2013 UT App 183

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

R ION P HILLIPS

, Petitioner,

v.

S OUTH J ORDAN C ITY AND S OUTH J ORDAN C ITY

A PPEAL B OARD

,

Respondents.

Opinion

No. 20110895

‐ CA

Filed July 26, 2013

Original Proceeding in this Court

Ryan B. Hancey, Attorney for Petitioner

Camille N. Johnson, Attorney for Respondents

J UDGE W ILLIAM A. T HORNE J R

. authored this Opinion, in which

J UDGES C AROLYN B. M C H UGH and S TEPHEN L. R OTH concurred.

THORNE, Judge:

¶1 Petitioner Rion Phillips seeks judicial review of the South

Jordan City Appeal Board’s (the Board) decision affirming South

Jordan City Police Chief Lindsay Shepherd’s termination of

Phillips’s employment with the South Jordan City Police

Department. We decline to disturb the Board’s decision.

BACKGROUND

¶2 On June 2, 2011, at approximately 1:25 a.m., Phillips was on

duty as a patrol officer when a radio transmission was received

from a Draper City police detective requesting that dispatch send

officers to assist with a possible fugitive. Phillips and Officer MikePhillips v. South Jordan City

Raab, who were at the same location, informed dispatch that they

were each responding to the request to assist.

¶3 Raab left first, and Phillips followed approximately fifteen

to thirty seconds later. Both officers initially ran their emergency

lights and sirens while traveling east on 10400 South from 3200

West to 300 West on the South Jordan Parkway. At that time, traffic

was light, the roads were dry, and visibility was good. During his

travels, Phillips reached a top speed of 121 mph, including driving

through six intersections at speeds over 100 mph. Nearing the

South Jordan Gateway, Phillips turned off his emergency lights and

sirens. Thereafter, without lights or sirens, Phillips passed two

vehicles. While traveling at 108 mph, Phillips passed the first

vehicle, which had pulled over to the left side of the road. He then

passed a moving vehicle on the right while driving 69 mph before

turning onto 300 West. Phillips momentarily entered into the

wrong lane of traffic as he negotiated the turn onto 300 West.

Phillips arrived at the location shortly after Raab.

¶4 On June 13, 2011, South Jordan City (the City) commenced

an internal complaint against Phillips regarding his June 2

emergency response. Lieutenant Dan Starks conducted the internal

affairs investigation. The next day, Lieutenant Starks met with

Phillips. He informed Phillips of the investigation and placed him

on paid administrative leave pending its outcome. On June 17, after

completing his investigation, Lieutenant Starks provided his

disciplinary action recommendation to Chief Shepherd and

recommended that Phillips be terminated from his employment

with the South Jordan City Police Department. That same day,

Chief Shepherd advised Phillips of a predisciplinary hearing,

which was to be held on June 24, to afford Phillips an opportunity

to respond to the allegations that he had violated General Orders

26.1 and 41.2. 1

1. A general order is a written directive to guide members of the

South Jordan City Police Department in a variety of different

situations such as emergency call responses, vehicle pursuits, and

field interviews.

20110895

‐ CA 2013 UT App 183 2Phillips v. South Jordan City

¶5 On June 29, Chief Shepherd issued his termination decision

finding that Phillips had violated South Jordan City Police

Department General Orders 26.1 and 41.2.1 (General Order 41.2.1) 2

by driving at speeds that were excessive and shutting down

emergency warning equipment before passing a vehicle on the

right. Chief Shepherd considered Phillips’s disciplinary action

record and concluded that Phillips’s repeated problems involving

poor judgment and policy violations, which had resulted in

disciplinary action during most of his employment with the South

Jordan City Police Department, compromised Phillips’s ability to

function as a police officer. Chief Shepherd concluded that

Phillips’s June 2 emergency response was a continuation of

Phillips’s pattern of past failures to exercise good judgment. Chief

Shepherd then terminated Phillips from his employment with the

South Jordan City Police Department, effective June 30, 2011.

¶6 Phillips appealed his termination to the Board, arguing that

the applicable emergency vehicle operation (EVO) policies under

General Order 41.2.1 failed to provide clear standards and allowed

for personal interpretation. Phillips argued that the City never

conveyed specific speed limit expectations. Phillips also argued

that termination of his employment was disproportionate to his

conduct. The Board conducted an eight

‐ hour hearing wherein it

heard witness testimony and counsel arguments, and reviewed

video taken from both Phillips’s and Raab’s police vehicle cameras

during the June 2 emergency response. The Board found that

Phillips did not operate his patrol vehicle with the required due

regard for the safety of all persons and that Phillips’s conduct

violated General Order 41.2.1 and his EVO training. The Board then

reviewed Phillips’s history of discipline and determined that his

disciplinary history fully justified the termination of his

employment. The Board affirmed Chief Shepherd’s decision to

terminate Phillips’s employment. Phillips now seeks judicial

review in this court.

2. Although both Chief Shepherd and the Board identify General

Order 26.1 in their decisions, the analysis by each centers on

General Order 41.2.1.

20110895

‐ CA 2013 UT App 183 3Phillips v. South Jordan City

ISSUES AND STANDARDS OF REVIEW

¶7 Phillips asserts that the Board erred in its decision to uphold

his termination. First, Phillips argues that the Board erred in

finding that during his June 2 emergency response, Phillips

operated his vehicle in violation of both General Order 41.2.1 and

his EVO training. Second, Phillips argues that the Board erred in

concluding that the City’s termination of Phillips’s employment

was (1) proportionate and appropriate discipline for his allegedly

unreasonable conduct and (2) consistent with sanctions imposed on

other officers in similar circumstances.

¶8 We review the Board’s decision to determine if “the appeal

board

. . . abused its discretion or exceeded its authority.” Utah

Code Ann. § 10

‐ 3

‐ 1106(6)(c)(ii) (LexisNexis 2012). Our review is

limited to the “record of the appeal board.” Id. § 10

‐ 3

‐ 1106(6)(c)(i).

We also note that the Board “is required to give deference to the

Chief, as he is best able to balance the competing concerns in

pursuing a particular disciplinary action.” Harmon v. Ogden City

Civil Serv. Comm’n

, 2007 UT App 336, ¶ 6, 171 P.3d 474 (citation and

internal quotation marks omitted). Insofar as Phillips asks us to

overturn the Board’s factual findings, we employ the clearly

erroneous standard. See Kelly v. Salt Lake City Civil Serv. Comm’n

, 2000 UT App 235, ¶ 15, 8 P.3d 1048.

ANALYSIS

I. Abuse of Discretion

A. Violation of General Order 41.2.1

¶9 Phillips first argues that the Board erred in upholding Chief

Shepherd’s determination that Phillips operated his vehicle in

violation of General Order 41.2.1 during his June 2 emergency

response. Phillips asserts that the Board abused its discretion

because General Order 41.2.1 does not identify a specific or

maximum speed limit for an emergency response.

20110895

‐ CA 2013 UT App 183 4Phillips v. South Jordan City

¶10 General Order 41.2.1 on Routine, Urgent, or Emergency Call

Response provides, in pertinent part,

South Jordan City Police Department vehicles may

engage in emergency operations when responding to

an existing emergency

. . . .

The provisions of this section will not release the

operator of a South Jordan City Police Department

vehicle from the duty to drive with due regard for the

safety of all persons

, nor will such provisions protect

the operator of a South Jordan City Police

Department vehicle from the consequences of

careless disregard for the safety of others.

A South Jordan City Police Department vehicle

engaged in

. . . emergency operations will utilize

headlights, emergency lights, and sirens in unison, to

be used appropriately to warn vehicle and pedestrian

traffic along the emergency route.

. . .

A South Jordan City Police Department vehicle

engaged in emergency operations may:

Exceed the maximum speed limit so long as life or

property is not endangered. Speed will be limited by road

and weather conditions and the exercise of good judgment.

When approaching or entering an intersection controlled

by a semaphore or a stop sign, all officers will slow their

vehicle to a speed considered reasonable and which would

allow them to bring the vehicle to a complete stop at a red

light or stop sign prior to entering the intersection, if

necessary.

. . . If the light is green, officers will slow the

vehicle to a speed that is consistent with reasonable care.

South Jordan City Police Department, General Order 41.2.1 (March

15, 2005) (emphases added).

20110895

‐ CA 2013 UT App 183 5Phillips v. South Jordan City

¶11 Phillips is correct that General Order 41.2.1 does not identify

a specific maximum speed. This does not, however, mean that

there are no limits upon his speed when responding to a call.

Instead, Phillips’s maximum speed is specifically limited by the

provision requiring him to limit his speed by road and weather

conditions, ability to stop at intersections with a semaphore or stop

sign, and to drive with due regard for the safety of all persons. In

this instance there is sufficient evidence to support the Board’s

finding that Phillips violated this policy by responding to an

emergency without “due regard for the safety of all persons” as

required by General Order 41.2.1 by driving at excessive speeds,

i.e., speeds well in excess of 100 mph.

¶12 The Board is required to give deference to Chief Shepherd,

who is best able to balance the competing concerns in pursuing a

particular disciplinary action. Harmon v. Ogden Civil Serv. Comm’n

, 2007 UT App 336, ¶ 6, 171 P.3d 474. Chief Shepherd determined

that Phillips violated General Order 41.2.1 by failing to limit his

speed with regard to reaction time, stopping distance, vehicle

capabilities, and the possibility of unknown and unforeseen

circumstances during his June 2 emergency response, which failure

created a danger to life and property, as well as by shutting down

his emergency equipment before passing a vehicle on the right.

Chief Shepherd found that the uncontested evidence provided that

Phillips traveled at speeds reaching 121 mph, drove through six

intersections at speeds between 101 and 119 mph, and shut down

his emergency lights and sirens before he passed a vehicle on the

right. 3 This evidence supports the Board’s determination that Chief

Shepherd properly found that Phillips’s June 2 emergency response

put the public’s safety and Phillips’s own safety at risk, which

failed to meet the expectation that Phillips conduct himself with

“due regard for the safety of all persons”as required by General

Order 41.2.1. Because the evidence adequately supports the Board’s

decision to affirm Phillips’s termination based on his violation of

General Order 41.2.1, we conclude that the Board did not abuse its

discretion in this regard.

3. The speeds Phillips traveled were verified by an in

‐ vehicle

digital video system used by law enforcement.

20110895

‐ CA 2013 UT App 183 6Phillips v. South Jordan City

B. Violation of Emergency Vehicle Operation Training

¶13 Phillips next argues that the Board erred in finding that

Phillips operated his vehicle during the emergency response in

violation of his EVO training. In particular, Phillips argues that the

EVO training he received did not include discussions of reasonable

care or about the specific speeds at which officers could respond to

an emergency. Phillips reasons that because his EVO training was

so lacking, the City was unable to present evidence supporting the

Board’s finding that Phillips violated his training.

¶14 Chief Shepherd determined that Phillips had not only

received training in the policies outlined in General Order 41.2.1

but had also received remedial training for a past violation of EVO

policy. The Board heard evidence that Phillips had received EVO

training during the course of his employment. At the hearing,

Phillips admitted that he typically received EVO training twice a

year and was specifically trained on his obligation as an officer to

exercise due regard for safety. The EVO training Phillips received

included class work where an instructor would review the policies.

In addition, Phillips took written tests on those policies wherein he

answered questions regarding what speed an officer must slow his

or her vehicle to when approaching an intersection controlled by

a semaphore or stop sign and further defined due regard and

reasonable care. Because the evidence demonstrates that Phillips

was trained in the policies outlined in General Order 41.2.1, we see

no abuse of discretion in the Board’s determination that Phillips

violated said order.

II. The Proportionality and Consistency of Discipline

¶15 Phillips next argues that the Board erred in concluding that

the City’s termination of Phillips’s employment was proportionate

to his allegedly unreasonable conduct and consistent with

sanctions imposed on other officers in similar circumstances. We

review both the proportionality and consistency aspects of the

Board’s determination for an abuse of discretion. Nelson v. Orem

City, Dep’t of Pub. Safety

, 2012 UT App 147, ¶ 16, 278 P.3d 1089, cert.

granted

, 288 P.3d 1045 (Utah 2012).

20110895

‐ CA 2013 UT App 183 7Phillips v. South Jordan City

A. The Proportionality of Discipline

¶16 Phillips first asserts that the City’s termination of his

employment was disproportionate to his conduct because the

Board erroneously found that Phillips had been disciplined eight

times for exercising poor judgment. Phillips argues that he was

disciplined fewer than eight times and asserts that three of the

incidents the Board considered were not actually disciplinary in

nature and did not demonstrate poor judgment.

¶17 The nondisciplinary incidents Phillips refers to include his

accidental taser deployment, his removal from the Joint Criminal

Apprehension Team as a result of his ongoing poor decision

making and judgment, 4 and his involvement in a preventable car

accident. After denying, without explanation, the applicability of

those incidents to his termination, Phillips concludes that the

Board’s findings that he had “previously been disciplined eight

times during his term of employment of approximately 3 1⁄2 years”

and “has consistently displayed a pattern of poor judg[ment]” are

clearly not supported by the evidence. In so arguing, Phillips fails

to discuss the Board’s consideration of the remaining five

incidents; 5 instead, he argues that it is impossible to determine

4. It is unclear why this incident, even if nondisciplinary in nature,

should not have been considered by the Board, as it is highly

relevant to the issue of Phillips’s pattern of poor judgment.

5. Phillips’s remaining disciplinary incidents include the following:

(1) Phillips was issued a counseling letter on March 13, 2011, to

remind him of his obligation related to the code of conduct after a

citizen complaint of an off

‐ duty incident wherein Phillips failed to

appropriately handle a companion’s vulgar and loud comments

about a woman’s appearance; (2) Phillips received a verbal

warning on September 14, 2010, for missing several scheduled

court appearances; (3) Phillips received a five

‐ day suspension due

to a verbal and physical altercation on March 12, 2010; (4) Phillips

was issued a verbal warning for shocking an individual, upon that

individual’s request, with his taser on September 2, 2009; and (5)

(continued...)

20110895

‐ CA 2013 UT App 183 8Phillips v. South Jordan City

whether the Board would have concluded termination was justified

without its improper findings. Because Phillips’s argument

contains only conclusory statements and fails to fully develop his

argument with a discussion on why the remaining five incidents

are insufficient to support the City’s termination of Phillips, or

even why the other three did not implicate bad judgment, he does

not convince us that the City’s termination of his employment was

disproportionate to his conduct. See Utah R. App. P. 24(a)(9); State

v. Merrill

, 2012 UT App 3, ¶ 27, 269 P.3d 196 (“An issue is

inadequately briefed when the overall analysis of the issue is so

lacking as to shift the burden of research and argument to the

reviewing court.” (citation and internal quotation marks omitted)).

B. The Consistency of Discipline

¶18 Phillips also asserts that the City’s termination of his

employment is inconsistent with sanctions imposed on other

officers in similar circumstances. In so arguing, Phillips describes

instances of conduct by six other officers, which resulted in lesser

discipline than Phillips’s termination. Phillips does not, however,

include in his proportionality of discipline analysis the

performance histories or length of service with the City for each of

the six officers, which information may explain or justify the lesser

discipline. And, as the City points out, in at least one instance,

Phillips fails to include a fully accurate disciplinary record for one

of the officers, Officer Brett Perez, who was terminated for

allegedly violating the City’s high

‐ speed chase policy. 6 Because

5. (...continued)

Phillips was suspended and assigned to complete an additional

eight hours of remedial EVO training after his involvement in a

traffic accident on October 27, 2008.

6. Phillips argues that this court should not “consider additional

discipline information concerning Officer Brett Perez” because

“none of this additional information appears in the

. . . Board’s

record.” (Citing Guenon v. Midvale City

, 2010 UT App 51, ¶ 4, 230

P.3d 1032 (mem.) (“Relying solely on the record of the

. . . Board,

(continued...)

20110895

‐ CA 2013 UT App 183 9Phillips v. South Jordan City

Phillips’s proportionality of discipline argument is nothing more

than a bare assertion that his termination was inconsistent, without

detailed information pertinent to a determination of whether the

circumstances (not just the actions) of other officer sanctions were

similar, his argument fails to demonstrate that the City’s

termination of his employment is inconsistent with sanctions of

other officers in similar circumstances. See Utah R. App. P. 24(a)(9);

Merrill

, 2012 UT App 3, ¶ 27.

CONCLUSION

¶19 The record evidence demonstrates that Phillips traveled at

speeds reaching 121 mph, drove through six intersections at speeds

between 101 and 119 mph, and turned off his emergency lights and

sirens before passing a vehicle on the right. The evidence also

demonstrates that Phillips had been specifically trained on the

policies outlined in General Order 41.2.1 regarding emergency

vehicle operation. This evidence adequately supports the Board’s

determination that Phillips violated General Order 41.2.1 and his

EVO training. Thus, Phillips’s arguments that the Board abused its

discretion in this regard fails.

¶20 Phillips’s mere assertion that the City’s termination of his

employment was disproportionate to his conduct and inconsistent

6. (...continued)

we review the Board’s decision to determin[e] if the

. . . [B]oard

abused its discretion or exceeded its authority.” (alterations and

omissions in original) (citation and internal quotation marks

omitted)).) A review of the transcript from the Board’s hearing,

however, reveals that Phillips himself relied on this additional

information in his arguments to the Board. At the hearing,

Phillips’s attorney stated that Perez “had serious incident after

serious incident and he retained his job, and it wasn’t until a fourth

incident, also involving emergency vehicle operation that he was

finally fired.” Phillips’s attorney argued that “every single one of

Officer Perez’s actions were as serious or more serious than what

happened on June 2nd.”

20110895

‐ CA 2013 UT App 183 10Phillips v. South Jordan City

with sanctions imposed upon other officers in similar

circumstances falls short of demonstrating that the Board abused

its discretion in affirming Phillips’s termination.

¶21 We therefore decline to disturb the decision of the Board.

20110895

‐ CA 2013 UT App 183 11