State, By and Through Dept. of Community Affairs v. Utah Merit System Council

• Decision Date: 03 July 1980
• Docket Number: No. 16501,16501
• Parties: STATE of Utah, By and Through the DEPARTMENT OF COMMUNITY AFFAIRS, Plaintiff and Respondent, v. UTAH MERIT SYSTEM COUNCIL and William A. Callahan, Defendants and Appellant.
• Court: Utah Supreme Court

Page 1259

614 P.2d 1259

STATE of Utah, By and Through the DEPARTMENT OF COMMUNITY AFFAIRS, Plaintiff and Respondent, v. UTAH MERIT SYSTEM COUNCIL and William A. Callahan Defendants and Appellant.

No. 16501.

Supreme Court of Utah.

July 3, 1980.

J. Francis Valerga, Salt Lake City, for Callahan.

Anthony L. Rampton of Fabian & Clendenin, Salt Lake City, for Utah Merit System.

Robert B. Hansen, Atty. Gen., James L. Barker, Stephen G. Schwendiman, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

Defendant William Callahan was terminated as an employee of the Department of Community Affairs. The Utah Merit System Council ordered his reemployment. The State of Utah sought review in a district court which reversed and remanded. The district court directed the Council to hold a new hearing on the ground that three procedural errors had been committed during the hearing before the Merit System Council, i. e., failure to place witnesses under oath, failure to maintain a complete record of the testimony adduced, and exclusion of a party to the action from the proceedings. Callahan now appeals from the district court order setting aside the decision of the Utah Merit Council. Callahan urges on appeal that none of the grounds relied on by the district court justifies a new hearing before the Merit Council. ¹

Defendant Callahan was director of the Housing Development Agency in the Department of Community Affairs. The grounds stated for his termination were lack of support for administrative policy, insubordination, inefficiency, disloyalty, and nonfeasance in performance of his duties. Defendant appealed the decision to the Utah Merit System Council. The hearing lasted an entire day and generated a record consisting of a 135-page transcript. Although Beth Jarman, the Director of the Department, was absent from part or all of the proceedings, the deputy director of that department was present during the hearing. The Merit Council found that defendant's performance as an employee of the Department of Community Affairs had been "for the most part, of a very high quality," and that the "immediate cause of his termination appears to be more of a personality conflict between the appellant and his immediate supervisor than with his job performance." Finding the reasons asserted for the dismissal not adequately supported by the evidence, the Merit Council unanimously ordered the defendant to be reinstated. The State filed a petition in the district court pursuant to Rule 65B, ² Utah Rules of Civil Procedure, to review the Merit Council order.

On this appeal defendant contends the district court erred in holding that the three above-mentioned procedural defects in the administrative hearing constituted reversible error. The first contention is that the lower court erred in ruling that the Merit Council's failure to swear witnesses prior to presenting testimony was prejudicial error. Clearly both parties to this proceeding were entitled to have the testimony under oath or affirmation. Retention of a job is a legally-protected interest, e. g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and loss of a job should not be countenanced on the basis of statements made by fellow employees not under oath. On the other hand, the State also has a legitimate interest in the integrity of a proceeding to determine job retention. The public service is indeed a public trust, and retention of unfit public employees is inimical to the public interest. At the least a witness who testifies under oath is likely to be more deliberate and careful in the statements he makes because of the knowledge that an unbridled tongue may lead to legal sanctions. Both the State and the employee are therefore entitled to have witnesses placed under oath in a retention proceeding.

At the first administrative hearing, plaintiff inquired whether there was a procedure for swearing in the witnesses. Plaintiff did not object to the failure to administer an oath and simply responded to the negative response by calling his first witness. The first time the objection was raised was on review in the district court. Because no timely objection was made in the administrative hearing, the matter was not appropriately raised before the district court. Cf. Rule 46, Utah Rules of Civil Procedure. Sanders v. Cassity, Utah, 586 P.2d 423 (1978); Steele v. Wilkinson, 10 Utah 2d 159, 349 P.2d 1117 (1966); Pettingill v. Perkins, 2 Utah 2d 266, 272 P.2d 185 (1954). See Wilcoxon v. United States, 231 F.2d 384 (10th Cir. 1956), specifically holding that the requirement of an oath is waived by the absence of a timely objection. Therefore the Merit Council proceedings were not defective for failing to administer the oath.

The district court also reversed because of an omission in the record of a discussion which occurred prior to the recording of the proceedings. The affidavit of the executive secretary of the Merit Council confirms the Merit Council's position that the only matter discussed prior to the recording of the proceedings was whether the hearing should be postponed or should proceed with just a quorum present. The record was also considered deficient by the State due to the loss of the record of the testimony of Lois Strand, which apparently resulted from a tape recorder malfunctioning. Two affidavits, one by Lois Strand, the witness whose testimony was not recorded, and the other by counsel for the State, summarized the testimony. These corrections sufficiently cured the defect in this case in view of the fact that no claim is made that the affidavits are in error on any material issue. Waterman v. State, 35 Misc.2d 954, 232 N.Y.S.2d 22 (1962).

Finally, the district court held that the exclusion of a witness, Beth Jarman, the Director of the State agency, from a portion of the administrative hearing was reversible error. We agree. Exclusion of witnesses is a practice designed to prevent a person's testimony from being influenced by the testimony given by other witnesses. Taylor v. United States, 388 F.2d 786 (9th Cir. 1967). The time-honored practice in judicial proceedings is codified in Rule 43(f), U.R.C.P., providing:

Upon motion of either party, the court shall exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of the other witnesses. ³

Statutes in a number of jurisdictions establish the right of a party to an action to remain in attendance during the entire trial. ⁴ Our rule is silent on that issue. In some cases there may be reason to differentiate between administrative and judicial proceedings, but in this case we hold that the State's personal representative was not subject to exclusion. ⁵ Cf. 6 Wigmore on Evidence § 1841 (Chadbourn rev. ed. 1976); 75 Am.Jur.2d Trial § 62 (1974). This conclusion is based on the proposition that a party's presence at the proceedings may be essential in assisting in the presentation of its case and otherwise protecting its interests by observing the conduct of the trial.

The necessity of preserving fundamental requirements of procedural fairness in administrative hearings was stated in Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431 (1913):

The Commission is an administrative body and, even where it acts in a quasi-judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties. Int. Com. Comm. v. Baird, 194 U.S. 25, (24 S.Ct. 563, 48 L.Ed. 860). But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended. In such cases the Commissioners cannot act upon their own information as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding . . . .

We recognize that administrative hearings need not have all the formality of judicial procedure and that the degree of formality may depend on the nature of the administrative proceeding. We also recognize that the person excluded was a representative of the State. Because governmental entities and private citizens are not on an equal footing as to constitutional prohibitions and because an arm of the State is involved herein, the constitutional requirements of due process do not apply to the State as they would to a private citizen. Yet in this case, the State, in accordance with the Merit Council procedural rules and because of the nature of the case involved, should also be allowed to have its representative in attendance...