Larsen v. Davis Cnty. & Davis Cnty. Career Serv. Council

• Decision Date: 25 August 2014
• Docket Number: No. 20110875–CA.,20110875–CA.
• Citation: 757 Utah Adv. Rep. 4,324 P.3d 641
• Court: Utah Court of Appeals
• Parties: Tyler James LARSEN, Petitioner and Appellee, v. DAVIS COUNTY and Davis County Career Service Council, Respondents and Appellants.

324 P.3d 641

757 Utah Adv. Rep. 4

Tyler James LARSEN, Petitioner and Appellee,

v.DAVIS COUNTY and Davis County Career Service Council, Respondents and Appellants.

No. 20110875–CA.

Court of Appeals of Utah.

April 3, 2014.

Rehearing Denied May 7, 2014.

Certiorari Denied Aug. 25, 2014.

Jesse C. Trentadue, Carl F. Huefner, and Britton R. Butterfield, for Appellant Davis County.

Kristin A. Van Orman and Jeremy G. Knight, for Appellant Davis County Career Service Council.

Tyler James Larsen, Appellee Pro Se.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge GREGORY K. ORME concurred. Judge JAMES Z. DAVIS concurred in the result.

VOROS, Judge:

¶ 1 Davis County terminated the employment of Tyler James Larsen, an assistant county attorney, for misconduct in connection with a 2010 aggravated-robbery trial. Larsen appealed to the Davis County Career Service Council, which upheld his termination. Larsen then appealed to the district court, which set aside his termination on the ground that the County failed to provide Larsen with adequate notice of all of the grounds for his termination. The County appeals, and we reverse.

BACKGROUND ¹

The Apadaca Trial

¶ 2 The Davis County Attorney's Office assigned Tyler Larsen to an aggravated-robbery trial set for August 2010. The defendant in that case, Joseph Apadaca, was already serving a prison term in Idaho for an earlier conviction. While preparing for trial, Larsen visited the site of the robbery, a Clearfield clothing store, to meet with two eyewitnesses. Larsen later acknowledged that after “having a hard time communicating” with one eyewitness, he showed her a black-and-white photo of Apadaca. Larsen did not remember showing a photo to the other eyewitness. But a Clearfield police officer who accompanied Larsen to the clothing store stated that Larsen showed a color photo to both eyewitnesses:

[The officer] said Mr. Larsen told him to show the witnesses a larger, more recent color photograph of Joseph Apadaca after one witness had difficulty identifying Joseph Apadaca from the photo Mr. Larsen showed him. [The officer] said that he asked Mr. Larsen if he was sure he wanted to show the photograph and that Mr. Larsen told him to go ahead and show the photo.

¶ 3 At the Apadaca trial, Larsen called one of the clothing-store eyewitnesses as his first witness. On cross-examination, defense counsel asked the eyewitness if he had “been shown a photo or seen ... a photo ID” of the suspect. The eyewitness said no. Larsen made no attempt to correct the record. When cross-examining the second eyewitness, defense counsel asked her whether “she had ever been shown a lineup or photo array,” and she answered yes. As a result, Apadaca moved for a mistrial, and the district court granted Apadaca's motion.²

Larsen's Termination and Appeals

¶ 4 After learning of Larsen's conduct during the Apadaca trial, the County Attorney signed a pretermination letter placing Larsen on administrative leave. The letter described in detail Larsen's alleged misconduct. In effect, the letter accused Larsen of attempting to obtain a criminal conviction by knowingly using tainted eyewitness testimony and not correcting the record when he had an opportunity to do so.³ Five days later, a second letter, titled “Notice of Pre–Disciplinary Hearing,” restated those allegations and invited Larsen to a meeting the following day in the County Attorney's office. The letter informed Larsen, “You will be afforded an opportunity at this meeting to present a defense to the above noted allegations” and “tell your side of the story.” The letter also warned Larsen that termination was a possible outcome.

¶ 5 The meeting was recorded and transcribed. Larsen, the County Attorney, and three other members of the Davis County Attorney's Office were present. The first twenty pages of the transcript contain Larsen's virtually uninterrupted explanation of his handling of the case. The County Attorney then confronted Larsen with the inconsistency between his earlier claims of experience with his current claim that he was “in over his head”

[County Attorney]: Tyler, one of the things you talked about and were trying to sell me at that time is that you had more experience than [another lawyer in the office], [that] you were one of the senior attorneys in the office, that you were a go-to guy, that you were one of the best attorneys that we had. Now you're in here saying today just the opposite, “I don't know a damn thing.”

Mr. Larsen: Uh-huh.

[County Attorney]: That's what I'm hearing from you today. You know, I'm sorry this—I don't know anything. I don't even [know] what freaking Rule 16 of the Utah Rules of Criminal Procedure is. I'm having a tough time buying that, man.

Mr. Larsen: I'm trying to think what it is. I don't know it [inaudible] I mean, I can't quote it.

¶ 6 The incongruity between Larsen's claimed experience level and his pure-heart/empty-head defense put his credibility at issue, and one deputy county attorney explored the incongruity. He explained to Larsen that he was having a hard time “giving [Larsen] the benefit of the doubt” in light of “something similar happening in the past,” in particular an instance where Larsen misled a judge and the County Attorney. Larsen replied, “I think we're here today to talk about the Apadaca trial and what was in the past I thought was put in the past and that was part of our agreement—.” The Deputy County Attorney agreed but stressed that he was “struggling with believing” Larsen's explanations of what happened: “I've given you sort of the benefit in the past and we really worked through it and we really wanted to see you do well. That's why I'm struggling. So help me understand why this would be different than the other time.” The County Attorney added that Larsen's history came up only because it shed light on the mistakes he made prosecuting Apadaca:

[E]chos from the past ring louder and louder and louder the longer we sit in here in this meeting today.... [T]he answers and the explanations today are similar to what we were given in the past, you know, “I didn't know,” “I didn't remember.” ... You know, it's here we go again. This is what we heard last time, too.

The County Attorney emphasized that the office's termination decision would not be “because of” or “driven by” Larsen's prior errors but that the Attorney's Office may consider those errors when determining whether Larsen's most recent violations were “intentional or not.”

¶ 7 The informal hearing resulted in Larsen's termination. The County Attorney sent Larsen a four-and-a-half-page termination letter. The letter devotes well over three pages to describing in detail the misconduct for which Larsen was being terminated. The letter also asserts that Larsen's explanation that he had acted in ignorance lacked credibility in light of his history of misrepresentations to a judge and to the County Attorney himself. In the course of this explanation, the letter refers to and then discounts Larsen's prior missteps:

I have put accounts from the relevant parties involved in the Joseph Apadaca case specifically in context with ... my observations of your patterns of behavior while employed here.... We tried, but we cannot ignore the past in assessing the current Apadaca situation (even though your misconduct during this trial and preparation are self-evident and alone require this termination action).

¶ 8 Larsen filed a grievance with the County, arguing that the County Attorney's pretermination letter had not given Larsen notice of all the allegations discussed at the pretermination hearing and cited in the termination letter. The County denied Larsen's grievance, and Larsen appealed to the Davis County Career Service Council. The Council affirmed the County's termination and grievance decisions. Larsen next appealed to the district court, which set aside the Council's decision to deny Larsen's grievance, ruling that there was “no question that the County took ... additional allegations into account in determining to terminate Larsen's employment.” The County and the Council (collectively, the County) now appeal the district court's decision.

ISSUE AND STANDARD OF REVIEW

¶ 9 The County contends that the district court erred by ruling that the Attorney's Office failed to give Larsen adequate predisciplinary notice of the allegations against him. When reviewing the Council's decision, the district court relied on the same record we rely on here. SeeUtah Code Ann. § 17–33–4(d)(iii) (LexisNexis 2009). We therefore “do not accord any particular deference to the district court's decision.” Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 603 (Utah Ct.App.1995); Kline v. Utah Dep't of Health, 776 P.2d 57, 60 (Utah Ct.App.1989) (“We accord no presumption of correctness to the [district court's judgment] since its review of the administrative record is not more advantaged than our own.”). Rather, we presume the validity of the Council's decision and review that decision only to determine “whether the decision is arbitrary or capricious.” Utah Code Ann. § 17–33–4(d)(iv). “However, to the extent that the [Council's] decision implicates due process, we review it for correctness.” Taylorsville City v. Taylorsville City Emp. Appeal Bd., 2013 UT App 69, ¶ 16, 298 P.3d 1270.

ANALYSIS

¶ 10 The County contends that Larsen received adequate notice of the allegations that led to his termination and thus received due process. The County argues that rather than asking whether the County Attorney's Office considered violations not included in Larsen's pretermination notice, this court should ask whether the allegations stated in Larsen's pretermination notice were sufficient to support his termination. Larsen responds that the County terminated him based on “allegations that it had never put in any notice” prior to the pretermination hearing. The County's failure to inform him of those allegations in advance, Larsen...