Augustus v. Vernal City

2017 UT App 195
THE UTAH COURT OF APPEALS
R USSEL A UGUSTUS,
Petitioner,
v.
VERNAL C ITY AND V ERNAL C ITY A PPEALS BOARD,
Respondents.
Opinion
No. 20160634-CA
Filed October 26, 2017
Original Proceeding in this Court
Christian A. Kesselring, Attorney for Petitioner
Michael D. Harrington, Attorney for Respondent
Vernal City
Dennis L. Judd, Attorney for Respondent Vernal City
Appeals Board
JUDGE K ATE A. TOOMEY authored this Opinion, in which J UDGES
GREGORY K. O RME and DIANA H AGEN concurred.
TOOMEY, Judge:
¶1 	Russel Augustus worked as an equipment operator for
Vernal City and was discharged after violating several City
policies. His conduct and the policies he violated were identified
in a termination memorandum. The Vernal City Appeals Board
upheld the City’s decision to discharge Augustus. Augustus
seeks review of the Board’s decision, arguing that the Board
violated his due process right to notice when it considered
conduct not set out in the City’s termination memorandum. We
decline to disturb the Board’s decision.

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January 21 Incident
¶2 	On 	the 	morning 	of 	January 	21, 	2016, 	Augustus’s
supervisor (Supervisor) instructed Augustus and a coworker
(Coworker) to hang some banners on the west end of town.
Augustus and Coworker traveled to the work site in a city-
owned truck. Although Augustus and Coworker began their
assignment on the west end, they later deviated from that
assignment without authorization and went to the east end of
town to a different work site, where another city employee was
operating 	a 	large 	tractor 	loader. 	Augustus 	and 	Coworker
claimed that they believed the loader was being operated in an
unsafe manner, so Augustus, without any instruction from a
supervisor that he do so, used his city-issued cell phone to take
photographs and a video recording of it. The loader operator
saw Augustus drive by “with his cell phone up to the window”
and immediately reported it to Supervisor.
January 25 Incident
¶3 	Four days later, during working hours, Supervisor twice
called Augustus’s city-issued cell phone to set up a meeting to
discuss Augustus’s January 21 behavior, but Augustus did not
answer. About an hour later, Supervisor encountered Augustus.
Supervisor explained that he wanted to meet with Augustus and
asked him why he had not answered his phone earlier that
morning. Augustus responded, “I haven’t had my cell phone.”
The two met later that day.
¶4 	At their meeting, Augustus explained, “My phone has
been 	off 	all 	day . . . I 	haven’t 	had 	my 	cell 	phone.” 	When
Supervisor asked Augustus whether he and Coworker drove to
the 	east 	end 	of 	town 	and 	took 	photographs 	and 	a 	video
recording of the loader, Augustus answered that he could not
remember. Throughout the meeting, Augustus responded to
Supervisor’s 	questions 	in 	an 	evasive, 	dismissive, 	and
disrespectful manner. Thirty minutes into the meeting, Augustus

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announced he was leaving. Supervisor responded that Augustus
was 	not 	free 	to 	leave 	and 	that, 	if 	he 	did, 	he 	could 	face
disciplinary action. Augustus replied, “Have fun with that,” and
left.
¶5 	Supervisor also met with Coworker, who admitted he and
Augustus 	had 	gone 	to 	the 	east 	end 	of 	town 	and 	took
photographs 	and 	a 	video 	recording 	of 	the 	loader 	without
authorization. 	After 	meeting 	with 	Augustus 	and 	Coworker,
Supervisor 	placed 	them 	both 	on 	paid 	vacation 	leave 	for
approximately one week.
¶6 	As 	Supervisor 	further 	investigated 	the 	violations, 	he
discovered that on the morning of January 25, Augustus had
made several phone calls from his city-issued cell phone and
sent 	several 	text 	messages. 	This 	information 	supported
Supervisor’s suspicion that Augustus had lied about his phone
being 	off 	and 	about 	not 	having 	his 	phone 	with 	him 	that
morning.
Notice of Pre-Disciplinary Hearing
¶7 	On January 29, the City Manager provided Augustus with
a notice of a pre-disciplinary hearing (the Notice), outlining
Augustus’s conduct and identifying various violations of the
City’s Personnel Manual.
¶8 	The Notice alleged Augustus committed three violations
on January 21: “Inefficiency or inability to satisfactorily perform
assigned duties”; “Misusing, destroying or damaging any City
property”; and “Deliberately restricting output.” The Notice
explained that Augustus was inefficient because he did not
follow instructions to place banners on the west end of town,
that he misused City property by driving the City’s truck to “a
location without any legitimate purpose or direction,” and that
he 	deliberately 	restricted 	his 	and 	Coworker’s 	output 	by
spending time away from their assigned project.

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¶9 	The 	Notice 	further 	alleged 	Augustus 	violated 	the
Personnel Manual’s policy against dishonesty when he claimed
in his January 25 meeting with Supervisor that he could not
remember 	if 	he 	went 	to 	the 	east 	end 	of 	town 	and 	took
photographs and a video recording of the loader.
¶10 	The Notice also alleged Augustus violated the Personnel
Manual’s 	policy 	against 	insubordination 	when 	he 	left 	the
meeting prematurely and against Supervisor’s express directive.
¶11 	Finally, the Notice alleged Augustus violated the City’s
cell phone use agreement and committed an act of dishonesty
when he did not answer his city-issued cell phone the morning
of his meeting with Supervisor and later claimed that his phone
had been turned off.
Termination Memorandum and Appeal to the Board
¶12 	After conducting a disciplinary hearing, the City Manager
sent 	Augustus 	a 	“Notice 	of 	Disciplinary 	Action” 	(the
Termination 	Memorandum). 	The 	Termination 	Memorandum
outlined the same violations and conduct as the Notice had. The
City 	Manager 	concluded 	the 	Termination 	Memorandum 	by
explaining that, after considering Augustus’s testimony at the
pre-disciplinary 	hearing, 	the 	allegations 	were 	substantiated.
Accordingly, the City Manager discharged Augustus.
¶13 	Augustus appealed the City Manager’s decision to the
Board. 	After 	conducting 	a 	thorough 	hearing 	and 	making
detailed findings, the Board upheld the City Manager’s decision
to discharge Augustus. Some of the Board’s findings discussed
information that was not specifically outlined in the Termination
Memorandum. 	For 	example, 	the 	Board 	found 	(1) 	that
Augustus’s claimed reason for taking the photographs and a
video recording of the loader—that he believed it was being
operated in an unsafe manner—was not credible and (2) that

Augustus v. Vernal City
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Augustus was driving while he took the photographs and the
video recording, which was illegal and unsafe.
¶14 	Augustus 	now 	seeks 	judicial 	review 	of 	the 	Board’s
decision. Augustus argues the Board violated his due process
right to notice by considering certain conduct that was not
included 	in 	the 	Termination 	Memorandum.1 	Due 	process
challenges are questions of law, and “we give no deference to
the agency’s determination of what constitutes due process.”
Fierro v. Park City Mun. Corp., 2012 UT App 304, ¶ 8, 295 P.3d 696
(brackets, citation, and internal quotation marks omitted).
¶15 	When 	reviewing 	the 	termination 	of 	a 	municipal
employee, 	Utah 	law 	allows 	a 	municipal 	appeals 	board 	to
consider 	only 	evidence 	that 	“relates 	to 	the 	reason 	for 	the
discharge.” Utah Code Ann. § 10-3-1106(3)(b)(ii) (LexisNexis
2015). 	Under 	this 	provision, 	the 	Board 	may 	consider 	only
evidence related to the violations outlined in the Termination
Memorandum. See Fierro, 2012 UT App 304, ¶ 22.
¶16 	In Fierro, we set aside the decision of an appeals board
because only one of the five grounds on which the appeals board
had based its decision to uphold an employee’s termination from
employment was outlined in the notice of termination. See id.
¶ 27. And although the other grounds were generally related,
“they [were] different acts of misconduct.” Id.
1. Augustus also argues Supervisor’s decision to place him on
paid vacation leave was a disciplinary decision not preceded by
a pre-disciplinary hearing and thus violated his right to due
process. We do not address this issue because it relates to
Supervisor’s decision to place Augustus on paid vacation leave,
not the City Manager’s decision to discharge Augustus, which
forms the basis of this judicial review proceeding.

Augustus v. Vernal City
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¶17 	Augustus asserts that Fierro is analogous to the present
case, and therefore we should set aside the Board’s decision. But
Augustus has not carried his burden of persuasion. See CORA
USA LLC v. Quick Change Artist LLC, 2017 UT App 66, ¶ 6, 397
P.3d 759. Augustus’s analysis on this point is limited to the
following three sentences:
Referring to the outline given above of the conduct
raised 	in 	the 	Notice 	of 	Disciplinary 	Action, 	as
compared to the conduct identified in the Appeals
Board’s 	decision, 	there 	are 	many, 	many 	more
instances of misconduct identified there. While Mr.
Augustus might have divined that even some of
those 	instances 	might 	be 	at 	issue, 	that 	is 	not
enough to satisfy the rule established under Fierro
and related cases. Mr. Augustus was given no
notice of the great majority of them.
In his analysis, Augustus does not identify any of the “many”
instances of misconduct identified in the Board’s findings that
were not included in the Termination Memorandum, and we
disagree that he “was not given notice of the great majority of
them.”2 To the contrary, and unlike the situation in Fierro, most
of the Board’s findings relate specifically to the violations listed
in the Termination 	Memorandum. And the misconduct not
specifically listed—Augustus’s incredible explanation for taking
photographs and a video recording of the loader and the manner
2. In Augustus’s statement of facts, he quotes portions of the
Board’s findings that were purportedly made “over and above
the reasoning reflected in the [Termination Memorandum].” But
the 	majority 	of 	these 	quoted 	findings 	concern 	misconduct
specifically mentioned or directly related to misconduct outlined
in the Termination Memorandum.

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in which he took them—closely relates to the violations outlined
in the Termination Memorandum.
¶18 	We conclude the Board did not violate Augustus’s due
process right to notice, and we therefore do not disturb its
decision to uphold his termination.