Salt Lake City Corp. v. Gallegos

2016 UT App 122

THE UTAH COURT OF APPEALS

SALT LAKE CITY CORPORATION,
Petitioner,
v.
THOMAS GALLEGOS AND SALT LAKE CITY
CIVIL SERVICE COMMISSION,
Respondents.

Opinion
No. 20140271-CA
Filed June 3, 2016

Original Proceeding in this Court

J. Elizabeth Haws and Samantha J. Slark, Attorneys
for Petitioner
Edward K. Brass, Attorney for Respondent
Thomas Gallegos

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE STEPHEN L. ROTH and JUSTICE JOHN A. PEARCE
concurred. 1

CHRISTIANSEN, Judge:

¶1 Salt Lake City Corporation (the City) petitions for judicial
review of the Salt Lake City Civil Service Commission’s (the
Commission) decision reversing the termination of Officer
Thomas Gallegos’s employment with the Salt Lake City Police
Department (the Department). Because the Commission applied

1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
 Salt Lake City Corp. v. Gallegos

an incorrect legal standard, we set aside the resulting decision,
and direct the Commission to reconsider the matter.

BACKGROUND

¶2 Between 2009 and 2012, Gallegos served as President of
the Salt Lake Police Association (SLPA) and as a board member
of the International Union of Police Associations (IUPA).
Gallegos attended annual IUPA board meetings. Gallegos paid
for meals and travel expenses for these trips with an SLPA credit
card. For these same events, Gallegos received a per diem from
IUPA and for one event was reimbursed by IUPA for an airfare
that Gallegos had purchased with SLPA funds. Gallegos did not
reimburse SLPA for his use of SLPA funds to pay for meal and
travel expenses for which Gallegos had received a per diem or
been reimbursed by IUPA.

¶3 Responding to complaints made by other officers, the
Department’s police chief initiated an internal-affairs
investigation of Gallegos. That investigation determined that
Gallegos had paid for IUPA board-meeting travel expenses with
SLPA funds while also receiving reimbursement from IUPA for
these same expenses, but had never reimbursed SLPA for the
double payment. After a pre-disciplinary hearing and a Civilian
Review Board investigation, the police chief terminated
Gallegos’s employment. The police chief found that Gallegos
had “knowingly received and processed instruments of payment
from IUPA” and “kept the funds for [his] personal use and made
no attempt to reimburse the SLPA for its expenditures.” The
police chief found that, under the circumstances, Gallegos could
not “plausibly deny knowledge of wrongdoing and therefore
committed a theft.” The police chief concluded that Gallegos’s
conduct constituted a violation of three of the Department’s
policies: “Obligation to Abide by the Law,” “Conduct
Unbecoming,” and “Core Values—Integrity.” The police chief
also determined that Gallegos’s conduct justified his
termination.

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¶4 Gallegos appealed to the Commission, which held an
evidentiary hearing on the matter. Gallegos asserted that he was
unaware that any of the funds he received from IUPA were per
diem payments or other funds that should be reimbursed to
SLPA rather than stipends that he was entitled to keep for his
attendance at IUPA board meetings. 2

¶5 The Commission determined that each of the identified
policy violations “was based on assertions that Officer Gallegos
had committed a theft of property by seeking and receiving
reimbursement from IUPA for expenses that SLPA had paid”
and that he “‘knowingly’ receiv[ed] and ke[pt] for his personal
use funds received from IUPA that should have been used to
reimburse SLPA for expenses SLPA paid.” The Commission
therefore concluded that a “key element” of the Department’s
case was proving that Gallegos “intentionally and knowingly
took money to which he was not entitled.” Based on the
evidence received at the hearing, the Commission determined
that “[t]he record fails to establish that Officer Gallegos
intentionally kept funds that he knew did not belong to him”
and that the City “failed to establish that Officer Gallegos
committed a theft.” The Commission thus concluded that the
Department had “failed to carry its burden of establishing that
the facts and evidence support the charges leveled against
Officer Gallegos.” The Commission reversed the police chief’s
decision to terminate Gallegos and reinstated his employment.
The City seeks review of the Commission’s decision.

2. It appears that Gallegos’s retention of the stipends for
attendance at IUPA board meetings is uncontroversial. The
retention of the stipends, which constitute approximately half of
the money Gallegos received from IUPA, does not appear to
form any part of the City’s reasons for terminating Gallegos’s
employment.

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ISSUES AND STANDARDS OF REVIEW

¶6 The City first argues that the Commission erred in
requiring the City to put forth evidence that Gallegos had
committed a theft to demonstrate that the facts supported the
grounds for Gallegos’ termination. The City next argues that the
Commission applied the wrong standard of review in evaluating
whether the record supported the police chief’s findings. Last,
the City argues that the Commission improperly excluded
certain evidence.

¶7 We review the Commission’s decision “for the purpose of
determining if the [Commission] abused its discretion or
exceeded its authority.” Utah Code Ann. § 10-3-1106(6)(c)(ii)
(LexisNexis 2015). We will conclude that the Commission
abused its discretion if its decision “exceeds the bounds of
reasonableness and rationality.” Rosen v. Saratoga Springs City,
2012 UT App 291, ¶ 8, 288 P.3d 606 (citation and internal
quotation marks omitted). We review the legal standards
applied by the Commission for correctness. See Taylorsville City v.
Taylorsville City Emp. Appeal Board, 2013 UT App 69, ¶ 16, 298
P.3d 1270 (“[W]hen reviewing the Board’s interpretations of
general questions of law, this court applies a correction-of-error
standard, with no deference to the expertise of the Board.”
(brackets, citation, and internal quotation marks omitted)).

ANALYSIS

¶8 The Commission is empowered to “fully hear and
determine” appeals from disciplinary decisions of the
Department’s police chief. Utah Code Ann. § 10-3-1012(2)
(LexisNexis 2015). In reviewing disciplinary decisions, the
Commission must determine whether “the facts support the
charges made by the department head” and whether “the
charges warrant the sanction imposed.” Ogden City Corp. v.
Harmon, 2005 UT App 274, ¶ 10, 116 P.3d 973 (citation
and internal quotation marks omitted). In doing so, the

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Commission must “give deference to a police chief’s advantaged
position” in evaluating disciplinary decisions, and, absent a
city ordinance expressly rejecting this approach, the
Commission must review the police chief’s decision “for
substantial evidence with respect to findings of fact and abuse of
discretion with respect to the discipline selected.” Taylorsville
City v. Taylorsville City Emp. Appeal Board, 2013 UT App 69, ¶ 29,
298 P.3d 1270; accord Salt Lake City Civil Service Comm’n
Rules & Regulations 6-4-5(10), http://www.slcdocs.com/hr/
rulesregulationsaugust2012.pdf [https://perma.cc/8YH2-A84K]
(providing that a “substantial evidence” standard applies to all
hearings before the Commission). In short, the Commission’s
review is limited to considering whether substantial evidence
exists to support the police chief’s decision.

I. The Commission Did Not Err in Requiring the City to Provide
Evidence of the Charged Theft.

¶9 The City first challenges the Commission’s determination
that, to properly support the police chief’s termination decision,
the City needed to put forth evidence that Gallegos had
committed a theft—that he “intentionally and knowingly took
money to which he was not entitled.” The City argues that,
under the plain language of the relevant Department policies, no
criminal intent or violation of the law needed to be proven to
support the grounds for termination.

¶10 We agree with the City that, facially, at least two of the
relevant policies do not require a showing of criminal intent or
conduct. 3 The Conduct Unbecoming policy states,

3. The City does not discuss the language or requirements of the
third policy implicated in Gallegos’s termination: Obligation to
Abide by the Law. Accordingly, we limit our analysis to the
policies the City has addressed on appeal.

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Conduct unbecoming by a police employee is any
conduct that has a tendency to adversely affect the
operations or efficiency of the Department or any
conduct that has a tendency to adversely affect public
respect and confidence in the Department or any
employee. Conduct unbecoming also includes any
conduct that brings the Department or any
employee into disrepute or brings discredit upon
the Department or any employee.

(Emphasis added.) And the “Core Values—Integrity” policy
states,

The Public demands that the integrity of police
officers be above reproach. Police officers must
avoid any conduct that may compromise integrity
and thus undercut the public confidence.

We agree that, in isolation, these policies do not necessarily
require proof that an officer acted criminally or engaged in
knowing or intentional misconduct.

¶11 However, the Commission is not charged with evaluating
the Department’s policies in a vacuum to determine if an officer
engaged in conduct that violated those policies. Rather, the
Commission’s review is limited by the scope of the termination
notice; put another way, the Commission may consider only the
misconduct identified in the notice as the basis for the
termination decision. Fierro v. Park City Mun. Corp., 2012 UT App
304, ¶ 22, 295 P.3d 696. This “four corners of the termination
notice” limitation is imposed on the Commission’s review
because police officers “have a due process right to adequate
notice of the reasons for their discharge so that they can
meaningfully prepare for and participate in the municipal
appeal board hearing.” Becker v. Sunset City, 2013 UT 51, ¶ 15,
309 P.3d 223 (citing Fierro, 2012 UT App 304, ¶¶ 18–19). Thus,
the termination notice must give an employee “clear notice of
the allegations he should be prepared to address” so that the

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employee has an adequate opportunity to prepare a defense to
the allegations. Fierro, 2012 UT App 304, ¶ 16. The Commission’s
review is therefore limited to the “specific grounds for
termination” contained in the termination notice, and we must
set aside the Commission’s decision if it “stray[s] from
considering the charges contained in the [termination notice].”
Id. ¶¶ 25, 28. “We may not side-step this due process limitation
in determining whether a municipal appeal board’s decision is
supported by substantial evidence.” Becker, 2013 UT 51, ¶ 15.

¶12 Here, the specific grounds for termination identified by
the police chief in the termination notice were that Gallegos
“knowingly received and processed instruments of payment
from IUPA” and “kept the funds for [his] personal use and made
no attempt to reimburse the SLPA.” The police chief found that
Gallegos could not “plausibly deny knowledge of wrongdoing
and therefore committed a theft.” Given these specific
allegations, we cannot agree with the City that the Commission
erred in requiring the City to put forward evidence that Gallegos
“intentionally and knowingly took money to which he was not
entitled” and thereby committed a theft. Because the police chief
framed the allegations against Gallegos as a theft, the
Commission’s review was limited to the question of whether
there was evidence to support a finding that Gallegos had
committed a theft. See Fierro, 2012 UT App 304, ¶ 18. 4

4. Our conclusion on this issue also resolves the City’s claim that
the Commission improperly considered Gallegos’s intent or
knowledge in evaluating whether the facts support the charges
alleged in the termination notice. We conclude that the
Commission’s consideration of Gallegos’s mental state was
necessary to evaluate the allegation that Gallegos had engaged
in a knowing theft. The City asserts that an employee’s mental
state may be considered only in evaluating the degree of
discipline imposed. The City’s reliance on Ogden City Corp. v.
Harmon for this proposition is misplaced. 2005 UT App 274, 116
P.3d 973. In Harmon, this court ruled that the question of
(continued…)

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¶13 Indeed, to accept the City’s argument in this case would
allow the City to support Gallegos’s termination with evidence
of merely accidental or negligent mishandling of money—or, in
fact, any other terminable misconduct in any departmental
policy—which is a very different allegation from the knowing
theft identified by the police chief as the basis for Gallegos’s
termination. But Gallegos was entitled to “clear notice” of the
allegations that he would be required to address and defend
against. Id. ¶ 16. Because the police chief identified a knowing
theft of funds as the basis for Gallegos’s termination, Gallegos
was entitled to rely on that notice and prepare a defense to the
specific allegation of theft. The City cannot now attempt to
justify Gallegos’s termination on the basis of different, less
culpable conduct than that identified in the termination notice.
To do so would be to move the goalposts while the ball is in the
air.

II. The Commission Applied the Wrong Standard of Review.

¶14 Next, the City argues that the Commission applied the
wrong standard of review when it concluded that “[t]here is

(…continued)
whether conduct was “common and consensual” had no place in
evaluating whether the facts supported the charges alleged. Id.
¶ 12. But that question is different from whether the employee’s
knowledge or intent could be considered in that context—a
question the Harmon court did not address. Thus, contrary to the
City’s assertion in its brief, this court did not hold in Harmon that
“the employee’s intent . . . should only be considered in that it
may affect the degree of discipline imposed.” (Citation and
internal quotation marks omitted.) While we observed that
consideration of the employee’s mental state was likely
appropriate in evaluating the proportionality of the discipline,
nothing in Harmon limits the Commission’s consideration of
the employee’s mental state to only the proportionality analysis.
Id. ¶ 18.

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substantial and sufficient evidence in the record for the
Commission to conclude that Officer Gallegos made, at most, an
honest and genuine mistake regarding his acceptance of the
funds in question.” We agree that the Commission applied the
wrong standard of review on this issue. The question before the
Commission was not whether there was substantial evidence to
justify exonerating Gallegos, but rather, whether there was
substantial evidence in the record to support the police chief’s
conclusion that Gallegos engaged in the conduct for which he
was terminated.

¶15 In reviewing a termination decision, the Commission
must “give deference to a police chief’s advantaged position” in
evaluating disciplinary decisions and must review the police
chief’s decision for “substantial evidence with respect to findings
of fact and abuse of discretion with respect to the discipline
selected.” Taylorsville City v. Taylorsville City Emp. Appeal Board,
2013 UT App 69, ¶ 29, 298 P.3d 1270; accord Salt Lake City Civil
Service Comm’n Rules & Regulations 6-4-5(10) (providing that a
“substantial evidence” standard applies to all hearings before
the Commission). In conducting a substantial evidence review,
the Commission must determine whether the evidence supports
the police chief’s findings, not whether there is evidence in the
record that would support a contrary finding. We therefore
conclude that the Commission erred by evaluating whether the
evidence supported a finding that Gallegos made “at most, an
honest and genuine mistake.”

¶16 We will set aside the Commission’s decision only if there
is a reasonable likelihood that the error affected the outcome of
the proceedings. See Lucas v. Murray City Civil Serv. Comm'n, 949
P.2d 746, 755 (Utah Ct. App. 1997). Because the Commission did
not review the actual grounds for the police chief’s termination
decision, we must consider whether substantial evidence
supported the police chief’s conclusion that Gallegos committed
theft. Taylorsville City, 2013 UT App 69, ¶ 29. Substantial
evidence is a “quantum and quality of relevant evidence that is
adequate to convince a reasonable mind to support a

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conclusion.” Kennon v. Air Quality Board, 2009 UT 77, ¶ 28, 270
P.3d 417 (citation and internal quotation marks omitted). “It is
more than a mere ‘scintilla’ of evidence and something less than
the weight of the evidence.” Rosen v. Saratoga Springs City, 2012
UT App 291, ¶ 9, 288 P.3d 606 (citation and additional internal
quotation marks omitted). The City bears the burden of proof to
demonstrate that the facts support the charges against the
officer. See Salt Lake City Civil Service Comm’n Rules &
Regulations 6-4-5(4).

¶17 We agree with the City that there is evidence to support
the allegation that Gallegos received payments from IUPA that
included per diems and travel reimbursement that should have
been reimbursed to SLPA: Gallegos used an SLPA credit card to
pay for his travel to and meals at IUPA board meetings. IUPA
paid Gallegos a $400 stipend for attending each board meeting.
IUPA also paid Gallegos a per diem of $49 to $71 per day he
attended each board meeting, totaling $1,103 in per diem
payments for five board meetings between October 2009 and
February 2012. IUPA also provided Gallegos with a form to
obtain reimbursement for his airfare, which IUPA typically
paid directly to SLPA. On one occasion, although Gallegos
requested the reimbursement be made payable to SLPA, the
reimbursement check was made payable to Gallegos personally
and was sent directly to him.

¶18 Here, the evidence presented below appears to be
sufficient to show that Gallegos received funds that should have
been reimbursed to SLPA. But the question before us is whether
a factfinder could reasonably infer from the evidence that
Gallegos committed a theft by intentionally retaining funds he
knew he was not entitled to. “A person commits theft if he
obtains or exercises unauthorized control over the property of
another with a purpose to deprive him thereof.” Utah Code Ann.
§ 76-6-404 (LexisNexis 2008). The City directs us to evidence
which it contends support such a finding. Specifically, Gallegos
testified that he knew he would be paid a $400 stipend for
attending IUPA board meetings, but he received checks for more

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 Salt Lake City Corp. v. Gallegos

than $400. Gallegos also testified that he did not inquire about
the difference between his anticipated stipend and the amount of
the checks. He also testified that the tax forms he received from
IUPA showed less income than the amount he had received from
IUPA. He further testified that he knew what the term “per
diem” meant and that he had heard other officers at a board
meeting use the term. Finally, the City points to the evidence
that the airfare-reimbursement check that was mistakenly made
payable to Gallegos rather than SLPA “was in the exact amount
of the reimbursement he requested.”

¶19 While the evidence presented to the Commission suggests
that Gallegos might have known he was receiving money that
did not belong to him, it is not this court’s role to weigh the
evidence to determine whether that evidence establishes that
Gallegos intentionally retained those funds with the purpose of
depriving SLPA of the money. See Utah Code Ann. § 76-6-404.
Had the Commission applied the correct legal standard, it may
have found this evidence sufficient to support the police chief’s
conclusion that Gallegos knew he was receiving money he was
not authorized to have or that he retained it with the purpose of
depriving SLPA of the money. See id. On the other hand, the
Commission might have found this evidence insufficient to
support such a finding. We therefore set aside the Commission’s
ruling and direct the Commission to revisit the matter for
consideration of whether substantial evidence was presented to
support the police chief’s conclusion that Gallegos committed
theft.

III. The Commission Did Not Err in Its Treatment of Evidence at
the Hearing.

¶20 The City challenges the Commission’s treatment of two
pieces of evidence the City sought to introduce at the hearing.
Since this case must be returned to the Commission for further
consideration, we will address the evidentiary issues presented
in this review. First, the City contends that the Commission
improperly disregarded an exhibit and associated testimony that

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purported to show that Gallegos knew he was receiving money
from IUPA as a per diem that should have been reimbursed to
SLPA. Second, the City contends that the Commission
improperly excluded as irrelevant evidence that Gallegos was
being prosecuted by the State for theft.

¶21 “[A]s a municipal administrative body, the Commission is
not bound by formal rules of evidence and procedure.” Lucas v.
Murray City Civil Service Comm’n, 949 P.2d 746, 755 (Utah Ct.
App. 1997). Rather, the Utah Rules of Evidence and Utah Rules
of Civil Procedure are used as “guidelines” during Commission
hearings but “are not strictly followed or applied.” Salt Lake
City Civil Service Commission Rules and Regulations 6-4-5(2)
(2012). “In the absence of formal legal rules, the Commission
must determine what evidence should, in fairness, be admitted.”
Lucas, 949 P.2d at 756 (citation and internal quotation marks
omitted). “The evidence must be legally relevant, in that it has
some probative weight and reliability.” Id. (citation and internal
quotation marks omitted).

A. Per Diem Evidence

¶22 The City argues that the Commission improperly
excluded evidence that Gallegos had been notified by IUPA that
a portion of the money he received was a per diem that should
have been reimbursed to SLPA. This evidence consists of a letter
on IUPA letterhead addressed to Gallegos that provides a
breakdown of the payment to Gallegos for an IUPA board
meeting in September 2010—identifying the per diem
amounts—and the testimony of the police officer who had
obtained the letter from IUPA. The City argues that the
Commission improperly excluded this evidence as hearsay,
because this evidence “is the type of hearsay evidence [the
Commission] has routinely accepted” and because no objection
to the evidence was raised at the hearing.

¶23 We reject the City’s argument because it does not appear
that the Commission excluded the evidence in question. In

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considering this evidence, the Commission observed that it was
“based on the hearsay statement of a person who did not have
personal knowledge of the facts in question.” But nothing in the
Commission’s order suggests that it refused to consider the
evidence. Rather, it appears that the Commission considered the
evidence and determined that, because IUPA’s treasurer lacked
any knowledge that Gallegos had received the letter, the letter
and testimony had little, if any, probative value in establishing
that “Gallegos knew that the IUPA funds in question constituted
a ‘per diem.’”

¶24 The letter contains a breakdown of per diem and stipend
payments for one board meeting, but nothing in the document
itself demonstrates that it was ever given to Gallegos. The police
officer who obtained the letter testified that he had received it
from IUPA’s treasurer. The officer testified that the IUPA
treasurer told him “when the meeting attendees arrived at the
meeting, each of them would be given a packet which contained
. . . a check for the monies they were receiving, the breakdown
sheet which showed the total amount broken down, and a
reimbursement form should they need any further
reimbursements.”

¶25 Faced with this evidence, the Commission concluded that
the IUPA treasurer lacked personal knowledge that Gallegos had
ever received the letter containing the breakdown. The IUPA
treasurer had not himself “sent the checks or the purported
breakdowns to Officer Gallegos,” and he could speak only to
IUPA’s general practice of giving meeting attendees a packet
containing such material. Nothing in the letter or the IUPA
treasurer’s statements as relayed by the police officer at the
hearing demonstrate that Gallegos was ever made aware by
IUPA that a portion of the money paid to him constituted a per
diem. Thus, based on our review of the Commission’s order, we
conclude that it properly considered the letter and associated
testimony.

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B. Criminal-Prosecution Evidence

¶26 The City also challenges the Commission’s exclusion of
evidence that the State was pursuing a criminal case against
Gallegos stemming from the conduct at issue in this case. The
City attempted to present evidence that Gallegos had been
charged criminally for his conduct. Gallegos objected, arguing
that because the criminal charges arose after Gallegos had been
terminated, they could not have formed the basis for any of the
allegations against Gallegos and were therefore irrelevant. The
Commission sustained the objection.

¶27 The City contends that the Commission erred in excluding
the evidence as irrelevant. We disagree. The Commission may
exclude evidence that is irrelevant. Evidence is relevant if “it has
any tendency to make a fact more or less probable than it would
be without the evidence” and “the fact is of consequence in
determining the action.” Utah R. Evid. 401.

¶28 As discussed above, the Commission’s review is limited
to the specific grounds for termination identified in the
termination notice. Supra ¶ 11. The City argues that “[e]vidence
of the status of the criminal action against Officer Gallegos is
relevant to show Officer Gallegos’s conduct fell below that
expected of a Salt Lake City police officer and violated the
Department policies at issue.” But Gallegos was not terminated
for being charged with a crime. And while a criminal conviction
may be relevant to showing that Gallegos engaged in a theft, the
filing of a criminal charge under these circumstances constitutes
no more than an additional allegation that Gallegos engaged in
the conduct for which he was terminated. The Commission
therefore properly excluded the evidence as irrelevant to the
limited question before it.

¶29 We conclude that the Commission did not err in its
handling of either the per diem evidence or the evidence that
Gallegos had been charged with theft.

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CONCLUSION

¶30 The Commission did not err in requiring the City to
present evidence that Gallegos committed a theft, because the
City based its termination of Gallegos on allegations of theft.
However, the Commission applied the wrong standard of
review to its analysis of the record evidence. The Commission
did not err in its handling of the evidence presented by the City.
We therefore vacate the Commission’s decision and return the
matter for further consideration under the correct standard of
review.

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