Nelson v. Orem City, Department of Public Safety

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Dennis Nelson, ) OPINION
)
Petitioner, ) Case No. 20100976‐CA
)
v. )
) FILED
Orem City, Department of Public Safety; ) (May 17, 2012)
and Director Michael Larsen, )
) 2012 UT App 147Respondents. )
‐‐‐‐‐
Original Proceeding in this Court
Attorneys: Phillip W. Dyer and B. Kent Morgan, Salt Lake City, for Petitioner
Stanley J. Preston, Bryan M. Scott, and Stephen J. Preston, Salt Lake
City, for Respondents
‐‐‐‐‐
Before Judges Voros, Orme, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Dennis Nelson seeks our review of the Orem City Employee Appeals Board’s
(the Board) decision upholding the Orem City Police Department’s (the OCPD)
termination of his employment on October 29, 2009. We decline to disturb the Board’s
decision.1
1
We commend both parties’ counsel for their thorough briefing in this matter.
BACKGROUND2
¶2 Dennis Nelson was a police officer for Orem City (the City) for nearly fifteen
years. The OCPD’s decision to terminate Nelson was based on a single incident that
occurred on September 19, 2009. “Nelson had no prior history of discipline while
employed with the [OCPD]” and he “had an average performance evaluation rating of
3.53 (on a scale of 1‐5).”
I. The September 19, 2009 Incident
¶3 At nearly midnight on September 18, 2009, Nelson responded to the Utah
County Major Crime Task Force’s (the UCMC) request for an officer to transport an
individual, Brandon Fox, to the jail. Fox was arrested for, charged with, and pleaded
guilty to, inter alia, interfering with the UCMC officers. However, at the time Nelson
transported Fox, Nelson did not know that Fox had earlier resisted the UCMC officers.
¶4 The Board described what happened when Nelson and Fox arrived at the police
station. The Board was aided by a recording captured by two types of cameras—a real‐
time camera and a frame‐by‐frame camera. In the booking area, after removing Fox’s
handcuffs, Nelson asked Fox to remove a string bracelet from his wrist. Fox removed
the bracelet, dropped it on the floor, and said, “[I]t’s all yours.” Fox was “casually
swinging his arms back and forth and swung his arms forward and brought his hands
together in front of him in front of his chest” as “a gesture made as part of his response
of ‘it’s all yours’ and appeared to communicate the meaning of ‘go ahead and take it.’”
The Board observed that
Fox . . . tilt[ed] his head back slightly at this point and was
glaring at Nelson . . . . [Fox] did not make any other
aggressive or threatening gestures at this time. He did not
“square up” as if preparing for a fight, and he did not roll up
2
It is important to note at the outset that even though Nelson refers to evidence
upon which the Board did not rely, he does not challenge the Board’s findings of fact.
Therefore, in determining whether the “[B]oard abused its discretion or exceeded its
authority,” our review is limited to “the record of the appeal board,” see Utah Code
Ann. § 10‐3‐1106(6)(c) (Supp. 2011), and we recite the facts accordingly.
20100976‐CA 2
or roll back his shoulders. He was refusing to obey Nelson’s
command to pick up the bracelet, but there was no other
threatening behavior or indicia of aggression. Nothing in
Fox’s behavior at this time suggests that Fox was threatening
or preparing to attack Nelson.
As the Board found, Nelson then said, “‘pick that f****ing thing up and put it on the
counter’ and then almost simultaneously put his hands on Fox and pushed Fox toward
the door leading to the jail cells.” Nelson did not instruct Fox where to go or where
Nelson was taking Fox, and “[a]s Nelson was moving Fox toward the door, Fox put his
left hand out on the door frame and Fox was pushed into the left edge of the door
frame.” Nelson moved Fox into the room and “threw Fox to the floor” while saying,
“‘[A]lright a**hole.’” Then, “Nelson put Fox on Fox’s stomach and Nelson briefly put
his right knee on Fox’s back . . . .” Nelson positioned himself so that his knees were
straddling Fox. Nelson put Fox’s left arm into a “control hold” by putting it behind
Fox’s back “and moving it up toward Fox’s head.”
¶5 The Board noted, “At this point, Fox was not fighting or resisting and Nelson
had Fox under control.” The Board also observed that Fox had “sustained a cut above
his right eye that ultimately required two stitches [and was] caused when Nelson threw
[Fox] to the ground.” Nelson called for medical assistance on his radio.
¶6 After fifty‐five seconds of keeping Fox in a control hold with his left arm, Nelson
placed Fox’s right arm in another control hold. Nelson continued to hold Fox’s arms in
control holds and also moved his knee onto Fox’s back, which, the Board noted, caused
Fox “distress and pain” and caused Fox to “grunt[]” and strain his voice when he spoke.
As the Board described, “Nelson pushe[d] both of Fox’s arms higher on Fox’s back so
that Fox’s hands [we]re almost touching the back of his head. Fox’s legs move[d]
upward as he d[id] so and you c[ould] hear Fox grunt apparently in pain.” Fox then
stated, “‘I’m not gonna fight you dude . . . .’” After that, Nelson “relaxe[d] the control
hold on Fox’s arms and allow[ed] Fox’s hands to move several inches down Fox’s
back.” Nelson adjusted his knees several times, and, at one point, “Fox barely move[d]”
and “beg[a]n to breathe heavily.” After Fox did not respond to Nelson’s question about
whether Fox was having trouble breathing, Nelson finally moved Fox into a sitting
position while keeping his arms in control holds. According to the Board, “Nelson had
Fox on the ground . . . for three minutes and 42 seconds. At no time after Nelson took
Fox to the ground did Fox ever resist or attempt to fight with Nelson.”
20100976‐CA 3
II. Disciplinary Action Taken After the Incident
¶7 Lieutenant Gary Giles conducted a “use of force review” of the September 19,
2009 incident, which included reviewing the video, hearing Nelson’s account of the
incident, and speaking to Fox by telephone. Giles prepared a report in which he
concluded “that physical force was not justified and was done in violation of
established department policies[,] . . . was used as punishment, and was inappropriate.”
¶8 Captain Bob Conner also reviewed the incident. Conner reviewed the video and
Giles’s report and “concluded that Nelson had violated City policies by using excessive
force and by being untruthful in the investigation of the incident.” On October 6, 2009,
Conner issued a notice of intent to terminate Nelson’s employment.
¶9 Nelson appealed the notice of intent to terminate his employment to the Orem
Director of Public Safety, Mike Larsen.3 On October 20, 2009, Nelson and his attorney
met with Larsen. After considering the information that Nelson and his attorney
presented at the meeting, the transcript from the October 20, 2009 meeting, the notice of
intent, the incident reports, Nelson’s appeal notes, the OCPD’s use of force policy, the
videos from the booking room, and Giles’s report, Larsen upheld Conner’s decision to
terminate Nelson’s employment. Larsen wrote his decision in a memorandum dated
October 29, 2009, and Nelson was officially terminated as of that date.
III. The Board’s Decision
¶10 After Larsen refused to reinstate Nelson’s employment, Nelson appealed to the
Board. The Board held a hearing on October 27, 2010. The Board affirmed the OCPD’s
decision to terminate Nelson’s employment but reversed the OCPD’s charge of
dishonesty.
3
The OCPD is part of the Orem Department of Public Safety. Throughout this
opinion, when discussing the sanction against Nelson, sanctions against prior
employees, and the departmental policy, we reference the OCPD rather than the Orem
Department of Public Safety for simplicity and brevity and because, at least in these
circumstances, the distinction between the departments is not relevant.
20100976‐CA 4
¶11 The Board conducted its review under the Orem City Municipal Code. See Utah
Code Ann. § 10‐3‐1106(7)(a) (Supp. 2011) (“[T]he procedure for conducting an appeal
and the standard of review shall be prescribed by the governing body of each
municipality by ordinance.”); Orem City Code § 2‐26‐12 (“The Board shall uphold the
Department Director’s decision against the appealing employee unless the Board finds
that the decision was arbitrary and capricious or otherwise illegal[, and] the Board shall
apply a substantial evidence test when determining if the Department Director’s
decision was arbitrary and capricious.”). The Board reviewed 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?” See Kelly v. Salt Lake City Civil Serv. Commʹn, 2000 UT
App 235, ¶ 16, 8 P.3d 1048 (internal quotation marks omitted).
¶12 In response to its first inquiry, the Board concluded that the facts supported the
OCPD’s determination that Nelson used excessive force. The Board found that, based
on the OCPD’s policy of use of force,
(1) Nelson used more force than was reasonably necessary to
do his job, (2) Nelson used force as a means of inflicting
punishment, humiliation and mental abuse, and (3) the use
of physical force in dealing with Fox was not limited to self
defense, protection of the officer, making a lawful seizure of
an individual, prevention of escape, or bringing an unlawful
situation safely and effectively under control.
¶13 In response to its second inquiry, the Board concluded that the charge warranted
Nelson’s termination. The Board initially determined that “[t]he sanction of termination
was proportional to the charge of use of excessive force.” The grounds for the Board’s
finding of proportionality were that “Nelson’s excessive use of force . . . could
substantially undermine public confidence in the” OCPD and that “the use of excessive
force by Nelson had the potential to significantly undermine the morale and discipline
within the [OCPD].” The Board also considered the fact that Nelson acknowledged that
he had “violated a couple [of] policies.”
¶14 The Board concluded that Nelson’s use of excessive force on September 19, 2009,
warranted Nelson’s termination when it determined not only that the sanction was
proportional to the charge but also that “the sanction of termination was consistent with
previous” OCPD sanctions. The Board considered treatment of several other OCPD
20100976‐CA 5
employees whom Nelson claimed exhibited the same or more egregious conduct but
who were sanctioned less harshly. After a thorough examination, the Board determined
that the most comparable cases “d[id] not establish a prima facie case of inconsistent
treatment because they all involve[d] conduct that [wa]s substantially different from the
conduct that led to Nelson’s termination,” and that, in the case of one former employee,
Officer Scott Healy, “Nelson’s use of force was more excessive.”
ISSUES AND STANDARDS OF REVIEW
¶15 Nelson challenges the Board’s decision to uphold the OCPD’s termination of his
employment as a sanction for his use of excessive force in violation of the OCPD’s
policy. Nelson challenges neither the Board’s finding that he violated the policy nor its
determination that the OCPD could terminate Nelson as a sanction for doing so.4
Instead, Nelson argues, first, that the Board improperly concluded that the OCPD’s
sanction of termination was proportional to its use of excessive force charge. “The
Court of Appeals’ review shall be on the record of the appeal board and for the purpose
of determining if the appeal board abused its discretion or exceeded its authority.”
Utah Code Ann. § 10‐3‐1106(6)(c); see also Harmon v. Ogden City Civil Serv. Commʹn
(Harmon II), 2007 UT App 336, ¶ 6, 171 P.3d 474 (reviewing the Ogden Civil Service
Commission’s decision to terminate a fire department captain’s employment for abuse
of discretion).
¶16 Second, Nelson argues that the Board erred when it concluded that the OCPD’s
sanction of termination was consistent with its prior sanctions of other employees. As
with proportionality, our review of the consistency of the OCPD’s sanction is limited to
“determining if the appeal board abused its discretion or exceeded its authority.”5 See
4
Nelson does not challenge the Board’s findings of fact, including the facts
supporting the use of excessive force charge. He therefore does not deny that he
violated the policy. In fact, he previously “acknowledged that some of his actions were
inappropriate.”
5
Nelson argues that this court should review this issue as a violation of his due
process rights under a correctness standard because he does not challenge any of the
Board’s findings of fact. See generally Tolman v. Salt Lake Cnty. Attorney, 818 P.2d 23, 28
(continued...)
20100976‐CA 6
Utah Code Ann. § 10‐3‐1106(6)(c); see also Kelly, 2000 UT App 235, ¶ 15 (reviewing the
commission’s final decision regarding its determination on consistency of sanctions
under an abuse of discretion standard).
¶17 Thus, we review for abuse of discretion both aspects—proportionality and
consistency—of the Board’s determination that Nelson’s use of excessive force
warranted the OCPD’s termination of Nelson’s employment. “Because the [OCPD and
Department of Public Safety Director] ‘[are] best able to balance the competing concerns
in pursuing a particular disciplinary action,’ the Board was ‘required to give deference
to the [Director].’” See Guenon v. Midvale City, 2010 UT App 51, ¶ 4, 230 P.3d 1032(mem.) (quoting Harmon II, 2007 UT App 336, ¶ 6), cert. denied, 238 P.3d 443. We will
accordingly uphold the Board’s affirmance of the City’s decision to terminate Nelson
“unless it exceeds the bounds of reasonableness and rationality.” See Harmon II, 2007
UT App 336, ¶ 6 (internal quotation marks omitted).
¶18 Third, Nelson claims that the Board deprived him of his constitutional right to
due process because the Board was partial to the City at the October 27, 2010 hearing
and because it permitted testimony from the City’s expert with whom Nelson had
previously consulted. We review these due process claims for correctness. See Chen v.
Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.
ANALYSIS
¶19 To prevail in his petition for review of the Board’s affirmance of the OCPD’s
decision to terminate his employment, Nelson “must show either (1) that the facts do
not support the action taken by the [OCPD] or (2) that the charges do not warrant the
5
(...continued)
(Utah Ct. App. 1991) (“Due process challenges . . . are questions of general law and we
give no deference to the agency’s determination of what constitutes due process . . . .”).
Although we acknowledge that the consistency with which the OCPD’s discipline is
applied may raise due process concerns, it is well established that we review employee
appeal’s boards’ consistency of sanctions for an abuse of discretion. See generally Kelly v.
Salt Lake City Civil Serv. Commʹn, 2000 UT App 235, ¶ 15, 8 P.3d 1048; Lunnen v. Utah
Dep’t of Transp., 886 P.2d 70, 72 (Utah Ct. App. 1994), cert. denied, 892 P.2d 13 (Utah
1995).
20100976‐CA 7
sanction imposed.” See Harmon II, 2007 UT App 336, ¶ 6. Nelson focuses his appeal on
the second ground—that the charges do not warrant the sanction imposed. He also
challenges two alleged procedural failures by the Board.
I. The Charges Warranted the Sanction of Termination
¶20 The issue of whether the charges warrant the sanction imposed consists of two
elements: “First, is the sanction proportional; and second, is the sanction consistent
with previous sanctions imposed by the department pursuant to its own policies.” See
Kelly v. Salt Lake City Civil Serv. Commʹn, 2000 UT App 235, ¶ 21, 8 P.3d 1048. Nelson
challenges the Board’s decision relative to both elements.
A. The Proportionality of Discipline
¶21 Nelson argues that termination was disproportionate to the charges against him
because he had “16 years of exemplary service with the OCPD and has had no prior
instances of excessive use of force or any other disciplinary issues.” Nelson asserts that
the Board specified only two reasons for terminating his employment: the September
19, 2009 incident with Fox, and Nelson’s dishonesty about that incident. According to
Nelson, because these two reasons are intertwined, “the failure of OCPD’s assertion that
Officer Nelson was untruthful results in the collapse of the reason for termination.”
¶22 “‘In determining whether the charges warrant the disciplinary action taken, we
acknowledge that discipline imposed for employee misconduct is within the sound
discretion of the [Director of Public Safety].’” Id. ¶ 22 (quoting Lucas v. Murray City
Civil Serv. Commʹn, 949 P.2d 746, 761 (Utah Ct. App. 1997)). We also acknowledge that
the Director of Public Safety ”must have the ability to manage and direct his officers,
and is in the best position to know whether their actions merit discipline.” Id.Therefore,
[w]e . . . proceed cautiously, so as not to undermine the
[Director’s] authority, noting, however, that [the Director]
exceeds the scope of his discretion if the punishment
imposed [was] in excess of “the range of sanctions permitted
by statute or regulation, or if, in light of all the
circumstances, the punishment is disproportionate to the
offense.”
20100976‐CA 8
Id. (quoting Lucas, 949 P.2d at 761).
¶23 This court has set forth several factors for measuring the proportionality of
sanctions. “[E]xemplary performance by an employee may serve as evidence against
termination, while job violations and continued misbehavior could weigh in favor of
dismissal.” Harmon II, 2007 UT App 336, ¶ 9, 171 P.3d 474; see also Guenon v. Midvale
City, 2010 UT App 51, ¶ 16, 230 P.3d 1032 (mem.), cert. denied, 238 P.3d 443; Ogden City
Corp. v. Harmon (Harmon I), 2005 UT App 274, ¶ 18, 116 P.3d 973, cert. denied, 125 P.3d
102; Kelly, 2000 UT App 235, ¶¶ 25‐26. The Board may also consider the following
factors:
“(a) whether the violation is directly related to the
employee’s official duties and significantly impedes his or
her ability to carry out those duties; (b) whether the offense
was a type that adversely affects the public confidence in the
department; (c) whether the offense undermines the morale
and effectiveness of the department; or (d) whether the
offense was committed willfully or knowingly, rather than
negligently or inadvertently.”
Harmon II, 2007 UT App 336, ¶ 10 (quoting Harmon I, 2005 UT App 274, ¶ 18); see also
Guenon, 2010 UT App 51, ¶ 16.
¶24 In determining that Nelson’s termination was not a disproportionate sanction,
the Board clearly did not rely on any alleged dishonesty on Nelson’s part, finding
instead that there was insufficient evidence to support the dishonesty charge. Rather,
the Board relied on the factors outlined in Harmon v. Ogden City Civil Service Commission,
2007 UT App 336, 171 P.3d 474. See id. ¶ 10. Specifically, the Board found,
The excessive force used by Nelson against Fox was clearly
committed willfully and knowingly and there has been no
allegation by Nelson to the contrary. There is also no
question that the excessive use of force committed by Nelson
was directly related to Nelson’s official duties as the
violation occurred while Nelson was on duty and in the
normal course of Nelson’s employment.
20100976‐CA 9
In addition, the Board found that “Nelson’s excessive use of force . . . could
substantially undermine public confidence in the [OCPD].” The Board also found that
Nelson’s one‐time use of excessive force had the potential to negatively impact the
OCPD in many ways. As the Board stated,
Discipline that is anything less than termination could send
a message to the public that an officer can get away with the
excessive use of force with just a “slap on the hand.” [T]he
citizens of Orem would not be accepting of Nelson’s
behavior seen on the video. Loss of confidence in the police
by the public would substantially undermine the ability of
all Orem police officers to effectively perform their jobs.
The Board also found that “the use of excessive force by Nelson had the potential to
significantly undermine the morale and discipline within the [OCPD]” and that
“[f]ailure to terminate Nelson . . . would have sent the message to other . . . officers that
a substantial violation of the excessive use of force policy would be tolerated with only
minor punishment.”
¶25 We conclude that the Board’s decision did not “exceed[] the bounds of
reasonableness and rationality.” See Harmon II, 2007 UT App 336, ¶ 6 (internal
quotation marks omitted). Thus, we uphold the Board’s determination that the sanction
of termination was not disproportionate to Nelson’s violation of the OCPD’s policies.
B. The Consistency of Discipline
¶26 Nelson also argues that termination was inconsistent with prior OCPD discipline
of other employees. Specifically, he argues that his sanction was more severe than
OCPD’s action against former employee Officer Scott Healy, even though Healy’s use of
force was more egregious. Nelson also contends that the Board did not offer an
explanation for the disparate sanctions levied against him and Healy.
¶27 The issue here is whether the OCPD’s termination of Nelson’s employment “was
consistent with the treatment of other officers for similar or more egregious conduct.”
See Kelly v. Salt Lake City Civil Serv. Commʹn, 2000 UT App 235, ¶ 27, 8 P.3d 1048. To be
consistent, the OCPD must simply “abide by its own policies.” See id. ¶ 28; Lucas v.
Murray City Civil Serv. Comm’n, 949 P.2d 746, 761 (Utah Ct. App. 1997) (stating that the
chief’s “discretion is abused . . . if the punishment exceeds the range of sanctions
20100976‐CA 10
permitted by statute or regulation”). The employee “must, at a minimum, carry the
burden of showing some meaningful disparity of treatment between [him or] herself
and other similarly situated employees.”6 Kelly, 2000 UT App 235, ¶ 30. “Meaningful
disparate treatment can only be found when similar factual circumstances led to a
different result without explanation.” Id. ¶ 31.
¶28 In 2000, the OCPD suspended Healy for two weeks without pay due to his use of
excessive force during two incidents involving juveniles. In the first incident, Healy
grabbed, shoved, and yelled at a juvenile he was holding in custody. In the second
incident, Healy arrested a juvenile and transported him to a detention facility. There, in
response to the juvenile’s crude comment, “Healy pushed [the juvenile] against the wall
and put his thumbs against his wind pipe” stating, “‘I don’t care if that guy is right
there, I’m gonna kill you.’” “Healy then let go of the juvenile” and uncuffed him.
¶29 The Board determined that Healy’s conduct was “substantially different” from
Nelson’s. First, the Board explained that Healy’s use of force was not as excessive as
Nelson’s. The Board found,
Although both [of the] incidents [involving Healy] were
clearly inappropriate and both involved the excessive use of
force, the extent of the force used was shoving a person
against a wall and yelling and making threats . . . . There
was no evidence that Healy inflicted any significant pain or
injury on either of the two individuals.
6
Nelson carries the burden to prove that the Board inconsistently sanctioned
similarly situated employees. See generally Sorge v. Office of Attorney Gen., 2006 UT App
2, ¶ 26, 128 P.3d 566 (explaining the differing perspectives on burden of proof as it
relates to the proportionality and consistency of sanctions), cert. denied, 138 P.3d 589;
Kelly v. Salt Lake City Civil Serv. Commʹn, 2000 UT App 235, ¶ 30, 8 P.3d 1048 (explaining
that “the burden was on [the employee] to establish a prima facie case that the Chief
acted inconsistently in imposing sanctions by presenting sufficient evidence from which
the Commission could reasonably find a relevant inconsistency”); Lunnen v. Utah Dep’t
of Transp., 886 P.2d 70, 73 (Utah Ct. App. 1994) (stating that “[o]nce the agency fulfills
[the] initial burden” “to show that the discipline was not disproportionate to the
misconduct,” “it is incumbent on the employee to raise any due process concerns,
including consistency”), cert. denied, 892 P.2d 13 (Utah 1995).
20100976‐CA 11
The Board contrasted Nelson’s force as “unnecessarily placing Fox in painful control
holds and inflicting pain and distress on Fox.”
¶30 Second, the Board explained that after using force, “Healy immediately
recognized his mistake and backed off, was immediately sorry, and did not continue the
inappropriate behavior.” Instead of “de‐escalat[ing] the situation” and “recognizing
and correcting his mistake,” like Healy did, Nelson pushed Fox against the wall, threw
him to the ground, and kept him “in painful control holds and inflict[ed] pain and
distress on” him for “three minutes and 42 seconds.”
¶31 Further, the Board found that, even if the incidents were factually similar, “there
[wa]s an additional fair and rational basis for any perceived inconsistency in the
sanction imposed.” The Board explained that in the nine years since Healy’s incident,
another incident occurred with the OCPD that had “generated national and worldwide
negative media attention.” The Board reasoned that “public confidence . . . could have
been significantly undermined if the video of the Nelson/Fox incident had become
widely publicized and Director Larsen hadn’t imposed the severest sanction available
to him.”
¶32 Although Healy’s use of excessive force and threats were projected against
juveniles and were undeniably egregious, the Board found that Healy immediately
cooled down and backed off, whereas, conversely, Nelson continued to escalate his use
of force against Fox. It is also significant that Nelson intended to impose pain and
humiliation on Fox and, in fact, injured Fox to the extent that his forehead required
stitches. We reiterate that “[t]he [Director] must have the ability to manage and direct
his officers, and is in the best position to know whether their actions merit discipline.”
See Kelly v. Salt Lake City Civil Serv. Commʹn, 2000 UT App 235, ¶ 22, 8 P.3d 1048.
¶33 Moreover, even if Healy and Nelson were similarly situated, the Board offered a
persuasive explanation for its disparate treatment. In the nine years since the OCPD
sanctioned Healy, it was reasonable for the OCPD to have tightened its discipline in
response to similar conduct.7 No one can deny that, in an age where a video clip of
Nelson’s use of excessive force on Fox could have immediately “gone viral” on the
7
The record is silent about whether the OCPD notified its employees that certain
conduct would result in more stringent discipline. However, Nelson had notice via the
City’s employee handbook that termination may result from violating the City’s policy.
20100976‐CA 12
internet, discipline deemed too lenient might have undermined the public’s confidence
in the police and been detrimental to both the City and the OCPD. Also, Nelson
provides only the example of Healy, who was likewise disciplined for use of excessive
force.8 The City persuasively argues that the OCPD should not be barred from
terminating an employee for conduct such as Nelson’s because over the last decade
public expectations of police conduct have changed and the OCPD has gained
experience and wisdom in matters of police behavior and discipline. Furthermore, in
considering only two cases, it is difficult for us to say that the OCPD’s sanction of
Nelson was the outlier, as opposed to its sanction of Healy. We accordingly uphold the
Board’s determination that the OCPD’s sanction of Nelson was not inconsistent with its
prior sanctions of employees.
II. The Procedural Issues
A. Nelson’s Objections
¶34 Nelson argues that the Board exhibited partiality to the City, and thus violated
his due process rights, when it denied Nelson’s attorney the opportunity to object at the
hearing while granting the City’s attorney that opportunity. Upon hearing Nelson’s
attorney’s first objection, the Board denied it, stating that the hearing was an “informal
proceeding.” Nelson claims that, in spite of this admonition, the Board granted the
City’s objections. Nelson cites an instance during the hearing when the City’s attorney
objected to Nelson’s attorney’s line of questioning of Director Larsen and the Board
responded, “Noted. Proceed.”
¶35 “‘Despite the flexibility of administrative hearings, there remains the necessity of
preserving fundamental requirements of procedural fairness in administrative
hearings.’” Sorge v. Office of the Attorney Gen., 2006 UT App 2, ¶ 18, 128 P.3d 566(quoting Tolman v. Salt Lake Cnty. Attorney, 818 P.2d 23, 28 (Utah Ct. App. 1991)), cert.
denied, 138 P.3d 589. Here, however, we conclude that the Board did not sustain the
8
Before the Board, Nelson argued that several other similarly‐situated OCPD
employees had received more lenient discipline in spite of similar or more egregious
conduct. The Board found that those situations were not factually similar because they
did not involve use of excessive force. Nelson does not challenge this finding on
appeal.
20100976‐CA 13
City’s attorney’s objection but merely noted it and allowed Nelson’s attorney to
continue his questioning. And even assuming the Board erred in overruling Nelson’s
objections, Nelson has not demonstrated that he was harmed as a result. Cf. Lucas v.
Murray City Civil Serv. Commʹn, 949 P.2d 746, 755 (Utah Ct. App. 1997) (determining
that although the commission may have erred, the petitioner “fail[ed] to establish how
these procedural errors were harmful, e.g., he did not have time to prepare for the
hearing or, how these procedures would have resulted in a different outcome absent
such errors”).
B. The City’s Expert
¶36 Nelson argues that the Board erred by permitting Ken Wallentine to testify as the
City’s expert even though Wallentine had previously consulted with, and obtained
confidential work product from, Nelson. Even assuming for the purposes of this
argument that it was improper for Wallentine to consult with Nelson and then later
testify for the City, his doing so was not prejudicial to Nelson. Nelson acknowledges in
his brief that the Board referred to Wallentine in its decision only once. The decision
states, “The City’s expert Ken Wallent[i]ne testified that an officer in the excitement of
the moment can have a different impression of what happened than what the video
later shows to have actually happened.” This single citation to Wallentine supported
that portion of the Board’s decision that explained why it found insufficient evidence to
support the dishonesty charge against Nelson. On its face, it is not harmful to Nelson,
and actually appears to be somewhat helpful. We conclude that there is no evidence
that if the Board had excluded Wallentine’s testimony for the City, it would have
resulted in a different outcome for Nelson. See generally Lucas, 949 P.2d at 755.
CONCLUSION
¶37 The Board’s decision to uphold the OCPD’s termination of Nelson’s employment
did not exceed the bounds of reasonableness and rationality. Termination was not
disproportionate to the charge of use of excessive force. Nelson has not demonstrated
that his behavior was less egregious than that of Healy and, even if it were, we affirm
the Board’s well‐reasoned decision to uphold Nelson’s termination because one
incident nine years ago should not create a rule to which the OCPD is committed in
20100976‐CA 14
spite of gained wisdom and a changing society. In addition, given the lack of prejudice
to Nelson from any procedural deficiencies, we decline to disturb the Board’s decision.
¶38 Affirmed.
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Michele M. Christiansen, Judge
‐‐‐‐‐
¶39 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
Gregory K. Orme, Judge
20100976‐CA 15