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Burgess v. Department of Corrections and Career Service Review Office

Court of Appeals of Utah

October 5, 2017

Stephen Burgess, Petitioner,
v.
Department of Corrections and Career Service Review Office, Respondents.

         Original Proceeding in this Court

          Jason D. Haymore, Attorney for Petitioner

          Sean D. Reyes and J. Clifford Petersen, Attorneys for Respondent Department of Corrections

          Judge Michele M. Christiansen authored this Opinion, in which Judge Stephen L. Roth and Senior Judge Pamela T. Greenwood concurred.[1]

          CHRISTIANSEN, Judge

         ¶1 Petitioner Stephen Burgess seeks judicial review of the Career Service Review Office's decision upholding the termination of his employment by the Utah Department of Corrections (the Department). We set aside that decision and return the case for reconsideration of the discipline to be imposed.

         BACKGROUND

         ¶2 In 2008, the Department hired Burgess as a correctional officer. A year and a half later, Burgess became a crew supervisor with the Utah Correctional Industries (UCI) division of the Department. As a crew supervisor, Burgess oversaw inmates on construction projects outside the prison. According to his immediate supervisors, Burgess excelled at his job, had an unblemished working record, and was a highly valued employee.

         ¶3 In December 2013, Burgess flew home to Utah after attending a professional football game in Denver, Colorado, with his friend, Fredrickson, and two other men, Summers and Passey. All four men had been drinking alcohol throughout the day, and the drinking continued during the flight home. When the men arrived at the Salt Lake City International Airport, an airport police officer in the baggage claim area noticed that Summers and Fredrickson seemed intoxicated. The officer smelled alcohol emanating from the two men and observed that "[t]hey were hanging on each other, kind of laughing. They were . . . being pretty loud and boisterous . . . and kind of stumbling." The officer watched Burgess, Fredrickson, and Summers board an airport shuttle bus headed for the economy parking lot and alerted an officer on vehicle patrol that three individuals who appeared intoxicated were on the bus.[2]

         ¶4 When the three men got off the bus, several airport police officers were waiting for them. After speaking with them, the officers believed that the men were intoxicated to varying degrees. The officers determined that none of the men should be driving. One of the officers suggested the men take a taxi home to Herriman instead of driving, and the men agreed to follow the officer's suggestion. When the taxi arrived, the three men got in and the taxi started to drive away. Sometime before the taxi left the airport parking lot, the men decided that Fredrickson would drive them home instead. Fredrickson, who planned to go on a hunting trip the next day and did not want to drive two hours to retrieve his truck the next morning, assured Burgess that he was perfectly capable of driving. Though Burgess understood that "there was some risk" in getting out of the taxi, because Burgess had been with Fredrickson the entire day and had witnessed him drink only three alcoholic beverages, he agreed to let Fredrickson drive them home.

         ¶5 The three men then got out of the taxi and walked to Fredrickson's truck. With Fredrickson driving, they headed toward the parking lot exit; however, before they could leave the airport parking lot, the police stopped the truck, arrested all three men, and took them to the airport police station. Although Burgess did not undergo any sobriety tests, he was charged with public intoxication, a class C misdemeanor. See Utah Code Ann. § 76-9-701(1), (7) (LexisNexis 2012).[3] Fredrickson, however, underwent a variety of sobriety tests. He passed the "one leg stand and balance test" and the Horizontal Gaze Nystagmus eye test, but a breathalyzer test measured Fredrickson's blood alcohol concentration at .097, which was over the legal limit of .08. See id. § 41-6a-502(1)(a) (2010). As a result, Fredrickson was charged with and later convicted of driving under the influence (DUI). The public intoxication charge against Burgess was ultimately dropped. See infra ¶ 9.

         ¶6 Soon thereafter, Burgess reported the incident to his immediate UCI supervisor, who reported the incident to the UCI Director. Burgess did not tell his supervisor that he did not ride home in the taxi in contravention of a police officer's suggestion or that his companion, Fredrickson, had been charged with DUI. The UCI Director referred the incident to the Department's Law Enforcement Bureau (the LEB), which conducted an investigation. The LEB determined that Burgess had violated two Department policies-Policy AE 02/07, governing unlawful conduct, and Policy AE 02/11.03, governing professionalism. See infra ¶¶ 24, 30.

         ¶7 The Department conducted a disciplinary committee meeting to discuss Burgess's situation and make disciplinary recommendations. Burgess's immediate UCI supervisor presented the case to the committee. The committee discussed Burgess's public intoxication charge and concluded that a "conviction wasn't necessary for administrative reasons [to discipline Burgess] if the police officers observed signs of intoxication." The committee also discussed similar disciplinary cases, although it was not bound by the previous administration's actions.[4] A manager for the Department of Human Resource Management presented several of the "closest cases" he could find, but he reported to the committee that there were "no exact comparable cases since the current Executive Director had assumed his duties." The so-called "comparable cases" all involved employees who had each been charged with public intoxication and additional offenses, and at least one of the employees had been previously disciplined. Two of the employees had been terminated and one had resigned in lieu of termination.

         ¶8 Burgess's immediate UCI supervisor recommended to the committee that Burgess receive a punishment of time off without pay. Although the committee also discussed suspension as a possible punishment, it ultimately decided to recommend termination. According to the UCI Director, the committee's decision "ultimately . . . came down to the trust issue and the potential of being compromised as a correctional officer[;] the conduct was egregious." However, Burgess's immediate UCI supervisor and a UCI production manager later testified that the "comparable cases" involving public intoxication "swung the decision in the [committee] meeting" toward termination. On February 28, 2014, the Executive Director of the Department officially terminated Burgess for "non-compliance with and/or a violation of [Utah Administrative Code] Rule 477-9, governing standards of conduct, Utah Department of Corrections Policy . . . AE 02/07, governing unlawful conduct, and . . . Policy AE 02/11.03, governing professionalism."

         ¶9 Thereafter, on March 18, the public intoxication charge against Burgess was dismissed for insufficient evidence. And on July 2, the Division of Peace Officer Standards and Training (POST), which investigates allegations of misconduct against peace officers, concluded that there was insufficient evidence "to show [Burgess's] conduct constitute[d] a violation of Utah Code Ann. § 53-6-211." POST declined to seek suspension or revocation of Burgess's peace officer certification.

         ¶10 Burgess appealed his termination to the Career Service Review Office (the CSRO). The CSRO held a two-day step 4 hearing and affirmed the Department's disciplinary action.[5] The CSRO found that the committee's recommendation that Burgess be terminated was "largely based on his public intoxication and not a lack of trust." The CSRO determined that, "[w]hile there is substantial evidence that [Burgess] had consumed a quantity of alcohol, and had 'red glossy eyes, ' and smelled of alcohol the day of the incident, substantial evidence does not support the conclusion that he was publically intoxicated." Accordingly, the CSRO concluded that, "insofar as the final decision to terminate [Burgess] was based on a finding of public intoxication, it is not sustained." The CSRO further determined that there was substantial evidence supporting the conclusion that Burgess "exercised very poor judgment by exiting the taxi and getting in [Fredrickson's] truck on the day of the incident." In addition, the CSRO determined that "[t]he final decision to terminate [Burgess] based on his poor judgment . . . when given proper deference, was neither excessive, disproportionate, nor an abuse of discretion, " and that "[t]he final decision to terminate [Burgess] based on the Executive Director's lack of trust in [Burgess's] judgment is supported by substantial evidence."

         ¶11 Burgess filed a motion for reconsideration, which the CSRO denied. The CSRO ruled that there was substantial evidence to support the conclusion that Burgess violated Policy AE 02/07 and Policy AE 02/11.03. The CSRO also ruled that while it "would not have made the decision that the Executive Director made . . ., [it] could not substitute [its] judgment" for the Department's because "the applicable criteria [for termination had been] met." Burgess petitioned this court for review of the CSRO's decision.

         ISSUES AND STANDARDS OF REVIEW

         ¶12 On judicial review, Burgess contends that the CSRO erred in three ways. First, he asserts that the CSRO erred in finding that he exercised poor judgment. Second, he asserts that the CSRO erred in concluding that his "conduct violated one of the Department rules/policies listed in his pre-termination notice." Third, he asserts that the CSRO erred in concluding that his termination was "not excessive, inconsistent, or disproportionate to his offense."

         ¶13 The CSRO is "the final administrative body to review a grievance from a career service employee and an agency of a decision regarding, " among other things, "a dismissal." See Utah Code Ann. § 67-19a-202(1)(a)(i) (LexisNexis Supp. 2013). But the CSRO's role in examining the Department's personnel actions is a limited one. See Career Service Review Board v. Department of Corr., 942 P.2d 933, 942 (Utah 1997).[6] In a step 4 hearing, the CSRO is first required to "make factual findings based solely on the evidence presented at the hearing without deference to any prior factual findings of [the Department]." Utah Admin. Code R137-1-21(3)(a) (2013). The CSRO must then determine whether "the factual findings . . . support with substantial evidence the allegations made by [the Department]" and whether "[the Department] has correctly applied relevant policies, rules, and statutes." Id. R137-1-21(3)(a)(i)-(ii). If the factual findings support the Department's allegations, the CSRO "must determine whether [the Department's] decision, including any disciplinary sanctions imposed, is excessive, disproportionate or otherwise constitutes an abuse of discretion." Id. R137-1-21(3)(b). "In making this latter determination, the CSRO . . . shall give deference to the decision of [the Department]." Id. In other words, the CSRO's authority to review departmental disciplinary actions "is limited to determining if there is factual support for the charges and, if so, whether the sanction is so disproportionate to the charges that it 'amounts to an abuse of discretion.'" Lunnen v. Department of Transp., 886 P.2d 70, 72 (Utah Ct. App. 1994) (quoting Department of Corr. v. Despain, 824 P.2d 439, 443 (Utah Ct. App. 1991)).

         ¶14 Our review of the CSRO's decision falls under Utah's Administrative Procedures Act. Kent v. Department of Emp't Sec., 860 P.2d 984, 985-86 (Utah Ct. App. 1993). Pursuant to the Administrative Procedures Act, "[t]he appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following: . . . (g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court; [or] (h) the agency action is: (i) an abuse of the discretion delegated to the agency by statute; . . . [or] (iii) contrary to the agency's prior practice." Utah Code Ann. § 63G-4-403(4) (LexisNexis 2011). Thus, we examine the CSRO's findings of fact to determine whether substantial evidence supported the Department's allegations. See Lucas v. Murray City Civil Service Comm'n, 949 P.2d 746, 758 (Utah Ct. App. 1997) ("The Commission's findings, upon which the charges are based, must be supported by substantial evidence [when] viewed in light of the whole record before us.").

         ¶15 Further, we review "an agency's application of its own rules for reasonableness and rationality, according the agency some, but not total[, ] deference." Lunnen, 886 P.2d at 72; see also Kent, 860 P.2d at 986 ("In construing [Utah Code section 63G-4-403], the Utah Supreme Court has held that appellate courts should employ an intermediate standard, one of some, but not total, deference, in reviewing an agency's application of its own rules."). We therefore "review [the CSRO's] application of its rules for reasonableness and rationality." Kent, 860 P.2d at 986.

         ANALYSIS

         I. Poor Judgment

         ¶16 First, Burgess contends that the ...


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