Cassidy v. Salt Lake County Fire Civil Service Council, 971525-CA

• Decision Date: 04 March 1999
• Docket Number: No. 971525-CA,971525-CA
• Citation: 976 P.2d 607
• Parties: 364 Utah Adv. Rep. 6, 1999 UT App 65 James CASSIDY, Plaintiff and Appellant, v. SALT LAKE COUNTY FIRE CIVIL SERVICE COUNCIL, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 607

976 P.2d 607

364 Utah Adv. Rep. 6, 1999 UT App 65

James CASSIDY, Plaintiff and Appellant, v. SALT LAKE COUNTY FIRE CIVIL SERVICE COUNCIL, Defendant and Appellee.

No. 971525-CA.

Court of Appeals of Utah.

March 4, 1999.

Mary J. Woodhead, Salt Lake City, for Appellant.

Douglas R. Short and Jerry G. Campbell, Salt Lake City, for Appellee.

Before GREENWOOD, Associate P.J., JACKSON and ORME, JJ.

OPINION

GREENWOOD, Associate Presiding Judge:

¶1 This case comes to us on appeal from a decision of the Third District Court affirming a ruling of the Salt Lake County Fire Civil Service Council (the Council). Appellant James Cassidy claims the Council violated his First Amendment free speech rights by failing to promote him to captain. We affirm.

BACKGROUND

¶2 The Salt Lake County Fire Department hired Cassidy on August 1, 1982, as a firefighter. His free speech claim stems from two separate incidents. The first took place in 1990 when Cassidy filed a grievance challenging a new protocol regarding the handling of fire code violations uncovered during routine inspections. Cassidy asserted, among other things, that the change was illegal and contrary to the fire department's mission. Captain Scott Collins, Cassidy's immediate superior, and Fire Chief Larry Hinman both rejected Cassidy's grievance. Cassidy then went to Terry Holzworth, Director of Public Works, who rejected Cassidy's approach to him as being outside the grievance process. Finally, Cassidy appealed to the Salt Lake County Civil Service Review Commission, which also rejected Cassidy's appeal as outside its jurisdiction.

¶3 The second incident occurred in 1992 when Cassidy objected to the creation of a "wildland fire crew." The proposed wildland fire crew would allow the fire department to hire and train part-time firefighters to fight brush fires, thus allowing full-time firefighters to concentrate on structural fires or fires threatening lives and property. After expressing his opposition to his captain and other co-workers, Cassidy approached Deputy Chief Don Berry. Although Cassidy told Deputy Berry he would "take action to see that the department didn't hire those people," he never filed a formal grievance regarding the creation of the wildland fire crew.

¶4 In October 1992, Cassidy was promoted to the position of Hazardous Material Firefighter with an increase in pay. As of October 19, 1992, Cassidy was the highest ranking candidate on the department's promotional register. Nevertheless, neither Cassidy nor Jay Miles, who were both qualified applicants, was interviewed for a promotion announced that month. This was a violation of Salt Lake County Civil Service policy 2150.3.2.2, which required that if an individual had not been interviewed for a position within the last ninety days before the interview, he or she must be re-interviewed for the position. Because Cassidy had recently received a promotion, and because the department mistakenly believed Cassidy had been interviewed within the ninety-day window, it was assumed there was no need to interview him. The department subsequently announced that Mont Cooper was given the captain position.

¶5 Upon learning of its oversight, however, the department granted both Cassidy and Miles interviews, essentially to satisfy the technical requirements of the Civil Service rules. During Cassidy's interview, the interviewers discovered Cassidy had secreted a tape recorder under his jacket and was recording the interview. On November 23, Cassidy filed a grievance with the Council, alleging he had been denied fair procedure in the interview process.

¶6 In the meantime, another station captain position became available. Four candidates were eligible for that position: George Painter, Miles, Cooper, and Cassidy. The interview committee, consisting of Assistant Chief Corack, Assistant Chief Swenson, Battalion Chief Lindburg, and Deputy Chief Berry, convened in December 1992 to conduct interviews for that position and the position prematurely given to Mont Cooper. Chief Hinman voluntarily removed himself from serving on the committee because of the recent grievance filed by Cassidy and told Berry that he would affirm any recommendation made by the committee. After the interviews, the committee unanimously recommended retaining Cooper as captain and promoting Painter to captain. Chief Hinman affirmed those recommendations.

¶7 In response to Cassidy's grievance concerning the interview process, the Council conducted an administrative hearing on January 28, 1993, but refused to consider the grievance because it believed it had no jurisdiction in matters of hiring and promotion. Cassidy appealed that decision to the Third District Court. Judge Timothy R. Hanson ruled the Council did have jurisdiction and ordered the Council to hear Cassidy's grievance. On April 11, 1995, the Council exercised its jurisdiction, ruling that Fire Chief Hinman did not violate Cassidy's First Amendment rights and affirming the fire chief's decision that other candidates were more qualified than Cassidy.

¶8 Cassidy appealed the Council's ruling to the Third District Court on May 11, 1995, arguing that (1) his First Amendment and due process rights were violated, (2) the fire department violated Utah law by improperly promoting other candidates, and (3) the fire department had retaliated against him for exercising his constitutional rights. The court limited its review to the record before the Council and entered judgment for the Council. Cassidy now appeals, arguing the trial court erred by not ruling that he suffered an adverse employment action by the department's failure to promote him, ¹ his complaints were protected speech, and the department illegally refused to promote him in violation of his First Amendment free speech rights. The Council responds that Cassidy's action must be dismissed because he failed to join the fire chief as a necessary and indispensable party. The Council also argues Cassidy failed to marshal the evidence supporting the trial court's findings and denies any violation of Cassidy's First Amendment rights.

ANALYSIS

I. Necessary and Indispensable Party

¶9 We first address the Council's argument, raised for the first time on appeal, that Chief Hinman is a necessary and indispensable party to this action. Generally, we will not consider issues not preserved in the trial court absent plain error or exceptional circumstances. See State v. Schweitzer, 943 P.2d 649, 654 n. 3 (Utah Ct.App.1997). Nevertheless, a party may raise the issue of failure to join an indispensable party at any time in the proceedings, including for the first time on appeal. See Seftel v. Capital City Bank, 767 P.2d 941, 944 (Utah Ct.App.1989), aff'd sub nom. Landes v. Capital City Bank, 795 P.2d 1127 (Utah 1990). We therefore address the merits of the Council's argument.

¶10 Rule 19 of the Utah Rules of Civil Procedure governs the compulsory joinder of parties to an action. Under the Rule's scheme, a person should be joined as a party if "in his absence complete relief cannot be accorded among those already parties." Utah R. Civ. P. 19(a)(1); accord Landes, 795 P.2d at 1130-31. Joinder is also compulsory if the absent person claims an interest in the subject matter of the action and continuing without that person would (1) impair the person's ability to protect his or her interest, or (2) expose the parties already joined to the action to multiple litigation. See Landes, 795 P.2d at 1130-31.

¶11 The Council has attempted to show that Chief Hinman is necessary to this action by carefully dissecting the relevant code sections authorizing the Firemen's Civil Service system. See Utah Code Ann. §§ 17-28-8 and -9 (1995). The crux of the Council's argument is that "only the fire chief can promote Mr. Cassidy," and that "any judgment would be prejudicial without his presence as a party."

¶12 We agree with Cassidy that the Council's argument is essentially a reincarnation of the argument it tendered before the district court when the Council claimed it did not have jurisdiction to hear Cassidy's grievance. The Council insisted at that time it "lack[ed] jurisdiction or authority over county fire [department] hiring and promotional issues except as a council may adopt rules consistent with the delegation of powers and duties as provided in Chapter 28 of Title 17." The district court, however, rejected that reasoning, concluding the Council did have jurisdiction to hear Cassidy's grievance, and ordered the Council to consider his grievance. In an order dated November 17, 1997, this court also rejected the Council's argument that it lacked subject matter jurisdiction to hear Cassidy's grievance.

¶13 The Council has the authority to adopt rules, establish procedures, and recommend guidelines that are binding on the fire chief and other employees or agents of the department. See Utah Code Ann. § 17-28-2.4 (1995). Moreover, applicable law provides that the Council is the proper defendant for this dispute and directed Cassidy to bring an action "against the County Fire Civil Service Council in its official capacity"--not the fire chief--if Cassidy was "aggrieved" by the Council's determination. See Utah Code Ann. § 17-28-13(1)(1995). Cassidy followed that mandate.

¶14 As the Council must abide by our decision, so must the fire chief and the department abide by the Council's action as directed by this court. Complete relief, even absent Chief Hinman, therefore is available to either party. Further, neither Chief Hinman's interests nor those of the parties before us are compromised by Chief Hinman's absence. Accordingly, we determine Chief Hinman is not a necessary and indispensable party to this action.

II. Adverse Employment Action

¶15 Turning to Cassidy's First Amendment claims, we initially address whether Cassidy suffered an "adverse employment action" sufficient to constitute a violation of his First Amendment rights. See Rutan v....