Standards of Proof and Due Process

Police Union Official Accused of Wrongdoing Gets His Job Back, and a Comment on Due Process and Standards of Proof

By Ken K. Gourdin

The Salt Lake Tribune reports that the Salt Lake City Civil Service Commission has reinstated Salt Lake City Police Officer Tom Gallegos, who was fired by Chief Chris Burbank after Gallegos was accused double dipping and mishandling union funds when he simultaneously was an officer in both a national and a local union organization.  Gallegos professed confusion over what reimbursements he received actually were for, an explanation the Commission apparently found credible.  In response to this story—, last accessed January 16, 2014—I wrote:

One potential solution to questionable situations such as those encountered by Officer Gallegos is to not allow people to hold office simultaneously in national organizations and in local organizations. [This would eliminate any question of what a remuneration is for, because an official could only “wear one hat at a time.]  And however reasonable Officer Gallegos’s explanations for his actions, the question remains whether a reasonable law enforcement officer/union official in his situation would have made the same assumptions he apparently did. The Civil Service Commission apparently felt that those assumptions were reasonable, but wherever there is a potential for doubt or confusion, it’s always better to never assume. Whatever one might gain by not asking questions in the short run is not worth what one might lose in the long run.

One point I failed to make in the above reply is that I’m not certain what the standard of proof is in proceedings before the Civil Service Commission.  It’s very likely below the standard for criminal cases of “beyond a reasonable doubt”—that is, beyond a doubt that a reasonable person would entertain. For example, on the one hand, “Aliens possessed the defendant and overrode his will” would not be a basis for reasonable doubt that a sane defendant committed a criminal act.  On the other hand, a credible alibi might well constitute such a basis.  Alternately, if the standard is “by a preponderance of the evidence” (50 percent plus a smidgeon), obviously that works in favor of Officer Gallegos.  The standard could be “by clear and convincing evidence,” which one on-line legal dictionary defines simply as, “evidence that establishes the truth of a disputed fact by a high probability.”  Hence, “By clear and convincing evidence” is higher than a preponderance, but lower than beyond a reasonable doubt.

One commenter implicitly equated the wrongdoing of which Officer Gallegos was accused with the highly-publicized apparent wrongdoing of former Utah Attorney General John Swallow, snorting derisively, “Sounds like he [Gallegos] should run for Attorney General.”  I pointed out, however, that the two cases are dissimilar:

I have extremely little patience for wrongdoing by public officials, especially when such wrongdoing is committed by police officers and prosecutors. That said, the facts reported in the Tribune in both cases indicate to me that the wrongdoing of which Mr. Swallow has been accused is much more blatant and clear-cut than that of which Officer Gallegos was accused. Obviously, the Civil Service Commission found Officer Gallegos’s explanations for his actions credible. There is much less reason to say the same for Mr. Swallow’s explanations.

The poster’s derisive response calls to mind an excerpt from something I wrote some time ago:

What people often fail to understand is that just as “Joe Citizen” must be accorded certain rights, due process, and procedural safeguards when accused of wrongdoing, so must officers, prosecutors, judges, and jurors be accorded those things when accused of wrongdoing.  Mere dissatisfaction with an outcome or interaction is insufficient to support a claim of wrongdoing.  Without more than a bare allegation, a charge of wrongdoing is unlikely to be sustained.  And the person complained of must have his or her rights safeguarded, must receive due process, and must be protected by procedural safeguards.  Given the frequency of interaction between these officials and the public they are supposed to serve, complaints from the public are apt to be quite common (whether evidence exists to support them or not). It’s at least as important to safeguard the rights of public officials who are accused of wrongdoing as it is to safeguard the rights of members of the general public who are accused of wrongdoing.  Too often, though, the attitude of too many in the public regarding such cases is, “Rights, due process, and procedural protections for me, but not for thee.”1


1. Ken K. Gourdin (ca. July 30, 2012), “Is The System Really That Broken? Observations on Public Distrust and Potential Solutions” 9-10, available on line at the following address, last accessed January 17, 2014:

About kenngo1969

Just as others must breathe to live, I must write. I have been writing creatively almost ever since I learned to write, period! I have written fiction, book- and article-length nonfiction, award-winning poetry, news, sports, features, and op-eds. I hope, one day, to write some motivational nonfiction, a decent-selling novel, a stage play, and a screen play.
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