2013 UT App 183
_________________________________________________________
THE UTAH COURT OF APPEALS
RION PHILLIPS,
Petitioner,
v.
SOUTH JORDAN CITY AND SOUTH JORDAN CITY
APPEAL BOARD,
Respondents.
Opinion
No. 20110895‐CA
Filed July 26, 2013
Original Proceeding in this Court
Ryan B. Hancey, Attorney for Petitioner
Camille N. Johnson, Attorney for Respondents
JUDGE WILLIAM A. THORNE JR. authored this Opinion, in which
JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH concurred.
THORNE, Judge:
¶1 Petitioner Rion Phillips seeks judicial review of the South
Jordan City Appeal Board’s (the Board) decision affirming South
Jordan City Police Chief Lindsay Shepherd’s termination of
Phillips’s employment with the South Jordan City Police
Department. We decline to disturb the Board’s decision.
BACKGROUND
¶2 On June 2, 2011, at approximately 1:25 a.m., Phillips was on
duty as a patrol officer when a radio transmission was received
from a Draper City police detective requesting that dispatch send
officers to assist with a possible fugitive. Phillips and Officer Mike
Phillips v. South Jordan City
Raab, who were at the same location, informed dispatch that they
were each responding to the request to assist.
¶3 Raab left first, and Phillips followed approximately fifteen
to thirty seconds later. Both officers initially ran their emergency
lights and sirens while traveling east on 10400 South from 3200
West to 300 West on the South Jordan Parkway. At that time, traffic
was light, the roads were dry, and visibility was good. During his
travels, Phillips reached a top speed of 121 mph, including driving
through six intersections at speeds over 100 mph. Nearing the
South Jordan Gateway, Phillips turned off his emergency lights and
sirens. Thereafter, without lights or sirens, Phillips passed two
vehicles. While traveling at 108 mph, Phillips passed the first
vehicle, which had pulled over to the left side of the road. He then
passed a moving vehicle on the right while driving 69 mph before
turning onto 300 West. Phillips momentarily entered into the
wrong lane of traffic as he negotiated the turn onto 300 West.
Phillips arrived at the location shortly after Raab.
¶4 On June 13, 2011, South Jordan City (the City) commenced
an internal complaint against Phillips regarding his June 2
emergency response. Lieutenant Dan Starks conducted the internal
affairs investigation. The next day, Lieutenant Starks met with
Phillips. He informed Phillips of the investigation and placed him
on paid administrative leave pending its outcome. On June 17, after
completing his investigation, Lieutenant Starks provided his
disciplinary action recommendation to Chief Shepherd and
recommended that Phillips be terminated from his employment
with the South Jordan City Police Department. That same day,
Chief Shepherd advised Phillips of a predisciplinary hearing,
which was to be held on June 24, to afford Phillips an opportunity
to respond to the allegations that he had violated General Orders
26.1 and 41.2.1
1. A general order is a written directive to guide members of the
South Jordan City Police Department in a variety of different
situations such as emergency call responses, vehicle pursuits, and
field interviews.
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Phillips v. South Jordan City
¶5 On June 29, Chief Shepherd issued his termination decision
finding that Phillips had violated South Jordan City Police
Department General Orders 26.1 and 41.2.1 (General Order 41.2.1)2
by driving at speeds that were excessive and shutting down
emergency warning equipment before passing a vehicle on the
right. Chief Shepherd considered Phillips’s disciplinary action
record and concluded that Phillips’s repeated problems involving
poor judgment and policy violations, which had resulted in
disciplinary action during most of his employment with the South
Jordan City Police Department, compromised Phillips’s ability to
function as a police officer. Chief Shepherd concluded that
Phillips’s June 2 emergency response was a continuation of
Phillips’s pattern of past failures to exercise good judgment. Chief
Shepherd then terminated Phillips from his employment with the
South Jordan City Police Department, effective June 30, 2011.
¶6 Phillips appealed his termination to the Board, arguing that
the applicable emergency vehicle operation (EVO) policies under
General Order 41.2.1 failed to provide clear standards and allowed
for personal interpretation. Phillips argued that the City never
conveyed specific speed limit expectations. Phillips also argued
that termination of his employment was disproportionate to his
conduct. The Board conducted an eight‐hour hearing wherein it
heard witness testimony and counsel arguments, and reviewed
video taken from both Phillips’s and Raab’s police vehicle cameras
during the June 2 emergency response. The Board found that
Phillips did not operate his patrol vehicle with the required due
regard for the safety of all persons and that Phillips’s conduct
violated General Order 41.2.1 and his EVO training. The Board then
reviewed Phillips’s history of discipline and determined that his
disciplinary history fully justified the termination of his
employment. The Board affirmed Chief Shepherd’s decision to
terminate Phillips’s employment. Phillips now seeks judicial
review in this court.
2. Although both Chief Shepherd and the Board identify General
Order 26.1 in their decisions, the analysis by each centers on
General Order 41.2.1.
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Phillips v. South Jordan City
ISSUES AND STANDARDS OF REVIEW
¶7 Phillips asserts that the Board erred in its decision to uphold
his termination. First, Phillips argues that the Board erred in
finding that during his June 2 emergency response, Phillips
operated his vehicle in violation of both General Order 41.2.1 and
his EVO training. Second, Phillips argues that the Board erred in
concluding that the City’s termination of Phillips’s employment
was (1) proportionate and appropriate discipline for his allegedly
unreasonable conduct and (2) consistent with sanctions imposed on
other officers in similar circumstances.
¶8 We review the Board’s decision to determine if “the appeal
board . . . abused its discretion or exceeded its authority.” Utah
Code Ann. § 10‐3‐1106(6)(c)(ii) (LexisNexis 2012). Our review is
limited to the “record of the appeal board.” Id. § 10‐3‐1106(6)(c)(i).
We also note that the Board “is required to give deference to the
Chief, as he is best able to balance the competing concerns in
pursuing a particular disciplinary action.” Harmon v. Ogden City
Civil Serv. Comm’n, 2007 UT App 336, ¶ 6, 171 P.3d 474 (citation and
internal quotation marks omitted). Insofar as Phillips asks us to
overturn the Board’s factual findings, we employ the clearly
erroneous standard. See Kelly v. Salt Lake City Civil Serv. Comm’n,
2000 UT App 235, ¶ 15, 8 P.3d 1048.
ANALYSIS
I. Abuse of Discretion
A. Violation of General Order 41.2.1
¶9 Phillips first argues that the Board erred in upholding Chief
Shepherd’s determination that Phillips operated his vehicle in
violation of General Order 41.2.1 during his June 2 emergency
response. Phillips asserts that the Board abused its discretion
because General Order 41.2.1 does not identify a specific or
maximum speed limit for an emergency response.
20110895‐CA 4 2013 UT App 183
Phillips v. South Jordan City
¶10 General Order 41.2.1 on Routine, Urgent, or Emergency Call
Response provides, in pertinent part,
South Jordan City Police Department vehicles may
engage in emergency operations when responding to
an existing emergency . . . .
The provisions of this section will not release the
operator of a South Jordan City Police Department
vehicle from the duty to drive with due regard for the
safety of all persons, nor will such provisions protect
the operator of a South Jordan City Police
Department vehicle from the consequences of
careless disregard for the safety of others.
A South Jordan City Police Department vehicle
engaged in . . . emergency operations will utilize
headlights, emergency lights, and sirens in unison, to
be used appropriately to warn vehicle and pedestrian
traffic along the emergency route. . . .
A South Jordan City Police Department vehicle
engaged in emergency operations may:
Exceed the maximum speed limit so long as life or
property is not endangered. Speed will be limited by road
and weather conditions and the exercise of good judgment.
When approaching or entering an intersection controlled
by a semaphore or a stop sign, all officers will slow their
vehicle to a speed considered reasonable and which would
allow them to bring the vehicle to a complete stop at a red
light or stop sign prior to entering the intersection, if
necessary. . . . If the light is green, officers will slow the
vehicle to a speed that is consistent with reasonable care.
South Jordan City Police Department, General Order 41.2.1 (March
15, 2005) (emphases added).
20110895‐CA 5 2013 UT App 183
Phillips v. South Jordan City
¶11 Phillips is correct that General Order 41.2.1 does not identify
a specific maximum speed. This does not, however, mean that
there are no limits upon his speed when responding to a call.
Instead, Phillips’s maximum speed is specifically limited by the
provision requiring him to limit his speed by road and weather
conditions, ability to stop at intersections with a semaphore or stop
sign, and to drive with due regard for the safety of all persons. In
this instance there is sufficient evidence to support the Board’s
finding that Phillips violated this policy by responding to an
emergency without “due regard for the safety of all persons” as
required by General Order 41.2.1 by driving at excessive speeds,
i.e., speeds well in excess of 100 mph.
¶12 The Board is required to give deference to Chief Shepherd,
who is best able to balance the competing concerns in pursuing a
particular disciplinary action. Harmon v. Ogden Civil Serv. Comm’n,
2007 UT App 336, ¶ 6, 171 P.3d 474. Chief Shepherd determined
that Phillips violated General Order 41.2.1 by failing to limit his
speed with regard to reaction time, stopping distance, vehicle
capabilities, and the possibility of unknown and unforeseen
circumstances during his June 2 emergency response, which failure
created a danger to life and property, as well as by shutting down
his emergency equipment before passing a vehicle on the right.
Chief Shepherd found that the uncontested evidence provided that
Phillips traveled at speeds reaching 121 mph, drove through six
intersections at speeds between 101 and 119 mph, and shut down
his emergency lights and sirens before he passed a vehicle on the
right.3 This evidence supports the Board’s determination that Chief
Shepherd properly found that Phillips’s June 2 emergency response
put the public’s safety and Phillips’s own safety at risk, which
failed to meet the expectation that Phillips conduct himself with
“due regard for the safety of all persons”as required by General
Order 41.2.1. Because the evidence adequately supports the Board’s
decision to affirm Phillips’s termination based on his violation of
General Order 41.2.1, we conclude that the Board did not abuse its
discretion in this regard.
3. The speeds Phillips traveled were verified by an in‐vehicle
digital video system used by law enforcement.
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Phillips v. South Jordan City
B. Violation of Emergency Vehicle Operation Training
¶13 Phillips next argues that the Board erred in finding that
Phillips operated his vehicle during the emergency response in
violation of his EVO training. In particular, Phillips argues that the
EVO training he received did not include discussions of reasonable
care or about the specific speeds at which officers could respond to
an emergency. Phillips reasons that because his EVO training was
so lacking, the City was unable to present evidence supporting the
Board’s finding that Phillips violated his training.
¶14 Chief Shepherd determined that Phillips had not only
received training in the policies outlined in General Order 41.2.1
but had also received remedial training for a past violation of EVO
policy. The Board heard evidence that Phillips had received EVO
training during the course of his employment. At the hearing,
Phillips admitted that he typically received EVO training twice a
year and was specifically trained on his obligation as an officer to
exercise due regard for safety. The EVO training Phillips received
included class work where an instructor would review the policies.
In addition, Phillips took written tests on those policies wherein he
answered questions regarding what speed an officer must slow his
or her vehicle to when approaching an intersection controlled by
a semaphore or stop sign and further defined due regard and
reasonable care. Because the evidence demonstrates that Phillips
was trained in the policies outlined in General Order 41.2.1, we see
no abuse of discretion in the Board’s determination that Phillips
violated said order.
II. The Proportionality and Consistency of Discipline
¶15 Phillips next argues that the Board erred in concluding that
the City’s termination of Phillips’s employment was proportionate
to his allegedly unreasonable conduct and consistent with
sanctions imposed on other officers in similar circumstances. We
review both the proportionality and consistency aspects of the
Board’s determination for an abuse of discretion. Nelson v. Orem
City, Dep’t of Pub. Safety, 2012 UT App 147, ¶ 16, 278 P.3d 1089, cert.
granted, 288 P.3d 1045 (Utah 2012).
20110895‐CA 7 2013 UT App 183
Phillips v. South Jordan City
A. The Proportionality of Discipline
¶16 Phillips first asserts that the City’s termination of his
employment was disproportionate to his conduct because the
Board erroneously found that Phillips had been disciplined eight
times for exercising poor judgment. Phillips argues that he was
disciplined fewer than eight times and asserts that three of the
incidents the Board considered were not actually disciplinary in
nature and did not demonstrate poor judgment.
¶17 The nondisciplinary incidents Phillips refers to include his
accidental taser deployment, his removal from the Joint Criminal
Apprehension Team as a result of his ongoing poor decision
making and judgment,4 and his involvement in a preventable car
accident. After denying, without explanation, the applicability of
those incidents to his termination, Phillips concludes that the
Board’s findings that he had “previously been disciplined eight
times during his term of employment of approximately 3 ½ years”
and “has consistently displayed a pattern of poor judg[ment]” are
clearly not supported by the evidence. In so arguing, Phillips fails
to discuss the Board’s consideration of the remaining five
incidents;5 instead, he argues that it is impossible to determine
4. It is unclear why this incident, even if nondisciplinary in nature,
should not have been considered by the Board, as it is highly
relevant to the issue of Phillips’s pattern of poor judgment.
5. Phillips’s remaining disciplinary incidents include the following:
(1) Phillips was issued a counseling letter on March 13, 2011, to
remind him of his obligation related to the code of conduct after a
citizen complaint of an off‐duty incident wherein Phillips failed to
appropriately handle a companion’s vulgar and loud comments
about a woman’s appearance; (2) Phillips received a verbal
warning on September 14, 2010, for missing several scheduled
court appearances; (3) Phillips received a five‐day suspension due
to a verbal and physical altercation on March 12, 2010; (4) Phillips
was issued a verbal warning for shocking an individual, upon that
individual’s request, with his taser on September 2, 2009; and (5)
(continued...)
20110895‐CA 8 2013 UT App 183
Phillips v. South Jordan City
whether the Board would have concluded termination was justified
without its improper findings. Because Phillips’s argument
contains only conclusory statements and fails to fully develop his
argument with a discussion on why the remaining five incidents
are insufficient to support the City’s termination of Phillips, or
even why the other three did not implicate bad judgment, he does
not convince us that the City’s termination of his employment was
disproportionate to his conduct. See Utah R. App. P. 24(a)(9); State
v. Merrill, 2012 UT App 3, ¶ 27, 269 P.3d 196 (“An issue is
inadequately briefed when the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.” (citation and internal quotation marks omitted)).
B. The Consistency of Discipline
¶18 Phillips also asserts that the City’s termination of his
employment is inconsistent with sanctions imposed on other
officers in similar circumstances. In so arguing, Phillips describes
instances of conduct by six other officers, which resulted in lesser
discipline than Phillips’s termination. Phillips does not, however,
include in his proportionality of discipline analysis the
performance histories or length of service with the City for each of
the six officers, which information may explain or justify the lesser
discipline. And, as the City points out, in at least one instance,
Phillips fails to include a fully accurate disciplinary record for one
of the officers, Officer Brett Perez, who was terminated for
allegedly violating the City’s high‐speed chase policy.6 Because
5. (...continued)
Phillips was suspended and assigned to complete an additional
eight hours of remedial EVO training after his involvement in a
traffic accident on October 27, 2008.
6. Phillips argues that this court should not “consider additional
discipline information concerning Officer Brett Perez” because
“none of this additional information appears in the . . . Board’s
record.” (Citing Guenon v. Midvale City, 2010 UT App 51, ¶ 4, 230
P.3d 1032 (mem.) (“Relying solely on the record of the . . . Board,
(continued...)
20110895‐CA 9 2013 UT App 183
Phillips v. South Jordan City
Phillips’s proportionality of discipline argument is nothing more
than a bare assertion that his termination was inconsistent, without
detailed information pertinent to a determination of whether the
circumstances (not just the actions) of other officer sanctions were
similar, his argument fails to demonstrate that the City’s
termination of his employment is inconsistent with sanctions of
other officers in similar circumstances. See Utah R. App. P. 24(a)(9);
Merrill, 2012 UT App 3, ¶ 27.
CONCLUSION
¶19 The record evidence demonstrates that Phillips traveled at
speeds reaching 121 mph, drove through six intersections at speeds
between 101 and 119 mph, and turned off his emergency lights and
sirens before passing a vehicle on the right. The evidence also
demonstrates that Phillips had been specifically trained on the
policies outlined in General Order 41.2.1 regarding emergency
vehicle operation. This evidence adequately supports the Board’s
determination that Phillips violated General Order 41.2.1 and his
EVO training. Thus, Phillips’s arguments that the Board abused its
discretion in this regard fails.
¶20 Phillips’s mere assertion that the City’s termination of his
employment was disproportionate to his conduct and inconsistent
6. (...continued)
we review the Board’s decision to determin[e] if the . . . [B]oard
abused its discretion or exceeded its authority.” (alterations and
omissions in original) (citation and internal quotation marks
omitted)).) A review of the transcript from the Board’s hearing,
however, reveals that Phillips himself relied on this additional
information in his arguments to the Board. At the hearing,
Phillips’s attorney stated that Perez “had serious incident after
serious incident and he retained his job, and it wasn’t until a fourth
incident, also involving emergency vehicle operation that he was
finally fired.” Phillips’s attorney argued that “every single one of
Officer Perez’s actions were as serious or more serious than what
happened on June 2nd.”
20110895‐CA 10 2013 UT App 183
Phillips v. South Jordan City
with sanctions imposed upon other officers in similar
circumstances falls short of demonstrating that the Board abused
its discretion in affirming Phillips’s termination.
¶21 We therefore decline to disturb the decision of the Board.
20110895‐CA 11 2013 UT App 183