1)(e)
(LexisNexis 2015). Thus, once the relevant practice is accurately
described, it is clear Macfarlane was not treated contrary to
POST’s prior practice. And the CSRO did not err in so
concluding.
¶42 But even if Macfarlane’s broad conception of POST’s prior
practice is right—in other words, that no one would be found in
violation of department policy for lying in the course of a Garrity
interview as long as one was truthful by the end—he has not
shown that he was harmed by any inconsistent treatment. As
explained above, we may grant relief from final agency action
that is “contrary to the agency’s prior practice” only if the
petitioner seeking judicial review “has been substantially
prejudiced” by that agency action. See id. § 63G-4-403(4)(h)(iii)
(2016); supra ¶ 29. “A person is substantially prejudiced when
the agency’s [inconsistent action] is not harmless.” See Petersen v.
Utah Labor Comm’n, 2017 UT 87, ¶ 8, 416 P.3d 583 (cleaned up).
“An error will be harmless if it is sufficiently inconsequential
that there is no reasonable likelihood that the error affected the
outcome of the proceedings.” Smith v. Department of Workforce
Services, 2010 UT App 382, ¶ 17, 245 P.3d 758 (cleaned up); see
also Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (noting
that the party seeking review “has the burden of demonstrating
[that] an error was prejudicial” (cleaned up)).
¶43 Macfarlane again does not meet his burden. Though he
recognizes the burden placed on him to show harm, he makes no
argument to support the conclusion that if the supervisors did
(…continued)
“charges” he meant “no action on their certification.” Director
similarly testified that Macfarlane did not “l[ie] under Garrity”
but that he “still lied to [him], which is a violation of [DPS]
policy.” Macfarlane asserts that this testimony represents “a
consistent and singular Garrity practice.” Indeed it does.
20180199-CA 17 2019 UT App 133Macfarlane v. CSRO
not deem him to have lied in the 2017 Interview he would not
have been terminated. And we cannot conclude that it is
reasonably likely that POST would not have terminated
Macfarlane’s employment if it did not factor Macfarlane’s
untruths in the Garrity interview into the equation. See Smith,
2010 UT App 382, ¶ 17. After all, the most important evidence to
Commissioner—what he found “especially severe”—is that
Macfarlane “withheld information from another law
enforcement agency, and . . . had a negative effect on POST’s
operations.” See supra ¶¶ 37–39. Further, Macfarlane was
dishonest in other ways. For example, he planned with his wife
to lie about his affairs should it ever be necessary, and
Macfarlane admitted to dishonesty during his conversation with
Director in the 2015 Interview. Thus, even assuming Macfarlane
was treated contrary to POST’s prior practice under Garrity, he
has not demonstrated that POST’s actions substantially
prejudiced him.
III. The CSRO’s findings are adequate.
¶44 Macfarlane finally contends that the CSRO “failed to
make adequately detailed findings regarding proportionality
and consistency” of the decision to terminate. This argument
thus focuses not so much on the substance of whether his
termination was proportional and consistent but rather on
whether the CSRO made adequate findings to support that
conclusion. He contends that the CSRO merely “asserted that
five [proportionality] factors weighed against [him] but did not
explain why or how.”
¶45 “An administrative agency must make findings of fact
and conclusions of law that are adequately detailed so as to
permit meaningful [judicial] review.” Bailey v. Retirement Board,
2012 UT App 365, ¶ 15, 294 P.3d 577 (cleaned up). “For [courts]
to meaningfully review an agency’s findings, the findings must
be sufficiently detailed and include enough subsidiary facts to
20180199-CA 18 2019 UT App 133Macfarlane v. CSRO
disclose the steps by which the ultimate conclusion on each
factual issue was reached.” Id. (cleaned up).
¶46 Here, the CSRO listed the Harmon factors and stated that
“[b]ased upon the testimony and documents in the record, . . .
[DPS’s] decision to dismiss [Macfarlane] was not
disproportionate to his conduct.” See generally Ogden City Corp. v.
Harmon, 2005 UT App 274, 116 P.3d 973. It then found that five
of the Harmon factors, which are used to judge proportionality,
“weigh[ed] against [Macfarlane], and support[ed DPS’s] decision
to dismiss his employment.” Specifically, the CSRO found
(1) that Macfarlane was “dishonest,” (2) that his violations were
“directly related to [his] official duties,” (3) that his actions
“adversely affect[ed] the public confidence,” (4) that he
“undermine[d] the morale and effectiveness of the department,”
and (5) that his offenses were “committed willfully or
knowingly.” (Quoting Burgess v. Department of Corr., 2017 UT
App 186, ¶ 38, 405 P.3d 937.)
¶47 We have no difficulty in reviewing these findings. With
respect to dishonesty (finding 1), the CSRO found, and we have
already concluded substantial evidence supports, that
Macfarlane was dishonest with Director in the 2015 Interview.
Supra ¶¶ 35–36. With respect to whether Macfarlane’s violation
related to his official duties (finding 2), the CSRO’s findings
establish that Macfarlane obstructed the Draper Investigation
due to a conflict of interest arising from his extramarital affair
with Amy. With respect to whether Macfarlane’s actions
adversely affected public confidence (finding 3), the CSRO
explained that “POST employees need[] to hold themselves to a
higher standard and be above reproach” and that Macfarlane
“harmed (or potentially harmed) the credibility and reputation
of [a] Division which needs to operate at the highest standards if
it is have any credibility at all.” With respect to whether
Macfarlane undermined the morale and effectiveness of POST
(finding 4), the CSRO noted that Director was “worried about
[Macfarlane] working closely with young recruits” and could
20180199-CA 19 2019 UT App 133Macfarlane v. CSRO
not use Macfarlane as either an investigator or a trainer. Finally,
with respect to whether Macfarlane’s offenses were willful or
knowing (finding 5), the CSRO noted that Macfarlane and his
wife “had already agreed to lie about [his affairs] if the situation
arose.” Thus, the CSRO’s findings are adequate to permit
meaningful judicial review, and we need not instruct the CSRO
to revisit its findings. See Bailey, 2012 UT App 365, ¶¶ 15–16.
CONCLUSION
¶48 There is substantial evidence that Macfarlane was
dishonest with Director in the 2015 Interview and failed to
cooperate with another agency’s investigation due to a conflict of
interest. Next, Macfarlane has not demonstrated that POST
violated its prior practice when it terminated him. And even if
POST did treat Macfarlane differently from other similarly
situated employees, Macfarlane has not shown any harm from
any inconsistent treatment. Lastly, the CSRO’s findings are
adequate to permit meaningful judicial review. We therefore
decline to disturb the CSRO’s decision upholding the
termination of Macfarlane’s employment.
20180199-CA 20 2019 UT App 133