Perez v. South Jordan City

2014 UT App 31
_________________________________________________________
THE U TAH COURT OF A PPEALS
BRETT P EREZ ,
Petitioner,
v.
SOUTH J ORDAN C ITY AND SOUTH J ORDAN
C ITY A PPEAL BOARD,
Respondents.
Opinion
No. 20100545‐CA
Filed February 6, 2014
Original Proceeding in this Court
Ryan B. Hancey, Attorney for Petitioner
Camille N. Johnson and Maralyn M. English,
Attorneys for Respondents
J UDGE J. FREDERIC VOROS J R . authored this Opinion, in which
J UDGES G REGORY K. ORME and J AMES Z. D AVIS concurred.
VOROS, Judge:
¶1 	Officer Brett Perez, a South Jordan City police officer,
engaged in a high‐speed chase in May 2009. During that chase,
Perez failed to activate his lights and siren while speeding and later
failed to activate his siren while passing through a red light at an
intersection. 	After 	reviewing 	the 	incident 	and 	three 	other
disciplinary matters in Perez’s file—all from the preceding fourteen
months—South Jordan Police Chief Lindsey Shepherd terminated
Perez. 	The 	South 	Jordan 	City 	Appeal 	Board 	affirmed 	his
termination. Perez seeks review of the Board’s decision. We decline
to disturb that decision.

Perez v. South Jordan City
BACKGROUND
The Chase
¶2 	While on patrol at 1:30 a.m. on May 28, 2009, Officer Perez
responded to a radio call reporting a suspicious vehicle leaving a
South Jordan shopping complex. Perez intercepted and attempted
to pull over the vehicle. When the driver refused, Perez followed
the fleeing vehicle into a cul‐de‐sac. Perez left his car and
approached the vehicle on foot, drawing his weapon and ordering
the driver to stop. After briefly retreating, the driver again
attempted to leave the cul‐de‐sac. He drove directly at Perez, who
was standing in the middle of the street pointing his gun at the car.
Perez dove out of the way to avoid being hit.
¶3 	Officer Jared Nichols, who had come to provide support,
sped after the fleeing vehicle. By the time Perez returned to his car,
the fleeing driver had driven five blocks west through a residential
neighborhood and turned north onto 3200 West, a wider through‐
street. Knowing that he would need to drive at high speeds to catch
up with Nichols and the fleeing vehicle, Perez opted not to follow
their route through the residential neighborhood. Instead, he
turned north onto 2700 West, another through‐street running
parallel to 3200 West, hoping that if the vehicle turned east he
would be positioned to intercept it. To catch up, Perez sped up to
seventy miles per hour, well in excess of 2700 West’s speed limit of
thirty five miles per hour. As he continued at high speeds down
2700 West, parallel to Nichols and the fleeing vehicle, Perez did not
activate either his police lights or his siren.
¶4 	Perez and Nichols maintained radio contact, but Perez was
unable to identify Nichols’s location. The fleeing driver eventually
reversed course, heading south on 3200 West and then turning east
onto 7800 South. Perez was there waiting. He stopped in the
middle of the street facing the oncoming vehicle and turned on his
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Perez v. South Jordan City
emergency lights, but did not activate his siren. The fleeing vehicle
and Nichols both passed Perez, and Perez turned around to follow.
The officers trailed the fleeing vehicle as it turned north on 2700
West. As the chase passed through the intersection of 7800 South
and 2700 West, Perez still had not activated his siren. As the chase
entered the intersection on a red light, a vehicle approaching
northbound on 2700 West passed through the intersection and
immediately pulled over to avoid a collision.
¶5 	The chase ended dramatically a few minutes later. Nichols
and Perez caught up with the fleeing vehicle on a dead‐end street.
The two officers rammed their cars into the vehicle to stop it from
moving. Nichols’s vehicle and the fleeing vehicle were “crushed
together,” and the drivers’ windows were “very close” to each
other. Perez left his vehicle, drew his weapon, pointed it at the
driver of the fleeing vehicle, and ordered him several times to stop.
When the driver “continued to try to escape” and “started towards
his open driver window,” Nichols fired twice at the driver, killing
him.
Perez’s Termination and the Board’s Review
¶6 	The South Jordan City Police Department’s Pursuit Review
Committee issued a memorandum discussing Perez’s involvement
in the chase. The committee considered whether Perez should have
activated his emergency lights, siren, and camera while moving at
seventy miles per hour in a thirty‐five‐miles‐per‐hour zone. It
“concluded that he should have had his camera operating due to
the nature of the incident.” The committee also considered whether
Perez had violated department policy or broken the law by
following Nichols and the fleeing suspect through the intersection
of 	7800 	South 	and 	2700 	West 	without 	activating 	his 	siren.
“[A]ccording to policy,” the committee observed, Perez should
have activated his siren before going through a red light. But the
committee recognized that Perez’s failure to activate his siren
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Perez v. South Jordan City
created “no danger to other motorists, . . . because Officer Nichols
had just gone through” the same light ahead of Perez.
¶7 	After 	reviewing 	the 	Pursuit 	Review 	Committee’s
memorandum, Chief Shepherd wrote Perez a pre‐disciplinary‐
hearing letter informing him that he was “subject to potential
disciplinary action” for failing to “properly perform [his] duties in
a manner that [would] maintain the highest standards of efficiency
in carrying out the [department’s] goals and objectives” and failing
to “carry out [his] duties completely and without delay, evasion, or
neglect.” After the hearing, Chief Shepherd wrote Perez again to
inform him that he had been terminated.
¶8 	In his second letter, Chief Shepherd described two offenses
that established grounds for Perez’s termination. The offenses
differed from those Chief Shepherd had described in his pre‐
disciplinary‐hearing letter. First, “[w]hile paralleling, Officer Perez
did not utilize lights, siren and camera while exceeding the speed
limit.” Second, “[w]hile in the back up role, Officer Perez entered
the intersection of 7800 South 2700 West without utilizing his
audible signal (siren).” Chief Shepherd’s termination letter also
referred to three prior “disciplinary actions” on Perez’s record. In
April 2008 Perez had been suspended “for willfully engaging in a
vehicle pursuit against department policy.” In July 2008 Perez had
been demoted “for showing a lack of veracity during a supervisor
inquiry.” At that time, Perez was “advised that . . . although the
actions leading to his demotion did not justify termination at that
time, any further violation of City or Department Policy would
result in termination.” Finally, in May 2009 Perez was “[v]erbally
counseled for excessive speed (83‐35) while en‐route to a non
priority call. (Noise complaint).”
¶9 	The termination letter concluded that Perez’s actions “in the
May 28, 2009 pursuit, as well as the cumulative prior actions
resulting in formal discipline, constitute cause for disciplinary
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Perez v. South Jordan City
action.” The letter stated that Perez’s “most recent conduct . . . is
another 	instance 	of 	an 	on‐going 	failure 	to 	exercise 	proper
judgment” and that Perez’s “repeated problems involving poor
judgment and policy violations compromise [his] ability to function
as a police officer.”
¶10 	Perez appealed his termination to the South Jordan City
Appeal Board. After a lengthy hearing, the Board affirmed Chief
Shepherd’s decision to terminate Perez. Perez then sought this
court’s review of the Board’s decision. Concluding that Perez
missed the thirty‐day deadline for filing a petition, we dismissed
that petition for lack of jurisdiction. Perez v. South Jordan City, 2011
UT App 430, ¶ 1, 268 P.3d 877. Perez appealed, and the Utah
Supreme Court reversed, holding that Perez had timely appealed.
See Perez v. South Jordan City, 2013 UT 1, ¶¶ 24–25, 296 P.3d 715.
The court remanded the case to us to consider the merits of Perez’s
petition. Id.
ISSUES AND STANDARDS OF REVIEW
¶11 	Perez contends that the Board erred in two ways. First, he
asserts that the Board erred in finding that he engaged in a
“pursuit” on 2700 West as he attempted to rejoin Nichols and catch
the fleeing vehicle. Second, he asserts that the Board erred in
concluding that his termination was proportional to his misconduct
and consistent with past department discipline for similar offenses.
The scope of our review is confined to the record before the Board,
and we review the Board’s order only to determine whether the
Board “abused its discretion or exceeded its authority.” Utah Code
Ann. § 10‐3‐1106(6)(c) (LexisNexis 2012); accord Nelson v. City of
Orem, 2013 UT 53, ¶¶ 29–30, 309 P.3d 237.
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Perez v. South Jordan City
ANALYSIS
I. Pursuit
¶12 	Perez first contends that the Board abused its discretion
when it determined that he engaged in a pursuit as he sped to
rejoin Nichols.1 Perez argues that the distance between himself and
the fleeing vehicle and the fact that he had only a “vague, general
idea of the suspect’s location” refute the Board’s pursuit finding.
He also argues that the Board’s decision, the Pursuit Review
Committee’s report, and South Jordan’s pursuit training program
use contradictory definitions of the term “pursuit.”
¶13 	The City responds that Perez’s actions fall clearly within
South Jordan City’s Vehicle Pursuit Policy. That policy defines
“vehicular pursuit” as “an active attempt by a law enforcement
officer in an authorized emergency vehicle to apprehend fleeing
suspect(s) who are attempting to avoid apprehension through
evasive tactics.” Because Perez “was in a ‘vehicular pursuit’
as . . . defined in the Pursuit Policy,” the City argues, the Board did
not abuse its discretion when it found that Perez had engaged in a
pursuit “[w]hile speeding on 2700 West . . . to apprehend the
fleeing suspect.”
¶14 	The Board based its order on section 41‐6a‐212 of the Utah
Code and South Jordan Police Department General Order 41.2.
Section 41‐6a‐212 of the Utah Code grants certain privileges to
operators of authorized emergency vehicles. These include the
privilege to “exceed the maximum speed limits” and the privilege
to “proceed past a red or stop signal . . . after slowing down as may
be necessary for safe operation.” Utah Code Ann. § 41‐6a‐212(2)
1. Perez does not challenge the Board’s finding that he violated
department policy by failing to activate his siren before entering
the intersection at 7800 South and 2700 West.
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Perez v. South Jordan City
(LexisNexis 	2010). 	These 	privileges 	are 	available 	when 	an
emergency vehicle is “responding to an emergency call,” engaged
“in the pursuit of an actual or suspected violator of the law,” or
“responding to . . . a fire alarm.” Id. § 41‐6a‐212(1).
¶15 	However, the statute’s privileges apply to emergency
vehicles “involved in any vehicle pursuit” only when the driver
“sounds an audible signal” and “uses a visual signal with
emergency lights.” Id. § 41‐6a‐212(4)(a)(i), (ii). The statute requires
emergency vehicles exercising these privileges while not involved
in a pursuit to either “sound[] an audible signal” or “use[] a visual
signal with emergency lights.” Id. § 41‐6a‐212(3)(a)(i), (ii). And the
statute permits emergency vehicles “engaged in normal patrolling
activities with the purpose of identifying and apprehending
violators” to “exceed the maximum speed limit” without activating
either an audible signal or a visual signal. Id. § 41‐6a‐212(3)(b).
¶16 	In sum, the requirements for a police vehicle to exceed speed
limits differ depending on the situation: (1) the driver of a police
vehicle involved in a vehicle pursuit must activate both lights and
siren; (2) the driver of a police vehicle “not involved in a vehicle
pursuit” must activate either lights or siren; and (3) the driver of a
police vehicle engaged in “normal patrolling activities” need not
activate either. Neither party contends that Perez’s conduct fits into
the second category. The question, then, is whether the Board
abused its discretion in concluding that Perez was engaged in a
vehicle pursuit and not in normal patrolling activities.
¶17 	“Vehicular pursuit” is a defined term. South Jordan Police
Department General Order 41.2 defines department policies
“regarding Routine, Urgent, or Emergency call response . . . [and]
Vehicle 	Pursuits.” 	General 	Order 	41.2, 	South 	Jordan 	Police
Department (Mar. 15, 2005). It defines “vehicular pursuit” as “[a]n
active attempt by a law enforcement officer in an authorized
emergency vehicle to apprehend fleeing suspect(s) who are
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Perez v. South Jordan City
attempting 	to 	avoid 	apprehension 	through 	evasive 	tactics.”
Id. § 41.2.2(21). It also defines “paralleling” as “[p]articipating in
the pursuit by proceeding in the same direction and maintaining
approximately the same speed while traveling on an alternate
street or highway that parallels the pursuit route.” Id. § 41.2.2(14).
¶18 	The Board concluded that because Perez actively attempted
to apprehend a fleeing suspect when he sped north on 2700 West,
his actions fell within the department’s definition of vehicular
pursuit, quoted above. See id. § 41.2.2(21). The Board acknowledged
Perez’s argument that he was not actually pursuing the suspect but
concluded that “Perez’s interpretation of the traffic code would
create an exception . . . which swallows the rule.” Perez was
engaged in a high‐speed chase in an effort to apprehend a suspect.
The Board reasoned that if that effort falls within the definition of
“normal patrolling activities,” it could not “fathom when a pursuit
could ever occur, as opposed to a ‘normal patrolling activity.’”
Given the statute and the written pursuit policy, we determine that
the Board neither “abused its discretion” nor “exceeded its
authority” in reaching this conclusion. See Utah Code Ann. § 10‐3‐
1106(6)(c) (LexisNexis 2012).
¶19 	Perez argues that the report prepared by the Pursuit Review
Committee provides evidence that four of the committee members
“concluded Perez was not engaged in a pursuit while traveling
northbound on 2700 West.” In the report, several committee
members seemed to confine the term “pursuit” to Officer Nichols’s
efforts to apprehend the suspect. One committee member, for
example, described Perez as “finally locat[ing] the pursuit at about
3200 West”; another stated that Perez “made a judgment call to
proceed in a different direction than the pursuit itself.” However,
the fact that the committee members used the term “pursuit”
narrowly to refer to a single officer’s efforts to apprehend a suspect
does not foreclose a finding that Perez was also engaged in a
“pursuit” of the same suspect. A paralleling officer, for example, is
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Perez v. South Jordan City
“participating in the pursuit” even though he is traveling on a road
that only “parallels the pursuit route.” See General Order 41.2,
§ 41.2.2(14). In any event, the fact that members of the Pursuit
Review Committee may have used the term “pursuit” in a more
restrictive sense than the department’s pursuit policy does not
invalidate the Board’s conclusion that Perez was engaged in a
pursuit while driving north on 2700 West.
¶20 	Perez also argues that the department’s pursuit training
defined the term “pursuit” to refer to “an officer behind the vehicle
that’s trying to get away.” Perez testified that according to the
department’s training, officers are not “involved in the pursuit
when [they are] not present.” Based on Perez’s testimony, the
definition of “pursuit” he learned—and taught—in training was
narrower than the definition contained in the department’s policy
manual, applied by Chief Shepherd, and approved by the Board.
While we recognize the conflict between the definition Perez
testified he learned during training and the definition contained in
the department’s policy, the Board heard testimony regarding both
definitions and found that Perez engaged in a pursuit while
“speeding northbound on 2700 West.” Recognizing that reasonable
minds could differ on the question, we cannot say that in weighing
conflicting testimony and applying the police department’s written
pursuit policy, the Board either abused its discretion or exceeded
its authority. See Utah Code Ann. § 10‐3‐1106(6)(c); see also Davis v.
Department of Workforce Servs., 2012 UT App 158, ¶ 6, 280 P.3d 442
(“[W]e defer to the Board’s assessment of credibility and resolution
of conflicting evidence.” (citation and internal quotation marks
omitted)). 	We 	therefore 	decline 	to 	disturb 	the 	Board’s
determination that Perez engaged in a pursuit.
II. Termination
¶21 	Perez also contends that termination was disproportionate
to his misconduct and inconsistent with “the discipline the City
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Perez v. South Jordan City
meted out to other officers for similar misconduct.” To demonstrate
the inconsistency of the punishment he received, Perez introduced
a chart listing instances of South Jordan police officers committing
similar violations and the discipline each officer received for the
violation.
¶22 	The City responds that “neither the Chief nor the Appeal
Board were sanctioning [a] single incident.” “Instead, Perez’s
termination was a culmination of discipline resulting from several
instances of misconduct.” In light of Perez’s disciplinary history,
the City argues, “termination was discipline proportional to Perez’s
misconduct.” The City adds that Perez failed to present evidence
demonstrating that his discipline was inconsistent with discipline
the City imposed upon similarly situated officers in the past.
¶23 	The Board based its decision on two violations Perez
committed on May 28: his failure to activate his siren and lights
while in pursuit and his failure to activate his siren when entering
an intersection through a red light. We reject Perez’s challenge to
the pursuit violation, see supra Part I, and as noted above Perez
does not challenge the Board’s finding on the lesser intersection
violation, see supra ¶ 12 n.1. We therefore analyze the severity and
consistency of Perez’s discipline in light of his two May 28
violations and his disciplinary history.
¶24 	In assessing whether employee misconduct warrants the
sanctions imposed, this court has divided the inquiry into two
prongs: (1) Is the sanction “proportional”? and (2) Is the sanction
“consistent with previous sanctions imposed by the department
pursuant to its own policies”? Kelly v. Salt Lake City Civil Serv.
Comm’n, 2000 UT App 235, ¶ 21, 8 P.3d 1048; see also, e.g., Ogden
City Corp. v. Harmon, 2005 UT App 274, ¶ 16, 116 P.3d 973; Lucas v.
Murray City Civil Serv. Comm’n, 949 P.2d 746, 761 (Utah Ct. App.
1997). But this two‐pronged inquiry “should not be viewed as a
stand‐alone test for reviewing the validity of the Board’s decision
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Perez v. South Jordan City
relating to employee discipline.” Nelson v. City of Orem, 2013 UT 53,
¶ 29, 309 P.3d 237. Therefore, we “need not apply a rigid two‐part
test in every case to scrutinize a city appeals board’s decision.” Id.
¶ 30. Instead, we consider proportionality and consistency insofar
as those standards aid our determination of whether the Board
“abused its discretion or exceeded its authority.” Utah Code Ann.
§ 10‐3‐1106(6)(c) (LexisNexis 2012); see also Nelson, 2013 UT 53, ¶ 29.
¶25 	When an appeal board examines the proportionality of a
sanction, it “give[s] deference to the chief’s choice of punishment
because, as the head of the [department], he is in a position to
balance 	the 	competing 	concerns 	in 	pursuing 	a 	particular
disciplinary action.” Harmon, 2005 UT App 274, ¶ 17. An appeal
board’s deference to the department head should be broad—even
“the use of progressive discipline,” for example, “is committed to
the Chief’s discretion, based on the Chief’s determination of the
severity of the offense.” Lucas, 949 P.2d at 762.
¶26 	When challenging a sanction’s consistency, “the disciplined
employee must first make out a prima facie case by pointing to
specific 	instances 	or 	statistics, 	rather 	than 	relying 	on 	an
unsupported assertion of inconsistent punishment.” Kelly, 2000 UT
App 235, ¶ 30. Perez need not show that the disparity between his
treatment and the treatment of other employees “is motivated
by . . . animosity.” See id. But he must, “at a minimum, carry the
burden of showing some meaningful disparity of treatment
between [himself] and other similarly situated employees.” See id.
(emphasis added).
¶27 	Our review of the Board’s affirmance of Chief Shepherd’s
decision is guided by Phillips v. South Jordan City, 2013 UT App 183,
307 P.3d 659. Phillips worked for the same department and was
terminated by the same police chief for violating the same general
order as Perez. See id. ¶¶ 4–5. When Phillips appealed, the same
Appeal Board found that “Phillips’s conduct violated General
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Perez v. South Jordan City
Order 41.2.1 and his [pursuit] training,” “determined that his
disciplinary 	history 	fully 	justified 	the 	termination 	of 	his
employment,” 	and 	“affirmed 	Chief 	Shepherd’s 	decision 	to
terminate Phillips’s employment.” Id. ¶ 6.
¶28 	Phillips petitioned for this court’s review, asserting that the
discipline he received was “disproportionate to his conduct” and
“inconsistent with sanctions imposed on other officers in similar
circumstances.” Id. ¶¶ 16, 18. Like Perez, Phillips included a chart
“describ[ing] instances of conduct by . . . other officers, which
resulted in lesser discipline than Phillips’s termination.” Id. ¶ 18.
¶29 	This 	court 	held 	that 	Phillips 	failed 	to 	demonstrate
disproportionality or inconsistency. Id. ¶¶ 16, 18. In addressing the
proportionality of his discipline, Phillips failed to refute the Board’s
finding that his disciplinary record provided evidence of “a pattern
of poor judg[ment].” Id. ¶ 17 (alteration in original) (internal
quotation marks omitted). Phillips also did not include “the
performance histories or length of service with the City for each of
the six officers” appearing in his comparison chart, “which
information may explain or justify the lesser discipline.” Id. ¶ 18.
This court emphasized the importance of “detailed information
pertinent to a determination of whether the circumstances (not just
the actions) of other officer sanctions were similar.” Id.
¶30 	Like Phillips, Perez argues that his termination was not
proportional to the violations he committed. But also like Phillips,
Perez has failed to demonstrate the inconsistency of his discipline
by identifying similarly situated officers who received more lenient
punishments. A disciplined employee must do more than show
that other employees received lighter punishments for similar
offenses. The disciplined employee must identify employees in
similar 	circumstances—employees 	with 	similar 	disciplinary
histories and service time, for example—who received lighter
punishments for similar offenses. See Kelly v. Salt Lake City Civil
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Perez v. South Jordan City
Serv. Comm’n, 2000 UT App 235, ¶ 30, 8 P.3d 1048; see also Phillips,
2013 UT App 183, ¶ 18. Phillips’s chart, which listed South Jordan
police officers who had committed traffic violations and the
discipline they had received, failed to provide that level of detail.
See Phillips, 2013 UT App 183, ¶ 18.
¶31 	Perez’s chart is similar in this respect. It provides the name
of each violation, the name of the officer committing the violation,
the date of the violation, and the discipline the officer received for
each violation. But as the Board emphasized, Perez submitted his
chart “without any additional evidence, such as testimony fully
describing any of the traffic incidents described.” We note that the
chart also contained no details of the officers’ disciplinary histories,
making it impossible to determine whether the officers were first‐
time offenders or, like Perez, repeat offenders of department
policy. In short, the Board found that Perez failed to provide
information detailing the discipline levied against similarly situated
officers and that Perez therefore failed to establish a prima facie
case of inconsistent discipline.
¶32 	On this record and in view of the virtually identical facts of
Phillips, we conclude that the Board did not abuse its discretion or
exceed its authority in finding that Perez’s termination was not
inconsistent with past department discipline. See Utah Code Ann.
§ 10‐3‐1106(6)(c).
¶33 	Perez also argues that the police department improperly
considered evidence that had been purged from his employee file.
But for the purged evidence, Perez reasons, Chief Shepherd
“certainly would not have demoted Perez” in July 2008 or
“terminated his employment” in May 2009.
¶34 	This argument proceeds on a faulty premise. The Board
relied 	on 	three 	prior 	disciplinary 	actions: 	the 	April 	2008
suspension, the July 2008 demotion, and the May 2009 oral
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Perez v. South Jordan City
admonition. None of these prior disciplinary actions had been
purged from Perez’s file. Perez now attempts to belatedly challenge
the April 2008 suspension on the ground that it was tainted by
Chief Shepherd’s reliance on purged prior discipline. This line of
attack is unavailing for at least two reasons. First, the April 2008
suspension became final long ago. The record of that case is not
before 	us, and Perez 	has 	suggested no procedural path to
collaterally attack it now. Second, the Board rejected as a factual
matter Perez’s contention that the prior purged discipline affected
his April 2008 sanction. Given the lack of contrary evidence and the
Board’s deference to Chief Shepherd—who was “in a position to
balance 	the 	competing 	concerns 	in 	pursuing 	a 	particular
disciplinary action,” see Ogden City Corp. v. Harmon, 2005 UT App
274, ¶ 17, 116 P.3d 973—we conclude that the Board did not abuse
its discretion or exceed its authority in finding that Perez’s purged
disciplinary history played no role in his termination. See Utah
Code Ann. § 10‐3‐1106(6)(c) (LexisNexis 2012).
CONCLUSION
¶35 	When Perez sped north on 2700 West to rejoin Nichols and
to apprehend the fleeing vehicle, he engaged in a vehicular pursuit
according to the police department’s own definitions. Those
definitions 	provide 	reasonable 	support 	for 	the 	Board’s
determination that Perez was engaged in a pursuit when he failed
to activate his lights and siren. The Board did not abuse its
discretion when it found that Perez’s two May 28 violations, along
with his disciplinary history, provided adequate support for Chief
Shepherd’s decision to terminate him. We therefore decline to
disturb the Board’s order affirming Perez’s termination.
20100545‐CA 	2014 UT App 31	14