Becker v. Sunset City

• Court: Utah Supreme Court
• Writing for the Court: Justice DURHAM
• Citation: Becker v. Sunset City, 309 P.3d 223, 741 Utah Adv. Rep. 5 (Utah 2013)
• Decision Date: 13 August 2013
• Docket Number: No. 20120320.,20120320.
• Parties: Stewart BECKER, Plaintiff and Appellant, v. SUNSET CITY, Defendant and Appellee.

309 P.3d 223

741 Utah Adv. Rep. 5

Stewart BECKER, Plaintiff and Appellant,

v.SUNSET CITY, Defendant and Appellee.

No. 20120320.

Supreme Court of Utah.

Aug. 13, 2013.

Jerald D. Conder, Salt Lake City, for petitioner.

Gary L. Johnson, Zachary E. Peterson, Kallie A. Smith, Salt Lake City, Felshaw King, Kaysville, for respondent.

On Certiorari to the Utah Court of Appeals.

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 The Sunset City Police Department fired Officer Stewart Becker for reporting for duty under the influence of alcohol. The Sunset City Board of Appeals and the Utah Court of Appeals affirmed the termination decision. We granted certiorari on two issues: (1) whether a portable breath test (PBT) result provided sufficient evidentiary support to uphold Sunset City's decision to terminate Mr. Becker and (2) whether Utah Code section 34–38–7 permitted Sunset City to rely on a clause contained in its policy manual that allowed it to depart from the manual's specified procedure of testing urine to establish blood alcohol content.

¶ 2 We affirm. The Sunset City Board of Appeals properly determined that the PBT result constituted substantial evidence supporting Sunset City's decision to fire Mr. Becker. In addition, Utah Code section 34–38–7 does not prohibit Sunset City from relying on the PBT because this statute does not apply to government employers.

BACKGROUND

¶ 3 Mr. Becker was employed as a police officer in the Sunset City Police Department. On April 1, 2007, Mr. Becker finished a shift at 6:00 a.m. and was scheduled to report back for a second shift at 2:00 p.m. that afternoon. When Mr. Becker arrived for work at 2:00 p.m., he discussed the shift change with his supervisor, Sergeant Bruce Arbogast. Sergeant Arbogast immediately noticed a strong odor of alcohol coming from Mr. Becker. Mr. Becker admitted that he had consumed approximately five shots of liquor before going to bed at 8:00 or 9:00 a.m. that morning. Based on his observations and Mr. Becker's statements, Sergeant Arbogast requested that Mr. Becker blow into a PBT. Mr. Becker offered to use his own PBT, telling Sergeant Arbogast that he knew it was “pretty accurate.” Mr. Becker blew into the PBT, which registered a breath alcohol content of .045 grams.

¶ 4 At about the same time, two Utah State troopers arrived to update the clock on an intoxilyzer machine located in Sunset City's police headquarters for daylight savings time. The troopers approached Mr. Becker to discuss his new police vehicle and immediately noticed a strong odor of alcohol coming from him. The troopers expressed their concern to Sergeant Arbogast and said they were considering performing field sobriety tests on Mr. Becker. Sergeant Arbogast told the troopers that he was aware of the situation and that he was taking care of it.

¶ 5 Mr. Becker asked Sergeant Arbogast not to inform the chief of police, Ken Eborn, about the incident and requested that he be allowed to wait in the office until the alcohol in his system dissipated to the point that he could resume his duties. Sergeant Arbogast declined both requests and called Chief Eborn, who relieved Mr. Becker of duty and scheduled a disciplinary meeting for the following day.

¶ 6 At the disciplinary meeting, Mr. Becker again admitted to using alcohol before coming to work, increasing his estimated consumption to between six and eight shots of liquor. Mr. Becker stated that he did not dispute the amount of alcohol in his system because his PBT was fairly accurate. Instead he asked for leniency. Chief Eborn, however, determined that the seriousness of the violation warranted termination.

¶ 7 The department issued a termination letter to Mr. Becker, which stated: “The decision to terminate has been made as a result of you reporting for duty on April 1, 2007 with a Blood Alcohol Content of .045 in violation of Sunset Police Department Policy and Procedure Manual Section 3–03–02.0, 1–01–04.00 and Sunset City Policy Manual section 4.2.4(D).” The Sunset Police Department policy manual and Sunset City policy manual referenced in the termination letter (collectively, Alcohol Policy) provide that an officer shall not “report for duty while under the influence of intoxicants.” The Alcohol Policy defines “under the influence” to mean “when an employee is affected by drugs or alcohol ... to the extent that it affects his or her ability to perform their job in a safe manner. An employee ... whose tests detect[ ] a Blood Alcohol Content (BAC) of 0.04 or greater, shall be deemed under the influence.” The Alcohol Policy also states that being on the job while under the influence of alcohol is a serious offense that will usually result in termination.

¶ 8 Mr. Becker appealed his termination to the Sunset City Board of Appeals. At the hearing before the board of appeals, Sunset City presented undisputed testimony that the PBT used by Mr. Becker registered a breath alcohol content of .045 grams. One of the state troopers who smelled alcohol on Mr. Becker's breath also testified that she believed it would have been dangerous for Mr. Becker to drive or respond to any calls. The appeals board issued its decision upholding the termination, and the court of appeals affirmed. We granted certiorari on two issues: (1) whether the PBT result provided sufficient evidentiary support to uphold Sunset City's decision to terminate Mr. Becker and (2) whether Utah Code section 34–38–7 permitted Sunset City to rely on a clause contained in its policy manual that allowed it to depart from the manual's specified procedure of testing urine to establish blood alcohol content. We have jurisdiction under Utah Code section 78A–3–102(3)(a).

STANDARD OF REVIEW

¶ 9 In order to arrive at the appropriate standard of review for Mr. Becker's claim that the PBT result was insufficient to support his termination, we must track the standard applied in three successive levels of review. First, on writ of certiorari we review the opinion of the court of appeals for correctness. Prinsburg State Bank v. Abundo, 2012 UT 94, ¶ 10, 296 P.3d 709. Second, in determining whether the court of appeals correctly reviewed a lower tribunal's decisions, we assess whether the court of appeals correctly applied the appropriate standard of review. Jex v. Utah Labor Comm'n, 2013 UT 40, ¶ 14, 306 P.3d 799. When reviewing a municipal appeal board's order regarding an employee's termination, the court of appeals is limited to determining whether the board “abused its discretion or exceeded its authority.” Utah Code § 10–3–1106(6)(c). Third, in determining whether the municipal appeal board abused its discretion, the court of appeals must decide whether the board correctly applied the standard governing its review of a termination decision, which is “prescribed by the governing body of each municipality by ordinance.” Id. § 10–3–1106(7)(a). The relevant Sunset City ordinance provides that its “appeals board shall sustain the discharge, suspension or transfer [of a city employee] if it is presented substantial evidence that cause existed for the discharge, suspension or transfer.” Sunset City, Utah, City Code § 1–15–2(C), available at http:// www. sterling codifiers. com/ codebook/ index. php? bookid= 575.

¶ 10 Therefore, we must decide whether the board abused its discretion in concluding that Mr. Becker's termination was supported by substantial evidence. “A decision is supported by substantial evidence if there is a quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” Ivory Homes, Ltd. v. Utah State Tax Comm'n, 2011 UT 54, ¶ 11, 266 P.3d 751 (internal quotation marks omitted).

¶ 11 Mr. Becker's second argument that the court of appeals misconstrued Utah Code section 34–38–7 is a question of statutory interpretation that we review de novo. See Vorher v. Henriod, 2013 UT 10, ¶ 6, 297 P.3d 614.

ANALYSIS

I. SUBSTANTIAL EVIDENCE SUPPORTS SUNSET CITY'S DECISION TO TERMINATE MR. BECKER

A. Due Process Constrains the Reasons for Termination We May Consider

¶ 12 In determining whether substantial evidence supports Sunset City's termination decision, our first task is to establish which reasons for his termination we may properly consider. Sunset City argues that regardless of Mr. Becker's blood alcohol content, evidence that Mr. Becker emitted a strong odor of alcohol independently justified his termination because interactions with the public in this condition would undermine the community's trust and confidence in the police department. While we agree that the potential erosion of public trust occasioned by the odor of alcohol on Mr. Becker's breath may have been a proper basis for disciplinary action, Sunset City did not notify Mr. Becker that this was one of the reasons for his termination. And we may only consider evidence supporting the reasons for termination stated in the termination letter provided to Mr. Becker in determining whether substantial evidence supports his termination.

¶ 13 Where state or local law establishes a public employee's right to continued employment absent cause for discharge, that employee holds a property interest in continued employment that is protected by the Due Process Clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Worrall v. Ogden City Fire Dep't, 616 P.2d 598, 601 (Utah 1980). Qualified public employees are entitled to the due process protections of notice and an opportunity to be heard regarding the termination of their employment. Goss, 419 U.S. at 579, 95 S.Ct. 729.

¶ 14 Except for several exclusions not applicable here, Utah has granted the procedural protection of a hearing before an appeals board to municipal employees seeking review of the termination of their employment. Utah Code §§ 10–3–1105(1)(a), 10–3–1106(2)(a); Pearson v. S. Jordan Emp. Appeals Bd., 2009 UT App 204, ¶ 10, 216 P.3d 996. The statutes governing a...