BEFORE THE STATE OF UTAH CAREER SERVICE REVIEW OFFICE LISA STEED, Grievant, v.

UTAH DEPARTMENT OF PUBLIC SAFETY, Agency. : : : : : : : : : : :

FINDING OF FACT, CONCLUSIONS OF LAW AND DECISION

Case No. 2010/CSRO/HO 064 Hearing Officer Katherine A. Fox

The Step 4 hearing to determine the above-captioned matter was held on June 3, 2013, and June 4, 2013, before Katherine A. Fox, Career Service Review Board Hearing Officer (Hearing Officer). Lisa Steed (Grievant) was present and represented by Gregory G. Skordas, Attorney at Law. The Utah Department of Public Safety (DPS or Agency) was represented by Yvette Donosso, Assistant Attorney General. Colonel Daniel Fuhr (Col. Fuhr) was present as the Management Representative. A certified court reporter made a verbatim record of the

proceedings. Witnesses (10 for the Grievant and 5 for the Agency)1 were placed under oath and

Grievant witnesses included: Lisa Steed (Grievant), Kim Farnsworth (UHP), Sgt. Shane

Nordfelt (UHP), Lt. Ed Michaud (UHP), Rick Westmoreland (Davis County Deputy Attorney), Rebecca Hyde Skordas (criminal defense attorney), Janice Woods (former West Valley City Department of Motor Vehicles employee), Karen Davis (former Dept. of Motor Vehicles employee), Craig Kleinman (prosecutor), and Dawn Emery (prosecutor). Witnesses for the Agency included: D. Lance Davenport (Commissioner of DPS), Col. Daniel Fuhr (Utah Highway Patrol or UHP), Troy Rawlings (Davis County Attorney), Sgt. Steven P. Gamvroulas (UHP), and Major Michael (Mike) Rapich (UHP) as a rebuttal witness.

testified, and documentary evidence (9 Stipulated exhibits, 15 exhibits for the Grievant and 15 exhibits for the Agency)2 was received into the record. AUTHORITY The authority of the Career Service Review Office (CSRO) to hold this Step 4 hearing is found at Utah Code Ann. 67-19a-406 and Utah Admin. Code, R137-1-1 et seq. Having heard and reviewed the evidence of record, and being otherwise fully advised in the premises, the Hearing Officer (Presiding Officer, Utah Code Ann. 63-46b-2 (1)(h)(i)), now makes and enters the following Findings of Fact, Conclusions of Law and Decision: ISSUES The issues presented by this case are: (1) Was Grievant terminated for just cause or for the good of the public service as provided for in Utah Code Ann. 67-19-18; and (2) if not, what is the appropriate remedy? FINDINGS OF FACT 1. Grievant began her law enforcement career as a dispatcher. She obtained a Bachelor of Science degree at Weber State University, in criminal justice, in 2001, and thereafter became a road trooper. In March 2009, she joined the DUI Squad. 2. Grievants history as a trooper was impressive. With numerous awards and accolades year after year, her career could even be called exceptional. Grievants attorney submitted a binder

Exhibits were marked as A for the Agency, G for Grievant and S for stipulated

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with nearly an inchs worth of documents, including successful performance evaluations, attesting to a myriad of achievements during her career. 3. Kim Farnsworth was one of Grievants immediate supervisors for a period of time. Grievant and Ms. Farnsworth shared a close personal friendship. Although Trooper Farnsworth recommended Grievant for a number of recognitions and awards, she by no means was alone. Col. Daniel Fuhr, Sgt. Jed Jorgenson, Sgt. Brian Nelson, Sgt. Scott Barnett, Lt. Kirk Midaugh, Sgt. Mike Loveland, Lt. L. Edward Michaud, Trooper Shaun McWilliams, Sgt. Robert B. Nixon, Lt. Mike McKay, Sgt. Shane Nordfelt, Sgt. Troy Denney, Sgt. Matt Smith, Sgt. Ted Tingey, Cpt. Michael Rapich, Cpt. Michael J. Kuehn, and a host of others, including members of the public, recognized Grievants impressive performance record and exemplary abilities. 4. The 2010 DHRM Job Description for the position of Officer addresses the Purpose and Distinguishing Characteristics of the position. As the title reflects, certain factors distinguish the position of Officer from other job(s) in a series of jobs. The distinguishing characteristics provide that such individuals, enforce wildlife laws, rules and regulations and/or provide law enforcement services including highway patrol, traffic control, accident and criminal investigation, special enforcement activities, court testimony, first aid, coordination and/or assistance in enforcement efforts. (Emphasis added) (Ex. S-4) These characteristics are not listed under the requirements section labeled Knowledge, Skills and Abilities (e.g., communicate information and ideas clearly, investigative techniques, etc.) or Other Requirements (e.g., POST certification, physical exertion, etc.).

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5. On March 11, 2010, Justice Court Judge L. G. Buz Cutler issued a ruling in a motion to suppress hearing, where the defendant contested the legal basis of a traffic stop made by Grievant. (Ex. A-3) Judge Cutler concluded that Grievants testimony was not believable and her desire to pursue an ongoing departmental investigation creates a significant suspicion of the officers true intent to make contact with this defendant and other patrols exiting the convenience store. 6. On May 5, 2010, Third District Court Judge Robert P. Faust issued a ruling in a motion to suppress hearing, where the defendant sought to suppress evidence relating to intoxilyzer results. The defendant also had moved to suppress evidence for lack of probable cause and dismiss the case for due process violations. (Ex. A-4) Judge Faust denied the defendants motions to suppress, but also observed in his ruling, Although the Court is troubled by Trooper Steeds failure to follow UHP policies., followed by the footnote, It is especially troubling in light of evidence that Trooper Steed has made this error in the past. 7. In mid-April of 2010, Grievant was told that she should advise dispatch whenever she exited her vehicle. On May 1, 2010, Grievant attended a section meeting where she and other troopers were instructed that only if there were exigent circumstances and at least two officers were present, should they proceed with a blood draw. 8. In the early morning hours of May 2, 2010, after obtaining a warrant, the Grievant did a blood draw, by herself, with no other officer present, after the subject of the DUI stop refused to take a chemical test. The subject became agitated and, because Grievant had taken off his

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handcuffs, removed the needle and threatened Grievant with it. Grievant was able to place the subject in custody with the help of multiple civilians. Grievant did not notify dispatch, as earlier instructed, until after she made the arrest. On May 6, 2010, Grievant once again drew blood from a suspect on the roadside with no other officers present. 9. On June 1, 2010, Grievant Received a Letter of Reprimand. The disciplinary action was taken because Grievant took a non-consensual blood draw on April 30, 2010. Grievant also engaged in misconduct in two other separate incidents occurring on May 2, 2010, and May 6, 2010, disobeying two different directives. Those directives were to advise dispatch when she left her vehicle on a traffic stop and observe constraints in conjunction with blood draws.(Ex. S-9) 10. Grievant did not contest the allegations in the June1, 2010, Letter of Reprimand. 11. In late April 2012, Third District Court Judge Mark S. Kouris issued a ruling in another Trooper Steed case (the Alexander Case), which was eventually dismissed. (Ex. A-12 and A-15) The defendant in that case had been pulled over on January 5, 2010, because Grievant said that his license plate light was burned out. The defendant (who had prior felony convictions and admitted using heroin that day) was arrested for DUI, having drug paraphernalia in his car, and possession of controlled substances. Grievants dashcam video, however, was inconclusive regarding whether the license plate light was out, which made the truthfulness of her court testimony crucial in the case. 12. At first, the Judge Kouris denied Alexanders motion to suppress but later

reconsidered upon the defendants attorney submitting evidence that Grievant had been disciplined

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for violating similar rules governing stops. In granting the motion to suppress the evidence, Judge Kouris ruled, the issue of [her] credibility coupled with the lack of any corroborating evidence about whether the light was, in fact, out on Alexanders vehicle, made the evidence unreliable. If in fact she had no reason to pull him over, thats an illegal stopwe having nothing to corroborate what she saidthe video doesnt help, the defendants testimony doesnt help. 13. On June 20, 2012, Judge Robert Dale in the Second District Court in Davis County (Farmington) heard a motion to suppress evidence (the Nieder Case), which he granted. (Ex. A-9) Because defendant had contested the basis of Grievants initial traffic stop, Grievants credibility became a crucial issue. In pertinent part, Judge Dales Order stated the following: The Court reviewed the detailed written motions and memorandums filed by the parties and also reviewed the testimony of the preliminary hearing in its analysis of the defendants motion. The Court felt that Trooper Steeds testimony was exaggerated in an effort to support and sustain her decision to arrest the defendant. These exaggerations cause the Court to pause and have concerns as they seemed to go beyond what the Court observed on the video. The Court further finds there was very inconsistent testimony between the preliminary hearing and the evidentiary hearing, specifically as to the reason there was no audio recording of the traffic stop. The Court finds the exaggerations and inconsistencies go hand-in-glove with respect to the credibility of the Trooper. Overall, the Court did not feel the Trooper was credible and questions the alleged facts leading up to the warrantless arrest of the defendant. 14. The Davis County Deputy Attorney who prosecuted the Neider Case, Rick

Westmoreland, did not sign Judge Dales Order approved as to form and content. He testified that he declined to sign the order because he did not agree with the judges observations.

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15. On November 3, 2010, Grievant received a second Letter of Reprimand in conjunction with a DUI arrest on March 10, 2010. (Ex. S-9) In this incident (the Faircloth Case), Grievant issued a preliminary breath test (PBT) to the subject of the arrest before administering field sobriety tests (FST), in violation of DPS policy 3-3-17. II.C. Grievant also removed her external microphone before her initial approach to the suspects vehicle, in violation of DPS policy 3-3-16. III.A.2. When she returned to her vehicle to fix her detached video camera, she reattached the microphone. Because the camera was not operating and Grievant did not wear her microphone, there was neither audio nor video recording of the tests. 16. Grievant did not contest the allegations in the November 3, 2010, Letter of Reprimand. 17. On April 25, 2012, Grievant was placed in a Temporary Transitional Assignment (TTA) in conjunction with a pending internal criminal investigation into allegations of misconduct. (Ex. S-9) In accordance with DHRM rules, while on TTA, Grievant was not allowed to exercise any peace officer authority, drive a marked patrol vehicle, or use any equipment such as a badge, uniform, or weapon. 18. On August 3, 2012, Grievant was officially notified by letter from Sgt. Steven P. Gamvroulas that she was the subject of an Internal Affairs investigation (IA Investigation) directed by Col. Daniel Fuhr. The focus of the IA Investigation consisted of allegations of perjury and rule violations. (Ex. A-1)

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19. On September 5, 2012, DPS concluded its IA Investigation and issued its report. (Ex. A-1) The Agency reviewed and relied on the IA Investigation in reaching its decision to terminate Grievant. 20. The IA Investigation concluded, in part, the following: (1) On April 24, 2012, Judge Mark Kouris found Grievants testimony in a hearing to be suspect and not credible; (2) the Salt Lake County District Attorneys Office, the Davis County Attorneys Office, and the Salt Lake City Attorneys Office representatives, all stated that Grievants credibility and value as a witness was severely jeopardized because of her testimony; and (3) those representatives all stated that any case where Grievant was the sole witness, without corroborating evidence, would be dismissed. 21. The IA Investigation sustained the allegations that Grievant violated DPS Policy & Procedure 340.3.2 (any conduct or pattern of conduct that would tend to disrupt, diminish or otherwise jeopardize public trust and fidelity in law enforcement). 22. The IA Investigation sustained the allegations that Grievant violated DPS Policy & Procedure 105 Code of Conduct, in relevant part (employees may be disciplined for their conductwhen such conduct adversely affects the efficiency, harmony, or good order of the Department; or the employees conductcould reasonably cause the public to lose confidence in the Department). 23. The IA Investigation did not sustain allegations of criminal violations of Section 78-8502, False or Inconsistent Material Statements (perjury), where a person is guilty of a felony of the second degree if in any official proceeding if: (1) He makes a false material statement under

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oath or affirmation or swears or affirms the truth of a material statement previously made and he does not believe the statement to be true; or (2) He makes inconsistent material statements under oath or affirmation, both within the period of limitations, one of which is false and not believed by him to be true. 24. The Agency issued an Intent to Discipline-Termination letter (Letter of Intent) dated November 1, 2012. (Ex. S-9) The Letter of Intent recommended that Grievant be terminated for a publicized finding by a Third District Court judge in April 2012, that Grievants testimony in a prior hearing was not truthful. The Letter of Intent observed that the judges decision directly affects your ability to effectively testify before courts on matters you have been involved in as a certified officer, which also adversely affects the efficiency, harmony and good order of the Department. (Ex. S-5) 25. The Letter of Intent also referenced a press release from the Davis County Attorneys Office, issued on April 26, 2012, by Troy Rawlings. The release stated, in pertinent part, If there is sufficient evidence for a conviction completely independent of Trooper Steed (we dont need her as a witness at all or only need her for minor foundational matters such as describing an item of evidence that has verification independent of her; and we address her credibility warts in court on direct examination ourselves), the case might continue. (Emphasis in the original) The release also stated, We do not want those who have actually violated the law to escape justice due to the credibility problems of Trooper Steed if we can prove the case independent of her. (Ex. S-6) The

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Letter of Intent further stated that other prosecutors have also expressed reservation about prosecuting your cases. 26. In recommending that Grievant be terminated, the Letter of Intent stated, As a certified officer, an essential function of your position is to effectively provide testimony in court proceedings. As you are no longer deemed a credible witness, you no longer meet the

requirements of your position as a Utah Highway Patrol Trooper. 27. At the same time the Letter of Intent was issued, while her case was being investigated and reviewed, Grievant was placed on administrative leave with pay. (Ex. S-9) On November 27, 2012, after a meeting with Commissioner D. Lance Davenport, the Final Agency DecisionTermination (Final Decision)(Ex. S-9) was issued, severing Grievants employment. The Final Decision referenced the allegations set forth in the earlier Letter of Intent as the basis for the decision. 28. The publicity surrounding Grievant was widespread, long term, and notorious. It still continues. It severely undermined the publics trust in UHP and affected the ability of law enforcement to function. It constituted a failure to advance the good of the public service and harmed the ability of the Agency to fulfill its mission CONCLUSIONS OF LAW 1. At the outset of this proceeding, a Confidentiality Order dated January 29, 2013, and signed by the CSRO Administrator, Akiko Kawamura, was issued. The parties stipulated that certain documents within the Agencys control, which were produced to the Grievant and

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intended to be used during Step 4 hearing, and which were defined as private, controlled and/or protected records by the Governmental Records Access and Management Act (GRAMA) were to be stamped as CONFIDENTIAL. These CONFIDENTIAL documents, regardless of whether they contained redacted information, were restricted as to use and deemed not public. As a consequence, certain portions of the Step 4 hearing were intermittently closed to the public upon the Agencys motion. 2. Because termination is at issue in this case, the hearing officer may properly consider Grievants past work performance. Utah Admin. Code R137-1-21(9) (2012). 3. A hearing officer may take judicial notice of all CSRB rules, the Department of Human Resource Management (DHRM) Human Resource Management Rules, and any relevant statutes, rules and policies without their specific admission in the record of the hearing. 4. The Agency bears the burden of proof that the Grievants termination was for just cause. Utah Code Ann. 67-19a-406(2)(a). The Agency must meet its burden of proof by substantial evidence. Utah Code Ann. 67-19a-406(2)(c). Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. Larson Limestone Co. v. State of Utah, 903 P.2d 429, 430 (Utah 1995) quoting First National Bank v. County Bd. of Equalization, 799 P.2d 1163, 1165 (Utah 1990); see also Grace Drilling v. Board of Review, 776 P.2d 63, 68 (Utah App. 1989). It is more than a mere scintilla of evidence and something less than the weight of the evidence. Johnson v. Board of Review of Industrial Commn, 842 P.2d 910, 911 (Utah App. 1992).

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5. The hearing officer must determine whether the factual findings, as determined by substantial evidence, support the allegations made by the Agency, and whether the Agency has correctly applied relevant policies, rules, and statutes. Utah Admin. Code R137-1-21. If the factual findings support the allegations, then the hearing officer must determine, giving deference to the Agencys decision, whether the Agencys disciplinary action is excessive, disproportionate or otherwise constitutes an abuse of discretion. Utah Admin. Code R137-1-21. 6. In giving deference to the Agencys decision, the hearing officer is restricted to the standards he or she must apply and therefore cannot substitute his or her own judgment. The CSRB is restricted to determining whether there is factual support for the Departments charges and if so, whether the Departments sanction of dismissal is so disproportionate to those charges that it amounts to an abuse of discretion. Career Serv. Review Bd. v. Utah Dept. of Corr., 942 P. 2d 933, 942 (Utah 1997). An agency abuses its discretion when it reaches an outcome that is clearly against the logic and the effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing. Tolman v. Salt Lake County Attorney, 818 P.2d 23, 26 (Utah Ct. App. 1991) (quotations and citations omitted). 7. The initial burden is on the Agency to show that the discipline was not disproportionate to the conduct. Lunnen v. Dept. of Transportation, 886 P.2d 70, 73 (Utah Ct. App. 1994). [A petitioner] must, at a minimum, carry the burden of showing some meaningful disparity of

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treatment between [himself] and other similarly situated employees. Kelly v. Salt Lake City Civil Serv. Comm., et al. , 8 P.3d 1048, 1056 (Utah Ct. App. 2000). 8. In Brady v. State of Maryland, 373 U.S. 83 (1963), the U. S. Supreme Court, in a matter of post-conviction relief, upheld a Maryland Court of Appeals decision. The Court held that in a criminal case, suppression of requested evidence by the prosecution, which is favorable to the accused, violates due process where the evidence is material either to the guilt or to the punishment of a defendant, regardless of the good faith or the bad faith of the prosecution. 9. In Giglio v United States, 405 U.S.150 (1972), the U.S. Supreme Court extended its holding in Brady to witness testimony. In Giglio, a witness credibility was so important that the governments case depended on it almost entirely. The Court held that evidence of any understanding or agreement regarding that witness future prosecution was relevant to that witness credibility and the jury was entitled to know it. In such matters, the failure of the prosecution to present all material evidence constituted a violation of due process, requiring a new trial. 10. Together, these two seminal cases have come to mean that where a witness is the subject of a courts prior finding that he or she was not credible, the prior finding of untruthfulness shall be expressly disclosed to the trier of fact and the defendants counsel in a current proceeding. Such a disclosure has come to be known as a Brady Giglio disclosure. 11. The November 1, 2012, Letter of Intent stated Grievants termination was being recommended for her non-compliance with and/or violation of: (1) DHRM Rule 477-11-

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1(a)(g)(i)(j); (2) DHRM Rule 477-9-1 governing standards of conduct; (3) DPS Code of Conduct 105; (4) DPS Policy 340.3.2 addressing conduct which may result in discipline; and (5) just cause for failure to advance the good of the public service. 12. DHRM Rule 477-11-1(a)(g)(i)(j) (Discipline) reads in pertinent part, (1) Agency management may discipline any employee for any of the following causes or reasons: (a) noncompliance with these rules, agency or other applicable policies, including but not limited to safety policies, agency professional standards, standards, of conduct and workplace policies; . . . . (g) no longer meets the requirements of the position; . . . . (i) failure to advance the good of the public service, including on or off duty which demeans or harms the effectiveness or ability of the agency to fulfill its mission; (j) dishonesty. . . . (Ex. S-2) 13. Grievant violated sections (a), (g), (i) and (j) of DHRM Rule 477-11-1. 14. DHRM Rule 477-9-1 (Employee Conduct) in pertinent part reads,An employee shall comply with the standards of conduct established in these rules and the policies and rules established by agency management. (a) An employee shall:(ii) maintain an acceptable level of performance and conduct on all other verbal and written job expectations. 15. Grievant violated DHRM Rule 477-9-1 (a) (ii). 16. DPS Code of Conduct 105 in pertinent part reads; 105.1.2 (General Expectations) . . . (c) Employees may be disciplined for their conductwhen such conduct adversely affects the efficiency, harmony, or good order of the Department; or the employees conductcould reasonably cause the public to lose confidence in the Department. (Ex. S-3) (Ex. S-1)

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17. Grievant violated DPS Code of Conduct 105.1.2 (c). 18. DPS Policy 340.3.2 (Conduct Which May Result in Discipline) in pertinent part reads: (a) Any conduct or pattern of conduct that would tend to disrupt, diminish, or otherwise jeopardize public trust and fidelity in law enforcement. (Ex. S-3) 19. Grievant violated DPS Policy 340.3.2 (a). 20. Grievant was neither charged with nor committed perjury in her court testimony. 21. Under DHRM 2010 Job Description for Officer, testifying in a court proceeding is not an essential function of the position of Officer. Some Officers may never be called to testify in court depending on the nature of their job. However, the ability of a road trooper to testify effectively in court can be critical where other corroborating evidence is unavailable or even insufficient. A troopers lack of credibility such as when the prosecution is obligated to provide a Brady Giglio disclosure may, in fact, doom a criminal prosecution from the outset. 22. DHRM Rule 477-11-3 (Discretionary Factors) reads in pertinent part; When deciding the specific type and severity of discipline, the agencymay consider the following factors: (a) consistent application of rules and standards; (b) prior knowledge of rules and standards; (c) the severity of the infraction; (d) the repeated nature of violations; (e) prior disciplinary/corrective actions; (f) previous oral warnings, written warnings and discussions; (g) the employees past work record; (h) the effect on agency operations; (i) the potential of the violations for causing damage to persons or property. (Ex. S-1)

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23. The Agency correctly applied the aggravating and mitigating discretionary factors of DHRM Rule 477-11-3 in deciding to terminate Grievant. 24. There was substantial evidence to support the Agencys decision to terminate Grievant. 25. The decision to terminate was neither excessive, disproportionate nor an abuse of discretion. 26. Under applicable law, a hearing officer may not substitute his or her own judgment as to the Agencys sanction where there is substantial evidence to support it, and the decision is neither excessive, disproportionate nor an abuse of discretion. DISCUSSION Grievant joined the ranks of law enforcement in 2002 after obtaining a Bachelor of Science degree in criminal justice. Prior to that time, she had been a police dispatcher. She set her goals high and soon entered the elevated ranks with unprecedented achievements. Among her many recognitions, Grievant received Unit Citations in 2011and 2007, a Career Achievement Award in 2010, Certificates of Commendation in 2010 and 2007, the Governors Award for Excellence in 2010, State Senate Awards in 2009 and 2007, Medals of Excellence in 2009 and 2004, Public Safety Life Saving Medal Award in 2009, Distinguished Service Award in 2007, and Trooper of the Year in 2007. (Ex. G-1-15) Grievant also was promoted to the (temporary) rank of Corporal in 2009 (Ex. G-12), had certification as a phlebotomist, attended Drug Recognition Expert (DRE) training, and attended Standardized Field Sobriety Test (SFST) training, where she also certified.

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Perhaps most impressive of all, Grievant made 200 DUI arrests in 2007and was as a result named Trooper of the Year. After joining the DUI Squad, Grievant made over 400 arrests in 2009, double that of any other trooper and a state record. Grievant received special recognition at the state Capitol for her accomplishments. In addition to that impressive record, Grievant was well liked and admired, even loved by some. Witnesses, including those responsible for her termination, testified how highly they and others regarded her. For instance, Col. Fuhr testified, We all loved Lisa. She was an absolute star. There was no more committed DUI trooper and we all hate drunk drivers. She did a fantastic joband worked incredibly hard. Commissioner D. Lance Davenport commented that Grievant was a stellar employee and that he was shocked when another side of Grievant was revealed in the newspapers. At best, one might have called her over-zealous in her duties. In her escalating zeal to rid Utah highways of impaired drivers and rack up DUI arrests, Grievants emerging persona began to cut corners and violate policies. In mid-April of 2010, Lt. Steve Winward gave Grievant a directive. She was told that if she were out of her vehicle on a stop, she should advise dispatch for safety reasons. Two weeks later on April 30th, Grievant stopped a vehicle in Salt Lake City and arrested a driver suspected of DUI. Grievant was alone but failed to notify dispatch until after the arrest was made. Two weeks after that, on May 1st, Grievant attended a section meeting where she and other troopers were instructed by Lt. Winward and Captain Mike Rapich that only if there were exigent circumstances and at least two officers were present, should they proceed to draw blood for evidence. (Ex. S-9)

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Later that evening (in the early morning hours of May 2nd), and after obtaining a warrant, the Grievant did a blood draw, by herself, with no other officer present after the subject of the DUI stop refused to take a chemical test. The driver became agitated and, because Grievant had taken off his handcuffs, was able to pull out the needle and threaten Grievant with it. Grievant was able to place the subject in custody, but only with the help of multiple civilians. Grievant did not notify dispatch, as earlier instructed, until after she made the subjects arrest. On May 6, 2010, Grievant once again drew blood from a driver on the roadside with no other officers present. On June 1, 2010, Grievant received a Letter of Reprimand in conjunction with these incidents. When she first joined the force, UHPs policy (or perhaps it was just the practice) governing blood draws was different. That policy governing blood draws, however, changed during her course of employment and Grievant knew it changed. She was aware of the change in policy when she drew blood with no other officer present, which resulted in a threat to her safety and the drivers safety. She was aware of the change in policy on May 6th when she again drew blood by herself. On November 19, 2010, Grievant received a second Letter of Reprimand in conjunction with a DUI arrest on March 10, 2010 (Faircloth Case). (S-9) In that case, Grievant issued a preliminary breath test to the subject of the arrest prior to administering more standardized field sobriety tests, in violation of DPS policy 3-3-17. II.C. Grievant also removed her external microphone during her initial approach to the suspects vehicle, in violation of DPS policy 3-3-16. III.A.2. When she returned to her vehicle to fix her detached video camera, she reattached her

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microphone. Because the camera was not operating and Grievant did not wear her microphone, there was neither an audio nor video recording of the Faircloth Case. In testifying about this incident, Col. Fuhr testified that during the investigation underlying her Letter of Reprimand, Grievant offered no real excuses for leaving her microphone in her vehicle. The impression she conveyed was that it was a mindless act. She later admitted, however, that she did not want her supervisor to know why she removed her microphone and intentionally had done so and then concealed that reason. Presumably, that reason was that she violated policy by administering the PBT prior to other tests and the microphone would have picked that up. Grievants real troubles, however, were just starting. In late April 2012, Third District Court Judge Mark Kouris issued a ruling in another one of Grievants cases (the Alexander Case), dismissing a case in which she testified on a motion to suppress evidence. (Ex. A-12 and A-15) The defendant in that case had been pulled over on January 5, 2010, because Grievant reported that his license plate light was burned out. The defendant (who had prior felony convictions and admitted using heroin that day) was arrested by Grievant for DUI, possession of drug paraphernalia, and possession of controlled substances. If the license plate light was in fact working, Grievant had no legal reason to stop the defendant. Grievants dashcam video in her vehicle was inconclusive regarding whether the license plate light was out. Thus, the truthfulness of her testimony at the hearing was crucial. At the first hearing in the case, the judge denied the defendants motion to suppress, but when the defendants attorney later submitted evidence that

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Grievant had been reprimanded for having been found untruthful in other similar situations, the judge reconsidered his previous ruling. In granting the motion to suppress the evidence in a second hearing, Judge Kouris ruled, The issue of [Grievants] credibility coupled with the lack of any corroborating evidence about whether the light was, in fact, out on Alexanders vehicle, made the evidence unreliable. If in fact she had no reason to pull him over, thats an illegal stopwe having nothing to corroborate what she saidthe video doesnt help, the defendants testimony doesnt help. Shortly thereafter on June 20, 2012, Judge Robert Dale in the Second District Court in Davis County (Farmington) heard a motion to suppress evidence which he granted (the Nieder Case). (Ex. A-9) The defendant in the Nieder Case contested the reasonableness of Grievants traffic stop and again, her credibility at the hearing became critical. In pertinent part, Judge Dales Order stated the following: The Court reviewed the detailed written motions and memorandums filed by the parties and also reviewed the testimony of the preliminary hearing in its analysis of the defendants motion. The Court felt that Trooper Steeds testimony was exaggerated in an effort to support and sustain her decision to arrest the defendant. These exaggerations cause the Court to pause and have concerns as they seemed to go beyond what the Court observed on the video. The Court further finds there was very inconsistent testimony between the preliminary hearing and the evidentiary hearing, specifically as to the reason there was no audio recording of the traffic stop. The Court finds the exaggerations and inconsistencies go hand-in-glove with respect to the credibility of the Trooper. Overall, the Court did not feel the Trooper was credible and questions the alleged facts leading up to the warrantless arrest of the defendant.

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The Davis County Deputy Attorney who prosecuted the Neider Case, Rick Westmoreland, did not sign the Order approved as to form and content, as normally would be the case. He testified at the Step 4 hearing that he declined to sign it because he did not agree with the judges statements about Grievant. Mr. Westmoreland considered Grievant, in his experience as a prosecutor, to be one of the best witnesses in DUI cases because she was always prepared. Moreover, he considered Grievant to be very knowledgeable and able to explain things in a professional manner that was understandable. In all fairness to Grievant, the judge may not have had a full picture of the circumstances underlying the incident. He also may have read newspaper accounts of the Alexander Case. Nevertheless, a judges ruling does not require the approval of the prosecuting attorney. And judges, like most people, can be influenced, if only imperceptibly, by what they read.3 Mr. Westmoreland reported Judge Dales ruling to his boss, Davis County Attorney Troy Rawlings.4 Prior to Judge Dales ruling in the Neider Case, Mr. Rawlings had received some complaints about Grievant. However, complaints about officers werent unusual, and he knew that prosecutors, like Mr. Westmoreland, respected Grievant. Then, however, starting early in 2012, he began to receive a few media inquiries about Grievant. Mr. Rawlings said that although

Moreover, this fact only underscores the harm that the extensive and ongoing press coverage was causing to the Department and other entities. Mr. Rawling oversees approximately 45 employees in his capacity as the Davis County Attorney. He sets policy for that office and exercises responsibility for the countys civil and criminal caseloads. Mr. Rawlings testimony was passionate and credible. He was firm in his convictions. Lisa Steed v. Utah Department of Public Safety; 2010/CSRO/HO 064 Findings of Fact, Conclusions of Law, and Decision Page 21
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difficult to articulate, he had a growing unease about Grievants conduct. About the same time, he also became aware that the Salt Lake County Attorney Office and the Salt Lake City Attorney Office had increasing concerns about Grievants cases. In April of 2012, Rawlings held a staff meeting. As a result of the meeting, UHP prepared information (a Brady Giglio packet) about Grievant that needed to be provided to defense counsel in Grievants arrest cases, primarily related to Judge Kouris ruling in the Alexander Case. After the Neider Case and the Alexander Case were publicized, the press inquiries and complaints from citizens started in earnest. Mr. Rawlings characterized the aftermath of these cases as a [media] circus and felt something needed to be done about the distraction from legitimate business. Mr. Rawlings decided to draft a press release on April 26, 2012. In part, the release stated: If there is sufficient evidence for a conviction completely independent of Trooper Steed (we dont need her as a witness at all or only need her for minor foundational matters such as describing an item of evidence that has verification independent of her; and we address her credibility warts in court on direct examination ourselves), the case might continue. . . (Emphasis in original.) We do not want those who have actually violated the law to escape justice due to the credibility problems of Trooper Steed if we can prove the case independent of her. We do not want those who are innocent or even those who may have violated the law, to be potential victims of the justice system based on Trooper Steeds misconduct, if a case rests in whole, or in part, on her credibility. Grievants counsel suggested during the hearing that Mr. Rawlings press release may have been premature or even an overreaction. But Mr. Rawlings testified that the press release was the easiest and most simple way to handle the unrelenting inquiries because he wanted to get back Lisa Steed v. Utah Department of Public Safety; 2010/CSRO/HO 064 Findings of Fact, Conclusions of Law, and Decision

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to business. The release clearly explained the Davis County Attorneys Office position on Grievants cases so that Mr. Rawlings need not continue either avoiding or responding to every inquiry and complaint.5 The other result, unintended as it may have been, was to fuel the media feeding frenzy. Ultimately, the bottom line is not whether Mr. Rawlings should have issued the release, but that he did. Moreover, while other prosecutorial entities did not elect to issue press releases, they adopted a similar policy as to Grievants cases. Upon cross examination, Mr. Rawlings admitted that Davis County prosecuted cases other than Grievants where Brady Giglio disclosures needed to be made (a handful).6 He admitted that Davis County already had two officers who had been found to be not credible and when efforts to terminate those officers were unsuccessful, they had been placed in other positions where their testimony would not be at issue. He further admitted that out of 2,400 district court cases, 1,500 juvenile cases and 2-3,000 justice cases, he dismissed 9 of Grievants cases. Additionally, two post conviction petition cases based on Grievants testimony had been vacated and 8 were pending. Finally, he admitted that cases did not always turn on the sole testimony of the arresting Mr. Rawlings may have had the lions share of disruptive inquiries since Grievant was based in Davis County. 6 Rebecca Hyde Skordas, an articulate and seasoned criminal defense lawyer of 20 years experience, testified that Brady- Giglio imposes the affirmative obligation where a prosecutor must disclose exculpatory evidence that would tend to establish the defendants innocence. That obligation extends to the impeachment of a witness. She explained that she had experience with Brady-Giglio and that it was not an uncommon occurrence in the area of criminal defense. It only comes into play when an officers credibility is a material issue in a very fact specific situation and when it is not, it rarely has a significant impact. She also testified that she considers it only a matter of weight for a trier of fact rather than a fatal blow in every case. She testified that to characterize Grievants issues with prior judicial findings of untruthfulness a circus, was an exaggeration. Lisa Steed v. Utah Department of Public Safety; 2010/CSRO/HO 064 Findings of Fact, Conclusions of Law, and Decision Page 23
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officer. There were often corroborating camera recordings, microphone videotapes, statements of the defendant, and the performance results on sobriety tests that were available. But understandably, the media wasnt interested in publicizing garden variety cases or matters where an officer has one ancient Brady Giglio concern. The limelight was focused on Grievant, an energetic young and attractive trooper with a spectacular performance history. Moreover, cameras fail, microphones get removed, and tests results can be defective. As Mr. Rawlings drily commented, [At this point], We can use her as a potted plant. Fair or not, the damage to the publics perception of law enforcement was immense. Col. Fuhrs testimony was consistent with Mr. Rawlings. He observed that cameras dont capture everything. There is a lot more going on than the camera picks up. For instance, he said, neither a camera nor a microphone picks up the smell of marijuana. Furthermore, not all Salt Lake County or West Valley City [law enforcement] vehicles are even equipped with cameras. Col. Fuhr observed that, Grievants inability to testify limits her ability to function as a trooper. A trooper has to be independenttechnology is great, but no substitute for independent testimonywhich is absolutely critical. I. GRIEVANT S PAST PERFORMANCE . Grievants performance with UHP was impressive if not truly exceptional. Her two Letters of Reprimand even referenced her abilities and achievements. Witness after witness and documentary evidence all pointed to her professionalism, work ethic, and dedication. Grievant was well liked and a highly valued member of the UHP. She was not only proficient but proactive.

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While these factors played a positive role in reviewing the Agencys decision to terminate her, Grievants two Letters of Reprimand cut the other direction. She was on notice that she needed to adhere to the Departments rules and regulations. Instead, she continued cutting corners, presumably, in part, largely for expediency in making arrests. II. APPLICATION OF DISCRETIONARY DISCIPLINARY FACTORS. Under DHRM Rule 477-11-3 (Discretionary Factors) when deciding the specific type and severity of discipline, an agencymay consider the following factors: (a) consistent application of rules and standards; (b) prior knowledge of rules and standards; (c) the severity of the infraction; (d) the repeated nature of violations; (e) prior disciplinary/corrective actions; (f) previous oral warnings, written warnings and discussions; (g) the employees past work record; (h) the effect on agency operations; and (i) the potential of the violations for causing damage to persons or property. (Emphasis added.) Commissioner Davenport testified that while he wasnt required to do so, he considered all the above factors in his decision making process to recommend the termination of Grievants employment. In going through all the factors, he began by testifying that while Grievants situation was unique so that there was nothing to compare it to, it didnt matter because he was not bound by his predecessors disciplinary decisions. Thus, consistency was not at issue. As far as Grievants prior knowledge of rules and standards, she was experienced and well aware of what was expected, particularly in light of her two previous reprimands. He considered the severity of Grievants infractions very important. He testified that not only was Grievants credibility on the

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line, because of the publicity, the credibility of the entire department was in jeopardy.

The

repeated nature of Grievants violations also weighed heavily against her. Commissioner Davenport testified he was seeing a pattern of behavior she became defiant and made efforts to conceal what she had done. As far as previous warnings and discipline, she had plenty of both, so she should have known and stepped it up. Commissioner Davenport considered Grievants past work record as a mitigating factor in reaching his decision, but it wasnt enough to overcome the deleterious effects of other factors. The potential for causing damage to persons or property was also significant. Her insistence on doing blood draws her way held great potential for harm to both the violator and herself. Also, her pattern of being untruthful had potential to harm in terms of the costs of dealing with post conviction petitions, the cost of dealing with lawsuits, and the costs in attorney time. Finally, the effect on Agencys operations was huge. Commissioner Davenport testified that Grievants conduct and judges findings as to her lack of truthfulness had become notorious. The publicity had cast a great shadow over the department and made it difficult to do the job. Commissioner Davenport testified that it was a very difficult decision to terminate Grievant but that he was convinced it was the right one to make. He emphasized time and time again that the Agency had to repair and restore the public trust because it had been so damaged. The very ability of law enforcement to successfully function depends on public confidence. Its essential.

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III.

SUBSTANTIAL EVIDENCE /EXCESSIVE, DISPROPORTIONATE ABUSE OF DISCRETION .

OR

In determining whether substantial evidence supports the decision we will consider all the evidence in the record, both favorable and contrary, and determine whether a reasonable mind could reach the same conclusion. Pen & Ink v. Alpine City, 238 P.3d 63, 67 (Ut. App. Ct. 2010), cert denied, 421 P.3d 771 (Utah 2010) (emphasis added). An agency abuses its discretion when it reaches an outcome, that is clearly against the logic and the effect of facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing. Sorge v Office of the Attorney General, 20041046 at 22 (Utah Ct. App. 2006) (quoting Tolman v. Salt Lake County Attorney, 818 P2d 23, 26 (Utah Ct. App. 1991)). See also State of Utah Commission on Criminal and Juvenile Justice v. Elizabeth Benns at 18, Decision and Final Agency Action, Case No 11 CSRB 107 Step 6 (2011).7 CONCLUSION Grievants attorney argued that the Agency could easily move Grievant into another law enforcement position that did not require her to testify in court, thus sidestepping bad publicity. He argued that Grievant was not responsible for Troy Rawlings perhaps questionable decision to issue the press release. Nor was she responsible for the decisions made by other prosecutorial

The Utah State Employees Grievance and Appeal Procedures Act and Administrative Rules governing the CSRO were amended in 2010. Prior to that amendment, the final aadministrative review of an agency action was conducted by the Career Service Review Board (CSRB). The CSRB was disbanded on June 30, 2012. Nonetheless, the CSRBs statutory authority was set forth at Utah Code 67-19a-101 through 408. The CSRBs decisions remain in full force and effect and are persuasive upon this Hearing Officer Lisa Steed v. Utah Department of Public Safety; 2010/CSRO/HO 064 Findings of Fact, Conclusions of Law, and Decision Page 27

entities to dismiss cases where Grievants testimony was critical. He pleaded that it wasnt fair to terminate Grievant based on the media maelstrom and judges decisions to dismiss cases where Grievants testimony was at issue. In addition, Mr. Skordas pointed out that having 9 DUI cases dismissed out of 1,000 arrests wasnt such a bad record. Having 9 cases dismissed out of a pool of 1000 arrests appears insignificant at first blush. But it wasnt the number of dismissed cases per se, it was the constant barrage of negative publicity that actually inflicted the damage. The questions in the publics mind werent going to go away if the department minimized her conduct by claiming it was only 9 cases. Its true that Grievant did not seek to publicize her own conduct. Neither did she ask prosecutors to dismiss her cases nor ask judges to deem her testimony untruthful. But she is responsible for the conduct she engaged in and the decisions she made, which set everything in motion. As a sworn officer of the law, she was responsible for acting in a way that did not undermine the publics trust in law enforcement actions. Moreover, she had more than one chance to adhere more closely to the directives she was given and follow more diligently the rules and regulations governing her work. These she failed to do as she continued to exercise flawed judgment and play fast and loose with the rules. To her credit, Grievant testified that she had screwed up. She also testified that she had been an effective law enforcement officer and loved her job. Given her abilities and training, Grievant said that if she could no longer work as a trooper, she could work in an alternative public safety position (there are approximately 12 different categories), such as a bailiff, in Capitol

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security at the Governors mansion, or engage in public education. But Col. Fuhr testified that he and others considered moving her to another position and imposing a lesser form of discipline. He concluded that he didnt want to set a precedent for other officers by reassigning her. He said the department typically transfers officers when a trooper is not at fault, for instance, suffers a job injury. Unfortunately, there arent enough of those positions to go around even under those circumstances and competition for those openings is fierce. In giving deference to the Agencys decision, a hearing officer is restricted to the standards he or she must apply and even if inclined to do so, cannot substitute his or her own judgment. See State of Utah Commission on Criminal and Juvenile Justice v. Elizabeth Benns, Decision and Final Agency Action at 19, Case No 11 CSRB 107 Step 6 (2011), wherein the CSRB relied on a Utah Supreme Court case to conclude, when undertaking [a review applying the substantial evidence standard], a tribunal may not substitute its judgment as between two reasonably conflicting views, even if the tribunal may have reached a different conclusion had the case come before it for de novo review. Benjamin v. Utah State Tax Commission, 2011 WL 768110, *5 (citations omitted). I am restricted to determining whether the facts are sufficient to support the Agencys charges and if so, whether the Agencys sanction of dismissal is so disproportionate to those charges that it amounts to an abuse of discretion. In this case, the Agency had substantial evidence on which to base its decision to terminate Grievant, rather than transfer her to another job. The decision to terminate was neither excessive, disproportionate nor an abuse of discretion. While

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abundantly clear that Grievant possesses a plethora of positive attributes which she could bring to another law enforcement job in an area she loves, that choice is not mine to make. DECISION Based on the foregoing Findings of Fact and Conclusions of Law, and the discussion, the Agencys decision to terminate Grievant is upheld. DATED this 27th day of June, 2013. _____________________________________ KATHERINE A. FOX CSRO Presiding Hearing Officer

RECONSIDERATION Any request for reconsideration m ust be filed in writing with the Career Service Review Office within twenty days after the issue date of this decision. (Utah Code Annotated 63G-4-302) JUDICIAL REVIEW A party may petition for judicial review of this formal adjudication and final agency action pursuant to Utah Adm in. Code R137-1-21(13)(14), and Utah Code Ann. 63G-4-401 and 403, Utah Adm inistrative Procedures Act.

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CERTIFICATE OF SERVICE I certify that on this 27th day of June 2013, I emailed a copy of the Finding of Fact, Conclusions of Law and Decision in the matter of Lisa Steed v. Utah Department of Public Safety, 2010 CSRO/HO 064 to the following: Gregory G. Skordas Attorney at Law gskordas@schhlaw.com Yvette Donosso Assistant Utah Attorney General ydonosso@utah.gov Melinda Deforest Legal Assistant Office of Attorney General Mdeforest@utah.gov Barb Lujan Legal Secretary Blujan@utah.gov Monica Jimenez HR Specialist Mjimenez@utah.gov

________________________________________ Annette Morgan Administrative Legal Secretary, CSRO