Becker v. Sunset City , 2012 UT App 99 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Stewart Becker, ) MEMORANDUM DECISION
)
Petitioner, ) Case No. 20100725‐CA
)
v. ) FILED
) (April 5, 2012)
Sunset City, )
) 2012 UT App 99Respondent. )
‐‐‐‐‐
Original Proceeding in this Court
Attorneys: Jerrald D. Conder, Salt Lake City, for Petitioner
Gary L. Johnson and Kallie A. Smith, Salt Lake City; and Felshaw King,
Kaysville, for Respondent
‐‐‐‐‐
Before Judges Voros, Thorne, and Roth.
ROTH, Judge:
¶1 Stewart Becker seeks judicial review of the decision by the Sunset City Appeal
Board (the Board) to uphold his termination from the Sunset City Police Department.
First, he asserts that the Board based its conclusion that he reported to work while
under the influence of alcohol on an unreliable and inadmissible Portable Breath Test
(the PBT). He also contends that, in the absence of the PBT, there is not substantial
evidence in the record to support the termination. He seeks an order of reversal and
reinstatement of his employment with back pay and benefits. We decline to disturb the
Board’s decision.
¶2 When presented with a challenge to a municipal appeal board’s termination
decision, our review is limited to determining whether the appeal board abused its
discretion or exceeded its authority. See Utah Code Ann. § 10‐3‐1106(6)(c) (Supp. 2011)1
(“The Court of Appeals’ review shall be on the record of the appeal board and for the
purpose of determining if the appeal board abused its discretion or exceeded its
authority.”). A municipal appeal board does not abuse its discretion if its determination
that an employee has engaged in the behavior with which the city charged him is
supported by substantial evidence. See Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d
746, 758 (Utah Ct. App. 1997) (adopting from state administrative proceedings the
“substantial evidence” standard for determining whether a municipal civil service
commission’s findings are supported); see also Thomas v. Draper City, 2006 UT App 287U,
para. 2 (mem.) (applying same standard for reviewing factual findings of a municipal
appeal board). Substantial evidence “is that quantum and quality of relevant evidence
that is adequate to convince a reasonable mind to support a conclusion.” Lucas, 949
P.2d at 758 (internal quotation marks omitted). The city’s decision to impose
consequences for employee misconduct is also a matter of discretion. See id.; see also
Thomas, 2006 UT App 287U, para. 6. “‘In determining whether the sanction of dismissal
is warranted in this case, the [Board] must affirm the sanction if it is (1) appropriate to
the offense and (2) consistent with previous sanctions imposed by the [City].’” Thomas,
2006 UT App 287U, para. 6 (alterations in original) (quoting Ogden City Corp. v. Harmon,
2005 UT App 274, ¶ 16, 116 P.3d 973).
¶3 Sunset City terminated Becker for “reporting for duty on April 1, 2007, with a
Blood Alcohol Content of .045 in violation of Sunset Police Department Policy and
Procedure Manual section[s] 3‐03‐02.0[0‐.02], 1‐01‐04.00 and Sunset City Policy Manual
section 4.2.4(D).” On April 1, 2007, Becker was assigned to work a “short back,”
meaning he had finished his previous shift as a patrol officer at 6:00 a.m. and was to
return to work at 2:00 p.m. that same day following an eight‐hour break. When Becker
returned to work, his supervisor, Sergeant Bruce Arbogast, who had filled the interim
shift, immediately detected a strong odor of alcohol emanating from Becker. Becker
admitted to having “two stiff drinks,” with about two‐and‐a‐half shots of liquor in each,
prior to going to bed between 8:00 and 9:00 a.m. that morning. Sergeant Arbogast then
requested that Becker take a PBT. Becker consented, grabbing his own PBT from his
1
Any amendments to the relevant statutes do not affect our analysis, and we
therefore cite to the current codification of the Utah Code for the reader’s convenience.
20100725‐CA 2
patrol car and self‐administering the test, which registered a blood alcohol content
(BAC) of 0.045.2
¶4 Shortly thereafter, Utah Highway Patrol Trooper Michelle McLaughlin and
Senior Trooper Arlow Hancock arrived at the police department for the unrelated
purpose of resetting the clock on an intoxilyzer machine maintained on site.
Senior Trooper Hancock was expecting to receive a new patrol car that was the same
model as the one Becker was driving.3 Accordingly, he and Trooper McLaughlin
approached Becker to inquire about how he liked the vehicle. Senior Trooper Hancock
immediately noticed the smell of alcohol coming from inside Becker’s vehicle. He
reported that Becker turned his head away whenever he spoke to the troopers, a
behavior that Senior Trooper Hancock found “unusual.” Becker was also eating mints
and applying a “generous” amount of alcohol‐based sanitizer to his hands, behaviors
that Senior Trooper Hancock believed were intended to mask the odor of alcohol.
Because Senior Trooper Hancock was concerned about Becker’s ability to operate the
vehicle and to perform his job safely, as well as the negative image an on‐duty officer
who had been drinking might present to the public, he asked Trooper McLaughlin
whether she had noticed the alcohol odor. Trooper McLaughlin confirmed that she had
and that she was likewise concerned about Becker’s ability to perform his job safely.4
Senior Trooper Hancock then reported the incident to Sergeant Arbogast. After
consulting with Chief of Police Kent Eborn, Sergeant Arbogast relieved Becker from
duty. Becker reported the next day for a disciplinary meeting and was terminated,
effective April 4, 2007.
2
Breath alcohol tests “measure a person’s blood alcohol content from a sample of
the person’s breath.” Black’s Law Dictionary 215 (9th ed. 2009) (defining “breathalyzer”);
accord id. at 899 (directing reader to the definition for “breathalyzer” for definition of
“intoxilyzer”).
3
By stipulation of the parties, Senior Trooper Hancock’s explanation of the day’s
events was presented to the Board through a written report.
4
Trooper McLaughlin’s testimony about Becker’s behavior was consistent with
Senior Trooper Hancock’s explanation. Trooper McLaughlin, however, was privy to
only part of the interaction; at some point, she entered the building to reset the clock on
the intoxilyzer machine.
20100725‐CA 3
¶5 Becker appealed the termination, and the Board scheduled a hearing for April 16,
2007. See Becker v. Sunset City, 2009 UT App 197, ¶ 3, 216 P.3d 367. Due to an issue with
the delivery of the notice of hearing, Becker was unable to obtain counsel and
consequently represented himself at the hearing before the Board. See id. Following the
April 16 hearing, the Board upheld Becker’s termination. See id. ¶ 4. Becker sought
judicial review of that decision citing a violation of his due process rights to notice and
meaningful representation of counsel. See id. ¶ 5. This court agreed, setting aside the
Board’s decision and directing the Board to provide Becker with a new hearing at which
he would be represented by an attorney. See id. ¶ 1. It is from the second hearing, held
in December 2009, that Becker now seeks judicial review.
¶6 Becker admits that he “showed up for work [on April 1, 2007,] with some alcohol
in [his] system” but contests the determination that he was “under the influence,” in
violation of the police department policy that prohibits “report[ing] for duty while
under the influence of intoxicants,” Sunset City Police Department Policy and
Procedure Manual § 3‐03‐02.01. Sunset City’s personnel policies and procedures
manual defines
[u]nder the [i]nfluence . . . [as] when an employee is affected
by a drug or alcohol or the combination of drugs and alcohol
to the extent that it affect[s] his or her ability to perform [his
or her] job in a safe manner. An employee . . . , whose test
detects a Blood Alcohol Content (BAC) of 0.04 or greater,
shall be deemed under the influence.
Sunset City Personnel Policies and Procedures Manual § 14.7.1(h) (emphasis omitted).
Coming to work “under the influence of alcohol” is a third level offense, which “usually
lead[s] to termination,” even for a first offense. Id. § 4.2.4 (d)(1), (e)(3).
¶7 According to Becker, the city could prove that he was “under the influence” only
by means of the PBT results, which he claims were inadmissible because PBTs have not
been certified as evidentiary devices, there was insufficient foundation on the reliability
of the particular PBT used, and the city failed to follow its internal policy for drug and
alcohol testing. In municipal administrative proceedings, the tribunal is not subject to
the Utah Administrative Procedures Act or the Utah Rules of Evidence. See Lucas, 949
20100725‐CA 4
P.2d at 755‐56 (citing Tolman v. Salt Lake Cnty. Attorney, 818 P.2d 23, 26 n.3 (Utah 1991)).
Rather, the tribunal “must determine what evidence should, in fairness, be admitted.”
Id. at 756 (internal quotation marks omitted). Admitted “evidence must be legally
relevant,” meaning that it has “some probative weight and reliability.” Id. (internal
quotation marks omitted). We review a determination of whether evidence is legally
relevant as a question of law for correctness. See id.
¶8 The probative value of evidence is “judged by the strength of the evidence and
its ability to make the existence of a consequential fact either more or less probable and
the proponent’s need for the evidence.” State v. Downs, 2008 UT App 247, ¶ 8, 190 P.3d
17 (internal quotation marks omitted). Because of the obvious relevance of the PBT
results to the termination decision in this case, the probative weight of that evidence
depends on the reliability of those results. Becker contends that, without expert
testimony, there was an inadequate foundation to show that the PBT used was accurate
and that its results therefore provided an insufficient basis for his termination. Trooper
McLaughlin, however, testified that she had received training on PBTs as part of her
education to calibrate and certify intoxilyzers, an area of breath testing in which
Trooper McLaughlin is in fact an expert.5 According to the trooper, a PBT is a reliable
instrument because it produces BAC readings within a couple of thousandths of the
BAC results registered on a fully‐certified intoxilyzer machine.6 She further testified
that the primary reason that the results from an intoxilyzer device are admissible, while
those from a PBT are not, is not due to issues with reliability. Rather, the PBT results
are not admitted because a PBT does not create a printout with the BAC measurement,
which makes it difficult to prove the reading at some later point‐‐a circumstance that is
not at issue here, as Becker acknowledges that the PBT registered 0.045 when he blew
into it‐‐and because a PBT is not recalibrated on a regular schedule. See generally State v.
Fischer, 778 N.W.2d 629, 642 (Wis. 2010) (“Saying that PBT results are not admissible is
not the same thing as saying they are not reliable.”). Trooper McLaughlin further
testified that because of her knowledge and experience, she had been designated to
5
Defense counsel conceded Trooper McLaughlin’s expertise on intoxilyzers.
6
Sergeant Arbogast independently recalled that, in his experience, PBT readings
had proved to be within thousandths of the BAC results produced by a subsequently‐
administered intoxilyzer test.
20100725‐CA 5
calibrate the PBT devices for the Sunset City Police Department on an as‐needed basis,
that is, whenever an officer expressed concern about a particular device’s accuracy.
¶9 In addition to Trooper McLaughlin’s testimony that PBT readings are generally
reliable, there was additional evidence before the Board that supported the reliability of
these PBT results. Becker himself told Sergeant Arbogast that he wanted to use his own
city‐issued PBT to perform the test the sergeant had requested because “‘[he] kn[e]w
[his] [wa]s pretty accurate.’” Moreover, Becker took the PBT home with him once
relieved from duty and continued to rely on it to report back to the sergeant that his
BAC readings had decreased to a level where he believed he was fit to come back to
work. The next day, when he reported for disciplinary proceedings, Becker reiterated
that his PBT was “fairly accurate.” This characterization is corroborated by Becker’s
testimony that he had never expressed any concerns with this particular PBT or
requested that it be recalibrated. In addition, the PBT was taken out of service by April
5, 2007, about four days after the incident, and placed under lock and key. Subsequent
testing of the device on May 24, 2007, April 29, 2009, and December 9, 2009, showed the
PBT to be producing accurate readings, further undercutting Becker’s subsequent claim
that this PBT was inaccurate. See generally State v. Manwaring, 2011 UT App 443, ¶ 28,
268 P.3d 201 (discrediting the defendant’s claim that a PBT was unreliable where the
facts of the case suggested that it was reliable). Thus the PBT results were sufficiently
reliable to be “legally relevant” in the termination proceeding. See Lucas v. Murray City
Civil Serv. Comm’n, 949 P.2d 746, 756 (Utah Ct. App. 1997).
¶10 We are also unpersuaded by Becker’s claim that the PBT results should have
been excluded from the proceedings before the Board because a separate administrative
body‐‐the Department of Workforce Services‐‐concluded that the PBT results were not
sufficiently reliable to be admissible for purposes of determining Becker’s eligibility for
unemployment benefits. The Department of Workforce Services’ decision, however,
did not exclude the PBT results on the basis that such results are inadmissible in
administrative proceedings but, rather, acknowledged that “it is up to the . . .
administrative law judge . . . to determine if the results from a particular testing device
. . . are admissible.” The Department of Workforce Services was concerned with the
lack of evidence before it regarding the reliability of the particular PBT used to test
Becker’s level of intoxication. It noted Becker’s testimony at the unemployment benefits
hearing that he had reported problems with this particular PBT to his supervisor prior
to the events of April 1, something he did not testify to in the termination proceeding.
20100725‐CA 6
The sole witness for Sunset City, Chief Eborn, had then failed to adequately dispel those
concerns with evidence of the device’s accuracy. That lack of foundation evidence, in
conjunction with the fact that PBTs are not certified for use by the Department of Public
Safety to measure the blood alcohol level of motor vehicle operators, caused the
Department of Workforce Services to determine that the PBT results were not
sufficiently reliable to be admissible in Becker’s unemployment compensation
proceeding.7 The department, however, did not conclude that PBTs were never reliable
7
The Department of Workforce Services’ decision relied on various motor vehicle
code requirements calling for blood alcohol testing using breath tests to be done on
certified instruments if the results are to be used for evidentiary purposes. See generally
Utah Code Ann. § 41‐6a‐515 (Supp. 2005) (current version at id. (2010)) (directing the
department of public safety to establish chemical breath testing standards for results
that are to be used “to prove that a person was operating or in actual physical control of
a vehicle while under the influence” or “operating with a blood or breath alcohol
content statutorily prohibited” and implementing a presumption of reliability if the
standards have been met); Utah Admin. Code R714‐500‐4(A) (2007) (requiring that “[a]ll
breath alcohol testing instruments employed by Utah law enforcement officers, to be
used for evidentiary purposes [in cases involving alleged driving under the influence],
. . . be approved by the department”); Utah Admin. Code R714‐500‐5(D)(2)‐(3) (stating
that for the results of a breath machine to be certified, the operator must, among other
things, complete and retain “[p]rinted checklists” as well as retain “[t]est record cards”
and the machine must be certified “on a routine basis, not to exceed 40 days between
calibration tests”).
Becker has not engaged in sufficient analysis to warrant our consideration of
whether those requirements apply in cases, such as this, that do not involve driving a
motor vehicle while under the influence of alcohol. Rather, Becker simply cited the
principles of res judicata as the reason we should adopt the evidentiary ruling of the
Department of Workforce Services for the city proceedings. When Sunset City
countered that an evidentiary ruling in an unemployment insurance proceeding was
not determinative of the PBT’s admissibility in a municipal proceeding because the
entities operate under different evidentiary standards, Becker failed to respond. This
issue is therefore inadequately briefed, and we need not consider it. See generally Utah
R. App. P. 24(a)(9) (stating that briefing must contain reasoned analysis based upon
(continued...)
20100725‐CA 7
or that they were universally inadmissible in administrative proceedings. Cf. Motor
Vehicle Admin. v. Weller, 887 A.2d 1042, 1052‐54 (Md. 2005) (determining that PBT results
are admissible in administrative hearings despite the implied consent law’s statement
that such results are intended as a guide for police officers in making an arrest because
the statute only precluded their use as evidence in court actions and civil actions); State
v. Doerr, 599 N.W.2d 897, 900‐01 (Wis. Ct. App. 1999) (observing that Wisconsin’s
statutory “bar on the evidentiary use of PBT results is limited to motor vehicle
violations” and stating that the results are admissible as evidence of intoxication in
cases involving non‐vehicular violations if the prosecutors presented evidence of the
device’s accuracy and reliability). Indeed, the concerns that caused the Department of
Workforce Services to exclude the PBT from consideration were either nonexistent in
the city proceedings because Becker did not testify to any particular problems with his
PBT or were adequately addressed through testimony regarding the reliability of PBTs
generally and the accuracy of this particular device.
¶11 Finally, we consider the merits of Becker’s claim that Sunset City’s failure to
obtain a urinalysis “resulted in a substantial violation” of his due process rights. The
Utah Legislature has mandated that “[t]esting . . . for the presence of drug or alcohol by
an employer . . . be carried out within the terms of a written policy which has been
distributed to employees.” Utah Code Ann. § 34‐38‐7(1) (2011); see also Lucas, 949 P.2d
at 754 (“In disciplinary proceedings, a public body must comply with its own rules and
an employee being disciplined is entitled to rely upon those rules.” (internal quotation
marks omitted)). The Board recognized that Sunset City’s written policy requires
analysis of a urine specimen when conducting drug or alcohol testing, see Sunset City
Personnel Policies and Procedures Manual § 14.7.1(c), but found that “[i]t was not
practical, reasonable or required under these circumstances to obtain a urine sample”
because “[d]oing so would have taken an undetermined amount of time and would
have left the City without police coverage.”
¶12 Sunset City’s written policy provides the city with the option of departing from
the specified procedures when justified by the circumstances: “The procedures set out
below are as complete as Sunset City can reasonably make them. However, they are not
7
(...continued)
relevant legal authority).
20100725‐CA 8
necessarily all inclusive. Sunset City Corporation may vary from the rules/procedures
listed if, in its opinion, the circumstances require.” Id. § 4.3.2(a). Becker does not contest
that this provision permits Sunset City, in appropriate situations, to employ a testing
method different than the one prescribed but instead asserts that “there was no
testimony or evidence offered to establish unusual circumstances that would not exist
every time a urine test was requested.” Contrary to Becker’s position, however, there
was substantial evidence to support the Board’s determination that “[i]t was not
practical, reasonable or required” that a urinalysis be done in this instance. Sergeant
Arbogast and Chief Eborn both testified that Sergeant Arbogast was the only officer on
duty at the time that Becker reported for his shift and that the sergeant had to cover the
shift until arrangements could be made to call in an off‐duty officer to take over, a task
that was complicated by the small size of the Sunset City police force, which employed
only eight officers. In addition, Chief Eborn countered Becker’s suggestion on cross‐
examination that the urinalysis would have required minimal time because it only took
a few minutes to get to the hospital with concerns about how long the process could
have taken once they reached the hospital. According to the chief, it would not have
been practical to have the only officer on duty unavailable and the city without police
services for an indeterminate amount of time.8 The Board therefore did not abuse its
8
Becker further contends that the intoxilyzer would have been a more reasonable
choice for alternative testing because it has been deemed admissible for evidentiary
purposes. Testing Becker with the intoxilyzer perhaps may have avoided some of the
reliability questions presented here, but at the time the events were unfolding, Sergeant
Arbogast was unaware of Senior Trooper Hancock’s and Trooper McLaughlin’s
intentions with regard to the machine. Although he did not ask, he assumed, albeit
incorrectly, that the intoxilyzer needed maintenance and therefore was not operational.
While the intoxilyzer has evidentiary advantages, city policy did not specify alternatives
to a urine test, and if that test was not practicable under the circumstances, Sunset City
was not required to choose one alternative testing method over the other, so long as the
chosen method was shown to be sufficiently reliable. As we have discussed, the PBT
used by Sunset City was shown to be sufficiently reliable, and the fact that an arguably
better alternative might have been available does not mandate its use.
20100725‐CA 9
discretion in determining that “[i]t was not practical, reasonable or required under these
circumstances to obtain a urine sample.”9
¶13 On the facts of this case, we are convinced that the PBT results were shown to be
sufficiently reliable to be admissible for purposes of this administrative proceeding. We
caution, however, that our decision here is not a holding that PBT results are
universally admissible in municipal proceedings or in any other context. Cf. State v.
Charan, 971 P.2d 1165, 1167 (Idaho Ct. App. 1998) (limiting admissibility of intoxilyzer
results obtained following an administration of the test without the mandatory
observation period to the facts of the case). Rather, it is Trooper McLaughlin’s
uncontroverted testimony10 that provided a sufficient foundation for admission of the
PBT results here, especially in light of the subsequent testing that found this particular
instrument to be accurate. The PBT reading of 0.045 meets the presumption established
by Sunset City that a “[a]n employee . . . whose test detects a Blood Alcohol Content
(BAC) of 0.04 or greater[] shall be deemed under the influence.” Sunset City Personnel
Policies and Procedures § 14.7.1(h). Because we have determined that the PBT evidence
was admissible under the circumstances, the Board’s determination that Becker was
under the influence is supported by substantial evidence.
9
Becker also raises a procedural due process claim, in which he challenges the
independent research performed by one of the Board members on the admissibility of
PBT results. Becker does not assert how this research affected his due process rights or
explain how the activity prejudiced him. Consequently, the issue is inadequately
briefed, and we do not consider it further. See generally Utah R. App. P. 24(a)(9)
(requiring an appellant to provide a reasoned analysis along with citation to relevant
legal authority).
10
Becker attempted to challenge Trooper McLaughlin’s testimony with cross‐
examination about the effects of hand sanitizer, either from Becker’s hands or from
storage of hand sanitizer with the PBT, on the blood alcohol reading. Such efforts,
however, are directed toward raising questions about the weight of the trooper’s
testimony, efforts that the Board did not find convincing. The weight to be accorded to
each witness’s testimony is left to the finder of fact, and we will not substitute our
judgment for the Board’s. See Iacono v. Hicken, 2011 UT App 377, ¶ 17, 265 P.3d 116.
20100725‐CA 10
¶14 Finally, we deal with Becker’s contention that termination was a
disproportionate punishment for his conduct. Specifically, Becker points to the fact that
his conduct resulted only in a “letter of caution,” rather than decertification, from the
Peace Officer Standards and Training Department (POST), the state agency responsible
for certifying and disciplining police officers. Becker does not, however, take issue with
Sunset City’s position that while POST establishes minimum requirements for police
officer conduct, an individual department may set higher standards for its officers.
According to Sunset City Police Department policy, unless authorized by Chief Eborn,
“use [of] alcoholic beverages or drugs that could inhibit performance or perception
while on duty” and “report[ing] for duty while under the influence of intoxicants” are
prohibited. Sunset City Police Department Policy and Procedures Manual § 3‐03‐02.01.
We have concluded that there was substantial evidence to support the Board’s
determination that Becker was under the influence of alcohol when he reported to work
on April 1, 2007. Reporting to work while under the influence is a third level offense for
which city policy permits “discharge after the first offense.” Sunset City Personnel
Policies and Procedures Manual § 4.2.4(d)(1). The Board’s decision to terminate was
therefore not disproportionate to Becker’s level of conduct, notwithstanding POST’s
decision to discipline, rather than decertify, him.
¶15 For the foregoing reasons, we decline to disturb the Board’s decision.
____________________________________
Stephen L. Roth, Judge
‐‐‐‐‐
¶16 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
William A. Thorne Jr., Judge
20100725‐CA 11