Rosen v. Saratoga Springs City , 288 P.3d 606 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Aaron Rosen, ) OPINION
)
Petitioner, ) Case No. 20110497‐CA
)
v. ) FILED
) (October 18, 2012)
Saratoga Springs City and Saratoga )
Springs City Employee Appeals Board, ) 2012 UT App 291)
Respondents. )
‐‐‐‐‐
Original Proceeding in this Court
Attorneys: Ryan B. Hancey, Salt Lake City, for Petitioner
Heidi E. C. Leithead and Mary Ann May, Salt Lake City; and Kevin S.
Thurman, Saratoga Springs, for Respondents
‐‐‐‐‐
Before Judges Davis, Roth, and Christiansen.
DAVIS, Judge:
¶1 Aaron Rosen challenges the decision of the Saratoga Springs City Employee
Appeals Board (the Board) upholding his demotion in the Police Department for
Saratoga Springs City (the City). We set aside the Board’s order and direct it to revisit
its findings in light of this opinion.
BACKGROUND
¶2 Rosen’s demotion from corporal to top step police officer arose from an incident
occurring on January 18, 2011, in which Rosen dropped his pants in the presence of a
female records clerk (Clerk) at the police department, an event the Board described as a
“wardrobe malfunction.” Rosen’s pants fell to around his knees, and it is unclear if
anything besides his shirttails and underpants were visible. Rosen claims that in an
attempt to “downplay [his] idiocy” and embarrassment, he made a comment to Clerk
that she interpreted as inappropriate. The appeal focuses on what Rosen was ordered
to do or not do in the wake of this pants‐dropping incident.
¶3 The incident prompted an internal affairs investigation during which the
investigating officer, Sergeant Kerry Cole, claims to have instructed Rosen on January
19, 2011, (Sergeant Cole’s January 19 Instruction) to restrict his contact with Clerk to
“‘professional contact’ . . . until things ‘cooled off.’” Rosen interpreted that instruction
as requiring him to limit his contact with Clerk during the investigation period by
refraining from discussing the investigation and by conducting any interactions with
her within the physical confines of the police department, but not necessarily to restrict
those interactions to work‐related matters.1 Several days later, on January 26, 2011,
Rosen placed a circus ticket in Clerk’s department mailbox as an apparent peace
offering. He obtained the ticket from his part‐time job at a radio station. On the ticket
he left a note stating, “Sorry so late! Enjoy!”2 Also on January 26, Rosen responded to
an e‐mail Clerk sent to the entire department about a work‐related matter. Rosen’s
response did not answer the work‐related question posed by Clerk in the e‐mail but
attempted to make a joke and exchange pleasantries. Clerk described feeling as though
the e‐mail was mocking her. At the close of the internal investigation on January 28,
2011, Police Chief Gary Hicken “gave [a] verbal reprimand to Corporal Rosen” (the
1
On appeal, Rosen argues that Sergeant Cole simply never gave a “professional
contact” only order.
2
Rosen explained that he was unable to get Clerk tickets to an event she had
asked about “last fall . . . so he got her the[ circus ticket] instead.”
20110497‐CA 2
Verbal Reprimand) as a result of the pants‐dropping incident and permitted Rosen to
make a brief, casual apology to Clerk.3
¶4 On February 2, 2011, Chief Hicken met with Rosen and “ordered Rosen to have
nothing but ‘professional contact with [Clerk], and nothing else’” (Chief Hicken’s
February 2 Order). Like Sergeant Cole’s January 19 Instruction, Rosen interpreted this
latest instruction as requiring him to refrain from contacting Clerk outside of work and
to maintain professionalism while at work. However, several days later, on February 7,
while passing through the front office, Rosen congratulated Clerk for winning a River
Dance ticket giveaway at his radio station. Without Clerk’s prior knowledge or
permission, Rosen had entered Clerk’s name into the giveaway. She was selected at
random for the prize and received several phone calls from relatives informing her that
they heard her name read over the radio as the contest winner.
¶5 That same day, Rosen was placed on paid administrative leave, at which time
Chief Hicken repeated to Rosen “that there is to be no contact, no gifts, no [third] party
contacts or any other conduct which could be interpreted by [Clerk] as embarrassing,
humiliating, or any other unwanted recognition of any kind.” In light of the circus
ticket and River Dance incidents, the internal investigation was reopened and Rosen
met with Sergeant Cole again on February 11, 2011. In response to the reopened
investigation, Rosen submitted a written statement (the prehearing statement) to
Sergeant Cole summarizing his feelings and opinion on the events. In the prehearing
statement, Rosen described Sergeant Cole’s January 19 Instruction as requiring him to
“only communicate with [Clerk] ‘professionally’ as needed, until the conclusion of the
[internal investigation].” Ultimately, Sergeant Cole’s recommendation at the close of
the renewed investigation was that Rosen be demoted for failing to follow his January
19 Instruction by giving Clerk a circus ticket, and Chief Hicken’s February 2 Order by
entering Clerk in the River Dance giveaway. Chief Hicken adopted that
recommendation and demoted Rosen, characterizing the circus ticket and River Dance
incidents as insubordination and conduct unbecoming an officer.
3
Rosen disputes whether he had a meeting with Chief Hicken on January 28,
2011; however, a letter Rosen authored and his testimony indicates that such a meeting
occurred on that date. The ambiguity about this meeting goes to whether the Verbal
Reprimand also included an order that Rosen restrict his interaction with Clerk to
professional contact.
20110497‐CA 3
¶6 Rosen appealed his demotion to the Board, arguing that “[h]e was not given an
order and he was not insubordinate” and that “the discipline he received was not
proportionate to his alleged offense nor was it consistent with other discipline meted
out by the City.” The Board upheld the demotion, concluding that giving Clerk a circus
ticket and entering her into the River Dance giveaway did not amount to professional
contacts and were made by Rosen intentionally, despite his being instructed by his
superiors on at least two occasions to limit his contact with Clerk to professional
matters. The Board determined that Rosen’s “failure to follow specific instructions and
the Chief’s direct orders . . . is insubordination, which is a serious offense.” The Board
observed that Rosen’s conduct “created a significant disruption within the [Police]
Department, and it further illustrates his poor judgment, and an inability to lead others
by his example,” thus justifying his demotion from a supervisory position.
ISSUES AND STANDARDS OF REVIEW
¶7 Rosen argues that the Board’s decision to uphold his demotion was not
supported by substantial evidence and that the Board’s failure to make adequate
findings of fact has deprived him of the right to a meaningful appeal. Next, Rosen
contends that the Board abused its discretion by failing to address the proportionality
and consistency of the discipline imposed in light of the nature of the offense and the
Police Department’s history of disciplinary actions. Rosen also asserts that because the
City failed to produce the recording of Rosen’s January 19 investigation interview with
Sergeant Cole, the Board should not have denied Rosen’s motion for an adverse
inference, which would have required the Board to accept Rosen’s description of
Sergeant Cole’s January 19 Instruction. Last, Rosen argues that Board members were
“improperly influenced by having reviewed the City’s evidence in advance” of the
hearing, thereby “taint[ing] the hearing and caus[ing] irreversible prejudice to Rosen.”
¶8 We review the Board’s actions “for the purpose of determining if the [Board]
abused its discretion or exceeded its authority.” Utah Code Ann. § 10‐3‐1106(6)(c)(ii)
(Supp. 2012). We will uphold the Board’s decision “unless it exceeds the bounds of
reasonableness and rationality.” See Nelson v. Orem City, Dep’t of Pub. Safety, 2012 UT
App 147, ¶ 17, 278 P.3d 1089 (citation and internal quotation marks omitted). We
review the Board’s findings for substantial evidence. See Lucas v. Murray City Civil Serv.
Comm’n, 949 P.2d 746, 758 (Utah Ct. App. 1997). Last, to the extent Rosen’s arguments
20110497‐CA 4
implicate matters of due process, we review those claims for correctness. See Nelson,
2012 UT 147, ¶ 18.
ANALYSIS
I. Substantial Evidence
¶9 Rosen argues that the Board’s findings were not supported by substantial
evidence. See generally Lucas, 949 P.2d at 758 (applying a substantial evidence standard
for appeals from a municipal administrative body). “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.” Id. (citations and internal quotation
marks omitted). In conducting this review, we defer to the Board’s credibility
determinations. See id. Rosen challenges three particular findings. We address each in
turn.
A. The January 19 Interview with Sergeant Cole
¶10 Rosen contends that during the January 19 interview, Sergeant Cole did not
order Rosen to limit his interactions with Clerk to professional matters; rather, Sergeant
Cole recommended that Rosen restrict his interactions with Clerk, while ordering him
to refrain from discussing the internal affairs investigation with her until it was over.
Because Rosen did refrain from discussing the investigation with Clerk, he maintains
that he complied with the only order he asserts he was given at that time. Thus,
according to Rosen, giving Clerk the circus ticket could not amount to insubordination
of that order.
¶11 We disagree. While the record does contain evidence that is somewhat unclear
regarding exactly what was said during the January 19 interview, we determine that
substantial evidence supports the Board’s finding that Sergeant Cole indeed gave a
“professional contact” order to Rosen at that time.
¶12 Sergeant Cole testified that on January 19, he told Rosen that Clerk had filed a
formal complaint and that until the internal investigation was over, “there was to be no
20110497‐CA 5
contact with her except for professional contact.” Sergeant Cole also testified that he
informed Clerk and Clerk’s supervisor (Supervisor) that Rosen “wasn’t to talk to”
Clerk. Clerk’s testimony corroborated this, describing her understanding of Sergeant
Cole’s order to restrict Rosen from having any “contact with [her] at all. And that if any
contact was made or anything happened, that [she] was to directly report to [Sergeant
Cole].” Supervisor testified similarly, stating she understood the situation after the
January 19 interview to be such “that there should be no contact whatsoever between
[Rosen and Clerk].”
¶13 Additionally, the City played a portion of a recording of the February 11
interview Sergeant Cole conducted with Rosen when the internal affairs investigation
regarding the pants‐dropping incident was reopened. During the recording, Sergeant
Cole asked Rosen about the January 19 interview as follows:
[Sergeant Cole:] Okay. You don’t remember I said to you,
you shouldn’t talk to [Clerk] unless it’s business,
professional, at a professional level?
[Rosen:] Right, yes.
[Sergeant Cole:] Do you remember that?
[Rosen:] Right.
Likewise, Rosen’s prehearing statement summarized the January 19 interview, stating,
I’d like to repeat the fact that during the January [interview],
you advised me to “not discuss the details of the
investigation” with [Clerk], or have any conversation with
her about the incident. You said she was “sensitive” at the
time, and that I should only communicate with her
“professionally” as needed, until the conclusion of the
[investigation].
20110497‐CA 6
(Emphasis added.) Rosen testified, however, that Sergeant Cole only ordered him to
“not talk to [Clerk] about the details of the [investigation]” and to “be professional with
[Clerk], and give it some time . . . [to] cool off.”
¶14 Three witnesses’ testimony of having a similar understanding of Sergeant Cole’s
January 19 Instruction, as well as Rosen’s own words in the prehearing statement,
constitute substantial evidence on which the Board could base its finding that Rosen
was in fact ordered on January 19 to refrain from interacting with Clerk except for when
it was necessary to conduct his work. We do not disturb the Board’s credibility
determinations or its resolution of any conflicts in the evidence. See Allen v. Department
of Workforce Servs., 2005 UT App 186, ¶ 20, 112 P.3d 1238 (“[W]here inconsistent
inferences can be drawn from the same evidence, it is for the Board to draw the
inferences.”). Having upheld Rosen’s demotion, the Board presumably found the
testimony from Sergeant Cole, Supervisor, and Clerk to be more credible than Rosen’s,
and resolved any inconsistencies in their testimony in favor of its finding that Rosen
was ordered on January 19 to limit his interactions with Clerk to professional contact.
We therefore conclude that this finding was supported by substantial evidence.
B. The E‐mail to Clerk
¶15 Rosen contends that the Board impermissibly based its determination upholding
his demotion on the e‐mail Rosen sent Clerk during the investigation period, which e‐
mail was not listed as a basis for the demotion in the Chief’s demotion letter. Rosen
contends that this finding was in error and violated his due process rights.
¶16 We determine that although the Board acknowledged the e‐mail evidence in its
findings, it did not address the e‐mail in its analysis or conclusion. Thus, Rosen’s
assertion that the Board improperly relied on the e‐mail evidence is speculative, at best,
and we do not address the issue further.
C. Sergeant Cole’s Orders and Chief Hicken’s January 28 Verbal Reprimand
¶17 Rosen challenges two particular findings made by the Board, arguing that those
findings suggest that Sergeant Cole and Chief Hicken each instructed Rosen to have
20110497‐CA 7
only professional contact with Clerk one more time than they actually did. The Board’s
findings regarding Sergeant Cole’s orders are as follows:
5. On or about January 19, 2011, a[n internal affairs]
investigation was commenced regarding the pants incident
. . . . Sgt. Kerry Cole was the investigating officer. Sgt. Cole
testified that during his investigation, he informed Officer
Rosen to have only “professional” contact with [Clerk].
....
8. Officer Rosen was again instructed by Sgt. Cole to stay
away from [Clerk] and to leave her alone. He was instructed
to give the situation time to cool off.
After the January 19 interview, Sergeant Cole did not meet with Rosen again until
February 11, at which time he did repeat his professional contact order, but by that date,
the acts amounting to insubordination (the circus ticket and River Dance incidents) had
already occurred. Thus, we agree with Rosen that the Board’s findings erroneously
imply that Sergeant Cole instructed Rosen twice during the relevant time period to limit
himself to only professional contact with Clerk, when he actually did so just once.
¶18 The Board’s findings regarding Chief Hicken’s orders are as follows:
9. On or about January 28, 2011, Chief Hicken met with
Officer Rosen regarding the pants incident and . . . he
verbally counseled Rosen and instructed him to limit his
contact with [Clerk] to “professional” contact only. . . .
....
11. Chief Hicken testified that he met with Officer Rosen
again on February 2, 2011 . . . . During the February 2, 2011
meeting, Chief Hicken instructed Officer Rosen . . . to have
nothing but professional contact with [Clerk] . . . .
20110497‐CA 8
Again, Rosen’s contention appears justified. On January 28, Chief Hicken issued his
Verbal Reprimand, which consisted entirely of advising Rosen about preventing future
wardrobe malfunctions and did not include a “‘professional’ contact only” order. Chief
Hicken arranged his February 2 meeting with Rosen in light of the circus ticket incident
and at that time issued his first “‘professional’ contact only” order to Rosen, which he
repeated on February 7, after the River Dance incident. Therefore, the Board’s findings
are not supported by substantial evidence.
¶19 In light of these unsupported findings, the Board appeared to uphold Rosen’s
demotion for violating four “‘professional’ contact only” orders, rather than the two
that were actually given. Accordingly, the Board’s failure to make accurate “findings of
fact in material issues renders its findings arbitrary and capricious,” and because we
can only guess as to whether the Board would have reached this same conclusion in
light of the two orders that were actually given, we cannot say that these unsupported
findings were harmless. See Lucas v. Murray City Civil Serv. Commʹn, 949 P.2d 746, 755
n.5 (Utah Ct. App. 1997) (citation and internal quotation marks omitted); see also Adams
v. Board of Review of the Indus. Commʹn, 821 P.2d 1, 8 (Utah Ct. App. 1991) (“As a general
rule, the appropriate relief for an agency’s failure to make adequate findings is to vacate
the order complained of and to order the agency to make more adequate findings in
support of, and more fully articulate [the] reasons for, the determination . . . made.”
(alteration and omission in original) (citation and internal quotation marks omitted)).
Therefore, we vacate the Board’s decision and direct it to enter appropriate findings.
See generally Adams, 821 P.2d at 8 (“[A]bsent adequate findings[,] there is no
presumption that the Commission’s decision is correct. The process of articulation may
or may not cause the Commission to reach a different decision.”).
II. Findings on Proportionality and Consistency
¶20 Next, Rosen argues that because the Board’s ruling did not specifically address
evidence presented regarding the history of disciplinary actions taken by the Police
Department (the disciplinary evidence), the Board “failed to undertake one of its
primary responsibilities, that of determining whether Rosen’s discipline was
‘appropriate and . . . proportionate to the offense.’” (Omission in original) (quoting Salt
Lake City Corp. v. Salt Lake City Civil Serv. Comm’n, 908 P.2d 871, 876 (Utah Ct. App.
1995)). As a result, Rosen contends that the Board’s decision is arbitrary and capricious.
We disagree with Rosen’s contention regarding the Board’s proportionality findings,
20110497‐CA 9
determining that the Board’s findings were sufficiently detailed to support its
determination, albeit not an explicit determination, that Rosen’s punishment was
proportionate. However, we agree with Rosen’s argument regarding the Board’s
consistency findings.
¶21 “[A]n administrative agency must make findings of fact that are sufficiently
detailed so as to permit meaningful appellate review,” which requires that the findings
“include enough subsidiary facts to disclose the steps by which the ultimate conclusion
on each factual issue was reached.” Lucas, 949 P.2d at 755 n.5 (citation and internal
quotation marks omitted). “The failure of an agency to make adequate findings of fact
in material issues renders its findings arbitrary and capricious unless the evidence is
clear, uncontroverted and capable of only one conclusion.” Id. (citation and internal
quotation marks omitted).
¶22 Regarding proportionality, the Board’s decision stated, “The demotion of Officer
Rosen from corporal to top step level police officer . . . is . . . upheld insofar as the
decision was reasonable under the circumstances, and the discipline was warranted and
supported by the evidence.” The Board’s findings detail the course of events from the
pants‐dropping incident through the internal affairs investigation, noting the repeated
orders Rosen received from his superiors that he restrict his contact with Clerk to work‐
related matters and Rosen’s apparent violation of those orders by way of the circus
ticket and River Dance incidents. The Board noted that Rosen’s decision to disregard
the orders of his superior officers amounted to “insubordination, which is a serious
offense,” and that his “conduct created a significant disruption within the Department”
and “illustrates his poor judgment, and an inability to lead others by his example.”
From these findings, we can ascertain that the Board considered Rosen’s demotion to be
a proportionate punishment for his actions. See generally id.¶23 On the other hand, there is no indication from the Board’s decision that it
weighed any of the consistency evidence presented or that it even made an implied
ruling regarding consistency. The relevant evidence presented indicates that forty‐three
internal investigations had been completed since the Police Department was established
in 2007 and none of those investigations resulted in an employee being demoted. Most
of the forty‐three internal investigations resulted in verbal or written reprimands,
although two investigations resulted in termination. At the hearing, Rosen introduced
evidence of three previously disciplined officers who had received verbal reprimands
20110497‐CA 10
after failing to appear at court hearings or trials for which they were subpoenaed.
Rosen asserted that these actions are “akin to insubordination,” which he noted the
Police Department’s internal rules and regulations define as “the failure to follow a
lawful order.” (Internal quotation marks omitted.) Demotion has, however, been an
option available to the Police Chief when disciplining employees, and Chief Hicken
testified that “[i]n the history of the Saratoga Springs Police Department, . . . there [have
not been] any[ incidents] factually comparable to what [he] dealt with [with Rosen] in
this particular case,” including no prior incidents in which “direct orders [had] been
violated.”
¶24 Although the Board did not make any specific findings or comment on the
consistency evidence, its decision to uphold Rosen’s demotion is not necessarily
inconsistent therewith. Nonetheless, the Board’s failure to make these findings
deprives us of the ability to review its consistency determination. Accordingly, the
Board is directed to enter additional findings regarding the issue of consistency.
III. Adverse Inference
¶25 Rosen argues that the Board should have granted his motion for an adverse
inference in light of the City’s failure to provide him with the audio and video
recording (the recording) of the January 19 interview that Rosen had with Sergeant
Cole. Rosen contended that the Board should infer from the City’s failure to produce
the recording that Sergeant “Cole had not issued a ‘professional contact only’ order.”
The Board denied the motion, however, determining that the recording was not
necessary because Sergeant Cole and Rosen could each testify as to their recollection of
the orders given during the January 19 interview.
¶26 Rosen asserts that the Board’s denial of his motion was in error because the
policy considerations behind rule 37(i) of the Utah Rules of Civil Procedure4 and rule
1002 of the Utah Rules of Evidence (the best evidence rule) should “apply equally to
appeal board hearings,” regardless of the fact that appeal boards are not bound by those
4
Rule 37 of the Utah Rules of Civil Procedure was amended after the filing of this
appeal. Because the changes to the provisions of the rule relevant to this case are not
substantive, we cite the most recent version of the rule for the reader’s convenience. See
Utah R. Civ. P. 37 advisory committee’s note.
20110497‐CA 11
rules in the first place, see Lucas v. Murray City Civil Serv. Commʹn, 949 P.2d 746, 755
(Utah Ct. App. 1997) (“[A] municipal administrative body . . . is not bound by formal
rules of evidence and procedure.”). See generally Utah R. Civ. P. 37(i) (“Nothing in this
rule limits the inherent power of the court to take any action authorized by paragraph
(e)(2) if a party destroys, conceals, alters, tampers with or fails to preserve a document,
tangible item, electronic data or other evidence in violation of a duty.”); id. R.
37(e)(2)–(e)(2)(A) (“Unless the court finds that the failure was substantially justified, the
court in which the action is pending may impose appropriate sanctions for the failure to
follow its orders, including . . . deem the matter or any other designated facts to be
established in accordance with the claim or defense of the party obtaining the order
. . . .”); Utah R. Evid. 1002 (“An original writing, recording, or photograph is required in
order to prove its content, except as otherwise provided in these rules or by other rules
adopted by the Supreme Court of this State or by statute.”). Rosen explains that the
adverse inference permitted by these rules provides a “‘fair way to address the missing
evidence’” and “‘serve[s] the dual purpose of mitigating any prejudice experienced by
[a party] and providing a sufficient deterrent to others who may be tempted to
purposely destroy important evidence.’” (Quoting Kilpatrick v. Bullough Abatement, Inc.,
2008 UT 82, ¶ 39, 199 P.3d 957.)
¶27 Putting aside the fact that these rules do not apply in this municipal
administrative setting, we are not convinced that the policy reasons behind these rules
would be supported by adopting an adverse inference against the City. Rosen argues
that an adverse inference in his favor would quell any prejudice against him in light of
the City’s failure to provide the recording. Yet Rosen’s own prehearing statement
appears to confirm Sergeant Cole’s account that he instructed Rosen on January 19 to
limit his contact with Clerk to professional matters. As the City put it, because Rosen’s
prehearing statement “mirrored the account of Sgt. Cole . . . , there was no dispute
about the directive given Rosen at that meeting”; thus “the missing audio recording was
irrelevant” and not prejudicial. Likewise, Rosen’s assertion that the policy
consideration of deterrence would be supported by application of an adverse inference
here is unavailing. Neither Rosen nor the City could explain how, when, or by whom
the recording was lost, and “multiple people, including Sergeant Cole, Officer Rosen,
[and] the [C]hief” had access to it. Thus, we agree with the City’s assertion that
“punishing just one party does not fully deter the purposeful destruction of evidence”
where in this case “either party may be responsible for losing or destroying the
evidence, and there is no indication as to how the evidence was lost.”
20110497‐CA 12
¶28 Additionally, even assuming rule 37 of the Utah Rules of Civil Procedure and the
best evidence rule control here, neither would mandate the outcome Rosen seeks.
Application of rule 37 is discretionary, see, e.g., Utah R. Civ. P. 37(e)(2) (“[T]he court in
which the action is pending may impose appropriate sanctions for the failure to follow
its orders . . . .” (emphasis added)), and a reviewing court affords a great deal of
deference to the exercise of that discretion, cf. Kilpatrick, 2008 UT 82, ¶ 23 (discussing the
degree of deference afforded a trial court in selecting discovery sanctions). For the
Board’s decision to deny Rosen’s motion for an adverse inference to amount to an abuse
of discretion, Rosen would have to demonstrate that the decision “exceeds the bounds
of reasonableness and rationality.” See Harmon v. Ogden City Civil Serv. Comm’n, 2007
UT App 336, ¶ 6, 171 P.3d 474 (citation and internal quotation marks omitted). Rosen
has not done so; all Rosen has done is indicate that the City used to have the recording
but no longer does, and then describe how an adverse inference would have been
helpful to his case.
¶29 Likewise, the best evidence rule would not require admission of the recording
over Sergeant Cole’s and Rosen’s testimonies where the disputed issue is not the
contents of the recording, but the contents of the January 19 interview.
The “best evidence” rule generally has come to denote only
the requirement that the contents of an available written
document[, recording, or photograph] be proved by
introduction of the document[, recording, or photograph]
itself. It has no application to a case where a party seeks to
prove a fact which has an existence independent of any
writing[, recording, or photograph].
Roods v. Roods, 645 P.2d 640, 642 (Utah 1982) (determining that the best evidence rule
was not implicated to require admission of a document that recorded the length of a
mother’s pregnancy because “[t]he mother’s length of pregnancy is independent of any
documentation” and a fact that could be established by the mother’s testimony); see also
Utah R. Evid. 1002 (describing the best evidence rule as applying to writings,
recordings, or photographs); Central Bank v. Holman (In re Ina C. Holman Family Trust),
2008 UT App 120U, para. 6 (mem.) (concluding that the best evidence rule did not
require admission of the document amending a revocable trust where the legal dispute
involved “[w]hether there were problems surrounding the execution of the
20110497‐CA 13
[amendment] . . . independent of the contents of the [amendment] itself”). In other
words, “[w]itness testimony adduced from personal experience or knowledge is not
within the ambit of [the best evidence rule]; witnesses may freely testify about events
which have occurred independently from and may have been memorialized by an
antecedent writing[, recording, or photograph].” Watkins v. Williams, 877 P.2d 19, 22
(Mont. 1994). We agree with the City that because the content of the recording itself
was not an issue before the Board, Rosen and Sergeant Cole could testify about the
January 19 interview without implicating the best evidence rule.
IV. Premature Review of the Evidence
¶30 Last, Rosen argues that the Board did not have authority to receive, a month
before the hearing, a packet of proposed exhibits submitted by the City that included
documents that were ultimately not admitted at the hearing. Rosen also argues that the
Board’s subsequent review of the packet before the hearing “tainted the hearing,” as
evidenced by comments made by Board members appearing in the transcript of the
hearing prepared for this appeal, “and caused irreversible prejudice to Rosen.” We do
not address this argument because Rosen failed to preserve it for appeal.
¶31 “[I]n order to preserve an issue for appeal[,] the issue must be presented to the
trial court in such a way that the trial court has an opportunity to rule on that issue.”
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original)
(citation and internal quotation marks omitted). The preservation rule applies in
agency appeals “when the issue raised on appeal could have been resolved in the
administrative setting.” ABCO Enters. v. Utah State Tax Commʹn, 2009 UT 36, ¶¶ 10–11,
211 P.3d 382 (elaborating on scenarios in which the preservation rule applies in agency
appeals); see also In re Anderson, 2004 UT 7, ¶ 47, 82 P.3d 1134 (per curiam) (“In agency
appeals, . . . it is logical to require matters that may be dispositive to be presented in the
first instance to the agency, so that it may consider them at the time of reaching its
decision.”). Rosen argues that he did not have the opportunity to preserve this
argument because the allegedly prejudicial comments made by the Board occurred
when both parties had left the room to allow the Board to deliberate on preliminary
matters and Rosen did not discover the Board’s prejudicial comments made behind
closed doors until reviewing the transcript that was prepared for this appeal. He also
argues that he could not have preserved his challenge to the Board’s authority to receive
20110497‐CA 14
the exhibit packet in advance of the hearing because Utah Code section 10‐3‐1106 did
not give the Board the authority to remedy the error had it been raised.
¶32 We are not persuaded by Rosen’s arguments. At the beginning of the hearing,
Rosen’s attorney asked the Board to confirm that it had received the City’s exhibit
packet a month prior to trial, but he did not raise any argument that, by doing so the
Board exceeded its authority. While Rosen may not have learned of the Board’s alleged
prejudicial comments until after the fact, he knew that the City’s exhibit packet was
delivered a month in advance and that the Board had reviewed it. He could have
thereby deduced that perhaps some members of the Board formed opinions about the
issues before the hearing had occurred. The hearing transcript prepared for this appeal,
in other words, was not the first and only event that could have prompted Rosen to
have and to raise these concerns.5 Likewise, Rosen’s doubts about the Board’s ability to
have remedied the alleged errors itself does not relieve him of the requirement that he
preserve the argument for appeal by first raising it to the Board.
CONCLUSION
¶33 Rosen did not preserve his argument challenging the Board’s authority to accept
and review the City’s evidence in advance of his hearing, and he inadequately briefed
his contention that he was prejudiced by the Board’s review of that evidence. The
Board properly denied Rosen’s motion for an adverse inference. The Board’s decision is
nonetheless set aside in light of its unsupported determination that Rosen was given
5
In this sense, Rosen’s concern appears to be primarily that certain Board
members formed opinions about his conduct that he suggests show bias. As a legal
matter, however, he has focused on the argument that the Board was not permitted by
statute to receive and review any evidence before the hearing. He raised no such
objection at the hearing itself, instead appearing to welcome the fact that the Board
already had a background understanding of the case. Rosen does not address the issue
of alleged bias as an independent argument on appeal. Consequently, the bias issue is
not adequately briefed. See Utah R. App. P. 24(a)(9) (requiring an appellant’s brief to
“contain the contentions and reasons of the appellant with respect to the issues
presented . . . with citations to the authorities, statutes, and parts of the record relied
on”).
20110497‐CA 15
four “‘professional’ contact only” orders and for its failure to make adequate findings
regarding the consistency of Rosen’s demotion with the evidence detailing the Police
Department’s disciplinary history. We direct the Board to revisit its findings in light of
this opinion.
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James Z. Davis, Judge
‐‐‐‐‐
¶34 WE CONCUR:
____________________________________
Stephen L. Roth, Judge
____________________________________
Michele M. Christiansen, Judge
20110497‐CA 16