Palmer v. St. George City Council

• Decision Date: 24 May 2018
• Docket Number: No. 20170209-CA,20170209-CA
• Citation: 427 P.3d 423
• Parties: Heidi PALMER, Petitioner, v. ST. GEORGE CITY COUNCIL, St. George Municipal Corporation, and St. George Police Department, Respondents.
• Court: Utah Court of Appeals

427 P.3d 423

Heidi PALMER, Petitioner,

v.ST. GEORGE CITY COUNCIL, St. George Municipal Corporation, and St. George Police Department, Respondents.

No. 20170209-CA

Court of Appeals of Utah.

Filed May 24, 2018

Bret W. Rawson, Nate N. Nelson, and Jeremy G. Jones, Sandy, Attorneys for Petitioner

Peter Stirba and Bradley A. Schmidt, Salt Lake City, Attorneys for Respondents

Judge Kate A. Toomey authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

Opinion

TOOMEY, Judge:

¶1 Heidi Palmer asks this court to review the decision of the St. George City Council (the Appeal Board) to uphold her suspension of "five days, 40 hours, without pay" for violating the policies of the St. George Municipal Corporation (the City) and the St. George Police Department (the SGPD).¹ Palmer contends Respondents violated her due process rights in four ways and that the Appeal Board exceeded its discretion when it failed to make findings of fact to support its decision to uphold her discipline.

¶2 We conclude that Palmer’s due process rights were violated when the Appeal Board refused to compel the City to disclose evidence of comparable discipline within the SGPD. But there were no due process violations with respect to her three remaining claims. We further conclude that the Appeal Board’s failure to make findings of fact that supported its decision to uphold Palmer’s discipline constituted an abuse of discretion. We therefore set aside the decision of the Appeal Board and remand for further proceedings consistent with this opinion.

BACKGROUND

¶3 Palmer is a Sergeant with the SGPD. In June 2014, she received a report that someone’s cell phone contained child pornography.² Palmer initiated an investigation and seized the suspect’s computer and cell phone. Another officer then copied pornographic images from these devices onto a CD for Palmer’s review. Palmer did not complete her report on the case until August 2016—more than two years later. During that period, she did not properly store the CD and instead left it unsecured in her desk.

¶4 Before Palmer had completed her report, her supervisor had initiated an internal affairs investigation to review her ability to manage her responsibilities. Palmer’s supervisor formally complained to SGPD’s Chief of Police (the Chief), who determined that the Disciplinary Review Board (the Disciplinary Board) should be convened to recommend discipline. Based on the internal affairs investigation, the Disciplinary Board recommended that Palmer be demoted in rank and that she undergo a six-month action plan "to improve report writing and ensure any future evidence [is] logged correctly."

¶5 Following the Disciplinary Board’s recommendation, Palmer received a Notice of Intent to Discipline (the Notice), informing her that she had violated St. George City Policy 4.50 related to incompetence, misconduct, and failure to perform duty. The Notice also provided the date and time of a pre-disciplinary hearing meeting and explained that Palmer could "bring to the meeting any evidence or witnesses" that she chose. Palmer requested that her attorney be present, but she was told an "attorney would not qualify as a witness" and therefore would not be allowed to attend.

¶6 Palmer appeared at the pre-disciplinary hearing meeting without counsel, after which the Chief recommended to the City Manager that she be demoted without a reduction in pay and placed on a "Performance Improvement Action Plan." The City Manager gave Palmer notice of this recommendation and informed her that she had the right to appeal it. Through the process of that appeal, the Chief reconsidered his recommendation and instead recommended only "five days (40 hours) off without pay and that [Palmer] be placed on an action plan, rather than a recommendation of demotion."³ The City Manager upheld the decision to impose the lesser penalty, and Palmer appealed this decision to the Appeal Board.

¶7 Before her hearing in front of the Appeal Board (the Disciplinary Appeal Hearing), Palmer twice requested "production of information regarding other disciplinary matters investigated under [Palmer’s supervisor]." The City responded that the comparable discipline information was "not relevant" because the only information the Appeal Board would review was the internal investigation of Palmer. Palmer also communicated to the City her belief that the St. George City Attorney (the City Attorney) should not be involved in the Disciplinary Appeal Hearing, because of his "prior involvement [in the investigation] and obligation to protect the City’s interest," as well as her belief that the City Attorney’s continued involvement in her case constituted "[a] de facto violation of [her] procedural due process rights." The City Attorney and the City disagreed and stated they would "proceed as planned."

¶8 Leading up to the hearing, both parties were informed that they would be "given one hour to present their arguments, including questioning of any witnesses." Palmer believed that one hour was too little time in which to present her defense, and that the Appeal Board’s one-hour time limit was "unacceptable and yet again another attempt by the [Appeal Board] to deprive [her] of her protected due process rights."

¶9 The City Attorney did not participate in the hearing. Instead, an Assistant City Attorney advised the Appeal Board, and the City was represented by private counsel. Palmer’s attorney opened the arguments by identifying five issues that he believed constituted due process violations, the following four are relevant to this petition for review: "[Palmer’s] right to counsel during the [pre-]disciplinary process"; "her right to present evidence and confront witnesses free from unreasonable [time] limits"; "her right to an impartial hearing free from the taint of dual representation by city attorneys"; and "the refusal of the City and [the Appeal Board] to provide information for comparable disciplinary analysis." During the course of the hearing, Palmer’s attorney called two witnesses, and the City called four.

¶10 After hearing testimony from six witnesses, the Appeal Board unanimously upheld the City Manager’s decision to suspend Palmer "for five days, 40 hours, without pay." The Appeal Board issued its decision in a one-sentence "certification" and did not make findings of fact or otherwise explain the basis for its decision to uphold Palmer’s suspension. Palmer petitions this court for review of the Appeal Board’s decision.

ISSUES AND STANDARDS OF REVIEW

¶11 Palmer makes three overarching contentions on judicial review. First, she contends that the Appeal Board erred in failing to rule on her claim that the City violated her due process rights when she was denied legal representation at the pre-disciplinary hearing meeting. Generally, our review of administrative agency decisions is "limited to determining whether the [agency] abused its discretion or exceeded its authority." Taylorsville City v. Taylorsville City Emp. Appeal Board , 2013 UT App 69, ¶ 16, 298 P.3d 1270 (quotation simplified). But when the agency’s decision "implicates due process, we review it for correctness." Id.

¶12 Second, Palmer contends the Appeal Board violated her due process rights in three respects.⁴ "Due process challenges are questions of general law and we give no deference to the agency’s determination of what constitutes due process." Fierro v. Park City Mun. Corp. , 2012 UT App 304, ¶ 8, 295 P.3d 696 (quotation simplified).

¶13 Third, Palmer contends the Appeal Board abused its discretion when it failed to "provide any findings that could guide appellate review." "The failure of an agency to make adequate findings of fact on material issues renders its findings arbitrary and capricious unless the evidence is clear, uncontroverted and capable of only one conclusion."

Hugoe v. Woods Cross City , 2013 UT App 278, ¶ 12, 316 P.3d 979 (quotation simplified).

ANALYSIS

I. Due Process

¶14 Palmer contends the Appeal Board erred in failing to rule on her due process claim that she was entitled to legal representation at her pre-disciplinary hearing meeting. Palmer also contends the Appeal Board violated her due process rights in three respects: by imposing a one-hour time limit for the Disciplinary Appeal Hearing; by receiving advice from the City Attorney who had already advised the City in the pre-disciplinary proceedings; and by refusing to compel the City to disclose comparable discipline evidence.⁵ We address each in turn.

A. Employees Do Not Have the Right to Counsel at Pre-Disciplinary Proceedings.

¶15 Palmer contends her attorney should have been allowed to represent her at the pre-disciplinary hearing meeting and that the Appeal Board erred when it failed to rule in her favor on the issue. Palmer does not assert any constitutional right to counsel in administrative proceedings but correctly points out that the right to counsel attaches if it is provided by statute. Cf. Nelson v. Department of Emp’t Sec. , 801 P.2d 158, 163 (Utah Ct. App. 1990) (explaining that agencies are not "required to appoint counsel for claimants" and that, "[g]enerally, claimants in an administrative hearing [before the Labor Commission] are entitled to retain the counsel of their choice"). Specifically, Palmer argues that, under Utah Code section 10-3-1106, the statutory right of employees to be represented by counsel in disciplinary proceedings attaches "as soon as [an] employee becomes [the] subject of discipline." We disagree with Palmer’s interpretation of section 10-3-1106.

¶16 When interpreting statutes, we first look to their plain language and give effect to that language unless it is ambiguous. State v. Jeffries , 2009 UT 57, ¶ 7, 217 P.3d 265 ; see also MarionEnergy, Inc. v. KFJ Ranch P’ship , 2011 UT 50, ¶ 15, 267 P.3d 863 (explaining that statutory language is ambiguous when "its terms remain susceptible to two or more reasonable interpretations"). But "our plain language analysis...