Pearson v. South Jordan Emp. Appeals Board

• Court: Utah Court of Appeals
• Writing for the Court: McHugh
• Citation: Pearson v. South Jordan Emp. Appeals Board, 216 P.3d 996, 2009 UT App 204 (Utah App. 2009)
• Decision Date: 30 July 2009
• Docket Number: No. 20070378-CA.,20070378-CA.
• Parties: Daniel PEARSON, Petitioner, v. SOUTH JORDAN EMPLOYEE APPEALS BOARD and South Jordan City, Respondents.

216 P.3d 996

2009 UT App 204

Daniel PEARSON, Petitioner, v. SOUTH JORDAN EMPLOYEE APPEALS BOARD and South Jordan City, Respondents.

No. 20070378-CA.

Court of Appeals of Utah.

July 30, 2009.

Gregory G. Skordas and Chad D. Noakes, Salt Lake City, for Petitioner.

Camille N. Johnson and Judith D. Wolferts, Salt Lake City, for Respondents.

Before Judges THORNE, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Daniel Pearson seeks review of the South Jordan City Employee Appeals Board's (the Board) decision that his employment as South Jordan City's assistant police chief was at will. We dismiss his appeal because we lack subject matter jurisdiction.

BACKGROUND

¶ 2 Pearson was hired as the Assistant Police Chief for South Jordan City (the City) in July 2002. On January 30, 2007, City Manager Ricky Horst notified Pearson that he was being terminated from that position. The written notice of termination stated that Pearson's employment was at will, meaning he could be discharged without cause.

¶ 3 On January 31, 2007, Pearson sent Horst and other city officials a letter, which he characterized as notice of his intent to appeal his termination. Horst responded, stating that because Pearson was an at-will employee, he had no right to appeal his termination with the City. Pearson then faxed a letter to Horst attempting to formally appeal his termination or, in the alternative, to rely on the City's grievance procedures to challenge his discharge. On February 15, 2007, Pearson's supervisor, Chief of Police Lindsay Shepard, upheld Pearson's termination as an at-will employee.

¶ 4 Pearson next sent a letter to Assistant City Manager John Geilmann in an attempt to pursue grievance procedures under section 4-07(2) of the City's employee handbook. Geilmann replied by letter, upholding Pearson's termination.

¶ 5 On March 19, 2007, Pearson wrote to the Board, disputing the City's position that his employment status had been at will. The Board held an evidentiary hearing during which the City and Pearson offered testimony argument, and exhibits, and were afforded an opportunity to cross-examine the witnesses. On April 30, 2007, the Board certified a one-page letter to the city recorder, which states:

Please be advised that the Employee Appeals Board of South Jordan City has deliberated regarding the grievance filed by Daniel Pearson and has reached a decision. Based upon the grievance filed, the Board determined that there were two issues for the Board's consideration. The conclusion of the Board is as follows:

(1) Was the grievance filed in a timely fashion as required by the South Jordan City Employee Handbook? The Board determined that the grievance was timely filed.[¹]

(2) Was Daniel Pearson an "at will" employee? The Board determined that Mr. Pearson was an "at will" employee.

¶ 6 On May 10, 2007, Pearson filed a petition with this court requesting review of the Board's decision. Pearson cited rule 14 of the Utah Rules of Appellate Procedure and section 4-08(4)(c) of the City's employee handbook as the sources of our jurisdiction.²

¶ 7 On June 16, 2008, we vacated an earlier order transferring Pearson's petition for review to the Third District Court, reinstated the petition in this court, and denied the City's interlocutory petition as moot. Contrary to Pearson's assertion, our decision reinstating the petition in this court was not "a final determination that [this court] has jurisdiction." Rather, reinstatement of the appeal allows this court to address the jurisdictional issue in a published decision after plenary review.

ISSUE AND STANDARD OF REVIEW

¶ 8 The City contends that Pearson's appeal is improper because this court lacks subject matter jurisdiction to review the Board's decision. "[T]he issue of subject matter jurisdiction is a threshold issue, which can be raised at any time and must be addressed before the merits of other claims. . . ." Houghton v. Department of Health, 2005 UT 63, ¶ 16, 125 P.3d 860 (internal quotation marks omitted). Therefore, we must determine whether we have subject matter jurisdiction before reaching the merits of Pearson's claims on appeal. "Whether this court has jurisdiction to hear an appeal is a question of law." State v. Martin, 2009 UT App 43, ¶ 8, 204 P.3d 875.

ANALYSIS

¶ 9 Pearson claims appellate jurisdiction is proper under Utah Code section 78A-4-103, see Utah Code Ann. § 78A-4-103(2)(b)(i) (2008).³ We disagree. Although section 78A-4-103 provides for a direct appeal to this court from "formal adjudicative proceedings of state agencies," id. § 78A-4-103(2)(a), it requires that the adjudicative proceedings of political subdivisions of the state, including cities, first be reviewed by the district court, see id. § 78A-4-103(2)(b)(i) (giving the court of appeals subject matter jurisdiction over "appeals from the district court review of . . . adjudicative proceedings of agencies of political subdivisions of the state or other local agencies"). Pearson's petition comes to us directly from the board of appeals of a municipality and is therefore not addressed by section 78A-4-103(2).

¶ 10 Our subject matter jurisdiction, however, is not limited to that conferred by section 78A-4-103. See generally Utah R.App. P. 14(a) (providing for review of an administrative order when such review is otherwise provided for by statute). There are two other statutes relevant to the question of our jurisdiction over Pearson's appeal —Utah Code sections 10-3-1105 and 10-3-1106. Section 10-3-1105 states,

(1) Except as provided in Subsection (2), each employee of a municipality shall hold employment without limitation of time, being subject to discharge, suspension of over two days without pay, or involuntary transfer to a position with less remuneration only as provided in Section 10-3-1106.

(2) Subsection (1) does not apply to:

. . .

(c) a police chief of the municipality;

(d) a deputy police chief of the municipality;

(e) a fire chief of the municipality;

(f) a deputy or assistant fire chief of the municipality;

(g) a head of a municipal department;

(h) a deputy of a head of a municipal department;

. . . .

Utah Code Ann. § 10-3-1105 (2007). Section 10-3-1106 grants procedural protections to the employees included in subsection 10-3-1105(1) (merit employees). See id. § 10-3-1106 (Supp.2008). In contrast, those employees excluded by subsection 10-3-1105(2) are not entitled to the protections of section 10-3-1106, see id. § 10-3-1105(1) (2007), and their employment with the City is subject to termination at will.

¶ 11 Section 10-3-1106 grants discharged merit employees the right to appeal the termination of their employment to an appeal board. See id. § 10-3-1106(2) (Supp.2008). The appeal board created by that section is authorized under section 10-3-1106 to "commence its investigation, take and receive evidence, and fully hear and determine the matter which relates to the cause for the discharge, suspension, or transfer." Id. § 10-3-1106(3)(b)(ii). Subsection 10-3-1106(6) further provides that "[a] final action or order of the appeal board may be appealed to the Court of Appeals by filing with that court a notice of appeal." Id. § 10-3-1106(6)(a) (2007).⁴ Although this provision confers subject matter jurisdiction on this court to consider a determination of the Board under section 10-3-1106, the issue raised in this appeal concerns the proper interpretation of section 10-3-1105.

¶ 12 The protections provided in section 10-3-1106 are granted only to the merit employees not excepted by subsection 10-3-1105(2). See id. § 10-3-1106(1) (Supp.2008) (limiting application of section 10-3-1106 to "[a]n employee to which Section 10-3-1105 applies"). Thus, while merit employees are provided grievance procedures for challenging their termination administratively with the City, at-will employees are not. See id. § 10-3-1105(1) (2007) (withholding section 10-3-1106 protections from municipal employees exempted by subsection 10-3-1105(2)).

¶ 13 Here, the City identified Pearson's employment status as at will pursuant to section 10-3-1105(2)(d), which exempts a deputy police chief from the provisions of section 10-3-1106. See id. § 10-3-1105(2)(d).⁵ Although the Board's authority is limited to the review of merit employee grievances pursuant to section 10-3-1106, the Board conducted an evidentiary hearing to render its own conclusion on the nature of Pearson's employment status. Yet we see nothing in sections 10-3-1105 or 10-3-1106 that confers upon the Board the authority to consider an appeal of the City's decision that Pearson's employment could be terminated at will.

¶ 14 Furthermore, the Board's only decision related to Pearson's employment status under section 10-3-1105 and not to the "cause for the discharge, suspension, or transfer," pursuant to section 10-3-1106. See id. § 10-3-1106(3)(b)(ii) (Supp.2008). Consequently, it is the Board's interpretation of section 10-3-1105 that is before us on appeal.⁶ However, there is nothing in that section that grants the Board any authority to conduct proceedings or to issue decisions on the interpretation or application of section 10-3-1105. Instead, the only authority granted by the legislature is contained in section 10-3-1106, which authorizes the Board to determine the cause of the merit employee's discharge, suspension, or transfer. See id. Where the City determines that the employee's status was at will, the Board has no authority to act at all. Moreover, because only section 10-3-1106(6) includes a right of direct appeal to this court, see id. § 10-3-1106(6)(c), we agree with the City that we do not have subject matter jurisdiction over Pearson's appeal, and accordingly, we must dismiss, see Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989) ("When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action.").

¶ 15 Instead, our subject matter jurisdiction for a decision...