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Aiono v. Department of Corrections

Court of Appeals of Utah

August 10, 2017

Antionette Aiono, Petitioner,
v.
Department of Corrections, Respondent.

         Original Proceeding in this Court

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

          Sean D. Reyes, J. Clifford Petersen, and Daniel R. Widdison, Attorneys for Respondent

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and J. Frederic Voros Jr. concurred. [1]

          OPINION

          TOOMEY, JUDGE.

         ¶1 This case requires us to determine whether a Utah Department of Corrections (UDC) employee, whose conduct may well have violated best practices, can be fired for that conduct if it is not explicitly prohibited by policy. The Career Service Review Office (CSRO) upheld UDC's decision to fire Antionette Aiono for violating a policy governing prohibited associations. Because the policy does not prohibit what Aiono did, we set aside the CSRO's decision.

         BACKGROUND

         ¶2 Aiono was a UDC correctional officer assigned to the Orange Street Community Correction Center. In May 2015 she worked an overtime shift at the prison in Draper in section 3/4 of the Oquirrh facility. The Oquirrh facility has two sections, designated as Oquirrh 1/2 and 3/4.

         ¶3 Three of Aiono's relatives were in prison at the time-her husband M.A. (Husband), her cousin P.W., and her cousin W.W. (Cousin). Husband and P.W. were incarcerated in Oquirrh 1/2, and Cousin was in 3/4. Aiono knew where Husband and P.W. were housed but did not know that Cousin was in the 3/4 section until the day she reported for her overtime shift.

         ¶4 When she arrived at Oquirrh 3/4, Aiono talked with the day shift sergeant (Sergeant), who recognized her last name and asked "if she was ok to work there." He asked whether Husband was in 1/2. Aiono acknowledged that he was and that she could not go there, but told him she could work in 3/4. Sergeant was aware of Aiono's relationship with Cousin and knew that Cousin was housed in Oquirrh 3/4. Sergeant was neither Aiono's supervisor nor her shift commander, and he had no authority to grant her permission to have contact with her relatives.

         ¶5 During her shift, Aiono spoke with Cousin.

         ¶6 Aiono had previously filled out a form disclosing her relationship with Husband. After speaking with Cousin, she filled out another form disclosing her relationships with P.W. and Cousin. She filled out the form three weeks after her encounter with Cousin, but before a Law Enforcement Bureau investigation of the incident was completed, and about a month before UDC gave her notice of its intent to terminate her employment.

         ¶7 The notice informed Aiono that her actions violated Department of Human Resource Management Rule 477-9-1 and UDC Policy AE 02/14.00, Prohibited Association/Conduct. Following a hearing in July 2015, UDC fired Aiono for her actions during the overtime shift in May. UDC "concluded that [Aiono] had failed to fill out the mandatory Relationship Disclosure Form and failed to follow the chain of command." It "further concluded that [Aiono] failed to take action and accountability when she became aware of the conflict of interest."

         ¶8 Aiono appealed her dismissal, and the CSRO conducted an evidentiary hearing. It issued an order upholding UDC's ...


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