Rosen v. Saratoga Springs City, 20110497–CA.

• Decision Date: 18 October 2012
• Docket Number: No. 20110497–CA.,20110497–CA.
• Citation: 288 P.3d 606,2012 UT App 291,719 Utah Adv. Rep. 40
• Parties: Aaron ROSEN, Petitioner, v. SARATOGA SPRINGS CITY and Saratoga Springs City Employee Appeals Board, Respondents.
• Court: Utah Court of Appeals

288 P.3d 606

719 Utah Adv. Rep. 40

2012 UT App 291

Aaron ROSEN, Petitioner,

v.SARATOGA SPRINGS CITY and Saratoga Springs City Employee Appeals Board, Respondents.

No. 20110497–CA.

Court of Appeals of Utah.

Oct. 18, 2012.

Ryan B. Hancey, Salt Lake City, for Petitioner.

Heidi E.C. Leithead and Mary Ann May, Salt Lake City; and Kevin S. Thurman, Saratoga Springs, for Respondents.

Before Judges DAVIS, ROTH, and CHRISTIANSEN.

OPINION

DAVIS, Judge:

¶ 1 Aaron Rosen challenges the decision of the Saratoga Springs City Employee Appeals Board (the Board) upholding his demotion in the Police Department for Saratoga Springs City (the City). We set aside the Board's order and direct it to revisit its findings in light of this opinion.

BACKGROUND

¶ 2 Rosen's demotion from corporal to top step police officer arose from an incident occurring on January 18, 2011, in which Rosen dropped his pants in the presence of a female records clerk (Clerk) at the police department, an event the Board described as a “wardrobe malfunction.” Rosen's pants fell to around his knees, and it is unclear if anything besides his shirttails and underpants were visible. Rosen claims that in an attempt to “downplay [his] idiocy” and embarrassment, he made a comment to Clerk that she interpreted as inappropriate. The appeal focuses on what Rosen was ordered to do or not do in the wake of this pants-dropping incident.

¶ 3 The incident prompted an internal affairs investigation during which the investigating officer, Sergeant Kerry Cole, claims to have instructed Rosen on January 19, 2011, (Sergeant Cole's January 19 Instruction) to restrict his contact with Clerk to “ ‘professional contact’ ... until things ‘cooled off.’ ” Rosen interpreted that instruction as requiring him to limit his contact with Clerk during the investigation period by refraining from discussing the investigation and by conducting any interactions with her within the physical confines of the police department, but not necessarily to restrict those interactions to work-related matters.¹ Several days later, on January 26, 2011, Rosen placed a circus ticket in Clerk's department mailbox as an apparent peace offering. He obtained the ticket from his part-time job at a radio station. On the ticket he left a note stating, “Sorry so late! Enjoy!” ² Also on January 26, Rosen responded to an e-mail Clerk sent to the entire department about a work-related matter. Rosen's response did not answer the work-related question posed by Clerk in the e-mail but attempted to make a joke and exchange pleasantries. Clerk described feeling as though the e-mail was mocking her. At the close of the internal investigation on January 28, 2011, Police Chief Gary Hicken “gave [a] verbal reprimand to Corporal Rosen” (the Verbal Reprimand) as a result of the pants-dropping incident and permitted Rosen to make a brief, casual apology to Clerk.³

¶ 4 On February 2, 2011, Chief Hicken met with Rosen and “ordered Rosen to have nothing but ‘professional contact with [Clerk], and nothing else’ ” (Chief Hicken's February 2 Order). Like Sergeant Cole's January 19 Instruction, Rosen interpreted this latest instruction as requiring him to refrain from contacting Clerk outside of work and to maintain professionalism while at work. However, several days later, on February 7, while passing through the front office, Rosen congratulated Clerk for winning a River Dance ticket giveaway at his radio station. Without Clerk's prior knowledge or permission, Rosen had entered Clerk's name into the giveaway. She was selected at random for the prize and received several phone calls from relatives informing her that they heard her name read over the radio as the contest winner.

¶ 5 That same day, Rosen was placed on paid administrative leave, at which time Chief Hicken repeated to Rosen “that there is to be no contact, no gifts, no [third] party contacts or any other conduct which could be interpreted by [Clerk] as embarrassing, humiliating, or any other unwanted recognition of any kind.” In light of the circus ticket and River Dance incidents, the internal investigation was reopened and Rosen met with Sergeant Cole again on February 11, 2011. In response to the reopened investigation, Rosen submitted a written statement (the prehearing statement) to Sergeant Cole summarizing his feelings and opinion on the events. In the prehearing statement, Rosen described Sergeant Cole's January 19 Instruction as requiring him to “only communicate with [Clerk] ‘professionally’ as needed, until the conclusion of the [internal investigation].” Ultimately, Sergeant Cole's recommendation at the close of the renewed investigation was that Rosen be demoted for failing to follow his January 19 Instruction by giving Clerk a circus ticket, and Chief Hicken's February 2 Order by entering Clerk in the River Dance giveaway. Chief Hicken adopted that recommendation and demoted Rosen, characterizing the circus ticket and River Dance incidents as insubordination and conduct unbecoming an officer.

¶ 6 Rosen appealed his demotion to the Board, arguing that “[h]e was not given an order and he was not insubordinate” and that “the discipline he received was not proportionate to his alleged offense nor was it consistent with other discipline meted out by the City.” The Board upheld the demotion, concluding that giving Clerk a circus ticket and entering her into the River Dance giveaway did not amount to professional contacts and were made by Rosen intentionally, despite his being instructed by his superiors on at least two occasions to limit his contact with Clerk to professional matters. The Board determined that Rosen's “failure to follow specific instructions and the Chief's direct orders ... is insubordination, which is a serious offense.” The Board observed that Rosen's conduct “created a significant disruption within the [Police] Department, and it further illustrates his poor judgment, and an inability to lead others by his example,” thus justifying his demotion from a supervisory position.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Rosen argues that the Board's decision to uphold his demotion was not supported by substantial evidence and that the Board's failure to make adequate findings of fact has deprived him of the right to a meaningful appeal. Next, Rosen contends that the Board abused its discretion by failing to address the proportionality and consistency of the discipline imposed in light of the nature of the offense and the Police Department's history of disciplinary actions. Rosen also asserts that because the City failed to produce the recording of Rosen's January 19 investigation interview with Sergeant Cole, the Board should not have denied Rosen's motion for an adverse inference, which would have required the Board to accept Rosen's description of Sergeant Cole's January 19 Instruction. Last, Rosen argues that Board members were “improperly influenced by having reviewed the City's evidence in advance” of the hearing, thereby “taint[ing] the hearing and caus[ing] irreversible prejudice to Rosen.”

¶ 8 We review the Board's actions “for the purpose of determining if the [Board] abused its discretion or exceeded its authority.” Utah Code Ann. § 10–3–1106(6)(c)(ii) (Supp.2012). We will uphold the Board's decision “unless it exceeds the bounds of reasonableness and rationality.” See Nelson v. Orem City, Dep't of Pub. Safety, 2012 UT App 147, ¶ 17, 278 P.3d 1089 (citation and internal quotation marks omitted). We review the Board's findings for substantial evidence. See Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 758 (Utah Ct.App.1997). Last, to the extent Rosen's arguments implicate matters of due process, we review those claims for correctness. See Nelson, 2012 UT App 147, ¶ 18, 278 P.3d 1089.

ANALYSIS

I. Substantial Evidence

¶ 9 Rosen argues that the Board's findings were not supported by substantial evidence. See generally Lucas, 949 P.2d at 758 (applying a substantial evidence standard for appeals from a municipal administrative body). “Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. It is more than a mere ‘scintilla’ of evidence and something less than the weight of the evidence.” Id. (citations and internal quotation marks omitted). In conducting this review, we defer to the Board's credibility determinations. See id. Rosen challenges three particular findings. We address each in turn.

A. The January 19 Interview with Sergeant Cole

¶ 10 Rosen contends that during the January 19 interview, Sergeant Cole did not order Rosen to limit his interactions with Clerk to professional matters; rather, Sergeant Cole recommended that Rosen restrict his interactions with Clerk, while ordering him to refrain from discussing the internal affairs investigation with her until it was over. Because Rosen did refrain from discussing the investigation with Clerk, he maintains that he complied with the only order he asserts he was given at that time. Thus, according to Rosen, giving Clerk the circus ticket could not amount to insubordination of that order.

¶ 11 We disagree. While the record does contain evidence that is somewhat unclear regarding exactly what was said during the January 19 interview, we determine that substantial evidence supports the Board's finding that Sergeant Cole indeed gave a “professional contact” order to Rosen at that time.

¶ 12 Sergeant Cole testified that on January 19, he told Rosen that Clerk had filed a formal complaint and that until the internal investigation was over, “there was to be no contact with her except for professional contact.” Sergeant Cole also testified that he informed Clerk and Clerk's supervisor (Supervisor) that Rosen “wasn't to talk to” Clerk. Clerk's testimony corroborated this, describing her understanding of Sergeant Cole's order to restrict Rosen from having any “contact with [her] at all. And that if any...