Macfarlane v. Career Serv. Review Office

• Decision Date: 01 August 2019
• Docket Number: No. 20180199-CA,20180199-CA
• Citation: 450 P.3d 87
• Parties: Bradley MACFARLANE, Petitioner, v. CAREER SERVICE REVIEW OFFICE and Department of Public Safety, Respondents.
• Court: Utah Court of Appeals

450 P.3d 87

Bradley MACFARLANE, Petitioner,

v.CAREER SERVICE REVIEW OFFICE and Department of Public Safety, Respondents.

No. 20180199-CA

Court of Appeals of Utah.

Filed August 1, 2019

Bret W. Rawson, Nate N. Nelson, and Jeremy G. Jones, Sandy, Attorneys for Petitioner

Sean D. Reyes, Salt Lake City, and Joshua D. Davidson, Attorneys for Respondent Department of Public Safety

Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

Opinion

POHLMAN, Judge:

¶1 After lying to his supervisors about his extramarital affairs, Bradley Macfarlane lost his position as a training officer and investigator at Peace Officer Standards and Training (POST), a division of the Department of Public Safety (DPS). Macfarlane contends that the agency acted arbitrarily and requests a less serious sanction than termination. DPS counters that honesty and integrity are vital to a POST officer's job duties and that Macfarlane has lost its trust. The Career Service Review Office (CSRO) upheld DPS's decision to dismiss Macfarlane, as do we.

BACKGROUND¹

POST

¶2 POST is responsible for the training and regulation of certified law enforcement personnel throughout the state. Its mission is to "promote and ensure the safety and welfare of [Utah's] citizens ... and provide for efficient and professional law enforcement by establishing minimum standards and training for peace officers." Utah Code Ann. § 53-6-103(3) (LexisNexis 2015). To that end, POST's role is to "ensur[e] that certified individuals meet a minimum level of fitness" and to "investigate[ ] allegations regarding those individuals that implicate [their] certificate."

¶3 All peace officers are required to be certified, id. § 53-6-202(4), and officers may have their certification "suspend[ed] or revoke[d]" for several enumerated reasons, id. § 53-6-211(1). Typically, termination of an officer's employment does not necessarily suspend or revoke the officer's certification unless the termination was for one of the enumerated reasons. See id. § 53-6-211(5)(a).

¶4 Macfarlane joined POST in 2013 and holds a POST certification. His job duties at POST included investigating allegations of misconduct among certified law enforcement officers and teaching courses on topics such as report writing and ethics. Immediately before joining POST, Macfarlane worked in Summit County as a detective. As a POST employee, Macfarlane was expected to be "beyond reproach."

The 2015 Interview

¶5 In the latter part of 2015, Macfarlane's supervisor at POST (Director) heard rumors that Macfarlane was having marital troubles. Director also heard that Macfarlane was having an affair with a woman named Kay.² In a meeting with Macfarlane (the 2015 Interview), Director asked Macfarlane "if he was having an extramarital affair with a woman named [Kay]." Though Macfarlane admitted to an "affair of the heart," he truthfully responded "no" to Director's specific question about a sexual relationship with Kay. Macfarlane later stated, however, that he understood that Director "was asking him whether he was having an affair generally, not specifically [with] one woman." And as to that query, Macfarlane did not respond truthfully. Macfarlane even apologized to another supervisor (Captain) for "lying to Director" and being "deceptive" during the 2015 Interview. As put by Macfarlane in a later interview, "I'm not an idiot. ... I knew where [Director] was going" with his question.

Macfarlane's Affairs

¶6 As it turned out, Macfarlane had affairs with five women—none of whom were named Kay. One of these women, Amy, was sexually involved with Macfarlane from November 2014 through late 2015, but they knew each other for a "few years" before that. In early 2015, Amy called Macfarlane to help her with a criminal matter she was involved in for writing bad checks. Macfarlane looked up Amy's case on a police database and discovered that the Draper Police Department was handling the matter and that he knew the detective (Detective) assigned to the case. He then put Amy in touch with Detective.

¶7 Amy later informed Macfarlane that she resolved her debt and, with Detective's assistance, was able to get the charges against her dismissed. But she also informed Macfarlane that Detective, after taking her to a restaurant, tried to kiss her in his patrol car and asked if she wanted to have sex. Amy asked if this kind of behavior was normal, and Macfarlane responded that he thought it sounded "predatory" and asked her if she wanted to file a complaint. Amy declined, and Macfarlane did not record the incident in POST's complaint log or notify Detective's superiors at the Draper Police Department about what he had been told.

The Draper Investigation

¶8 Nearly a year later, Macfarlane did tell a sergeant at POST (Sergeant) about Amy's incident with Detective. Sergeant relayed the information to Detective's supervisor, which prompted an investigation (the Draper Investigation). The Deputy Chief at the Draper Police Department (Deputy Chief) called Sergeant for more information, and Sergeant asked Macfarlane to contact Deputy Chief and provide what details he could. After Sergeant made that request, Macfarlane's "demeanor changed" and he "appeared extremely nervous." Macfarlane asked Sergeant, over and over, "Why did you do this?" and said, "I'm going to lose my job. I'm going to be in so much trouble." Macfarlane explained, "I should have put it on the complaint log, and I didn't."

¶9 Macfarlane then called Deputy Chief, who asked for identifying information about Amy so that he could investigate the matter. According to Sergeant, Macfarlane "minimiz[ed] his knowledge of [Amy]" while "appear[ing] to be helpful." In response to Deputy Chief's inquiry, Macfarlane said that he knew only Amy's first name and did not have her telephone number. He described his interaction with Amy as a "half a dozen texts, maybe two phone calls, and a face-to-face at the gym" they both attended. And when asked about Amy's last name, Macfarlane said, "It seems to me like it's a, like a Hispanic last name, but I can't recall."

¶10 Without more information, the Draper Police Department was unable to find Amy. When Macfarlane asked Sergeant if they had found Amy, Sergeant responded "no" because they had only her first name. This answer prompted Macfarlane to remark how easily he could have found her. On another occasion, nearly a year after the phone call with Deputy Chief, Macfarlane came to talk to Sergeant about "how [Macfarlane was] an awesome detective" and how Deputy Chief "doesn't know what he's doing," because he should have already found Amy. Sergeant wondered how the Draper Police Department should have found Amy with only a "common first name like that," and Macfarlane said that "they could have searched through" his Facebook friends or through her work address. Sergeant replied, "You never gave her last name," and Macfarlane said, "Yes, I did." Sergeant challenged this assertion³ and told Macfarlane that "Draper might still be interested in that" information. Sergeant then asked Macfarlane whether he was "going to tell them [how to find Amy] today." Macfarlane responded, "Not unless they ask."

¶11 After her conversation with Macfarlane, Sergeant called Deputy Chief, who was planning to meet with Macfarlane on an unrelated matter that day. Sergeant suggested that Deputy Chief ask Macfarlane about Amy because he had more information. Deputy Chief asked "why ... Macfarlane sat on this information for so long," and Sergeant told him she "did not know." Deputy Chief said that he knew "Macfarlane knew more about [Amy]" than he let on in their earlier phone conversation. On another occasion, however, Deputy Chief said that he had no issues with Macfarlane.

¶12 After Macfarlane's meeting with Deputy Chief, Macfarlane told Sergeant that "he was able to point out [Amy] ... in two seconds" and that "he should be a Deputy Chief somewhere because it was so easy." Sergeant asked why he could not have found Amy last year when Deputy Chief first asked, and Macfarlane said that he did "not want [Amy] or her drama in his life."

The 2017 Interview

¶13 In February 2017, Macfarlane's supervisors—Director and Captain—still had concerns about Macfarlane's work performance and rumors of his affairs. After interviewing Macfarlane's coworkers, who said that Macfarlane was easily distracted and was often gone from the office for long periods, Director and Captain interviewed Macfarlane (the 2017 Interview). Director told Macfarlane that he wanted a "very direct interview" and expected Macfarlane to be "completely honest." Captain then gave Macfarlane a written Garrity warning, which Macfarlane signed.

¶14 A Garrity warning assures officers that their statements given in a disciplinary interview will not be used against them in a subsequent criminal prosecution. See Garrity v. New Jersey , 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ; Kelly v. Salt Lake City Civil Service Comm'n , 2000 UT App 235, ¶ 32 n.9, 8 P.3d 1048. But an officer who "refuses to respond, or fails to respond truthfully, to questions" after receiving a Garrity warning is subject to "suspen [sion] or revo[cation]" of his or her POST certification. Utah Code Ann. § 53-6-211(1)(e) (LexisNexis 2015). Indeed, under POST guidelines, if an officer is untruthful in an interview after receiving a Garrity warning, the officer's certification will usually be revoked. However, it was also POST's practice at the time that if an officer initially lied during an interview but told the truth before the interview ended, POST would not revoke the officer's certification based on a Garrity violation.

¶15 Director had not previously used a Garrity warning in conjunction with a preliminary investigation of DPS employees for disciplinary matters. But Director decided that a Garrity warning was warranted in this situation because he "didn't have time for someone to decide if they were going to tell...