Hollenbach v. SLC , 349 P.3d 791 ( 2015 )

2015 UT App 116THE UTAH COURT OF APPEALS
GREG HOLLENBACH,
Petitioner,
v.
SALT LAKE CITY CIVIL SERVICE COMMISSION AND
SALT LAKE CITY CORPORATION,
Respondents.
Memorandum Decision
No. 20140045-CA
Filed April 30, 2015
Original Proceeding in this Court
Bret W. Rawson, Nate N. Nelson, and Jeremy G.
Jones Attorneys for Petitioner
J. Elizabeth Haws, Attorney for Respondents
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.
ORME, Judge:
¶1 Greg Hollenbach seeks judicial review of the Salt Lake
City Civil Service Commission’s decision upholding his sixty-
hour suspension from the Salt Lake City Police Department.
Hollenbach argues that (1) the Commission deprived him of due
process by denying certain discovery requests and engaging in
ex parte communications; (2) the charges against him were not
supported by substantial evidence; and (3) the Commission
abused its discretion by upholding the suspension. We decline to
disturb the Commission’s decision.
¶2 The incident at issue here was not Hollenbach’s first
experience with departmental discipline. Prior to this incident,
the Police Department had disciplined Hollenbach on four
separate occasions between 2004 and 2010. He received a written
Hollenbach v. Salt Lake City Civil Service Commission
reprimand for failing to follow computer protocols, an oral
admonishment regarding use of discretion, a written reprimand
regarding use of discretion,1 and a forty-hour suspension. The
forty-hour suspension is of particular relevance because it grew
out of circumstances very similar to those now before us and
provided Hollenbach with the opportunity to be more precisely
informed about policies that he claims were vague, as we discuss
more fully below. See infra ¶¶ 21–22.
¶3 The incident now at issue occurred in July of 2011.
Hollenbach responded to a dispatch call made in response to a
report by an off-duty officer, who was working a secondary
security job at a retail establishment, about a person in need of
assistance. When Hollenbach arrived on the scene, he did not
contact the off-duty officer but instead remained in his car,
where he spoke in Spanish to a woman who approached him
and had questions about how she could obtain custody of her
niece. Hollenbach remained in his vehicle for the entire
interaction, speaking to the woman across the width of the police
cruiser and out the passenger window. Through the window,
she handed him what appeared to be ‚Mexican custodial
papers.‛ Hollenbach speaks conversational Spanish but
admitted he could not ‚actually read a legal document and
translate it.‛ During the brief encounter, he provided the woman
with contact information for the courts and closed the call as a
‚no-case.‛
¶4 The steps (or lack thereof) taken by Hollenbach contrast
starkly with what the situation required, as explained by the off-
duty officer at the hearing before the Commission. The off-duty
officer recounted that he had been approached by a Spanish-
1. No helpful discussion or explanation of the term ‚use of
discretion‛ is readily apparent from our review of the record,
and the parties do not address these written and oral reprimands
in any detail in their briefs.
20140045-CA 2 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
speaking man and woman who had concerns about a custodial
dispute. They wanted an officer to accompany them to a nearby
home to do either a welfare check or what the off-duty officer
characterized as a ‚standby assist‛ on a young girl. Accordingly,
the off-duty officer, who was not in a position to deal with the
matter while working for a private employer, called the
dispatcher and requested that another Spanish-speaking officer
be sent to assist the couple.
¶5 Hollenbach arrived in prompt order but did little to
understand the situation or assist the couple. He did not obtain
the names of the individuals with whom the off-duty officer
spoke or even the name of the woman with whom he personally
spoke. He did not find out the name of the young girl who the
woman said was her niece, ask where the child was located, or
inquire about the circumstances that caused the couple to be
concerned. Hollenbach did not ask whether the individuals on
the scene were the parties actually listed in the documents he
was handed. He made no effort to better understand the
documents handed to him.2 He took no notes regarding the
incident, did not make an entry in his dispatch log, and did not
write a police report. Hollenbach took no steps to check on the
child in question, ascertain her whereabouts, or ensure her
safety.
¶6 The Police Chief determined that Hollenbach’s conduct
during this incident violated two Police Department policies3
2. The off-duty officer was nearby and also spoke Spanish.
Furthermore, the Police Department provides officers with a
language line they can call for assistance.
3. Policy III-590, Performance of Duty, requires officers to ‚meet
established performance standards and goals and meet the
City’s standards for efficient, safe, effective and courteous
operations.‛ Policy I, Core Values, Service to the Community,
(continued…)
20140045-CA 3 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
and suspended him without pay for sixty hours. Hollenbach
appealed his suspension to the Commission, which upheld the
disciplinary decision. Hollenbach now seeks judicial review of
the Commission’s decision.
¶7 Hollenbach first asserts that the Commission violated his
due process rights by denying discovery that, he argues, was
necessary for him to prepare his case and by engaging in
impermissible ex parte communication. ‚We afford the
Commission no deference here, as constitutional challenges
constitute questions of general law. Thus, we review the
Commission’s procedures and resulting actions for correctness.‛
Harmon v. Ogden City Civil Serv. Comm'n, 2007 UT App 336, ¶ 7,
171 P.3d 474 (internal citations omitted).
¶8 In Lucas v. Murray City Civil Service Commission, 949 P.2d
746 (Utah Ct. App. 1997), we explained that ‚*b+ecause section
10-3-1012 [of the Utah Code] confers upon civil service
employees a property interest in continued employment, we
must determine what process is due.‛ Id. at 753. We then went
on to ‚conclude that under both the Fourteenth Amendment and
the provision in section 10-3-1012,‛ Lucas, a city police officer
like Hollenbach, was ‚entitled to due process by way of oral or
written notice of the charges, an explanation of the employer’s
evidence, an opportunity to respond to the charges in
‘something less’ than a full evidentiary hearing before
[discipline], coupled with a full post-*discipline+ hearing ‘at a
meaningful time.’‛ See id. at 749, 754 (quoting Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 545–47 (1985)). In sum, ‚‘*t+he
fundamental requirement of due process is the opportunity to be
(…continued)
states, ‚Whether responding to calls for service or working in
partnership with the community, we should always strive to
provide the quality and level of service we would expect for
ourselves or for any member of our family.‛
20140045-CA 4 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
heard, at a meaningful time and in a meaningful manner.’‛
Department of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995)
(quoting Satterfield v. Edenton–Chowan Bd. of Educ., 530 F.2d 567,
572 (4th Cir. 1975)).
¶9 Hollenbach claims that the Commission’s refusal to allow
him to take certain depositions and to have a number of
subpoenas issued deprived him of due process. He also claims
that an ex parte conversation between a member of the
Commission and one of the Police Department’s witnesses
violated his right to due process.
¶10 We are not persuaded that the Commission’s discovery
decisions unduly limited Hollenbach’s opportunity to be heard
or otherwise impacted the fairness of the proceeding. Prior to his
hearing, Hollenbach issued five subpoenas and notices of
deposition. He also submitted a preliminary witness list that
identified thirty witnesses, ranging from Salt Lake City Mayor
Ralph Becker to ‚John Doe.‛ The Commission limited the
number of witnesses Hollenbach could call and quashed the
subpoenas and depositions.4
¶11 Hollenbach contends that the disallowed depositions and
subpoenas would ‚show that discipline was initiated as a pretext
to punish [Hollenbach] for his affiliation with the Utah Fraternal
Order of Police.‛ Hollenbach advanced this ulterior-motive
theory repeatedly in the hearing before the Commission. And he
was permitted to call a witness at his hearing whose sole
purpose was to help him develop this theory. Hollenbach offers
no explanation as to how the depositions and subpoenas he
sought might have produced evidence that differed from the
evidence he presented at the hearing. Therefore, we are left to
4. Three of the five individuals Hollenbach sought to depose
were ultimately called as witnesses at the hearing before the
Commission.
20140045-CA 5 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
assume that the evidence obtained from those discovery requests
would have been merely cumulative, and Hollenbach has not
demonstrated otherwise.
¶12 The ex parte communication concerned a conversation
between a Commission member and the Deputy Chief of the
Police Department. During that conversation, the Commissioner
expressed uneasiness over some of the materials she had
reviewed in Hollenbach’s file. Specifically, she had read that
during the Internal Affairs investigation of the incident, two of
Hollenbach’s fellow officers had indicated that after his previous
forty-hour suspension, Hollenbach ‚looked like he was about
ready to snap.‛ The officers said ‚that they were . . . concerned
about his behavior.‛ The Commissioner involved in the
conversation approached the Deputy Chief and asked about ‚the
outcome of their investigation and whether there was anything
*the Commissioners+ needed to be concerned about.‛ The
Deputy Chief assured her that she need not worry.
¶13 The Commissioner proffered these details of the
conversation on the record and, when asked, indicated that the
Deputy Chief’s comments had allayed her concerns and that she
could decide the matter objectively. The Deputy Chief, who had
previously testified as a witness for the Police Department, was
then recalled. He affirmed on the record that the Commission
members had no cause to be concerned for their safety or
Hollenbach’s mental state.
¶14 The Commission acknowledges that the ex parte
communication was improper, and we agree that it was.
However, for us to disturb the decision of the Commission,
Hollenbach must demonstrate not only that the communication
was improper but also that it prejudiced him in some way. See
Nelson v. City of Orem, 2013 UT 53, ¶ 38, 309 P.3d 237 (requiring a
showing of prejudice in addition to a showing of partiality). He
has not done so.
20140045-CA 6 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
¶15 To begin with, the Commissioner’s concerns originated
with the evidence she had properly reviewed—not with the ex
parte communication. Rather than prejudicing the
Commissioner against Hollenbach, the ex parte communication
actually assuaged her concerns. So while the circumstances of
the conversation were improper, it did not result in prejudice.
Finally, it is clear that the Commission’s decision was based
solely on the specific incident it was asked to review and not on
the subject matter of the ex parte communication. The order
references only those facts that were properly before the
Commission, and as we discuss below, those facts sufficiently
support the Commission’s decision. From all that appears, the
Commission’s decision was wholly unaffected by the ex parte
communication, and Hollenbach has not demonstrated
otherwise. Thus, we see no prejudicial error. See Liska v. Liska,
902 P.2d 644, 649 n.7 (Utah Ct. App. 1995).
¶16 The second and third issues raised by Hollenbach—
whether the decision against him was supported by substantial
evidence5 and whether the Commission abused its discretion by
5. Hollenbach actually asserts as his second assignment of error
that the Police Chief did not have substantial evidence to
support the charges. However, we agree with the Commission
and the City that this ‚evinces a misunderstanding about the
role of the Court of Appeals in reviewing [Commission]
decisions.‛ It is the Commission’s role to determine whether a
department head’s disciplinary decision is supported by the
facts. See Utah Code Ann. § 10-3-1012(2) (LexisNexis 2012); Lucas
v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 758 (Utah Ct.
App. 1997). Then, if the Commission’s findings of fact are
challenged in a judicial review proceeding, we will determine
whether those findings are supported by substantial evidence.
Lucas, 949 P.2d at 758 (‚The Commission’s findings, upon which
the charges are based, must be supported by substantial
evidence viewed in light of the whole record before us.‛). We
(continued…)
20140045-CA 7 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
upholding his suspension—are properly considered together.
Because we conclude that the Commission’s findings are
supported by substantial evidence, we also conclude that the
Commission did not abuse its discretion in upholding
Hollenbach’s suspension.
¶17 In affirming the Police Chief’s decision, the Commission
was required to consider two questions: ‚(1) do the facts support
the charges made by the department head, and, if so, (2) do the
charges warrant the sanction imposed?‛ See Lucas v. Murray City
Civil Serv. Comm'n, 949 P.2d 746, 758 (Utah Ct. App. 1997).
Because the Commission answered yes to both questions, its
decision to uphold the suspension was a logical one. We now
consider whether its decision was legally sound, first
considering whether the Commission’s factual findings are
adequately supported by the evidence.
¶18 Hollenbach makes no real attempt to demonstrate that the
Commission made erroneous factual findings.6 Instead, he
highlights facts in his favor that tend to show that his conduct
did not warrant discipline. However, the question before us is
not whether there are facts in the record that could support a
decision more favorable to Hollenbach. Instead, it is our role to
(…continued)
therefore consider whether the Commission’s—not the Police
Chief’s—findings are supported by substantial evidence.
6. In arguing that the evidence did not support the charges
against him, Hollenbach complains that he was initially charged
with failing to take police action and failing to generate a police
report. It is unclear how, exactly, Hollenbach believes the slight
alteration of charges indicates a lack of substantial evidence.
Indeed, failing to take police action and failing to generate a
police report were two key components of the evidence used to
support the suspension decision.
20140045-CA 8 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
determine whether ‚*t+he Commission’s findings, upon which
the charges are based, [are] supported by substantial evidence
viewed in light of the whole record before us.‛ See id.
¶19 The task is relatively simple in this case. The Commission
set forth numerous stipulated and undisputed facts that readily
support its decision. For instance, there was no dispute that the
woman with whom Hollenbach spoke desired an officer to
accompany her to check on a child. Hollenbach did not check on
the child. There was also no dispute over these facts: Hollenbach
remained in his police vehicle for the duration of his interaction
with the woman; the woman handed Hollenbach papers in
Spanish; Hollenbach cannot read Spanish fluently but did not
seek assistance; and Hollenbach did not obtain the names of any
of the parties involved.
¶20 The Police Chief reviewed these facts and noted that there
was ‚a citizen who felt it was necessary to contact the police and
seek . . . assistance or help.‛ The Chief recognized that the off-
duty officer ‚felt it was necessary to contact an on-duty officer to
come and investigate and to actually take care of the situation.‛
The Chief explained:
I think that the safety of [the child involved] is
paramount, and we did nothing in this particular
circumstance to even determine if that person was
in danger, in need, or if everything was
appropriate. . . . And so we failed in so many levels
that it is very disappointing as the Police Chief to
think that an officer responded and did nothing.
He further explained that departmental policies establish an
expectation that when a citizen calls the police, the situation
should improve. Officers are expected to ‚take the appropriate
action . . . to ensure that *they+ have done all *they+ can‛ to serve
the community. The evidence supports the Commission’s
determination that Hollenbach violated Police Department
policies when he did not do all he could; indeed, the established
20140045-CA 9 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
facts demonstrate a startling lack of Hollenbach’s doing
anything helpful.
¶21 Hollenbach asserts an alternative argument that there was
virtually no way he could have abided by the ‚vague policy
language.‛ He offers no case law and little explanation on this
point, but we deem it appropriate to address the
unpersuasiveness of Hollenbach’s argument on the record before
us.
¶22 Approximately one week before the incident in question,
Hollenbach attended a hearing on the earlier episode that gave
rise to his forty-hour suspension. That suspension also arose
from a call involving a child custody dispute. As with the
incident now before us, Hollenbach did not write a report, did
not read the legal documents that were presented to him, and
treated the call like it ‚‘wasn’t important.’‛ The forty-hour
suspension was based in part on Hollenbach’s violation of two
Department policies: ‚Performance of Duty‛ and ‚Core Values,
Service to the Community.‛ These are the exact policies that the
Commission determined Hollenbach violated in the present
case. The Chief testified that at the forty-hour suspension
hearing, he made his expectations of Hollenbach ‚perfectly
clear.‛ He spent three hours explaining what his expectations
were and why Hollenbach’s conduct fell short. Hollenbach’s
argument that the policies were vague is wholly unpersuasive,
given the factual similarities in the situations that led to his
forty- and sixty-hour suspensions.
¶23 All that is left to consider, then, is whether the charges
warranted a sixty-hour suspension. ‚In determining whether the
charges warrant the disciplinary action taken, we acknowledge
that discipline imposed for employee misconduct is within the
sound discretion of the Chief.‛ Lucas v. Murray City Civil Serv.
Comm’n, 949 P.2d 746, 761 (Utah Ct. App. 1997). We will
conclude that discretion was abused ‚if, in light of all the
circumstances, the punishment is disproportionate to the
20140045-CA 10 2015 UT App 116Hollenbach v. Salt Lake City Civil Service Commission
offense.‛ Id. Considering all the circumstances of this case
necessarily includes consideration of Hollenbach’s prior
discipline, given that the Department follows a model of
progressive discipline. Hollenbach was not simply given a sixty-
hour suspension because he failed to abide by Department
policies on this one occasion. Instead, the sixty-hour suspension
was the latest step in a program of progressive discipline, which
began with Hollenbach being disciplined via verbal and written
reprimands and which had progressed to a forty-hour
suspension. These lesser sanctions had apparently not proven
adequate in prompting Hollenbach to improve. Thus, we agree
with the Commission that Hollenbach’s suspension was
proportional to the offense because ‚Hollenbach had repeated
substandard conduct that led to appropriate progressive
discipline.‛ As the Commission noted, ‚the nature of
*Hollenbach+’s policy violations that resulted in his suspension
related directly to his official duties and impeded his ability to
carry out those duties.‛
¶24 Hollenbach was not deprived of due process when the
Commission denied his discovery requests, because he had the
opportunity to be fairly heard despite these denials.
Furthermore, one Commissioner’s ex parte communication with
a Police Department witness, while improper, did not prejudice
Hollenbach under the circumstances. Finally, because the
Commission’s findings are substantially supported by the
record, and because the sixty-hour suspension was proportional
to the offense, the Commission did not abuse its discretion in
upholding the suspension. We therefore decline to disturb the
Commission’s decision.
20140045-CA 11 2015 UT App 116