Brindley v. Logan City , 2023 UT App 46 ( 2023 )

2023 UT App 46THE UTAH COURT OF APPEALS
COREY BRINDLEY,
Petitioner,
v.
LOGAN CITY AND LOGAN CITY EMPLOYEE APPEALS BOARD,
Respondents.
Opinion
No. 20220187-CA
Filed May 4, 2023
Original Proceeding in this Court
Josh Chambers and J. Brett Chambers,
Attorneys for Petitioner
Craig Carlston, Kymber Housley, and Mohamed I.
Abdullahi, Attorneys for Respondents
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 Corey Brindley was fired by Logan City (Logan) after
random testing revealed alcohol in his system for the second time
in three years. Brindley appealed his termination to the Logan
City Employee Appeals Board (the Board), which held a hearing.
Logan provided the Board with evidence from the technician
(Technician) who administered the breathalyzer test. This
evidence consisted of (1) an emailed statement purportedly
written by Technician but sent from his supervisor’s email
account and (2) a form containing Technician’s certification from
the time of administration that the test was performed according
to standard procedure and his handwritten report of the test
results. But Technician was not present at the hearing, and Logan
offered no other evidence as to the correctness of the test’s
administration. In fact, there was evidence presented calling the
Brindley v. Logan City
reliability of the test administration into question. Because
Brindley had a statutory right to confront the witnesses whose
testimonies the Board considered, and because the Board
considered a statement and a certification ascribed to Technician
despite Technician’s absence, we conclude that the Board
exceeded its discretion in upholding Brindley’s termination.
Accordingly, we set aside the Board’s decision.
BACKGROUND
¶2 Brindley was employed as a wastewater inspector for
Logan. Brindley’s position required a commercial driver license
(CDL) and was classified as a safety-sensitive position. All
personnel in such positions are subject to random drug and
alcohol testing under section 15-02(2) of the Logan Employee
Handbook (the Handbook). 1 See Logan City Employee Handbook
§ 15-02(2) (revised Nov. 2009). 2
1. This complies with requirements imposed by the United States
Department of Transportation (DOT) for random drug and
alcohol testing of CDL licensees and employees in safety-sensitive
positions. See 49 C.F.R. § 382.305 (2021). While DOT forms and
procedures are referred to in the record and in this opinion, the
issue before us relies on Logan’s policies, not DOT policies,
because the positive screen in question was below the threshold
for DOT action. See id. § 40.23(c) (“[A]n employer who receives an
alcohol test result of 0.04 or higher . . . must immediately remove
the employee involved from performing safety-sensitive
functions. If [the employer] receive[s] an alcohol test result of
0.02–0.039, [it] must temporarily remove the employee involved
from performing safety-sensitive functions . . . .”).
2. This section and others in the Handbook have been
revised since the events at issue. See Logan City Employee
(continued…)
20220187-CA 2 2023 UT App 46Brindley v. Logan City
¶3 In December 2018, Brindley was selected for random drug
and alcohol screening at work, and his breathalyzer test result—
uncontested here—indicated a blood alcohol content (BAC) of
.029. He was sent home but was allowed to return to work on a
later day, as was consistent with existing policy for a first-time
positive result. See id.¶4 On December 9, 2021, Brindley was again selected for
random drug and alcohol testing. He began work at 7:00 a.m. that
day. He reported to Sterling Urgent Care—Logan’s third-party
provider for random drug and alcohol testing—when directed.
Technician performed a breathalyzer test and wrote the results as
allegedly indicating a BAC of .017 with a reading time of 9:45 a.m.
Some ten or eleven minutes later, 3 Technician performed a
confirmation test and wrote an alleged result of .014. Technician
was not able to print the results, purportedly because the printer
was not working. But Technician completed the DOT Alcohol
Testing Form, which included the following certification: “I
certify that I have conducted alcohol testing on the above named
individual in accordance with the procedures established in the
US Department of Transportation regulation, 49 CFR Part 40, that
I am qualified to operate the testing device(s) identified, and that
the results are as recorded.” Technician checked the box
indicating that he was a blood alcohol technician, wrote in the
results, and signed and dated the form. A report was printed the
Handbook § 15-02(3)-(4) (revised Feb. 2022), https://cms9files.re
vize.com/loganut/document_center/Employee%20Handbook/S
ECTION%2015%20Substance%20Abuse%20and%20Drug%20Te
sting%20-%20February%202022.pdf [https://perma.cc/K9CR-D6
SG]. Unless otherwise indicated, we refer to the version of the
Handbook in effect at the time of Brindley’s termination.
3. Technician stated that he performed the confirmation test ten
minutes after the first, but Technician’s supervisor testified that it
was eleven minutes later, presumably based on the machine’s
recalled results.
20220187-CA 3 2023 UT App 46Brindley v. Logan City
next day for Logan’s Safety Officer (Safety Officer), showing a
BAC of .017.
¶5 The Handbook specifies that “[a]n employee who has
tested positive on a drug test and is allowed to return to work and
who receives a positive result on any subsequent drug test will be
terminated.” Logan City Employee Handbook § 15-02(2)(b)
(revised Nov. 2009). 4 On December 14, 2021, a “Notice of
Termination of Employment” was sent to Brindley, stating,
On December 9, 2021 you took a random drug and
alcohol screening. This screening resulted in a BAC
of 0.017. Due to the timing of the screening, it is clear
that you were under the influence of alcohol while
at work.[5]
4. The Handbook has been revised to state that “[a]ny employee
who has tested positive for any measurable amount on an alcohol or
drug test will be subject to discipline, up to and including
termination” and that “[a]n employee who has tested positive for
any measurable amount on an alcohol or drug test and is allowed to
return to work and who receives a positive result on any
subsequent alcohol or drug test within five years of the first
positive test will be terminated.” See id. (emphasis added).
Brindley argues that “tested positive”—without the updated
language—is vague and unenforceable. Because we resolve this
case on other grounds, we need not address this issue.
5. Logan’s use of “under the influence” is curious because Logan
does not define this term, see Logan City Employee Handbook
§ 15-01(1) (revised Nov. 2009), and Brindley’s alleged BAC of .017
falls well under Utah’s nationally low statutory definition for
“under the influence” as a BAC of .05, see Utah Code § 41-6a-
502(1)(a), and—as previously noted—also under DOT’s action
threshold, see 49 C.F.R. § 40.23(c) (2023).
20220187-CA 4 2023 UT App 46Brindley v. Logan City
....
Also, in December 2018 you had an
additional positive alcohol screening and you were
allowed to continue employment.
....
Due to your positive tests for alcohol on the
above date(s), we have determined it is the best
solution to terminate your employment with Logan
....
Two days later, Brindley appealed his termination.
The Handbook indicates that in an appeal, “[t]he burden of
proof is on the employee to prove, by a preponderance of
the evidence, that disciplinary measures were not in
accordance with established policy.” Logan City
Employee Handbook § 8-03(5) (revised April 2018),
https://cms9files.revize.com/loganut/departments/hr/SECTION
%208%20Grievances%20-%20November%202009%20Final.pdf
[https://perma.cc/G3A9-MKY6]. 6
6. We acknowledge that there are potential due process issues
with foisting the burden of proof on a municipal employee like
Brindley in such a hearing. As Brindley highlights, qualifying
municipal employees have a recognized property interest in their
jobs. See Utah Code § 10-3-1105(1)(a); Becker v. Sunset City, 2009
UT App 197, ¶ 6, 216 P.3d 367 (“[Employees have] a recognized
property right in [their] job[s]. . . . Accordingly, [the employer]
was required to follow adequate due process procedures in
connection with its termination of . . . employment.”), aff’d, 2013
UT 51, 309 P.3d 223; Lucas v. Murray City Civil Service Comm’n, 949
P.2d 746, 752 (Utah Ct. App. 1997) (“If a property interest in
continued employment exists, then the employee is entitled to
(continued…)
20220187-CA 5 2023 UT App 46Brindley v. Logan City
¶6 The next month, the Board held a hearing to consider
Brindley’s appeal. At the hearing, the Board first heard testimony
from Safety Officer. Safety Officer testified about Logan’s
procedures for random employee drug and alcohol tests. Safety
Officer also testified about Brindley’s prior tests, indicating that
in December 2018, Brindley was tested around 7:00 a.m. and
“blew a .032,” which “hit the action level for DOT at .02,” meaning
that the employee has to “complete a confirmation test” after
“they wait 15 minutes and no longer than 30 minutes.” Safety
Officer indicated that “[t]he second test is the one that actually
gets reported to the DOT and Logan” and that for Brindley, “[a]
second test was given, and it was .029 and . . . was reported to the
DOT” and to Logan’s human resource department. At that time,
Brindley “was sent home because under DOT regulations they
say that an individual that is above a .02 has to be removed from
their safety sensitive position for at least 24 hours and then upon
their return they have to produce a negative test,” which—
according to Logan’s then-unwritten policy—meant “zero”
alcohol in the blood.
¶7 Brindley’s counsel inquired into Logan’s policy of
interpreting a “positive result” as any measurable amount of
alcohol, and Safety Officer acknowledged that the term “positive”
was not defined in the Handbook and explained that the “no
tolerance” policy was “just something that we have always gone
with.” Safety Officer admitted, though, that this was Logan’s first
experience with “a positive,” having “always had zeros”
previously. Brindley’s counsel stated that he was “trying to figure
out where the zero came from” because “there is nothing in the
DOT and nothing in the Logan City Code that specifies that
anything between zero and .02 would be a positive result. There
procedures comporting with the minimum requirements of due
process, as provided in the Constitution.”). These are weighty
questions we need not answer here, but we note that we are
dubious of Logan’s ability to place this burden on the employee.
20220187-CA 6 2023 UT App 46Brindley v. Logan City
is nothing in the Logan City Code that specifies this at all.” Safety
Officer agreed, saying, “No, nothing.”
¶8 The Board next heard testimony from Technician’s
supervisor (Supervisor), the Occupational Director of Sterling
Urgent Care, who joined via Zoom. Technician was not present—
either virtually or in person—to testify. According to the minutes
of the meeting, Logan’s counsel said that “this is not ideal and
[Logan] would have liked to have the person attend [the] hearing
in person who administered the test to Mr. Brindley . . . .
Unfortunately, this body does not have subpoena powers so we
could not force [Technician] to attend.” 7 Instead, Logan indicated
that it had “a substitute,” who was Supervisor.
¶9 Logan further indicated that it had received a
statement from Technician in the form of an email and that
it wanted Supervisor to read the statement to the Board. The email
said it was “[Technician’s] statement,” but it was sent
from Supervisor’s email address to Safety Officer. Brindley’s
counsel “objected on the basis [that] this is hearsay and an out of
court statement being taken [for] the truth of the matter” asserted.
Brindley’s counsel further argued that under Utah law, “the
employee has the right to have the witness whose testimony is
being offered against him actually in court.” See Utah Code § 10-
3-1106(4)(a)(iii) (“An employee who is the subject of the
discharge, suspension, or transfer may . . . confront the
witness whose testimony is to be considered . . . .”). 8 The
7. This quotation and those that follow are taken from the minutes
of the hearing because a transcript of the hearing is not included
in the record. Accordingly, we are aware that the minutes likely
do not capture all questions and testimony verbatim. But we are
satisfied that this reality does not affect our decision.
8. This provision applies to all “employee[s] to which [s]ection 10-
3-1105 applies,” Utah Code § 10-3-1106(1), which includes
municipal employees with some exceptions, id. § 10-3-1105.
(continued…)
20220187-CA 7 2023 UT App 46Brindley v. Logan City
Handbook, too, states that “[t]he employee shall be entitled to . . .
confront the witnesses whose testimony is to be considered.”
Logan City Employee Handbook § 8-03(1) (revised April 2018),
https://cms9files.revize.com/loganut/departments/hr/SECTION
%208%20Grievances%20-%20November%202009%20Final.pdf
[https://perma.cc/G3A9-MKY6]. Accordingly, Brindley’s counsel
“objected to this statement being introduced.” But the Board—
empowered by the Handbook to “determine[] the admissibility of
evidence and its use” and “not [being] bound by the rules of
evidence” but being able to “hear any evidence it determine[d]
relevant to the matter,” see id. § 8-03(2)—permitted Supervisor to
read and provide copies of the following statement purportedly
provided by Technician:
I tested Corey Brindley for a DOT breath alcohol
and a DOT drug screen test on December 9, 2021.
The machine was activated at 9:34 [a.m.] for test 714.
The result was .017 with a reading time of [9:35
a.m.]. . . . [A]fter attempting to print out a copy of
the previous test, ten minutes had passed by before
performing a second breath alcohol test. Due to the
result being lower than the DOT limit of .02 the
patient was released.
¶10 Supervisor testified about the machine, providing its
model information and declaring that “[i]t was not the handheld
breath alcohol machine itself that was having issues” but “just the
printer on the machine.” She stated that “[Technician] is a newer
employee” and that after he brought to her attention the failure to
print the test receipts, they performed “a memory recall” to “pull
up the results.” She further testified that the machine had been
calibrated the day before Brindley’s test, and she asserted that
there was no “reason to doubt the accuracy of the test results.” But
she also testified that she “did not perform the test.” Brindley’s
counsel asked, “Because you did not administer the test yourself,
Brindley’s former position does not fall under any of the
exceptions. See id.
20220187-CA 8 2023 UT App 46Brindley v. Logan City
you don’t know if the test was actually performed correctly?”
Supervisor responded, “I was not there but [Technician] has gone
through the training and the machine pretty much does the test
for you.” She confirmed that Technician administered Brindley’s
second test “at 11 minutes versus 15 minutes” after the first test—
referring to the timeframe for a confirmation test required by DOT
when an initial test is above .02—but stated that “had it been 15
minutes versus 11 minutes there really would not have been a big
difference.”
¶11 Brindley’s counsel asked Supervisor, “What are some of
the errors that can occur if the test is not administered correctly?”
Supervisor responded, “You can get inaccurate results such as
someone that has gum in their mouth, chew in their mouth at the
time of the test.” She also stated that “foods and drinks and even
if the person if they were to belch too much can sometimes alter
the results of a test” and “that is why they get the opportunity to
take the confirmation test.”
¶12 The Board next heard from a lieutenant with the Logan
City Police Department (Lieutenant). Lieutenant testified that the
average alcohol burn-off rate for adults is .015 grams of alcohol
per hour. He then estimated that Brindley’s BAC would have been
“somewhere around a .045” at 7:00 a.m. when he began working
that day based on a BAC of .017 at 9:35 a.m. Brindley’s counsel
asked if it was “true that certain foods can interfere with the
accuracy of the test,” and Lieutenant responded, “Yes.” Brindley’s
counsel then asked if that was why it was “important that the test
be administered correctly,” and Lieutenant again responded,
“Yes.”
¶13 Finally, the Board heard testimony from Brindley. He
testified that he stopped drinking alcohol before he went to bed
the previous night at 9:00 p.m. He further testified that he uses
chewing tobacco every day and that he was chewing tobacco on
the morning of December 9, 2021, until “[r]ight before [he] walked
through the door” to be tested. Logan’s counsel asked, “Isn’t it
true that you didn’t tell [Technician] who administered the test
that you had chewing tobacco in your mouth?” and Brindley
20220187-CA 9 2023 UT App 46Brindley v. Logan City
responded, “He never asked.” Brindley’s counsel—not Brindley
himself—indicated that Brindley removed the chewing tobacco
between ten and fifteen minutes before the first test was
administered. Brindley stated that Technician did not tell him to
remove the chewing tobacco. Logan’s counsel asked, “Did they
inspect your mouth at all?” Brindley responded, “No, they did
not.” Logan’s counsel repeated the question: “So, you are saying
that before they gave that first test, they did not have you open
your mouth and see if you had anything in it?” And again
Brindley stated, “No, they did not.”
¶14 At this point in the hearing, the Board indicated that it
would have liked to ask Supervisor—who had left the hearing—
to address procedures and implications related to chewing
tobacco and breathalyzer tests. Logan’s counsel asked Safety
Officer to see if Supervisor was able to rejoin the hearing via
Zoom, stating that “the troubling thing” about the situation is not
knowing whether the presence of chewing tobacco would impact
the test results a little or could result in a false positive. Brindley’s
counsel indicated that he felt Technician was a key witness
because there was no evidence of whether Technician asked
Brindley about chewing tobacco or whether the test was
performed correctly. Logan’s counsel “agreed and said this is very
frustrating to him” that Technician was not present to testify. He
noted that “there is no disputing” that technicians administering
breathalyzer tests “are required to check the mouth and are
required to make sure [test subjects] don’t have anything” in there
but that Technician was not present to testify as to whether he did
so. Logan’s counsel indicated that the Board had the right to
continue the hearing to try to secure Technician’s presence or that
it could make a decision based on the evidence it had received.
Brindley’s counsel expressed his concern related to continuing the
hearing that Brindley had already been out of work for over a
month awaiting the hearing. The Board members discussed
whether they should try to secure Technician’s presence, and one
stated that he expected that Supervisor could have information
related to chewing tobacco.
20220187-CA 10 2023 UT App 46Brindley v. Logan City
¶15 Supervisor then rejoined the hearing via Zoom. She
testified that by fifteen minutes after removing chewing tobacco,
the impact on the test results would be zero. When asked what the
impact would be if chewing tobacco was removed five minutes
before a test, Supervisor responded, “Where confirmation results
were still given 11 minutes after the first test[,] the chewing
tobacco should have dissipated to where it would not have
affected the test.” Then Brindley’s counsel asked whether test
results would be affected if chewing tobacco juices were still in
the mouth, to which Supervisor responded, “Yes, it could. How
much it could affect the results would be a question for a medical
review officer in regard to the scientific levels.” But she indicated
that “[i]n her 17 years” in the field “she has never had that
happen.” And she stated, “Had [Brindley] had chewing tobacco
in his mouth, and he removed [it] 10 minutes prior to the first test,
and they did the confirmation test 10 minutes later[,] it would
have been gone. It would not have affected the test.” The Board
then adjourned the hearing.
¶16 Later that day, the Board filed a brief two-sentence
decision, indicating that it “voted by ballot to uphold the
decision” to terminate Brindley because it “determined that
[Logan] did follow its policies and procedures properly in
terminating” him. But it made no findings or conclusions in
support of its decision.
¶17 The Utah Code indicates that “[a] final action or order of
the appeal board . . . may be reviewed by the Court of Appeals by
filing with that court a petition for review.” Utah Code § 10-3-
1106(6)(a). Brindley now petitions us to review the Board’s
decision.
ISSUES AND STANDARDS OF REVIEW
¶18 Brindley raises five issues on appeal. First, Brindley
argues that the Board violated his statutory and constitutional
due process right to confront Technician. Next, he argues that
the Board abused its discretion and exceeded its authority in three
20220187-CA 11 2023 UT App 46Brindley v. Logan City
respects: by speculating that Brindley’s BAC was .017 given that
the Board did not have testimony from Technician that the tests
were performed correctly, by enforcing Logan’s policy that a
“positive result” means any measurable amount of alcohol, and
by upholding his termination despite uncontroverted evidence
that Brindley had been chewing tobacco before the test and that
doing so could affect the reliability of the test results. Finally, he
argues that the Board failed to make adequate findings of fact,
rendering its decision arbitrary and capricious.
¶19 The applicable statute indicates that we perform
our review “on the record of the appeal board” and “for
the purpose of determining if the appeal board . . . abused
its discretion or exceeded its authority.” Utah Code § 10-3-
1106(6)(c)(i)–(ii). “Generally, our review of administrative
agency decisions is limited to determining whether the
agency abused its discretion or exceeded its authority. But
when the agency’s decision implicates due process, we review it
for correctness.” Palmer v. St. George City Council, 2018 UT App 94,
¶ 11, 427 P.3d 423 (cleaned up), cert. denied, 432 P.3d 1231 (Utah
2018).
ANALYSIS
¶20 Brindley had a clear statutory right to confront the
witnesses testifying against him, and the Board did not observe
this right. 9 Accordingly, we conclude that the Board exceeded its
9. We need not consider Brindley’s argument that he had a
constitutional due process right to confront witnesses because we
are satisfied that he had a statutory right to do so and that this
right was not observed.
20220187-CA 12 2023 UT App 46Brindley v. Logan City
discretion, and we set aside the Board’s decision upholding
Brindley’s termination.10
¶21 The Utah Code is clear that a municipal “employee who is
the subject of . . . discharge, suspension, or transfer may . . .
confront the witness whose testimony is to be considered.” Utah
Code § 10-3-1106(4)(iii). This right is also indicated by the
Handbook: “The employee shall be entitled to . . . confront the
witnesses whose testimony is to be considered.” Logan City
Employee Handbook § 8-03(1) (revised April 2018). 11
Accordingly, Brindley had a right to confront the witnesses whose
testimonies were considered by the Board.
¶22 “It is well settled that when faced with a question of
statutory interpretation, our primary goal is to evince the true
intent and purpose of the legislature. The best evidence of the
legislature’s intent is the plain language of the statute itself. . . .
When the meaning of a statute can be discerned from its language,
no other interpretive tools are needed.” Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶¶ 14–15, 267 P.3d 863 (cleaned up). The
plain language of Utah Code section 10-3-1106(4)(iii) is that a
qualifying employee has a right to stand “face-to-face” with and
to cross-examine any adverse witnesses whose testimony the
Board considers. See, e.g., State v. Isom, 2015 UT App 160, ¶ 48, 354
10. Because we set aside the Board’s decision on this ground, we
need not address the remainder of Brindley’s issues presented.
11. Brindley does not argue, and we do not decide, that the
Handbook created a contractual right to confront witnesses.
However, the Board voted to uphold Logan’s decision to
terminate Brindley because it “determined that [Logan] did
follow its policies and procedures properly in terminating”
Brindley. The ability to confront witnesses was among Logan’s
policies and procedures and was not followed.
20220187-CA 13 2023 UT App 46Brindley v. Logan City
P.3d 791, cert. denied, 364 P.3d 48 (Utah 2015); 12 see also Confront,
Black’s Law Dictionary (11th ed. 2019). Where there was no other
opportunity for Brindley to face adverse witnesses, this can only
mean that Brindley had a right to face adverse witnesses at the
Board’s hearing and cross-examine them there.
¶23 The Board heard testimony against Brindley from Safety
Officer, Supervisor, and Lieutenant, and Brindley was able to
question each of these individuals. However, Technician, who
administered the tests, was not present at the hearing. Counsel for
both parties indicated that Technician’s absence was problematic,
and the Board also expressed frustration with Technician’s
12. We readily acknowledge that “the Sixth Amendment right to
confront witnesses . . . pertains only to criminal prosecutions.”
State v. One 1980 Cadillac, 2001 UT 26, ¶ 14, 21 P.3d 212; see also Iota
LLC v. Davco Mgmt. Co. LC, 2016 UT App 231, ¶ 66 n.17, 391 P.3d
239. Accordingly, we do not apply this right—as deriving from
the Sixth Amendment—here. However, we think it implausible
that in using the phrase “confront the witness,” the legislature did
not also intend to secure the opportunity to cross-examine each
adverse witness face-to-face at the Board’s hearing, given that the
common usage of “confront” related to witnesses undeniably
expresses the opportunity to cross-examine them in person. See
Envirocare of Utah v. Utah State Tax Comm’n, 2009 UT 1, ¶ 5, 201
P.3d 982 (“When a term is not defined by statute, we look to its
common usage to define it.”); see, e.g., Crawford v. Washington, 541
U.S. 36, 68 (2004) (“Where testimonial evidence is at issue, . . . the
Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”);
State v. Kendrick, 538 P.2d 313, 315 (Utah 1975) (“The problem has
been before the United States Supreme Court wherein the rule has
been laid down that the right of . . . defendant[s] to confront the
witnesses against [them] is a fundamental right and is essential to
a fair trial. Right of confrontation is based upon the notion that
[those] accused should have an opportunity to cross-examine the
witnesses against [them].”).
20220187-CA 14 2023 UT App 46Brindley v. Logan City
absence. However, the Board admitted a statement attributed to
Technician despite Technician not being present and available for
cross-examination. And the Board accepted the testing form
containing Technician’s certification and handwritten results.
Because the Board did not permit Brindley to “confront the
witness whose testimony [was] . . . considered,” see Utah Code
§ 10-3-1106(4)(a)(iii), we set aside the Board’s decision.
¶24 We are convinced that the Board not only considered
Technician’s testimony but also relied on it in reaching its
decision. While the Board did not explicitly state that its decision
relied on Technician’s statement or certification, 13 Logan provided
no evidence indicating that Brindley had any alcohol in his system
beyond the test results, so the Board must have relied on the test
results. And the only evidence available to the Board that the tests
were administered properly was the certification that Technician
13. The Board did not provide any specific findings or conclusions
related to its decision. We have stated that “without any findings
of fact, or even a discussion on the record to support a decision,
this court cannot perform its duty of reviewing the agency’s
decision in accordance with established legal principles and of
protecting the parties and the public from arbitrary and
capricious administrative action.” Palmer v. St. George City Council,
2018 UT App 94, ¶ 38, 427 P.3d 423 (cleaned up), cert. denied, 432
P.3d 1231 (Utah 2018). Indeed, “the failure of an agency to make
adequate findings of fact on material issues renders its findings
arbitrary and capricious unless the evidence is clear,
uncontroverted and capable of only one conclusion.” Id. ¶ 13
(cleaned up); see also Northern Monticello All. LLC v. San Juan
County, 2023 UT App 18, ¶ 1, 526 P.3d 829 (“[The Planning
Commission] failed to produce written findings sufficient for
appellate review, so its decision was unsupported by substantial
evidence and was, therefore, arbitrary and capricious.”).
Although we need not rest our decision on this ground, a
significant question exists as to whether we would be required to
set aside the Board’s decision on this basis alone.
20220187-CA 15 2023 UT App 46Brindley v. Logan City
completed on the testing form. Supervisor testified that the
machine was calibrated correctly, but she also testified that there
can be “inaccurate results” if the tests are not administered
correctly. So to accept the test results as accurate and thereby
uphold Brindley’s termination, the Board must have believed
Technician’s testimony that the tests were administered
accurately. But the record supports the conclusion that Brindley
had chewing tobacco or its juices in his mouth at or soon before
testing and that such a condition could invalidate the test. And
even Technician’s purported statements do not verify that he
checked Brindley’s mouth before testing, as Brindley testified
Technician failed to do. For these reasons, we are not convinced
that the test was administered reliably or, accordingly, that the
Board could have rightly determined that in terminating
Brindley, Logan abided by its policies and procedures.
¶25 But even if the Board somehow reached its conclusion
without relying on Technician’s testimony, it erred by not
enforcing Brindley’s statutory right and Logan’s Handbook
policy when denying Brindley the ability to confront Technician
even though the Board considered Technician’s testimony. 14
14. Logan argues that “Brindley waived his right to confront”
Technician “because he did not attempt to secure [Technician’s]
presence and when offered a continuance to do so, failed to accept
the continuance.” We disagree that Brindley was offered a
continuance and failed to accept it. The hearing minutes indicate
that Logan’s counsel stated that the Board could choose to
continue the hearing to seek Technician’s presence; they do not
indicate that Brindley was informed that he could continue the
hearing and chose not to do so. Brindley’s counsel’s comment
about Brindley being unemployed for over a month while
awaiting the hearing was not a denial of an offer for a
continuance. Accordingly, we do not accept Logan’s argument
that Brindley waived his right to confront the witness in this way.
(continued…)
20220187-CA 16 2023 UT App 46Brindley v. Logan City
CONCLUSION
¶26 Brindley had a right to confront witnesses whose
testimony was to be considered—a right that was guaranteed by
statute and listed in Logan’s policies outlined in the Handbook.
Because Logan offered testimonial evidence from Technician and
Brindley was not able to confront Technician, the Board exceeded
its discretion in upholding Brindley’s termination. Accordingly,
we set aside the Board’s decision and direct the Board to conduct
such further proceedings as might be appropriate, including
perhaps a new hearing.
Additionally, Logan argues that Brindley waived this right
by not attempting to secure Technician’s attendance. Logan
reasons that Brindley bore the burden of proof upon appeal to
show that his termination was not in accordance with established
policy, see Logan City Employee Handbook § 8-03(5) (revised
April 2018), and that he also bore the burden of producing
Technician. Logan fails, however, to provide any support
whatsoever for this position. Accordingly, we conclude that this
issue is inadequately briefed because Logan “has completely
shifted the burden of researching . . . applicable law to the court”
on this point. See Jacob v. Cross, 2012 UT App 190, ¶ 3, 283 P.3d 539(per curiam). More importantly, even if Brindley bore the burden
of proof upon appeal, this fact would not negate his statutory
right to confront adverse witnesses at his hearing.
20220187-CA 17 2023 UT App 46