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Augustus v. Vernal City And Vernal City Appeals Board

Court of Appeals of Utah

October 26, 2017

Russel Augustus, Petitioner,
v.
Vernal City and Vernal City Appeals Board, Respondents.

         Original Proceeding in this Court

          Christian A. Kesselring, Attorney for Petitioner

          Michael D. Harrington, Attorney for Respondent Vernal City

          Dennis L. Judd, Attorney for Respondent Vernal City Appeals Board

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

          TOOMEY, JUDGE.

         ¶1 Russel Augustus worked as an equipment operator for Vernal City and was discharged after violating several City policies. His conduct and the policies he violated were identified in a termination memorandum. The Vernal City Appeals Board upheld the City's decision to discharge Augustus. Augustus seeks review of the Board's decision, arguing that the Board violated his due process right to notice when it considered conduct not set out in the City's termination memorandum. We decline to disturb the Board's decision.

         January 21 Incident

         ¶2 On the morning of January 21, 2016, Augustus's supervisor (Supervisor) instructed Augustus and a coworker (Coworker) to hang some banners on the west end of town. Augustus and Coworker traveled to the work site in a city-owned truck. Although Augustus and Coworker began their assignment on the west end, they later deviated from that assignment without authorization and went to the east end of town to a different work site, where another city employee was operating a large tractor loader. Augustus and Coworker claimed that they believed the loader was being operated in an unsafe manner, so Augustus, without any instruction from a supervisor that he do so, used his city-issued cell phone to take photographs and a video recording of it. The loader operator saw Augustus drive by "with his cell phone up to the window" and immediately reported it to Supervisor.

         January 25 Incident

         ¶3 Four days later, during working hours, Supervisor twice called Augustus's city-issued cell phone to set up a meeting to discuss Augustus's January 21 behavior, but Augustus did not answer. About an hour later, Supervisor encountered Augustus. Supervisor explained that he wanted to meet with Augustus and asked him why he had not answered his phone earlier that morning. Augustus responded, "I haven't had my cell phone." The two met later that day.

         ¶4 At their meeting, Augustus explained, "My phone has been off all day . . . I haven't had my cell phone." When Supervisor asked Augustus whether he and Coworker drove to the east end of town and took photographs and a video recording of the loader, Augustus answered that he could not remember. Throughout the meeting, Augustus responded to Supervisor's questions in an evasive, dismissive, and disrespectful manner. Thirty minutes into the meeting, Augustus announced he was leaving. Supervisor responded that Augustus was not free to leave and that, if he did, he could face disciplinary action. Augustus replied, "Have fun with that, " and left.

         ¶5 Supervisor also met with Coworker, who admitted he and Augustus had gone to the east end of town and took photographs and a video recording of the loader without authorization. After meeting with Augustus and Coworker, Supervisor placed them both on paid vacation leave for approximately one week.

         ¶6 As Supervisor further investigated the violations, he discovered that on the morning of January 25, Augustus had made several phone calls from his city-issued cell phone and sent several text messages. This information supported Supervisor's suspicion that Augustus had lied ...


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