Kelly v. SALT LAKE CITY CIVIL SERVICE COM'N

• Decision Date: 03 August 2000
• Docket Number: No. 990530-CA.,990530-CA.
• Parties: Karen KELLY, Petitioner, v. SALT LAKE CITY CIVIL SERVICE COMMISSION; and Salt Lake City Corporation, Police Department, Respondents.
• Court: Utah Court of Appeals

8 P.3d 1048

2000 Utah Ct. App. 235

Karen KELLY, Petitioner, v. SALT LAKE CITY CIVIL SERVICE COMMISSION; and Salt Lake City Corporation, Police Department, Respondents.

No. 990530-CA.

Court of Appeals of Utah.

August 3, 2000.

Carol Clawson, Snell & Wilmer, Salt Lake City, for Petitioner.

Steven W. Allred and Roger F. Cutler, Salt Lake City Law Department, Salt Lake City, for Respondents.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

ORME, Judge:

¶ 1 Petitioner Karen Kelly seeks our review of the decision of the Salt Lake City Civil Service Commission upholding her termination by Police Chief Ruben B. Ortega from the Salt Lake City Police Department for conduct unbecoming an officer. We conclude the Commission's decision was proper.

BACKGROUND

a. Events Preceding Termination

¶ 2 Kelly was a police officer with the Department from September 1, 1988 until her termination on December 11, 1998. The events culminating in her termination took place in the early morning hours of November 9, 1998. She had ended her shift and arrived home at approximately 12:30 a.m. Kelly had a history of depression and difficulty sleeping and was taking Ambien, a prescription sleep aid. She was instructed to take 10 mg. of Ambien at bedtime. Instead, Kelly took 5 mg. and began watching a movie and playing video games. Half-an-hour later she took another 5 mg. and an hour after that she admits taking yet another 10 mg. All in all, Kelly was uncertain how much Ambien she had actually taken over the course of that early morning, but admits she did not go to bed.

¶ 3 Instead, between 4:32 and 5:15 a.m., Kelly, intoxicated due to the effects of Ambien, repeatedly called the police and fire dispatch centers in the Public Safety Building in Salt Lake. Kelly had dialed the center's seven-digit number, not 911, from her cellular phone while in her living room. During those calls, she refused to give her real name, referring to herself as "Sire Arthur"; she asked to speak to "Kraut Dog," her name for a dispatcher named Kim Kraus; she asked whether a dispatcher was "cute"; called some dispatchers "babes" and others "dogs"; referred to one as a "witch"; and asked one dispatcher if she was "good," apparently in a sexual sense; she told dispatch she should blow up the Public Safety Building, but only after everyone was out of the building; she refused to give her location to dispatch; she reported smelling smoke and falsely reported a fire behind her house; she told dispatch she was drinking beer and Kool Aid; and she said she was playing around until she could get Kim on the line. During these events the dispatchers told Kelly she could not just talk on the phone and stated they were busy. Dispatch also hung up on Kelly after she made the sexual innuendo. Later, after she called back and began talking about blowing up the building, they expressed concern about her desire. Although they never really took her threat very seriously, they notified the watch commander about her calls. Dispatch also talked to Kelly's roommate, who had awakened and taken the phone from Kelly at one point. Dispatch discovered Kelly's identity, and, during the conversation with her roommate, discovered, contrary to Kelly's report, that there was no fire behind her house. They were also informed Kelly had told her roommate she had taken enough Ambien to make her "feel good."

¶ 4 Ultimately, the watch commander, Lieutenant Linton, along with Sergeant Isakson, went to Kelly's home to check on her welfare and noted that no medical attention was needed to protect Kelly or others, as her intoxicated condition was improving. Linton reported the incident to Captain Neeley later that morning and an investigation was initiated and assigned to Sergeant Askerlund. Askerlund interviewed Kelly's roommate and discovered Kelly had told her roommate she had taken "9,000" Ambien tablets that night. Isakson reported to Askerlund that Kelly had slurred speech; admitted taking some sleeping pills; and lost her balance, falling into the couch in his presence.

¶ 5 Dr. Lowry, the physician who prescribed Ambien for Kelly, wrote a letter to the Department in the course of its investigation. He stated "[i]t is not unusual for patients who have taken 20 mg. of Ambien to behave in a bizarre fashion," and indicated that a very small percentage of users become inebriated by the drug. Apparently, Kelly had been prescribed 20 mg. doses previously, but was currently on a 10 mg. prescription dose. Dr. Lowry also stated he "consistently warn[ed] people that they need to be ready to go to bed and sleep without interruption when they take [Ambien]," although he could not specifically recall so instructing Kelly.

¶ 6 Following the investigation, Chief Ortega decided to terminate Kelly. Noting Kelly's "history of sustained complaints," the Chief terminated Kelly "[b]ecause of the gravity of [her] latest misconduct, coupled with [her] employment history and the need to protect [the citizens of Salt Lake]."

b. Employment History

¶ 7 Because the decision to terminate was based on Kelly's entire history with the Department, we must set out her previous conduct considered by the Chief in terminating her employment and considered by the Salt Lake City Civil Service Commission in upholding the termination. While Kelly's superior officers noted several positive aspects of her performance and the Commission's record contains many letters of thanks from members of the community, Kelly was also noted as having a recurring problem of being late for, or completely missing, work without prior approval. In 1992, her performance evaluation showed she had been late eleven times in seven months. In 1995, 1996, and 1997 Kelly's performance evaluations noted she took time off without prior approval and that she was often late for line-ups. In 1996 she was also counseled about appropriate use of sick time, as she had a history of taking many of her sick days just before or after long weekends. Also in 1996, Kelly had failed to appear as a prosecution witness at a preliminary hearing and the District Attorney wrote a letter to her division commander complaining that Kelly's absence had seriously prejudiced the prosecution in an important criminal case. Near the end of her employment in 1998, while assigned to the Detective Division of the Department, Kelly's supervisor noted that she lacked focus, resulting in a failure to quickly resolve her cases.

¶ 8 Kelly had also attempted suicide on two previous occasions. On the morning of October 1, 1994, Kelly ingested an overdose of prescribed medications and was transported to Cottonwood Hospital. On that very night, Kelly's roommates had taken her police weapon because they felt she might take her life with it. After the attempted suicide, Kelly's treating physician prescribed medication, which included depression medications and Ambien. Six weeks later, Kelly again tried to take her life, this time by overdosing on Ambien. She was discovered in her vehicle up Big Cottonwood Canyon and taken in for medical help.

¶ 9 Thereafter, Kelly was given a "fitness for duty" evaluation which concluded she had a substance abuse problem. She also received a disciplinary letter delineating violations of Department policy. Her continued employment status was conditioned on her participation in a monitored substance abuse program and indefinite absolute sobriety, and she was warned that any similar future conduct "will be cause for further disciplinary action up to and including termination." Kelly completed her substance abuse and after-care program, but only after additional pressure was exerted by the Department because of her uncooperative attitude.

¶ 10 During her participation in the after-care program, Kelly was involved in a single-car accident in her police vehicle at 2:00 a.m. on June 28, 1995. Her vehicle had jumped the curb and run into a tree because she was distracted while adjusting the placement of her radio. There was some suspicion she was impaired, although she said she was not. Kelly submitted to a urine screen, and the test was negative. She was given a letter of reprimand as a result of the collision—her second preventable accident while driving a police vehicle. She was later given a letter of reprimand and required to pay for the damage when the oil in her police cruiser had run dry, and the engine seized due to her neglect.

¶ 11 On July 1, 1998, Kelly failed to report to work. That morning she called her work section and reported she was waiting for an exterminator to come to her house. She remained at home, and later reported she had to visit a veterinarian with her pet because of the infestation. Her supervisor was concerned about inconsistencies in her story and the Department initiated an investigation. A month later she finally admitted she had made up the stories. Termination was recommended by Kelly's division commander then, but the Chief decided to give her one more chance, telling her in a letter that her peers were aware of her lying and had lost confidence in her; that her immediate supervisors recommended termination; that she would be suspended without pay for five days; and that she was to consider herself on notice regarding any future misconduct, stating, "You are hereby put on notice that ANY future violation of Department policy will not be tolerated and if such violation(s) occur, your employment status will be in jeopardy." This stern warning was given about three months before her misuse of Ambien, which precipitated the events that led to her termination.

c. Administrative Appeal

¶ 12 After being fired, Kelly appealed to the Salt Lake City Civil Service Commission, seeking reinstatement. The Commission upheld the Chief's decision, finding that Kelly voluntarily ingested a substance inconsistent with medical advice so that she acted intentionally and "was responsible and accountable for her actions even though she was...