King v. Provo City Civil Service Commission ( 2024 )

2024 UT App 134THE UTAH COURT OF APPEALS
NISHA KOY ELKINGTON KING,
Petitioner,
v.
PROVO CITY CIVIL SERVICE COMMISSION,
Respondent.
Opinion
No. 20230503-CA
Filed September 19, 2024
Original Proceeding in this Court
Steven C. Tycksen, Attorney for Petitioner
J. Brian Jones, Gary D. Millward, and Richard A.
Roberts, Attorneys for Respondent
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
OLIVER, Judge:
¶1 Nisha Koy Elkington King seeks judicial review of the
Provo City Civil Service Commission’s (the Commission) decision
upholding her termination from the Provo City Police
Department (Police Department). King argues that the
Commission improperly investigated sexual harassment
complaints against her pursuant to Provo City’s (Provo), rather
than the Police Department’s, policy. King also argues that the
charges against her were not supported by substantial evidence
and that the Commission abused its discretion by upholding the
termination. Because King has failed to show that she was harmed
by the policy choice made, and because we conclude that the
Commission’s findings are supported by substantial evidence, we
decline to disturb the Commission’s decision.
King v. Provo City
BACKGROUND
¶2 King was a sergeant with the Police Department in August
2022 when her employment was terminated by Provo’s police
chief (the Chief). King’s termination resulted from an
investigation into two allegations of sexual harassment against
her. The initial incident that spurred the investigation occurred on
July 2, 2022, when King and several other officers were assigned
to retrieve flags from the Provo mayor’s old office and transport
them to the new city building. As the assigned officers moved the
flags and flag stands, King picked up two round flag stands, held
them up to her chest, and jokingly asked the officers, “What if I
hold these like this?” “Would that be inappropriate?” According
to one of the officers (Officer 1), the comment made him feel
“awkward and uncomfortable.” King then said, “Good thing I’m
with the S[pecial] V[ictims] U[nit] guys.” Another assigned officer
helping with the flags (Officer 2) described being “disturbed with
[King’s] insinuation that [he] would be comfortable with this type
of behavior because of his job as a sex crimes detective.” When
Officer 1 and Officer 2 (collectively, the Officers) reported King’s
actions, the Provo mayor, the Chief, and a Provo attorney
consulted and then assigned the matter to Provo’s human
resource director (the Director) for investigation, pursuant to
Provo’s Personnel Policy 31 (Policy 31), which governs sexual
harassment complaints against Provo employees, see Provo
Personnel Policy 31 (2019).
¶3 During the Director’s investigation, another allegation of
sexual harassment against King came to light. Lydia, 1 a victim
services program coordinator for Provo, was washing a dish at
work in the break room’s sink when King came up behind her and
“aggressively cupped her buttocks” with her hands. When Lydia
turned around, King responded, “Sorry, I couldn’t help myself.”
Lydia was “embarrassed, shocked, and confused” by the incident
1. A pseudonym.
20230503-CA 2 2024 UT App 134King v. Provo City
and returned to her desk looking “white as a ghost,” according to
her coworkers. When they pressed her about whether she was
okay, Lydia told them what had happened and “asked them not
to tell.” Lydia did not report the incident because she was afraid
of retaliation or of losing her job, but she did mention the incident
to the Officers a couple of months before the flag incident.
¶4 On July 6, 2022, King was placed on administrative leave.
The letter placing her on leave explained that the Police
Department had received “multiple sexual harassment reports
involving” her over the last twelve months and that Provo’s
human resources department was handling the investigation.
¶5 The Director and the Chief then conducted separate
interviews with King. The Director explained to King that there
was a sexual innuendo allegation against her: the Officers
reported King had asked them, “Should I go out there like this?”
as they were carrying the flags down the stairs. In response to the
Director telling King there was video footage that recorded her
making the statement, King claimed that “she believed [the
Director] if it was on a video, but she didn’t have any
recollection.” But according to the Director, King “was able to
offer . . . other small details that were [in the video],” including
which officer carried the most flags. The Director asked if there
was “any other explanation as to why [she] might have made that
comment,” but King offered no explanation other than “she was
overwhelmed with school and things going on in her life and she
didn’t remember.”
¶6 The Director also explained to King that there was an
allegation against her of inappropriate touching that came to light
when the Officers said that “they had heard things . . . that had
happened with [King] and other individuals that made them
concerned that they were seeing a pattern of behavior.” The
Director had asked them to clarify, and the Officers recounted
what Lydia had told them. King adamantly denied that the
20230503-CA 3 2024 UT App 134King v. Provo City
incident occurred. In her interview with the Chief, King again
declared she “did not grab the buttocks of [Lydia]” and did not
“hold up the flag stands insinuating anything sexual.”
¶7 Around August 8, King was notified that the Ogden City
Police Department was conducting a criminal investigation into
the incident involving Lydia. 2 King requested her pretermination
hearing be delayed until the criminal investigation was concluded
so she could speak freely at the hearing and not risk violating “her
[Fifth] Amendment rights against self-incrimination.” The Provo
attorney responded that King’s statements “in an internal
disciplinary proceeding would be covered by Garrity[3] and
therefore could not be used against her in a criminal proceeding.”
¶8 The pretermination hearing took place on August 10, as
scheduled, and King denied both allegations against her. The
Director concluded that there was sufficient evidence to support
the allegations and that “King’s responses to [him] suggested
dishonesty.” Specifically, the Director described how video and
audio footage of the officers removing the flags from the mayor’s
office captured King easily lifting up the flag stands and coming
2. The Ogden City Police Department investigated the matter to
avoid any conflict of interest. On August 23, 2022, the Weber
County Attorney’s Office declined to prosecute the case against
King for insufficient evidence.
3. Named after Garrity v. New Jersey, 385 U.S. 493 (1967), in which
the United States Supreme Court held that “a police officer’s
statements obtained under threat of removal are inadmissible in
subsequent criminal proceedings,” a Garrity warning is routinely
used by police departments to advise “officers who are the subject
of an internal investigation that their answers will not be used in
any criminal prosecution.” Hoffman v. Peace Officer Standards
& Training Council, 2022 UT App 34, ¶¶ 12–13, 507 P.3d 838(cleaned up).
20230503-CA 4 2024 UT App 134King v. Provo City
down the stairs saying, “Should I walk out there like this?” and
Officer 2 responding, “No, that wouldn’t be good.” 4 The Director
explained that he “found it very difficult to believe that [King]
was able to remember all other aspects” of the flag incident,
including which officer carried the most flags, but not her own
comments and actions.
¶9 On August 17, the Chief terminated King from the Police
Department. As to the touching incident, the Chief found that
“termination [was] the appropriate discipline” because King
“engaged in misconduct, violated city policy, and lied about it.”
As to the flag incident, the Chief found that although King’s
behavior “constituted inappropriate sexual innuendo,” the
behavior “was not severe enough to constitute [h]arassment.” But
the Chief also concluded that King’s dishonesty in lying about the
incident warranted termination “due to the critical nature of
maintaining credibility” as a police officer.
¶10 King timely appealed to the Commission. In part, King
challenged Provo’s use of Policy 31, asserting that the
investigation should have been conducted pursuant to Provo
Police Department Policy 1010 (Policy 1010), which would have
provided her with a number of additional protections, including,
among others, (1) “[a]ccess to all of the materials considered by
the Chief of Police in recommending the proposed discipline,”
Provo, Utah Police Department Policy Manual § 1010.11.2 (2022);
(2) the right to “have an uninvolved representative present”
during her interviews, id. § 1010.7.2(i); (3) having the investigation
conducted by a member of the Police Department, see id.
4. The video footage captured a total of two minutes’ worth of the
Officers removing the flags in the mayor’s office and then going
down the stairs with them. King was not visible when she made
the comments, but she emerged into the camera frame on the
stairs as she was lowering the flag stands from “up around her
chest.”
20230503-CA 5 2024 UT App 134King v. Provo City
§§ 1010.7.1, 1010.10; and (4) having all witness statements
recorded, see id. § 1010.7.2(h). 5
¶11 The Commission held a hearing on March 14, 2023. At the
hearing, the Commission heard testimony from the Chief, the
Director, the Officers, King, Lydia, and Lydia’s coworkers about
the incidents and investigation as recounted above.
¶12 The Chief testified that he reviewed the Director’s report,
viewed the videos from the flag incident, met with King before
the pretermination meeting, and interviewed Lydia before
making his decision. He decided to terminate King because she
“engaged in misconduct, violated [Provo’s] policy, and lied about
it.” Of most concern to the Chief was King’s dishonesty because
“in the profession of policing . . . [h]onesty is paramount.”
¶13 The Director testified that one of his duties as the director
of human resources is to investigate sexual harassment
allegations. In response to King’s assertion that Policy 1010—not
Policy 31—governed the investigation, the Director described
Policy 31 6 as “the umbrella policy for [Provo],” and he explained
that his “interpretation of Policy 1010[7] [was] that it has to be
5. The parties disagree about whether “an uninvolved
representative” includes an attorney. We assume, for purposes of
our analysis, that “an uninvolved representative” includes an
attorney in the context of Policy 1010.
6. Policy 31 states, in relevant part, “All complaints of harassment
will be investigated by Human Resources, the legal department,
or by outside counsel, depending on the circumstances of the
report.” Provo Personnel Policy 31-7(A) (2019).
7. Policy 1010 “provides guidelines for the reporting,
investigation and disposition of complaints regarding the conduct
(continued…)
20230503-CA 6 2024 UT App 134King v. Provo City
consistent with [Policy 31].” The Director agreed Policy 1010
“could apply to investigations the police department conducts
within its department” but reiterated Policy 31 “applies city
wide.” When asked if he interviewed King “under Garrity,” he
confirmed that he did and explained that “Garrity is protection of
government workers from incriminating themselves in a criminal
investigation,” which is needed because it is also “designed so
that employees are compelled to answer questions truthfully and
their refusal to answer questions can result in their immediate
termination.” As to the flag incident allegation, the Director
concluded that it “happened as described by [the Officers].” He
stated, “I heard the comment, I saw the action” on the video.
When the Director asked King about the inappropriate touching
incident, she denied it. King’s dishonesty about the flag incident
“cast into question her credibility” on the touching allegation.
¶14 After the video footage of the flag incident was played at
the hearing, King was asked to explain what she said and did on
the video. She replied, “I clearly made the statements that I made,
and you can see the motions that I made in the video, and I—I’m
not going to deny that.” She insisted she did not lie to the Director
of members of the Provo City Police Department.” Provo Police
Department Policy Manual § 1010.1 (2022). Under that policy,
“[p]ersonnel complaints may be generated internally or by the
public,” id. § 1010.4, and “complaint forms will be maintained in
a clearly visible location in the public area of the police facility and
be accessible through the department website,” id. § 1010.5.1.
Policy 1010 also provides that supervisors must promptly contact
“the Department of Human Resources and the Watch
Commander for direction regarding the supervisor’s role in
addressing a complaint that relates to sexual, racial, ethnic, or
other forms of prohibited harassment or discrimination.” Id.
§ 1010.7.1(e).
20230503-CA 7 2024 UT App 134King v. Provo City
or the Chief when she denied making the statement, explaining
that she simply could not “recall even saying it.”
¶15 After the hearing, the Commission affirmed the Chief’s
decision to terminate King. Among its findings were the following
determinations:
• Policy 31 “applies to all departments of [Provo];
and . . . it applies to all employees, including police
officers.”
• King “was provided with a full and fair [h]earing,”
along with “a full and fair opportunity to dispute
and otherwise be heard.”
• Provo had “proved there is substantial evidence to
affirm” King’s termination from the Police
Department.
• King’s “failure to recall the [flag] incident” in her
interviews with the Director and the Chief
“evidenced a lack of forthrightness and candor that
could be characterized as being dishonest,”
especially when King “continued to refuse to
acknowledge her lack of candor even when
confronted with video evidence at the [h]earing.”
ISSUE AND STANDARD OF REVIEW
¶16 King now seeks judicial review, asking us to set aside the
Commission’s decision to uphold her termination. A civil service
commission established by a city may review its department
heads’—including the police chief’s—disciplinary decisions. See
Leavitt v. Salt Lake City Corp., 2019 UT App 70, ¶ 15, 442 P.3d 1217.
A commission’s review is deferential. See id. ¶ 14 (“When
reviewing the Chief’s decision, the Commission is required to
20230503-CA 8 2024 UT App 134King v. Provo City
give deference to the Chief, as he is best able to balance the
competing concerns in pursuing a particular disciplinary action.”
(cleaned up)). This court’s review of a commission’s decision is
“similarly limited” by statute, which instructs us to “review such
decisions only ‘for the purpose of determining if the Commission
has abused its discretion or exceeded its authority.’” Id. (quoting
Utah Code § 10-3-1012.5). Therefore, we will “not disturb the
Commission’s decision to uphold the Chief’s decision to
terminate [King’s] employment unless it exceeds the bounds of
reasonableness and rationality.” Id. (cleaned up).
ANALYSIS
I. Harmless Error
¶17 King contends it was “arbitrary and capricious” and, thus,
an abuse of discretion for the Commission to uphold Provo’s
decision to follow Policy 31 instead of Policy 1010. Citing the Utah
Administrative Procedures Act (UAPA), see Utah Code §§ 63G-4-
101 to -601, she argues that the decision to follow Policy 31
“caused substantial prejudice and denial of [her] due process”
rights. But this statute does not apply here. A civil service
commission “is a local, municipal tribunal of limited jurisdiction”
that “is neither a court of law nor a state administrative agency
subject to [UAPA].” Lucas v. Murray City Civil Service Comm’n, 949
P.2d 746, 755 (Utah Ct. App. 1997). Instead, a civil service
commission is governed by the Utah Municipal Code. See Utah
Code §§ 10-3-10, 10-3-1001 to -1013. Thus, King’s reliance on
UAPA, which addresses “arbitrary and capricious” agency action
and provides for a “substantial prejudice” standard of review, is
misplaced for a challenge to a municipal tribunal’s action. The
appropriate standard of review here is whether the Commission
“has abused its discretion or exceeded its authority.” Id. § 10-3-
1012.5.
20230503-CA 9 2024 UT App 134King v. Provo City
¶18 Applying that standard, we discern no abuse of discretion
in the Commission’s decision upholding the use of Policy 31
instead of Policy 1010 in the investigation of King’s misconduct
because King has not demonstrated that she was harmed by the
alleged error. “We will not disturb a ruling alleged to be
erroneous unless the petitioner demonstrates the error is
prejudicial.” West Valley City v. Coyle, 2016 UT App 149, ¶ 17, 380
P.3d 327 (cleaned up); cf. In re Estate of Valcarce, 2013 UT App 95,
¶ 37, 301 P.3d 1031 (finding no abuse of discretion in a trial court’s
denial of a motion where the “trial court’s rationale for denying
the motion” was “reasonably support[ed]” and where the
appellant “failed to show how his attorney’s actions or the trial
outcome would have been any different”).
¶19 King argues that Policy 1010 would have provided her
with a number of additional protections, including, among others,
(1) “[a]ccess to all of the materials considered by the Chief of
Police in recommending the proposed discipline,” see Provo
Police Department Policy Manual § 1010.11.2 (2022); (2) the right
to “have an uninvolved representative present” during her
interviews, see id. § 1010.7.2(i); (3) having the investigation
conducted by a member of the Police Department, see id.
§§ 1010.7.1, 1010.10; and (4) having all witness statements
recorded, see id. § 1010.7.2(h). Supposing that Provo should have
followed Policy 1010 and King should have been granted these
Policy 1010 protections, we see no material difference they would
have made to the outcome of the proceeding. See Lucas, 949 P.2d
at 755 (affirming a civil service commission’s decision because the
employee “fail[ed] to establish how [the asserted] procedural
errors were harmful” or “how these procedures would have
resulted in a different outcome absent such errors”).
¶20 During King’s interviews with the Director and the Chief,
she was aware there was video footage of her making the
comment about the flag stands that she claimed not to recall, so
whether King was provided an opportunity to view the video
20230503-CA 10 2024 UT App 134King v. Provo City
prior to or during her interviews is immaterial. 8 Indeed, at the
hearing, King testified after watching the video that she still did
not recall making the comment. Thus, King has not shown how
she was harmed by not having the video in hand during her
interviews with the Director and the Chief.
¶21 Relatedly, King has not pointed us to how she was harmed
by not having her counsel present at the pretermination hearing
interviews. 9 Instead, King argues generally that she was harmed
by not having an attorney present at the interviews “to avoid
undue influence, confessions under intimidation or duress, or
improper questioning tactics.” But again, King offers no concrete
examples of these abuses to support her claim. As pointed out
above, King’s responses to questioning throughout the
investigation—whether to the Director, the Chief, or the
Commission—remained consistent: she denied the touching
incident and stated that she could not recall her statement from
the flag incident. Thus, King has not shown “how this procedural
infirmity” of not having counsel present during her interviews
with the Director and the Chief “could possibly have been
harmful.” See Leavitt v. Salt Lake City Corp., 2019 UT App 70, ¶ 37,
442 P.3d 1217.
8. Provo attempted to provide the video to King’s counsel prior to
the pretermination meeting with the Chief, both by sending it via
email and regular mail.
9. In briefing, King argued that her constitutional due process
rights were violated by the lack of counsel at her interviews, but
when asked to clarify that claim at oral argument, King’s counsel
stated that she was not making a constitutional due process
argument on this point but rather an argument that Policy 1010
had been violated. Thus, we analyze this issue in the Policy 1010
context only.
20230503-CA 11 2024 UT App 134King v. Provo City
¶22 King likewise fails to point to any harm she suffered from
having the investigation conducted by the Director instead of the
Police Department and from not having the interviews recorded.
She makes only broad assertions that the investigation by the
Director was “insufficient” and that she was “handicapp[ed]” in
preparing her defense for the pretermination hearing. But King
does not identify how the result would have been different had
the investigation been led by the Police Department. Nor does she
identify how recorded interviews would have made any
difference, particularly where King received a copy of the
investigation report summarizing the interviews prior to the
pretermination meeting with the Chief and thus also had it prior
to the pretermination hearing. Without identifying “how these
procedures would have resulted in a different outcome absent
such errors,” see Lucas, 949 P.2d at 755, King has not carried her
burden.
¶23 As a result, even if we assume that it was error to apply
Policy 31 instead of Policy 1010, King has failed to show that the
“outcome would have been any different” absent the alleged
error. See In re Estate of Valcarce, 2013 UT App 95, ¶ 37, 301 P.3d
1031. Thus, we will “not disturb the Commission’s decision
because we are not convinced its support of Provo’s use of Policy
31 “exceeds the bounds of reasonableness and rationality.” See
Leavitt, 2019 UT App 70, ¶ 14 (cleaned up). Therefore, we find no
abuse of discretion in the Commission’s reasonable and rational
determination upholding Provo’s decision to follow Policy 31.
II. Substantial Evidence
¶24 Second, King contends that her termination was not
supported by substantial evidence. “Although the Commission is
not subject to UAPA, it functions similarly to . . . state
administrative agencies,” so “we adopt and apply the ‘substantial
evidence’ standard applicable to a state administrative agency’s
findings of fact.” Lucas v. Murray City Civil Service Comm’n, 949
20230503-CA 12 2024 UT App 134King v. Provo City
P.2d 746, 758 (Utah Ct. App. 1997). The question before us, then,
“is not whether there are facts in the record that could support a
decision more favorable to” King but “whether the Commission’s
findings, upon which the charges are based, are supported by
substantial evidence viewed in light of the whole record before
us.” Hollenbach v. Salt Lake City Civil Service Comm’n, 2015 UT App
116, ¶ 18, 349 P.3d 791 (cleaned up).
¶25 “Substantial evidence is that quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” Macfarlane v. Career Service Review Office,
2019 UT App 133, ¶ 33, 450 P.3d 87 (cleaned up). “It is more than
a mere scintilla of evidence and something less than the weight of
the evidence.” Lucas, 949 P.2d at 758 (cleaned up). In determining
whether the Commission’s decision is supported by substantial
evidence, “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 Commission.
Macfarlane, 2019 UT App 133, ¶ 33 (cleaned up).
¶26 Here, substantial evidence supports the Commission’s
findings on both allegations for two reasons. First, there was
credible testimony given at the pretermination hearing to support
both allegations. As to the flag incident, the Commission heard
Officer 1 testify that King said, “What if I hold these like this?”
and “Good thing I’m with the SVU guys” as she was holding the
flag stands to her chest as if they were breasts. And as to the
inappropriate touching incident, the Commission heard
testimony from Lydia describing how King grabbed her buttocks
in the break room at work and then said, “Sorry, I couldn’t help
myself” when Lydia turned around. The Commission found
Officer 1 and Lydia to be credible but not King, reasoning that
King’s “failure to recall the [flag] incident when questioned about
it” in her interviews “evidenced a lack of forthrightness and
candor that could be characterized as being dishonest,” especially
when King “continued to refuse to acknowledge her lack of
20230503-CA 13 2024 UT App 134King v. Provo City
candor even when confronted with video evidence at the
[h]earing.” We give great deference to those credibility findings
as it “is the Commission’s role as the ultimate fact-finder to weigh
the evidence and make credibility determinations.” Bade-Brown v.
Labor Comm’n, 2016 UT App 65, ¶ 19, 372 P.3d 44. In sum, “we do
not review the Commission’s findings de novo or reweigh the
evidence. Instead, we defer to the Commission’s findings on
issues of credibility.” Lucas, 949 P.2d at 758 (cleaned up).
Accordingly, we decline to disturb them here.
¶27 Second, there was corroborating evidence on both
allegations. Officer 1’s testimony about the flag incident was
supported by the video evidence. And Lydia’s testimony about
the inappropriate touching incident was corroborated by her
coworkers—who observed Lydia’s reaction to the incident and
who confirmed that Lydia gave them an account of the incident
immediately after it happened—and by Officer 1’s testimony that
Lydia had disclosed to him and Officer 2 what had happened. In
sum, the credible testimony and corroborating video footage and
witnesses amount to substantial evidence, or the “quantum and
quality of relevant evidence that is adequate to convince a
reasonable mind to support a conclusion.” Macfarlane, 2019 UT
App 133, ¶ 33 (cleaned up).
¶28 King also contends the Commission’s findings are not
supported by substantial evidence because the Weber County
Attorney’s office dropped its criminal investigation of her. See
supra note 2. We disagree. Whether a prosecutor had enough
evidence to pursue criminal charges against King is beside the
point. The “reasonableness and rationality” standard of review is
significantly lower than the “beyond a reasonable doubt”
standard of proof required for a criminal prosecution. Compare Ofa
v. Department of Human Services, 2023 UT App 156, ¶ 17, 542 P.3d
511 (stating we “will uphold a reviewing board's affirmance of an
agency’s decision to terminate unless it exceeds the bounds of
reasonableness and rationality” (cleaned up)); State v. Archuleta,
20230503-CA 14 2024 UT App 134King v. Provo City
2021 UT App 66, ¶ 32, 492 P.3d 801 (“The prosecution’s burden of
proof in any criminal case . . . is that of beyond a reasonable
doubt.” (cleaned up)). Furthermore, “as a municipal
administrative body, the Commission is not bound by formal
rules of evidence and procedure.” Lucas, 949 P.2d at 755. Thus, the
prosecutor’s decision of whether to pursue criminal charges and
the Commission’s decision of whether to affirm Provo’s
employment decision were necessarily based on different
standards of proof. Therefore, the prosecutor’s decision regarding
whether to pursue charges against King is irrelevant to our
analysis.
CONCLUSION
¶29 We decline to grant the relief King seeks because she did
not meet her burden of proving that the Commission’s alleged
error in upholding Provo’s use of Policy 31 instead of Policy 1010
in its investigation was harmful. We also conclude that the
Commission’s findings are supported by substantial evidence.
Accordingly, we decline to disturb the Commission’s decision
upholding the termination of King’s employment.
20230503-CA 15 2024 UT App 134