Fierro v. Park City|

2014 UT App 71
_________________________________________________________
THE UTAH COURT OF APPEALS
MICHAEL FIERRO,
Petitioner,
v.
PARK CITY MUNICIPAL CORPORATION AND PARK CITY EMPLOYEE
TRANSFER AND DISCHARGE APPEAL BOARD,
Respondents.
Memorandum Decision
No. 20121037-CA
Filed March 27, 2014
Original Proceeding in this Court
Ryan B. Hancey, Attorney for Petitioner
Thomas A. Daley, Kerry A. Gaines, and
Tricia Lake, Attorneys for Respondents
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and J. FREDERIC VOROS JR.
concurred.
ORME, Judge:
¶1 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.
¶2 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 v. Park City
1. Fierro was the president of a small local congregation, called a
branch, of the Church of Jesus Christ of Latter-day Saints.
2. While not mentioned in Fierro I, Fierro “became aware that one
of his parishioners was a suspect” because Fierro met with the
victim’s family and did the initial intake work on their complaint
when they presented themselves at the police station.
20121037-CA 2 2014 UT App 71
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. ¶ 14 (emphasis in original) (quoting Utah Code
Ann. § 10-3-1106(3)(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. ¶¶ 27–28.
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 scope of the Termination Memo, and which the Board
sustained, . . . was sufficient to warrant Fierro’s termination.” Id.
¶ 32. That one ground was Fierro’s misuse of “his police credentials
to gain access to a jailed suspect for church purposes.” Id.
¶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, became aware that one of his parishioners was the[1]
suspect in [a] child sex abuse case,” id. ¶ 3 n.2, which was being
investigated by the police department. Fierro then visited this2
parishioner in the Summit County Jail.
¶5 In arranging his jailhouse visit, Fierro called the Summit
County Jail commander and asked if the commander would allow

Fierro v. Park City
20121037-CA 3 2014 UT App 71
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.
¶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
circumstances of the jail visit, a subject properly disclosed in the
Termination Memo, warranted termination standing alone. See id.
¶ 32. The 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 Fierro’s termination.”
¶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.”

Fierro v. Park City
3. Whether his doing so was a good idea is, of course, a different
matter. Having processed the original complaint made by the
victim’s family at the police station, he nevertheless involved
himself in an ecclesiastical role with the suspect. And knowing the
suspect as a member of his church congregation, he failed to enlist
another detective to take the family’s complaint. But his
mishandling of this apparent conflict of interest was not a ground
for termination alleged in the Termination Memo.
20121037-CA 4 2014 UT App 71
¶8 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 “scintilla” of
evidence and something less than the weight of the evidence.’” Id.
¶ 9 (quoting Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d 746,
758 (Utah Ct. App. 1997)).
¶9 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
¶10 In support of its finding that Fierro lied about the purpose
of his jailhouse visit, the Appeal Board explicitly relied on “Fierro’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

Fierro v. Park City
4. Fierro’s dual capacities as a law enforcement officer and a church
official did make the jail commander uncomfortable. He made and
retained notes outlining his concerns.
20121037-CA 5 2014 UT App 71
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
¶11 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
affairs 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
supra note 1. The police department then asked an outside
investigator to conduct an inquiry into Fierro’s conduct. The jail
commander told this investigator that Fierro “asked him to allow
Fierro to visit with one of his LDS branch members who was
incarcerated and having a hard time.” Similarly, Fierro told the
outside investigator that “he identified himself as [the suspect’s]
branch president and requested a face to face meeting with him.”
The Termination Memo itself seems fully consistent with this
version of events, noting that “Fierro contacted [the jail
commander] for special permission to meet with one of his
parishioners in a private room.” Additionally, when Fierro’s police
chief, who made the initial decision to terminate Fierro’s
employment, testified before the Appeal Board, he stated that
Fierro “had a private conversation in the jail, and he had
disclosed—he was there as clergy.” Finally, the city’s attorney
seemed to recognize that this was an undisputed fact and conceded
as much in her closing arguments before the Appeal Board: “I want
to be clear we’re not taking issue with the fact that he was working
as a clergy or that in his capacity he would go visit the suspect in
jail.”

Fierro v. Park City
20121037-CA 6 2014 UT App 71
¶12 The City contends that regardless of whether Fierro
represented himself as being on church business when he visited
the jail, “it was the indicia of authority and the exploitation of this
authority as a law enforcement officer for a non-law enforcement
purpose which brought discredit to the Park City Police
Department, and which formed the basis for Fierro’s termination.”
While it may be true that the Appeal Board used the term
“credentials” in the broad sense of the term, meaning police
authority or position, the Appeal Board’s ultimate conclusion that
Fierro misused his credentials turned almost exclusively on its very
specific finding that Fierro lied about the purpose of his jailhouse
visit. This conclusion is simply not supported by the evidence,
much less by substantial evidence. The Appeal Board’s resulting
decision is necessarily arbitrary and capricious, and thus
constitutes an abuse of its discretion. See Rosen v. Saratoga Springs
City, 2012 UT App 291, ¶ 19, 288 P.3d 606; Lucas v. Murray City Civil
Serv. Comm’n, 949 P.2d 746, 755 n.5 (Utah Ct. App. 1997). See also
Utah Code Ann. § 10-3-1106(6)(c)(ii) (LexisNexis 2012) (stating that
we review the decision of an Appeal Board “for the purpose of
determining if the appeal board . . . abused its discretion or
exceeded its authority”).
¶13 Given the lack of substantial evidence to support its pivotal
finding, we must set the Appeal Board’s decision affirming Fierro’s
termination aside. The remedies to which Fierro is entitled are
prescribed by statute. See Utah Code Ann. § 10-3-1106(5)(b); Lucas,
949 P.2d at 763.