Demill v. Peace Officer Standards , 2023 UT App 56 ( 2023 )

2023 UT App 56THE UTAH COURT OF APPEALS
RON DEMILL,
Petitioner,
v.
PEACE OFFICER STANDARDS AND TRAINING COUNCIL,
Respondent.
Opinion
No. 20210217-CA
Filed May 25, 2023
Original Proceeding in this Court
Jeremy G. Jones and Richard R. Willie,
Attorneys for Petitioner
Sean D. Reyes, Catherine F. Jordan, and
Stephen W. Geary, Attorneys for Respondent
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY
concurred. 1
ORME, Judge:
¶1 During an interview regarding alleged policy violations,
Utah corrections officer Ron Demill spontaneously admitted to
interviewers from the Utah Department of Corrections (the UDC)
that he masturbated in a staff restroom while on duty at a prison
operated by the UDC. Based on his admission, the Utah
Department of Public Safety, Division of Peace Officer Standards
and Training (POST), pursued administrative disciplinary action
against Demill, asserting that his actions violated Utah law. The
POST Council (the Council) ultimately adopted the
recommendation that Demill’s peace officer certification be
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Demill v. Peace Officer Standards and Training Council
suspended for three and a half years. Demill argues that his
actions were protected by a constitutional right to privacy,
recognized in the Utah Administrative Code and in Lawrence v.
Texas, 539 U.S. 558 (2003). For the reasons explained below, we
decline to disturb the Council’s decision.
BACKGROUND
¶2 In early 2019, the UDC initiated an internal administrative
investigation and twice interviewed Demill regarding “an
allegation of lewdness while at work.” During one of the
interviews, Demill was asked whether he had ever masturbated
in front of a female co-worker or anyone else while at work. He
answered the question in the negative. But then he volunteered
that “there were frequent occasions where he would get so turned
on by ‘flirty’ conversations with female co-workers that he would
retreat into a staff restroom and masturbate to relieve himself.”
The interviewers did not address Demill’s comment, nor did they
ask any follow-up questions.
¶3 As a result of the interviews and Demill’s spontaneous
comment, the UDC sustained an allegation of unprofessional
behavior and consequently issued Demill a letter of reprimand.
Following issuance of the letter, Demill retained his position with
the UDC.
¶4 In January 2020, POST filed its case against Demill, alleging
that “[b]etween 2016 and 2019, Ron Demill violated Utah Code
Ann. § 53-6-211(1)(e) by engaging in sexual conduct while on duty
(masturbating in the staff restroom).” 2 Based on the “facts and
2. At the time of Demill’s administrative disciplinary proceeding,
the specific provision of Utah law that POST believed Demill had
violated appeared in Utah Code section 53-6-211(1)(f). It stated
that a peace officer’s certification could be revoked “if the peace
(continued…)
20210217-CA 2 2023 UT App 56Demill v. Peace Officer Standards and Training Council
allegations contained in the . . . Notice of Agency Action,” POST
recommended that Demill’s “peace officer certification be
suspended for a period of four years.” In response, Demill
requested that the allegations against him be dismissed, and he
requested a formal hearing before an administrative law judge
(the ALJ).
¶5 At the hearing conducted by the ALJ, Demill did not
contest his earlier admission about masturbating in a staff
restroom. 3 He instead contended that given the express
incorporation of Lawrence v. Texas, 539 U.S. 558 (2003), into the
applicable administrative rule, see Utah Admin. Code
R728-409-4(2)(b) (“The division may not investigate conduct that
is limited to . . . sexual activity protected under the right of privacy
recognized by the United States Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003).”), “there’s no legitimate reason why
what somebody does in a private bathroom should be constrained
by the State.” Demill argued that based on the United States
Supreme Court’s holding in Lawrence, “[t]here would have to be a
legitimate State interest . . . forwarded in order for the State to
apply the sexual conduct statute to someone doing something in
private by themselves in a bathroom.” Demill next contended that
officer . . . engages in sexual conduct while on duty.” The
provision has since, without any substantial change, been moved
to subsection 211(1)(e). Compare Utah Code Ann. § 53-6-211(1)(e)
(LexisNexis Supp. 2022), with id. § 53-6-211(1)(f) (2015). We cite the
current version of the annotated code for convenience and
likewise have changed quotations to reflect the current subsection
structure without indicating modification.
3. Although the restroom was available to all staff members, once
a person was inside, the external door could be locked, ensuring
a measure of privacy to the occupant. In other words, this was not
a multi-stall shared restroom accessible to more than one
employee at a time.
20210217-CA 3 2023 UT App 56Demill v. Peace Officer Standards and Training Council
even if there was a discernible State interest, the applicable
administrative rule’s definition of sexual conduct “contemplates
the touching of any person” and thus provides for the implicit
involvement of more than one person. See Utah Admin. Code
R728-409-3(2)(f)(i) (“‘Sexual conduct’ means . . . the touching of
the anus, buttocks or any part of the genitals of a person . . . with
the intent to arouse or gratify the sexual desire of any person
regardless of the sex of any participant[.]”). Demill lastly
contended that the interview questions were improper and that
such questions must be “narrowly tailored” and “related to the
job duties of the person being questioned.” See generally Garrity v.
New Jersey, 385 U.S. 493, 499–500 (1967) (holding that a state
cannot “use the threat of discharge to secure incriminatory
evidence against an employee”).
¶6 Following the hearing, the ALJ entered findings of fact and
conclusions of law. The ALJ found that “Demill [was] a POST
certified officer and at all times relevant to this case was working
as a corrections officer for the [UDC].” The ALJ also found that
“[i]n his interview with the [UDC] investigator, Demill
spontaneously admitted to masturbating in a prison bathroom
stall while at work sometime between 2016 and 2019.” Based on
these findings, the ALJ concluded that “[t]he charge that between
2016 and 2019, Demill violated Utah Code Ann. § 53-6-211(1)(e)
by engaging in sexual conduct while on duty (masturbating in
restroom) is proven by clear and convincing evidence.”
¶7 In reaching this conclusion, the ALJ addressed two
principal issues: first, whether Demill’s admission was legally
sufficient to support the conclusion under the clear and
convincing evidence standard, and second, whether Demill’s
conduct violated Utah law. See Utah Code Ann. § 53-6-211(1)(e)
(LexisNexis Supp. 2022) (stating that a peace officer’s certification
can be revoked “if the peace officer . . . engages in sexual conduct
while on duty”).
20210217-CA 4 2023 UT App 56Demill v. Peace Officer Standards and Training Council
¶8 The ALJ first noted that he had not considered any
independent evidence regarding Demill’s admission because
none had been submitted. The ALJ explained that he considered
the credibility of Demill’s admission under the trustworthiness
standard adopted by State v. Mauchley, 2003 UT 10, ¶¶ 51–52, 67
P.3d 477, and ultimately determined that Demill’s admission was
credible. 4
¶9 The ALJ next considered whether Demill’s admitted
conduct violated Utah law. See Utah Code Ann. § 53-6-211(1)(e).
The ALJ undertook a two-part analysis considering, first, whether
masturbation qualified as “sexual conduct,” and second, if it did,
whether Demill’s sexual conduct occurred while he was on duty.
The ALJ considered Demill’s argument that the definition of
sexual conduct in the applicable rule necessarily implied the
involvement of two or more persons. Again, that rule defines
“Sexual conduct,” in relevant part, as “the touching of the anus,
buttocks or any part of the genitals of a person . . . with the intent
to arouse or gratify the sexual desire of any person regardless of
4. POST adjudication proceedings, like administrative
proceedings in general, are civil in nature. See Utah Code Ann.
§ 53-6-211(3)(c) (LexisNexis Supp. 2022) (“All adjudicative
proceedings under this section are civil actions, notwithstanding
whether the issue in the adjudicative proceeding is a violation of
statute that may be prosecuted criminally.”). While Demill’s
statement about masturbating while on duty would appear to be
readily admissible under Utah’s rules of evidence, see Utah R.
Evid. 801(d)(2)(A) (stating that a statement that “is offered against
an opposing party and . . . was made by the party” is not hearsay),
the ALJ, apparently out of an abundance of caution, nonetheless
analyzed the admissibility of Demill’s statement under State v.
Mauchley, 2003 UT 10, 67 P.3d 477, which is normally used to
establish the trustworthiness of confessions in criminal cases. The
ALJ acknowledged that Mauchley “is based on criminal law and
therefore not directly on point.”
20210217-CA 5 2023 UT App 56Demill v. Peace Officer Standards and Training Council
the sex of any participant.” Utah Admin. Code R728-409-3(2)(f)(i).
The ALJ concluded, “There is no language in this definition
which, under a plain reading, cannot apply to either an individual
alone and/or sexual conduct involving two or more persons.”
Based on that conclusion, the ALJ next considered whether
Demill’s activity could be regarded as having occurred while he
was on duty. Because Demill admitted that his conduct took place
in a staff restroom on Utah State Prison premises, the ALJ
determined that Demill’s conduct clearly occurred while he was
on duty. See id. R728-409-3(2)(b)(iii) (“‘On duty’ means that a
respondent is,” among other things, “on the property of a law
enforcement facility, correctional facility or dispatch center[.]”).
Therefore, the ALJ concluded—based on Demill’s own
admission—that Demill had engaged in sexual conduct while on
duty and had thus violated Utah law.
¶10 The ALJ next considered Demill’s alternative legal
argument regarding the propriety of the interview questions and
whether they were sufficiently tailored and focused on “the
conduct being investigated.” The ALJ determined that because
Demill volunteered his admission about masturbating while on
duty, without being prompted, and because he was not
questioned further by the interviewers about the conduct
described in his admission, the interviewers’ questions were not
overly broad.
¶11 Finally, the ALJ addressed Demill’s argument concerning
the applicability of Lawrence v. Texas, 539 U.S. 558 (2003),
specifically referred to in the applicable administrative rule, see
Utah Admin. Code R728-409-4(2)(b), and whether Demill had a
constitutional right to privacy under the circumstances. The ALJ
explained that “the clear holding of [Lawrence] is not on point with
the facts of this case” because that case “involves sexual conduct
in the home—not the workplace,” which “is not an insignificant
difference and differentiates this case from the exception carved
out by the reference to the Lawrence case in the administrative
20210217-CA 6 2023 UT App 56Demill v. Peace Officer Standards and Training Council
rule.” The ALJ noted the general lack of case law expanding the
applicability of Lawrence to private places outside of the home and
considered whether he could extend Lawrence to include privacy
in a workplace setting, specifically a workplace restroom. The ALJ
concluded that expanding the constitutional privacy rights
recognized in Lawrence from the home context to a workplace
restroom “are questions for the courts, not an administrative
adjudication.” The ALJ added that “[t]he limited purpose of this
proceeding is for the ALJ ‘to determine whether there is sufficient
evidence to find that [Demill] engaged in conduct alleged in the
Notice of Agency Action’” and whether that conduct was
actionable. The ALJ noted that he had “no specific or implied
grant of authority to extend the parameters of existing civil rights
law or to declare statutes or rules unconstitutional.” Thus, the ALJ
did not further engage with Demill’s constitutional argument.
¶12 Based on his analysis outlined above, the ALJ ultimately
determined that POST proved by clear and convincing evidence
that Demill had violated Utah law when he engaged in sexual
conduct while on duty. The ALJ further ordered that Demill’s case
“should be placed on the next available agenda to be heard by the
. . . Council.” Following the issuance of the ALJ’s order, Demill
petitioned for permission to appeal the order to this court and
moved to stay the Council’s hearing of the matter pending the
outcome of his petition. But Demill’s petition was denied, 5 and his
case was placed on the Council’s agenda.
¶13 At the hearing before the Council, Demill appeared with
his attorney. The Council accepted the ALJ’s specific findings of
fact and conclusions of law and sustained and adopted the ALJ’s
recommendation to suspend Demill’s peace officer certification
5. Interlocutory review of non-final administrative decisions is not
authorized by the Utah Rules of Appellate Procedure. See Utah R.
App. P. 18.
20210217-CA 7 2023 UT App 56Demill v. Peace Officer Standards and Training Council
for three and a half years. Demill then petitioned for judicial
review.
ISSUE AND STANDARD OF REVIEW
¶14 Demill raises one issue. He contends the ALJ and the
Council erred in concluding that, in Utah, the authority to address
constitutional issues is solely reserved for the courts. We apply
the “correction-of-error standard,” granting no deference to
agency decisions in our review of general questions of law.
Associated Gen. Contractors v. Board of Oil, Gas & Mining, 2001 UT
112, ¶ 18, 38 P.3d 291 (quotation simplified). “General questions
of law include constitutional questions, rulings concerning an
agency’s jurisdiction or authority, interpretations of common law
principles, and interpretations of statutes unrelated to the
agency.” Id. (quotation simplified).
ANALYSIS
¶15 Demill asserts that “he has been substantially prejudiced”
because the ALJ and the Council “erroneously interpreted or
applied the law.” See Utah Code Ann. § 63G-4-403(4)(d)
(LexisNexis 2019). Demill’s argument is premised on the
Council’s adoption of the ALJ’s conclusion that “it is certainly
outside the power of this administrative adjudication process to
extend privacy rights into uncharted territory” and the ALJ’s
recognition that POST’s administrative adjudication “is charged
with determining the facts and making legal conclusions based on
existing law” with “no specific or implied grant of authority to
extend the parameters of existing civil rights law or to declare
statutes or rules unconstitutional.” The Council adopted the ALJ’s
findings of fact and conclusions of law in full—including the
determinations that the ALJ did not have the authority to extend
constitutional privacy rights under Utah law, that the extension
of constitutional privacy rights beyond existing case law is
20210217-CA 8 2023 UT App 56Demill v. Peace Officer Standards and Training Council
reserved for the courts, and that “the constitutional arguments of
Demill are not considered and do not change the determination
with respect to his guilt.” 6
¶16 We first consider the applicable procedural elements of
POST’s investigative and adjudicative processes, as described in
the relevant administrative rules. See Utah Admin. Code
R728-409-4, -5. With regard to investigative processes, POST
“shall initiate an investigation when it receives information from
any reliable source,” see id. R728-409-4(1), that a peace officer has,
among other things, engaged in sexual conduct while on duty, see
Utah Code Ann. § 53-6-211(1)(e) (LexisNexis Supp. 2022). But
POST is prohibited from investigating “conduct” that is “sexual
activity protected under the right of privacy recognized by the
United States Supreme Court in” Lawrence. See Utah Admin. Code
R728-409-4(2). Based on the outcome of the investigation, POST
can commence adjudicative proceedings “for the purpose of
suspending or revoking a respondent’s certification . . . by the
filing of a Notice of Agency Action.” Id. R728-409-6(1). “The
purpose of an adjudicative proceeding is to determine whether
there is sufficient evidence to find that the respondent engaged in
the conduct alleged in the Notice of Agency Action by clear and
convincing evidence and whether such conduct falls within the
6. We note that both parties highlight inconsistencies in our case
law regarding whether the scope of an administrative proceeding
extends to the adjudication of constitutional issues which have, in
certain instances, been statutorily reserved for the courts under
section 63G-4-403(4)(a) of the Utah Code. But because rule
R728-409-4(2)(b) of the Utah Administrative Code specifically
incorporates the constitutional protection in question, we have no
occasion to consider the broader question of whether and to what
extent—absent such a specific administrative rule—an
administrative law judge in an administrative proceeding can
properly address constitutional questions.
20210217-CA 9 2023 UT App 56Demill v. Peace Officer Standards and Training Council
grounds for administrative action enumerated in Subsection[]
53-6-211(1)[.]” Id. R728-409-5(1).
¶17 Administrative rules also provide the authoritative
boundaries for administrative law judges in adjudicative
proceedings. See id. R728-409-13. Under those rules, “If the ALJ
determines there is sufficient evidence to find that the respondent
engaged in conduct in violation of Subsection[] 53-6-211(1) . . . ,
the ALJ’s decision shall indicate that the matter will be heard at
the next regularly scheduled council meeting.” Id. R728-409-13(2).
Conversely, “If the ALJ determines there is insufficient evidence
to find that the respondent engaged in conduct in violation of
Subsection[] 53-6-211(1) . . . the matter shall be dismissed.” Id.R728-409-13(3). Therefore, an ALJ’s authority in a POST
administrative disciplinary proceeding is bookended by these
rules and extends only to determining whether there is sufficient
evidence “to find that the respondent engaged in conduct in
violation of Subsection[] 53-6-211(1),” id., and to indicate whether
the matter will be heard by the Council or whether the matter will
be dismissed. In the determination of whether there is sufficient
evidence, an ALJ relies on existing law and “whether such
conduct falls within the grounds for administrative action.” Id.R728-409-5(1).
¶18 Demill argues that both the ALJ and the Council had the
authority to rule on his argument that he had a constitutional right
to privacy, which (as he sees it) included his right to masturbate
while on duty so long as he did so in private. He contends that his
POST certification should not have been suspended absent
consideration of that argument.
¶19 Whether an ALJ has the authority to extend Lawrence to
factual settings not discussed in that opinion presents a separate
question. To that point, the applicable rule expressly addresses
(and limits) the Council’s authority regarding an adjudicative
proceeding. See id. R728-409-14. In particular, “The council shall
20210217-CA 10 2023 UT App 56Demill v. Peace Officer Standards and Training Council
consider the ALJ’s findings of fact and conclusions of law in order
to determine whether a letter of caution, or suspension or
revocation of the respondent’s certification is appropriate based
upon the ALJ’s findings and the POST Disciplinary Guidelines[.]”
Id. R728-409-14(5). The subsection that follows addresses Demill’s
argument directly and expressly limits the Council’s authority by
providing, “The council does not have appellate review authority
of the ALJ’s findings of fact and conclusions of law.” Id.R728-409-14(6). Therefore, the Council must accept the findings of
fact and conclusions of law presented by the ALJ and must enter
its disciplinary decision with reference to those facts and
conclusions. Based on this statutory language, we focus the
remainder of our consideration on the authority of the ALJ to
expand the constitutional privacy right recognized in Lawrence.
¶20 As already noted, POST “may not investigate conduct that
is limited to . . . sexual activity protected under the right of privacy
recognized by the United States Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003).” Id. R728-409-4(2)(b). In Lawrence,
police officers responded to a “reported weapons disturbance” at
a private residence. 539 U.S. at 562. The officers entered the
residence and saw Lawrence and another adult man engaging in
sexual activity. Id. at 562–63. Both men were arrested and
convicted of deviate sexual intercourse for engaging in sexual
relations with a member of the same sex. Id. at 563. The United
States Supreme Court reversed. In its decision, the Court held:
Liberty protects the person from unwarranted
government intrusions into a dwelling or other
private places. In our tradition the State is not
omnipresent in the home. And there are other
spheres of our lives and existence, outside the home,
where the State should not be a dominant presence.
Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes
20210217-CA 11 2023 UT App 56Demill v. Peace Officer Standards and Training Council
freedom of thought, belief, expression, and certain
intimate conduct.
Id. at 562. Demill argues that Lawrence’s mention of “other private
places” is applicable to his case and includes a staff restroom at a
state correctional facility. But, as noted by the ALJ, Demill
identifies no case that defines further or expands on the privacy
right identified by Lawrence, i.e., the right to engage in consensual
sexual conduct in a person’s own home.
¶21 In considering the applicability of Lawrence to this case, the
ALJ expressly recognized that “the [Lawrence] Court determined
that homosexual conduct between consenting adults in a home is
entitled to protection under the fundamental right to privacy.”
The ALJ determined that “the clear holding of the case is not on
point with the facts of this case,” noting that “[t]he holding of the
Lawrence case involves sexual conduct in the home—not the
workplace,” which “is not an insignificant difference and
differentiates this case from the exception carved out by the
reference to the Lawrence case in the administrative rule.” The ALJ
also noted that “there appears to be no caselaw that identifies
those ‘other private places’ and none which specifically assess the
right to privacy in a workplace or workplace bathroom.” The ALJ
further recognized that Demill may have a constitutional right to
privacy but noted “Demill is suggesting that the existing caselaw
on privacy rights be extended to include workplace bathrooms”
and “[t]hat is not an unreasonable request, and may be a winning
argument, but it is certainly outside the power of this
administrative adjudication process to extend privacy rights into
uncharted territory.”
¶22 We conclude the ALJ correctly determined that the privacy
considerations in Lawrence were not presented here. Demill’s
actions occurred at his place of employment, a State correctional
facility, and did not implicate a privacy interest of the sort that
obtains when one is in one’s own home. Further, although the ALJ
20210217-CA 12 2023 UT App 56Demill v. Peace Officer Standards and Training Council
observed that Demill may have a good argument for an extension
of the right to privacy beyond the context of sexual activity at
home, Demill did not—and does not here—present any type of
meaningful analysis of Lawrence or develop a substantial
argument to demonstrate that the Lawrence doctrine has been or
should be expanded to include workplace restrooms as having the
same level of privacy protections as homes. Accordingly, we
conclude the ALJ was correct and that the circumstances
presented here are distinguishable from those in Lawrence.
¶23 We note that the relief Demill requests from this court is a
remand to the Council, with an instruction to consider—or to
direct the ALJ to consider—Demill’s argument that the scope of
the right recognized in Lawrence should be expanded to recognize
a constitutional right to privacy that would protect public
employees who masturbate at work, in a private setting, from
disciplinary action. He does not ask this court to undertake that
analysis and to interpret the applicable statute accordingly, and
to then direct the Council to reinstate Demill’s POST certification.
He has not shown that in enacting rule R728-409-4(2)(b), POST’s
reference to Lawrence was meant to embrace a notion of privacy
broader than the one specifically recognized in Lawrence, much
less that the right has evolved to extend constitutional protection
to private masturbation by a public employee at work.
Accordingly, in the posture of this judicial review proceeding, we
have no occasion to consider and resolve these issues.
CONCLUSION
¶24 The ALJ was correct that Demill’s conduct was
distinguishable from the conduct at issue in Lawrence. And
without argument demonstrating that the privacy right
recognized in Lawrence and included in the applicable
administrative rule likewise extends to a workplace restroom, we
decline to disturb the Council’s order suspending Demill’s peace
officer certification.
20210217-CA 13 2023 UT App 56