Burgess v. Department of Corrections

2017 UT App 186

THE UTAH COURT OF APPEALS

STEPHEN BURGESS,
Petitioner,
v.
DEPARTMENT OF CORRECTIONS AND
CAREER SERVICE REVIEW OFFICE,
Respondents.

Opinion
No. 20150170-CA
Filed October 5, 2017

Original Proceeding in this Court

Jason D. Haymore, Attorney for Petitioner
Sean D. Reyes and J. Clifford Petersen, Attorneys
for Respondent Department of Corrections

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE STEPHEN L. ROTH and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1

CHRISTIANSEN, Judge:

¶1 Petitioner Stephen Burgess seeks judicial review of the
Career Service Review Office’s decision upholding the
termination of his employment by the Utah Department of
Corrections (the Department). We set aside that decision and

1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court, before this
decision issued. Senior Judge Pamela T. Greenwood sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
 Burgess v. Department of Corrections

return the case for reconsideration of the discipline to be
imposed.

BACKGROUND

¶2 In 2008, the Department hired Burgess as a correctional
officer. A year and a half later, Burgess became a crew
supervisor with the Utah Correctional Industries (UCI) division
of the Department. As a crew supervisor, Burgess oversaw
inmates on construction projects outside the prison. According
to his immediate supervisors, Burgess excelled at his job, had an
unblemished working record, and was a highly valued
employee.

¶3 In December 2013, Burgess flew home to Utah after
attending a professional football game in Denver, Colorado, with
his friend, Fredrickson, and two other men, Summers and
Passey. All four men had been drinking alcohol throughout the
day, and the drinking continued during the flight home. When
the men arrived at the Salt Lake City International Airport, an
airport police officer in the baggage claim area noticed that
Summers and Fredrickson seemed intoxicated. The officer
smelled alcohol emanating from the two men and observed that
“[t]hey were hanging on each other, kind of laughing. They
were . . . being pretty loud and boisterous . . . and kind of
stumbling.” The officer watched Burgess, Fredrickson, and
Summers board an airport shuttle bus headed for the economy
parking lot and alerted an officer on vehicle patrol that three
individuals who appeared intoxicated were on the bus.2

¶4 When the three men got off the bus, several airport police
officers were waiting for them. After speaking with them, the
officers believed that the men were intoxicated to varying

2. At some point before Burgess, Fredrickson, and Summers
boarded the shuttle bus, Passey parted ways with the group.

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 Burgess v. Department of Corrections

degrees. The officers determined that none of the men should be
driving. One of the officers suggested the men take a taxi home
to Herriman instead of driving, and the men agreed to follow the
officer’s suggestion. When the taxi arrived, the three men got in
and the taxi started to drive away. Sometime before the taxi left
the airport parking lot, the men decided that Fredrickson would
drive them home instead. Fredrickson, who planned to go on a
hunting trip the next day and did not want to drive two hours to
retrieve his truck the next morning, assured Burgess that he was
perfectly capable of driving. Though Burgess understood that
“there was some risk” in getting out of the taxi, because Burgess
had been with Fredrickson the entire day and had witnessed him
drink only three alcoholic beverages, he agreed to let
Fredrickson drive them home.

¶5 The three men then got out of the taxi and walked to
Fredrickson’s truck. With Fredrickson driving, they headed
toward the parking lot exit; however, before they could leave the
airport parking lot, the police stopped the truck, arrested all
three men, and took them to the airport police station. Although
Burgess did not undergo any sobriety tests, he was charged with
public intoxication, a class C misdemeanor. See Utah Code Ann.
§ 76-9-701(1), (7) (LexisNexis 2012).3 Fredrickson, however,
underwent a variety of sobriety tests. He passed the “one leg
stand and balance test” and the Horizontal Gaze Nystagmus eye
test, but a breathalyzer test measured Fredrickson’s blood
alcohol concentration at .097, which was over the legal limit
of .08. See id. § 41-6a-502(1)(a) (2010). As a result, Fredrickson
was charged with and later convicted of driving under the

3. “A person is guilty of intoxication if the person is under the
influence of alcohol, a controlled substance, or any substance
having the property of releasing toxic vapors, to a degree that
the person may endanger the person or another, in a public place
or in a private place where the person unreasonably disturbs
other persons.” Utah Code Ann. § 76-9-701(1) (LexisNexis 2012).

20150170-CA 3 2017 UT App 186
 Burgess v. Department of Corrections

influence (DUI). The public intoxication charge against Burgess
was ultimately dropped. See infra ¶ 9.

¶6 Soon thereafter, Burgess reported the incident to his
immediate UCI supervisor, who reported the incident to the UCI
Director. Burgess did not tell his supervisor that he did not ride
home in the taxi in contravention of a police officer’s suggestion
or that his companion, Fredrickson, had been charged with DUI.
The UCI Director referred the incident to the Department’s Law
Enforcement Bureau (the LEB), which conducted an
investigation. The LEB determined that Burgess had violated
two Department policies—Policy AE 02/07, governing unlawful
conduct, and Policy AE 02/11.03, governing professionalism. See
infra ¶¶ 24, 30.

¶7 The Department conducted a disciplinary committee
meeting to discuss Burgess’s situation and make disciplinary
recommendations. Burgess’s immediate UCI supervisor
presented the case to the committee. The committee discussed
Burgess’s public intoxication charge and concluded that a
“conviction wasn’t necessary for administrative reasons [to
discipline Burgess] if the police officers observed signs of
intoxication.” The committee also discussed similar disciplinary
cases, although it was not bound by the previous
administration’s actions.4 A manager for the Department of

4. The current Executive Director of the Department was
appointed in April 2013, approximately eight months before the
incident with Burgess occurred. Rule R477-11-3 of the Utah
Administrative Code provides that “[w]hen deciding the specific
type and severity of discipline, the agency head or representative
may consider . . . consistent application of rules and standards.”
Utah Admin. Code R477-11-3(1)(a) (2013). However, “the agency
head or representative need only consider those cases decided
under the administration of the current agency head.” Id. R477-
11-3(1)(a)(i). “Decisions in cases prior to the administration of
the current agency head are not binding upon the current agency
(continued…)

20150170-CA 4 2017 UT App 186
 Burgess v. Department of Corrections

Human Resource Management presented several of the “closest
cases” he could find, but he reported to the committee that there
were “no exact comparable cases since the current Executive
Director had assumed his duties.” The so-called “comparable
cases” all involved employees who had each been charged with
public intoxication and additional offenses, and at least one of
the employees had been previously disciplined. Two of the
employees had been terminated and one had resigned in lieu of
termination.

¶8 Burgess’s immediate UCI supervisor recommended to the
committee that Burgess receive a punishment of time off without
pay. Although the committee also discussed suspension as a
possible punishment, it ultimately decided to recommend
termination. According to the UCI Director, the committee’s
decision “ultimately . . . came down to the trust issue and the
potential of being compromised as a correctional officer[;] the
conduct was egregious.” However, Burgess’s immediate UCI
supervisor and a UCI production manager later testified that the
“comparable cases” involving public intoxication “swung the
decision in the [committee] meeting” toward termination. On
February 28, 2014, the Executive Director of the Department
officially terminated Burgess for “non-compliance with and/or a
violation of [Utah Administrative Code] Rule 477-9, governing
standards of conduct, Utah Department of Corrections
Policy . . . AE 02/07, governing unlawful conduct, and . . . Policy
AE 02/11.03, governing professionalism.”

¶9 Thereafter, on March 18, the public intoxication charge
against Burgess was dismissed for insufficient evidence. And on
July 2, the Division of Peace Officer Standards and Training
(POST), which investigates allegations of misconduct against
peace officers, concluded that there was insufficient evidence “to

(…continued)
head and are not relevant in determining consistent application
of rules and standards.” Id.

20150170-CA 5 2017 UT App 186
 Burgess v. Department of Corrections

show [Burgess’s] conduct constitute[d] a violation of Utah Code
Ann. § 53-6-211.” POST declined to seek suspension or
revocation of Burgess’s peace officer certification.

¶10 Burgess appealed his termination to the Career Service
Review Office (the CSRO). The CSRO held a two-day step 4
hearing and affirmed the Department’s disciplinary action.5 The
CSRO found that the committee’s recommendation that Burgess
be terminated was “largely based on his public intoxication and
not a lack of trust.” The CSRO determined that, “[w]hile there is
substantial evidence that [Burgess] had consumed a quantity of
alcohol, and had ‘red glossy eyes,’ and smelled of alcohol the
day of the incident, substantial evidence does not support the
conclusion that he was publically intoxicated.” Accordingly, the
CSRO concluded that, “insofar as the final decision to terminate
[Burgess] was based on a finding of public intoxication, it is not
sustained.” The CSRO further determined that there was
substantial evidence supporting the conclusion that Burgess
“exercised very poor judgment by exiting the taxi and getting in
[Fredrickson’s] truck on the day of the incident.” In addition, the
CSRO determined that “[t]he final decision to terminate
[Burgess] based on his poor judgment . . . when given proper
deference, was neither excessive, disproportionate, nor an abuse
of discretion,” and that “[t]he final decision to terminate
[Burgess] based on the Executive Director’s lack of trust in
[Burgess’s] judgment is supported by substantial evidence.”

¶11 Burgess filed a motion for reconsideration, which the
CSRO denied. The CSRO ruled that there was substantial
evidence to support the conclusion that Burgess violated Policy
AE 02/07 and Policy AE 02/11.03. The CSRO also ruled that
while it “would not have made the decision that the Executive

5. A step 4 hearing is an evidentiary hearing. See Frequently Asked
Questions, Career Service Review Office, http://csro.utah.
gov/FAQ.html#whatIsAStep4Hearing [https://perma.cc/EG88-
BK4W].

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 Burgess v. Department of Corrections

Director made . . . , [it] could not substitute [its] judgment” for
the Department’s because “the applicable criteria [for
termination had been] met.” Burgess petitioned this court for
review of the CSRO’s decision.

ISSUES AND STANDARDS OF REVIEW

¶12 On judicial review, Burgess contends that the CSRO erred
in three ways. First, he asserts that the CSRO erred in finding
that he exercised poor judgment. Second, he asserts that the
CSRO erred in concluding that his “conduct violated one of the
Department rules/policies listed in his pre-termination notice.”
Third, he asserts that the CSRO erred in concluding that his
termination was “not excessive, inconsistent, or disproportionate
to his offense.”

¶13 The CSRO is “the final administrative body to review a
grievance from a career service employee and an agency of a
decision regarding,” among other things, “a dismissal.” See Utah
Code Ann. § 67-19a-202(1)(a)(i) (LexisNexis Supp. 2013). But the
CSRO’s role in examining the Department’s personnel actions is
a limited one. See Career Service Review Board v. Department of
Corr., 942 P.2d 933, 942 (Utah 1997).6 In a step 4 hearing, the
CSRO is first required to “make factual findings based solely on
the evidence presented at the hearing without deference to any
prior factual findings of [the Department].” Utah Admin. Code
R137-1-21(3)(a) (2013). The CSRO must then determine whether
“the factual findings . . . support with substantial evidence the
allegations made by [the Department]” and whether “[the
Department] has correctly applied relevant policies, rules, and
statutes.” Id. R137-1-21(3)(a)(i)–(ii). If the factual findings
support the Department’s allegations, the CSRO “must
determine whether [the Department’s] decision, including any

6. The Career Service Review Office was formerly named the
Career Service Review Board.

20150170-CA 7 2017 UT App 186
 Burgess v. Department of Corrections

disciplinary sanctions imposed, is excessive, disproportionate or
otherwise constitutes an abuse of discretion.” Id. R137-1-21(3)(b).
“In making this latter determination, the CSRO . . . shall give
deference to the decision of [the Department].” Id. In other
words, the CSRO’s authority to review departmental
disciplinary actions “is limited to determining if there is factual
support for the charges and, if so, whether the sanction is so
disproportionate to the charges that it ‘amounts to an abuse of
discretion.’” Lunnen v. Department of Transp., 886 P.2d 70, 72
(Utah Ct. App. 1994) (quoting Department of Corr. v. Despain, 824
P.2d 439, 443 (Utah Ct. App. 1991)).

¶14 Our review of the CSRO’s decision falls under Utah’s
Administrative Procedures Act. Kent v. Department of Emp’t Sec.,
860 P.2d 984, 985–86 (Utah Ct. App. 1993). Pursuant to the
Administrative Procedures Act, “[t]he appellate court shall grant
relief only if, on the basis of the agency’s record, it determines
that a person seeking judicial review has been substantially
prejudiced by any of the following: . . . (g) the agency action is
based upon a determination of fact, made or implied by the
agency, that is not supported by substantial evidence when
viewed in light of the whole record before the court; [or] (h) the
agency action is: (i) an abuse of the discretion delegated to the
agency by statute; . . . [or] (iii) contrary to the agency’s prior
practice.” Utah Code Ann. § 63G-4-403(4) (LexisNexis 2011).
Thus, we examine the CSRO’s findings of fact to determine
whether substantial evidence supported the Department’s
allegations. See Lucas v. Murray City Civil Service Comm’n, 949
P.2d 746, 758 (Utah Ct. App. 1997) (“The Commission’s findings,
upon which the charges are based, must be supported by
substantial evidence [when] viewed in light of the whole record
before us.”).

¶15 Further, we review “an agency’s application of its own
rules for reasonableness and rationality, according the agency
some, but not total[,] deference.” Lunnen, 886 P.2d at 72; see also
Kent, 860 P.2d at 986 (“In construing [Utah Code section 63G-4-
403], the Utah Supreme Court has held that appellate courts

20150170-CA 8 2017 UT App 186
 Burgess v. Department of Corrections

should employ an intermediate standard, one of some, but not
total, deference, in reviewing an agency’s application of its own
rules.”). We therefore “review [the CSRO’s] application of its
rules for reasonableness and rationality.” Kent, 860 P.2d at 986.

ANALYSIS

I. Poor Judgment

¶16 First, Burgess contends that the CSRO’s finding that
Burgess exercised poor judgment was not supported by
substantial evidence. The CSRO found that “[t]here is substantial
evidence supporting the conclusion that [Burgess] exercised very
poor judgment by exiting the taxi and getting in [Fredrickson’s]
truck on the day of the incident.” “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.” Rosen v. Saratoga Springs City, 2012 UT
App 291, ¶ 9, 288 P.3d 606 (citation and additional internal
quotation marks omitted).

¶17 Burgess contends that his decision to get out of the taxi
and allow Fredrickson to drive him home was based on the facts
that (1) he had a long friendship with Fredrickson and “had
never observed Fredrickson drink to the point of intoxication”;
(2) he had been with Fredrickson the entire day and had seen
Fredrickson drink only two margaritas with lunch in Denver and
one beer with dinner at the Denver airport; (3) Fredrickson had
refused all alcoholic beverages on the flight to Salt Lake City;
(4) Fredrickson was “perfectly steady on his feet”; and
(5) “[o]nce in the cab, Fredrickson represented to Burgess that he
was fine to drive.” Burgess also asserts that Summers was
drinking heavily throughout the trip, Summers was heavily
intoxicated at the Salt Lake City airport, and Burgess
“reasonably believed that it was the conduct of Summers who
attracted the attention of the airport police.” Thus, according to

20150170-CA 9 2017 UT App 186
 Burgess v. Department of Corrections

Burgess, “[g]iven [his] history with Fredrickson, Summers[’s]
clear state of intoxication which attracted the attention of the
police, and Fredrickson’s ability to converse and walk without
appearing unstable, there is not substantial evidence to conclude
that [Burgess’s] decision to allow his friend to drive him home
showed ‘very poor judgment.’”

¶18 We conclude, however, that substantial evidence supports
the CSRO’s finding that Burgess exercised poor judgment on the
night of the incident. At the step 4 hearing, one of the airport
police officers, Officer Stowell, testified that based on his
interactions with Burgess, Fredrickson, and Summers in the
airport parking lot, he would not have felt comfortable letting
Summers drive, and he would “have had to determine a level of
intoxication beyond odor of alcohol” before he felt comfortable
letting either Burgess or Fredrickson drive. Officer Stowell
testified that he suggested the men take a taxi “and they agreed
on that. It was agreed that the taxi cab would be their ride
home.”

¶19 Fredrickson testified at the hearing that he told the police
officers in the parking lot, “‘It’s probably not a good idea for us
to be driving,’ something to that effect.” Fredrickson stated that
he had been “saying whatever [he] had to say to get [the police
officers] off our backs.” He further testified that he had told
Burgess he was supposed to go hunting in the morning, that
Summers needed his medication and phone charger, and that it
would take Fredrickson two hours to get to the airport and back
home to Herriman, where he lived. Fredrickson testified that he
“absolutely knew [he] was perfectly comfortable to drive and
[he] told [Burgess], ‘I know I’m 100 percent fine to drive.’”

¶20 Although Burgess testified that he never heard
Fredrickson tell police officers that he should not drive and that
Burgess had “no conversation with any of [the police officers]
about the cab,” he also testified that he had told Officer
Stowell, “‘We don’t have a ride[.]’” Burgess testified that while
they were in the taxi, he and Fredrickson decided that

20150170-CA 10 2017 UT App 186
 Burgess v. Department of Corrections

Fredrickson would drive home because (1) Fredrickson had
plans to go hunting the next morning, (2) Burgess and
Fredrickson “talked about [Fredrickson] feeling fine, and
[Burgess] had no reason to believe otherwise,” and (3) Summers
“complain[ed] about not having his pills and phone, phone
charger, or whatever.” Burgess further testified that he
“understood the cops’ point of view at that time” and why they
had put the men in the taxi. During the hearing, counsel for the
Department asked Burgess, “[W]hen you’ve been put by the
police in the cab and you knew you’d been put in there for a
reason, from their standpoint, did you think there was some risk
in getting out of the cab and sending it off empty?” Burgess
replied, “Of course.” Counsel then asked Burgess, “Why didn’t
you mention that to anybody? Why didn’t you say, ‘Let’s not
take that risk. I don’t want to take that risk. Let’s just go home in
the cab and we can come back early tomorrow morning and get
your truck?’” Burgess answered, “[L]ooking in hindsight, there’s
just not a good answer for that.” Finally, during the hearing,
Burgess read a letter aloud, in which he admitted to the
Executive Director, “I know my actions that night ultimately
were the wrong ones—I made a very big mistake by getting out
of the cab with the other two passengers.” Additionally, the
Executive Director testified that Burgess admitted to him that he
“exercised poor judgment.”

¶21 Burgess’s own testimony constitutes substantial evidence
from which the CSRO could base its finding that Burgess
exercised poor judgment on the night of the incident. Although
Burgess did not believe that Fredrickson was impaired, and he
was therefore willing to let Fredrickson drive, Burgess
acknowledged that he understood why the airport police officers
had placed him and his companions in a taxi and, as such, he
knew there was some risk in not following through with the
officers’ suggested course of conduct. Furthermore, Burgess
admitted that he exercised poor judgment and that his actions on
the night of the incident were wrong. Consequently, we
conclude that substantial evidence supports the CSRO’s finding
that Burgess exercised poor judgment and that the CSRO’s

20150170-CA 11 2017 UT App 186
 Burgess v. Department of Corrections

decision on this point did not exceed the bounds of
reasonableness and rationality.

II. Violations of Departmental Policies

¶22 Second, Burgess contends that the CSRO erred in finding
that his conduct violated the departmental policies cited in his
pre-termination and termination notices. The Department
dismissed Burgess for “non-compliance with and/or a violation
of [Utah Administrative Code] Rule 477-9, governing standards
of conduct, Utah Department of Corrections Policy . . . AE 02/07,
governing unlawful conduct, and . . . Policy AE 02/11.03,
governing professionalism.”

¶23 During the relevant time frame, rule R477-9 of the Utah
Administrative Code read, in pertinent part, “An employee shall
comply with the standards of conduct established in these rules
and the policies and rules established by agency management.”
See Utah Admin. Code R477-9 (2013). In this case, the
Department specifically alleged that Burgess violated Policy AE
02/07 and Policy AE 02/11.03.

¶24 Policy AE 02/07 stated, in relevant part, “It is the policy of
the Department that members conduct themselves lawfully and
honestly, both on and off duty.” The rationale for this policy was
set forth in Policy AE2/07.02, which stated that “[b]ecause
members of the Department are part of the state’s criminal
justice system and are accountable by the citizens for their
conduct, their actions and conduct are legitimately held to a
higher standard.” Policy AE2/07.02 further stated that
“[d]ishonest and/or unlawful behavior of members has the
potential to undermine public confidence and trust in the
Department and its ability to carry out its mission.”

¶25 The CSRO found substantial evidence that Burgess did
not conduct himself honestly on the night of the incident.
Specifically, the CSRO found that

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 Burgess v. Department of Corrections

[h]onesty is not necessarily limited to whether
someone is telling the truth. For instance, one may
be dishonest by failure to disclose something or by
a misleading response. [Burgess] was not honest in
his actions when he indicated he would take a taxi,
got in the taxi, but then got out of the taxi. Honesty
encompasses such things as exhibiting integrity in
a professional context and ensuing trustworthiness.
While [Burgess] may not have violated a law in this
incident, he clearly was dishonest even though he
was not charged with lying. [Burgess] would be
hard pressed to argue that the taxi incident
exhibited his sense of honesty and reflected his
trustworthiness. Honesty also means to avoid
deception. [Burgess] deceived the airport police
officers by allowing them to believe he would do
something and then not doing it.

Based on these findings, the CSRO determined that Burgess
violated Policy AE 02/07.

¶26 Burgess contends that he “agreed to get into the cab when
he thought that Fredrickson—who was his ride home—was
riding in the cab. When circumstances changed—i.e. Fredrickson
decided to drive home—Burgess followed him.” Thus, according
to Burgess, “[i]t is not reasonable or rational to conclude that [he]
was dishonest by getting out of the cab once he had gotten in.”
According to Burgess, “[i]f each and every person were fired
because they initially agreed to do something, but did not follow
through with their promise when circumstances changed, there
would not be a qualified person left to work for [the
Department].”

¶27 After examining the record, we conclude that substantial
evidence supports the CSRO’s finding that Burgess did not
conduct himself honestly on the night of the incident. Burgess
testified that he told Officer Stowell the men did not have a ride

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 Burgess v. Department of Corrections

home. Officer Stowell’s testimony corroborated this; he testified
that none of the men claimed to be a designated driver and that
Summers stated, “‘We’ve all been drinking.’” Accordingly,
Officer Stowell suggested the men take a taxi home, to which the
men agreed. When the taxi arrived, all three men got in. Burgess
testified that the police officers did not ask him directly if he
would get in the taxi and that he had had “no conversation with
any of [the police officers] about the cab.” Nevertheless, he
followed Fredrickson to the taxi when it arrived. Burgess also
testified that he “understood the cops’ point of view at that
time” and why they had suggested that the men not drive that
night.

¶28 Although the record is unclear, there is some indication
that Burgess and his companions, or at least Fredrickson, never
intended to take the taxi home. Indeed, Fredrickson testified that
he “was saying whatever [he] had to say to get [the police
officers] off our backs.” Furthermore, Fredrickson testified that
once the taxi started to drive away, he was “thinking and talking
to [Burgess], ‘How the heck are we going to get out of this cab?’”
Fredrickson stated that he wanted to get out of the taxi,
explaining, “I wanted my truck, I wanted just to drive home.
That’s why I drove my truck there. It was very frustrating.” And
both Burgess and Fredrickson acknowledged that Fredrickson
wanted to drive home because he was going hunting the next
morning and it would “be two hours getting back to this
airport.”

¶29 In any event, the record demonstrates that Burgess,
through his statements and actions, led the airport police officers
to believe he would take the taxi home, yet he did not follow
through with this course of conduct. This court has previously
acknowledged that “[law enforcement] officers are in a position
of trust and are thus held to the highest standards of behavior.”
Lucas v. Murray City Civil Service Comm’n, 949 P.2d 746, 762 (Utah
Ct. App. 1997) (citation and internal quotation marks omitted).
These standards are the rationale behind Policy AE 02/07,
through which members of the Department are held to a higher

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 Burgess v. Department of Corrections

standard of accountability. Supra ¶ 24. Here, Burgess told Officer
Stowell that the men did not have a ride home. And while
Burgess did not expressly agree to take the taxi home, his
acknowledgment that the men did not have any legal and safe
alternative surely left little room for the police officers to doubt
that Burgess would in fact take the taxi home. Moreover, when
the taxi arrived, Burgess followed Fredrickson into the taxi
without objection. Burgess testified that he understood why the
police officers had suggested the men not drive themselves that
evening. Thus, regardless of his subjective reasons for ultimately
getting out of the taxi, the fact remains that Burgess indicated to
the police officers that he would take the taxi home, which he
did not do. Based on the foregoing, we conclude that there was
substantial evidence on which the CSRO could, and apparently
did, base its finding that Burgess did not conduct himself
honestly on the night of the incident, in violation of Policy AE
02/07.

¶30 Policy AE 02/11.03 stated, in pertinent part, “No member
shall act or behave privately or officially in such a manner that
undermines the efficiency of the Department, causes the public
to lose confidence in the Department, or brings discredit upon
himself, the State of Utah or the Department.” In this case, the
CSRO determined that the “incident had the potential to bring
discredit upon the Department in the public arena, and
moreover, it did bring discredit upon [Burgess] and within the
Department.” Thus, the CSRO concluded, Burgess violated
Policy AE 02/11.03.

¶31 Burgess contends that he “could not have been found to
have brought discredit upon himself when all the officers who
associated with Burgess testified that he was totally professional
and totally compliant, where all the charges were dropped, and
the [POST] investigation revealed no violation of policy.”
According to Burgess, while he “has continuously expressed
regret for having ended up in a situation where he was arrested,
it does not follow that he brought discredit upon himself by
making the decision to trust his friend who had assured him he

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 Burgess v. Department of Corrections

was perfectly capable of driving.” Thus, we consider whether
there was substantial evidence to support the CSRO’s finding
that the “incident . . . did bring discredit upon [Burgess].”

¶32 The Executive Director testified that Burgess’s decision to
exit the taxi and get into Fredrickson’s truck significantly
undermined his confidence in Burgess. The Executive Director
observed that

the police tried to take care of [Burgess and his
companions]. They put [Burgess] in a cab, sent him
on his way, home safely. . . . So then the next thing
is to get out of the [cab] with his friends. He could
have stayed in the cab. Again, another situation
showing very poor judgment.

The Executive Director testified that he was concerned that
Burgess’s “judgment is going to be impaired when he’s
managing felons in the community. . . . [W]e’re talking about a
sworn member of public safety. It’s a different level of
expectation. . . . When he’s out there managing inmates, that’s a
big deal.” According to the Executive Director, managing
inmates outside the prison is “a different thing than when you
have them behind walls and the bars and the cells and different
things like that. It’s a whole different challenge. . . . The
expectation of the community is much higher when we have
them out in the community and managing them around citizens
and people that way.”

¶33 The Executive Director further testified that, after he read
Burgess’s appeal letter and met with Burgess, he did not think
Burgess was taking responsibility for his actions. Rather, he
thought that Burgess was “blaming it away or acting as if it’s not
a serious offense.” Ultimately, the Executive Director testified
that he could no longer trust Burgess, who held a position where
he was “going to be managing some of the most manipulative
people in our community.” The UCI Director testified similarly:

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 Burgess v. Department of Corrections

“A crew supervisor is in a position of trust particularly because
the inmates are off-site. Burgess’[s] job requires rapid decision
making and makes him subject to being manipulated by
inmates. It came down to [a] trust issue and the potential of
being compromised as a correctional officer.” Based on the
Executive Director’s and the UCI Director’s testimony, we
conclude that there was substantial evidence from which the
CSRO could base its finding that Burgess brought discredit upon
himself, in violation of Policy AE 02/11.03.

¶34 Because we conclude that there was substantial evidence
to support the CSRO’s findings that Burgess violated Policy
AE 02/07 and Policy AE 02/11.03, it follows that there was
substantial evidence to support the conclusion that Burgess
violated rule R477-9, which required employees to “comply with
the standards of conduct established in these rules and the
policies and rules established by agency management.” See Utah
Admin. Code R477-9 (2013). Consequently, the CSRO’s decision
did not exceed the bounds of reasonableness and rationality.

III. Termination

¶35 Finally, Burgess contends that the CSRO erred in
determining that his termination was not excessive, inconsistent,
or disproportionate to his offense and that his “termination is
not consistent with [the Executive Director’s] previous
application of the policies Burgess was charged with violating.”7
“In assessing whether employee misconduct warrants the
sanctions imposed, this court has divided the inquiry into two
prongs: (1) Is the sanction ‘proportional’? and (2) Is the sanction
consistent with previous sanctions imposed by the department
pursuant to its own policies?” Perez v. South Jordan City, 2014 UT
App 31, ¶ 24, 320 P.3d 42 (citation and additional internal

7. At the step 4 hearing, Burgess testified that he believed he
deserved to be disciplined for what happened, but he disagreed
with the disciplinary action taken.

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 Burgess v. Department of Corrections

quotation marks omitted); see also West Valley City v. Coyle, 2016
UT App 149, ¶ 29, 380 P.3d 327 (“[I]f the discipline is either not
proportional to the offense or is not consistent with previous
sanctions, a sanction may be reversed by a civil service
commission or overridden by this court.” (emphasis added)).

A. Proportionality

¶36 Burgess first contends that his termination is
disproportionate to his offense. When examining the
proportionality of a sanction, the CSRO is restricted to
determining whether an agency’s sanction “is excessive,
disproportionate or otherwise constitutes an abuse of
discretion.” Utah Admin. Code R137-1-21(3)(b) (2013). “In
making this latter determination, the CSRO hearing officer shall
give deference to the decision of the agency or the appointing
authority.” Id. “An agency abuses its discretion when it reaches
an outcome that is clearly against the logic and the effect of such
facts as are presented in support of the application, or against
the reasonable and probable deductions to be drawn from the
facts disclosed upon the hearing.” Sorge v. Office of Att’y Gen.,
2006 UT App 2, ¶ 22, 128 P.3d 566 (citation and internal
quotation marks omitted); see also Lucas v. Murray City Civil
Service Comm’n, 949 P.2d 746, 761 (Utah Ct. App. 1997) (“If a
penalty is so harsh as to constitute an abuse, rather than an
exercise of discretion, it cannot be allowed to stand.” (citation
and internal quotation marks omitted)). The “[d]iscipline
imposed for employee misconduct is within the sound discretion
of the [agency head], which will be reversed only when the
punishment is clearly disproportionate to the offense, and
exceeds the bounds of reasonableness and rationality.” Sorge,
2006 UT App 2, ¶ 31 (alterations in original) (citation and
internal quotation marks omitted).

¶37 With regard to proportionality, the CSRO first determined
that there was “insufficient reason to conclude that [Burgess]
was publically intoxicated” and concluded that “[i]nsofar as [the
Executive Director] may have terminated [Burgess] on the basis

20150170-CA 18 2017 UT App 186
 Burgess v. Department of Corrections

of being publically intoxicated, that reason is not supported by
‘substantial evidence.’” The CSRO observed that Burgess “had a
spotless work record and was a highly regarded, valued
employee with a high skill set”; that his conduct occurred while
he was off duty; that his conduct “resulted in no real injury or
harm”; that “[t]he public (except for the cab driver) was unaware
of what happened and the inmates whom [Burgess] supervised
presumably were unaware of the incident as well”; that the
public intoxication charge was dismissed; and that POST
declined to take any action against Burgess. Nevertheless, the
CSRO ultimately concluded that Burgess’s poor judgment in
combination with “the Executive Director’s lack of trust in
[Burgess’s] judgment” was sufficient to uphold the Executive
Director’s decision to terminate Burgess’s employment. The
CSRO noted that it “would not have made the decision that the
Executive Director made in this case, and instead imposed a
hefty suspension,” but that “a hearing officer cannot substitute
his or her judgment after an Agency has acted if the applicable
criteria are met.”

¶38 “There is no single set of factors that must be considered
when conducting a proportionality review.” Coyle, 2016 UT App
149, ¶ 30. However, in Ogden City Corp. v. Harmon, 2005 UT App
274, 116 P.3d 973, this court set forth several factors that may be
considered in measuring the proportionality of sanctions (the
Harmon factors), including (1) whether the employee has “an
exemplary service record,” (2) whether the evidence of
misconduct is tenuous, (3) whether the employee has been
dishonest, (4) whether there are numerous violations,
(5) whether there has been “ineffective progressive discipline,”
(6) “whether the violation is directly related to the employee’s
official duties and significantly impedes his or her ability to
carry out those duties,” (7) “whether the offense was of a type
that adversely affects the public confidence in the department,”
(8) “whether the offense undermines the morale and
effectiveness of the department,” (9) “whether the offense was
committed willfully or knowingly, rather than negligently or
inadvertently,” and (10) whether the misconduct is likely to

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 Burgess v. Department of Corrections

reoccur. Id. ¶ 18; see also Sorge, 2006 UT App 2, ¶ 30 (applying the
Harmon factors and concluding that the petitioner’s termination
was not disproportionate).

¶39 Before we address the Harmon factors, we consider how
significant a role Burgess’s public intoxication charge played in
the decision to terminate his employment. As previously
discussed, the CSRO determined that there was “insufficient
reason to conclude that [Burgess] was publically intoxicated”
and that termination on that basis was “not sustained.”
However, we do not believe that the effect of the public
intoxication charge on the chosen sanction can simply be
removed from the calculus without considering the impact on
the result.

¶40 To begin with, in its written decision, the CSRO stated
that the Executive Director had testified that even if Burgess had
not been intoxicated, that fact “‘probably would not have
changed [his] mind.’” In other words, the CSRO believed that
the Executive Director had testified that he would have made the
same decision to terminate even without the public intoxication
charge. Our review of the record has not revealed where the
Executive Director expressed this sentiment. Rather, the CSRO
seems to have confused the UCI Director’s testimony with that
of the Executive Director. Specifically, at the step 4 hearing, the
UCI Director was asked, “If all of the facts remained the same in
terms of what happened that night at the airport and Mr.
Burgess was not actually intoxicated, would your decision have
changed?” The UCI Director replied, “Probably not.”

¶41 In actuality, the record demonstrates that Burgess’s public
intoxication charge played a significant role in the committee’s
sanction recommendation and in the Executive Director’s final
decision to terminate Burgess’s employment. As previously
discussed, Burgess’s immediate UCI supervisor and a UCI
production manager testified that the “comparable cases”
involving public intoxication “swung the decision in the
[committee] meeting” toward termination. Supra ¶ 8. They

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 Burgess v. Department of Corrections

recalled that, in the committee meeting, the UCI Director had
stated that “murder is murder,” meaning that “if you were
intoxicated, you were intoxicated,” and that Burgess should be
terminated like the employees in the so-called “comparable
cases.” The CSRO ultimately determined that the committee’s
recommendation that Burgess be terminated was “largely based
on his public intoxication and not a lack of trust.”

¶42 More importantly, though, the Executive Director’s
testimony strongly suggests that Burgess’s public intoxication
charge was a significant factor in his decision to terminate
Burgess’s employment as well. Specifically, although the public
intoxication charge against Burgess had been dropped for
insufficient evidence by the time of the step 4 hearing, the
Executive Director repeatedly referred to public intoxication as
one of the reasons he chose to terminate Burgess and often listed
public intoxication first when testifying. For example, the
Executive Director testified that his decision was based on “a
combination of the public intoxication charge, . . . that booking,
but it was also . . . the decision . . . to get out of a taxi cab [and]
then get into a vehicle with someone who’s intoxicated.”
According to the Executive Director, “[t]he decision of being
intoxicated in public, the decision to get out of a cab, the decision
to drive with someone who’s intoxicated” were all “important
reasons” in his decision to terminate. He testified,
“Unfortunately, in our line of work, . . . the expectation is a
whole lot higher for us. And when we make that one mistake,
including me, . . . if I’m arrested and I’m booked for public
intoxication, I’ll be gone.” The Executive Director further
testified, “To be booked into jail on public [intoxication], to make
the decision to get into a vehicle with someone you know is
intoxicated, the level has been met and the decision had to be
made, so I made the decision.”

¶43 The Executive Director also expressed the belief that just
because the charge against Burgess was dropped, that did not
mean that Burgess had not been publically intoxicated on the
night in question. When asked whether he was “surprised that

20150170-CA 21 2017 UT App 186
 Burgess v. Department of Corrections

the charges were dropped against Mr. Burgess,” the Executive
Director replied, “Not at all, not for public [intoxication]. Public
[intoxication], especially if it’s your first one, oftentimes they
don’t choose to prosecute.” The Executive Director stated that it
was “difficult to say what six drinks in eight hours [does] to [a
person],” but that “[i]n all the searches I’ve done in all my time
in booking, as a lieutenant, as a sergeant, as an officer, I never
had someone say, ‘Yep, I’m really drunk, I drank six drinks.’ It’s
always, ‘I’m not drunk and I’m not intoxicated.’” He also stated
that Burgess’s statement, “By no means did I feel intoxicated,”
did not “make much of an impression” on him because “it’s not
uncommon for people to say, ‘I didn’t feel intoxicated.’”

¶44 Additionally, Burgess’s public intoxication charge
appears to be the only aggravating factor distinguishing his case
from another incident that occurred shortly after his termination.
That incident involved another UCI crew supervisor who
allowed an inmate to let a dog off its chain. The dog then got
into a fight with another dog and bit an inmate who tried to
separate the two animals. The crew supervisor asked an inmate
to lie about the incident and falsified a police report. Shortly
thereafter, the crew supervisor reported the incident to his
immediate supervisor and the police report was corrected for
truth. The imposed discipline for the employee was time off
without pay.

¶45 The CSRO observed that the discrepancies between the
dog bite incident and Burgess’s discipline were “astounding”
and “unfathomable.” Whereas Burgess had a spotless work
record and was a highly regarded employee who had “made a
really stupid off duty mistake which . . . resulted in no real
injury or harm,” the crew supervisor involved in the dog bite
incident was on duty, “acceded to an inmate’s request to release
a dog from a pen on [a] worksite” (which directly resulted in an
inmate’s being injured), asked an inmate to lie, and falsified a
police report. The CSRO observed that while the dog bite
incident “should have eviscerated the [Department’s] trust in
[the crew supervisor],” he received only a week off without pay,

20150170-CA 22 2017 UT App 186
 Burgess v. Department of Corrections

while Burgess was terminated. Although we do not consider the
dog bite incident in evaluating the Executive Director’s
consistency with previous sanctions, infra ¶ 54, that incident
nevertheless informs our decision as to whether Burgess’s
sanction was proportional to his conduct, and we agree with
Burgess that the dog bite incident “certainly speaks volumes as
to whether exercising poor judgment was really the reason
Burgess was fired.”

¶46 In light of all of the circumstances, we conclude that the
Department’s termination of Burgess was a disproportionate
sanction for his conduct. In examining the Harmon factors, and
setting aside any consideration of Burgess’s alleged public
intoxication on the night of the incident, only the third, seventh,
and ninth factors weigh in favor of a conclusion that Burgess’s
termination was proportionate to his offense. Supra ¶ 38. First, as
previously discussed, there was substantial evidence on which
the CSRO could base its finding that Burgess did not conduct
himself honestly on the night of the incident. See Ogden City
Corp. v. Harmon, 2005 UT App 274, ¶ 18, 116 P.3d 973. Second,
although the public (with the probable exception of the taxi
driver) was unaware of what happened, and the inmates
Burgess supervised were presumably unaware of the incident as
well, Burgess’s disregard for the airport police officers’ well-
intentioned intervention is “of a type that adversely affects the
public confidence” in the Department. See id. This is especially
true where the Executive Director had been working for eighteen
months to “‘clean things up’ and restore respectability and trust”
in the Department vis-à-vis the public, and to be “a good partner
in the community.” Third, Burgess’s decision to get out of the
taxi and into Fredrickson’s truck, despite his acknowledgment
that he “understood the cops’ point of view” and why they had
suggested that he and his companions take a taxi, indicates
willful and knowing disregard for the airport police officers’
concerns. See id.

¶47 Conversely, at least four factors—the first, sixth, eighth,
and tenth—weigh in favor of a conclusion that Burgess’s

20150170-CA 23 2017 UT App 186
 Burgess v. Department of Corrections

termination was disproportionate to his offense. First, the record
is clear that Burgess had an exemplary service record with the
Department. See id. At the step 4 hearing, the UCI Director
testified that “up until this point” Burgess had been a “very
good” employee and that he had always “gotten very good
reviews.” In addition, Burgess’s immediate UCI supervisor and
a UCI production manager testified that Burgess was one of the
best UCI crew supervisors and that his “quality of work was
great, the best we had.” Second, the incident occurred while
Burgess was off duty, and his conduct was not directly related to
his official work duties, i.e., supervising inmates on construction
projects outside the prison. See id. And while the loss of the
Executive Director’s and the UCI Director’s confidence in his
abilities, supra ¶¶ 32–33, is certainly a consequence of Burgess’s
conduct, this is not a case where Burgess was truly impeded
from carrying out his duties because of his conduct. Cf. Nelson v.
Orem City, 2012 UT App 147, ¶ 24, 278 P.3d 1089 (concluding
that an officer’s excessive use of force was “directly related to
[his] official duties[,] as the violation occurred while [he] was on
duty and in the normal course of [his] employment”), aff’d sub
nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237; Guenon v.
Midvale City, 2010 UT App 51, ¶ 16, 230 P.3d 1032 (concluding
that “the close relationship between [the officer’s] misconduct
and [his] official duties” weighed in favor of a conclusion that
the officer’s termination was an appropriate sanction). Third,
there is simply no evidence demonstrating that Burgess’s
conduct actually undermined the morale and effectiveness of the
Department. See Harmon, 2005 UT App 274, ¶ 18. Finally,
regarding “whether the misconduct is likely to reoccur,” see id.,
Burgess acknowledged in his letter to the Executive Director that
his “decision that night was a rare moment of poor judgment”
and, although not conclusive, he assured the Executive Director
that the incident “became a situation that [he had] never been in
before and never will again” and that “this won’t happen again.”

¶48 In sum, we conclude that the effects of Burgess’s public
intoxication charge on the ultimate decision to terminate his
employment cannot be understated—the record amply

20150170-CA 24 2017 UT App 186
 Burgess v. Department of Corrections

demonstrates that Burgess’s public intoxication charge played a
significant role in the Executive Director’s decision to terminate
him. Setting aside Burgess’s alleged public intoxication on the
night of the incident, we conclude that the CSRO’s decision that
termination was a proportional sanction for Burgess’s violation
of departmental policies was outside the bounds of
reasonableness and rationality. The record shows that Burgess
had an exemplary service record, and his off-duty conduct was
not directly related to his official work duties or his ability to
carry out those duties. Thus, termination was a disproportionate
sanction for Burgess’s conduct.

B. Consistency

¶49 Burgess also contends that his termination is not
consistent with the Executive Director’s previous application of
the policies Burgess was charged with violating. “When
challenging a sanction’s consistency, the disciplined employee
must first make out a prima facie case by pointing to specific
instances or statistics, rather than relying on an unsupported
assertion of inconsistent punishment.” Perez v. South Jordan City,
2014 UT App 31, ¶ 26, 320 P.3d 42 (citation and internal
quotation marks omitted). The employee “must, at a minimum,
carry the burden of showing some meaningful disparity of
treatment between [himself] and other similarly situated
employees.” Id. (alteration in original) (citation and internal
quotation marks omitted). In this case, the CSRO determined
that “there are no true comparables similar enough to question
the [Department’s] consistency.”

¶50 In support of his contention that the Executive Director
acted inconsistently, Burgess directs us to one instance where the
Executive Director demoted a probation officer who knew that
her child had allegedly been sexually abused by the officer’s
husband (the child’s stepfather) and consistently failed to report
it, in violation of state law. The probation officer went on
vacation and left the child with the stepfather. When the
probation officer returned home two days after being advised by

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 Burgess v. Department of Corrections

the child’s biological father that the child was being sexually
abused by the stepfather, the probation officer told the stepfather
to self-report the abuse. However, the stepfather did not do so,
and only after the child’s biological father reported the abuse
was the situation addressed. The Department found that the
probation officer had violated the same policies that Burgess was
charged with violating. See supra ¶ 6. At Burgess’s step 4
hearing, the Executive Director testified that the probation
officer in the previous case had “exercised extremely poor
judgment” and that he had lost his trust in her. However, he
chose not to terminate her employment because he “didn’t feel
like there was enough to allow us to terminate, although [he]
wished [he] could.” The Executive Director explained that in
making this decision, he did not feel like he had enough proof
that the sexual abuse had actually occurred given “the
circumstances of the case, the uncooperativeness of [the Division
of Child and Family Services], the uncooperation of the agency
that was involved in pressing charges against this and having
any sort of proof.”

¶51 Burgess contends that the probation officer’s demotion in
that instance and his termination in this case are “remarkably
inconsistent.” Burgess observes that, “even though [the
Executive Director] plainly concluded that the probation officer
exhibited poor judgment and lost his trust, she continues to be
employed while Burgess was fired.” Thus, according to Burgess,
his termination was inconsistent with the Executive Director’s
prior disciplinary action.

¶52 We agree with Burgess that his case and the sexual abuse
case are comparable. While the underlying facts are dissimilar,
Burgess’s case and the sexual abuse case both involve the
exercise of poor judgment resulting in the Executive Director’s
loss of trust. And both cases involve violations of the same
departmental policies. However, Burgess was fired and the
probation officer was only demoted. Although the Executive
Director testified in regard to the comparable incident that he
“didn’t feel like there was enough to allow us to terminate”

20150170-CA 26 2017 UT App 186
 Burgess v. Department of Corrections

based on the lack of proof that the sexual abuse (that should
have been reported) had actually occurred, the fact remains that,
similar to Burgess’s case, the Executive Director viewed the
probation officer’s actions as an exercise of “extremely poor
judgment” and lost his trust in her. Cf. Lucas v. Murray City Civil
Service Comm’n, 949 P.2d 746, 761–62 (Utah Ct. App. 1997)
(observing that “dismissal for the charge of dishonesty [was]
neither compelled nor supported by the record” and that “the
record show[ed] that other officers disciplined solely for
dishonesty were suspended rather than discharged”).
Nevertheless, despite being comparable, we acknowledge that,
in comparing these two cases, it is difficult to ascertain which
imposed sanction is the outlier.

¶53 But Burgess also cites the dog bite incident that occurred
shortly after he was terminated. Supra ¶¶ 44–45. As previously
noted, the CSRO observed that while the dog bite incident
“should have eviscerated the [Department’s] trust in [the crew
supervisor],” he received only a week without pay, whereas
Burgess was terminated. However, because the incident
occurred after Burgess’s termination, the CSRO did not consider
the incident as a past comparable in weighing Burgess’s
discipline, and Burgess concedes that the incident “could not be
used to judge whether [his] termination . . . was consistent
discipline because [it] occurred later and was not information
relied upon in making the [termination] decision” in his case.

¶54 Like the CSRO, we do not consider the dog bite incident
in evaluating the Executive Director’s consistency with previous
sanctions, because it occurred after Burgess’s termination. See
Utah Code Ann. § 63G-4-403(4)(h)(iii) (LexisNexis 2011)
(providing that “[t]he appellate court shall grant relief only if, on
the basis of the agency’s record, it determines that a person
seeking judicial review has been substantially prejudiced by
any” of several enumerated agency actions, including when the
agency action is “contrary to the agency’s prior practice”
(emphasis added)). Nonetheless, as previously discussed, when
compared to Burgess’s termination, the relatively mild sanction

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 Burgess v. Department of Corrections

imposed in the dog bite case bolsters our conclusion that the
public intoxication charge played a considerable role in the
decision to terminate and that Burgess’s sanction was
disproportionate to his offense. Although the Executive
Director’s disciplinary authority is discretionary, it is not
unlimited, and when viewed from the lens of consistent
discipline, the dog bite case demonstrates that the Executive
Director’s decision to terminate Burgess’s employment was an
abuse of discretion. See Lucas, 949 P.2d at 761 (“If a penalty is so
harsh as to constitute an abuse, rather than an exercise of
discretion, it cannot be allowed to stand.” (citation and internal
quotation marks omitted)).

CONCLUSION

¶55 We conclude that there was substantial evidence to
support the CSRO’s findings that Burgess exercised poor
judgment and that he violated Policy AE 02/07 and Policy AE
02/11.03. However, we ultimately conclude that Burgess’s
termination was disproportionate to his offense and that the
CSRO’s decision to uphold the Department’s termination of
Burgess exceeded the bounds of reasonableness and rationality.
Accordingly, we set aside the decision of the CSRO and return
the case for reconsideration of the discipline to be imposed.

20150170-CA 28 2017 UT App 186