Harmon v. Ogden City Civil Service Com'n

• Decision Date: 18 October 2007
• Docket Number: No. 20060434-CA.,20060434-CA.
• Citation: 171 P.3d 474,2007 UT App 336
• Parties: Daniel HARMON, Petitioner, v. OGDEN CITY CIVIL SERVICE COMMISSION, Ogden City Corporation, Ogden City Fire Department, and Fire Chief Mike Mathieu, Respondents.
• Court: Utah Court of Appeals

171 P.3d 474

2007 UT App 336

Daniel HARMON, Petitioner, v. OGDEN CITY CIVIL SERVICE COMMISSION, Ogden City Corporation, Ogden City Fire Department, and Fire Chief Mike Mathieu, Respondents.

No. 20060434-CA.

Court of Appeals of Utah.

October 18, 2007.

D. Bruce Oliver, Salt Lake City, for Petitioner.

Douglas J. Holmes, Ogden, for Respondent Ogden City Civil Service Commission.

Stanley J. Preston, Camille N. Johnson, and Judith D. Wolferts, Salt Lake City, for Respondents Ogden City Corporation, Ogden City Fire Department, and Fire Chief Mike Mathieu.

Before Judges DAVIS, ORME, and THORNE.

OPINION

DAVIS, Judge:

¶ 1 Plaintiff Daniel Harmon appeals the decision of the Ogden Civil Service Commission (the Commission), affirming the decision of Chief Mathieu (the Chief) of the Ogden City Fire Department (the Fire Department) to terminate Harmon. Harmon asserts that termination was a disproportionate sanction here and that his civil rights were violated through the disciplinary procedures taken. We affirm.

BACKGROUND

¶ 2 On September 8, 2000, the Fire Department received a complaint alleging that Harmon, a captain, had sexually harassed a subordinate female employee two years prior. The Fire Department initiated an investigation into the matter, which investigation revealed several incidents over Harmon's twenty-one year career wherein he had acted inappropriately, including: (1) failing to attend multiple mandatory training meetings; (2) allowing female entertainers to pose topless with Fire Department employees while he was acting as an official of the Fire Fighter's Union at a fundraiser for the Muscular Dystrophy Association (the MDA Incident); (3) filling an empty bottle of weedkiller, which he knew was intended for his former supervisor, with his urine (the Weedkiller Incident); (4) publicly urinating into a drafting pit during a training session (the Drafting Pit Incident); (5) urinating into a shower stall that was occupied by one of his colleagues (the Shower Stall Incident); (6) allowing a female firefighter to make lewd references to a zucchini, and countering her remarks with his own (the Zucchini Incident); and (7) allowing and participating in activities where clothed male employees would imitate sexual intercourse with each other (the Horseplay Incidents).¹ Two hearings were held within the Fire Department regarding Harmon's actions, which hearings resulted in his termination. Harmon appealed the Fire Department's decision to the Commission pursuant to Utah Code section 10-3-1012(2). See Utah Code Ann. § 10-3-1012(2) (2003).²

¶ 3 In examining the Fire Department's termination of Harmon, the Commission considered only Harmon's failure to appear at training meetings, the MDA Incident, the Weedkiller Incident, and the Drafting Pit Incident. The Commission did not consider the remaining incidents because they were too remote or were understood by the other involved employees as a joke. Based on the incidents considered, the Commission found that termination was an inappropriately harsh punishment and reversed Harmon's termination.

¶ 4 Ogden City (the City) then appealed the Commission's decision to this court. See Ogden City Corp. v. Harmon, 2005 UT App 274, 116 P.3d 973. The City argued that all of the incidents involving Harmon's misbehavior were relevant and should have been considered by the Commission. See id. ¶ 11. Additionally, the City asserted that the Commission erred in failing to consider evidence regarding Harmon's untruthfulness during one of his termination hearings when he was questioned about his involvement in the Weedkiller Incident.³ See id. ¶ 13. We agreed with the City on both counts, reversed the Commission's order, and remanded to the Commission for further consideration. See id. ¶ 15. We instructed the Commission to explore on remand Harmon's alleged misrepresentations and dishonest remarks, and to consider all of Harmon's inappropriate behavior in arriving at its conclusion. See id.

¶ 5 On April 13, 2006, the Commission entered its Findings of Fact, Conclusions of Law and Order (Remand Order). The Remand Order provided that Harmon's termination was appropriate in light of the totality of the incidents and his general work performance. The Remand Order also noted that there was sufficient evidence to show that Harmon had been deceitful in conjunction with the Weedkiller Incident. Harmon now appeals the Remand Order.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Harmon argues that the Commission erred in finding that termination was a proportionate and proper sanction for his actions. In order for this court to overturn the Commission's decision as to the propriety of Harmon's termination, Harmon must show either (1) that the facts do not support the action taken by the Fire Department or (2) that the charges do not warrant the sanction imposed. See Kelly v. Salt Lake City Civil Serv. Comm'n, 2000 UT App 235, ¶ 16, 8 P.3d 1048. We instructed the Commission to consider all of the incidents on remand. See Harmon, 2005 UT App 274, ¶ 15, 116 P.3d 973. Thus, we do not now consider whether the charges against Harmon are supported but instead address only whether those charges warrant termination. In doing so, we review the Commission's decision to determine "if the [C]ommission has abused its discretion or exceeded its authority." Utah Code Ann. § 10-3-1012.5 (2003). The Commission is required to give deference to the Chief, as he is best able to "balance the competing concerns in pursuing a particular disciplinary action." Harmon, 2005 UT App 274, ¶ 17, 116 P.3d 973. Therefore, the Commission's affirmance of the Chief's termination of Harmon will be upheld unless it "`exceeds the bounds of reasonableness and rationality.'" McKesson Corp. v. Labor Comm'n, 2002 UT App 10, ¶ 11, 41 P.3d 468 (quoting Ae Clevite, Inc. v. Labor Comm'n, 2000 UT App 35, ¶ 7, 996 P.2d 1072); see also Tolman v. Salt Lake County Attorney, 818 P.2d 23, 26-27 (Utah Ct.App.1991).

¶ 7 Harmon also argues that the Commission violated his constitutional due process rights and that he should be compensated for these violations. We afford the Commission no deference here, as constitutional challenges constitute questions of general law. See Questar Pipeline Co. v. Utah State Tax Comm'n, 817 P.2d 316, 317-18 (Utah 1991); Savage Indus., Inc. v. Utah State Tax Comm'n, 811 P.2d 664, 670 (Utah 1991). Thus, we review the Commission's procedures and resulting actions for correctness. See Questar, 817 P.2d at 317.

ANALYSIS

I. Appropriateness of the Sanction

¶ 8 "In determining whether the sanction of dismissal is warranted in this case, the Commission must affirm the sanction if it is (1) appropriate to the offense and (2) consistent with previous sanctions imposed by the department." Ogden City Corp. v. Harmon, 2005 UT App 274, ¶ 16, 116 P.3d 973 (citing Kelly, 2000 UT App 235, ¶ 16, 8 P.3d 1048). Here, the focus is on the first part of the test because "[t]he Commission has already determined that Harmon offered no evidence of inconsistency, and therefore, the question of severity is of primary importance in this case." Id.

¶ 9 Regarding the severity question, we previously noted that exemplary performance by an employee may serve as evidence against termination, while job violations and continued misbehavior could weigh in favor of dismissal. See id. ¶ 18 (citing Kelly, 2000 UT App 235, ¶ 25, 8 P.3d 1048; Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 762 (Utah Ct.App.1997)). Speaking directly to this standard, the Commission noted that Harmon's failure to attend scheduled meetings and his sub-par evaluations were not indicative of an "`exemplary service record.'" The Commission also analyzed in depth the specific incidents of misconduct at issue and concluded that "Harmon's conduct repeatedly violated [the Fire Department's] and the City's policies to such a degree that termination was fully justified."

¶ 10 Additionally, in our prior decision we listed four factors for the Commission to consider on remand in weighing the propriety of Harmon's termination against his offenses:

(a) whether the violation is directly related to the employee's official duties and significantly impedes his or her ability to carry out those duties; (b) whether the offense was a type that adversely affects the public confidence in the department; (c) whether the offense undermines the morale and effectiveness of the department; or (d) whether the offense was committed willfully or knowingly, rather than negligently or inadvertently.

Id. We believe that the Commission correctly applied these standards. First, the Commission determined that "the six incidents, as well as Harmon's evaluations and disciplines, [were] directly related to his duties as a captain and took place in the workplace, thus impeding his ability to legitimately carry out his duties and to serve as an example." Second, the Commission concluded that "Harmon's conduct is also of the type that would adversely affect the public's confidence and respect for the City as well as its confidence in [the Fire Department's] abilities to carry out its duties." The Commission specifically noted that "the training facility where the Drafting Pit Incident occurred sits back onto 12th Street in Ogden and can be seen from public view through a chain link fence." Third, the Commission devoted a large part of its discussion of the suitability of Harmon's termination to an explanation of how the inappropriateness of Harmon's actions could affect employee morale. Specifically, the Commission described six incidents as "revolv[ing] around conduct having sexual overtones," and found both that "[Harmon] had attended annual training sessions dealing with establishing and maintaining a workplace sensitive to and aware of inappropriate activities of a sexual nature" and that "it was Harmon's duty as a [Fire Department] officer to set a good example and be a leader to his subordinates in...