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Although employment in Utah is generally presumed to be "at-will," many Utah municipal employees enjoy statutory guarantees of due process with respect to
significant decisions affecting their employment status. Moreover, employees who are shielded from discharge without "sufficient cause" have a proprietary interest in continued
employment, which interest is protected both by the United States Constitution's Fourteenth Amendment guarantee that "no state shall deprive any person of property without due
process of the law," and by the Utah Constitution's analogous provision under article 1, section 7.1
The following discussion focuses
on due process rights of Utah's municipal employees with respect to discharge from their public employment. After identifying the statutory sources of these rights, it reviews Utah state
court opinions describing appropriate procedural mechanisms for insuring their protection. Importantly, the principles and legal standards set forth in these opinions would apply as well
to disputes involving demotion or discharge of public employees generally.
I. Statutory Sources of Due Process Rights for Utah Municipal Employees
The Utah Municipal Code
governs all municipalities within the State of Utah, "except as otherwise specifically excepted by the home rule provisions of Article XI, Section 5 of the Constitution of the State
of Utah."2 Each municipality's executive branch is vested with responsibility for drafting a municipal administrative code to "prescribe rules and regulations which are not inconsistent with the laws of this state, as it deems best for the efficient administration, organization, operation, conduct and business of the municipality."3 While many municipalities look to standard models for guidance (see, e.g., the Utah League of Cites and Towns' Municipal Document Library,
accessible online at www.ulct.org/resources/ordinance_codes/minidocs.html), each municipality enjoys the freedom
to craft its own, unique municipal administrative code. As a result, practitioners must be careful to identify from the outset the particular statutes, rules and regulations that govern
any particular dispute involving a municipal employee.
A. The "Classified Civil Service"
The Utah Municipal Code identifies classified civil service employees as follows:
The classified civil service shall consist of . . . the police department and the fire department of each city of the first and second class, and the health department in
cities of the first class, except the head of the departments, deputy chiefs of the police and fire departments and assistant chiefs of the police department in cities of the first
and second class, and the members of the board of health of the departments.4
Further,
Any person [in the classified civil service] suspended or discharged [by the department head] may, within five days from issuance by the head of the department of the
order suspending or discharging him, appeal to the civil service commission, which shall fully hear and determine the matter. The suspended or discharged person shall be entitled to
appear in person and to have counsel and a public hearing.5
The Civil Service Commission "has the statutory authority to conduct appeals brought by suspended or discharged employees, and in that regard, to make two inquiries: (1)
do the facts support the charges made by the department head, and if so, (2) do the charges warrant the sanction imposed?"6 The second prong "breaks down into two sub-questions: First, is the sanction proportional; and second, is the sanction consistent with previous sanctions imposed by the department pursuant to its own policies."7
A department head's determination to discharge or suspend a subordinate cannot be remanded or modified by the Civil Service Commission.
Instead, the Commission's only options are either to uphold or to vacate that determination.8 Thereafter, "[a]ny final action or order from the commission may be appealed to the Court of Appeals for review. The notice of appeal must be filed within 30 days of the issuance of the final action or order of the commission. The review by the Court of Appeals shall be on the record of the commission and shall be for the purpose of determining if the commission has abused its discretion or exceeded its authority."9
B. Other Municipal Employees
Municipal employees who are neither among the classified civil service, nor employed as department heads or superintendents,
"shall hold their employment without limitation of time, being subject to discharge or dismissal only as hereinafter provided."10 Thus,
(1) . . . In all cases where any officer or employee is discharged or transferred from one position to another for any reason, he shall have the right to appeal the
discharge or transfer to a board to be known as the appeal board which shall consist of five members, three of whom shall be chosen by and from the appointive officers and employees,
and two of whom shall be members of the governing body.
(2) The appeal shall be taken by filing written notice of the appeal with the recorder within ten days after the
discharge or transfer. . . . [T]he appeal board shall forthwith commence its investigation, take and receive evidence and fully hear and determine the matter which relates to the
cause for the discharge or transfer.
(3) The employee shall be entitled to appear in person and to be represented by counsel, to have a public hearing, to confront the witness
whose testimony is to be considered, and to examine the evidence to be considered by the appeal board.
(4) In the event the appeal board upholds the discharge or transfer, the
officer or employee may have 14 days thereafter to appeal to the governing body whose decision shall be final. In the event the appeal board does not uphold the discharge or transfer
the case shall be closed and no further proceedings shall be had.
(6) In the event that the appeal board does not uphold the discharge or transfer . . . [t]he employee [may]
report[] for his assigned duties during th[e] next working day.11
Under these provisions, there is no right of appeal in the Court of Appeals.12 Consequently, the Appeal Board has ultimate authority to uphold or vacate the contested discharge or transfer.
II. The Right to a "Full Hearing"
A suspended or discharged classified civil service employee is "entitled to appear in person and to have counsel and a
public hearing" before the local civil service commission.13 While hearings before a civil service commission are not subject to the Utah Administrative Procedures Act (e.g. Lucas, 949 P.2d at 755-56), the Court of Appeals has endorsed "the basic approach" employed by the UAPA in connection with claims of disparate treatment, in particular with regard to the burden of proof analysis:
Under this framework, the burden [is on the petitioner] to establish a prima facie case that [the department head] acted inconsistently in imposing [disciplinary]
sanctions by presenting sufficient evidence from which the Commission [can] reasonably find a relevant inconsistency. This burden of proof is not unlike claims of disparate discipline
of public employees on the basis of race, where the disciplined employee must first make out a prima facie case by pointing to specific instances or statistics, rather than relying on
an unsupported assertion of inconsistent punishments. While there is no requirement in this context that [the petitioner] show the disparity is motivated by race or even animosity,
she must, at a minimum, carry the burden of showing some meaningful disparity of treatment between herself and other similarly situated employees.14
The Court of Appeals interpreted that minimal showing to require "similar factual circumstances leading to a different result without explanation."15
"An employee's right to fair notice and an opportunity to 'present his [or her] side of the story' before discharge is not a matter of legislative grace, but of
'constitutional guarantee.'" Post-deprivation procedures, while not constitutionally guaranteed, must comport with due process requirements providing for a fair hearing. . . . .
[B]efore termination, minimum due process entitles an employee to oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee
to present his or her side of the story in "'something less' that a full evidentiary hearing."16
The right to a full and fair hearing is not without limits. "The fundamental requirement of due process is the opportunity to be heard, at a meaningful time and in a
meaningful manner, and, when this opportunity is granted a complainant, who chooses not to exercise it, the complainant cannot later plead a denial of procedural due process."17 These limits were pressed by the petitioner in Joseph v. Salt Lake City Civil Service Commission,18 Joseph appealed his termination from the police department to the Salt Lake City Civil Service Commission. His appeal was dismissed as a sanction for egregious failure to cooperate during discovery.19 He challenged the dismissal in the Court of Appeals, arguing that imposition of such a drastic discovery sanction deprived him of his due process right to a full hearing before the Commission.20 While noting his statutory right to a post-termination hearing before the Commission, the appellate court nevertheless found that right to be conditioned on the petitioner's cooperation in the process; Joseph's "willfulness, bad faith . . . fault, or persistent dilatory tactics" justified the imposition of sanctions, including dismissal of his appeal.21
III. Review by the Utah Court of Appeals
The Utah Municipal Code provides that:
[a]ny final action or order of the commission may be appealed to the Court of Appeals for review. The notice of appeal must be filed within 30 days of the issuance of the
final action or order of the commission. The review by [the] Court of Appeals shall be on the record of the commission and shall be for the purpose of determining if the commission
has abused its discretion or exceeded its authority.22
The Court of Appeals states its standard of review as follows:
We review the final decision of the Commission only "for the purpose of determining if the commission has abused its discretion or exceeded its authority." Our
review is limited to "the record of the commission. 'Discretion may be best viewed as an arena bounded by the law, within which the [Commission] may exercise its judgment as it
sees fit.' Unless the commission 'has stepped out of the arena of discretion and thereby crossed the law,' we will affirm the Commission's order." Insofar as . . . the
Commission's factual findings [are concerned], we employ a clearly erroneous standard.23
The Court of Appeal's powers of review are limited to affirming or reversing the decision below, described by Judge Orme in Kelly as "an all-or-nothing proposition."24 Just as is the case with the Civil Service Commission, the Court of Appeals has no power to remand or modify the employment decision on appeal.
IV.Misconduct Justifying Termination from Public Employment
A. Sufficient Cause For Termination
In Kelly v. Salt Lake City Civil Service Commission,25 a ten-year veteran of the Salt Lake City police department was discharged after an incident involving her overdose of Ambien, a prescription sleep aid, and then repeatedly telephoning police and fire dispatchers in the wee hours of the morning with a barrage of threats, false fire reports, and sexual innuendos directed to the dispatch operators and a co-worker. Thereafter, the police chief made the decision to terminate her employment, prompted in part by "the need to protect the citizens of Salt Lake."26
The basis for Kelly's termination was the incident described above in combination with a "history of sustained complaints" ranging
from attendance and performance issues to two suicide attempts, both involving overdoses of prescription drugs.27 Following the second attempted
suicide, Kelly's "fitness for duty" evaluation concluded that she had a substance abuse problem. The police chief warned her in a disciplinary letter that her continued
employment was conditioned on her participation in a monitored treatment program and indefinite absolute sobriety, and any similar future conduct "will be cause for further
disciplinary action up to and including termination."28 Nevertheless, Kelly displayed an "uncooperative attitude" in connection with her substance abuse treatment program, and shortly thereafter was involved in a single-car accident in her police vehicle.
A few months before the incident leading to her termination, Kelly called in with a series of excuses for not reporting to work: she was waiting for an exterminator to arrive at
her home, the exterminator had arrived, she had to visit her pet's veterinarian. These excuses alerted her supervisor's suspicion and, in the course of an internal investigation, Kelly
admitted she had lied. Her division commander recommended she be terminated, but the police chief issued a reprieve and stated in a letter "You are hereby put on notice that ANY
future violation of Department policy will not be tolerated and if such violation(s) occur, your employment status will be in jeopardy."29
Interestingly, in a subsequent appeal of the termination decision to the Court of Appeals, "both sides agree[d] [that the single incident immediately prior to Kelly's
termination] was not enough, by itself, to warrant Kelly's termination."30 It was only in combination with the other past misconduct that Kelly's conduct described in the first paragraph of this section warranted termination.31 This distinction strongly suggests that a single incident of misconduct will rarely provide sufficient basis to terminate a public employee. The court characterized the incident as the "final straw" and emphasized that Kelly had been made aware of the risk she ran by engaging in further misconduct and, in particular, misconduct involving substance abuse.32
B. Insufficient Cause For Termination
In Lucas v. Murray Civil Service Commission,33 a police officer was terminated in the wake of an internal affairs investigation into an "excessive force" charge. Prior to the incident, Lucas had never been reprimanded, disciplined or investigated and was, by all accounts, an outstanding officer. However, it was concluded by his lieutenant that Lucas had responded dishonestly to questions regarding whether or not he pulled his gun out of its holster while searching an arrestee. This conclusion was based on conflicting accounts by Lucas and fellow officers present at the stationhouse during the search. Lucas' lieutenant recommended termination, which the police chief carried out.34
On appeal, Lucas asserted, inter alia, that his discharge was in retaliation for previous complaints against his lieutenant and the
police chief. The Court of Appeals found that inconsistent evidence regarding the various officers' uncorroborated accounts of the events in question was inadequate proof that Lucas had
lied.35 Moreover, the Court found that Lucas' termination was disproportionate by comparison with discipline meted out to other similarly situated officers. The Court was especially moved
by Lucas' outstanding service record over his twelve years with the Murray City Police Department. "Even assuming that Lucas was dishonest about the position of his gun [in or out of
its holster], termination was so disproportionate under the facts of this case to the charge of dishonesty that it amounted to an abuse of the Chief's discretion."36 Accordingly, the
Court of Appeals reversed the termination decision, and reinstated Lucas with backpay.37 This result reinforces the conclusion that a single incident of misconduct will rarely constitute
an adequate basis for discharge from public employment.
Conclusion
To avoid unwitting due process violations, it is critical that Utah municipalities, like all public
employers, educate themselves about the legal limitations on management and discipline of their employees. As employees become increasingly aware of their rights in the workplace, and
increasingly willing to fight for those rights, a prudent employer will take care to implement procedural protections in accordance with the governing statutory framework, as well as to
create appropriate channels for employee grievances. Ideally, the result will be a system of management that is viewed as consistent and fair by all who are affected by its actions.
Pragmatically, the employer will be able to defend those actions before a reviewing tribunal.
Footnotes
1. Lucas v. Murray City Civil Service Comm'n, 949 P.2d 746, 752 & n.3 (Utah Ct. App. 1997); see also Worrall v. Ogden City Fire Dep't, 616 P.2d 598, 601 (Utah 1980).
2. Utah Code Ann. ¤ 10-1-106; see generally Utah Code Ann. ¤¤ 10-1-1 through 10-17-105.
3. Utah Code Ann. ¤ 10-3-815; see also Utah Code Ann. ¤¤ 10-3-1221 & -1227.
4. Utah Code Ann. ¤ 10-3-1002.
5. Utah Code Ann. ¤ 10-3-1012.
6. Kelly v. Salt Lake City Civil Service Commission, 8 P.3d 1048, 2000 UT App 235, ¦ 16.
7. Id. at ¦ 21.
8. Salt Lake City Corp. v. Salt Lake City Civil Service Comm'n, 908 P.2d 871, 877 (Utah Ct. App. 1995).
9. Utah Code Ann. ¤ 10-3-1012.5.
10. Utah Code Ann. ¤ 10-3-1105.
11. Utah Code Ann. ¤ 10-3-1106.
12. Accord Gord v. Salt Lake City, 434 P.2d 449, 453 (Utah 1967)
(holding that "the final ruling on the [municipal employee's] discharge rested with the City Commission.").
13. Utah Code Ann. ¤ 10-3-1012.
14. Kelly, 2000 UT App. 235, ¦¦ 29-30 (adopting burden-of-proof analysis proposed in Justice Durham's dissenting opinion in SEMECO Industries v. State Tax Comm'n, 849 P.2d 1167, 1174 (Utah 1993)).
15. Id. at ¦ 31.
16. Lucas, 949 P.2d at 753 (emphasis added) (internal citations omitted) (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)).
17. Utah Dep't of Transportation v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995).
18. 53 P.3d 11, 2002 UT App 254.
19. Id. at ¦¦ 4-5.
20. Id. at ¦ 10.
21. Id. at ¦¦ 12-13.
22. Utah Code Ann. ¤ 10-3-1012.5; see also Joseph, 2002 UT App 254, ¦ 9 (noting expansion of appellate court's jurisdiction beyond scope of its
authority pursuant to Utah Code Ann. ¤ 78-2a-3(b)(i)).
23. Kelly, 2000 UT App 235, ¦ 11 (internal citations omitted). Cf., Lucas, 949 P.2d at 758 (appellate court applies
"the 'substantial evidence' standard applicable to a state administrative agency's findings of fact").
24. Id. ¦ 23 (citing Salt Lake City Corp. v. Salt Lake City Service Comm'n, 908 P.2d 871 (Utah Ct. App. 1995)).
25. 8 P.3d 1048, 2000 UT App 235.
26. Id. at ¦ 6 (internal punctuation omitted).
27. Id. at ¦¦ 6-8.
28. Id. at 9.
29. Id. at 11.
30. Id. at 24 (emphasis added).
31. Id.
32. Id. at 25.
33. 949 P.2d 476 (Utah Ct. App. 1997).
34. Id. at 749-51.
35. Id. at 758.
36. Id. at 762.
37. Id. at 763.
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