Benson v. Standards

• Decision Date: 08 July 2011
• Docket Number: No. 20080579–CA.,20080579–CA.
• Citation: 261 P.3d 643,686 Utah Adv. Rep. 4,2011 UT App 220
• Parties: Ron BENSON, Petitioner,v.PEACE OFFICER STANDARDS AND TRAINING COUNCIL, Department of Public Safety, State of Utah, Respondent.
• Court: Utah Court of Appeals

261 P.3d 643

686 Utah Adv. Rep. 4

2011 UT App 220

Ron BENSON, Petitioner,

v.PEACE OFFICER STANDARDS AND TRAINING COUNCIL, Department of Public Safety, State of Utah, Respondent.

No. 20080579–CA.

Court of Appeals of Utah.

July 8, 2011.

Phillip W. Dyer and Carey A. Seager, Salt Lake City, for Petitioner.Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Respondent.Before Judges DAVIS, ORME, and THORNE.

OPINION

THORNE, Judge:

¶ 1 Petitioner Ron Benson appeals from the Peace Officer Standards and Training (POST) Council's final decision including a finding that Benson had willfully submitted false information to obtain certified status. We affirm in part and reverse in part.

BACKGROUND

¶ 2 In 1998, Benson retired after a twenty-year career as a peace officer with the Utah Department of Corrections (Department of Corrections). That same year, Benson accepted a peace officer position as an investigator for the State Department Division of Insurance and Fraud. In 2000, Benson resigned from that position to accept employment in the private sector. In 2003, Benson decided to pursue re-employment with the Department of Corrections. The position required POST certification.

¶ 3 Benson sought POST recertification and contacted a POST technician, Jayme Garn. She informed Benson that he would not require recertification if he had maintained reserve officer status during the period from 2000 to 2004. Benson then contacted his previous supervisor, Leo Lucey, Deputy Director of the Division of Adult Probation and Parole Administration, who provided a memo to Garn (the Lucey Memo) which provided as follows, “Retired officer Ron Benson signed a reserve officer agreement with the Department of Corrections region IV office of adult probation and parole dated 2–9–2000. A copy of that agreement can be provided if needed.” Garn thereupon issued a letter, dated October 1, 2003, stating that Benson “is certifiable as a Law Enforcement Officer in the State of Utah as of October 1, 2003. Please advise this office when he has been hired so that we may issue his certification.” In February 2004, the Department of Corrections offered Benson employment as a peace officer.

¶ 4 In 2005, a question regarding Benson's status was raised by Department of Corrections personnel. On March 15, 2005, the executive director of the Department of Corrections, Scott Carver, directed Benson to apply for and take the statutory waiver examination to address any perceived concerns. The POST In–Service Director, Jim Keith, reviewed Benson's application and determined that the examination was not necessary and that Benson could reactivate his peace officer certification by submitting his training record for 2004. Benson submitted said information. Upon Keith's direction, Letisha Shelby, a POST technician, issued a letter dated April 26, 2005, to Benson confirming that his peace officer certification was effective as of March 4, 2004.

¶ 5 In 2006, the Utah State Legislature undertook an audit of the Department of Corrections. During the audit, questions arose concerning the accuracy of Benson's reserve officer status and POST certification. An internal investigation demonstrated that there were inconsistencies which would not support his status as a reserve officer during the relevant time period. When applying the statutory provisions governing reserve officers to Benson, see Utah Code Ann. § 53–13–112 (2007), the investigator determined that Benson had not performed as a reserve officer for corrections during the time period 1998 to 2004 and Benson's certification was therefore invalid due to violations of Utah Code section 53–6–208(2), the law governing lapsed peace officer certification. Utah Code section 53–6–208(2) provides that the “certificate of a peace officer lapses if he has not been actively engaged in performing the duties of a peace office for four continuous years” and subject to the section on statutory waiver examination at the director's discretion, see id. § 53–6–206, “the peace officer shall successfully complete the basic training course before the certificate may be reissued or reinstated.” Id. § 53–6–208(2)(a)–(b).

¶ 6 In 2007, POST lodged an administrative complaint against Benson wherein Lynne Nelson, Chairman of the Utah Council of POST, alleged that Benson had willfully provided both written and verbal information that was false seeking to obtain certified status in violation of Utah Code section 53–6–211(1)(d)(i) and POST Administrative Rule 728–409–3(A) and requested the refusal of Benson's request for peace officer certification.

¶ 7 Administrative Law Judge Cheryl D. Luke (the ALJ) held a formal hearing on the administrative complaint against Benson. The ALJ found, among other things, that Benson willfully submitted falsified information to POST in order to obtain certified status.¹ The ALJ made the following recommendation to the POST Council:

Mr. Benson was not engaged in the duties of a law enforcement officer from January 1, 2000 to March 2004. His certification lapsed and is subject to the provisions of Utah Code ... [s]ection 53–6–208. The Director of POST has the authority and discretion to allow for reinstatement by waiver exam. In this case the Director of POST has refused reinstatement by waiver exam and the evidence supports the exercise of discretion. POST has met its burden in proving Count I of the Administrative Complaint and the refusal to recertify by waiver is appropriate.²

Benson appealed the findings and recommendation to the POST Council. A POST Council meeting was held wherein Sheriff Bud Cox made a motion to accept the ALJ's determination that Benson's POST certification lapsed in January 2004. The motion passed. Thereafter, POST director Scott Stephenson issued a final order adopting the ALJ's recommendation and accepting the ALJ's factual findings including that the ALJ found that Benson “obtained and submitted documents to POST in an effort to counter a finding that [Benson's] certification had lapsed. The ALJ found that [Benson] willfully submitted falsified information to POST to obtain certified status. The Council accepts these findings of fact in support of the Agency Action taken herein.”

ISSUES AND STANDARDS OF REVIEW

¶ 8 Benson argues that POST is estopped from taking any adverse action concerning his peace officer certification because Benson relied on the issuance of the certification and worked for nearly three years thereafter. Equitable estoppel is assertible against the state only in “unusual situations in which it is plainly apparent that failing to apply the rule would result in manifest injustice.” Holland v. Career Serv. Review Bd., 856 P.2d 678, 682 (Utah Ct.App.1993). “In such cases, the critical inquiry is whether it appears that the facts may be found with such certainty, and the injustice to be suffered is of sufficient gravity, to invoke the exception.” Id. (internal quotation marks omitted).

¶ 9 Benson next argues that the POST director erroneously adopted the ALJ's finding that Benson willfully submitted false information to obtain certified status in violation of Utah Code section 53–6–211(1)(d)(i), see Utah Code Ann. § 53–6–211(1)(d)(i) (2007), because the ALJ's finding was not supported by a preponderance of the evidence. This issue presents a factual determination that should be overturned on appeal only if substantial evidence fails to support it. See Martinez v. Media–Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶¶ 35–36, 164 P.3d 384. “In order to determine whether a decision is supported by substantial evidence, the reviewing court must consider the whole record before the lower court.” Id. ¶ 36.

¶ 10 Benson also asserts that POST committed reversible error when it failed or refused to rule on Benson's disparate treatment argument. Whether an agency “decided all of the issues requiring resolution is a question of law reviewed for correctness.” Orchard Park Care Ctr. v. Department of Health, 2009 UT App 284, ¶ 8, 222 P.3d 64 (citation and internal quotation marks omitted); see also Utah Code Ann. § 63G–4–403(4)(c) (2008); EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43, ¶ 7, 157 P.3d 334.

¶ 11 Benson further asserts that POST abused its discretion and acted contrary to its past practice when it ignored the fact that Benson successfully passed the statutory waiver examination, which cured any alleged certification lapse. “Claims that an agency decision is contrary to the agency's prior practice are ... reviewed to determine if an inconsistency is justified by a fair and rational basis.” Road Runner Oil, Inc. v. Board of Oil, Gas & Mining, 2003 UT App 275, ¶ 25, 76 P.3d 692 (internal quotation marks omitted); see also Utah Code Ann. § 63G–4–403(4)(h)(iii).

ANALYSIS

I. Equitable Estoppel

¶ 12 Benson argues that because POST reactivated his peace officer certification, the agency is now prohibited from refusing or denying him the certification previously issued based on the doctrine of equitable estoppel. “[I]t is well settled that equitable estoppel is only assertible against the State or its institutions in unusual situations in which it is plainly apparent that failing to apply the rule would result in manifest injustice.” Holland v. Career Serv. Review Bd., 856 P.2d 678, 682 (Utah Ct.App.1993). Thus, “the critical inquiry is whether it appears that the facts may be found with such certainty, and the injustice to be suffered is of sufficient gravity, to invoke the exception.” Id. (internal quotation marks omitted). Further, as noted by the supreme court in Anderson v. Public Service Commission, 839 P.2d 822 (Utah 1992), “ ‘[t]he few cases in which Utah courts have permitted estoppel against the government have involved very specific written representations by authorized government entities.’ ” Holland, 856 P.2d at 682 (emphasis omitted) (quoting Anderson, 839 P.2d at 827).

¶ 13 The elements necessary to...