Brown v. Sandy City Appeal Board

2014 UT App 158
_________________________________________________________
THE UTAH COURT OF APPEALS
SEAN BROWN,
Petitioner,
v.
SANDY CITY APPEAL BOARD,
Respondent.
Opinion
No. 20130433-CA
Filed July 3, 2014
Original Proceeding in this Court
Bret W. Rawson and Nate N. Nelson, Attorneys
for Petitioner
Stanley J. Preston, Bryan M. Scott, and Brandon T.
Crowther, Attorneys for Respondent
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
PEARCE, Judge:
¶1 Sean Brown petitions for judicial review of the Sandy City
Appeal Board’s (the Board) decision to uphold his termination
from the Sandy City Police Department. We decline to disturb the
Board’s decision.
BACKGROUND
¶2 The Sandy City Police Department employed Brown as a
detective. Although Brown’s formal reviews over his seventeen-
year career with the department had been exemplary, he also had

Brown v. Sandy City Appeal Board
1. Dr. Heather Walker, another psychologist, also participated in
Brown’s evaluation and the issuance of the resulting report.
2. The record suggests that the police chief’s decision to allow
Brown to use his accrued leave to extend his rehabilitation period
was a measure of leniency and an accommodation not provided to
other employees.
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a history of difficulty getting along with other detectives. On April
24, 2012, the police chief placed Brown on paid administrative leave
based upon the chief’s perception that Brown was not
psychologically fit for duty. This perception arose from Brown’s
anger toward certain other detectives and his overall volatile and
antisocial demeanor. The police chief required Brown to submit to
a fitness for duty evaluation as a condition of reinstatement.
¶3 As part of that evaluation, Brown underwent an
examination by psychologist Dr. Mark Zelig. On July 16, 2012,1
Zelig issued a report concluding that Brown suffered from a
personality disorder with prominent paranoid features and that, as
a result, he was psychologically unfit for duty under Utah’s Peace
Officer Standards and Training (POST) requirements. Zelig reached
this conclusion, in part, by looking to California’s POST standards
for guidance regarding police officer personality disorders. Zelig
expressed concern that Brown’s pattern of defensiveness and
distancing himself from others in the workplace had become
markedly more pronounced in the prior twelve months.
¶4 After Zelig issued his report, Brown sought and was granted
twelve weeks of medical leave to obtain treatment and establish
that he was fit for duty. During this time, he attended
approximately twelve counseling sessions with a licensed clinical
social worker. Upon the expiration of the twelve weeks of medical
leave, Brown was allowed to use his accrued sick and vacation
leave to obtain further time for treatment and reevaluation. Brown2
depleted his accrued leave on February 4, 2013. The police chief
terminated Brown that same day because the chief believed Brown

Brown v. Sandy City Appeal Board
3. Just prior to Brown’s termination, the social worker provided a
letter to the police chief opining that Brown was not a danger to
himself or others and that he did not appear to have any significant
mental health issues that would interfere with his police duties.
However, in his termination letter to Brown, the chief explained
that the social worker’s “training and experience do not match that
of Dr. Zelig” and that her statement “was not sufficiently specific
to provide helpful guidance to me.”
4. Shortly before the records were released to Blum, Brown left a
voicemail message for the police chief stating that Brown would
also like Zelig to reevaluate him. However, that reevaluation never
took place.
20130433-CA 3 2014 UT App 158
had not provided evidence of rehabilitation sufficient to allow the
chief to conclude that Brown had regained his fitness for duty.3
¶5 During his leave period, Brown expressed a desire to
undergo a reevaluation. On July 30, 2012, Brown requested that
Zelig and the police chief release Zelig’s report and the data
underlying it to another psychologist, Dr. Lawrence Blum, for
purposes of reevaluating Brown’s fitness for duty. Sandy City
released those materials to Blum almost four months after the
request, on November 26, 2012. Brown eventually met with Blum4
for a two-and-a-half-hour interview on February 7, 2013, three days
after Brown’s termination. Blum concluded that Brown was fit for
duty.
¶6 Brown appealed his termination to the Board, which held a
two-day hearing. Brown, Zelig, Blum, and other witnesses testified.
After the hearing, the Board issued a written decision denying
Brown’s appeal and upholding his termination. The Board’s order
summarized its findings:
Specifically, the Board finds that, given Mr. Brown’s
conduct, [the police chief] was justified in requesting
that Mr. Brown submit to a fitness for duty
evaluation. The Board further finds that, after Mr.

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20130433-CA 4 2014 UT App 158
Brown was declared unfit for duty, he failed to
submit any credible evidence that he was fit for duty,
and therefore able to return to work, prior to the time
that Mr. Brown had exhausted his [medical] leave,
and his accrued sick leave and vacation leave.
Therefore, the Board determines that [the police
chief] had no other option but to terminate Mr.
Brown on February 4, 2013, in accordance with the
City’s Leave Without Pay Policy, based on the facts
known to [the police chief] at the time of Mr. Brown’s
termination.
The Board expressly accepted Zelig’s conclusions that Brown
suffered from a personality disorder and was not fit for duty.
¶7 The Board acknowledged both the social worker’s letter
detailing her counseling of Brown and Blum’s post-termination
assessment of Brown’s fitness, but it also explained why it did not
find either assessment to be credible evidence that Brown had
regained his fitness for duty. The Board also found that Brown’s
termination “was consistent with the manner in which [the police
chief] has handled similarly situated employees related to fitness
for duty.” In response to Brown’s argument that he had not been
afforded an opportunity to adequately address Zelig’s report, the
Board “determine[d] that Mr. Brown was given ample time to
either submit a contrary report to that of Drs. Zelig and Walker
declaring Mr. Brown fit for duty, or to receive treatment and have
Dr. Zelig perform a re-evaluation.” Brown now seeks judicial
review of the Board’s decision.
ISSUES AND STANDARDS OF REVIEW
¶8 Brown’s arguments fall into two general categories. First, he
raises multiple challenges to the Board’s conclusion that he was
unfit for duty, and particularly its reliance upon Zelig’s report,
testimony, and conclusions. Second, Brown argues that the Board
should not have upheld his termination in light of the Sandy City

Brown v. Sandy City Appeal Board
5. Brown urges us to evaluate the Board’s decision under the test
that this court has previously applied in employee discipline cases.
See Harmon v. Ogden City Civil Serv. Comm'n, 2007 UT App 336, ¶ 6,
171 P.3d 474 (stating that an employee seeking relief from a
disciplinary termination “must show either (1) that the facts do not
support the action taken by [employer] or (2) that the charges do
not warrant the sanction imposed”); Kelly v. Salt Lake City Civil Serv.
Comm'n, 2000 UT App 235, ¶ 21, 8 P.3d 1048 (“[T]he second
question—‘do the charges warrant the sanction imposed’—breaks
down into two sub-questions: First, is the sanction proportional;
and second, is the sanction consistent with previous sanctions
imposed by the department pursuant to its own policies.” (citation
omitted)). Although these inquiries remain a “useful framework”
in disciplinary cases, the Utah Supreme Court has instructed that
they “should not be viewed as a stand-alone test for reviewing the
validity of the Board’s decision relating to employee discipline.”
Nelson v. City of Orem, 2013 UT 53, ¶ 29, 309 P.3d 237. Further, these
inquiries were developed in the context of employee discipline
cases. This case is not a disciplinary matter but instead involves an
evaluation of Brown’s fitness for duty. For these reasons, we
review the Board’s decision under the general abuse of discretion
standard Nelson outlines and do not attempt to shoehorn our
analysis into the framework Harmon and Kelly employed.
20130433-CA 5 2014 UT App 158
Police Department’s prior practices involving fitness for duty
evaluations and its failure to facilitate his request for a timely
reevaluation. Our review of the Board’s decision is “statutorily
limited to an abuse of discretion standard of review.” Nelson v. City
of Orem, 2013 UT 53, ¶ 26, 309 P.3d 237; see also Utah Code
Ann.§ 10-3-1106(6)(c) (LexisNexis 2012).5
ANALYSIS
I. Brown’s Fitness for Duty
¶9 Brown raises multiple arguments challenging the Board’s
acceptance of Zelig’s conclusion that Brown suffered from a

Brown v. Sandy City Appeal Board
6. Presumably, if Brown’s personality did not functionally impair
his ability to perform his duties, Zelig would not have made either
a diagnosis of a personality disorder or a determination that Brown
was unfit for duty.
20130433-CA 6 2014 UT App 158
personality disorder that rendered him unfit for duty. Brown also
argues that the Board abused its discretion by rendering its own
“expert” opinion that Brown’s recording of conversations with
others in his chain of command was consistent with the paranoid
tendencies diagnosed by Zelig. We address these arguments in the
order raised in Brown’s appellate brief.
¶10 Brown first argues that the Board erred in relying on Zelig’s
logic in concluding that Brown could not meet Utah POST
standards. Zelig testified that Brown failed to meet the POST
standards because Brown had a mental condition—a personality
disorder—that adversely affected the performance of his duties as
a police officer. However, according to Brown, a personality
disorder is defined as “a functional impairment that adversely
affects one’s ability to do his job.” Brown argues that Zelig’s logic
is flawed because under that definition of a personality disorder,
“Brown cannot have [the] referenced mental condition without the
existence of a functional impairment and thereby a personality
disorder.” Brown, in essence, argues that Zelig engaged in circular
reasoning to reach the conclusion that the Board adopted.
¶11 We see no logical problem with Zelig’s diagnosis. Zelig’s
conclusions that Brown had a personality disorder and that he was
unfit for duty are not inconsistent or otherwise logically flawed
merely because both conclusions incorporate the concept of
functional impairment. To the contrary, Zelig’s use of functional
impairment in his definitions ensures that an officer’s duty rating
reflects Zelig’s opinion about whether the officer can functionally
perform the duties of a police officer.6
¶12 Second, Brown argues that the Board abused its discretion
when it relied on Zelig’s use of California POST standards in his

Brown v. Sandy City Appeal Board
7. These “dimensions” consisted of definitions and examples of the
three concepts of “social competence,” “teamwork,” and
“emotional regulation/stress tolerance.”
20130433-CA 7 2014 UT App 158
evaluation of Brown’s fitness for duty. Brown argues that he is not
required to meet California POST standards and that the Board’s
reliance on Zelig’s conclusions in light of his use of the California
standards was arbitrary, capricious, and unreasonable.
¶13 We readily agree with Brown that Utah law enforcement
officers are not required to comply with the POST standards
promulgated by other jurisdictions. However, Brown significantly
overstates how Zelig used the California standards. As Zelig
explained in his report, his opinion of Brown’s fitness for duty
“was informed by consulting published standards of psychological
competence applicable to peace officers,” and the California
standards included certain “dimensions” that applied to Brown’s
diagnosis.7
¶14 We view Zelig’s consideration of the California POST
standards as analogous to the way that a court might use case law
from sister jurisdictions—not as binding authority but as a
reference to consider how other courts have analyzed and resolved
a particular issue. Here, California and Utah apparently share a
common requirement that peace officers be mentally fit for duty.
However, unlike Utah, California has provided additional
guidance for evaluating officers’ mental competence.
¶15 We see nothing wrong with Zelig’s use of California’s more
informative standards to flesh out Utah’s general requirement of
mental competence as it applied to Brown. Further, Zelig
ultimately concluded that Brown’s functional impairments “are
significant and impair his ability to meet the California POST
standards, an applicable Sandy City position description, and to
satisfy the requirements set forth by Utah’s POST as it pertains to
peace officer certification.” (Emphasis added.) Thus, Zelig did

Brown v. Sandy City Appeal Board
8. Zelig’s consultation of the California standards may have proved
problematic if he had imported any additional requirements into
the Utah standards. However, Brown has not pointed to any
specific example of how Zelig’s consideration of the California
standards bled into the Board’s analysis of the Utah standards or
added any additional element to the Utah standards.
20130433-CA 8 2014 UT App 158
determine that Brown was unfit for duty under the Utah standards
that directly applied to him.8
¶16 Third, Brown argues that Zelig’s methodology was flawed
because Zelig failed to review Brown’s seventeen-year performance
history, failed to follow up with officers who had a good working
relationship with Brown, and failed to substantiate the facts that
Brown cited to explain his feelings of resentment toward a specific
coworker. Zelig’s report demonstrates that he was well aware of
Brown’s long and successful career, the fact that there were officers
with whom Brown maintained a good working relationship, and
Brown’s version of the events underlying his disputes with various
coworkers. Thus, Brown significantly overstates Zelig’s alleged
failures.
¶17 Even if Zelig could have placed greater weight on the factors
Brown identifies, “‘in most cases, objections to the inadequacies of
a study are more appropriately considered an objection going to
the weight of the evidence rather than its admissibility.’” Gunn Hill
Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT
App 20, ¶ 43, 269 P.3d 980 (quoting Hemmings v. Tidyman’s Inc., 285
F.3d 1174, 1188 (9th Cir. 2002)). Brown had ample opportunity at
his hearing to cast doubts on Zelig’s conclusions by cross-
examining him on the alleged flaws in his methodology. Cf. id.
(“Vigorous cross-examination of a study’s inadequacies allows the
jury to appropriately weigh the alleged defects[.]” (alteration in
original) (citation and internal quotation marks omitted)). Despite
the flaws that Brown alleges, the Board expressly noted that it was
“impressed by [Zelig’s] methodology.” In light of these
considerations, we will not disturb the Board’s decision because of
the alleged flaws in Zelig’s analysis.

Brown v. Sandy City Appeal Board
20130433-CA 9 2014 UT App 158
¶18 Fourth, Brown argues that Zelig’s report could not support
a finding of his unfitness because the report stated that Brown
could be amiable with his coworkers immediately upon returning
to work if his employment was conditioned on it. Brown’s
argument is unpersuasive in light of Zelig’s entire analysis of this
issue:
Detective Brown appears to be a dedicated officer,
whom we suspect would exert his best effort in
treatment if told that continued employment was
contingent on such participation. In such a scenario
we suspect that Detective Brown would immediately
bridle his underlying suspiciousness and hostility,
and would be able to present a convincing facade of
amiability, but without resolution of the underlying
defect which drove this problem to the forefront.
Learning to replace his vigilance and mistrust of
others with a reasonable level of underlying trust in
his coworkers which would allow him to be a fully
functioning team member is likely to be a slow-going
process. In the meantime, any surface amicability
might collapse in a high stress situation. Thus, we are
concerned that even with a concerted effort, that
change will be slow and tedious.
Zelig’s full statement reveals a concern that any facade of
amicability that Brown might be able to display would be just that,
a facade that could crumble in the face of the high stress situations
that are common to police work. We see no inconsistency between
this concern and Zelig’s ultimate conclusion that Brown was
mentally unfit for duty.
¶19 Finally, Brown argues that the Board abused its discretion
when it noted that Brown’s conduct of surreptitiously recording
conversations with supervisors, which he admitted to at the
hearing, “is consistent with [Zelig’s] opinion regarding Mr.
Brown’s paranoia.” We agree with Brown that the Board, which
apparently lacked any psychological expertise, should not have

Brown v. Sandy City Appeal Board
20130433-CA 10 2014 UT App 158
expanded upon Zelig’s conclusions in this fashion. See Langlitz v.
Board of Registration of Chiropractors, 486 N.E.2d 48, 53 (Mass. 1985)
(“[A]n agency or board may not sit as a silent witness where expert
testimony is required to establish an evidentiary basis for its
conclusions . . . .”).
¶20 Brown’s psychological condition was the primary disputed
issue in this matter and was the subject of testimony by multiple
experts. The Board should have limited its statements about
Brown’s mental condition to the opinion evidence presented
through those experts. However, the Board’s finding in this regard
is akin to dicta, and given the Board’s acceptance of Zelig’s
professional opinion, we see no reasonable possibility of a more
favorable result for Brown had the Board refrained from playing
armchair psychologist on this issue. We therefore do not disturb
the Board’s decision on this basis, even though the Board’s
comment about paranoia was not appropriate.
II. Brown’s Efforts to Obtain a Reevaluation
¶21 Brown also raises two arguments pertaining to his efforts to
reestablish his fitness for duty through rehabilitation and
reevaluation. First, he argues that the Board erred by ignoring his
pre-termination request to be reevaluated and the police chief’s
failure to respond to that request. Second, he argues that the Board
erred by determining that he was given ample time to provide a
second opinion concerning his fitness for duty.
¶22 Brown’s first argument is premised on an October 2012
voicemail message from Brown to the police chief, wherein he
requested a reevaluation of his fitness for duty. Brown argues that
the Board erred by ignoring the fact that he had sought, and been
denied, a reevaluation. The record reveals that Brown’s voicemail
apparently prompted some communication between the police
chief and Zelig, but Zelig never reevaluated Brown’s fitness for
duty.

Brown v. Sandy City Appeal Board
20130433-CA 11 2014 UT App 158
¶23 The Board’s decision did not directly discuss the voicemail,
but it did generally address Brown’s efforts to be reevaluated. The
decision noted that Brown’s counsel was “well aware of the process
necessary to request a re-evaluation” because counsel had obtained
a reevaluation of another officer by submitting a written request
accompanied by a release of the officer’s rehabilitative treatment
records. The Board then stated, “No such formal request for a
reevaluation of Mr. Brown by Dr. Zelig was ever sent to Dr. Zelig
from Mr. Brown’s attorneys in this matter, nor was a signed release
sent to the City regarding any on-going psychological counseling
of Mr. Brown.”
¶24 In light of the Board’s observations, we cannot agree with
Brown’s characterization that the Board “categorically ignored” his
request. To the contrary, it appears that the Board’s statements
were aimed at distinguishing Brown’s single informal voicemail
request from the more formal request that had previously resulted
in the reevaluation of another officer. More importantly, Brown
fails to explain satisfactorily why his single voicemail excused him
from any further attempts to obtain a reevaluation in the months
between the October 2012 voicemail message and his February
2013 termination. Brown also fails to establish that any reevaluation
by Zelig would have resulted in the conclusion that Brown had
regained his fitness for duty, and he thus fails to demonstrate any
prejudice resulting from the unavailability of a reevaluation. For
these reasons, we are unpersuaded that the Board abused its
discretion relating to its treatment of Brown’s request for
reevaluation.
¶25 Brown next argues that the Board erred when it concluded
that he was given ample time to obtain a second opinion regarding
his fitness for duty. The primary focus of Brown’s argument is that
Sandy City took four months—from July 30, 2012, until November
26, 2012—to release Zelig’s report and the underlying data to Blum
so that he could provide a second opinion on Brown’s fitness for
duty. Again, Brown provides no explanation for his own failure to
follow up promptly on the release request when the records were
not forthcoming. Further, Brown fails to explain why Blum’s

Brown v. Sandy City Appeal Board
20130433-CA 12 2014 UT App 158
review of Zelig’s report and data could not have occurred in the
ten-week period between the actual release of the materials to
Blum and Brown’s termination in February 2013. Although both
sides could have acted with more diligence, we cannot conclude
that the Board’s determination that Brown had sufficient time to
secure a second opinion on his duty fitness constitutes an abuse of
discretion.
CONCLUSION
¶26 We conclude that Brown has failed to establish any flaw in
Zelig’s methodology or conclusion that would render the Board’s
reliance on Zelig’s report an abuse of discretion. We also conclude
that Brown has failed to demonstrate any abuse of discretion by the
Board resulting from its treatment of his efforts to obtain either
reevaluation by Zelig or a second opinion from Blum or another
qualified person. For these reasons, we decline to disturb the
Board’s decision upholding Brown’s termination from the Sandy
City Police Department.