Salt Lake City Corp. v. Gallegos

2016 UT App 122
THE UTAH COURT OF APPEALS
S ALT LAKE C ITY C ORPORATION ,
Petitioner,
v.
THOMAS GALLEGOS AND S ALT LAKE C ITY
C IVIL S ERVICE C OMMISSION ,
Respondents.
Opinion
No. 20140271-CA
Filed June 3, 2016
Original Proceeding in this Court
J. Elizabeth Haws and Samantha J. Slark, Attorneys
for Petitioner
Edward K. Brass, Attorney for Respondent
Thomas Gallegos
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGE S TEPHEN L. R OTH and J USTICE JOHN A. PEARCE
concurred.1
CHRISTIANSEN, Judge:
¶1 	Salt Lake City Corporation (the City) petitions for judicial
review of the Salt Lake City Civil Service Commission’s (the
Commission) 	decision 	reversing 	the 	termination 	of 	Officer
Thomas Gallegos’s employment with the Salt Lake City Police
Department (the Department). Because the Commission applied
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).

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an incorrect legal standard, we set aside the resulting decision,
and direct the Commission to reconsider the matter.
BACKGROUND
¶2 	Between 2009 and 2012, Gallegos served as President of
the Salt Lake Police Association (SLPA) and as a board member
of 	the 	International 	Union 	of 	Police 	Associations 	(IUPA).
Gallegos attended annual IUPA board meetings. Gallegos paid
for meals and travel expenses for these trips with an SLPA credit
card. For these same events, Gallegos received a per diem from
IUPA and for one event was reimbursed by IUPA for an airfare
that Gallegos had purchased with SLPA funds. Gallegos did not
reimburse SLPA for his use of SLPA funds to pay for meal and
travel expenses for which Gallegos had received a per diem or
been reimbursed by IUPA.
¶3 	Responding to complaints made by other officers, the
Department’s 	police 	chief 	initiated 	an 	internal-affairs
investigation of Gallegos. That investigation determined that
Gallegos had paid for IUPA board-meeting travel expenses with
SLPA funds while also receiving reimbursement from IUPA for
these same expenses, but had never reimbursed SLPA for the
double payment. After a pre-disciplinary hearing and a Civilian
Review 	Board 	investigation, 	the 	police 	chief 	terminated
Gallegos’s employment. The police chief found that Gallegos
had “knowingly received and processed instruments of payment
from IUPA” and “kept the funds for [his] personal use and made
no attempt to reimburse the SLPA for its expenditures.” The
police chief found that, under the circumstances, Gallegos could
not “plausibly deny knowledge of wrongdoing and therefore
committed a theft.” The police chief concluded that Gallegos’s
conduct constituted a violation of three of the Department’s
policies: 	“Obligation 	to 	Abide 	by 	the 	Law,” 	“Conduct
Unbecoming,” and “Core Values—Integrity.” The police chief
also 	determined 	that 	Gallegos’s 	conduct 	justified 	his
termination.

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¶4 	Gallegos appealed to the Commission, which held an
evidentiary hearing on the matter. Gallegos asserted that he was
unaware that any of the funds he received from IUPA were per
diem payments or other funds that should be reimbursed to
SLPA rather than stipends that he was entitled to keep for his
attendance at IUPA board meetings.2
¶5 	The Commission determined that each of the identified
policy violations “was based on assertions that Officer Gallegos
had committed a theft of property by seeking and receiving
reimbursement from IUPA for expenses that SLPA had paid”
and that he “‘knowingly’ receiv[ed] and ke[pt] for his personal
use funds received from IUPA that should have been used to
reimburse SLPA for expenses SLPA paid.” The Commission
therefore concluded that a “key element” of the Department’s
case was proving that Gallegos “intentionally and knowingly
took 	money 	to 	which 	he 	was 	not 	entitled.” 	Based 	on 	the
evidence received at the hearing, the Commission determined
that 	“[t]he 	record 	fails 	to 	establish 	that 	Officer 	Gallegos
intentionally kept funds that he knew did not belong to him”
and that the City “failed 	to establish 	that Officer Gallegos
committed a theft.” The Commission thus concluded that the
Department had “failed to carry its burden of establishing that
the 	facts and 	evidence 	support 	the 	charges leveled 	against
Officer Gallegos.” The Commission reversed the police chief’s
decision to terminate Gallegos and reinstated his employment.
The City seeks review of the Commission’s decision.
2. It 	appears 	that 	Gallegos’s 	retention 	of 	the 	stipends 	for
attendance at IUPA board meetings is uncontroversial. The
retention of the stipends, which constitute approximately half of
the money Gallegos received from IUPA, does not appear to
form any part of the City’s reasons for terminating Gallegos’s
employment.

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ISSUES AND STANDARDS OF REVIEW
¶6 	The 	City 	first 	argues 	that 	the 	Commission 	erred 	in
requiring the City to put forth evidence that Gallegos had
committed a theft to demonstrate that the facts supported the
grounds for Gallegos’ termination. The City next argues that the
Commission applied the wrong standard of review in evaluating
whether the record supported the police chief’s findings. Last,
the 	City 	argues 	that 	the 	Commission 	improperly 	excluded
certain evidence.
¶7 	We review the Commission’s decision “for the purpose of
determining 	if 	the 	[Commission] 	abused 	its 	discretion 	or
exceeded its authority.” Utah Code Ann. § 10-3-1106(6)(c)(ii)
(LexisNexis 	2015). 	We 	will 	conclude 	that 	the 	Commission
abused its discretion if its decision “exceeds the bounds of
reasonableness and rationality.” Rosen v. Saratoga Springs City,
2012 UT App 291, ¶ 8, 288 P.3d 606 (citation and internal
quotation 	marks 	omitted). 	We 	review 	the 	legal 	standards
applied by the Commission for correctness. See Taylorsville City v.
Taylorsville City Emp. Appeal Board, 2013 UT App 69, ¶ 16, 298
P.3d 1270 (“[W]hen reviewing the Board’s interpretations of
general questions of law, this court applies a correction-of-error
standard, with no deference to the expertise of the Board.”
(brackets, citation, and internal quotation marks omitted)).
ANALYSIS
¶8 	The 	Commission 	is 	empowered 	to 	“fully 	hear 	and
determine” 	appeals 	from 	disciplinary 	decisions 	of 	the
Department’s 	police 	chief. 	Utah 	Code 	Ann. 	§ 	10-3-1012(2)
(LexisNexis 	2015). 	In 	reviewing 	disciplinary 	decisions, 	the
Commission must determine whether “the facts support the
charges 	made 	by 	the 	department 	head” 	and 	whether 	“the
charges warrant the sanction imposed.” Ogden City Corp. v.
Harmon, 	2005 	UT 	App 	274, 	¶ 	10, 	116 	P.3d 	973 	(citation
and internal 	quotation 	marks 	omitted). 	In 	doing 	so, 	the

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Commission must “give deference to a police chief’s advantaged
position” in evaluating disciplinary decisions, and, absent a
city 	ordinance 	expressly 	rejecting 	this 	approach, 	the
Commission must 	review 	the 	police 	chief’s 	decision 	“for
substantial evidence with respect to findings of fact and abuse of
discretion with respect to the discipline selected.” Taylorsville
City v. Taylorsville City Emp. Appeal Board, 2013 UT App 69, ¶ 29,
298 P.3d 1270; accord Salt Lake City Civil Service Comm’n
Rules 	& 	Regulations 	6-4-5(10), 	http://www.slcdocs.com/hr/
rulesregulationsaugust2012.pdf 	[https://perma.cc/8YH2-A84K]
(providing that a “substantial evidence” standard applies to all
hearings before the Commission). In short, the Commission’s
review is limited to considering whether substantial evidence
exists to support the police chief’s decision.
I. The Commission Did Not Err in Requiring the City to Provide
Evidence of the Charged Theft.
¶9 	The City first challenges the Commission’s determination
that, to properly support the police chief’s termination decision,
the 	City 	needed 	to 	put 	forth 	evidence 	that 	Gallegos 	had
committed a theft—that he “intentionally and knowingly took
money to which he was not entitled.” The City argues that,
under the plain language of the relevant Department policies, no
criminal intent or violation of the law needed to be proven to
support the grounds for termination.
¶10 	We agree with the City that, facially, at least two of the
relevant policies do not require a showing of criminal intent or
conduct.3 The Conduct Unbecoming policy states,
3. The City does not discuss the language or requirements of the
third policy implicated in Gallegos’s termination: Obligation to
Abide by the Law. Accordingly, we limit our analysis to the
policies the City has addressed on appeal.

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Conduct unbecoming by a police employee is any
conduct that has a tendency to adversely affect the
operations or efficiency of the Department or any
conduct that has a tendency to adversely affect public
respect 	and 	confidence 	in 	the 	Department 	or 	any
employee. Conduct unbecoming also includes any
conduct 	that 	brings 	the 	Department 	or 	any
employee into disrepute or brings discredit upon
the Department or any employee.
(Emphasis added.) And the “Core Values—Integrity” policy
states,
The Public demands that the integrity of police
officers be above reproach. Police officers must
avoid any conduct that may compromise integrity
and thus undercut the public confidence.
We agree that, in isolation, these policies do not necessarily
require proof that an officer acted criminally or engaged in
knowing or intentional misconduct.
¶11 	However, the Commission is not charged with evaluating
the Department’s policies in a vacuum to determine if an officer
engaged in conduct that violated those policies. Rather, the
Commission’s review is limited by the scope of the termination
notice; put another way, the Commission may consider only the
misconduct 	identified 	in 	the 	notice 	as 	the 	basis 	for 	the
termination decision. Fierro v. Park City Mun. Corp., 2012 UT App
304, ¶ 22, 295 P.3d 696. This “four corners of the termination
notice” 	limitation 	is 	imposed 	on 	the 	Commission’s 	review
because police officers “have a due process right to adequate
notice 	of 	the 	reasons 	for 	their 	discharge 	so 	that 	they 	can
meaningfully 	prepare 	for 	and 	participate 	in 	the 	municipal
appeal board hearing.” Becker v. Sunset City, 2013 UT 51, ¶ 15,
309 P.3d 223 (citing Fierro, 2012 UT App 304, ¶¶ 18–19). Thus,
the termination notice must give an employee “clear notice of
the allegations he should be prepared to address” so that the

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employee has an adequate opportunity to prepare a defense to
the allegations. Fierro, 2012 UT App 304, ¶ 16. The Commission’s
review 	is 	therefore 	limited 	to 	the 	“specific 	grounds 	for
termination” contained in the termination notice, and we must
set 	aside 	the 	Commission’s 	decision 	if 	it 	“stray[s] 	from
considering the charges contained in the [termination notice].”
Id. ¶¶ 25, 28. “We may not side-step this due process limitation
in determining whether a municipal appeal board’s decision is
supported by substantial evidence.” Becker, 2013 UT 51, ¶ 15.
¶12 	Here, the specific grounds for termination identified by
the police chief in the termination notice were that Gallegos
“knowingly received and processed instruments of payment
from IUPA” and “kept the funds for [his] personal use and made
no attempt to reimburse the SLPA.” The police chief found that
Gallegos could not “plausibly deny knowledge of wrongdoing
and 	therefore 	committed 	a 	theft.” 	Given 	these 	specific
allegations, we cannot agree with the City that the Commission
erred in requiring the City to put forward evidence that Gallegos
“intentionally and knowingly took money to which he was not
entitled” and thereby committed a theft. Because the police chief
framed 	the 	allegations 	against 	Gallegos 	as 	a 	theft, 	the
Commission’s review was limited to the question of whether
there was evidence to support a finding that Gallegos had
committed a theft. See Fierro, 2012 UT App 304, ¶ 18.4
4. Our conclusion on this issue also resolves the City’s claim that
the 	Commission 	improperly 	considered 	Gallegos’s intent 	or
knowledge in evaluating whether the facts support the charges
alleged 	in 	the 	termination 	notice. 	We 	conclude 	that 	the
Commission’s 	consideration 	of 	Gallegos’s 	mental 	state 	was
necessary to evaluate the allegation that Gallegos had engaged
in a knowing theft. The City asserts that an employee’s mental
state 	may 	be 	considered 	only 	in 	evaluating 	the 	degree 	of
discipline imposed. The City’s reliance on Ogden City Corp. v.
Harmon for this proposition is misplaced. 2005 UT App 274, 116
P.3d 	973. 	In 	Harmon, 	this 	court 	ruled 	that 	the 	question 	of
(continued…)

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¶13 	Indeed, to accept the City’s argument in this case would
allow the City to support Gallegos’s termination with evidence
of merely accidental or negligent mishandling of money—or, in
fact, 	any 	other 	terminable 	misconduct 	in 	any 	departmental
policy—which is a very different allegation from the knowing
theft identified by the police chief as the basis for Gallegos’s
termination. But Gallegos was entitled to “clear notice” of the
allegations that he would be required to address and defend
against. Id. ¶ 16. Because the police chief identified a knowing
theft of funds as the basis for Gallegos’s termination, Gallegos
was entitled to rely on that notice and prepare a defense to the
specific allegation of theft. The City cannot now attempt to
justify Gallegos’s termination on the basis of different, less
culpable conduct than that identified in the termination notice.
To do so would be to move the goalposts while the ball is in the
air.
II. The Commission Applied the Wrong Standard of Review.
¶14 	Next, the City argues that the Commission applied the
wrong standard of review when it concluded that “[t]here is
(…continued)
whether conduct was “common and consensual” had no place in
evaluating whether the facts supported the charges alleged. Id.
¶ 12. But that question is different from whether the employee’s
knowledge or intent could be considered in that context—a
question the Harmon court did not address. Thus, contrary to the
City’s assertion in its brief, this court did not hold in Harmon that
“the employee’s intent . . . should only be considered in that it
may affect the degree of discipline imposed.” (Citation and
internal 	quotation 	marks 	omitted.) 	While 	we 	observed 	that
consideration 	of 	the 	employee’s 	mental 	state 	was 	likely
appropriate in evaluating the proportionality of the discipline,
nothing in Harmon limits the Commission’s consideration of
the employee’s mental state to only the proportionality analysis.
Id. ¶ 18.

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substantial 	and 	sufficient 	evidence 	in 	the 	record 	for 	the
Commission to conclude that Officer Gallegos made, at most, an
honest and genuine mistake regarding his acceptance of the
funds in question.” We agree that the Commission applied the
wrong standard of review on this issue. The question before the
Commission was not whether there was substantial evidence to
justify 	exonerating 	Gallegos, 	but 	rather, 	whether 	there 	was
substantial evidence in the record to support the police chief’s
conclusion that Gallegos engaged in the conduct for which he
was terminated.
¶15 	In 	reviewing 	a 	termination 	decision, 	the 	Commission
must “give deference to a police chief’s advantaged position” in
evaluating disciplinary decisions and must review the police
chief’s decision for “substantial evidence with respect to findings
of fact and abuse of discretion with respect to the discipline
selected.” Taylorsville City v. Taylorsville City Emp. Appeal Board,
2013 UT App 69, ¶ 29, 298 P.3d 1270; accord Salt Lake City Civil
Service Comm’n Rules & Regulations 6-4-5(10) (providing that a
“substantial evidence” standard applies to all hearings before
the Commission). In conducting a substantial evidence review,
the Commission must determine whether the evidence supports
the police chief’s findings, not whether there is evidence in the
record that would support a contrary finding. We therefore
conclude that the Commission erred by evaluating whether the
evidence supported a finding that Gallegos made “at most, an
honest and genuine mistake.”
¶16 	We will set aside the Commission’s decision only if there
is a reasonable likelihood that the error affected the outcome of
the proceedings. See Lucas v. Murray City Civil Serv. Comm'n, 949
P.2d 746, 755 (Utah Ct. App. 1997). Because the Commission did
not review the actual grounds for the police chief’s termination
decision, 	we 	must 	consider 	whether 	substantial 	evidence
supported the police chief’s conclusion that Gallegos committed
theft. 	Taylorsville 	City, 	2013 	UT 	App 	69, 	¶ 29. 	Substantial
evidence is a “quantum and quality of relevant evidence that is
adequate 	to 	convince 	a 	reasonable 	mind 	to 	support 	a

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conclusion.” Kennon v. Air Quality Board, 2009 UT 77, ¶ 28, 270
P.3d 417 (citation and internal quotation marks omitted). “It is
more than a mere ‘scintilla’ of evidence and something less than
the weight of the evidence.” Rosen v. Saratoga Springs City, 2012
UT App 291, ¶ 9, 288 P.3d 606 (citation and additional internal
quotation marks omitted). The City bears the burden of proof to
demonstrate 	that 	the 	facts 	support 	the 	charges 	against 	the
officer. 	See 	Salt 	Lake 	City 	Civil 	Service 	Comm’n 	Rules 	&
Regulations 6-4-5(4).
¶17 	We agree with the City that there is evidence to support
the allegation that Gallegos received payments from IUPA that
included per diems and travel reimbursement that should have
been reimbursed to SLPA: Gallegos used an SLPA credit card to
pay for his travel to and meals at IUPA board meetings. IUPA
paid Gallegos a $400 stipend for attending each board meeting.
IUPA also paid Gallegos a per diem of $49 to $71 per day he
attended 	each 	board 	meeting, 	totaling 	$1,103 	in 	per 	diem
payments for five board meetings between October 2009 and
February 2012. IUPA also provided Gallegos with a form to
obtain reimbursement for his airfare, which IUPA typically
paid directly to SLPA. On one occasion, 	although Gallegos
requested the reimbursement be made payable to SLPA, the
reimbursement check was made payable to Gallegos personally
and was sent directly to him.
¶18 	Here, 	the 	evidence 	presented 	below 	appears 	to 	be
sufficient to show that Gallegos received funds that should have
been reimbursed to SLPA. But the question before us is whether
a 	factfinder 	could 	reasonably 	infer 	from 	the 	evidence 	that
Gallegos committed a theft by intentionally retaining funds he
knew he was not entitled to. “A person commits theft if he
obtains or exercises unauthorized control over the property of
another with a purpose to deprive him thereof.” Utah Code Ann.
§ 76-6-404 (LexisNexis 2008). The City directs us to evidence
which it contends support such a finding. Specifically, Gallegos
testified that he knew he would be paid a $400 stipend for
attending IUPA board meetings, but he received checks for more

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than $400. Gallegos also testified that he did not inquire about
the difference between his anticipated stipend and the amount of
the checks. He also testified that the tax forms he received from
IUPA showed less income than the amount he had received from
IUPA. He further testified that he knew what the term “per
diem” meant and that he had heard other officers at a board
meeting use the term. Finally, the City points to the evidence
that the airfare-reimbursement check that was mistakenly made
payable to Gallegos rather than SLPA “was in the exact amount
of the reimbursement he requested.”
¶19 	While the evidence presented to the Commission suggests
that Gallegos might have known he was receiving money that
did not belong to him, it is not this court’s role to weigh the
evidence to determine whether that evidence establishes that
Gallegos intentionally retained those funds with the purpose of
depriving SLPA of the money. See Utah Code Ann. § 76-6-404.
Had the Commission applied the correct legal standard, it may
have found this evidence sufficient to support the police chief’s
conclusion that Gallegos knew he was receiving money he was
not authorized to have or that he retained it with the purpose of
depriving SLPA of the money. See id. On the other hand, the
Commission might have found this evidence insufficient to
support such a finding. We therefore set aside the Commission’s
ruling and direct the Commission to revisit the matter for
consideration of whether substantial evidence was presented to
support the police chief’s conclusion that Gallegos committed
theft.
III. The Commission Did Not Err in Its Treatment of Evidence at
the Hearing.
¶20 	The City challenges the Commission’s treatment of two
pieces of evidence the City sought to introduce at the hearing.
Since this case must be returned to the Commission for further
consideration, we will address the evidentiary issues presented
in this review. First, the City contends that the Commission
improperly disregarded an exhibit and associated testimony that

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purported to show that Gallegos knew he was receiving money
from IUPA as a per diem that should have been reimbursed to
SLPA. 	Second, 	the 	City 	contends 	that 	the 	Commission
improperly excluded as irrelevant evidence that Gallegos was
being prosecuted by the State for theft.
¶21 	“[A]s a municipal administrative body, the Commission is
not bound by formal rules of evidence and procedure.” Lucas v.
Murray City Civil Service Comm’n, 949 P.2d 746, 755 (Utah Ct.
App. 1997). Rather, the Utah Rules of Evidence and Utah Rules
of Civil Procedure are used as “guidelines” during Commission
hearings but “are not strictly followed or applied.” Salt Lake
City Civil Service Commission Rules and Regulations 6-4-5(2)
(2012). “In the absence of formal legal rules, the Commission
must determine what evidence should, in fairness, be admitted.”
Lucas, 949 P.2d at 756 (citation and internal quotation marks
omitted). “The evidence must be legally relevant, in that it has
some probative weight and reliability.” Id. (citation and internal
quotation marks omitted).
A. 	Per Diem Evidence
¶22 	The 	City 	argues 	that 	the 	Commission 	improperly
excluded evidence that Gallegos had been notified by IUPA that
a portion of the money he received was a per diem that should
have been reimbursed to SLPA. This evidence consists of a letter
on 	IUPA 	letterhead 	addressed 	to 	Gallegos 	that 	provides 	a
breakdown of the payment to Gallegos for an IUPA board
meeting 	in 	September 	2010—identifying 	the 	per 	diem
amounts—and the testimony of the police officer who had
obtained 	the 	letter 	from 	IUPA. 	The 	City 	argues 	that 	the
Commission 	improperly 	excluded 	this 	evidence 	as 	hearsay,
because this evidence “is the type of hearsay evidence [the
Commission] has routinely accepted” and because no objection
to the evidence was raised at the hearing.
¶23 	We reject the City’s argument because it does not appear
that the Commission excluded the evidence in question. In

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considering this evidence, the Commission observed that it was
“based on the hearsay statement of a person who did not have
personal knowledge of the facts in question.” But nothing in the
Commission’s order suggests that it refused to consider the
evidence. Rather, it appears that the Commission considered the
evidence and determined that, because IUPA’s treasurer lacked
any knowledge that Gallegos had received the letter, the letter
and testimony had little, if any, probative value in establishing
that “Gallegos knew that the IUPA funds in question constituted
a ‘per diem.’”
¶24 	The letter contains a breakdown of per diem and stipend
payments for one board meeting, but nothing in the document
itself demonstrates that it was ever given to Gallegos. The police
officer who obtained the letter testified that he had received it
from 	IUPA’s 	treasurer. 	The 	officer 	testified 	that 	the 	IUPA
treasurer told him “when the meeting attendees arrived at the
meeting, each of them would be given a packet which contained
. . . a check for the monies they were receiving, the breakdown
sheet which showed the total amount broken down, and a
reimbursement 	form 	should 	they 	need 	any 	further
reimbursements.”
¶25 	Faced with this evidence, the Commission concluded that
the IUPA treasurer lacked personal knowledge that Gallegos had
ever received the letter containing the breakdown. The IUPA
treasurer had not himself “sent the checks or the purported
breakdowns to Officer Gallegos,” and he could speak only to
IUPA’s general practice of giving meeting attendees a packet
containing such material. Nothing in the letter or the IUPA
treasurer’s statements as relayed by the police officer at the
hearing demonstrate that Gallegos was ever made aware by
IUPA that a portion of the money paid to him constituted a per
diem. Thus, based on our review of the Commission’s order, we
conclude that it properly considered the letter and associated
testimony.

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B. 	Criminal-Prosecution Evidence
¶26 	The City also challenges the Commission’s exclusion of
evidence that the State was pursuing a criminal case against
Gallegos stemming from the conduct at issue in this case. The
City attempted to present evidence that Gallegos had been
charged criminally for his conduct. Gallegos objected, arguing
that because the criminal charges arose after Gallegos had been
terminated, they could not have formed the basis for any of the
allegations against Gallegos and were therefore irrelevant. The
Commission sustained the objection.
¶27 	The City contends that the Commission erred in excluding
the evidence as irrelevant. We disagree. The Commission may
exclude evidence that is irrelevant. Evidence is relevant if “it has
any tendency to make a fact more or less probable than it would
be without the evidence” and “the fact is of consequence in
determining the action.” Utah R. Evid. 401.
¶28 	As discussed above, the Commission’s review is limited
to 	the 	specific 	grounds 	for 	termination 	identified 	in 	the
termination notice. Supra ¶ 11. The City argues that “[e]vidence
of the status of the criminal action against Officer Gallegos is
relevant to show Officer Gallegos’s conduct fell below that
expected of a Salt Lake City police officer and violated the
Department policies at issue.” But Gallegos was not terminated
for being charged with a crime. And while a criminal conviction
may be relevant to showing that Gallegos engaged in a theft, the
filing of a criminal charge under these circumstances constitutes
no more than an additional allegation that Gallegos engaged in
the conduct for which he was terminated. The Commission
therefore properly excluded the evidence as irrelevant to the
limited question before it.
¶29 	We conclude that the Commission did not err in its
handling of either the per diem evidence or the evidence that
Gallegos had been charged with theft.

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20140271-CA 	15 	2016 UT App 122
CONCLUSION
¶30 	The Commission did not err in requiring the City to
present evidence that Gallegos committed a theft, because the
City based its termination of Gallegos on allegations of theft.
However, 	the 	Commission 	applied 	the 	wrong 	standard 	of
review to its analysis of the record evidence. The Commission
did not err in its handling of the evidence presented by the City.
We therefore vacate the Commission’s decision and return the
matter for further consideration under the correct standard of
review.