Proceeding in this Court
W. Rawson, Nate N. Nelson, and Jeremy G. Jones, Attorneys for
Stirba and Bradley A. Schmidt, Attorneys for Respondents
Kate A. Toomey authored this Opinion, in which Judges Jill M.
Pohlman and Ryan M. Harris concurred.
Heidi Palmer asks this court to review the decision of the
St. George City Council (the Appeal Board) to uphold her
suspension of "five days, 40 hours, without pay"
for violating the policies of the St. George Municipal
Corporation (the City) and the St. George Police Department
(the SGPD). Palmer contends Respondents violated her
due process rights in four ways and that the Appeal Board
exceeded its discretion when it failed to make findings of
fact to support its decision to uphold her discipline.
¶2 We conclude that Palmer's due process rights were
violated when the Appeal Board refused to compel the City to
disclose evidence of comparable discipline within the SGPD.
But there were no due process violations with respect to her
three remaining claims. We further conclude that the Appeal
Board's failure to make findings of fact that supported
its decision to uphold Palmer's discipline constituted an
abuse of discretion. We therefore set aside the decision of
the Appeal Board and remand for further proceedings
consistent with this opinion.
Palmer is a Sergeant with the SGPD. In June 2014, she
received a report that someone's cell phone contained
child pornography. Palmer initiated an investigation and
seized the suspect's computer and cell phone. Another
officer then copied pornographic images from these devices
onto a CD for Palmer's review. Palmer did not complete
her report on the case until August 2016-more than two years
later. During that period, she did not properly store the CD
and instead left it unsecured in her desk.
Before Palmer had completed her report, her supervisor had
initiated an internal affairs investigation to review her
ability to manage her responsibilities. Palmer's
supervisor formally complained to SGPD's Chief of Police
(the Chief), who determined that the Disciplinary Review
Board (the Disciplinary Board) should be convened to
recommend discipline. Based on the internal affairs
investigation, the Disciplinary Board recommended that Palmer
be demoted in rank and that she undergo a six-month action
plan "to improve report writing and ensure any future
evidence [is] logged correctly."
Following the Disciplinary Board's recommendation, Palmer
received a Notice of Intent to Discipline (the Notice),
informing her that she had violated St. George City Policy
4.50 related to incompetence, misconduct, and failure to
perform duty. The Notice also provided the date and time of a
pre-disciplinary hearing meeting and explained that Palmer
could "bring to the meeting any evidence or
witnesses" that she chose. Palmer requested that her
attorney be present, but she was told an "attorney would
not qualify as a witness" and therefore would not be
allowed to attend.
Palmer appeared at the pre-disciplinary hearing meeting
without counsel, after which the Chief recommended to the
City Manager that she be demoted without a reduction in pay
and placed on a "Performance Improvement Action
Plan." The City Manager gave Palmer notice of this
recommendation and informed her that she had the right to
appeal it. Through the process of that appeal, the Chief
reconsidered his recommendation and instead recommended only
"five days (40 hours) off without pay and that [Palmer]
be placed on an action plan, rather than a recommendation of
demotion." The City Manager upheld the decision to
impose the lesser penalty, and Palmer appealed this decision
to the Appeal Board.
Before her hearing in front of the Appeal Board (the
Disciplinary Appeal Hearing), Palmer twice requested
"production of information regarding other disciplinary
matters investigated under [Palmer's supervisor]."
The City responded that the comparable discipline information
was "not relevant" because the only information the
Appeal Board would review was the internal investigation of
Palmer. Palmer also communicated to the City her belief that
the St. George City Attorney (the City Attorney) should not
be involved in the Disciplinary Appeal Hearing, because of
his "prior involvement [in the investigation] and
obligation to protect the City's interest, " as well
as her belief that the City Attorney's continued
involvement in her case constituted "[a] de facto
violation of [her] procedural due process rights." The
City Attorney and the City disagreed and stated they would
"proceed as planned."
Leading up to the hearing, both parties were informed that
they would be "given one hour to present their
arguments, including questioning of any witnesses."
Palmer believed that one hour was too little time in which to
present her defense, and that the Appeal Board's one-hour
time limit was "unacceptable and yet again another
attempt by the [Appeal Board] to deprive [her] of her
protected due process rights."
The City Attorney did not participate in the hearing.
Instead, an Assistant City Attorney advised the Appeal Board,
and the City was represented by private counsel. Palmer's
attorney opened the arguments by identifying five issues that
he believed constituted due process violations, the following
four are relevant to this petition for review:
"[Palmer's] right to counsel during the
[pre-]disciplinary process"; "her right to present
evidence and confront witnesses free from unreasonable [time]
limits"; "her right to an impartial hearing free
from the taint of dual representation by city
attorneys"; and "the refusal of the City and [the
Appeal Board] to provide information for comparable
disciplinary analysis." During the course of the
hearing, Palmer's attorney called two witnesses, and the
City called four.
After hearing testimony from six witnesses, the Appeal Board
unanimously upheld the City Manager's decision to suspend
Palmer "for five days, 40 hours, without pay." The
Appeal Board issued its decision in a one-sentence
"certification" and did not make findings of fact
or otherwise explain the basis for its decision to uphold
Palmer's suspension. Palmer petitions this court for
review of the Appeal Board's decision.
AND STANDARDS OF REVIEW
Palmer makes three overarching contentions on judicial
review. First, she contends that the Appeal Board erred in
failing to rule on her claim that the City violated her due
process rights when she was denied legal representation at
the pre-disciplinary hearing meeting. Generally, our review
of administrative agency decisions is "limited to
determining whether the [agency] abused its discretion or
exceeded its authority." Taylorsville City v.
Taylorsville City Emp. Appeal Board, 2013 UT App 69,
¶ 16, 298 P.3d 1270 (quotation simplified). But when the
agency's decision "implicates due process, we review
it for correctness." Id.
Second, Palmer contends the Appeal Board violated her due
process rights in three respects. "Due process challenges
are questions of general law and we give no deference to the
agency's determination of what constitutes due
process." Fierro v. Park City Mun. ...