Nisha King was a sergeant with the Provo City Police Department in Utah. In July 2022, King and several other officers were assigned to retrieve flags from the Provo mayor’s old office and transport them to the new City building. As the assigned officers were moving the flags and flag stands, King picked up two round flag stands, held them up to her chest, and jokingly asked the officers, “What if I hold these like this? Would that be inappropriate?” According to one of the officers, the comment made him feel “awkward and uncomfortable.” King pressed on, and said, “Good thing I’m with the Special Victims Unit, guys.” Another assigned officer helping with the flags described being “disturbed with King’s insinuation that he would be comfortable with this type of behavior because of his job as a sex crimes detective.”
The officers reported King’s action, which prompted the mayor, the police chief and a City attorney to discuss the matter. It was subsequently assigned to the City’s human resources director, who initiated an investigation under the City’s “Personnel Policy 31” which governs sexual harassment complaints against City employees. During this investigation, a victim services coordinator came forward to provide another allegation of sexual harassment by King. The coordinator relayed that she had been washing a dish at work in when King came up behind her and “aggressively cupped her buttocks.” When the coordinator turned around, King responded, “Sorry, I couldn’t help myself.” The coordinator was “embarrassed, shocked, and confused” by the incident and told coworkers what had happened and “asked them not to tell.” She did not report the incident because she was afraid of retaliation, but she did mention the incident to the officers who had made the initial report against King a few months before the flag incident.
On July 9, King was placed on administrative leave, pending the results of the investigation. The human resources director and the chief then conducted separate interviews with King. When the video footage of the flag incident was described to King, as well as the officers’ allegation against her, King claimed that “she believed them if it was on a video, but she didn’t have any recollection” of making the statement. However, according to the investigation, King was able to recall other small details of the video. As to the victim services coordinator’s allegation, King flatly denied that the incident occurred.
At the pre-termination hearing, King again denied the allegations against her. On August 17, the City terminated King. The City found that “termination was the appropriate discipline” because King, in allegedly harassing the victim services coordinator, “engaged in misconduct, violated City policy, and lied about it.” As to the flag incident, the City found that although King’s behavior “constituted inappropriate sexual innuendo,” the behavior “was not severe enough to constitute harassment.” But the City also concluded that King had been dishonest, and that warranted termination “due to the critical nature of maintaining credibility” as a police officer.
King appealed to the Provo City Civil Service Commission, challenging the substantive decision and the City’s use of Policy 31, asserting that the investigation should have been conducted pursuant to “Department Policy 1010.” Using Policy 1010 would have provided her with several additional protections, like “access to all of the materials considered by the Chief of Police in recommending the proposed discipline,” the right to “have an uninvolved representative present” during her interviews, having the investigation conducted by a member of the Department, and having all witness statements recorded. The Commission affirmed the City’s decision, finding that there was substantial evidence to terminate her, and that Policy 31 applied to all City employees.
King again appealed and the appeals court affirmed the decision of the Commission. Applying a harmless error standard of review, the Court concluded that there was no abuse of discretion in the Commission’s decision upholding the use of Policy 31 instead of Policy 1010 in the investigation of King’s misconduct. The Policy 1010 protections that King was deprived of included the ability to view all the materials that the City considered in recommending discipline, the presence of counsel in her pretermination hearing interview, having the investigation conducted by the Department, and having all witness statements recorded. The Court’s conclusion was the same: King had not demonstrated that she had been harmed by their absence. “As a result, even if we assume that it was an error to apply Policy 31 instead of Policy 1010, King has failed to show that the ‘outcome would have been any different’ absent the alleged error.”
The Court rejected her argument that the termination had not been supported by substantial evidence, deferring to the Commission’s determinations regarding her credibility and the corroborating evidence. The fact that a criminal investigation into King’s conduct had been dropped was similarly unavailing.
King v. Provo City Civ. Serv. Comm’n, 2024 WL 4248998 (Utah App., 2024).