Taylorsville City v. Taylorsville City Emp. Appeal Bd.

• Decision Date: 14 March 2013
• Docket Number: No. 20110546–CA.,20110546–CA.
• Citation: 730 Utah Adv. Rep. 93,298 P.3d 1270
• Parties: TAYLORSVILLE CITY, Taylorsville City Police Department, and Taylorsville Police Chief Del Craig, Petitioners, v. TAYLORSVILLE CITY EMPLOYEE APPEAL BOARD and Officer Bradley Gillespie, Respondents.
• Court: Utah Court of Appeals

298 P.3d 1270

730 Utah Adv. Rep. 93

TAYLORSVILLE CITY, Taylorsville City Police Department, and Taylorsville Police Chief Del Craig, Petitioners,

v.TAYLORSVILLE CITY EMPLOYEE APPEAL BOARD and Officer Bradley Gillespie, Respondents.

No. 20110546–CA.

Court of Appeals of Utah.

March 14, 2013.

Phillip W. Dyer, B. Kent Morgan, and Benjamin R. Dyer, Attorneys for Petitioners.

Ryan B. Hancey, Attorney for Respondent Officer Bradley Gillespie.

Opinion

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.

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] improvement” 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 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.

¶ 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 pornographic 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.

¶ 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 “Misrepresentation and Obstructing an IA Investigation,” lack of “Attention 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 “embarrass 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 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 appropriate 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...