One of three former Ogden police officers fired in what was known as the "Towgate" scandal four years ago has asked the Utah Court of Appeals to overturn his termination and reinstate him as a sergeant at the Ogden Police Department.
Anthony Huemiller claims the Ogden Civil Service Commission inappropriately placed the burden of proof on him, rather than Ogden city, when he appealed his termination in 2001.
Huemiller's attorney, Erik Strindberg, told the appellate court Tuesday morning during oral arguments that the Ogden Civil Service Commission held hearings based on "unsubstantiated rumor" to support allegations that Huemiller lied during an internal investigation that certain officers were giving preferential business to Ogden Auto Body in exchange for favors.
Strindberg said his client did not have a chance to defend himself against the allegations due to a "perverted burden of proof," in which Huemiller found himself proving himself innocent rather than requiring city officials to prove his guilt.
After a three-day hearing, the commission concluded that Huemiller had lied to superiors when he denied making calls to Ogden Auto Body after certain auto accidents. City officials said it was policy to send accidents to a dispatcher, who rotated a list of local auto shops for towing. Officials said Huemiller and two other officers used cell phones supplied by Ogden Auto Body to circumvent city procedure and give the business preference. An audit of two calls showed that Ogden Auto Body had received an estimated 46 percent of police-related business between July 1999 and February 2000.
Officers Kelly Zaugg and Ron VanBeekum were also fired.
Attorney Stanley Preston, who represents the Ogden Civil Service Commission, called Huemiller's claims a "red herring," pointing out that Huemiller had ample opportunity to make his case but rather chose to be a difficult witness.
According to the commission's findings, Huemiller was not a credible witness during the 2001 hearing. "He frequently questioned the meaning of common words, argued with the attorney asking the questions, had long pauses before answering simple questions, and parsed sentences, the effect of which was to make a simple question complicated," the commission wrote.
Preston said federal court decisions allow employers to place the burden of proof on the employees during termination grievance hearings. The fact that two other officers were also fired for similar conduct supports the commission's decision, Preston said.
Strindberg countered that Huemiller was at a disadvantage, having been ordered to stay away from the police department and not to speak with other officers. This, he said, precluded his client from gaining access to documents and possible witnesses who could help defend his case. By placing the burden of proof on Huemiller, "I think it tips the scale immensely toward the employer," Strindberg said.
Court of appeals Judge Gregory Orme noted the typical remedy would be to kick the case back to the commission with a different emphasis on the burden of proof. Strindberg said that would be impossible because one commissioner has since died and others may have moved on. Strindberg asked that the appellate judges reinstate Huemiller to his position as sergeant in the police department and give him back pay and his retirement benefits.
The justices took the matter under advisement and will issue a ruling in writing at a later date.
E-mail: gfattah@desnews.com