Fierro v. Park City Municipal Corp.

2014 UT App 71, 323 P.3d 601, 757 Utah Adv. Rep. 17, 2014 WL 1257149, 2014 Utah App. LEXIS 70
CourtCourt of Appeals of Utah
DecidedMarch 27, 2014
DocketNo. 20121037-CA
StatusPublished

This text of 2014 UT App 71 (Fierro v. Park City Municipal Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fierro v. Park City Municipal Corp., 2014 UT App 71, 323 P.3d 601, 757 Utah Adv. Rep. 17, 2014 WL 1257149, 2014 Utah App. LEXIS 70 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

ORME, Judge:

T1 Michael Fierro challenges the decision of the Park City Employee Transfer and Discharge Appeal Board that the Park City Police Department had sufficient grounds for terminating his employment. The challenge is well taken, and we set the decision aside.

12 This case arises out of Fierro's termination from the police department for misconduct. In October 2009, Fierro received a notice and memorandum (the Termination Memo) that documented the termination of his employment with the police department and specified the grounds for termination. The Termination Memo identified five reasons for Fierro's termination. Fierro appealed, and the Appeal Board upheld the termination in December 2010. Fierro then sought our review of the Appeal Board's decision. See Fierro v. Park City Mun. Corp. (Fierro I), 2012 UT App 304, ¶ 8, 295 P.3d 696.

{3 We considered only one issue in reviewing the Appeal Board's December 2010 decision, namely, whether "the Appeal Board exceeded its authority and violated Fierro's due process rights in considering evidence unrelated to the charges specified in the Termination Memo." Id. We held that the Appeal Board was only permitted to consider evidence " 'which relates to the cause for the discharge," id. (emphasis in original) (quoting - Utah - Code _ Ann. § 10-3-1106(8)(b)(ii) (2007)), and that the Appeal Board thus exceeded its authority in considering different acts of misconduct than those specified in the Termination Memo, id. 1127-28. Accordingly, in Fierro I we set the Appeal Board's decision aside, but granted it "leave to consider whether the one ground that fell within the seope of the Termination Memo, and which the Board sustained, ... was sufficient to warrant Fierro's termination." Id. 132. That one ground was Fierro's misuse of "his police credentials to gain access to a jailed suspect for church purposes." Id.

T 4 The facts surrounding this episode center around a jail visit Fierro made in August 2009. "Fierro, who served as a lay leader in his church,[1] became aware that one of his parishioners was the suspect in [al] child sex abuse case," id. 18 n. 2, which was being investigated by the police department.2 Fi-erro then visited this parishioner in the Summit County Jail.

T5 In arranging his jailhouse visit, Fierro called the Summit County Jail commander and asked if the commander would allow Fierro to visit one of his parishioners who was incarcerated and having a hard time. The commander checked with his duty sergeant and determined that the jail could accommodate the request. During his visit, Fierro was given some special accommodations, such as after-hours access, entry through a door that was typically used only by police officers, and the use of a private visitation room-although the jail's duty sergeant noted that it is common for clergy to be granted their requests for private visitation rooms.

I 6 We set aside the Appeal Board's initial determination, which was premised on multiple instances of misconduct that were not mentioned in the Termination Memo. At the same time, we granted the Appeal Board the opportunity to consider whether the cireum-stances of the jail visit, a subject properly disclosed in the Termination Memo, warranted termination standing alone. See id. 182. [603]*603The Appeal Board accepted this invitation and again reviewed the police department's decision to terminate Fierro. The Appeal Board understood its limited assignment, noting in the opening paragraph of its decision: "The court gave the Board leave to reconsider one issue: whether Officer Fierro misused his police credentials to gain access to a jailed suspect for church purposes and whether that was sufficient to warrant Fier-ro's termination."

T 7 Upon further review, the Appeal Board found that "Fierro's own testimony and other evidence in the record" demonstrated "that Fierro went to the jail in his role as a clergyman but did not reveal that to the jail." Additionally, it found that "when Fierro called [the commander] at the jail about accessing the suspect, he did not tell [the commander] the purpose of his visit" and that the commander "only knew after the visit that Fierro was there as a clergyman." The Appeal Board also noted that Fierro's "misuse of his credentials and his knowing failure to identify that the purpose of his visit was as a clergyman, rather than as a police officer, was dishonest." Based on these findings, the Appeal Board determined that Fierro "misused his police credentials to gain access to a jailed suspect for church purposes, and that this was sufficient to warrant termination."

T8 Fierro seeks judicial review of this decision. He argues that the Appeal Board's findings are not supported by substantial evidence. See Rosen v. Saratoga Springs City, 2012 UT App 291, ¶ 8, 288 P.3d 606. " '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 "seintilla" of evidence and something less than the weight of the evidence'" Id. T9 (quoting Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 758 (Utah Ct.App.1997)).

T9 Based on our examination of the record before us, we must conclude that the Appeal Board's finding that Fierro lied about the purpose of his visit is not supported by substantial evidence. In fact, we can find no evidence in the record to support the Appeal Board's key finding. Rather, all relevant evidence presented to the Appeal Board indicates that Fierro fully disclosed that he was visiting the jail in his role as a member of his church's lay clergy.3

T 10 In support of its finding that Fierro lied about the purpose of his jailhouse visit, the Appeal Board explicitly relied on "Fier-ro's own testimony" before the Appeal Board and "other evidence" outlined in the Termination Memo. But this evidence does not support the Appeal Board's finding. We can find no place in Fierro's own testimony where he testifies that he did not disclose the purpose of his visit to the jail commander. Fierro testified that he "was going to visit [the suspect] in the capacity of a clergyman." Additionally, the Termination Memo says nothing about Fierro's alleged failure to disclose that he was visiting the jail in his ecclesiastical role. Finally, the Appeal Board also refers to an email that Fierro sent to the jail commander on the day after the jailhouse visit, thanking the jail commander for facilitating the visit. However, contrary to the Appeal Board's inference, nothing in the email suggests that Fierro was revealing the purpose of his visit for the first time, and the jail commander's own account of the visit indicates that he knew the purpose of the visit from the outset.4

In contrast to the lack of evidence supporting the Appeal Board's findings, there is ample evidence that Fierro fully disclosed his ecclesiastical role when he visited the jail. As part of an internal affairs investigation that preceded Fierro's termination, both Fierro and the jail commander were interviewed. Fierro told the internal [604]*604affairs investigator that he "represented himself as clergy when he requested the visit." And the jail commander told the investigator that "Fierro went to the jail, functioning as a Branch President." See supro note 1.

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Related

Lucas v. Murray City Civil Service Commission
949 P.2d 746 (Court of Appeals of Utah, 1997)
Fierro v. Park City Municipal Corp.
2012 UT App 304 (Court of Appeals of Utah, 2012)
Rosen v. Saratoga Springs City
2012 UT App 291 (Court of Appeals of Utah, 2012)

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Bluebook (online)
2014 UT App 71, 323 P.3d 601, 757 Utah Adv. Rep. 17, 2014 WL 1257149, 2014 Utah App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fierro-v-park-city-municipal-corp-utahctapp-2014.