Taylorsville City v. Taylorsville City Employee Appeal Board

2013 UT App 69_________________________________________________________
THE UTAH COURT OF APPEALS
TAYLORSVILLE CITY, TAYLORSVILLE CITY POLICE DEPARTMENT,
AND TAYLORSVILLE POLICE CHIEF DEL CRAIG,
Petitioners,
v.
TAYLORSVILLE CITY EMPLOYEE APPEAL BOARD
AND OFFICER BRADLEY GILLESPIE,
Respondents.
Opinion
No. 20110546‐CA
Filed March 14, 2013
Original Proceeding in this Court
Phillip W. Dyer, B. Kent Morgan, and Benjamin R. Dyer, Attor‐
neys for Petitioners
Ryan B. Hancey, Attorney for
Respondent Officer Bradley Gillespie
JUDGE CAROLYN B. MCHUGH authored this Opinion,
in which JUDGES JAMES Z. DAVIS
and MICHELE M. CHRISTIANSEN concurred.
McHUGH, Judge:
¶1 Taylorsville City (the City) appeals from a decision by the
Taylorsville City Employee Appeal Board (the Board) reversing the
City’s termination of Officer Bradley Gillespie from the Taylorsville
City Police Department (the Department). We set aside the Board’s
decision and remand for proceedings consistent with this decision.
Taylorsville City v. Taylorsville City Employee Appeal Board
BACKGROUND
¶2 The Department hired Gillespie as a police officer on
December 15, 2008, subject to a one‐year probationary period.
During that year, the Department provided Gillespie with monthly
performance evaluations that indicated he “need[ed] improve‐
ment” in the exercise of judgment and in his decision‐making.
While still on probation, Gillespie entered a private home illegally
and deployed his taser on a young female who resisted his
attempts to enter. As a result, the Department provided Gillespie
with a corrective action plan. Before Gillespie completed that plan,
the Department removed him from probationary status and
granted him merit employment status. Shortly thereafter, Gillespie
deployed his taser on a handcuffed and restrained suspect and was
disciplined for the use of excessive force in the form of a written
reprimand and a ten‐day suspension. While Gillespie’s appeal of
the excessive force discipline was pending, he was involved in a
series of incidents that are the subject of this appeal.
¶3 The first incident involved a pornographic video that
Gillespie had stored on his personally‐owned cellular telephone
(the pornography incident). The initial image of the video appeared
in a one‐half inch by one‐half inch icon on the screen of his phone,
and touching the icon immediately played the video in full‐screen.
While on duty sometime in the fall of 2010, Gillespie “briefly”
showed the icon to another on‐duty officer and explained that “it
was . . . an act of oral sex.” In October of 2010, while Gillespie was
off duty but volunteering for canine training, he showed the icon
to another officer.
¶4 The second incident occurred on November 21, 2010, while
Gillespie was off duty and intoxicated at his home (the intoxication
incident). At Gillespie’s invitation, an on‐duty Taylorsville police
officer went to Gillespie’s home and was joined by two other on‐
duty officers. According to one of the officers, Gillespie “was very
intoxicated and jumped up on the hood of [the officer’s police]
car,” denting it. Gillespie announced that he was car surfing. One
20110546‐CA 2 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
of the other officers administered a portable breath test to Gillespie,
which registered an alcohol concentration of .198 grams.1
¶5 Based on these allegations, the Taylorsville Police Chief (the
Police Chief) initiated an internal affairs (IA) investigation. An IA
investigator (the Investigator) interviewed the other officers
involved in both incidents and then called Gillespie and told him
to report for an interview the next day. Upon Gillespie’s inquiry,
the Investigator revealed that the investigation concerned the
intoxication incident, but he did not mention the pornography
incident.
¶6 Immediately before the interview the following day, the
Investigator provided Gillespie with two documents to read and
sign. The first was a copy of the Department’s policy 2‐5‐02.08 on
“member questioning,” which provides that “[m]embers are
required to answer accurately and completely, all questions about
official duties directed to them by superiors and other authorized
members. Failure to do so may subject the member to appropriate
disciplinary action, including termination, for insubordination
and/or misrepresentation.” The second document was an IA
investigation notice, which indicated that Gillespie was charged
with violating “[s]tandards of conduct,” that he had “an obligation
under [policy] 2‐5‐02.08 . . . to answer accurately and completely all
questions about official duties,” and that “[r]efusal to do so is
grounds for . . . termination.” Gillespie signed the notice and the
copy of policy 2‐5‐02.08 and acknowledged that he had read and
understood both documents. The Investigator then proceeded with
the interview.
1. For comparison, under Utah law, a “blood or breath alcohol
concentration of .08 grams or greater” is over the legal limit,
rendering a person unable to drive legally. See Utah Code Ann.
§ 41‐6a‐502(1)(a) (LexisNexis 2010).
20110546‐CA 3 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶7 With respect to the intoxication incident, Gillespie initially
stated that he “kinda leaned up against [another o]fficer’s car and
then leaned back,” “sitting on [the] trunk.” He acknowledged that
he mentioned car surfing but said he meant the comment as a joke.
Gillespie also claimed to have consumed only “two or three”
alcoholic beverages prior to the incident and that he had inspected
the vehicle for damage that night and found none. Later in the
interview, however, Gillespie conceded that he probably stood on
the police car and also admitted to drinking heavily.
¶8 When questioned about the pornography incident, Gillespie
first denied that he had such a video on his cellular telephone but
later only denied showing it to other officers. After further
questioning, which included information about the statements
given by other officers, Gillespie admitted that two officers saw the
pornographic icon and that he had deleted it from his phone two
or three days before the interview. He also admitted that he had
offered to show the image to another officer who had declined to
view it.
¶9 Based on the interviews of Gillespie and the other officers,
the Investigator reported that there was substantiated evidence that
Gillespie had damaged the patrol vehicle while off duty and
intoxicated, and that Gillespie had shown other officers a porno‐
graphic image. The Investigator also indicated that Gillespie
dishonestly answered some of the questions during the interview.
As a result, the Investigator concluded that Gillespie had violated
several Department policies. The Investigator recommended that
Gillespie receive a written warning for the intoxication incident,
that he receive forty hours of leave without pay for showing the
pornographic image to other officers, and that he “be terminated
for not being truthful in the [IA] investigation.” The Investigator
reasoned that termination was appropriate because Gillespie’s
dishonesty could be used to impeach his credibility if he were
called to testify against a criminal defendant. The assistant police
chief agreed that Gillespie should be terminated for dishonesty.
20110546‐CA 4 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶10 After reviewing the report, the Police Chief provided
Gillespie with a written “Notice of Intent to Impose Termination,”
which stated that Gillespie was subject to termination for “Misrep‐
resentation and Obstructing an IA Investigation,” lack of “Atten‐
tion to Duty,” and “Private Life, Public Discredit, Equipment
Damage.” The notification also advised Gillespie of his right to
appeal. The Police Chief then met with Gillespie and his attorney
and later reviewed Gillespie’s written statement in mitigation.
Ultimately, the Police Chief terminated Gillespie’s employment
with the Department. Gillespie appealed to the Board.
¶11 After briefing and a hearing, the Board held that the City
had improperly terminated Gillespie. It first determined that
Gillespie did not violate the Department policies requiring him to
be attentive to his duties by displaying the pornographic image.
The Board reasoned that Gillespie had displayed the image during
“down time” and that it therefore did not result in any neglect of
police work. Next, the Board ruled that Gillespie did not “embar‐
rass himself or the Department” by showing the image to other
officers. In reaching that conclusion, the Board interpreted the
Department’s policy as prohibiting only “actions . . . that discredit[]
the officer or the Department in the eyes of members of the public.”
Where Gillespie never showed the image to a member of the
public, the Board ruled that he had not violated Department policy.
The Board also noted that although the City’s witnesses testified
that it had “zero tolerance for pornography,” the City’s written
anti‐pornography policy extended only to city‐owned devices. As
a result, the Board concluded that the policy did not prohibit
Gillespie’s possession of pornography on his personally‐owned
cellular telephone.
¶12 With respect to the dishonesty charges, the Board stated that
Department policy required Gillespie to answer questions about
his official duties “accurately and completely” and explained that
Gillespie “would violate [s]ection 2‐2‐04.05 of the Department
[p]olicies if in an [IA] investigation he failed to accept responsibility
for his actions by attempting to conceal, divert or mitigate his
20110546‐CA 5 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
culpability.” The Board then found that during the interview,
Gillespie “denied several times that he had shown an[ image] of the
sexual act on his cell phone to other officers” and “failed to fully
disclose . . . the reason for his lack of recall” about the intoxication
incident, “which he later acknowledged to be due in part to his
intoxication.” Additionally, the Board found that Gillespie’s
“assertion that he checked the hood of [the police] car for damage
that night lacks credibility and was an effort to mitigate his
responsibility.” Thus, the Board concluded that “this conduct in the
interview violated [s]ection 2‐5‐2.08(1) and [s]ection 2‐2‐04.05 of the
Department [p]olicies.”
¶13 Nevertheless, the Board determined that termination for
dishonesty related to the pornography incident was not appropri‐
ate because Gillespie was not notified that the investigation would
include those allegations. The Board noted that Gillespie answered
truthfully about the pornography incident “after becoming fully
aware from the questioning that this was part of the investigation.”
¶14 As to the intoxication incident, the Board determined that
Gillespie had actual notice of the investigation and that therefore
any deficiency in the written notice with regard to that charge was
harmless. However, the Board found that there was insufficient
evidence that Gillespie had damaged the police vehicle. The Board
also decided that because the conduct “did not involve [Gillespie’s]
public safety duties,” terminating him for dishonesty with regard
to that conduct was not merited. As a result, the Board reversed the
Police Chief’s termination of Gillespie. The City now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 The City first argues that the Board either abused its
discretion or acted arbitrarily and capriciously in applying a “more
20110546‐CA 6 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
expansive standard of review” than the “substantial evidence”
standard. In particular, the City contends that the Board erred in
failing to afford any deference to the Department’s interpretation
of its own policies. The City next argues that the Board abused its
discretion in overturning the decision to terminate Gillespie
because Gillespie failed to show that termination was a dispropor‐
tionate sanction. Finally, the City argues that the Board erred by
concluding that Gillespie had a due process right to notice of the
charges against him at the investigative stage.
¶16 Our review of the Board’s decision is “on the record of the
appeal board” and is limited to determining whether the Board
“abused its discretion or exceeded its authority.” See Utah Code
Ann. § 10‐3‐1106(6)(c) (LexisNexis 2012);2 Howick v. Salt Lake City
Emp. Appeals Bd., 2009 UT App 334, ¶ 4, 222 P.3d 763. “We will
uphold the Board’s decision unless it exceeds the bounds of
reasonableness and rationality.” Rosen v. Saratoga Springs City, 2012
UT App 291, ¶ 8, 288 P.3d 606 (citation and internal quotation
marks omitted). However, to the extent that the Board’s decision
implicates due process, we review it for correctness. See id.; accord
Fierro v. Park City Mun. Corp., 2012 UT App 304, ¶ 8 (“Due process
challenges . . . are questions of general law and we give no
deference to the agency’s determination of what constitutes due
process[.]” (alterations in original) (citation and internal quotation
marks omitted)). Likewise, when “reviewing [the Board’s] interpre‐
tations of general questions of law, this [c]ourt applies a correc‐
tion‐of‐error standard, with no deference to the expertise of the
[Board].” Cf. Allen v. Department of Workforce Servs., 2005 UT App
186, ¶ 6, 112 P.3d 1238.
2. Because the 2012 amendment to the relevant section of the Utah
Code does not impact our analysis, we cite the current version for
the convenience of the reader.
20110546‐CA 7 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
ANALYSIS
I. The Board’s Standard of Review
¶17 The City first argues that the Board exceeded its discretion
by setting its own standard of review. Although the Board did not
define this “more expansive” standard, it appears to have afforded
no deference to the Police Chief’s interpretation of Department
policies or his reasoning that Gillespie’s dishonesty in the interview
could be used to impeach his credibility if he were called as a
witness during a future criminal trial. Because the City’s authority
to create an appeal board is based in statute, we begin our analysis
of this issue by examining that legislation. “Our primary objective
in interpreting a statute is to give effect to the intent of the legisla‐
ture.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d 410. The best evidence
of that intent is the plain language of the statute. See Summit
Operating, LLC v. State Tax Comm’n, 2012 UT 91, ¶ 11, 293 P.3d 369.
¶18 In Utah’s Municipal Code, the Utah Legislature has dele‐
gated certain duties to municipal governments, including the initial
review of discharge, suspension, and involuntary transfer involv‐
ing municipal employees. See Utah Code Ann. §§ 10‐3‐1105 to ‐1106
(LexisNexis 2012). In particular, the legislature has authorized
municipalities to create an appeal board or appoint a hearing
officer to hear appeals from merit employees who have been
terminated. See id. § 10‐3‐1106. Included in that authority is the
right of “the governing body of each municipality by ordinance” to
prescribe “the standard of review” to be applied by the appeal
board in reviewing the municipality’s termination decisions. See id.
§ 10‐3‐1106(7)(a). Despite this authority, the City had not adopted
an ordinance setting the standard of review prior to the Board’s
decision reversing Gillespie’s termination.3
3. The City enacted an ordinance that established a “substantial
evidence” standard of review for the Board on March 21, 2012, after
(continued...)
20110546‐CA 8 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶19 The Board concluded that in the absence of action by the
City, it could set its own standard of review. The City contends that
the Board exceeded its discretion in doing so. In response, Gillespie
claims that because the City failed to act, the Board “was free to
apply whatever standard of review it believed was most appropri‐
ate.”
¶20 Although the Utah Legislature has indicated that cities may
prescribe the standard of review to be applied by their employee
appeal boards, nothing in the statute addresses the standard of
review applicable in the absence of a such an ordinance. See id.§§ 10‐3‐1105 to ‐1106. Likewise, there is nothing in sections 10‐3‐
1105 or 10‐3‐1106 that grants an appeal board the authority to set
its own standard of review. See id.; cf. Pearson v. South Jordan Emp.
Appeals Bd., 2009 UT App 204, ¶ 14, 216 P.3d 996 (“[T]he only
authority granted by the legislature is contained in section 10‐3‐
1106, which authorizes the Board to determine the cause of the
merit employee’s discharge, suspension, or transfer.”). Instead, the
plain language of the statute grants that authority to the “govern‐
ing body of each municipality.” See Utah Code Ann. § 10‐3‐
1106(7)(a); see also Mountain States Tel. & Tel. Co. v. Atkin, Wright &
Miles, Chartered, 681 P.2d 1258, 1263 (Utah 1984) (“Virtually all
authorities hold [that] when authority is delegated to an adminis‐
trative officer or body, such delegation within its terms and
limitations is primary and exclusive unless a contrary intent is clearly
manifested by the legislature.”). The Utah Municipal Code defines
“[g]overning body” as “collectively the legislative body and the
executive of any municipality,” and further indicates that “in a city
of the third, fourth, or fifth class, the governing body is the city
council.” See Utah Code Ann. § 10‐1‐104(3)(b) (LexisNexis 2012).
3. (...continued)
the events that resulted in this petition for review. See Taylorsville,
Utah, City Code § 2.28.080.
20110546‐CA 9 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
The City is a city of the third class.4 Thus, the Board is not the
“governing body” of the City and it exceeded its authority by
adopting its own “more expansive” standard of review.
¶21 Because the City did not act and the Board was not autho‐
rized to do so, we now consider what standard of review applies
when a municipality fails to exercise the authority granted by the
Utah Legislature. Although we look first to the plain language of
the statute, often “statutory text may not be plain when read in
isolation, but may become so in light of its linguistic, structural,
and statutory context.” In re J.M.S., 2011 UT 75, ¶ 13 (citation and
internal quotation marks omitted). Therefore, “our interpretation
of a statute requires that each part or section be construed in
connection with every other part or section so as to produce a
harmonious whole.” Id. (citation and internal quotation marks
omitted). Here, our analysis is complicated by the statute’s silence
with respect to the default standard of review.
¶22 In Associated General Contractors v. Board of Oil, Gas & Mining,
2001 UT 112, 38 P.3d 291, the Utah Supreme Court considered a
similar issue. There, an association of general contractors chal‐
lenged rules adopted by the Board of Oil, Gas, and Mining (the
OGM Board) in the district court. Id. ¶¶ 1, 11. The Utah Adminis‐
trative Rulemaking Act was silent on the appropriate standard of
review, and each party urged a different standard. Id. ¶¶ 15–16. In
4. The class of a city is determined by its population. A third class
city has a population of 30,000 or more but less than 65,000. See
Utah Code Ann. § 10‐2‐301 (LexisNexis 2012). Although the
population of the City was not included in the record, in order to
determine what class the City is, this court has the “discretion to
take judicial notice of a fact ‘not subject to reasonable dispute’
because the fact is ‘capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned.’” See Finlayson v. Finlayson, 874 P.2d 843, 847 (Utah Ct.
App. 1994) (quoting Utah R. Evid. 201(b)).
20110546‐CA 10 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
reaching its decision upholding the rules, the district court applied
a substantial evidence standard, concluding that “the rule should
be upheld if the quantum and quality of evidence the [OGM] Board
relied upon was adequate to convince a reasonable mind to
support [the agency’s] conclusion.” Id. ¶ 22 (second alteration in
original) (citation and internal quotation marks omitted).
¶23 On appeal, the supreme court upheld the district court’s
decision, stating, “[i]f a statute is silent as to what standards of
review apply under its provisions, . . . we employ the applicable
standards of review as previously enunciated by our decisional
law.” Id. ¶ 17. The supreme court further indicated that the
applicable standard of review is dependent upon the nature of the
particular challenge. Id. ¶ 19. With respect to the contractors’ claim
that the OGM Board misinterpreted the operative terms of the
rules, the supreme court deferred to that agency’s expertise,
adopting a standard of “arbitrariness and capriciousness.” Id. Next,
the court considered the contractors’ claim that the rules were not
based on substantial evidence. Id. ¶ 20. See generally Utah Code
Ann. § 63G‐3‐602(4)(a)(ii) (LexisNexis 2011) (identifying as a
ground for declaring a rule invalid situations in which “the rule is
not supported by substantial evidence when viewed in light of the
whole administrative record”). Because it viewed the substantial
evidence challenge as injecting adjudicatory concepts of eviden‐
tiary proof into the realm of rulemaking, the court applied the
standard of review outlined in previous cases under the Adminis‐
trative Procedures Act. See Associated Gen. Contractors, 2001 UT 112,
¶ 21; see also Utah Code Ann. §§ 63G‐4‐101 to ‐601 (2011 & Supp.
2012). It held that “in determining whether a rule is supported by
substantial evidence, courts must decide if the relevant findings
were ‘reasonable and rational,’ although such an assessment ‘does
not constitute a de novo review or a reweighing of the evidence.’”
Id. (quoting Larson Limestone Co. v. State, Div. of Oil, Gas & Mining,
903 P.2d 429, 430–31 (Utah 1995)).
20110546‐CA 11 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶24 Although the present case involves a challenge to the
standard of review applied by the Board, rather than a district
court, we consider the reasoning of Associated General Contractors
instructive. Accordingly, we look to both the nature of the chal‐
lenge to the Board’s ruling and our decisional law for guidance. We
begin with an examination of our precedent.
¶25 In addition to the provisions governing appeal boards, the
Utah Municipal Code authorizes the establishment of civil service
commissions. See Utah Code Ann. § 10‐3‐1003 (2012). These
commissions serve a role similar to employee appeal boards, but
they review the termination of employees of police and fire
departments of first and second class cities. See id. §§ 10‐3‐1001 to
‐1012. Like employee appeal boards, civil service commissions
“shall fully hear and determine the matter” when an employee
appeals a termination decision of the department. See id. § 10‐3‐
1012(2) (civil service commission); id. § 10‐3‐1106(3)(b)(ii) (em‐
ployee appeal board). However, unlike appeal boards, the Utah
Legislature has not granted cities the authority to establish a
standard of review for civil service commissions. Compare id. § 10‐3‐
1106(7)(a) (“[T]he procedure for conducting an appeal [before the
appeal board] and the standard of review shall be prescribed by the
governing body of each municipality by ordinance.”), with id. §§ 10‐
3‐1001 to ‐1012 (containing no similar provision). Accordingly, the
civil service commissions are in a posture much like an appeal
board in a city that has not adopted a standard of review.
¶26 Decisions from our appellate courts have explained that the
proper role of a civil service commission is to address two ques‐
tions: “‘(1) do the facts support the charges made by the depart‐
ment head, and, if so, (2) do the charges warrant the sanction
imposed?’” Kelly v. Salt Lake City Civil Serv. Comm’n, 2000 UT App
235, ¶ 16, 8 P.3d 1048 (quoting In re Discharge of Jones, 720 P.2d
1356, 1361 (Utah 1986)). Here, the Board ruled that the facts did
support the dishonesty charges, concluding that Gillespie’s conduct
during the interview violated Department policy regarding
20110546‐CA 12 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
truthfulness and candor. Thus, we consider only the second
issue—the Board’s determination that the dishonesty charges did
not warrant termination.
¶27 This second inquiry “is a limited one” because “[t]he [Police
Chief] must manage and direct his deputies, and is in the best
position to know whether their actions merit discipline.” See In re
Discharge of Jones, 720 P.2d at 1363. Accordingly, if the facts support
the charges, the Board “must affirm the [Police Chief’s] disciplinary
action, unless it finds the sanction so clearly disproportionate to the
charges as to amount to an abuse of the [Police Chief’s] discretion.”
See id.
¶28 More recently, in Harmon v. Ogden City Civil Service Commis‐
sion, 2007 UT App 336, 171 P.3d 474, this court stated, “In determin‐
ing whether the sanction of dismissal is warranted . . . , the
[c]ommission must affirm the sanction if it is (1) appropriate to the
offense and (2) consistent with previous sanctions imposed by the
department.” Id. ¶ 8 (emphasis added) (citation and internal
quotation marks omitted). In making that assessment, the civil
service commission must grant appropriate deference to the police
chief. Id. ¶ 6 (“The commission is required to give deference to the
[police c]hief, as he is best able to balance the competing concerns
in pursuing a particular disciplinary action.” (citation and internal
quotation marks omitted)); Kelly, 2000 UT App 235, ¶ 22
(“[D]iscipline imposed for employee misconduct is within the
sound discretion of the [police c]hief.”). However, that deference
is not unlimited. The court in Kelly v. Salt Lake City Civil Service
Commission, 2000 UT App 235, 8 P.3d 1048, noted that while we
“proceed cautiously, so as not to undermine the [police c]hief’s
authority,” a police chief “exceeds the scope of his discretion if the
punishment imposed is in excess of ‘the range of sanctions
permitted by statute or regulation, or if, in light of all the circum‐
stances, the punishment is disproportionate to the offense.’” Id.(quoting Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d 746, 761
(Utah Ct. App. 1997)).
20110546‐CA 13 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶29 This review of our decisional authority indicates that a civil
service commission should give deference to a police chief’s
advantaged position in considering whether the sanction selected
by the police chief is warranted, and that the standard of review is
substantial evidence with respect to findings of fact and abuse of
discretion with respect to the discipline selected. In the absence of
a city ordinance expressly rejecting this approach, we are con‐
vinced that the same standard applies here. See generally Rosen v.
Saratoga Springs City, 2012 UT App 291, ¶ 8, 288 P.3d 606 (citing
Lucas and applying substantial evidence review in considering a
challenge to findings made by an employee appeal board); Guenon
v. Midvale City, 2010 UT App 51, ¶ 4, 230 P.3d 1032 (mem.)
(applying the reasoning of civil service commission cases to an
appeal board governed by Utah Code section 10‐3‐1106); Kelly, 2000
UT App 235, ¶ 24 (applying the abuse of discretion standard to the
review of discipline imposed). Accordingly, the Board exceeded its
discretion by adopting a different standard of review. In section III,
infra ¶¶ 41–48, we address whether the use of that standard
affected the Board’s assessment of the appropriateness of
Gillespie’s termination.
II. Notice
¶30 We next consider the City’s claim that the Board exceeded
its discretion by holding that Gillespie did not have adequate
notice of the charges against him. According to the City, the Board
violated the City’s due process rights by considering on its own
motion whether Gillespie’s due process rights were violated by the
inadequate notice of the investigation’s scope. The City contends
that because Gillespie did not raise the issue, the Board’s
consideration of it deprived the City of the “opportunity to be
heard in a meaningful way.” See generally Dairy Prod. Servs., Inc. v.
City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 581. Gillespie responds
that the Board’s decision was not based on his due process rights
but limited to the interpretation of the Department’s own policy,
which was clearly at issue.
20110546‐CA 14 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶31 In reversing the Police Chief’s termination of Gillespie’s
employment, the Board reasoned that the Department had failed
to give Gillespie the notice required by Department policy 2‐5‐
02.03(5) (the Notice Policy), which provides, “Prior to any formal
interview of an accused member as part of an [IA] Investigation,
members will be given written notification of the allegations and
informed of their rights and responsibilities relative to the
investigation in accordance with the Member Questioning Policy.”
¶32 Interpreting the Notice Policy, the Board stated, “Gillespie
did not receive the Notification Form until he sat down with the
[Investigator] for the interview. We do not believe that
immediately prior to the beginning of the interview is prior notice
as required by this policy.” It further indicated that even if the
written notice presented to Gillespie on the day of the interview
could be considered timely, the notice was deficient because it
merely stated that the investigation involved “[s]tandards of
conduct” and did not outline the specific allegations against
Gillespie. The Board explained that “use of the word ‘allegations’
in the policy requires the Notification Form to list in general terms
the factual allegations being investigated so that the officer can
properly prepare for the interview.” The Board then concluded that
the Department failed to comply with its own Notice Policy and, in
doing so, “failed to provide the due process to which Gillespie was
entitled.”
¶33 Despite the Board’s single reference to “due process,” we
agree with Gillespie that the basis of its decision was the City’s
failure to comply with its own Notice Policy and not the concept of
constitutional due process. The Board does not reference either the
Utah Constitution or United States Constitution, or address any of
the legal concepts traditionally associated with the deprivation of
constitutional due process. See Lucas v. Murray City Civil Serv.
Comm’n, 949 P.2d 746, 754 (Utah Ct. App. 1997) (holding that
failure to provide notice required under department policy did not
deprive an officer of due process because he had actual notice of
20110546‐CA 15 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
the excessive force charge being investigated and was provided an
opportunity to be heard before he was terminated). Instead, the
focus of the Board’s analysis is on the City’s failure to give Gillespie
written notice of the allegations, as required by the Department’s
Notice Policy. We therefore reject the City’s contention that the
Board violated the City’s due process rights by introducing a due
process argument on behalf of Gillespie.
A. Interpretation of the Notice Policy
¶34 We next consider the City’s alternative argument that the
Board was required to interpret the Department’s Notice Policy
consistently with Department practices. “In disciplinary
proceedings, a public body must comply with its own rules and an
employee being disciplined is entitled to rely upon those rules.” Id.
at 754. The City contends that the Department complied with the
Notice Policy. In support, it relies on the testimony from the Police
Chief indicating that the notice was a standard document used in
IA investigations since at least 2006, and testimony from the
Investigator that the Department’s standard procedure is to
provide the notice immediately prior to an IA interview. Even
accepting that these practices reflect the Police Chief’s
interpretation of the Department’s Notice Policy, that interpretation
is entitled to deference only if it is reasonable. See Westside Dixon
Assocs., LLC v. Utah Power & Light Co./PacifiCorp, 2002 UT 31, ¶ 7,
44 P.3d 775 (holding that the court applies an intermediate
standard of review when considering an agency’s interpretation of
its own rules, “deferring to an agency’s interpretation as long as it
is both reasonable and rational”). Here, the Department’s
interpretation of its Notice Policy is not reasonable or rational.
¶35 First, the Notice Policy uses precise language, indicating that
the officer must be given “written notification of the allegations”
prior to the IA Investigation. We agree with the Board that
“allegations” requires something more than a vague reference to
“policy violations.” See Black’s Law Dictionary (9th ed. 2009)
20110546‐CA 16 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
(defining “allegation” as “a party’s formal statement of a factual
matter as being true or provable”). Second, the requirement that
the notice of the allegations be provided to the officer “prior to any
formal interview” should be interpreted in a manner that renders
the Notice Policy meaningful. Cf. Fierro v. Park City Mun. Corp.,
2012 UT App 304, ¶ 16 (“It would be illogical for the statute to
explicitly require a municipality to establish an appeal process
through which an employee has an opportunity to refute the
allegations against him, and yet view it as not requiring that the
city give that employee clear notice of the allegations he should be
prepared to address.”). The Department’s practice of providing
written notice to an officer who is the subject of an IA investigation
at the time the officer arrives for the formal interview serves little
to no purpose and is therefore unreasonable. Accordingly, the
Board was free to reject the Police Chief’s interpretation of the
Notice Policy, and we do not disturb its conclusion that the City
failed to comply with it.
B. The Harmfulness of the Inadequate Notice
¶36 Despite that conclusion, the Board found that Gillespie had
actual notice that he would be questioned about the intoxication
incident. See Lucas, 949 P.2d at 750, 754 (holding that actual notice
was sufficient despite failure to give the officer written notice of the
charges against him as required by a policy identical to the City’s);
see also Yardley v. Department of Corr., 2006 UT App 49U, paras. 6–7
(mem.) (holding that the correction department’s failure to follow
its own procedures and use a committee review of termination was
harmless where the petitioner’s pretermination hearing “reviewed
the same issues that would have been covered by the committee
review” and the petitioner did not contest the factual allegations
against him). Gillespie does not challenge that finding, or any other
findings, on appeal. Accordingly, the City’s failure to provide
written notice of the allegations regarding the intoxication incident
prior to the interview was harmless.
20110546‐CA 17 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶37 However, there is no indication in the record that Gillespie
had actual notice that the IA interview would include questions
about the pornography incident. The City argues that this was
harmless because, while Gillespie may not have known that he
would be questioned about the pornography incident, he had
ample notice that he could be terminated if he failed to answer all
questions “accurately and completely.”5 Although Gillespie claims
that he was dishonest because he “was caught off guard” by the
questioning about the pornography incident, he admitted that prior
to the IA interview, he knew he could be fired for giving
inaccurate, false, or misleading answers to any questions.
¶38 The City also notes that an overly restrictive interpretation
of the Notice Policy would limit the Department’s disciplinary
authority to offenses it is aware of prior to the investigation. Under
the Board’s interpretation, if an officer revealed information
indicating inappropriate conduct of which the Department was
unaware before the interview, the officer would be immune from
disciplinary action. We agree that this interpretation is
unreasonable. Even if the failure to notify Gillespie that he would
be questioned about the pornography incident could protect him
from discipline regarding that incident—an issue we do not
decide—it would not prevent the Department from disciplining
5. The City also contends that the fundamental requirements of due
process were met because the “Notice of Intent to Impose
Termination” included detailed information about the allegations
against Gillespie. See Lucas v. Murray City Civil Serv. Comm’n, 949
P.2d 746, 754 (Utah Ct. App. 1997). The City also notes that
Gillespie and his attorney met with the Police Chief prior to
Gillespie’s termination and then sent the Police Chief a statement
in mitigation. As discussed, however, the Board’s decision was
based on the Department’s failure to follow its own Notice Policy,
not on a violation of due process. While due process sets the
minimum notice requirements, the City adopted a policy providing
more protection to the members of its police force.
20110546‐CA 18 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
him for violations it could not have notified Gillespie about
because they had not yet occurred or because the Department was
unaware of them. Accordingly, we hold that Gillespie had
sufficient notice prior to the interview that he could be disciplined
for dishonesty.
¶39 Additionally, the Board determined that Gillespie was
equally untruthful and evasive when answering questions about
the intoxication incident despite actual knowledge of that
investigation.6 The Board concluded that Gillespie “failed to fully
disclose . . . the reason for his lack of recall about the incident . . . ,
which he later acknowledged to be due in part to his intoxication.”
The Board also determined that Gillespie’s claim that he “checked
the hood of [another officer’s] car for damage that night lacks
credibility and was an effort to mitigate his responsibility.” Thus,
even when Gillespie had actual notice of the subject matter of the
IA investigation, he answered dishonestly.
¶40 We therefore hold that the Board exceeded its discretion
when it determined that any error in the notice provided to
Gillespie was harmful in such a way that it warranted reversing the
Police Chief’s decision to terminate Gillespie’s employment.
6. Department policy 2.2‐02.04, which is related to member
questioning, states that officers must answer “accurately and
completely all questions about official duties.” Policy 2.2‐02.04
further clarifies that “[a]ny act or omission with the intent to
hinder, prevent, delay, or interfere with an IA complaint
investigation is a breach of discipline.” Additionally, policy 2‐2‐
04.05 indicates that “failure to cooperate fully in any internal
administrative investigation . . . or failing to provide complete and
accurate information in regard to any issue under investigation”
constitutes dereliction of duty, as does “[f]ailure to accept
responsibility for the member’s actions by attempting to conceal,
divert, or mitigate their true culpability.”
20110546‐CA 19 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
III. The Appropriateness of Termination
¶41 The City also argues that the Board abused its discretion
when it determined that, although Gillespie violated Department
policies with his evasive and dishonest answers during the
investigation, this conduct did not merit termination. As discussed,
the Board was required to uphold the Police Chief’s decision if
termination was “(1) appropriate to the offense and (2) consistent
with previous sanctions imposed by the department.” See Harmon
v. Ogden City Civil Serv. Comm’n, 2007 UT App 336, ¶ 8, 171 P.3d
474 (citation and internal quotation marks omitted).
A. Proportionality of the Sanction to the Offense
¶42 We first consider the Board’s decision that termination was
not an appropriate sanction for Gillespie’s dishonesty. The
Department’s discipline policy states,
In determining the type and severity of the
disciplinary action, the [Police] Chief . . . shall
consider aggravating and mitigating circumstances
which include, but are not limited to, the repeated
nature of the misconduct; prior disciplinary action
imposed; the severity of the misconduct; the
employee’s work record; the effect on the . . .
Department and the City’s operations; and/or the
potential of the misconduct to harm person(s) or
property and information presented by the employee
as a result of the pre‐disciplinary hearing.
The policy is consistent with authority from this court. In Nelson v.
Orem City, Department of Public Safety, 2012 UT App 147, 278 P.3d
1089, cert. granted, 288 P.3d 1045 (Utah 2012), this court identified
several factors relevant to the issue of whether a sanction is
proportional to the misconduct, stating,
20110546‐CA 20 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
[E]xemplary performance by an employee may serve
as evidence against termination, while job violations
and continued misbehavior could weigh in favor of
dismissal. 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.
Id. ¶ 23 (alteration in original) (citations and internal quotation
marks omitted). According to the City, Gillespie failed to provide
any evidence on these factors and therefore did not meet his
burden of establishing that termination was a disproportionate
sanction.
¶43 Although the Board concluded that termination was not
merited based on Gillespie’s dishonesty, it did not specifically
address these factors. Most troubling is the Board’s failure to
consider the Police Chief’s concern that Gillespie would not be a
credible witness in future criminal trials due to his dishonesty in
the IA interview. See generally Giglio v. United States, 405 U.S. 150,
154 (1972) (holding that prior false testimony by a witness must be
disclosed to the defense “[w]hen the reliability of a given witness
may well be determinative of guilt or innocence” (citation and
internal quotation marks omitted)); cf. Tolman v. Salt Lake Cnty.
Attorney, 818 P.2d 23, 32 (Utah Ct. App. 1991) (holding that the
county’s career services council abused its discretion by failing to
address a party’s legal contentions “because it prevented the
[career services council] from properly performing its review of the
. . . decision to terminate [his] employment”). In addition, the
Board’s decision does not reflect any deference to the Police Chief’s
20110546‐CA 21 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
advantaged position to evaluate the level of appropriate discipline.
See In re Discharge of Jones, 720 P.2d 1356, 1363 (Utah 1986). We have
previously instructed that “police officers are in a position of trust
and are thus held to the highest standards of behavior.” Lucas v.
Murray City Civil Serv. Commʹn, 949 P.2d 746, 762 (Utah Ct. App.
1997) (citation and internal quotation marks omitted). Because
“[h]onesty and credibility are crucial to [a police officer’s] proper
performance of his [or her] duties,” we have held that a police chief
has discretion to terminate an officer in cases involving dishonesty.
See id. (second and third alterations in original) (citation and
internal quotation marks omitted).
¶44 Instead, the Board’s focus was on the underlying
pornography and intoxication incidents about which Gillespie was
dishonest. The Board ruled that Gillespie was dishonest and
evasive in answering questions about both of the incidents,
specifically holding that he had “violated [s]ection 2‐5‐2.08(1) and
[s]ection 2‐2‐04.05 of the Department [p]olicies.” However, the
Board concluded that termination was unwarranted because
Gillespie did not violate any City policy by showing the
pornographic image to other officers. Although the Board’s
determination that an officer cannot violate section 2‐2.05.05(7)
unless the officer is specifically interacting with a member of the
public is dubious, we need not reach this issue because the Police
Chief concluded that dishonesty was an independent basis for
terminating Gillespie. Therefore, the Board’s focus on whether
Gillespie’s behavior during the intoxication incident could be the
subject of disciplinary action because he was off duty is also
misplaced. The Police Chief fired Gillespie because he lied about
the intoxication incident and the pornography incident, not
because he participated in them. Thus, the issue before the Board
should have been whether the sanction of termination was
appropriate for Gillespie’s violation of Department policy
regarding honesty and candor—an issue independent of the merits
of the separate sanctions recommended for Gillespie’s conduct
during the intoxication and pornography incidents.
20110546‐CA 22 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶45 Accordingly, the Board exceeded its discretion when it
ignored the Police Chief’s assessment of the impact of Gillespie’s
dishonesty on his ability to perform the duties expected of a police
officer. It also exceeded its discretion by failing to defer to the
Police Chief’s advantaged position to evaluate the discipline
appropriate under the circumstances. As a result, we set aside the
Board’s decision on this issue and remand for further proceedings
applying this standard of review and focusing on the relevant
issue—whether the sanction of termination is proportional to the
violation of Department policy requiring police officers to be
honest and candid.
B. Consistency of the Discipline with Similar Incidents
¶46 Even if a sanction is appropriate, the Board must determine
whether it is proportional. Here, the Board never reached this issue
because it concluded that termination was not an appropriate
sanction. Because this issue may be relevant on remand, we
address it for the convenience of the Board and the parties. See
generally State v. Verde, 2012 UT 60, ¶ 46 (providing guidance to the
trial court on remand).
¶47 The City argues that the level of discipline imposed on
Gillespie was consistent with the discipline imposed on other
officers guilty of dishonesty. In particular, the City highlights the
Police Chief’s testimony that although Gillespie was the first officer
to be terminated for dishonesty during an IA interview, two other
officers facing similar allegations chose to resign rather than face
termination.7 The Police Chief also indicated that Gillespie’s
dishonesty was more egregious than the behavior in the prior
cases, explaining that “it was not as clear cut” that the other officers
had lied “in an official investigation.”
7. The assistant police chief did not recall if Gillespie had been
given the opportunity to resign.
20110546‐CA 23 2013 UT App 69Taylorsville City v. Taylorsville City Employee Appeal Board
¶48 In response, Gillespie argued that the City hampered his
attempts to prove disproportionality by refusing his requests for
personnel files, thereby preventing him from independently
evaluating whether other officers who had been dishonest during
IA investigations had been terminated. The City disputed
Gillespie’s position on the ground that his request was too broad
because he sought the production of all IA files irrespective of
whether dishonesty was an issue. The Board never resolved this
dispute or considered the substantive issue of whether Gillespie’s
termination was consistent with other disciplinary actions. On
remand, the Board may make appropriate findings of fact
regarding the consistency of the sanction imposed on Gillespie for
his dishonesty.
CONCLUSION
¶49 The Board exceeded its discretion when it adopted its own
standard of review under which it concluded that Gillespie was not
afforded sufficient notice. The Board also exceeded its discretion by
failing to give deference to the Police Chief and not considering the
proper factors in assessing the appropriateness of the sanction. We
therefore set aside the Board’s decision and remand for
proceedings consistent with this decision.
20110546‐CA 24 2013 UT App 69