Demill v. Peace Officer Standards

2023 UT App 56
THE UTAH C OURT OF APPEALS
R ON D EMILL ,
Petitioner,
v.
P EACE OFFICER STANDARDS AND T RAINING C OUNCIL ,
Respondent.
Opinion
No. 20210217-CA
Filed May 25, 2023
Original Proceeding in this Court
Jeremy G. Jones and Richard R. Willie,
Attorneys for Petitioner
Sean D. Reyes, Catherine F. Jordan, and
Stephen W. Geary, Attorneys for Respondent
J UDGE G REGORY K. ORME authored this Opinion, in which
J UDGE R YAN M. HARRIS and SENIOR J UDGE KATE A PPLEBY
concurred.1
ORME, Judge:
¶1 	During an interview regarding alleged policy violations,
Utah corrections officer Ron Demill spontaneously admitted to
interviewers from the Utah Department of Corrections (the UDC)
that he masturbated in a staff restroom while on duty at a prison
operated 	by 	the 	UDC. 	Based 	on 	his 	admission, 	the 	Utah
Department of Public Safety, Division of Peace Officer Standards
and Training (POST), pursued administrative disciplinary action
against Demill, asserting that his actions violated Utah law. The
POST 	Council 	(the 	Council) 	ultimately 	adopted 	the
recommendation 	that 	Demill’s 	peace 	officer 	certification 	be
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

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suspended for three and a half years. Demill argues that his
actions were protected by a constitutional right to privacy,
recognized in the Utah Administrative Code and in Lawrence v.
Texas, 539 U.S. 558 (2003). For the reasons explained below, we
decline to disturb the Council’s decision.
BACKGROUND
¶2 	In early 2019, the UDC initiated an internal administrative
investigation 	and 	twice 	interviewed 	Demill 	regarding 	“an
allegation 	of 	lewdness 	while 	at 	work.” 	During 	one 	of 	the
interviews, Demill was asked whether he had ever masturbated
in front of a female co-worker or anyone else while at work. He
answered the question in the negative. But then he volunteered
that “there were frequent occasions where he would get so turned
on by ‘flirty’ conversations with female co-workers that he would
retreat into a staff restroom and masturbate to relieve himself.”
The interviewers did not address Demill’s comment, nor did they
ask any follow-up questions.
¶3 	As a result of the interviews and Demill’s spontaneous
comment, the UDC sustained an allegation of unprofessional
behavior and consequently issued Demill a letter of reprimand.
Following issuance of the letter, Demill retained his position with
the UDC.
¶4 	In January 2020, POST filed its case against Demill, alleging
that “[b]etween 2016 and 2019, Ron Demill violated Utah Code
Ann. § 53-6-211(1)(e) by engaging in sexual conduct while on duty
(masturbating in the staff restroom).”2 Based on the “facts and
2. At the time of Demill’s administrative disciplinary proceeding,
the specific provision of Utah law that POST believed Demill had
violated appeared in Utah Code section 53-6-211(1)(f). It stated
that a peace officer’s certification could be revoked “if the peace
(continued…)

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allegations contained in the . . . Notice of Agency Action,” POST
recommended 	that 	Demill’s 	“peace 	officer 	certification 	be
suspended for a period of four years.” In response, Demill
requested that the allegations against him be dismissed, and he
requested a formal hearing before an administrative law judge
(the ALJ).
¶5 	At the hearing conducted by the ALJ, Demill did not
contest 	his 	earlier 	admission 	about 	masturbating 	in 	a 	staff
restroom.3 	He 	instead 	contended 	that 	given 	the 	express
incorporation of Lawrence v. Texas, 539 U.S. 558 (2003), into the
applicable 	administrative 	rule, 	see 	Utah 	Admin. 	Code
R728-409-4(2)(b) (“The division may not investigate conduct that
is limited to . . . sexual activity protected under the right of privacy
recognized by the United States Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003).”), “there’s no legitimate reason why
what somebody does in a private bathroom should be constrained
by the State.” Demill argued that based on the United States
Supreme Court’s holding in Lawrence, “[t]here would have to be a
legitimate State interest . . . forwarded in order for the State to
apply the sexual conduct statute to someone doing something in
private by themselves in a bathroom.” Demill next contended that
officer . . . engages in sexual conduct while on duty.” The
provision has since, without any substantial change, been moved
to subsection 211(1)(e). Compare Utah Code Ann. § 53-6-211(1)(e)
(LexisNexis Supp. 2022), with id. § 53-6-211(1)(f) (2015). We cite the
current version of the annotated code for convenience and
likewise have changed quotations to reflect the current subsection
structure without indicating modification.
3. Although the restroom was available to all staff members, once
a person was inside, the external door could be locked, ensuring
a measure of privacy to the occupant. In other words, this was not
a 	multi-stall 	shared 	restroom 	accessible 	to 	more 	than 	one
employee at a time.

Demill v. Peace Officer Standards and Training Council
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even if there was a discernible State interest, the applicable
administrative rule’s definition of sexual conduct “contemplates
the touching of any person” and thus provides for the implicit
involvement of more than one person. See Utah Admin. Code
R728-409-3(2)(f)(i) (“‘Sexual conduct’ means . . . the touching of
the anus, buttocks or any part of the genitals of a person . . . with
the intent to arouse or gratify the sexual desire of any person
regardless 	of 	the 	sex 	of 	any 	participant[.]”). 	Demill 	lastly
contended that the interview questions were improper and that
such questions must be “narrowly tailored” and “related to the
job duties of the person being questioned.” See generally Garrity v.
New Jersey, 385 U.S. 493, 499–500 (1967) (holding that a state
cannot “use the threat of discharge to secure incriminatory
evidence against an employee”).
¶6 	Following the hearing, the ALJ entered findings of fact and
conclusions of law. The ALJ found that “Demill [was] a POST
certified officer and at all times relevant to this case was working
as a corrections officer for the [UDC].” The ALJ also found that
“[i]n 	his 	interview 	with 	the 	[UDC] 	investigator, 	Demill
spontaneously admitted to masturbating in a prison bathroom
stall while at work sometime between 2016 and 2019.” Based on
these findings, the ALJ concluded that “[t]he charge that between
2016 and 2019, Demill violated Utah Code Ann. § 53-6-211(1)(e)
by engaging in sexual conduct while on duty (masturbating in
restroom) is proven by clear and convincing evidence.”
¶7 	In 	reaching 	this 	conclusion, 	the 	ALJ 	addressed 	two
principal issues: first, whether Demill’s admission was legally
sufficient 	to 	support 	the 	conclusion 	under 	the 	clear 	and
convincing evidence standard, and second, whether Demill’s
conduct violated Utah law. See Utah Code Ann. § 53-6-211(1)(e)
(LexisNexis Supp. 2022) (stating that a peace officer’s certification
can be revoked “if the peace officer . . . engages in sexual conduct
while on duty”).

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¶8 	The ALJ first noted that he had not considered any
independent evidence regarding Demill’s admission because
none had been submitted. The ALJ explained that he considered
the credibility of Demill’s admission under the trustworthiness
standard adopted by State v. Mauchley, 2003 UT 10, ¶¶ 51–52, 67
P.3d 477, and ultimately determined that Demill’s admission was
credible.4
¶9 	The 	ALJ 	next 	considered 	whether 	Demill’s 	admitted
conduct violated Utah law. See Utah Code Ann. § 53-6-211(1)(e).
The ALJ undertook a two-part analysis considering, first, whether
masturbation qualified as “sexual conduct,” and second, if it did,
whether Demill’s sexual conduct occurred while he was on duty.
The ALJ considered Demill’s argument that the definition of
sexual conduct in the applicable rule necessarily implied the
involvement of two or more persons. Again, that rule defines
“Sexual conduct,” in relevant part, as “the touching of the anus,
buttocks or any part of the genitals of a person . . . with the intent
to arouse or gratify the sexual desire of any person regardless of
4. 	POST 	adjudication 	proceedings, 	like 	administrative
proceedings in general, are civil in nature. See Utah Code Ann.
§ 53-6-211(3)(c) 	(LexisNexis 	Supp. 	2022) 	(“All 	adjudicative
proceedings under this section are civil actions, notwithstanding
whether the issue in the adjudicative proceeding is a violation of
statute that may be prosecuted criminally.”). While Demill’s
statement about masturbating while on duty would appear to be
readily admissible under Utah’s rules of evidence, see Utah R.
Evid. 801(d)(2)(A) (stating that a statement that “is offered against
an opposing party and . . . was made by the party” is not hearsay),
the ALJ, apparently out of an abundance of caution, nonetheless
analyzed the admissibility of Demill’s statement under State v.
Mauchley, 2003 UT 10, 67 P.3d 477, which is normally used to
establish the trustworthiness of confessions in criminal cases. The
ALJ acknowledged that Mauchley “is based on criminal law and
therefore not directly on point.”

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the sex of any participant.” Utah Admin. Code R728-409-3(2)(f)(i).
The ALJ concluded, “There is no language in this definition
which, under a plain reading, cannot apply to either an individual
alone and/or sexual conduct involving two or more persons.”
Based on that conclusion, the ALJ next considered whether
Demill’s activity could be regarded as having occurred while he
was on duty. Because Demill admitted that his conduct took place
in a staff restroom on Utah State Prison premises, the ALJ
determined that Demill’s conduct clearly occurred while he was
on duty. See id. R728-409-3(2)(b)(iii) (“‘On duty’ means that a
respondent is,” among other things, “on the property of a law
enforcement facility, correctional facility or dispatch center[.]”).
Therefore, 	the 	ALJ 	concluded—based 	on 	Demill’s 	own
admission—that Demill had engaged in sexual conduct while on
duty and had thus violated Utah law.
¶10 	The 	ALJ 	next 	considered 	Demill’s 	alternative 	legal
argument regarding the propriety of the interview questions and
whether they were sufficiently tailored and focused on “the
conduct being investigated.” The ALJ determined that because
Demill volunteered his admission about masturbating while on
duty, 	without 	being 	prompted, 	and 	because 	he 	was 	not
questioned 	further 	by 	the 	interviewers 	about 	the 	conduct
described in his admission, the interviewers’ questions were not
overly broad.
¶11 	Finally, the ALJ addressed Demill’s argument concerning
the 	applicability 	of 	Lawrence 	v. 	Texas, 	539 	U.S. 	558 	(2003),
specifically referred to in the applicable administrative rule, see
Utah Admin. Code R728-409-4(2)(b), and whether Demill had a
constitutional right to privacy under the circumstances. The ALJ
explained that “the clear holding of [Lawrence] is not on point with
the facts of this case” because that case “involves sexual conduct
in the home—not the workplace,” which “is not an insignificant
difference and differentiates this case from the exception carved
out by the reference to the Lawrence case in the administrative

Demill v. Peace Officer Standards and Training Council
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rule.” The ALJ noted the general lack of case law expanding the
applicability of Lawrence to private places outside of the home and
considered whether he could extend Lawrence to include privacy
in a workplace setting, specifically a workplace restroom. The ALJ
concluded 	that 	expanding 	the 	constitutional 	privacy 	rights
recognized in Lawrence from the home context to a workplace
restroom “are questions for the courts, not an administrative
adjudication.” The ALJ added that “[t]he limited purpose of this
proceeding is for the ALJ ‘to determine whether there is sufficient
evidence to find that [Demill] engaged in conduct alleged in the
Notice 	of 	Agency 	Action’” 	and 	whether 	that 	conduct 	was
actionable. The ALJ noted that he had “no specific or implied
grant of authority to extend the parameters of existing civil rights
law or to declare statutes or rules unconstitutional.” Thus, the ALJ
did not further engage with Demill’s constitutional argument.
¶12 	Based on his analysis outlined above, the ALJ ultimately
determined that POST proved by clear and convincing evidence
that Demill had violated Utah law when he engaged in sexual
conduct while on duty. The ALJ further ordered that Demill’s case
“should be placed on the next available agenda to be heard by the
. . . Council.” Following the issuance of the ALJ’s order, Demill
petitioned for permission to appeal the order to this court and
moved to stay the Council’s hearing of the matter pending the
outcome of his petition. But Demill’s petition was denied,5 and his
case was placed on the Council’s agenda.
¶13 	At the hearing before the Council, Demill appeared with
his attorney. The Council accepted the ALJ’s specific findings of
fact and conclusions of law and sustained and adopted the ALJ’s
recommendation to suspend Demill’s peace officer certification
5. Interlocutory review of non-final administrative decisions is not
authorized by the Utah Rules of Appellate Procedure. See Utah R.
App. P. 18.

Demill v. Peace Officer Standards and Training Council
20210217-CA 	8 	2023 UT App 56
for three and a half years. Demill then petitioned for judicial
review.
ISSUE AND STANDARD OF REVIEW
¶14 	Demill raises one issue. He contends the ALJ and the
Council erred in concluding that, in Utah, the authority to address
constitutional issues is solely reserved for the courts. We apply
the 	“correction-of-error 	standard,” 	granting 	no 	deference 	to
agency decisions in our review of general questions of law.
Associated Gen. Contractors v. Board of Oil, Gas & Mining, 2001 UT
112, ¶ 18, 38 P.3d 291 (quotation simplified). “General questions
of law include constitutional questions, rulings concerning an
agency’s jurisdiction or authority, interpretations of common law
principles, 	and 	interpretations 	of 	statutes 	unrelated 	to 	the
agency.” Id. (quotation simplified).
ANALYSIS
¶15 	Demill asserts that “he has been substantially prejudiced”
because the ALJ and the Council “erroneously interpreted or
applied 	the 	law.” 	See 	Utah 	Code 	Ann. 	§ 	63G-4-403(4)(d)
(LexisNexis 	2019). 	Demill’s 	argument 	is 	premised 	on 	the
Council’s adoption of the ALJ’s conclusion that “it is certainly
outside the power of this administrative adjudication process to
extend privacy rights into uncharted territory” and the ALJ’s
recognition that POST’s administrative adjudication “is charged
with determining the facts and making legal conclusions based on
existing law” with “no specific or implied grant of authority to
extend the parameters of existing civil rights law or to declare
statutes or rules unconstitutional.” The Council adopted the ALJ’s
findings of fact and conclusions of law in full—including the
determinations that the ALJ did not have the authority to extend
constitutional privacy rights under Utah law, that the extension
of constitutional privacy rights beyond existing case law is

Demill v. Peace Officer Standards and Training Council
20210217-CA 	9 	2023 UT App 56
reserved for the courts, and that “the constitutional arguments of
Demill are not considered and do not change the determination
with respect to his guilt.”6
¶16 	We first consider the applicable procedural elements of
POST’s investigative and adjudicative processes, as described in
the 	relevant 	administrative 	rules. 	See 	Utah 	Admin. 	Code
R728-409-4, -5. With regard to investigative processes, POST
“shall initiate an investigation when it receives information from
any reliable source,” see id. R728-409-4(1), that a peace officer has,
among other things, engaged in sexual conduct while on duty, see
Utah Code Ann. § 53-6-211(1)(e) (LexisNexis Supp. 2022). But
POST is prohibited from investigating “conduct” that is “sexual
activity protected under the right of privacy recognized by the
United States Supreme Court in” Lawrence. See Utah Admin. Code
R728-409-4(2). Based on the outcome of the investigation, POST
can commence adjudicative proceedings “for the purpose of
suspending or revoking a respondent’s certification . . . by the
filing of a Notice of Agency Action.” Id. R728-409-6(1). “The
purpose of an adjudicative proceeding is to determine whether
there is sufficient evidence to find that the respondent engaged in
the conduct alleged in the Notice of Agency Action by clear and
convincing evidence and whether such conduct falls within the
6. We note that both parties highlight inconsistencies in our case
law regarding whether the scope of an administrative proceeding
extends to the adjudication of constitutional issues which have, in
certain instances, been statutorily reserved for the courts under
section 	63G-4-403(4)(a) 	of 	the Utah 	Code. 	But 	because 	rule
R728-409-4(2)(b) of the Utah Administrative Code specifically
incorporates the constitutional protection in question, we have no
occasion to consider the broader question of whether and to what
extent—absent 	such 	a 	specific 	administrative 	rule—an
administrative law judge in an administrative proceeding can
properly address constitutional questions.

Demill v. Peace Officer Standards and Training Council
20210217-CA 	10 	2023 UT App 56
grounds for administrative action enumerated in Subsection[]
53-6-211(1)[.]” Id. R728-409-5(1).
¶17 	Administrative 	rules 	also 	provide 	the 	authoritative
boundaries 	for 	administrative 	law 	judges 	in 	adjudicative
proceedings. See id. R728-409-13. Under those rules, “If the ALJ
determines there is sufficient evidence to find that the respondent
engaged in conduct in violation of Subsection[] 53-6-211(1) . . . ,
the ALJ’s decision shall indicate that the matter will be heard at
the next regularly scheduled council meeting.” Id. R728-409-13(2).
Conversely, “If the ALJ determines there is insufficient evidence
to find that the respondent engaged in conduct in violation of
Subsection[] 53-6-211(1) . . . the matter shall be dismissed.” Id.
R728-409-13(3). 	Therefore, 	an 	ALJ’s 	authority 	in 	a 	POST
administrative disciplinary proceeding is bookended by these
rules and extends only to determining whether there is sufficient
evidence “to find that the respondent engaged in conduct in
violation of Subsection[] 53-6-211(1),” id., and to indicate whether
the matter will be heard by the Council or whether the matter will
be dismissed. In the determination of whether there is sufficient
evidence, an ALJ relies on existing law and “whether such
conduct falls within the grounds for administrative action.” Id.
R728-409-5(1).
¶18 	Demill argues that both the ALJ and the Council had the
authority to rule on his argument that he had a constitutional right
to privacy, which (as he sees it) included his right to masturbate
while on duty so long as he did so in private. He contends that his
POST 	certification 	should 	not 	have 	been 	suspended 	absent
consideration of that argument.
¶19 	Whether an ALJ has the authority to extend Lawrence to
factual settings not discussed in that opinion presents a separate
question. To that point, the applicable rule expressly addresses
(and limits) the Council’s authority regarding an adjudicative
proceeding. See id. R728-409-14. In particular, “The council shall

Demill v. Peace Officer Standards and Training Council
20210217-CA 	11 	2023 UT App 56
consider the ALJ’s findings of fact and conclusions of law in order
to determine whether a letter of caution, or suspension or
revocation of the respondent’s certification is appropriate based
upon the ALJ’s findings and the POST Disciplinary Guidelines[.]”
Id. R728-409-14(5). The subsection that follows addresses Demill’s
argument directly and expressly limits the Council’s authority by
providing, “The council does not have appellate review authority
of 	the 	ALJ’s 	findings 	of 	fact 	and 	conclusions 	of 	law.” 	Id.
R728-409-14(6). Therefore, the Council must accept the findings of
fact and conclusions of law presented by the ALJ and must enter
its 	disciplinary 	decision 	with 	reference 	to 	those 	facts 	and
conclusions. Based on this statutory language, we focus the
remainder of our consideration on the authority of the ALJ to
expand the constitutional privacy right recognized in Lawrence.
¶20 	As already noted, POST “may not investigate conduct that
is limited to . . . sexual activity protected under the right of privacy
recognized by the United States Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003).” Id. R728-409-4(2)(b). In Lawrence,
police officers responded to a “reported weapons disturbance” at
a private residence. 539 U.S. at 562. The officers entered the
residence and saw Lawrence and another adult man engaging in
sexual 	activity. 	Id. 	at 	562–63. 	Both 	men 	were 	arrested 	and
convicted of deviate sexual intercourse for engaging in sexual
relations with a member of the same sex. Id. at 563. The United
States Supreme Court reversed. In its decision, the Court held:
Liberty 	protects 	the 	person 	from 	unwarranted
government intrusions into a dwelling or other
private places. In our tradition the State is not
omnipresent in the home. And there are other
spheres of our lives and existence, outside the home,
where the State should not be a dominant presence.
Freedom extends beyond spatial bounds. Liberty
presumes 	an 	autonomy 	of 	self 	that 	includes

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freedom of thought, belief, expression, and certain
intimate conduct.
Id. at 562. Demill argues that Lawrence’s mention of “other private
places” is applicable to his case and includes a staff restroom at a
state correctional facility. But, as noted by the ALJ, Demill
identifies no case that defines further or expands on the privacy
right identified by Lawrence, i.e., the right to engage in consensual
sexual conduct in a person’s own home.
¶21 	In considering the applicability of Lawrence to this case, the
ALJ expressly recognized that “the [Lawrence] Court determined
that homosexual conduct between consenting adults in a home is
entitled to protection under the fundamental right to privacy.”
The ALJ determined that “the clear holding of the case is not on
point with the facts of this case,” noting that “[t]he holding of the
Lawrence case involves sexual conduct in the home—not the
workplace,” 	which 	“is 	not 	an 	insignificant 	difference 	and
differentiates this case from the exception carved out by the
reference to the Lawrence case in the administrative rule.” The ALJ
also noted that “there appears to be no caselaw that identifies
those ‘other private places’ and none which specifically assess the
right to privacy in a workplace or workplace bathroom.” The ALJ
further recognized that Demill may have a constitutional right to
privacy but noted “Demill is suggesting that the existing caselaw
on privacy rights be extended to include workplace bathrooms”
and “[t]hat is not an unreasonable request, and may be a winning
argument, 	but 	it 	is 	certainly 	outside 	the 	power 	of 	this
administrative adjudication process to extend privacy rights into
uncharted territory.”
¶22 	We conclude the ALJ correctly determined that the privacy
considerations in Lawrence were not presented here. Demill’s
actions occurred at his place of employment, a State correctional
facility, and did not implicate a privacy interest of the sort that
obtains when one is in one’s own home. Further, although the ALJ

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observed that Demill may have a good argument for an extension
of the right to privacy beyond the context of sexual activity at
home, Demill did not—and does not here—present any type of
meaningful 	analysis 	of 	Lawrence 	or 	develop 	a 	substantial
argument to demonstrate that the Lawrence doctrine has been or
should be expanded to include workplace restrooms as having the
same level of privacy protections as homes. Accordingly, we
conclude 	the 	ALJ 	was 	correct 	and 	that 	the 	circumstances
presented here are distinguishable from those in Lawrence.
¶23 	We note that the relief Demill requests from this court is a
remand to the Council, with an instruction to consider—or to
direct the ALJ to consider—Demill’s argument that the scope of
the right recognized in Lawrence should be expanded to recognize
a 	constitutional 	right 	to 	privacy 	that 	would 	protect 	public
employees who masturbate at work, in a private setting, from
disciplinary action. He does not ask this court to undertake that
analysis and to interpret the applicable statute accordingly, and
to then direct the Council to reinstate Demill’s POST certification.
He has not shown that in enacting rule R728-409-4(2)(b), POST’s
reference to Lawrence was meant to embrace a notion of privacy
broader than the one specifically recognized in Lawrence, much
less that the right has evolved to extend constitutional protection
to 	private 	masturbation 	by 	a 	public 	employee 	at 	work.
Accordingly, in the posture of this judicial review proceeding, we
have no occasion to consider and resolve these issues.
CONCLUSION
¶24 	The 	ALJ 	was 	correct 	that 	Demill’s 	conduct 	was
distinguishable from the conduct at issue in Lawrence. And
without 	argument 	demonstrating 	that 	the 	privacy 	right
recognized 	in 	Lawrence 	and 	included 	in 	the 	applicable
administrative rule likewise extends to a workplace restroom, we
decline to disturb the Council’s order suspending Demill’s peace
officer certification.