Howick v. Salt Lake City Corporation , 310 P.3d 1220 ( 2013 )

2013 UT App 218_________________________________________________________
THE UTAH COURT OF APPEALS
JODI HOWICK,
Plaintiff, Appellee, and Cross‐appellant
v.
SALT LAKE CITY CORPORATION,
Defendant, Appellant, and Cross‐appellee.
Opinion
No. 20110848‐CA
Filed September 6, 2013
Third District, Salt Lake Department
The Honorable Anthony B. Quinn
No. 090913336
W. Mark Gavre and Nicole G. Farrell, Attorneys for
Appellant
Jodi Howick, Appellee Pro Se
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE CAROLYN B. MCHUGH concurred. JUDGE GREGORY K. ORME
concurred, with opinion.
VOROS, Judge:
¶1 Jodi Howick was employed by Salt Lake City Corporation
as general counsel to the Salt Lake City International Airport. The
principal questions on appeal are (1) whether Howick was a merit
employee under the Utah Municipal Code, (2) if so, whether she
could legally forfeit merit protection, and (3) if so, whether she did.
We answer the first and second questions in the affirmative. We
remand for the district court to answer the third question.
Howick v. Salt Lake City Corp.
BACKGROUND
¶2 In 1992, the City hired Howick as counsel for the Salt Lake
City International Airport. In 1998, the City created a new position,
“Appointed Senior City Attorney,” in response to the salary
dissatisfaction of some city attorneys. The position came with a
significant pay increase, but the City required employees applying
for the position to sign a document titled “Salt Lake City
Corporation At‐Will Employment Disclaimer.” The Disclaimer
purported to terminate the signer’s merit employee status:
I understand that, if I am appointed by the Salt Lake
City Attorney to the “Appointed Senior City
Attorney” position, my employment will be at‐will
and will be for no fixed length of time.
The City offered the new position to several attorneys. Some
declined the offer and remained in their existing pay grades.
Others, including Howick, signed the Disclaimer and moved to the
new status. Both groups continued to receive pay increases, but the
Appointed Senior City Attorneys received larger pay increases.
¶3 Although Howick had “tremendous expertise and
experience that [was] not replicated by anyone else in the City
Attorney’s Office,” the City terminated her employment in 2007.
Howick filed a notice of appeal with the Salt Lake City Employee
Appeals Board. See generally Howick v. Salt Lake City Corp., 2008 UT
App 216U (mem.) (per curiam). However, because the Labor
Relations Officer determined that the Board lacked “jurisdiction to
review the termination of . . . at‐will employees,” the appeal was
not forwarded to the Board. Id. para. 3. Consequently, the Board
did not hold a hearing or issue any order. Id. Howick sought
review by this court. We dismissed the petition because we “lack[]
jurisdiction to review decisions not to hold adjudicative
proceedings” but noted that Howick could “petition for an
extraordinary writ seeking an order mandating that the [Board]
20110848‐CA 2 2013 UT App 218Howick v. Salt Lake City Corp.
issue a final agency decision on its own jurisdiction.” Id. para.
3 & n.1.
¶4 The City then referred Howick’s appeal of her termination
to the Board. Without hearing testimony, the Board considered
memoranda on the issue of whether Howick was a merit or an at‐
will employee at the time of her termination. See Howick v. Salt Lake
City Emp. Appeals Bd. (Howick II), 2009 UT App 334, ¶ 2, 222 P.3d
763. The Board determined that she was an at‐will employee, and
Howick again sought review by this court. Id. ¶¶ 1–2. We held that
the authority to make such a determination in the first instance was
vested in the district court and that the Board’s determination
consequently exceeded its authority. Id. ¶ 17. Accordingly, we
dismissed without prejudice, ruling that Howick needed to “obtain
a determination from the district court regarding her employment
status before we [could] entertain any appellate review.” Id.
¶¶ 12, 18.
¶5 Howick filed suit in the district court and obtained a partial
summary judgment that she retained merit employee status even
after signing the Disclaimer. The trial court certified the judgment
as final pursuant to rule 54(b) of the Utah Rules of Civil Procedure.
The City now appeals, and Howick cross‐appeals.1
ISSUES AND STANDARD OF REVIEW
¶6 The City contends that the district court erred by failing to
fully analyze the issues before it, ruling that Howick’s claims were
not time‐barred, concluding that Howick was a merit employee,
and rejecting the City’s defenses of waiver and estoppel based on
the Disclaimer. Howick counters that the district court should have
1. Although Howick frames a portion of her cross‐appeal as a
challenge to the ruling of the Board, that ruling is not before us. In
any event, we need not reach it given our resolution of the central
issues of this appeal. Accordingly, we do not discuss it further.
20110848‐CA 3 2013 UT App 218Howick v. Salt Lake City Corp.
granted her summary judgment motion in its entirety and
reinstated her as an employee of the City.
¶7 Summary judgment is appropriate where “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).
“An appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness and
views the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” Bingham v.
Roosevelt City Corp., 2010 UT 37, ¶ 10, 235 P.3d 730 (citation and
internal quotation marks omitted).
ANALYSIS
¶8 At the heart of this dispute is what we will refer to as the
Merit Protection Statute, as it existed in 1998. The statute mandates
merit protection for all municipal employees, subject to several
enumerated exceptions. See Utah Code Ann. § 10‐3‐1105 (Michie
1996). The next statutory section provides that no protected
municipal employee may be discharged or demoted “because of
his politics or religious belief, or incident to, or through changes,
either in the elective officers, governing body, or heads of
departments.” Id. § 10‐3‐1106(1). That section also sets forth a
termination and appeals procedure applicable to protected
employees. See id. § 10‐3‐1106(2)–(7).
¶9 The main substantive questions raised by this appeal are
(1) whether Howick qualified as a merit employee under the Merit
Protection Statute and (2) if so, whether she forfeited its protections
by accepting a promotion to an “at‐will professional position” and
signing the Disclaimer. However, before we reach these questions
we must address threshold procedural issues concerning
(1) whether the district court made all rulings necessitated by our
decision in Howick II and (2) whether Howick’s claim is barred by
the statute of limitations.
20110848‐CA 4 2013 UT App 218Howick v. Salt Lake City Corp.
I. The District Court Made All Required Rulings.
¶10 The City contends that the district court “failed to undertake
the legal analysis required by this court.” In Howick II we held that
a district court action would permit Howick to test her claim of
statutory merit status against the City’s defenses of waiver and
estoppel and thus allow the district court to determine whether she
was a merit or an at‐will employee. 2009 UT App 334, ¶ 8, 222 P.3d
763. Howick later filed the action and obtained the partial summary
judgment now before us.
¶11 The district court ruled that the question of liability “comes
down to an issue of statutory construction.” It read the Merit
Protection Statute as mandatory, “meaning that the provisions of
the merit system apply to all employees except those that are
specifically exempted.” The court further determined that “there
are simply no facts in the record from which to conclude that Ms.
Howick was either a department head or a superintendent”; thus,
it concluded, she was not specifically exempted by the statute.
Finally, the court ruled that “because of the language of the statute,
the parties cannot create an exception to the statute by contract,
waiver, or estoppel.” Allowing a city and its employee to expand
the statutory exceptions to merit protection, the court reasoned,
would permit a city to “pressure employees to enter into a contract
giving up their rights as merit employees, while paying them only
minimal compensation for doing so. This could effectively end
merit employment as mandated by the legislature.”
¶12 The City argues that the district court failed to analyze its
waiver and estoppel defenses. The City asserts that “[w]aiver and
estoppel are threshold doctrines that are applied to a party’s claims
at the outset and without considering the underlying legal merits.”
The City cites no legal authority for this assertion.2 Moreover, the
City offers no logical explanation why, having determined that the
2. Later in its argument the City cites Glew v. Ohio State Bank, 2007
UT 56, 181 P.3d 791, but that case does not support the City’s
assertion that waiver and estoppel are threshold issues.
20110848‐CA 5 2013 UT App 218Howick v. Salt Lake City Corp.
City’s equitable defenses—regardless of their merit—were barred
by the Merit Protection Statute’s mandatory terms, the district
court should have proceeded to analyze the merits of these barred
defenses. Accordingly, the City has not shown that the district
court erred in this regard.
¶13 The district court also rejected the City’s statute of
limitations defense. It did so on two alternative grounds. First, it
ruled that “regardless of the merits of the [statute of limitations]
argument,” our decision in Howick II required that it address the
substance of Howick’s claim. Second, it ruled that in any event, “on
the merits, [Howick] has the better position.” The court explained
that “[a]lthough technically either side could have brought a
declaratory judgment action testing the validity of Ms. Howick’s at‐
will status from the time it went into effect, there was no real
justiciable dispute until Ms. Howick was terminated.” The court
continued, “When she was, [she] did exactly what she was entitled
to do as a merit employee—she pursued her direct remedy by
filing a timely appeal to the city’s employee appeals board and
then filing timely appeals with the Court of Appeals.”
¶14 The City contends that the district court “disregarded the
statute of limitations governing Ms. Howick’s claim, while
implicitly admitting that her claim was time barred.” The City
quotes the district court’s oral ruling, which stated that “almost
regardless of the merits, [it] would not decide this case on statute
of limitations grounds because the Court of Appeals clearly wanted
this done.” However, the district court also concluded that “on the
merits, [Howick] has the better position” and explained its
rationale for that conclusion.
¶15 We conclude that the district court did address the
limitations defense “on the merits” and thus do not agree with the
City that the district court, in the City’s words, “failed to undertake
the legal analysis required by this court” in Howick II. See Allen v.
Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (noting an appellant’s obligation
to challenge the basis of the trial court’s decision and the
20110848‐CA 6 2013 UT App 218Howick v. Salt Lake City Corp.
appellant’s concomitant burden to demonstrate error in that
decision); Duchesne Land, LC v. Division of Consumer Prot., 2011 UT
App 153, ¶ 8, 257 P.3d 441 (rejecting appellant’s claim on the
ground that it did “not address[] the actual basis for the district
court’s ruling”).
II. Howick’s Wrongful Termination Claim Is Not Time‐Barred.
¶16 The City next contends that, in any event, Howick’s
declaratory judgment cause of action is barred by the statute of
limitations as a matter of law. “Because the basis of Ms. Howick’s
claim is that she was improperly made an at‐will employee in 1998
and that her at‐will agreement was ‘void’ and ‘illegal’ in 1998,” the
City argues, “her claim is barred by the statute of limitations.”
Under this analysis, Howick’s claim for declaratory judgment arose
when she accepted the promotion and signed the Disclaimer in
1998, but she did not file her complaint until 2009. As a result, the
City argues, her claim is time‐barred whether it is viewed as
alleging a statutory violation and is thus subject to a three‐year
limitations period, see Utah Code Ann. § 78B‐2‐305(4) (LexisNexis
2012), or as alleging breach of contract and is thus subject to a six‐
year limitations period, see id. § 78B‐2‐309.3
¶17 Although the City asserts that “Ms. Howick’s declaratory
judgment cause of action is barred by the statute of limitations as a
matter of law” (emphasis added), her complaint alleges four claims
for relief, all arising from the same set of facts. Her other claims
allege “wrongful termination in violation of statutes and in
violation of public policy,” “breach of implied contract,” and
“breach of implied covenant of good faith and fair dealing.” The
City never asserts that these claims are time‐barred. Similarly, the
City does not challenge the district court’s ruling that, upon
3. We cite to the current version of the Utah Code where the
relevant provisions have not changed in any way material to our
analysis.
20110848‐CA 7 2013 UT App 218Howick v. Salt Lake City Corp.
termination, Howick “pursued her direct remedy by filing a timely
appeal to the city’s employee appeals board and then filing timely
appeals with the Court of Appeals.” Nor does the City argue that
Howick’s claims for wrongful termination, breach of implied
contract, or breach of implied covenant of good faith and fair
dealing are barred by her failure to seek declaratory judgment
earlier.
¶18 If the determination of a claim for damages requires a
district court to determine the respective rights of the parties, a
“separate request for declaratory relief is subsumed by [the
plaintiff’s] damages action.” See Rhodes v. Robinson, 408 F.3d 559,
566 n.8 (9th Cir. 2004). Here, Howick’s claims for wrongful
termination and breach of contract required the district court to
determine the respective rights of the parties. Consequently, those
claims subsumed her claim for declaratory relief. See id. Moreover,
Howick could not have sued for wrongful termination before she
was terminated. See Clarke v. Living Scriptures, Inc., 2005 UT App
225, ¶¶ 14–19, 114 P.3d 602 (adopting the rule that “in an
employee’s action based upon termination of employment, the
limitations period begins to run at the time notice of termination is
given” because, inter alia, the employee’s cause of action “accrue[s]
at that time”). And the City does not argue that Howick’s failure to
sue for a declaration of her rights before her termination cuts off
her ability to sue for damages after her termination. Accordingly,
the City has not demonstrated that the district court erred in
rejecting its limitations defense.
III. Howick Was Legally Able To Waive Her Merit Protection.
A. Howick Enjoyed Merit Protection.
¶19 The City contends that even before Howick signed the
Disclaimer in 1998 she was an at‐will employee under the Merit
Protection Statute “because the statute (as it was worded at the
time) allowed municipalities to make ‘superintendents’ and ‘heads
20110848‐CA 8 2013 UT App 218Howick v. Salt Lake City Corp.
of departments’ at‐will employees” and that Howick fit within
these exempt job classifications.4
¶20 The Merit Protection Statute provided that all municipal
employees are merit employees except for those holding positions
specifically enumerated:
All appointive officers and employees of
municipalities, other than members of the police
departments, fire departments, heads of
departments, and superintendents, shall hold their
employment without limitation of time, being subject
to discharge or dismissal only as hereinafter
provided.
Utah Code Ann. § 10‐3‐1105 (Michie 1996). Commenting on the
2004 version of the Merit Protection Statute, we have stated that by
enumerating “very limited exceptions to the presumption that all
municipal employees are merit employees . . . , the statute appears
to be aimed at ensuring that a maximum number of employees are
guaranteed stability in employment.” Kocherhans v. Orem City, 2011
UT App 399, ¶ 10, 266 P.3d 190. This guarantee allows municipal
employees “to advance their careers within the municipal
government system without fear of arbitrary termination—to the
benefit of the employee and the city—except for the very top
positions of the municipal hierarchy.” Id.¶21 The Merit Protection Statute thus “preserves the ability of a
new administration . . . to ensure that a municipality’s core
leadership positions are staffed with men and women of its own
4. The statute was amended in 2004. See Utah Code Ann. § 10‐3‐
1105 (LexisNexis 2007), amend. notes. Howick was terminated in
2007. Although our opinion in Pearson v. South Jordan City suggests
that the version of the statute in effect on the date of an employee’s
termination might govern a dispute arising from that termination,
2012 UT App 88, ¶¶ 16–17, 275 P.3d 1035, neither party asserts that
the 2004 amendment applies.
20110848‐CA 9 2013 UT App 218Howick v. Salt Lake City Corp.
choosing” while preventing a “spoils system” that would threaten
“massive turnover of city employment with each change of
municipal administration.” Id.; see also Hayward v. Pennock, 444 P.2d
59, 61 (Utah 1968) (stating that the reasons for the merit system
include “protect[ing] employees and the public from the evils of
the spoils system”).5
¶22 The question before us is whether Howick fit within the
exceptions for “heads of departments” or “superintendents” who
are exempt from this protection. See Utah Code Ann. § 10‐3‐1105.
This question is governed by her actual duties, not her job title. See
Pearson v. South Jordan City, 2012 UT App 88, ¶ 25, 275 P.3d 1035.
5. “To get a proper vision and perspective we go back to the” 1899
statute, which allowed municipal department heads to remove
subordinates “at any time, without cause, hearing or opportunity
to be heard, and such action was not subject to review or to be
called in question.” Vetterli v. Civil Serv. Comm’n of Salt Lake City,
145 P.2d 792, 797 (Utah 1944) (Larson, J., concurring in part and
dissenting in part). “This setup was the ‘spoils system’ at its
worst.” Id. Utah’s evolution from a patronage system to a merit
system reflected a national trend:
Patronage practice is not new to American politics. It
has existed at the federal level at least since the
Presidency of Thomas Jefferson, although its
popularization and legitimation primarily occurred
later, [with] the Presidency of Andrew Jackson. . . .
More recent times have witnessed a strong decline in
its use, particularly with respect to public
employment. Indeed, only a few decades after
Andrew Jackson’s administration, strong discontent
with the corruption and inefficiency of the patronage
system of public employment eventuated in the
Pendleton Act, the foundation of modern civil
service. And on the state and local levels, merit
systems have increasingly displaced this practice.
Elrod v. Burns, 427 U.S. 347, 353–54 (1976) (citations omitted).
20110848‐CA 10 2013 UT App 218Howick v. Salt Lake City Corp.
¶23 The district court ruled that Howick was not a
superintendent or department head. It read the statute carefully,
emphasizing that the word “all” tended to broaden the class of
merit‐protected employees. The court observed that the City never
referred to Howick as the head of a department or as a
superintendent; the Airport’s organizational chart showed her in
a staff position rather than a line position “as you would expect for
a department head or superintendent”; and Howick supervised
only a secretary, a paralegal, and occasionally another attorney.
¶24 In support of its claim that Howick was a superintendent or
department head, the City points to the following facts: Howick
was the Airport’s “in house legal counsel” and held the title of
“Chief Counsel”; she was involved in “all management decision
making at the Airport”; she was evaluated by the Airport’s
Executive Director rather than the City Attorney; she supervised a
paralegal, a legal secretary, and during one period another
attorney; and she supervised outside counsel.
¶25 The City does not identify any department that Howick
headed or superintended. At most she supervised her own
secretary, a paralegal, and one other attorney, while overseeing
contractual work done by outside counsel. The Utah Municipal
Code does not define the term department. However, it specifies
that the administrative authority in a city of the first class,6 like Salt
Lake City, be divided into five departments: Public Affairs and
Finance, Water Supply and Waterworks, Public Safety, Streets and
Public Improvements, and Parks and Public Property. See Utah
Code Ann. § 10‐3‐801 (LexisNexis 2012); see also Kocherhans v. Orem
City, 2011 UT App 399, ¶ 12, 266 P.3d 190. This use of the term
department connotes much more than the personal assistants
Howick regularly supervised.
6. A city of the first class is defined as one with a population of
100,000 or more. Utah Code Ann. § 10‐2‐301 (LexisNexis 2012).
20110848‐CA 11 2013 UT App 218Howick v. Salt Lake City Corp.
¶26 Despite her designation as “Chief Counsel,” Howick in fact
presided over no named municipal department. She supervised
only her own personal secretary and paralegal and occasionally
one additional attorney. That she was involved in all management
decision‐making at the Airport and that she was evaluated by the
Airport’s Executive Director rather than the City Attorney suggest
that she was a key employee, but not that she was a department
head.
¶27 To determine whether an employee is exempted from merit
protection we have previously considered a city’s organizational
chart. See Pearson v. South Jordan City, 2012 UT App 88, ¶ 31, 275
P.3d 1035. Here, the Airport’s organizational chart shows the Office
of the Director at the top presiding over “Directors” of (1) Finance
and Administration, (2) Planning and Environment, (3) Air Service
and Marketing, (4) Operations, (5) Maintenance, (6) Engineering,
(7) and Public Relations. Howick appears as legal counsel in a staff
position to the side of the Office of the Director. This placement
supports the court’s conclusion that she was not a municipal
department head or superintendent.
¶28 In sum, the district court correctly ruled that Howick did not
fall within what Kocherhans called the “very limited exceptions” to
the Merit Protection Statute. See Kocherhans, 2011 UT App 399,
¶ 10.7
B. Public Policy Does Not Prevent Howick from Waiving Merit
Protection.
¶29 Having determined that Howick was covered by the
protections of the Merit Protection Statute, we must now decide
whether those protections may be forfeited by contract, waiver, or
7. This conclusion is consistent with our statement in Howick II that
Howick’s “job position is not listed among the positions specifically
excluded from merit status.” See Howick II, 2009 UT App 334, ¶ 6,
222 P.3d 763.
20110848‐CA 12 2013 UT App 218Howick v. Salt Lake City Corp.
estoppel. Howick contends that permitting cities to contract around
the Merit Protection Statute would undermine the important public
policy it advances.
¶30 This analysis informed the district court’s ruling. It
reasoned that “[a]llowing an exception to the statute [by contract,
waiver, or estoppel] would vitiate the entire purpose behind the
statute . . . , because the city could do the same thing with any
employee . . . . This could effectively end merit employment as
mandated by the legislature.” The court thus ruled, and Howick
agrees, that the document she signed, coupled with her job
description in the City’s personnel manual, offended the public
policy expressed in the Merit Protection Statute.
¶31 The City contends that the district court erred in ruling that
“the language in sections 10‐3‐1105 and 10‐3‐1106 trumped all other
arguments, including waiver and estoppel.”
¶32 First, the City argues that “[a]ttorneys are subject to the
strong public policy principle that the client may always terminate
the attorney‐client relationship at the client’s sole discretion,”
relying on comment 4 to rule 1.16 of the Utah Rules of Professional
Conduct. This argument proves too much—it would effectively
nullify the Merit Protection Statute as applied to all attorneys based
on a comment to a professional rule. Moreover, as Howick notes,
competing public policy weighs against permitting government
officials to discharge their staff counsel at will: “a lawyer for the
government may have a legal duty to question the conduct of
government officials and perform additional remedial or corrective
actions including investigation and prosecution.” Utah R. Prof’l
Conduct 1.13, cmt. 13a.
¶33 Second, the City argues that “[o]nly where a statute
embodies public policy in a strong sense may it be used to
invalidate a contract voluntarily entered into (and only where the
contract harms the public in general),” and that no such public
policy considerations are present here.
20110848‐CA 13 2013 UT App 218Howick v. Salt Lake City Corp.
¶34 “People are generally free to bind themselves pursuant to
any contract, barring such things as illegality of subject matter or
legal incapacity.” Ockey v. Lehmer, 2008 UT 37, ¶ 21 n.12, 189 P.3d
51 (brackets, citation, and internal quotation marks omitted).
Accordingly, “an enforceable contract can coexist with a statute
that may conflict with its terms so long as the contract does not
offend the public policy to which the statute gives voice.” Lee v.
Thorpe, 2006 UT 66, ¶ 22, 147 P.3d 443. “For a contract to be void on
the basis of public policy, there must be a showing free from doubt
that the contract is against public policy.” Ockey, 2008 UT 37, ¶ 21
(citation and internal quotation marks omitted). Our supreme court
in Ockey considered two factors in determining whether a contract
was against public policy. The first was whether the statute
specifically declared contrary contracts to be void; the second was
whether the contract offended public policy or harmed the public
as a whole, as opposed to the contracting party only. Id. ¶¶ 19, 23.
¶35 With respect to the first factor, the City rightly observes that
unlike many Utah statutes, the Merit Protection Statute contains no
express anti‐waiver provision. See, e.g., Utah Code Ann. § 19‐3‐
319(7)(a) (LexisNexis 2010) (“An agreement . . . requiring the
employee to waive benefits under [the Radiation Control Act] is
void.”); id. § 34A‐2‐108(1) (LexisNexis 2011) (“[A]n agreement by
an employee to waive the employee’s rights under [the Worker’s
Compensation Act] is not valid.”); id. § 35A‐4‐103(1)(a) (“Any
agreement by an individual to waive, release, or commute his
rights to benefits [under the Utah Employment Security Act] is
void.”); id. § 57‐11‐5(3) (LexisNexis 2010) (providing that a “right
of rescission [under the Land Sales Practice Act] may not be waived
by agreement”); id. § 61‐1‐108(2) (LexisNexis 2011) (“An individual
may not waive a right or protection provided by [the Utah Uniform
Securities Act] by agreement . . . .”). The first Ockey factor thus
weighs in favor of permitting merit employees to contract away
their merit protection.
¶36 The second factor is whether the contract offends public
policy or harms the public as a whole. See Ockey, 2008 UT 37,
20110848‐CA 14 2013 UT App 218Howick v. Salt Lake City Corp.
¶¶ 21–23. As explained above, civil service systems generally, and
merit protection statutes of the type at issue here specifically, were
designed to end the “patronage practice” or “spoils system” in
government. In addition, merit‐protected government attorneys are
likely to feel greater freedom than at‐will attorneys to candidly
advise their clients or take other actions as required by the Utah
Rules of Professional Conduct. These protections benefit the public
as a whole, not merely the protected employee.
¶37 However, the City argues that public policy as embodied in
the statute has recently shifted. In 2012 the Utah Legislature
amended the Merit Protection Statute, apparently in response to
cases recently decided by this court. See Utah Code Ann. § 10‐3‐
1105 (LexisNexis 2012). The amendment represents a substantial
expansion of the statute; the 2012 version of the statute contains 426
words, as compared to 178 words in the 2004 version and a mere
39 words in the 1998 version. The 2012 version also adds
approximately nine categories of excluded employees and permits
a municipality to exempt up to five percent of its workforce from
the protections of the statute. And, of relevance here, it excludes
from merit protection an employee who has either “acknowledged
in writing that the employee’s employment status is appointed or
at‐will” or “voluntarily waived the procedures required by Section
10‐3‐1106.” Id. § 10‐3‐1105(2)(e). These amendments took effect
after the district court had ruled and after opening briefs were filed
in this appeal. Although the City did not argue that the 2004
amendment to the statute applied to Howick’s claims, it does argue
that the 2012 amendment controls.
¶38 We do not agree. “[W]e apply the law as it exists at the time
of the event regulated by the law in question.” State v. Clark, 2011
UT 23, ¶ 13, 251 P.3d 829. Thus, matters of substance are governed
“by the law in effect at the time of their underlying primary
conduct (e.g., the conduct giving rise to a criminal charge or civil
claim).” Id. ¶ 14. Matters of procedure are governed by the law in
effect at the time of “the underlying procedural act (e.g., filing a
motion or seeking an appeal).” Id. The Merit Protection Statute falls
into the former category. This factor weighs against application of
20110848‐CA 15 2013 UT App 218Howick v. Salt Lake City Corp.
the amendment here. Further, our legislature has mandated that
“[a] provision of the Utah Code is not retroactive, unless the
provision is expressly declared to be retroactive.” Utah Code Ann.
§ 68‐3‐3 (LexisNexis 2011). The legislature did not expressly declare
the 2012 amendment to the Merit Protection Statute to be
retroactive. Thus, this factor also weighs against its application.
¶39 However, our courts have “recognized a narrow,
judge‐made exception to the retroactivity ban, allowing that ‘when
the purpose of an amendment is to clarify the meaning of an earlier
enactment, the amendment may be applied retroactively in
pending actions.’” Clark, 2011 UT 23, ¶ 11 (quoting Department of
Soc. Servs. v. Higgs, 656 P.2d 998, 1000–01 (Utah 1982)). The City
maintains that this exception applies here.
¶40 As noted above, the 2012 amendment expanded the Merit
Protection Statute to 426 words—a ten‐fold increase when
compared to the 1998 version. The 2012 amendment added many
exceptions to the statute’s protections, including one for employees
like Howick who waive its protections. Like exemptions for the
administrative assistants of elected officials, persons whose job
descriptions identify their positions as at‐will, and temporary
employees, the exemption for those waiving merit protection did
not appear in the 1998 or 2004 versions of the statute. Accordingly,
the 2012 amendment “was not a mere clarification of the law; it was
an affirmative addition of . . . new exemption[s] to the statute.” Salt
Lake County v. Holliday Water Co., 2010 UT 45, ¶ 44, 234 P.3d 1105.
¶41 Therefore, because the 2012 amendment of the Merit
Protection Statute was substantive, was not expressly declared to
be retroactive, and was not a mere clarification of the prior version
of the statute, it may not be applied to actions taken before its
passage. It therefore does not control this case.
¶42 But neither is the 2012 amendment irrelevant. Although it is
“inapplicable to this case,” we regard it “as a reflection of current
legislative views on public policy.” Farmers New World Life Ins. Co.
v. Bountiful City, 803 P.2d 1241, 1246 n.2 (Utah 1990). We can hardly
20110848‐CA 16 2013 UT App 218Howick v. Salt Lake City Corp.
agree that Howick has made “a showing free from doubt that the
contract is against public policy,” see Ockey v. Lehmer, 2008 UT 37,
¶ 21, 189 P.3d 51, when current statutory law expressly authorizes
the contract, see Utah Code Ann. § 10‐3‐1105(2)(e) (LexisNexis
2012). While Utah may in the past have had a consistent public
policy against permitting municipalities to induce their employees
to waive merit protection, it no longer does. On the contrary, our
statutory law now expressly permits such waivers within stated
limits.
¶43 In sum, neither Ockey factor is satisfied here. The Merit
Protection Statute does not specifically declare contrary contracts
to be void, nor does this case present a showing free from doubt
that the contract offends public policy. See Ockey, 2008 UT 37,
¶¶ 21, 23. Accordingly, the Merit Protection Statute did not
prohibit Howick from contracting away her merit protection.
IV. Remand Is Required for Further Proceedings by the District
Court and, If Appropriate, the Employee Appeals Board.
¶44 The district court understandably concluded that no
contract, waiver, or estoppel could circumvent the protections
afforded by the Merit Protection Statute. It therefore did not
adjudicate those issues. But because we conclude that the Merit
Protection Statute does not foreclose those defenses, we remand to
the district court for plenary resolution of those issues. See Warne
v. Warne, 2012 UT 13, ¶ 45, 275 P.3d 238; Uintah Basin Med. Ctr. v.
Hardy, 2005 UT App 92, ¶ 20, 110 P.3d 168.
¶45 If the district court on remand rules in favor of the City’s
contract, waiver, or estoppel defenses and so concludes that
Howick was an at‐will employee, it should proceed to dispose of
the case as appropriate, inasmuch as “the Board lacks jurisdiction
over the claims of non‐merit employees.” Howick II, 2009 UT App
334, ¶ 7, 222 P.3d 763. If, on the other hand, it rejects those defenses
and concludes that Howick was a merit employee, “the Board is
indeed the proper forum to determine whether her termination
was justified.” Id. ¶ 8.
20110848‐CA 17 2013 UT App 218Howick v. Salt Lake City Corp.
CONCLUSION
¶46 The district court addressed all the issues necessitated by
our opinion in Howick II. It properly concluded that Howick’s
lawsuit is not time‐barred and that she was originally a merit
employee covered by the Merit Protection Statute. However, based
on the absence of an anti‐waiver provision and the lack of a
showing “free from doubt” that Utah public policy prohibits an
employee in Howick’s position from waiving the protections of the
statute, we conclude that the Merit Protection Statute did not
preclude Howick from contracting away her rights under that
statute. Accordingly, we reverse the district court’s contrary ruling
and remand for further proceedings.8
ORME, Judge (concurring):
¶47 I concur in the court’s opinion but write separately to add a
comment about the role of public policy in this case. The lead
opinion correctly concludes that Howick has not made “a showing
free from doubt that the contract offends public policy.” See supra
¶ 43. I agree, but I wish to emphasize that, at least in my view, we
can so conclude largely because of the unique facts of this case.
Howick was not an unsophisticated public employee but rather
was a seasoned, experienced attorney who can be presumed to
have known exactly what she was doing in entering into the
contract. Indeed, as a key attorney for the City, she should have
alerted her client, who also happened to be her employer, to the
possibility that the contract was illegal if she honestly thought that
it was. My view about the public policy implications of a contract
8. Given our resolution of these issues, we need not address the
issues presented in Howick’s cross‐appeal and her attempt to
challenge the ruling of the Board. See State v. Carter, 776 P.2d 886,
888 (Utah 1989).
20110848‐CA 18 2013 UT App 218Howick v. Salt Lake City Corp.
like the one Howick signed would be very different if she were a
less sophisticated, less well‐educated employee.
20110848‐CA 19 2013 UT App 218