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LaMont v. Riverton City Board of Appeals

Court of Appeals of Utah

October 26, 2017

Chris LaMont, Petitioner,
v.
Riverton City Board of Appeals, Respondent.

         Original Proceeding in this Court

          Lincoln W. Hobbs and Sarah H. Orme, Attorneys for Petitioner

          Maralyn M. English and Christopher W. Droubay, Attorneys for Respondent

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

          OPINION

          HARRIS, Judge

         ¶1 Riverton City (the City) fired Chris LaMont from his position as a construction supervisor after he refused to submit to a "reasonable suspicion drug [and alcohol] test" while on duty. LaMont appealed his termination, and the Riverton City Board of Appeals (the Board) upheld the City's decision. LaMont now seeks judicial review of the Board's conclusion, claiming that (1) the City did not have reasonable suspicion to ask him to submit to an alcohol test in the first place; (2) the test he was asked to take, had he agreed to take it, would have been administered improperly; and (3) the Board upheld his termination "on an entirely different ground than that originally used" to fire him. We conclude that the City did have reasonable suspicion to test LaMont for alcohol; that LaMont's refusal was not based on any objections to the procedures of the particular test he was asked to take; that the City gave LaMont sufficient notice that it was terminating his employment for, among other things, his insubordination in refusing the test; and that the Board properly relied on that insubordination as grounds to uphold LaMont's termination. Accordingly, we decline to disturb the Board's decision.

         BACKGROUND

         ¶2 In September 2014, LaMont's supervisor (Supervisor) developed suspicions that LaMont may have been consuming alcohol while at work. On September 29, Supervisor and a Riverton City attorney (Attorney) exchanged text messages noting that LaMont would be at a conference the next day and speculating that he might drink alcohol during the conference. Accordingly, Attorney and Supervisor planned to have Supervisor observe LaMont at the conference and, if LaMont showed signs of intoxication, Supervisor and Attorney would later observe LaMont together to determine whether they had reasonable suspicion to ask LaMont to submit to an alcohol test.

         ¶3 The next day, Supervisor observed LaMont at the conference and noted that LaMont was "agitated, " "his face was swollen and very red, " "[h]is eyes were bloodshot, " and he exuded the odor of alcohol. Supervisor immediately asked LaMont to meet with Supervisor and Attorney, then called Attorney outside of LaMont's presence and reported his belief that LaMont was intoxicated. Upon hearing this, Attorney began arranging for an alcohol test, and made plans to personally observe LaMont to determine whether he also believed LaMont was intoxicated. When LaMont met with Attorney and Supervisor shortly thereafter, Attorney noticed that LaMont's eyes were bloodshot, that he smelled like alcohol, and that his speech was slow or slurred.

          ¶4 Following a quick conference about their observations, Attorney and Supervisor jointly asked LaMont to take an alcohol test. LaMont refused. LaMont later claimed he did so because he "felt uneasy, " felt the test was unauthorized, and believed the test may have been tampered with. LaMont did not give any other reasons for refusing the test, and he did not offer to take a different kind of test. At oral argument before this court, LaMont's counsel conceded that there is no evidence in the record indicating that LaMont, at the time he was asked to submit to the test, expressed any concerns about the testing procedure itself.

         ¶5 Under the Riverton City Personnel Policies and Procedures Manual (the City's Manual), "[a]n employee will be required to provide a urine sample" when "reasonable suspicion arises" that the employee has used alcohol. Refusal to do so upon request violates City policy and may also constitute "insubordination." The City's Manual defines "insubordination" as a "critical offense" that "may justify involuntary termination." Following LaMont's refusal to take the alcohol test, the City placed him on administrative leave.

         ¶6 On November 23, 2015, the City sent LaMont a predetermination letter informing him that the City intended to conduct a hearing "considering discipline, up to and including termination." In the letter, the City explained that one of the grounds for potential discipline was his "insubordination" in refusing to submit to an alcohol test after Attorney and Supervisor formed a reasonable suspicion that he had been drinking. On December 2, the City held a hearing, and thereafter terminated LaMont's employment. In a "notice of determination" letter (Termination Letter) sent to LaMont on December 10, the City informed LaMont that he was being fired in part because the "City has determined that the appropriate discipline for your insubordination of September 30, 2014, is to terminate your employment."[1]

         ¶7 LaMont appealed his termination to the Board. After a hearing, the Board issued a written decision upholding LaMont's termination. In the decision, the Board concluded that the City was justified in terminating LaMont's employment because his "refusal to comply" with Attorney and Supervisor's instructions ...


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