Onysko v. Dept. of Envntl. Quality

2020 UT App 51
THE UTAH COURT OF APPEALS
S TEVEN J. O NYSKO,
Petitioner,
v.
DEPARTMENT OF ENVIRONMENTAL Q UALITY AND
C AREER S ERVICE R EVIEW O FFICE,
Respondents.
Opinion
No. 20180984-CA
Filed March 26, 2020
Original Proceeding in this Court
Ryan B. Hancey and J. Adam Knorr,
Attorneys for Petitioner
Sean D. Reyes and Peggy E. Stone,
Attorneys for Respondent Department of
Environmental Quality
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DIANA H AGEN
concurred.
ORME, Judge:
¶1 	The 	Department 	of 	Environmental 	Quality 	(DEQ)
terminated Steven J. Onysko’s nearly twenty-year employment,
citing 	his 	unprofessional 	and 	abusive 	conduct 	toward
coworkers, supervisors, and DEQ customers. Onysko appealed
his termination to the Career Service Review Office (the CSRO).
Following a seven-day evidentiary hearing before one of its
hearing officers, the CSRO issued a decision (the CSRO Decision)
affirming his termination. Onysko now seeks judicial review of
the CSRO Decision, and we decline to disturb it.

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BACKGROUND1
¶2 	Onysko worked as a level III environmental engineer with
career 	service 	status 	in 	DEQ’s 	Division 	of 	Drinking 	Water
(DDW). 	During 	Onysko’s 	long 	employment 	at 	DEQ, 	his
technical abilities and expertise as an engineer had never been
called into question.
DEQ’s Termination of Onysko’s Employment
¶3 	In 2006, DDW’s director issued a written warning to
Onysko (the 2006 Warning) regarding, among other things,
Onysko’s “rude, nasty, arrogant, and confrontational” behavior
toward his work colleagues and DEQ customers. Nearly two
years later, in 2008, another director issued a second written
warning to Onysko (the 2008 Warning) regarding an incident
with a coworker in which the director characterized Onysko’s
conduct as “clearly inappropriate and unprofessional.” These
warnings, however, did not prevent Onysko from receiving
favorable 	work 	performance 	evaluations. 	Between 	1998 	and
2016, Onysko’s annual evaluations rated his work performance
as either “Successful” or “Exceptional.”
¶4 	In 	September 	2016, 	Onysko’s 	supervisor 	(Supervisor)
completed a performance evaluation for the July 2015–June 2016
work 	period, 	giving 	Onysko 	a 	rating 	of 	Successful. 	In 	the
evaluation, Supervisor commended Onysko for his expertise in
1. “Because the party seeking review of an agency’s order
following a formal administrative proceeding has the burden to
prove that the agency’s factual findings are not supported by
substantial evidence,” which Onysko has not done, “we state the
facts and all legitimate inferences to be drawn from them in the
light most favorable to the agency’s findings.” Macfarlane v.
Career Service Review Office, 2019 UT App 133, n.1, 450 P.3d 87
(quotation simplified).

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20180984-CA 	3 	2020 UT App 51
the field, stating, “Other DDW staff has commented that every
troubled water system 	in Utah should go through a Steve
Onysko sanitary survey.” She also characterized him as “an
excellent mentor to other engineers because of his knowledge,
experience, and willingness to help.” But Supervisor noted that
“[t]here is room for improvement regarding . . . follow up and
follow through . . . as some projects are not responded [to]
within the expected time frame.”
¶5 	Onysko believed he at the very least deserved a rating of
Very Successful and considered the Successful rating unfair. He
also 	disagreed 	with 	Supervisor’s 	room-for-improvement
comment and said as much in the “Employee Comment” section
of the evaluation form, calling it “unfair criticism.” But Onysko
did not stop at this. He continued:
My 	inference 	is 	that 	DDW 	management 	more
favorably performance-evaluates engineering staff
who 	rubber-stamp 	public 	works 	engineering
designs, and less favorably performance-evaluates
engineering staff who do due diligence in review
of public works engineering designs.
. . . .
DDW management should first be investigated to
determine 	whether 	or 	not 	there 	is 	conscious,
deliberate 	under-supervision 	of 	new 	staff, 	and
other 	junior 	staff, 	to 	leave 	them 	intentionally
ill-prepared 	to 	review 	public 	works 	project
designs, and intentionally ill-prepared to protect
the public against water project design errors.
Secondly, 	DDW 	management 	should 	be
investigated 	to 	determine 	whether 	or 	not
management’s 	reason 	for 	taking 	away 	certain
review 	assignments 	from 	me 	is 	to 	“shop” 	the

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assignments to other less-senior staff until DDW
management can find a less discerning engineer
with consequent briefer review time and 	more
likely favorable review finding.
Thirdly, DDW management should be investigated
to determine whether or not certain categories of
review assignments for illegitimate reason are not
given to me and other experienced engineers. It
should 	be 	determined 	whether 	or 	not 	DDW
management excludes experienced engineers from
review 	of 	certain 	projects 	because 	DDW
management fears our raising of design flaw issues
that 	junior 	engineers, 	ill-trained 	by 	DDW
management, will not discern.
In an abusive conduct complaint that Supervisor later filed
against Onysko, she alleged that when she met with Onysko to
discuss the evaluation, he threatened to “expose information
showing 	that 	[Supervisor] 	had 	improperly 	monitored 	other
[DDW] 	review 	engineers” 	unless 	she 	removed 	the
room-for-improvement comment from his evaluation.
¶6 	The 	following 	month, 	Supervisor 	issued 	a 	written
warning 	to 	Onysko 	(the 	2016 	Warning). 	In 	it, 	Supervisor
informed Onysko that she “received numerous verbal and two
written complaints” from DDW staff and customers about him.
She stated that “[t]he complaints have had a consistent theme,
the 	individuals 	felt 	that 	they 	could 	not 	work 	with 	you
collaboratively or efficiently, and the customers indicated that
they were being harassed or abused.” Supervisor continued that
“[m]any 	of 	these 	complaints 	are 	actually 	related 	to 	your
communication 	style 	and 	your 	demeanor 	perceived 	by 	the
customers and co-workers,” and after speaking with Onysko
about the complaints, she had determined that his conduct
violated 	DEQ 	policy. 	Supervisor 	then 	listed 	six 	directives
Onysko was to follow and concluded by warning that “if similar

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unsatisfactory behavior occurs in the future, further corrective
and/or disciplinary action may be taken which may include
termination of your employment.”
¶7 	A little over a week later, Onysko filed a complaint with
the 	federal 	Occupational 	Safety 	and 	Health 	Administration
(OSHA), alleging that the 2016 Warning was retaliatory and in
violation 	of 	the 	federal 	Safe 	Drinking 	Water 	Act. 	OSHA
eventually dismissed this complaint on the ground that “the
content did not ‘relate definitively and specifically to the subject
matter’ of the [Safe Drinking Water Act].”
¶8 	In November 2016, Onysko filed a grievance concerning
the 	2016 	Warning 	and, 	on 	that 	same 	day, 	filed 	six 	record
requests 	under 	the 	Utah 	Government 	Records 	Access 	and
Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to
-901 (LexisNexis 2019),2 for all of Supervisor’s telephone records
spanning 	the 	prior 	six 	months. 	During 	a 	subsequent
investigation 	by 	the 	Department 	of 	Human 	Resource
Management (DHRM), Onysko stated that he did not limit the
requests to the issues in the 2016 Warning because “he did not
know the phone numbers of the two parties who made [written]
complaints against him.”3 He also, as the assigned hearing
2. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.
3. 	The 	CSRO 	Decision 	noted 	that 	the 	DHRM 	investigator
discounted this explanation, “reasoning that [Onysko] already
knew the phone numbers of relevant parties, thus making a
request for all calls unnecessary.” The CSRO Decision further
noted that the timing of the GRAMA requests “further discounts
his explanation” because although the 2016 Warning was issued
in mid-October, Onysko did not make the GRAMA requests
(continued…)

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20180984-CA 	6 	2020 UT App 51
officer later found, “more likely than not” left a copy of the
GRAMA requests on Supervisor’s desk.
¶9 	On 	December 	16, 	2016, 	Supervisor 	issued 	Onysko 	a
“Notice of Intent to Discipline—Written Reprimand” (the Intent
to Reprimand) concerning a November 2016 incident with a
non-DDW 	employee.4 	Specifically, 	Onysko 	had 	missed 	a
morning 	appointment 	with 	the 	employee, 	and 	after 	it 	was
pointed out to him that he had accepted the appointment to his
calendar, Onysko “became extremely upset and yelled at” the
employee. Onysko questioned why the employee had not called
him when he had not appeared for the appointment, and it was
explained to him that it was not the employee’s responsibility to
(…continued)
until mid-November, on “the same day he filed his grievance.”
Ultimately, on this issue, quoting rule R477-16-1(1)(a) of the Utah
Administrative Code, the CSRO Decision concluded that “[e]ven
though [Onysko’s] request was technically legitimate, the scope
of the documents requested, the unnecessary notification of
[Supervisor], and the unlikely explanation offered by [him], lead
to the conclusion that [Onysko] intended to [and did] cause
[Supervisor] 	‘intimidation, 	humiliation, 	or 	unwarranted
distress,’” thereby amounting to abusive conduct.
4. The original Intent to Reprimand referred generally to “an
incident 	that 	Occurred 	on 	Wednesday 	November 	9, 	2016,
involving [Onysko] and a non-DDW employee in the [state
office] 	building.” 	In 	early 	January 	2017, 	Supervisor
supplemented the Intent to Reprimand to include the details of
the incident at issue after Onysko pointed out in his written
response to the original Intent to Reprimand that the document
did not provide specifics. For ease of recounting the facts of this
case, we refer to the original and amended letters collectively as
“the Intent to Reprimand.”

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do so. Onysko responded that the situation was “ridiculous” and
that he did not understand why the employee had not called
him. The employee apologized, and Onysko responded, “I’m not
upset; 	I’m 	just 	disappointed.” 	In 	the 	Intent 	to 	Reprimand,
Supervisor described Onysko’s conduct as inappropriate, a cause
for grave concern, and in violation of the DEQ Code of Conduct.
She further noted that this “incident and previous complaints
against [him] all share a similar theme of unprofessional and
impolite communication with others.” As a result, Supervisor
notified him that she intended to discipline him “in the form of a
Written Reprimand.”
¶10 	Supervisor 	and 	a 	DHRM 	representative 	(DHRM
Representative) met with Onysko to deliver and discuss the
Intent to Reprimand, but he quickly became upset and cut the
meeting short, citing health reasons. As a result, Supervisor and
DHRM Representative left the Intent to Reprimand on Onysko’s
desk. 	The 	next 	business 	day, 	Onysko 	met 	with 	DHRM
Representative 	to 	discuss 	the 	document. 	He 	then 	informed
DHRM 	Representative 	that 	he 	intended 	to 	file 	a 	criminal
complaint regarding the manner in which she and Supervisor
had delivered the Intent to Reprimand on the previous work
day.
¶11 	After 	receiving 	the 	Intent 	to 	Reprimand, 	but 	before
Supervisor 	issued 	the 	corresponding 	“Notice 	Imposing
Discipline—Written 	Reprimand” 	(the 	Written 	Reprimand),
Onysko filed another GRAMA records request for “all sanitary
survey reports performed by [Supervisor],” a copy of which he
also “more likely than not” left on Supervisor’s desk.5 He also
5. In a subsequent DHRM investigation, Onysko stated that he
made the request because “he wanted to see if [Supervisor] had
made the same kinds of errors in her reports for which she (in
part) had issued [Onysko the Written Reprimand].” The CSRO
Decision concluded that Onysko “had no work-related reason to
(continued…)

Onysko v. DEQ
20180984-CA 	8 	2020 UT App 51
filed an abusive conduct complaint against Supervisor with
DHRM.
¶12 	In 	mid-January 	2017, 	Supervisor 	issued 	the 	Written
Reprimand, informing Onysko that “[t]his Letter also serves as a
notice that if misconduct continues to occur, I will consider
further disciplinary action, which may include termination of
your employment.” Onysko protested the Written Reprimand on
the ground that it did not include mandatory right-to-appeal
language, and a subsequent letter—identical to the original but
with the mandatory language included—was issued 10 days
later. Onysko filed a grievance challenging the amended Written
Reprimand, which DEQ’s executive director (Executive Director)
denied, along with Onysko’s earlier grievance related to the 2016
Warning.
¶13 	Less than a week after receiving the Written Reprimand,
Onysko delivered a copy of his abusive conduct complaint,
made to DHRM two weeks earlier, to Supervisor. Supervisor, in
turn, filed an abusive conduct complaint against Onysko. In her
complaint, she made seven allegations of abusive conduct:
i. 	That [Onysko], after receiving the [Intent to
Reprimand], 	told 	[DHRM 	Representative]
that he intended to file a criminal complaint
regarding 	the 	circumstances 	of 	the
document’s December 16, 2016 delivery.
(…continued)
review [Supervisor’s] prior projects” and that “[t]he existence of
such errors by [Supervisor] would be irrelevant to the Written
Reprimand” because “they would not excuse or balance out
[Onysko’s] conduct.” Therefore, quoting rule R477-16-1(1)(a) of
the Utah Administrative Code, the CSRO Decision stated that
Onysko’s “conduct intended to cause [Supervisor], and did
cause her, ‘intimidation, humiliation, or unwarranted distress.’”

Onysko v. DEQ
20180984-CA 	9 	2020 UT App 51
ii. 	That 	following 	the 	[2016 	Warning],
[Onysko] 	filed 	multiple 	records 	requests
under 	GRAMA 	for 	all 	of 	[Supervisor’s]
telephone records over a six-month period,
and 	that 	he 	left 	copies 	of 	the 	GRAMA
requests on [Supervisor’s] desk.
iii. 	That following his receipt of the [Written
Reprimand], 	[Onysko] 	made 	a 	records
request 	under 	GRAMA 	for 	all 	sanitary
survey reports done by [Supervisor], and
again left a copy of the request on [her]
desk.
iv. 	That Onysko’s [verbal] comments [made in
a 	meeting 	concerning] 	the 	July 	2016
evaluation threatened [Supervisor].
v. 	That on April 7, 2016, [Onysko] complained
to 	another 	manager 	about 	[Supervisor’s]
conduct 	in 	an 	April 	6, 	2016 	meeting.
[Supervisor] 	asserted 	[Onysko’s] 	conduct
was 	abusive 	because 	the 	victim 	of 	the
conduct did not consent to the complaint.
vi. 	That 	on 	February 	28, 	2017, 	[Onysko]
commented to staff that [Supervisor] had
inappropriately 	revealed 	confidential
information.
vii. 	That [Onysko] “intentionally spreads lies to
harm 	[Supervisor’s] 	professional
reputation.”
¶14 	DHRM dismissed Onysko’s complaint against Supervisor
in April 2017. And in May, DHRM issued an investigation report
(the Investigation Report) substantiating Supervisor’s first four

Onysko v. DEQ
20180984-CA 	10 	2020 UT App 51
allegations in her abusive conduct complaint against Onysko6
but determining that the last three allegations, which it found
had in fact occurred, did not rise to the level of abusive conduct.7
See Utah Admin. Code R477-16-1(1) (defining abusive conduct).
¶15 	In June 2017, pending its review of the Investigation
Report, DEQ placed Onysko on paid administrative leave. And
in 	July, 	the 	DDW 	director 	issued 	Onysko 	an 	“Intent 	to
Discipline—Dismissal for Just Cause and the Good of the Public
Service” (the Intent to Dismiss). The document listed several
reasons for her intent to terminate Onysko’s employment: (1) the
2006 Warning, (2) the 2008 Warning, (3) the 2016 Warning,
(4) the Intent to Reprimand, (5) the Investigation Report,8 (6) a
6. At the time DHRM issued the Investigation Report, there was
no procedure in place through which an employee could seek
review of the findings of an abusive conduct investigation. In
2018, the Legislature established such a process for the CSRO,
enabling 	it 	to 	review 	the 	findings 	of 	abusive 	conduct
investigations. 	Compare 	Utah 	Code 	Ann. 	§ 	67-19a-202
(LexisNexis Supp. 2016), with id. § 67-19a-202(3) (Supp. 2018).
7. Onysko did not receive a copy of the Investigation Report
until after DEQ terminated his employment. Instead, DHRM
sent Onysko a confusingly phrased letter informing him that
“[i]t is the opinion of the investigators that the complaint that
you 	engaged 	in 	nonverbal 	conduct 	intended 	to 	intimidate,
humiliate or cause you unwarranted distress in violation of the
above-cited Abusive Conduct rule is substantiated.”
8. 	The 	Intent 	to 	Dismiss 	limited 	its 	discussion 	of 	the
Investigation Report to the following:
This investigation substantiated that you used
the 	normally 	unobjectionable 	activities of 	filing
GRAMA requests to intentionally intimidate and
(continued…)

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20180984-CA 	11 	2020 UT App 51
lack 	of 	improvement 	“[d]espite 	performance 	coaching 	and
escalating 	disciplinary 	actions,” 	and 	(7) 	his 	“misconduct
[being] 	disruptive 	to 	the 	workplace” 	and 	“caus[ing]
burdensome delays in [DDW] processes and damage to the
morale within [DDW].” The director gave several examples
of 	Onysko’s 	conduct 	to 	illustrate 	the 	last 	point: 	(i) his
“intimidating 	threats” 	had 	caused 	“staff 	[to 	spend]
unnecessary effort to excessively check, re-check and document
decisions 	in 	an 	effort 	to 	shield 	themselves 	against 	[his]
intimidating threats”; (ii) his “unnecessary project scrutiny and .
. 	. 	uncollaborative 	communication 	style” 	had 	resulted 	in
increased 	project 	completion 	times 	and 	unwarranted
administrative 	processing; 	(iii) 	his 	repeated 	research 	and
critiques 	of 	his 	coworkers’ 	projects 	and 	accusations 	of
incompetence had resulted in unnecessary and burdensome
delays; 	(iv) 	his 	repeated 	threats 	and 	follow-through 	with
complaints to the Division of Occupational and Professional
Licensing 	(DOPL) 	against 	other 	engineers 	had 	resulted 	in
coworkers requesting not to work with him; (v) his behavior had
(…continued)
cause unwarranted distress to [Supervisor]. The
investigation 	also 	substantiated 	that 	you
threatened to file criminal charges in response to
standard 	management 	practices, 	and 	that 	you
threatened 	[Supervisor] 	over 	a 	performance
evaluation.
Importantly, 	in 	reaching 	their 	determination
that you had engaged in abusive conduct, the
investigators 	noted 	a 	consistent 	and 	troubling
pattern 	of 	using 	otherwise 	unobjectionable
activities 	like 	filing 	GRAMA 	requests 	and
complaints, 	administrative 	or 	otherwise, 	to
intimidate 	or 	distress 	co-workers 	as 	well 	as
management.

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20180984-CA 	12 	2020 UT App 51
caused DDW clients to express frustration with working with
him, resulting in his coworkers being burdened with extra
workloads; and (vi) his refusal to use DDW templates and
common 	standard 	editing 	practices 	had 	resulted 	in 	project
delays and unnecessary administrative processing.
¶16 	On August 1, 2017, Onysko, now represented by counsel,
met with Executive Director to discuss the Intent to Dismiss. In
support 	of 	his 	position, 	Onysko 	“submitted 	162 	pages 	of
documents and spent two hours arguing [his] case verbally.”
And in October, after Onysko’s counsel informed DEQ that he
no longer wished to pursue settlement discussions, Executive
Director 	issued 	a 	letter 	entitled 	“Final 	Agency 	Decision—
Termination” (the Termination Letter). The Termination Letter
incorporated the Intent to Dismiss but also discussed three
additional 	grounds: 	(1) referencing 	Supervisor’s 	last 	three
allegations that 	the 	Investigation 	Report 	concluded 	did 	not
amount 	to 	abusive 	conduct, 	Executive 	Director 	stated 	that
his 	“review 	of 	th[ose] 	allegations 	shows 	that 	they 	at 	least
illustrate the disruptive nature of [Onysko’s] behavior in [DDW]
and 	[his] 	unjustified 	hostility 	and 	ill 	feelings 	toward
[Supervisor]”; (2) the OSHA complaint Onysko originally filed
in response to the 2016 Warning9 and certain prior unsuccessful
OSHA complaints he had filed against DDW that had by that
point already been “rejected and defeated at every level of
review,” including the Tenth Circuit Court of Appeals; and (3)
that since Onysko had been placed on administrative leave,
“both morale and production are up in [DDW],” serving as
“further evidence that [his] actions, behavior, and contentious
dealings toward [his] supervisors and co-workers have been
disruptive to [DDW].”
9. In January 2017, Onysko amended his OSHA complaint to
allege that the Written Reprimand, the Intent to Reprimand, and
the attempted service thereof were also retaliatory.

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The CSRO Proceedings
¶17 	Onysko appealed his termination to the CSRO. See Utah
Code Ann. § 67-19a-202(1) (LexisNexis Supp. 2019). A hearing
officer (the Hearing Officer) was assigned to consider the matter
and held a seven-day level 4 evidentiary hearing in mid-2018, in
which Onysko represented himself.10 See id. § 67-19a-302(1); Utah
Admin. 	Code 	R137-1-18(2)(a) 	(“Level 	4 	adjudications at 	the
CSRO 	are 	formal 	adjudicative 	proceedings.”). 	At 	issue 	was
(1) whether 	DEQ’s 	“termination 	of 	[Onysko’s] 	employment
[was] supported by just cause, or to advance the good of the
public 	service” 	and 	(2) whether 	DEQ 	“correctly 	appl[ied]
relevant policies, rules, and statutes.”
¶18 	Onysko did not testify during the hearing. When his
opportunity to testify arose, he “brought a binder of notes and
documents to the witness table to use in testifying.” Citing rule
612(b) of the Utah Rules of Evidence,11 the Hearing Officer asked
10. The hearing was originally scheduled for three days, but it
was extended by an additional four days due to Onysko’s
“conduct 	and 	presentation 	of 	his 	case,” 	specifically 	his
“insist[ence] on continuing conduct that delayed the progress of
the hearing.” The CSRO Decision concluded that “[a]lthough
some delay in the progress of the hearing may be reasonably . . .
attributed to his pro se status, much of the delay was a direct
result of [Onysko’s] inefficient presentation of his case and his
disregard 	of 	previous 	rulings, 	orders, 	explanations, 	and
directions.”
11. Rule 612 regulates a witness’s ability to use “a writing” to
refresh 	the 	witness’s 	recollection. 	Subsection 	(b) 	details 	the
procedure 	for 	the 	writing 	being 	produced 	and 	examined.
Although recognizing “that the Utah Rules of Evidence do not
apply 	to 	CSRO 	proceedings,” 	see 	Utah 	Admin. 	Code
R137-1-18(3), the Hearing Officer nonetheless applied rule 612(b)
(continued…)

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Onysko not to refer to the binder during his testimony. A
discussion 	on 	the 	subject 	ensued, 	and 	Onysko 	eventually
permitted 	the 	Hearing 	Officer 	to 	conduct 	an 	in-chambers
inspection of the binder. Following his review of the binder, the
Hearing Officer determined that it contained Onysko’s “notes
and work product, intended to guide [his] testimony” and
instructed Onysko “to remove those documents, or identify, or
provide copies of those documents to [DEQ] before testifying.”
Onysko refused to do so and, as a consequence, did not testify at
that point.
¶19 	The 	Hearing 	Officer 	later 	gave 	Onysko 	a 	second
opportunity 	to 	testify, 	but 	Onysko, 	claiming 	the 	binder 	he
intended to use during his testimony contained “protected work
product and that review would disclose his hearing strategy to
the Hearing Officer,” refused to permit another in-chambers
inspection of it. The Hearing Officer again “explained that if
[Onysko] did not testify, the record would contain little evidence
in 	support 	of 	his 	case,” 	but 	Onysko 	nevertheless 	declined
inspection and consequently did not testify. At the conclusion of
the seven-day hearing, the Hearing Officer directed Onysko to
submit a written proffer of the testimony he would have given.
Onysko 	submitted 	the 	proffer, 	and 	the 	Hearing 	Officer
“generally accept[ed] the facts asserted therein . . . as true.” The
Hearing 	Officer 	further 	noted 	that 	“[t]hose 	facts 	do 	not
contradict other testimony or evidence in any material way.”
(…continued)
because he “believe[d] the approach set out in the Rule ensures
fairness 	to 	both 	parties 	and 	minimizes 	the 	possibility 	that
inadmissible or unreliable evidence may be introduced into the
record.” See Utah Code Ann. § 63G-4-206(2) (LexisNexis 2019)
(stating 	that 	officers 	presiding 	over 	formal 	adjudicative
proceedings 	are 	not 	precluded 	“from 	taking 	appropriate
measures necessary to preserve the integrity of the hearing”).

Onysko v. DEQ
20180984-CA 	15 	2020 UT App 51
The CSRO Decision
¶20 	Following the hearing, the Hearing Officer issued the
CSRO 	Decision 	upholding 	DEQ’s 	dismissal 	of 	Onysko. 	In
reaching this conclusion, the CSRO Decision stated that it did
not rely on the 2006 Warning or the 2008 Warning as they were
“too 	remote 	in 	time 	to 	be 	relevant 	to 	the 	termination 	of
[Onysko’s] employment” but did find the 2016 Warning and the
Written Reprimand to be relevant.
¶21 	The CSRO Decision first addressed Onysko’s argument
that DEQ “did not notify [him] in writing of the specific reasons
for the proposed dismissal or demotion,” in contravention of
rule R477-11-2(2)(a) of the Utah Administrative Code. The CSRO
Decision acknowledged that Onysko did not receive a copy of
the Investigation Report until after his termination and that the
DHRM letter informing him of the outcome of the investigation
“makes little sense and does not describe the alleged abusive
behavior.” 	Nevertheless, 	the 	CSRO 	Decision 	concluded 	that
Onysko “received adequate notice of [DEQ’s] charges against
him,” because he “received other notifications of the reasons for
[DEQ’s] decision to terminate [his] employment.”
¶22 	Specifically, the Intent to Dismiss referred to the 2006
Warning, the 2008 Warning, the 2016 Warning, the Intent to
Reprimand, and the Investigation Report. And although the
Intent 	to 	Dismiss 	“did 	not 	describe 	the 	allegations 	in 	the
Investigation Report in detail,” it “did refer to the filing of
GRAMA requests, threats to file a police report, . . . threats to
[Supervisor] 	over 	a 	performance 	evaluation,” 	and 	“the
disruptive effect of [Onysko’s] conduct on the workplace and the
performance 	of 	DDW.” 	Based 	on 	this, 	the 	CSRO 	Decision
concluded that Onysko “was sufficiently on notice as to the
allegations 	underlying 	[DEQ’s] 	decision 	to 	recommend
termination of employment” and that “[a] reasonable person
reading the [Intent to Dismiss] and the [Termination Letter]
would understand the reasons, including the specific instances

Onysko v. DEQ
20180984-CA 	16 	2020 UT App 51
of abusive conduct for [DEQ’s] decision to terminate [Onysko’s]
employment.” This conclusion was further supported by the
absence of evidence that Onysko ever “asked for clarification or
amplification of any of [the] documents prior to this proceeding”
and by Onysko’s ability “to present his reasons and arguments
why his employment should not be terminated” in his August 1,
2017 meeting with Executive Director.
¶23 	The CSRO Decision next addressed whether DEQ had
cause to terminate Onysko’s employment. After noting that DEQ
largely based its decision on the Investigation Report’s findings
of abusive conduct, the CSRO Decision acknowledged that DEQ
“also 	relied 	on 	the 	repetitive 	nature 	of [Onysko’s] 	conduct
including prior discipline, the likelihood that [Onysko’s] conduct
would not improve the effect of [Onysko’s] conduct on [DDW]
morale, the effect of [Onysko’s] conduct on [DDW] productivity,
and [Onysko’s] violation of DEQ and DDW policies.”
¶24 	As 	concerns 	Onysko’s 	abusive 	conduct, 	the 	Hearing
Officer 	concluded 	that 	“[t]here 	is 	substantial 	evidence
supporting the conclusion that the conduct alleged in each of the
seven individual allegations [in Supervisor’s abusive conduct
complaint] did occur.” Like the Investigation Report, the CSRO
Decision concluded that only Supervisor’s first four allegations
against Onysko constituted abusive conduct, but the CSRO
Decision stated that the Hearing Officer considered the conduct
described in the latter three allegations as corroborative of other
evidence of Onysko’s improper conduct. The CSRO Decision
further determined that the conduct described in the first four
allegations—as 	well 	as 	Onysko’s 	conduct 	affecting 	DEQ
customers, productivity, and morale—violated DEQ Policies and
Procedures and DDW Operating Principles.
¶25 	And with regard to the effect of Onysko’s conduct on
DEQ customers, productivity, and morale, the CSRO Decision
noted that “[t]he consensus of the witnesses was that [DEQ]
morale was poor, that the poor morale was due to [Onysko’s]

Onysko v. DEQ
20180984-CA 	17 	2020 UT App 51
conduct, and that [DEQ] productivity and morale improved
after [Onysko] left [DEQ].” The CSRO Decision further stated
that Onysko’s “conduct throughout this proceeding also tends to
corroborate the testimony of [DEQ’s] witnesses and supports
[DEQ’s] assessment of [Onysko’s] conduct and its effect on
[DEQ]” as “disruptive, morale-breaking, and intimidating.”
¶26 	The 	CSRO 	Decision 	gave 	several 	examples 	of 	such
in-hearing conduct. First, “after being specifically directed that
such questioning was inappropriate,” Onysko nonetheless “[o]n
at least three occasions . . . objectively intimidated or unsettled a
witness by referring to the Fifth Amendment, or to the fact that
they were testifying under oath when there was no legitimate
reason to use such a question to verify their truthfulness or
credibility.”
¶27 	Second, in a motion to compel, DEQ’s counsel stated that
Onysko had requested a stay in discovery “in part to avoid
responding to the discovery requests.” In response, Onysko
wrote:
Grievant 	respectfully 	cautions 	[DEQ’s] 	Counsel
that if he persists in scurrilous attacks on Grievant,
[DEQ’s] Counsel will do so at peril of Utah Bar
complaint by Grievant alleging unethical conduct
by [DEQ’s] Counsel. [DEQ’s] Counsel has a history
of his being known in Utah legal circles in general,
and known to Grievant in particular, for being
untethered to the truth, [12] and Grievant will not
12. The emphasis was supplied by Onysko. The CSRO Decision
noted that Onysko “did not provide, and has not yet provided,
any 	evidence 	whatsoever 	in 	support 	of 	this 	remarkable
accusation” but commented “that throughout th[e] proceeding,
[DEQ’s counsel] has acted as an honest, ethical, and capable
member of the bar.”

Onysko v. DEQ
20180984-CA 	18 	2020 UT App 51
abide 	unchallengingly 	by 	such 	conduct 	in
Grievant’s matters again.
Grievant demands that [DEQ’s] Counsel retract his
scurrilous allegation that Grievant requested a stay
in 	discovery 	in 	this 	matter 	“in 	part 	to 	avoid
responding to the discovery requests.”
And throughout the rest of Onysko’s response to DEQ’s motion
to 	compel, 	he 	referred 	to 	DEQ’s 	counsel’s 	“willful 	deceit,”
“misrepresentation,” 	“untruthfulness,” 	and 	“vacuous, 	inane
argument.” 	He 	also 	“continued 	to 	allege 	professional
misconduct and untruthfulness by [DEQ’s] counsel throughout
this proceeding.”
¶28 	Third, 	Onysko 	exhibited 	similar 	behavior 	toward 	the
Hearing 	Officer. 	In 	various 	motions 	filed 	throughout 	the
proceeding, 	Onysko 	“stated 	that 	the 	Hearing 	Officer
‘shamelessly 	discounted 	written 	testimony,’” 	that 	the
“proceeding was ‘rife with judicial error,’ that the Hearing
Officer’s 	conduct 	was 	‘illegitimate,’ 	and 	that 	the 	Hearing
Officer’s 	‘specious 	argument’ 	was 	‘patently 	false 	and
illegitimate.’” Onysko also claimed that “a reasonable person
would infer poorly-veiled Hearing Officer bias,” and that he “is
appalled that the Hearing Officer has abused his authority in
concocting 	fake 	legal 	arguments 	with 	no 	foundation 	in
recognized precedent.” And during the evidentiary hearing,
Onysko “made multiple references to the certainty and outcome
of his appeal if he did not prevail.”
¶29 	The 	CSRO 	Decision 	thus 	concluded 	that 	Onysko’s
“objectively intimidating” “conduct throughout th[e] proceeding
demonstrates 	that 	his 	preferred 	method 	to 	address 	a
difference of opinion is to threaten, intimidate, belittle, and
otherwise attack the other party” and that such conduct would
“tend to adversely affect the morale of coworkers and others.”
The 	CSRO 	Decision 	further 	stated 	that 	in 	exhibiting 	such

Onysko v. DEQ
20180984-CA 	19 	2020 UT App 51
conduct 	in 	“a 	formal 	proceeding 	intended 	to 	determine
whether 	or 	not 	he 	returns 	to 	work 	for 	[DEQ],” 	Onysko
“demonstrated a reasonable likelihood that this conduct would
also extend to supervisors and superiors.” The CSRO Decision
concluded that Onysko’s “conduct in the hearing thus tends to
corroborate the testimony of [DEQ] witnesses,” and based on the
corroborated testimony, the Hearing Officer determined that
“[s]ubstantial evidence supports the conclusion that [Onysko’s]
conduct adversely affected [DEQ] customers, productivity, and
morale.”
¶30 	After next determining that DEQ’s “decision to terminate
[Onysko] was neither disproportionate nor inconsistent” and
“was not an abuse of its discretion,” the CSRO Decision affirmed
DEQ’s termination of Onysko’s employment. Onysko now seeks
judicial review of the CSRO Decision. See Utah Code Ann.
§ 67-19a-406(6) (LexisNexis Supp. 2019).
ISSUES AND STANDARDS OF REVIEW
¶31 	Our review of the CSRO Decision is governed by the Utah
Administrative Procedures Act (UAPA). See Utah Code Ann.
§ 63G-4-403(1) (LexisNexis 2019); id. § 67-19a-406(6) (Supp. 2019);
Macfarlane v. Career Service Review Office, 2019 UT App 133, ¶ 29,
450 P.3d 87. Under UAPA, we may grant relief only if the
petitioner “has been substantially prejudiced” by certain errors
enumerated in Utah Code section 63G-4-403(4). Unless section
63G-4-403(4) incorporates a specific standard of review, the
standard of review for alleged agency error “depend[s] on the
type of action in question,” and “we are free to apply our
traditional approach for selecting an appropriate standard of
review,” 	depending 	on 	whether 	the 	agency 	action 	“can 	be
characterized as a question of law, a question of fact, or a mixed
question of law and fact.” Murray v. Utah Labor Comm’n, 2013 UT
38, ¶¶ 21–22, 308 P.3d 461.

Onysko v. DEQ
20180984-CA 	20 	2020 UT App 51
¶32 	Onysko raises four claims of error that we address on
the merits.13 He first takes issue with the CSRO Decision’s
discussion of his conduct during the seven-day hearing. He
argues that the Hearing Officer relied on improper propensity
evidence to infer “that because [he] supposedly acted a certain
way during the Hearing itself, it is likely he acted that same way
during 	the 	time 	at 	issue 	in 	the 	Hearing.” 	For 	the 	reasons
discussed in Section I, we agree with DEQ that the references are
better characterized as an explanation of the Hearing Officer’s
resolution 	of 	conflicting 	evidence 	concerning 	the 	effect 	of
Onysko’s misconduct on DEQ morale and productivity—and
not as propensity evidence.14
13. Onysko also argues that the Hearing Officer erroneously
concluded 	that 	his 	“termination 	was 	proportionate 	and
consistent” 	but 	only 	after 	“all 	of 	the 	Hearing 	Officer’s
improper findings and conclusions” are disregarded. Because
his other claims of error are unavailing, we do not reach this
issue.
14. 	By 	characterizing 	the 	Hearing 	Officer’s 	references 	to
his 	in-hearing 	conduct 	as 	improper 	propensity 	evidence,
Onysko 	implicitly 	invokes 	rule 	404 	of 	the 	Utah 	Rules 	of
Evidence. 	Indeed, 	the 	cases 	Onysko 	relies 	on 	in 	making
this argument specifically address propensity evidence in the
context of rule 404. We note that level 4 proceedings at the
CSRO are not subject to “[t]he technical rules of evidence . . .
as observed in the courts of law, . . . except for the rules of
privilege as recognized by law and those specific references to
the rules of evidence and procedure as set forth in the UAPA.”
Utah Admin. Code R137-1-18(3). See Frito–Lay v. Utah Labor
Comm’n, 2009 UT 71, ¶¶ 17–18, 222 P.3d 55 (stating that “[w]e
are powerless to impose our court rules,” such as our rules
of procedure and evidence, “on proceedings outside of state
(continued…)

Onysko v. DEQ
20180984-CA 	21 	2020 UT App 51
¶33 	It 	is 	well 	recognized 	that 	“when 	the 	evidence 	is
disputed, 	. 	. 	. 	we 	defer 	to 	the 	[agency’s] 	assessment 	of
credibility 	and 	resolution 	of 	conflicting 	evidence.” 	Dinger
v. Department of Workforce Services, 2013 UT App 59, ¶ 20,
300 	P.3d 	313 	(quotation 	simplified). 	See 	also 	Provo 	City 	v.
Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242 (“We
defer 	to 	an 	administrative 	agency’s 	findings 	because 	when
reasonably conflicting views arise, it is the agency’s province
to 	draw 	inferences 	and 	resolve 	these 	conflicts.”) 	(quotation
simplified); Johnson v. Department of Emp’t Sec., 782 P.2d 965,
972 n.9 (Utah Ct. App. 1989) (“[T]he agency trier of fact has
the 	same 	discretion 	as 	a 	trial 	judge 	in 	determining 	the
credibility 	of 	evidence.”). 	In 	light 	of 	this 	well-established
principle 	and 	legislation 	permitting 	officers 	presiding 	over
formal adjudicative proceedings to “use [their] experience . . . to
(…continued)
and local courts,” including “[a]dministrative adjudications”).
And UAPA is entirely silent as to this particular evidentiary
question. 	See 	generally 	Utah 	Code 	Ann. 	§§ 	63G-4-206, 	-208
(LexisNexis 2019). But Onysko’s argument before this court
omits any discussion of how his implicit rule 404 argument
would nonetheless apply to level 4 proceedings. And we are
doubtful that it would. Cf. Frito–Lay, 2009 UT 71, ¶ 18 (“In
the event that the legislature and the administrative agency
are 	both 	silent 	as 	to 	the 	procedure 	that 	governs 	a
particular situation, we still may not impose our rules to fill the
gap.”). Thus, even if we agreed with Onysko that the CSRO
Decision’s references to his in-hearing conduct amounted to
propensity evidence, his argument would still ultimately prove
unavailing because he has not met his burden of persuasion as
concerns that question. See Allen v. Friel, 2008 UT 56, ¶ 9, 194
P.3d 903 (“An appellate court is not a depository in which a
party 	may 	dump 	the 	burden 	of 	argument 	and 	research.”)
(quotation simplified).

Onysko v. DEQ
20180984-CA 	22 	2020 UT App 51
evaluate 	the 	evidence,” 	Utah 	Code 	Ann. 	§ 63G-4-208(2)
(LexisNexis 2019), we conclude that “the Legislature . . . has
delegated discretion to the agency within the meaning of section
63G-4-403(4)(h)(i)” 	to 	resolve 	conflicting 	evidence, 	and 	we
therefore review this issue for an abuse of discretion, Murray,
2013 UT 38, ¶ 30.
¶34 	“[T]he appellate court will review . . . [a] discretionary
decision 	for 	an 	‘abuse 	of 	discretion’ 	to ensure 	that 	it 	falls
within 	the 	bounds 	of 	reasonableness 	and 	rationality.
Reasonableness, 	in 	turn, 	is 	essentially 	a 	test 	for 	logic 	and
completeness rather than the correctness of the decision.” Id.
¶ 32. But our review of this first issue does not end at this.
Because “we can grant relief under [section 63G-4-403(h)(i)] only
after reviewing the [CSRO’s] determination of fact for a lack of
substantial 	evidence,” 	id. 	¶ 	19, 	our 	review 	additionally
incorporates 	a 	substantial-evidence 	standard. 	“Substantial
evidence 	is more than a mere scintilla 	of evidence though
something 	less 	than 	the 	weight 	of 	the 	evidence, 	and 	the
substantial evidence test is met when a reasonable mind might
accept as adequate the evidence supporting the decision.” Foye v.
Labor Comm’n, 2018 UT App 124, ¶ 16, 428 P.3d 26 (quotation
simplified).
¶35 	Onysko’s 	next 	two 	arguments 	implicate 	the 	Due
Process Clause of the Fourteenth Amendment. He contends
that the CSRO Decision violated his due process rights when
it (A) upheld DEQ’s decision on reasons not communicated
to Onysko 	prior 	to 	termination 	and 	(B) 	concluded 	that 	he
received 	meaningful 	pre-termination 	notice. 	“Questions
regarding whether an administrative agency has afforded a
petitioner due process in its hearings are questions of law,” Lopez
v. Career Service Review Board, 834 P.2d 568, 571 (Utah Ct. App.
1992), 	and 	fall 	within 	the 	purview 	of 	Utah 	Code 	section
63G-4-403(4)(d), meaning they are reviewed without deference,
for correctness.

Onysko v. DEQ
20180984-CA 	23 	2020 UT App 51
¶36 	Onysko’s last argument implicates the residuum rule15 by
assailing several of the Hearing Officer’s findings of fact on the
ground 	that 	they 	are 	exclusively 	based 	on 	hearsay. 	This
allegation of error likewise falls within the scope of section
63G-4-403(4)(d). 	See 	Prosper, 	Inc. 	v. 	Department 	of 	Workforce
Services, 2007 UT App 281, ¶ 8, 168 P.3d 344. Thus, “[w]hether
the [CSRO] erroneously applied the residuum rule is a question
of law, which we review for correctness.” BMS Ltd. 1999, Inc. v.
Department of Workforce Services, 2014 UT App 116, ¶ 2, 327 P.3d
582. Additionally, “[t]he determination of 	whether evidence
constitutes hearsay is a question of law that we review” de novo.
Prosper, 2007 UT App 281, ¶ 8.
ANALYSIS
I. Onysko’s In-hearing Conduct
¶37 	Onysko 	argues 	that 	the 	CSRO 	Decision 	erroneously
relied on his conduct throughout the course of the seven-day
hearing 	to 	substantiate 	DEQ’s 	allegation 	that 	his 	conduct
negatively impacted DEQ morale and productivity. Although
Onysko 	frames 	the 	CSRO 	Decision’s 	use 	of 	his 	in-hearing
conduct as an improper propensity inference, we agree with
DEQ that the conduct was used in a more limited way, i.e., to
help resolve conflicting evidence by confirming the considerable
testimony 	offered 	on 	the 	subject—and 	not 	as 	primary
substantive evidence.
15. 	“The 	residuum 	rule 	requires 	that 	an 	administrative
[agency’s] findings of fact be supported by a residuum of legal
evidence competent in a court of law even if the [agency] has
received and considered evidence of a lesser quality.” Aura Spa
& Boutique v. Department of Workforce Services, 2017 UT App 152,
¶ 11, 402 P.3d 813 (quotation simplified).

Onysko v. DEQ
20180984-CA 	24 	2020 UT App 51
¶38 	It was only after the Hearing Officer reviewed in the
CSRO 	Decision 	DEQ’s 	evidence 	offered 	in 	support 	of 	the
contention 	that 	Onysko’s 	conduct 	negatively 	impacted
productivity and morale that the Hearing Officer stated that
Onysko’s “conduct throughout this proceeding also tends to
corroborate the testimony of [DEQ’s] witnesses and supports
[DEQ’s] assessment of [Onysko’s] conduct and its effect on
[DEQ].” With this preface, the CSRO Decision then proceeded to
discuss Onysko’s “objectively intimidating” behavior toward
witnesses, DEQ’s counsel, and even the Hearing Officer. And
although 	the 	CSRO 	Decision 	did 	state 	that 	“[i]f 	[Onysko]
habitually indulged in such conduct in a formal proceeding
intended to determine whether or not he returns to work for
[DEQ], it is likely that he did no less in his everyday work
environment,” this statement was immediately followed, with
our emphasis, by the conclusion that Onysko’s “conduct in the
hearing 	thus 	tends 	to 	corroborate 	the 	testimony 	of 	[DEQ]
witnesses 	as 	to 	the 	disruptive, 	morale-breaking, 	and
intimidating nature of [Onysko’s] conduct.” Based on this, we
agree 	with 	DEQ 	that 	the 	Hearing 	Officer 	used 	Onysko’s
in-hearing conduct only as confirmation of the considerable
testimony 	already 	offered 	by 	DEQ’s 	witnesses 	and 	not 	for
propensity purposes. Our review is therefore limited to whether
the 	Hearing 	Officer 	abused 	his 	discretion 	in 	considering
Onysko’s in-hearing conduct.
¶39 	UAPA expressly authorizes officers presiding over formal
adjudicative proceedings to rely on their own experience when
evaluating evidence. Utah Code Ann. § 63G-4-208(2) (LexisNexis
2019). Here, the Hearing Officer observed and interacted with
Onysko for a significant period of time (as opposed to a more
typical shorter hearing) and did not premise any of the findings
solely on those observations. Rather, the Hearing Officer used
the observations as confirmation of DEQ’s evidence with respect
to Onysko’s difficult manner and his negative effect on morale
and productivity, which was a matter of disagreement between

Onysko v. DEQ
20180984-CA 	25 	2020 UT App 51
the parties that the Hearing Officer was tasked with resolving.
See 	Utah 	Admin. 	Code 	R137-1-21(3)(a). 	Thus, 	under 	the
circumstances of this case, the Hearing Officer’s consideration of
Onysko’s 	in-hearing 	conduct 	fell 	“within 	the 	bounds 	of
reasonableness 	and 	rationality.”16 	See 	Murray 	v. 	Utah 	Labor
Comm’n, 2013 UT 38, ¶ 32, 308 P.3d 461.
II. Due Process
¶40 	“Where state or local law establishes a public employee’s
right to continued employment absent cause for discharge, that
employee holds a property interest in continued employment
that is protected by the Due Process Clause of the Fourteenth
Amendment.” Becker v. Sunset City, 2013 UT 51, ¶ 13, 309 P.3d
223. It is undisputed that Onysko, a level III environmental
engineer with career service status, held such a property interest
in his continued employment with DEQ. See Utah Code Ann.
§ 67-19-18(1) (LexisNexis 2016).
¶41 	“The essential requirements” of due process “are notice
and an opportunity to respond—the opportunity to present
reasons, either in person or in writing, why proposed action
16. Concerning the second portion of our review, i.e., whether
substantial evidence supported the Hearing Officer’s findings of
fact 	regarding 	Onysko’s 	conduct, 	see 	Murray 	v. 	Utah 	Labor
Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461, it is clear that “a
reasonable 	mind 	might 	accept 	as 	adequate 	the 	evidence
supporting the” CSRO Decision’s relevant findings, see Foye v.
Labor Comm’n, 2018 UT App 124, ¶ 16, 428 P.3d 26 (quotation
simplified). 	DEQ 	presented 	several 	witnesses 	who 	testified
regarding Onysko’s abusive conduct and its effect on DEQ
morale and productivity, and “[t]he consensus of the witnesses
was that [DEQ] morale was poor, that the poor morale was due
to [Onysko’s] conduct, and that [DEQ] productivity and morale
improved after [Onysko] left.”

Onysko v. DEQ
20180984-CA 	26 	2020 UT App 51
should not be taken.” Larsen v. Davis County, 2014 UT App 74,
¶ 12, 	324 	P.3d 	641 	(quotation 	simplified). 	In 	other 	words,
“minimum due process entitles an employee to oral or written
notice of the charges, an explanation of the employer’s evidence,
and an opportunity for the employee to present his or her side of
the story in something less than a full evidentiary hearing.”
Lucas v. Murray City Civil Service Comm’n, 949 P.2d 746, 753 (Utah
Ct. 	App. 	1997) 	(quotation 	simplified). 	The 	purpose 	of 	the
pre-termination hearing is to “serve[] as an initial check against
mistaken 	decisions—essentially, 	a 	determination 	of 	whether
there are reasonable grounds to believe that the charges against
the employee are true and support the proposed action,” Larsen,
2014 UT App 74, ¶ 16 (quotation simplified), and the notice
should be sufficiently specific so as to provide the employee an
adequate 	opportunity 	to 	prepare 	for 	and 	respond 	to 	the
employer’s allegations in the pre-termination hearing, cf. Fierro v.
Park City Mun. Corp., 2012 UT App 304, ¶ 19, 295 P.3d 696
(providing 	that 	the 	same 	is 	required 	for 	post-termination
hearings).
¶42 	To successfully challenge a termination on due process
grounds, the employee must not only identify the procedural
errors that deprived the employee of due process but must also
“establish how these procedural errors were harmful,” Lucas, 949
P.2d at 755, i.e., that there is a “reasonable likelihood that the
error 	affected 	the 	outcome 	of 	the 	proceedings,”17 	Smith 	v.
17. Onysko’s reliance on Salt Lake City Corp. v. Gallegos, 2016 UT
App 122, 377 P.3d 185, for the proposition that an appellate court
“must set aside the [reviewing agency’s] decision if it strays from
considering the charges contained in the termination notice,” id.
¶ 11 	(emphasis 	added) 	(quotation 	otherwise 	simplified), 	is
misplaced. This case, unlike Gallegos, is governed by UAPA, see
id. ¶ 8, which authorizes appellate courts to grant relief only
when the petitioner “has been substantially prejudiced” by an
(continued…)

Onysko v. DEQ
20180984-CA 	27 	2020 UT App 51
Department of Workforce Services, 2010 UT App 382, ¶ 17, 245 P.3d
758 (quotation simplified). See Utah Code Ann. § 63G-4-403(4)
(LexisNexis 2019) (permitting an appellate court to grant relief
only 	if 	it 	determines 	the 	petitioner 	“has 	been 	substantially
prejudiced” by certain enumerated errors).
¶43 	Onysko raises two instances of alleged violations of his
due process rights: (A) when the CSRO Decision relied on
reasons not communicated to him prior to his dismissal to
uphold 	DEQ’s 	decision 	and 	(B) when 	the 	CSRO 	Decision
concluded that he had received adequate pre-termination notice
of the reasons for his dismissal. We address each contention in
turn.
A. 	Reliance on Reasons Not Communicated to Onysko Prior
to Termination
¶44 	Onysko 	argues that in 	affirming 	his termination, 	the
Hearing Officer erred in “expressly rel[ying] on reasons of which
[he] was given no notice prior to being terminated.” Onysko
argues that because DEQ was required to “notify [him] in
writing of the specific reasons for the proposed dismissal,” see
Utah Admin. Code R477-11-2(2)(a), and because “[t]he only
written notice of termination reasons [he] received before being
terminated was the Intent to Dismiss[,] . . . the Hearing Officer
was 	limited 	to 	considering 	evidence 	respecting 	the 	reasons
offered in the ‘four corners’” of the letter.
¶45 	The 	specific reasons 	for 	his 	termination 	that 	Onysko
challenges are (1) that he left a copy of his GRAMA requests on
Supervisor’s desk; (2) that he failed to follow the 2016 Warning’s
(…continued)
enumerated error, Utah Code Ann. § 63G-4-403(4) (LexisNexis
2019). Accordingly, UAPA, and not Gallegos, governs our review
in this case.

Onysko v. DEQ
20180984-CA 	28 	2020 UT App 51
six directives; (3) that his written comments to his performance
evaluation 	caused 	Supervisor 	“intimidation, 	humiliation, 	or
unwarranted 	distress”; 	(4) 	the 	fifth, 	sixth, 	and 	seventh
allegations addressed in the Investigation Report; (5) that morale
and productivity at DEQ had improved after he left DEQ;
(6) that he “entered coworkers’ project files, despite not having
review authority over those projects or any other legitimate need
to do so”; and (7) that he told DHRM Representative that “he
was going to file a criminal complaint regarding the manner in
which the Intent to Reprimand . . . had been delivered to him.”
We decline to disturb the CSRO Decision on any of these
grounds.18
¶46 	First, Onysko argues that the Hearing Officer’s reliance
on his unnecessary delivery of GRAMA requests to Supervisor
was improper because he “had no pre-termination notice of
these 	allegations.” 	But 	the 	Intent 	to 	Dismiss 	did 	discuss
the Investigation Report’s substantiation of the allegation that
he 	“used 	the 	normally 	unobjectionable 	activities 	of 	filing
GRAMA 	requests 	to 	intentionally 	intimidate 	and 	cause
unwarranted distress to . . . [S]upervisor.” Onysko has not
argued 	how 	this 	notice 	prevented 	him 	from 	sufficiently
preparing for his meeting with Executive Director on August 1,
2017, 	which 	served 	as 	the 	pre-termination 	hearing 	for 	due
process 	purposes. 	See 	Utah 	Admin. 	Code 	R477-11-2(2)(c).
Indeed, although the Intent to Dismiss did not specifically name
the act of delivering copies of the requests to Supervisor, Onysko
18. Onysko also challenges the CSRO Decision’s discussion of his
in-hearing conduct. But as discussed in Section I, the Hearing
Officer did not exceed his discretion in considering Onysko’s
in-hearing conduct, because the conduct was corroborative of
other evidence that Onysko negatively affected DEQ morale and
productivity—a 	ground 	for 	termination 	that 	the 	Intent 	to
Dismiss did include.

Onysko v. DEQ
20180984-CA 	29 	2020 UT App 51
had actual notice of the specific allegation by virtue of his
participation in the underlying investigation and incorporation
by reference of the allegation via the reference in the Intent to
Dismiss to the Investigation Report.19 Supervisor alleged Onysko
“left a copy of the GRAMA requests on her desk,” and Onysko
had an opportunity to reply to the allegation. Onysko has not
claimed 	that 	he 	was 	caught 	unaware 	that 	the 	unnecessary
delivery of the GRAMA requests to Supervisor formed the basis
of the allegation that he used the requests “to intentionally
intimidate and cause unwarranted distress to . . . [S]upervisor”
and that he was unable to adequately respond to the allegation
19. Citing rule R477-11-2(2)(a)–(b) of the Utah Administrative
Code, 	Onysko 	argues 	that 	“independent 	of 	the 	minimum
requirements of due process, [he] was statutorily entitled to
written 	notification 	of 	the 	specific 	reasons 	for 	his 	proposed
termination 	and 	time 	to 	respond 	before 	that 	discipline 	was
imposed.” Although he is generally correct in this respect, this
court 	has already 	held 	that 	failure 	to 	strictly 	comply 	with
procedure 	does 	not 	automatically 	equate 	to 	a 	due 	process
violation. In Lucas v. Murray City Civil Service Commission, 949
P.2d 746 (Utah Ct. App. 1997), this court held that although the
employer “failed to strictly comply with its procedure” by not
providing 	the 	employee 	with 	“written 	notification 	of 	the
allegations,” 	“the 	fundamental 	requirements 	of 	due 	process
were met” because the employee “did in fact have [actual] notice
of the pending charges and was able to respond to the charges
before the termination was implemented” and “he was afforded
a pretermination hearing in which he specifically addressed each
charge and the evidence against him.” Id. at 754–55 (quotation
simplified). 	Ultimately, 	“the 	essential 	requirements” 	of 	due
process remain “notice and an opportunity to respond.” Larsen v.
Davis County, 2014 UT App 74, ¶ 12, 324 P.3d 641 (quotation
simplified). These requirements were satisfied in the case at
hand.

Onysko v. DEQ
20180984-CA 	30 	2020 UT App 51
during his meeting with Executive Director. See Lucas, 949 P.2d
at 755. Accordingly, this allegation of a due process violation
fails. See Hugoe v. Woods Cross City, 2013 UT App 278, ¶ 9, 316
P.3d 979 (concluding petitioner received due process because he
“had actual notice of the basis for the pre-disciplinary hearing,
. . . failed to adequately allege any harm resulting from any
deficiencies 	in 	the 	written 	notice, 	and 	was 	afforded 	a
pre-disciplinary hearing in order to respond to the allegations
against him”).
¶47 	Second, Onysko challenges the Hearing Officer’s finding
that he “‘ultimately failed to follow’ the ‘six specific directions’
in the 2016 Warning.” But the Hearing Officer did not use this
finding as a ground for termination. Rather, he specifically
stated 	that 	Onysko’s 	“prior 	work 	record, 	including 	prior
disciplinary 	actions, 	is 	relevant 	for 	the 	purpose 	of 	either
mitigating or sustaining an agency’s disciplinary decision,” and
he discussed this particular finding in that context. See Utah
Admin. 	Code 	R137-1-21(9) 	(“In 	those 	proceedings 	where 	a
disciplinary penalty is at issue, the past employment record of
the employee is relevant for purposes of either mitigating or
sustaining the penalty when substantial evidence supports an
agency’s allegations.”). Because his failure to abide by the 2016
Warning’s 	six 	directives 	did 	not 	form 	the 	basis 	for 	his
termination, the finding did not implicate Onysko’s due process
rights.20 Cf. Hugoe, 2013 UT App 278, ¶ 10 (holding that the
20. Onysko’s reliance on Fierro v. Park City Municipal Corp., 2012
UT App 304, 295 P.3d 696, is misplaced. Fierro set aside an
appeal board’s decision upholding termination on the ground
that the board “purported to uphold the termination” based on
instances of misconduct not discussed in the Termination Memo,
id. ¶ 27, as opposed to the pre-termination notice, and remanded
for the board “to consider whether the one ground that fell
within the scope of the Termination Memo . . . was sufficient to
(continued…)

Onysko v. DEQ
20180984-CA 	31 	2020 UT App 51
appeal board did not violate due process when it heard evidence
concerning 	an 	incident 	that 	did 	not 	appear 	in 	the
pre-termination notice because the board did not rely on that
incident and had an independent, properly-noticed ground upon
which to uphold the petitioner’s termination).
¶48 	And 	in 	any 	event, 	even 	if 	the 	Hearing 	Officer 	had
considered Onysko’s failure to follow the six directives as a basis
to uphold termination, such action would have been proper. The
Intent 	to 	Dismiss 	did 	base 	its 	recommendation 	to 	dismiss
Onysko on, among other things, the 2016 Warning. The letter
further stated that “[t]he letters of warning and reprimand,”
including the 2016 Warning, “were issued in a genuine effort to
assist [Onysko] in modifying [his] behavior so that [he] could
successfully carry out the mission and vision of [DDW],” but
“[d]espite 	performance 	coaching 	and 	escalating 	disciplinary
actions, [his] behavior ha[d] not improved.” Thus Onysko had
an adequate opportunity to prepare for and respond to his
(…continued)
warrant Fierro’s termination,” id. ¶ 30. Here, the Hearing Officer
expressly did not consider Onysko’s failure to abide by the six
directives as a ground for termination. Additionally, as concerns
Onysko’s other arguments, the Hearing Officer did not uphold
his termination based on the fifth, sixth, and seventh allegations
discussed in the Investigation Report but considered them as
corroborating evidence of grounds set forth in the Intent to
Dismiss. See infra ¶ 51. And similarly, the Hearing Officer
considered evidence of improvement of productivity and morale
in Onysko’s absence as confirmatory of DEQ’s allegation in the
Intent to Dismiss that he negatively affected productivity and
morale and not as a ground independent of this allegation. See
infra ¶ 52. Moreover, because the Termination Letter did discuss
the challenged corroborating evidence, Onysko was on notice to
prepare to discuss that evidence at the CSRO hearing.

Onysko v. DEQ
20180984-CA 	32 	2020 UT App 51
failure to follow the 2016 Warning’s six directives in his meeting
with Executive Director.21
¶49 	Third, Onysko argues that the Hearing Officer violated
his 	due 	process 	rights 	when 	he 	determined 	that 	Onysko’s
written comments in response to his performance evaluation
caused Supervisor “intimidation, humiliation, or unwarranted
distress.” Although the Intent to Dismiss identified a threat to “a
supervisor over a performance evaluation,” Onysko argues that
because the Intent to Dismiss referenced the Investigation Report
in its discussion of this allegation and the Investigation Report
substantiated that he verbally threatened Supervisor during a
meeting and not by means of his written comments, he received
notice only of the verbal threat. The Due Process Clause does not
support such fine slicing and dicing. Onysko’s written and
verbal 	threats 	to 	Supervisor 	in 	response 	to 	the
room-for-improvement comment are so intertwined that we are
doubtful that such 	a 	distinction 	is meaningful. In 	fact, the
Investigation Report based its substantiation of the verbal threat
“on 	a 	plain 	reading 	of 	the 	actual 	comments 	put 	into 	the
performance evaluation in question,” 	concluding that “[t]he
inclusion of those accusations in written form grants a great deal
of credibility to [Supervisor’s] claim that the discussion in June
2016 included this content.”22
21. And as a matter of fact, the Termination Letter discussed that
during the meeting with Executive Director, Onysko objected “to
the issuance of [the 	2016] Warning.” This objection further
supports the conclusion that Onysko was able to prepare to
address the 2016 Warning and its six directives during the
meeting.
22. Although Onysko did not obtain a copy of the Investigation
Report until October 2017—well after his August 1, 2017 meeting
with 	Executive 	Director—Onysko 	has 	not 	alleged 	that 	the
(continued…)

Onysko v. DEQ
20180984-CA 	33 	2020 UT App 51
¶50 	And in any event, Onysko has not explained how this
alleged error was harmful. Although the Hearing Officer did
discuss the impropriety of his written comments in the CSRO
Decision, he also specifically found that Onykso “made similar
comments 	in 	his 	meeting 	with 	[Supervisor] 	discussing 	the
evaluation.” 	It 	is 	unlikely 	that 	the 	Hearing 	Officer 	would
consider certain comments “highly inappropriate” only when
written but not when verbalized. As such, it is similarly unlikely
the outcome of the proceeding would have been different had
the Hearing Officer considered the verbal threats instead of their
written counterpart as a ground for termination. See Smith v.
Department of Workforce Services, 2010 UT App 382, ¶ 17, 245 P.3d
758.
¶51 	Fourth, 	Onysko 	challenges 	the 	CSRO 	Decision’s
discussion of the fifth, sixth, and seventh allegations addressed
by 	the 	Investigation 	Report, 	i.e., 	those 	allegations 	the
Investigation Report concluded, although having occurred, did
not 	amount 	to 	abusive 	conduct. 	But 	the 	Hearing 	Officer
expressly stated in the CSRO Decision that he considered the
fifth, 	sixth, 	and 	seventh 	allegations 	as 	“no 	more 	than
corroboration of other evidence of [Onysko’s] conduct” and not
as 	independent 	bases 	supporting 	his 	termination. 	See 	Utah
Admin. 	Code 	R137-1-21(1)(g) 	(authorizing 	officers 	presiding
over formal adjudicative proceedings to “admit evidence that
has reasonable and probative value”). Cf. Becker v. Sunset City,
2013 UT 51, ¶ 15, 309 P.3d 223 (“[An] appeal board may consider
(…continued)
deficiency in any way affected his ability to discuss the Intent to
Dismiss’s recommendation to terminate his employment with
Executive Director. And the Investigation Report was provided
to 	Onysko 	well 	in 	advance 	of 	the 	CSRO 	hearing, 	thereby
permitting 	him 	to 	adequately 	prepare 	for 	that 	dispositive
proceeding.

Onysko v. DEQ
20180984-CA 	34 	2020 UT App 51
. . . evidence related to the grounds for discharge for which the
employee has received proper notice.”) (emphasis added). And
although the Intent to Dismiss does not specifically reference the
allegations, the Termination Letter does discuss them, thereby
providing Onysko with notice and an opportunity to prepare to
address the allegations during the CSRO hearing. In sum, the
evidence was relevant to DEQ’s allegations that Onysko engaged
in abusive conduct, he received sufficient notice to allow him to
prepare to address the allegations in the formal adjudicative
proceeding, and he has not asserted that the Intent to Dismiss’s
failure to mention the allegations affected his ability to present
his case during the August 1, 2017 meeting with Executive
Director. Thus, the Hearing Officer did not violate Onysko’s due
process 	rights 	in 	treating 	the 	allegations 	as 	corroborative
evidence.
¶52 	Fifth, Onysko contends that because the Intent to Dismiss
did not mention that productivity and morale had improved
since he had been placed on administrative leave, the Hearing
Officer violated due process when he relied on “[t]he consensus
of 	the 	witnesses 	. 	. 	. 	that 	[DEQ] 	productivity 	and 	morale
improved after [Onysko] left.” This argument fails for much the
same reason as Onysko’s fourth argument. The improvement to
morale and productivity was relevant to DEQ’s allegation that
Onysko’s misconduct negatively affected the same. The CSRO
Decision did not discuss this evidence 	in 	terms of a new,
independent ground to uphold his dismissal. And although the
Intent to Dismiss did not mention the improvement, it devoted a
significant portion of its discussion to the negative impacts of
Onysko’s conduct on productivity and morale. Onysko has also
not argued that the omission in the Intent to Dismiss prevented
him from meaningfully presenting his case during his meeting
with Executive Director, and the Termination Letter did discuss
the improvement to DEQ productivity and morale after he left,
thereby providing sufficient notice to enable him to prepare to
address the evidence during the CSRO hearing.

Onysko v. DEQ
20180984-CA 	35 	2020 UT App 51
¶53 	Sixth, Onysko assails the Hearing Officer’s finding that he
“entered coworkers’ project files, despite not having review
authority over those projects or any other legitimate need to do
so.” He contends that although the Intent to Dismiss stated that
he 	“repeatedly 	researched 	and 	criticized 	other 	employees’
projects 	and 	accused 	co-workers 	of 	incompetence,” 	“no
reasonable person could glean from such statement that [he] was
being accused of entering his fellow engineers’ project files
without authorization.” But even assuming, without deciding,
that Onysko is correct in this regard, this argument is unavailing
because Onysko has not shown a “reasonable likelihood that the
error affected the outcome of the proceedings.” See Smith, 2010
UT App 382, ¶ 17 (quotation simplified).
¶54 	The 	CSRO 	Decision 	briefly 	mentioned 	Onysko’s
unauthorized entry into coworkers’ work files as evidence to
support its conclusion that “[s]ubstantial evidence supports the
conclusion that [Onysko’s] conduct adversely affected [DEQ]
customers, 	productivity, 	and 	morale.” 	This 	conclusion 	was
further supported by evidence that Onysko’s coworkers “were
‘on 	guard’ 	against 	[him] 	and 	regularly 	took 	extra 	time 	to
over-document their work,” that they “were concerned that they
would be the next target of [his] allegations of unprofessional
conduct 	or 	violation 	of 	the 	professional 	engineers’ 	code 	of
ethics,” that “productivity and morale improved after [he] left
[DEQ],” 	and 	that 	his 	“usual 	reaction 	to 	any 	criticism 	or
disagreement was to threaten the other person’s professional
license.”23 And the Intent to Dismiss gave Onysko adequate
notice that the effect of his misconduct on DEQ morale and
productivity was one of the reasons for his dismissal, discussing
23. Claiming residuum rule violations, Onysko argues that the
Hearing Officer erred in considering much of this additional
evidence. But, as discussed in Section III, those claims of error
are likewise unavailing.

Onysko v. DEQ
20180984-CA 	36 	2020 UT App 51
in detail how Onysko’s conduct “caused burdensome delays in
[DDW] processes and damage to the morale within [DDW].”
Thus, because his alleged unauthorized entry into coworkers’
files was probative of the effect of his misconduct on DEQ
productivity and morale—a ground for termination of which
both the Intent to Dismiss and Termination Letter provided
notice—and 	because 	ample 	other 	evidence 	supported 	this
ground, 	it 	is 	unlikely 	the 	CSRO 	Decision 	would 	not 	have
substantiated this ground for termination had the challenged
evidence not been before the Hearing Officer.
¶55 	Lastly, Onysko argues he was deprived of due process
when 	the 	Hearing 	Officer 	found 	that 	he 	told 	DHRM
Representative 	“he 	was 	going 	to 	file 	a 	criminal 	complaint
regarding the manner in which the [Intent to Reprimand] had
been delivered to him.” He contends that the Intent to Dismiss’s
statement that he “threatened to file criminal charges in response
to standard management practices” “is not clear and specific as
required,” because “[n]o reasonable person could glean from
such a statement that [he] was being accused of threatening to
file a criminal complaint about the manner in which he received
the Intent to Reprimand.” But he omits that the Intent to Dismiss
stated 	that 	the 	Investigation 	Report, 	with 	our 	emphasis,
“substantiated that [he] threatened to file criminal charges in
response to standard management practices.” Because the threat
was discussed in the context of the Investigation Report and
because Onysko had actual notice of that allegation by virtue of
his participation in the underlying investigation,24 we reject
Onysko’s contention that the notice was inadequate. See Hugoe v.
Woods Cross City, 2013 UT App 278, ¶ 9, 316 P.3d 979. The
24. 	Specifically, 	during 	the 	investigation, 	Onysko 	“denie[d]
making any threat or representation that he would file a criminal
complaint 	regarding 	issuance 	of 	the 	Intent 	to 	[Reprimand]
issued on December 16, 2016.”

Onysko v. DEQ
20180984-CA 	37 	2020 UT App 51
Hearing Officer therefore was not precluded from considering
that event as a ground supporting DEQ’s termination decision.
B. 	Pre-termination Notice
¶56 	Onysko argues that the Hearing Officer also erred in
concluding he received adequate pre-termination notice because
he “did not receive written, clear, and specific pre-termination
notice” 	of 	the 	above 	challenged 	evidence. 	But 	the 	Hearing
Officer 	specifically 	found 	that 	“during 	his 	August 	1, 	2017
meeting with [Executive Director], [Onysko] was able to present
his reasons and arguments why his employment should not be
terminated.” Indeed, during that two-hour meeting, Onysko was
represented 	by 	counsel 	and 	presented 	over 	162 	pages 	of
documents in support of his position. And in his petition for
judicial review, Onysko has not challenged the Hearing Officer’s
finding or even asserted that the alleged inadequacies in the
Intent to Dismiss in any way inhibited him from presenting his
case during the meeting.
¶57 	This finding is fatal to Onysko’s pre-termination due
process argument for two reasons. As an initial matter, the
finding is detrimental to his claim that the Intent to Dismiss was
not sufficiently specific. As discussed above, the notice need only
be sufficiently specific to provide the employee an adequate
opportunity 	to 	prepare 	for 	and 	respond 	to 	the 	employer’s
allegations in the pre-termination hearing. Cf. Fierro v. Park City
Mun. Corp., 2012 UT App 304, ¶ 19, 295 P.3d 696 (providing that
the same is required for post-termination hearings). It therefore
follows that if Onysko was able to adequately respond to DEQ’s
allegations during 	his meeting 	with 	Executive 	Director, 	the
Intent to Dismiss served as sufficiently specific notice of those
allegations.
¶58 	Onysko’s 	argument 	likewise 	fails 	because 	reviewing
courts may not set aside agency decisions absent a showing of
substantial 	prejudice. 	See 	Utah 	Code 	Ann. 	§ 	63G-4-403(4)

Onysko v. DEQ
20180984-CA 	38 	2020 UT App 51
(LexisNexis 2019). See also Lucas v. Murray City Civil Service
Comm’n, 949 P.2d 746, 755 (Utah Ct. App. 1997) (stating that the
employee must explain how the alleged “procedural errors were
harmful” in order to establish a due process violation). In other
words, Onysko was required to demonstrate “that there is [a]
reasonable likelihood that the error affected the outcome of the
proceedings.” Smith v. Department of Workforce Services, 2010 UT
App 382, ¶ 17, 245 P.3d 758 (quotation simplified). And Onysko
cannot make this showing without challenging the Hearing
Officer’s finding, which he has not done.
¶59 	Accordingly, for these reasons and those discussed in
Section II(A), we reject Onysko’s argument that the Intent to
Dismiss violated his due process rights.
III. Residuum Rule
¶60 	Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted.” Utah R. Evid. 801(c). Although
officers presiding over formal adjudicative proceedings “may
not exclude evidence solely because it is hearsay,” Utah Code
Ann. § 63G-4-206(1)(c) (LexisNexis 2019), they nonetheless may
not base a contested finding of fact “solely on hearsay evidence
unless that evidence is admissible under the Utah Rules of
Evidence,” id. § 63G-4-208(3). This principle has come to be
known 	as 	the 	residuum 	rule. 	See 	Aura 	Spa 	& 	Boutique 	v.
Department of Workforce Services, 2017 UT App 152, ¶ 11, 402 P.3d
813.
¶61 	Onysko alleges that eight of the Hearing Officer’s findings
of fact were “based exclusively on inadmissible hearsay,” in
violation of the residuum rule. We address each in turn.
A. 	A Coworker Expressed Fear of Retaliation
¶62 	First, Onysko argues that the Hearing Officer erroneously
relied on the Investigation Report to find, in a footnote, that a

Onysko v. DEQ
20180984-CA 	39 	2020 UT App 51
certain 	coworker 	“express[ed] 	concern 	that 	[Onysko] 	might
retaliate against him for his participation in th[e] investigation”
of 	Supervisor’s 	abusive 	conduct 	complaint. 	Because 	that
coworker never testified at the hearing, Onysko contends that
this “finding” was solely based on the DHRM investigator’s
(Investigator) statement in the Investigation Report. But this first
“finding” that allegedly violates the residuum rule is not, as
Onysko contends, a finding of fact.
¶63 	As an initial matter, it does not appear in the “Findings of
Fact” 	section 	of 	the 	CSRO 	Decision. 	Instead, 	it 	is 	in 	the
“Subsidiary and Procedural Issues” section in the context of
discussing a procedural matter that arose during the hearing:
Onysko’s motion to compel the attendance and testimony of the
coworker. The Hearing Officer denied this motion on the sixth
day of the hearing on the ground that, in addition to the
anticipated 	testimony 	being 	cumulative 	and 	immaterial, 	the
coworker’s “testimony would likely be unreliable.” And the
footnote’s 	purpose 	was 	to 	explain 	the 	Hearing 	Officer’s
determination that the testimony would likely prove unreliable.
Specifically, the footnote states that the coworker “sent an email
to the [CSRO] requesting that he not be called to testify as he
believed [Onysko] would retaliate against him if his testimony
was unfavorable.” The footnote then expressly stated that the
“email is not evidence and the Hearing Officer did not consider
[the] email in deciding this case.”
¶64 	The footnote also added that the coworker “is recorded
[in the Investigation Report] as expressing concern that [Onysko]
might 	retaliate 	against 	him 	for 	his 	participation 	in 	that
investigation.” 	This 	sentence 	forms 	the 	basis 	of 	Onysko’s
allegation of error. But the remainder of the CSRO Decision
makes no mention whatsoever of the coworker or of his fear of
retaliation by Onysko. It played no role in the CSRO Decision’s
ultimate 	affirmance 	of 	DEQ’s 	decision 	to 	dismiss 	Onysko.
Accordingly, we conclude the CSRO Decision’s mention that the
Investigation 	Report 	indicated 	that 	the 	coworker 	feared

Onysko v. DEQ
20180984-CA 	40 	2020 UT App 51
retaliation was limited simply to the context of the procedural
matter of Onysko’s motion to compel and does not amount to a
finding 	of 	fact, 	much 	less 	one 	based 	only 	on 	inadmissible
hearsay.
B. 	Onysko Left His GRAMA Requests on Supervisor’s Desk
¶65 	Second, 	Onysko 	alleges 	that 	the 	Hearing 	Officer
erroneously found that he left copies of GRAMA requests on
Supervisor’s desk because the “finding was based exclusively on
[Investigator’s] testimony about what [Supervisor] supposedly
told him.” Although Supervisor testified at the hearing, neither
Onysko nor DEQ asked her whether Onysko left the GRAMA
requests on her desk.25 But even assuming, without deciding,
that this finding was solely based on hearsay, Onysko was not
“substantially prejudiced” by the error. See Utah Code Ann.
§ 63G-4-403(4) (LexisNexis 2019).
¶66 	“A party has been substantially prejudiced if the alleged
error was not harmless.” Utah Office of Consumer Services v. Public
Service Comm’n, 2019 UT 26, ¶ 17, 445 P.3d 464 (quotation
simplified). 	An 	error 	is 	“harmless 	if 	it 	is 	sufficiently
inconsequential that there is no reasonable likelihood that the
error 	affected 	the 	outcome 	of 	the 	proceedings.” 	Smith 	v.
Department of Workforce Services, 2010 UT App 382, ¶ 17, 245 P.3d
758 (quotation simplified).
25. 	Curiously, 	in 	its 	written 	“Closing 	Argument,” 	without
reference to Supervisor’s testimony, DEQ stated that Supervisor
“did not recall [Onysko] placing a copy of the request on her
desk.” And in his motion for a mistrial, Onysko argued that
“[t]his 	eleventh 	hour 	revelation 	by 	[DEQ’s] 	Counsel 	is
shocking,” warranting a mistrial. It is unclear on what DEQ
based this comment. It appears to be a mistake rather than a
considered concession.

Onysko v. DEQ
20180984-CA 	41 	2020 UT App 51
¶67 	Here, 	the 	CSRO 	Decision 	includes 	the 	finding 	that
Onysko “did inform [Supervisor] that the GRAMA requests
were filed, and it is more likely than not that he did so by
leaving a copy of the requests on her desk.” But it was based on
“the unnecessary notification of [Supervisor]” of his GRAMA
requests 	that 	the 	Hearing 	Officer 	concluded 	that 	Onysko
“intended 	to 	[and 	did] 	cause 	[Supervisor] 	‘intimidation,
humiliation, or unwarranted distress,’” thereby supporting, by
substantial 	evidence, 	that 	Onysko’s 	“conduct 	constituted
abusive 	conduct.” 	In 	other 	words, 	it 	was 	the 	unnecessary
notification of Supervisor—not the manner of the notification—
on which the Hearing Officer based his conclusion that Onysko
had engaged in abusive conduct toward Supervisor. And the
conclusion that Onysko unnecessarily notified Supervisor of his
GRAMA requests is supported by, at the very least, a residuum
of non-hearsay evidence.
¶68 	Specifically, 	because 	Supervisor 	amended 	her 	abusive
conduct complaint against Onysko on February 15, 2017, to
include his filing of 	GRAMA requests, the Hearing Officer
concluded that she must have known “no later than at least
February 15, 2017, that [Onysko] had filed the GRAMA records
requests.” And because “normal procedures would not have
required that [Supervisor] be notified of the request at all,” the
Hearing Officer inferred, with our emphasis, “that [Onysko]
notified [Supervisor], in one way or another, that the requests had
been 	filed.”26 	For 	this 	reason, 	even 	if 	the 	Hearing 	Officer
26. The Hearing Officer also relied on Supervisor’s testimony
that Onysko’s “conduct towards her between September and
December 2016 was ‘hostile’” and Onysko’s “history of filing, or
threatening to file, actions against individuals with whom he
disagreed or against their professional licenses.” The latter is the
subject of Onysko’s third allegation of a residuum rule violation.
See Section IV(C).

Onysko v. DEQ
20180984-CA 	42 	2020 UT App 51
erroneously 	found 	that 	the 	manner 	in 	which 	Onysko
unnecessarily notified Supervisor of the GRAMA requests was
to leave copies of the requests on Supervisor’s desk, such error
was “sufficiently inconsequential” to render it harmless. Smith,
2010 UT App 382, ¶ 17 (quotation simplified).
C. 	Onysko’s 	History 	of 	Filing 	or 	Threatening 	to 	File
Complaints
¶69 	Third, Onysko asserts that the Hearing Officer “erred in
making 	findings 	about 	a 	‘history’ 	of 	filings 	against 	many
‘individuals with whom [Onysko] disagreed’ based only on a
singular filing that may have been entirely appropriate.” He
argues that because Supervisor was the only witness to testify
“regarding . . . Onysko’s filing of a DOPL complaint and no
evidence was introduced as to the propriety of that complaint,”
“[t]he only evidence of other complaints was hearsay without
detail.”
¶70 	But in making this argument, Onysko overlooks several
other complaints he made, concerning which the Hearing Officer
received evidence, that support the finding that he had a history
of filing or threatening to file complaints against others. For
example, (1) DHRM Representative testified that Onysko “told
[her] that he had filed a criminal complaint against [her] for the
way that the [Intent to Reprimand] . . . was given to [him]”; (2) in
his written proffer to the Hearing Officer, Onysko acknowledged
that he filed an OSHA complaint against DEQ, which OSHA
ultimately 	dismissed 	as 	unmeritorious; 	(3) 	Onysko 	filed 	an
abusive conduct complaint against Supervisor, which was also
quickly 	dismissed; 	and 	(4) 	Onysko’s 	written 	responses 	to
Supervisor’s need-for-improvement comment could reasonably
be 	perceived 	as 	threatening.27 We 	therefore 	reject 	Onysko’s
27. 	Additionally, 	the 	Hearing 	Officer 	personally 	observed
Onysko threaten to file a complaint with the Utah State Bar
(continued…)

Onysko v. DEQ
20180984-CA 	43 	2020 UT App 51
contention that “[t]he only evidence of other complaints was
hearsay without detail.”
D. 	The Effect of Onysko’s Conduct on Coworkers and DEQ
Customers
¶71 	Onysko’s final five arguments all relate to findings the
Hearing Officer relied on in determining that “[s]ubstantial
evidence 	supports 	the 	conclusion 	that 	[Onysko’s] 	conduct
adversely affected [DEQ] customers, productivity, and morale”:
1. 	He contends that the Hearing Officer erred
in 	relying 	on 	Executive 	Director’s
“testimony 	that 	he 	received 	complaints
about 	. 	. 	. 	Onysko 	from 	‘two 	DEQ
customers’ 	and 	‘several 	staff 	members.’”
Because 	“no 	such 	customers[28] 	or 	staff
members 	testified 	about 	submitted
complaints,” 	Onysko 	asserts 	Executive
Director 	“acted 	as 	a 	conduit 	to 	relay
customers’ 	and 	staff 	members’ 	personal
knowledge.”
(…continued)
against DEQ’s counsel in response to counsel’s statement in a
motion to compel that Onysko requested a stay of discovery “in
part to avoid responding to the discovery requests,” which the
Hearing Officer considered “a reasonable interpretation of the
circumstances and unremarkable in argument to a motion to
compel.” 	And 	the 	Hearing 	Officer 	observed 	that 	Onysko
continued “to allege professional misconduct and untruthfulness
by [DEQ’s] counsel throughout [the] proceeding.”
28. Onysko is incorrect in this regard. At least one DEQ customer
testified regarding a letter of complaint he submitted to DEQ.

Onysko v. DEQ
20180984-CA 	44 	2020 UT App 51
2. 	He assails the finding that “[o]ther DDW
engineers were ‘on guard’ against [Onysko]
and 	regularly 	took 	extra 	time 	to
over-document their work, which resulted
in a loss of productivity.” He asserts that
because 	“none 	of 	[the] 	supposedly 	‘on
guard’ 	engineers 	testified,” 	and 	because
“this 	finding 	was 	based 	solely 	on
[Supervisor’s] 	testimony,” 	the 	Hearing
Officer “erred in making findings about the
mental 	state 	of 	other 	DEQ 	engineers 	of
which 	[Supervisor] 	had 	no 	personal
knowledge.”
3. 	He 	argues 	that 	the 	Hearing 	Officer
erroneously 	found 	that 	Onysko’s
“[c]oworkers 	were 	concerned 	that 	they
would 	be 	the 	next 	target 	of 	[Onysko’s]
allegations 	of 	unprofessional 	conduct 	or
violation of the professional engineers’ code
of 	ethics,” 	because 	“this 	testimony 	was
offered 	by 	[Supervisor] 	who 	had 	no
personal knowledge of the mental states of
other DEQ coworkers.”
4. 	He 	asserts 	the 	Hearing 	Officer 	erred 	in
finding 	that 	his 	“demeanor 	and 	conduct
made 	it 	difficult 	for 	coworkers 	or
customers 	to 	work 	collaboratively 	with
him,” 	because 	“none 	of 	these 	alleged
coworkers and customers testified.” Instead,
the 	director 	of 	DDW, 	“act[ing] 	as 	a
conduit 	to 	relay 	those 	workers’ 	and
customers’ personal knowledge,” testified to
this fact.

Onysko v. DEQ
20180984-CA 	45 	2020 UT App 51
5. 	He 	alleges 	the 	Hearing 	Officer 	erred 	in
relying on Executive Director’s testimony
“that morale was low” because “not a single
witness testified that his or her morale was
low” as a result of Onysko’s conduct and
Executive 	Director 	therefore 	“acted 	as 	a
conduit to relay the personal knowledge of
others.”
¶72 	But even assuming that the above-challenged findings of
fact are based solely on the testimonies of Executive Director,
Supervisor, and the director of DDW, as Onysko asserts, his
argument necessarily fails because he has not met his burden of
persuasion in this proceeding for judicial review. Specifically,
Onysko’s argument is devoid of any meaningful analysis as to
whether the evidence upon which the challenged findings are
allegedly based is truly hearsay, and if so, inadmissible hearsay.
¶73 	The 	relevant 	inquiries 	when 	determining 	if 	certain
evidence constitutes hearsay are whether (1) the challenged
evidence is a statement (2) by an out-of-court declarant (3) that is
offered “to prove the truth of the matter asserted.” Utah R. Evid.
801(c). Onysko does not address any of these factors when
challenging 	the 	witnesses’ 	testimony 	on 	hearsay 	grounds.
Rather, he bases his claim of hearsay solely on the ground that
the 	witnesses 	allegedly 	lacked 	personal 	knowledge 	of 	the
subjects to which they testified. But this argument invokes rule
602 of the Utah Rules of Evidence and not rule 801,29 see id. R. 602
29. Onysko quotes State v. McNeil, 2013 UT App 134, 302 P.3d
844, aff’d, 2016 UT 3, 365 P.3d 699, for the proposition that
“hearsay is generally inadmissible because the witness is acting
as a conduit to relay the personal knowledge or observations of
others.” Id. ¶ 44 (quotation simplified). But the language quoted
does not define hearsay or discuss the inquiry courts engage in
(continued…)

Onysko v. DEQ
20180984-CA 	46 	2020 UT App 51
(stating that a fact witness “may testify to a matter only if . . . the
witness has personal knowledge of the matter”), and rule 602 is
immaterial in the residuum-rule context.
¶74 	Without the benefit of focused analysis on whether the
evidentiary 	bases 	of 	the 	challenged 	findings 	constitute
inadmissible 	hearsay, 	we 	decline 	to 	further 	address 	these
challenges. See Utah R. App. P. 24(a)(8) (requiring a party on
appeal 	to 	“explain, 	with 	reasoned 	analysis 	supported 	by
citations to legal authority and the record, why the party should
prevail on appeal”); Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903.
CONCLUSION
¶75 	We conclude that the Hearing Officer did not (1) exceed
his 	discretion 	in 	using 	his 	experience 	and 	observations 	of
Onysko’s conduct during the course of the extensive seven-day
hearing as corroborative of the testimonies of DEQ’s witnesses,
(2) 	violate 	due 	process 	in 	considering 	certain 	evidence, 	or
(3) violate 	the 	residuum 	rule 	in 	making 	various 	findings.
Accordingly, we decline to disturb the CSRO Decision.
(…continued)
when 	making 	hearsay 	determinations. 	Rather, 	it 	merely
expresses 	one 	of 	the 	reasons 	why 	“[h]earsay 	is 	generally
inadmissible.” Id.