Palmer v. St. George City Council

2018 UT App 94
THE UTAH COURT OF APPEALS
HEIDI PALMER ,
Petitioner,
v.
S T. GEORGE C ITY C OUNCIL, S T. GEORGE M UNICIPAL C ORPORATION ,
AND S T. GEORGE POLICE DEPARTMENT,
Respondents.
Opinion
No. 20170209-CA
Filed May 24, 2018
Original Proceeding in this Court
Bret W. Rawson, Nate N. Nelson, and Jeremy G.
Jones, Attorneys for Petitioner
Peter Stirba and Bradley A. Schmidt, Attorneys
for Respondents
JUDGE K ATE A. TOOMEY authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
TOOMEY, Judge:
¶1 	Heidi Palmer asks this court to review the decision of the
St. George City Council (the Appeal Board) to uphold her
suspension of “five days, 40 hours, without pay” for violating
the policies of the St. George Municipal Corporation (the City)
and the St. George Police Department (the SGPD).1 Palmer
contends Respondents violated her due process rights in four
ways and that the Appeal Board exceeded its discretion when it
failed to make findings of fact to support its decision to uphold
her discipline.
1. We refer to the Appeal Board, the City, and the SGPD,
collectively, as Respondents.

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¶2 	We 	conclude 	that 	Palmer’s 	due 	process 	rights 	were
violated when the Appeal Board refused to compel the City to
disclose evidence of comparable discipline within the SGPD. But
there were no due process violations with respect to her three
remaining claims. We further conclude that the Appeal Board’s
failure to make findings of fact that supported its decision to
uphold Palmer’s discipline constituted an abuse of discretion.
We therefore set aside the decision of the Appeal Board and
remand for further proceedings consistent with this opinion.
BACKGROUND
¶3 	Palmer is a Sergeant with the SGPD. In June 2014, she
received a report that someone’s cell phone contained child
pornography.2 Palmer initiated an investigation and seized the
suspect’s computer and cell phone. Another officer then copied
pornographic images from these devices onto a CD for Palmer’s
review. Palmer did not complete her report on the case until
August 2016—more than two years later. During that period, she
did not properly store the CD and instead left it unsecured in her
desk.
¶4 	Before Palmer had completed her report, her supervisor
had initiated an internal affairs investigation to review her
ability 	to 	manage 	her 	responsibilities. 	Palmer’s 	supervisor
formally complained to SGPD’s Chief of Police (the Chief), who
determined that the Disciplinary Review Board (the Disciplinary
Board) should be convened to recommend discipline. Based on
the 	internal 	affairs 	investigation, 	the 	Disciplinary 	Board
recommended that Palmer be demoted in rank and that she
2. Although we are setting aside the Appeal Board’s decision, in
part, for failing to make factual findings to support its decision,
the record before us is sufficient to address the legal claims
Palmer raises on her petition for review.

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undergo a six-month action plan “to improve report writing and
ensure any future evidence [is] logged correctly.”
¶5 	Following 	the 	Disciplinary 	Board’s 	recommendation,
Palmer received a Notice of Intent to Discipline (the Notice),
informing her that she had violated St. George City Policy 4.50
related to incompetence, misconduct, and failure to perform
duty. 	The 	Notice 	also 	provided 	the 	date 	and 	time 	of 	a
pre-disciplinary hearing meeting and explained 	that Palmer
could “bring to the meeting any evidence or witnesses” that she
chose. Palmer requested that her attorney be present, but she
was told an “attorney would not qualify as a witness” and
therefore would not be allowed to attend.
¶6 	Palmer appeared at the pre-disciplinary hearing meeting
without counsel, after which the Chief recommended to the City
Manager that she be demoted without a reduction in pay and
placed on a “Performance Improvement Action Plan.” The City
Manager 	gave 	Palmer 	notice 	of 	this 	recommendation 	and
informed her that she had the right to appeal it. Through the
process 	of 	that 	appeal, 	the 	Chief 	reconsidered 	his
recommendation and instead recommended only “five days (40
hours) off without pay and that [Palmer] be placed on an action
plan, rather than a recommendation of demotion.”3 The City
Manager upheld the decision to impose the lesser penalty, and
Palmer appealed this decision to the Appeal Board.
¶7 	Before her hearing in front of the Appeal Board (the
Disciplinary 	Appeal 	Hearing), 	Palmer 	twice 	requested
“production of information regarding other disciplinary matters
investigated under [Palmer’s supervisor].” The City responded
that the comparable discipline information was “not relevant”
because the only information the Appeal Board would review
3. It is unclear from the record why the Chief reduced the
severity of his recommended discipline.

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was 	the 	internal 	investigation 	of 	Palmer. 	Palmer 	also
communicated to the City her belief that the St. George City
Attorney (the City Attorney) should not be involved in the
Disciplinary Appeal Hearing, because of his “prior involvement
[in 	the 	investigation] 	and 	obligation 	to 	protect 	the 	City’s
interest,” as well as her belief that the City Attorney’s continued
involvement in her case constituted “[a] de facto violation of
[her] procedural due process rights.” The City Attorney and the
City disagreed and stated they would “proceed as planned.”
¶8 	Leading up to the hearing, both parties were informed
that they would be “given one hour to present their arguments,
including questioning of any witnesses.” Palmer believed that
one hour was too little time in which to present her defense, and
that the Appeal Board’s one-hour time limit was “unacceptable
and yet again another attempt by the [Appeal Board] to deprive
[her] of her protected due process rights.”
¶9 	The City Attorney did not participate in the hearing.
Instead, an Assistant City Attorney advised the Appeal Board,
and 	the 	City 	was represented 	by 	private 	counsel. 	Palmer’s
attorney opened the arguments by identifying five issues that he
believed constituted due process violations, the following four
are relevant to this petition for review: “[Palmer’s] right to
counsel during the [pre-]disciplinary process”; “her right to
present evidence and confront witnesses free from unreasonable
[time] limits”; “her right to an impartial hearing free from the
taint of dual representation by city attorneys”; and “the refusal
of the City and [the Appeal Board] to provide information for
comparable disciplinary analysis.” During the course of the
hearing, Palmer’s attorney called two witnesses, and the City
called four.
¶10 	After hearing testimony from six witnesses, the Appeal
Board 	unanimously 	upheld 	the 	City 	Manager’s 	decision 	to
suspend Palmer “for five days, 40 hours, without pay.” The
Appeal 	Board 	issued 	its 	decision 	in 	a 	one-sentence

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“certification” and did not make findings of fact or otherwise
explain the basis for its decision to uphold Palmer’s suspension.
Palmer petitions this court for review of the Appeal Board’s
decision.
ISSUES AND STANDARDS OF REVIEW
¶11 	Palmer makes three overarching contentions on judicial
review. First, she contends that the Appeal Board erred in failing
to rule on her claim that the City violated her due process rights
when she was denied legal representation at the pre-disciplinary
hearing meeting. Generally, our review of administrative agency
decisions 	is 	“limited 	to 	determining 	whether 	the 	[agency]
abused its discretion or exceeded its authority.” Taylorsville City
v. Taylorsville City Emp. Appeal Board, 2013 UT App 69, ¶ 16, 298
P.3d 1270 (quotation simplified). But when the agency’s decision
“implicates due process, we review it for correctness.” Id.
¶12 	Second, Palmer contends the Appeal Board violated her
due process rights in three respects.4 “Due process challenges are
4. 	Respondents 	contend 	Palmer 	failed 	to 	preserve 	her 	due
process violation claims. We disagree. “Utah law requires parties
to preserve arguments for appellate review by raising them first
in the forum below—be it a trial court or an administrative
tribunal.” Columbia HCA v. Labor Comm’n, 2011 UT App 210, ¶ 6,
258 P.3d 640. The preservation requirement is satisfied when the
issue was raised at the administrative level so that the agency or
appeal board had the opportunity to rule on it. Id. Palmer’s
attorney notified the Appeal Board on numerous occasions that
she was challenging actions by the City and the Appeal Board on
due process grounds. The due process claims were specifically
articulated at the outset of her Disciplinary Appeal Hearing,
which provided the Appeal Board yet another opportunity to
adjudicate her claims. Palmer’s attorney adequately presented
(continued…)

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questions of general 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
(quotation simplified).
¶13 	Third, Palmer contends the Appeal Board abused 	its
discretion when it failed to “provide any findings that could
guide appellate review.” “The failure of an agency to make
adequate findings of fact on material issues renders its findings
arbitrary 	and 	capricious 	unless 	the 	evidence 	is 	clear,
uncontroverted and capable of only one conclusion.” Hugoe v.
Woods Cross City, 2013 UT App 278, ¶ 12, 316 P.3d 979 (quotation
simplified).
ANALYSIS
I. Due Process
¶14 	Palmer contends the Appeal Board erred in failing to rule
on 	her 	due 	process 	claim 	that 	she 	was 	entitled 	to 	legal
representation at her pre-disciplinary hearing meeting. Palmer
also contends the Appeal Board violated her due process rights
in three respects: by imposing a one-hour time limit for the
Disciplinary Appeal Hearing; by receiving advice from the City
Attorney 	who 	had 	already 	advised 	the 	City 	in 	the
pre-disciplinary proceedings; and by refusing to compel the City
(…continued)
the claims to the Appeal Board, and the Appeal Board’s failure
to rule on the claims does not mean they were not preserved. Cf.
Fierro v. Park City Mun. Corp., 2012 UT App 304, ¶ 12, 295 P.3d
696.

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to disclose comparable discipline evidence.5 We address each in
turn.
A. 	Employees 	Do 	Not 	Have 	the 	Right 	to 	Counsel 	at
Pre-Disciplinary Proceedings.
¶15 	Palmer contends her attorney should have been allowed
to represent her at the pre-disciplinary hearing meeting and that
the Appeal Board erred when it failed to rule in her favor on the
issue. Palmer does not assert any constitutional right to counsel
in administrative proceedings but correctly points out that the
right to counsel attaches if it is provided by statute. Cf. Nelson v.
Department of Emp’t Sec., 801 P.2d 158, 163 (Utah Ct. App. 1990)
(explaining that agencies are not “required to appoint counsel
for 	claimants” 	and 	that, 	“[g]enerally, 	claimants 	in 	an
administrative 	hearing 	[before 	the 	Labor 	Commission] 	are
entitled 	to 	retain 	the 	counsel 	of 	their 	choice”). 	Specifically,
Palmer argues that, under Utah Code section 10-3-1106, the
statutory right of employees to be represented by counsel in
disciplinary proceedings attaches “as soon as [an] employee
becomes [the] subject of discipline.” We disagree with Palmer’s
interpretation of section 10-3-1106.
¶16 	When interpreting statutes, we first look to their plain
language and give effect to that language unless it is ambiguous.
State v. Jeffries, 2009 UT 57, ¶ 7, 217 P.3d 265; see also Marion
5. We address these four contentions raised by Palmer under the
rubric 	of 	due 	process 	because, 	“[d]espite 	the 	flexibility 	of
administrative 	hearings, 	there 	remains 	the 	necessity 	of
preserving fundamental requirements of procedural fairness in
administrative hearings,” and an administrative body clearly
exceeds its discretion when it “conducts its proceedings such
that it denies due process to a party appearing before it.” Tolman
v. Salt Lake County Att’y, 818 P.2d 23, 28 (Utah Ct. App. 1991)
(quotation simplified).

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Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863
(explaining that statutory language is ambiguous when “its
terms 	remain 	susceptible 	to 	two 	or 	more 	reasonable
interpretations”). But “our plain language analysis is not so
limited 	that 	we 	only 	inquire 	into 	individual 	words 	and
subsections in isolation; our interpretation of a statute requires
that each part or section be construed in connection with every
other part or section so as to produce a harmonious whole.”
Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266
P.3d 751 (quotation simplified).
¶17 	Utah Code subsection 10-3-1106(2)(a) provides that an
employee may “appeal the final decision to discharge, suspend
without pay, or involuntarily transfer to an appeal board.” Utah
Code Ann. § 10-3-1106(2)(a) (LexisNexis 2015). Subsection (3)(a)
provides the procedural requirements for appealing the final
decision to discharge, suspend, or transfer. Id. § 10-3-1106(3)(a).
And subsection (4)(a) provides the rights of “[a]n employee who
is the subject of the discharge, suspension, or transfer” during
that employee’s appeal. Id. § 10-3-1106(4)(a). At this point, after
the final decision to discipline has been made (that is, discharge,
suspension, 	or 	transfer), 	an 	employee 	“may,” 	among 	other
things, “appear in person and be represented by counsel.” Id.
§ 10-3-1106(4)(a)(i). When read as a whole, the statute provides
that an employee has the right to be represented by counsel only
after “the final decision” has been made to impose discipline. See
id. § 10-3-1106(2)(a), (4)(a).
¶18 	Here, 	Palmer 	was 	not 	disciplined 	during 	the 	pre-
disciplinary hearing meeting. At that point, she was the subject
of 	a 	pre-discipline 	investigation 	that 	resulted 	in 	a
recommendation 	for 	discipline. 	Her 	pre-disciplinary 	hearing
meeting was intended to inform her of the alleged misconduct
and to allow her to explain her actions before the Chief made a
recommendation for discipline to the City Manager. Only when
the City Manager made the final decision to suspend Palmer did
she become “the subject of the . . . suspension,” and therefore her

Palmer v. St. George City Council
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right to have an attorney present did not attach until after the
City Manager made this decision. See id. § 10-3-1106(4)(a). We
conclude Palmer’s statutory due process rights were not violated
when she was told that her attorney could not attend the
pre-disciplinary hearing meeting.
B. 	A 	One-Hour 	Time 	Limit 	at 	the 	Disciplinary 	Appeal
Hearing Does Not Violate Due Process.
¶19 	Palmer contends the one-hour time limit imposed by the
Appeal Board violated her due process rights because she was
“unable to call a number of her proposed witnesses and was not
given anything resembling a reasonable time to address the
evidence or advance her legal arguments.” We disagree.
¶20 	The Administrative Procedures Act (the APA) governs
agency proceedings, such as the Disciplinary Appeal Hearing in
this case. See Utah Code Ann. § 63G-4-102(1) (LexisNexis 2016).
The APA provides that the presiding officer of an appeal board
“shall regulate the course of the hearing to . . . afford all the
parties reasonable opportunity to present their positions,” id.
§ 63G-4-206(1)(a), and “shall afford to all parties the opportunity
to present evidence, argue, respond, conduct cross-examination,
and submit rebuttal evidence,” id. § 63G-4-206(1)(d).
¶21 	Here, the Appeal Board gave each party one hour to
present evidence and examine their own witnesses, but the time
used to cross-examine witnesses was not deducted from each
party’s allotted time.
¶22 	The parties cite Sierra Club v. Utah Solid & Hazardous Waste
Control Board, 964 P.2d 335 (Utah Ct. App. 1998), disagreed with on
other grounds by Utah Chapter of Sierra Club v. Utah Air Quality
Board, 2006 UT 74, 148 P.3d 960. In that case, Sierra Club
challenged the Utah Solid and Hazardous Waste Control Board’s
decision 	to 	permit 	the 	United 	States 	Army’s 	plan 	for
constructing a hazardous waste treatment facility and to destroy
the 	chemical 	weapons—including 	nerve 	agents 	and 	blister

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agents—stockpiled 	in 	Tooele. 	Id. 	at 	338–39. 	“The 	risk 	from
continued 	storage 	of 	these 	agents 	[had] 	been 	a 	matter 	of
longstanding concern.” Id. at 338. Before the Army could begin
its destruction of the hazardous waste, the board required “a
series of ‘trial burns’ to ensure that the facility could operate
safely.” Id. These trial burns were also subject to screenings to
address whether the emissions during the burns “would cause
cancer . . . [or] other types of illness.” Id. This required the
involvement of the State Division of Environmental Quality and
the Environmental Protection Agency. Id. The conclusion of
these screenings was that the overall risks of cancer and other
illnesses 	did 	“not 	exceed 	EPA 	guidance 	levels.” 	Id. 	This
prompted Sierra Club to seek agency action. Id. at 338–39. Sierra
Club was informed six months in advance of a hearing before an
appeal board that it would be given “twelve hours to argue and
conduct direct and cross-examination.” Id. at 346. Sierra Club
asserted that the restrictions did not allow it adequate time to
cross-examine witnesses. Id. It argued on its petition for review
to this court that the appeal board violated its due process rights
“by unreasonably limiting its time to present its case and cross-
examine adverse witnesses.” Id. The opposing party argued that
“Sierra Club was afforded ample opportunity to present its case
and to cross-examine witnesses, but that Sierra Club failed to
efficiently use its allotted time and failed to exploit the available
opportunities for otherwise getting evidence before the [appeal
board].” Id.
¶23 	On 	review, 	this 	court 	determined 	that 	although 	the
appeal 	board’s 	time 	limitations 	“appear[ed] 	somewhat
parsimonious, under the APA the [appeal board] was entitled to
regulate the course of the hearing, which necessarily included its
duration.” Id. at 347. The appeal board “offered the parties
numerous opportunities to present their positions in forms other
than through time-consuming testimony” and granted Sierra
Club “forty-five minutes of extra time.” Id. In addition, Sierra
Club failed to show it “suffered substantial prejudice” because,
“[a]side from generally alleging that it lacked time to cross-

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examine several witnesses, Sierra Club [did] not state what
evidence it needed to get in but did not, nor [did] it show that
the case would have come out differently had it been given more
time.” Id. at 348. This court concluded that the “time limitations
were not unreasonable and that Sierra Club was not denied its
constitutional rights to Due Process.” Id.
¶24 	Here, 	the 	one-hour 	per-side 	time 	limit 	was 	not
unreasonable. The complexity of Palmer’s case did not rise to
that of Sierra Club because Palmer’s disciplinary proceedings
related to one discrete employment incident. The Appeal Board
permitted the parties to cross-examine witnesses outside of the
one-hour limit and to admit hundreds of pages of exhibits into
evidence. Although counsel was unable to finish conducting his
direct examination of a witness because his time was running
out and could not call his remaining witnesses, he used a
considerable portion of his time having Palmer, as a witness,
read 	documents 	that 	were 	already 	admitted 	into 	evidence.
Palmer has also failed to show that she suffered substantial
prejudice by the time limit; she did not identify evidence she was
prevented from presenting before the Appeal Board or what
certain witnesses would have testified to, had they been called,
and she did not explain how the case might have been resolved
differently had she been given more time. See id. We therefore
conclude 	the 	Appeal 	Board’s 	one-hour 	time 	limit 	did 	not
constitute a due process violation.
C. 	Advice 	from 	the 	Same 	Attorney 	at 	Pre-Disciplinary
Proceedings 	and 	Disciplinary 	Appeals 	Is 	Not 	a 	Due
Process Violation.
¶25 	Palmer 	contends 	the 	Appeal 	Board 	violated 	her 	due
process rights when the City Attorney advised both the SGPD in
the pre-disciplinary investigation as well as the Appeal Board
after discipline had been imposed. We disagree.
¶26 	“A clear demonstration of partiality apparent on the face
of 	the 	record, 	or 	a 	showing 	of 	direct, 	pecuniary 	interest,

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automatically requires disqualification of the decision maker.”
V-1 	Oil 	Co. 	v. 	Department 	of 	Envtl. 	Quality, 	Div. 	of 	Solid
& Hazardous Waste, 939 P.2d 1192, 1197 (Utah 1997) (internal
citations 	omitted). 	Our 	supreme 	court 	has 	explained 	that,
“[g]enerally, 	commentators 	divide 	[administrative 	agency]
functions into three categories: investigative, advocatory (or
prosecutorial), and adjudicative.” Id. at 1199. And “[a]lthough
there is little potential for bias when the investigative and
advocatory 	functions 	are 	combined, 	the 	potential 	for
impermissible 	bias 	when 	either 	the 	investigative 	or 	the
advocatory function is combined with the adjudicative function
is more readily apparent” because that is the point when “the
case becomes more accusatory in nature.” Id.
¶27 	Here, the City Attorney’s advice both to the SGPD and to
the Appeal Board fell within the investigative function; he did
not prosecute or adjudicate the claims against Palmer. As a
result, it would be difficult for Palmer to demonstrate that the
City 	Attorney’s 	involvement 	adversely 	affected 	the 	Appeal
Board’s 	impartiality. 	See 	id. 	And 	indeed, 	Palmer 	has 	not
provided evidence to that effect. Rather, she argues that “the
[City Attorney’s] dual representation raised, at a minimum, an
unacceptable risk that the fairness of the hearing had been
impaired.” But Palmer also concedes in her brief that the City
Attorney 	acted 	solely 	in 	an 	advisory 	role—and 	not 	in 	a
prosecutorial or adjudicative role—in advising the SGPD and the
Appeal Board. She also states that the City Attorney’s “advice to
the [Appeal Board] and the SGPD, as well as his conversations
with [the Assistant City Attorney], are potentially shrouded
behind the cloak of attorney-client privilege.” But she does not
explain 	how 	this 	could 	have 	affected 	the 	Appeal 	Board’s
decision, and she does not identify any information that the
Appeal 	Board 	relied 	on 	that 	might 	have 	been 	improperly
withheld from her. Instead, she argues that “a new hearing is
warranted to allow [her] to explore the impact of the adverse
representation . . . [and] 	whether 	[the 	City 	Attorney’s]
involvement created the type of ‘partiality or the sort of attitude

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toward 	a 	person 	that 	is 	strong 	enough 	to 	establish 	a
disqualifying bias.’” (Quoting Carlsen v. Board of Adjustment of
City of Smithfield, 2012 UT App 260, ¶ 21, 287 P.3d 440.)
¶28 	Because Palmer’s request for a new hearing essentially
amounts to a “fishing expedition” for evidence outside of the
record on her petition for review, we will not remand the case to
allow Palmer to “explore the impact” of certain outcomes. Cf.
State v. Hopkins, 1999 UT 98, ¶ 13 n.1, 989 P.2d 1065 (explaining
that, in the context of remands under rule 23B of the Utah Rules
of Appellate Procedure, there are inherent dangers in remanding
under conditions where the “allegations are wholly speculative”
as 	it 	would 	result 	in 	a 	“fishing 	expedition” 	(quotation
simplified)).
¶29 	The City Attorney did not provide representation to any
party 	during 	the 	actual 	hearing 	before 	the 	Appeal 	Board.
Instead, 	private 	counsel 	represented 	the 	City 	during 	the
proceedings before the Appeal Board and thus there was no
danger of an overlap of duties during the Disciplinary Appeal
Hearing. 	In 	addition, 	the 	City 	Attorney did 	not 	adjudicate
Palmer’s claims after having advised the City and the SGPD
about appropriate discipline. The City Attorney’s function in this
case was to help advise the City during the pre-disciplinary
hearing proceedings, and to then advise the Appeal Board on
appropriate 	discipline. 	We 	therefore 	conclude 	Palmer’s 	due
process rights were not violated in this respect.
D. 	Refusal to Provide Discovery on Comparable Discipline
Violates Due Process.
¶30 	Palmer contends her due process rights were violated
when the Appeal Board failed to compel the City to provide
discovery on comparable discipline of other SGPD employees.
She asserts that without such information, the Appeal Board
could not have known whether the sanction was proportional or
“‘consistent with previous sanctions imposed by the department
pursuant to its own policies.’” (Quoting Nelson v. Orem City

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Dep’t of Public Safety, 2012 UT App 147, ¶ 20, 278 P.3d 1089.) We
agree.
¶31 	Administrative agency appeal boards have the “statutory
authority 	to 	conduct 	appeals 	brought 	by 	suspended 	or
discharged employees, and in that regard, to make two inquiries:
(1) do the facts support the charges made by the department
head, 	and, 	if 	so, 	(2) 	do 	the 	charges 	warrant 	the 	sanction
imposed?” Kelly v. Salt Lake City Civil Service Comm’n, 2000 UT
App 235, ¶ 16, 8 P.3d 1048 (quotation simplified). The second
question “breaks down into two sub-questions: [f]irst, is the
sanction 	proportional; 	and 	second, 	is 	[it] 	consistent 	with
previous sanctions imposed by the department pursuant to its
own policies.” Id. ¶ 21. In administrative agency appeals, the
employee 	bears 	the 	burden 	of 	“showing 	some 	meaningful
disparity 	of 	treatment 	between 	herself 	and 	other 	similarly
situated employees.” Id. ¶ 30; see also Perez v. South Jordan City,
2014 	UT 	App 	31, 	¶ 	26, 	320 	P.3d 	42. 	The 	employee 	must
“establish 	a 	prima 	facie 	case 	that 	the 	[discipliner] 	acted
inconsistently in imposing sanctions by presenting sufficient
evidence 	from 	which 	the 	[agency] 	could 	reasonably 	find 	a
relevant 	inconsistency.” 	Kelly, 	2000 	UT 	App 	235, 	¶ 	30. 	To
establish this prima facie case, the employee must therefore have
access to information related to the discipline of other similarly
situated employees.
¶32 	Here, the City refused to disclose comparable discipline
evidence to Palmer, even upon request, asserting that “other
disciplinary matters involving the [SGPD] and other individuals
are not relevant and will not be provided.” Palmer raised this
issue with the City Attorney and requested that the Appeal
Board compel disclosure of this information, but the Appeal
Board never responded to the request. As a result, the City and
the Appeal Board precluded Palmer from accessing information
that might have helped her carry her burden of establishing
“meaningful disparity of treatment between herself and other
similarly situated employees.” See id.

Palmer v. St. George City Council
20170209-CA 	15 	2018 UT App 94
¶33 	Respondents argue that Palmer was not guaranteed the
right to obtain information regarding comparable discipline.
Respondents also argue that Palmer could have gained access to
the records of comparable discipline through a Government
Records Access and Management Act (GRAMA) request. See
Utah Code Ann. §§ 63G-2-201, -205 (LexisNexis 2016). Neither
argument is persuasive.
¶34 	First, Respondents assert that, in this case, under Utah
Code section 10-3-1106, Palmer was only entitled to “examine
the evidence to be considered by the [Appeal Board].” Id. § 10-3-
1106(4)(a)(iv) (2015). In support of this argument, Respondents
rely on case law from other jurisdictions that have determined
“there 	is 	no 	constitutional 	right 	to 	pretrial 	discovery 	in
administrative proceedings,” see Kelly v. United States Envtl. Prot.
Agency, 203 F.3d 519, 523 (7th Cir. 2000), and that the “scope of
discovery in administrative hearings is governed by statute and
the agency’s discretion,” see Cimarusti v. Superior Court, 94 Cal.
Rptr. 2d 336, 342 (Ct. App. 2000). But they have not cited Utah
case law to support this point. Indeed, Utah case law specifies
that the employee bears the burden of proving that the discipline
should not be upheld based on inconsistent treatment of similar
conduct. See Perez, 2014 UT App 31, ¶ 26; Kelly, 2000 UT App
235, ¶ 30; Lucas v. Murray City Civil Service Comm’n, 949 P.2d 746,
761 (Utah Ct. App. 1997). This can only be accomplished if the
employee has reasonable access to information regarding the
City’s disciplinary decisions for similar conduct.
¶35 	For similar reasons, we disagree with the Appeal Board’s
argument that the City need not provide Palmer with access to
comparative discipline information, because Palmer could have
obtained that information through a GRAMA request. The City
has not identified any Utah case law or statute to support the
argument that an employer need not disclose evidence that
could be obtained through other means. Although a GRAMA
request is certainly one option Palmer could have pursued to
obtain disciplinary information to aid in her defense, we are

Palmer v. St. George City Council
20170209-CA 	16 	2018 UT App 94
unaware of any case or statute requiring her to have done so.6
Imposing such a requirement would seem to be a waste of the
government’s 	time 	and 	resources 	and 	does 	not 	appear 	to
provide the employee adequate access to the evidence necessary
to meet the applicable burden of proof. See Perez, 2014 UT App
31, ¶ 26; see also id. ¶ 30 (“The disciplined employee must
identify employees in similar circumstances—employees with
similar disciplinary histories and service time, for example—
who 	received 	lighter 	punishments 	for 	similar 	offenses.”).
Without adequate access to comparative discipline information,
the employee has little chance of being able to carry that burden.
6. The City’s private attorney cited Young v. Salt Lake County,
2002 UT 70, 52 P.3d 1240, to support its argument that Palmer
must file a GRAMA request to obtain the comparable discipline
evidence. 	In 	Young, 	the 	employee 	was 	denied 	comparable
discipline evidence after filing a GRAMA request, followed the
administrative appeal requirements, and then sought judicial
review of the agency’s final denial of the requested evidence. Id.
¶¶ 	2–3, 	6. 	The 	district 	court 	determined 	that 	“(1) 	Young’s
request for judicial review was timely, (2) Young had a due
process right in the requested information, and (3) Young’s right
to the information was not outweighed by the privacy interests
of third parties.” Id. ¶ 3. On appeal the Utah Supreme Court
analyzed 	whether 	the 	district 	court’s 	grant 	of 	summary
judgment in Young’s favor was appropriate under GRAMA. Id.
¶¶ 6–18. Young did not state that a GRAMA request is the sole
means 	of 	obtaining 	comparable 	discipline 	evidence. 	Rather,
Young explains the “appeals process for records requests” under
“the GRAMA statutory scheme.” Id. ¶ 6. In other words, when
an individual requests information under GRAMA, then the
GRAMA statutory scheme applies. But Young does not support
the City’s contention that, because an employee can submit a
GRAMA request, then the agency or employer is relieved from
disclosing 	comparable 	evidence 	for 	disciplinary 	proceedings
upon a timely request.

Palmer v. St. George City Council
20170209-CA 	17 	2018 UT App 94
The employee is therefore entitled to evidence of comparable
discipline, 	and 	the 	agency 	must 	reasonably 	disclose 	that
information to the employee upon a timely request.7
¶36 	Palmer’s due process rights were violated when the City
refused 	to 	disclose 	evidence 	of 	comparable 	discipline 	upon
request, and again when the Appeal Board failed to compel the
City to disclose such evidence. We therefore set aside the Appeal
Board’s decision and remand the case for further proceedings in
which 	the 	City 	shall 	provide 	Palmer 	comparable 	discipline
evidence and for a new hearing at which Palmer may use this
new evidence.
7. Respondents have not argued that the SGPD or the City did
not retain the comparable discipline evidence of other employees
who violated City and SGPD policies. Rather, the City flatly
refused to disclose such evidence, and the Appeal Board never
responded to the request to compel its production. Indeed, it is
highly likely that it would retain records of such violations of
policies and subsequent disciplinary actions, pursuant to their
respective policies. SGPD Policy 1005.5 requires supervisors to
“ensure that all formal and informal complaints are documented
on a complaint form,” “[a]ll complaints and inquiries should
also be documented in a log that records and tracks complaints,”
and the “log shall include the nature of the complaint and the
actions taken to address the complaint.” SGPD Policy 1005.6.3
and 1005.6.4 further require that formal investigations include
documentation of the investigation, including an introduction,
synopsis, summary, evidence, conclusion, exhibits, and the final
disposition. And City Policy 4.50(V) requires the department
supervisor, in this case the Chief, to recommend to the City
Manager appropriate discipline and to include “[d]etails of the
employee’s behavior or performance” and a “summary of the
evidence that includes the employee’s response and submitted
evidence.”

Palmer v. St. George City Council
20170209-CA 	18 	2018 UT App 94
II. Abuse of Discretion
¶37 	Palmer contends the Appeal Board exceeded its discretion
when 	it 	failed 	to 	articulate 	factual 	findings 	to 	support 	its
decision to uphold her discipline. We agree.
¶38 	“The failure of an agency to make adequate findings of
fact 	on 	material 	issues 	renders 	its 	findings 	arbitrary 	and
capricious unless 	the 	evidence 	is 	clear, 	uncontroverted 	and
capable of only one conclusion.” Hugoe v. Woods Cross City, 2013
UT App 278, ¶ 12, 316 P.3d 979 (quotation simplified). Without
any findings of fact, or even a discussion on the record to
support 	a 	decision, 	this 	court 	cannot 	perform 	its 	duty 	of
reviewing the agency’s decision “in accordance with established
legal principles and of protecting the parties and the public from
arbitrary 	and 	capricious 	administrative 	action.” 	Milne 	Truck
Lines, Inc. v. Public Service Comm’n, 720 P.2d 1373, 1378 (Utah
1986).
¶39 	The Appeal Board exceeded its discretion when it failed
to articulate factual findings to support its decision to uphold
Palmer’s discipline. Nothing apparent in the record would guide
this court to determine that the Appeal Board’s decision was
reasonable, especially considering that Palmer was precluded
from presenting comparable discipline evidence to meet her
burden of proving that her discipline was not proportional or
consistent with discipline imposed for similar conduct.8
8. In fact, Respondents concede as much in their brief, stating
that 	“the 	Appeal 	Board 	was 	not 	required 	to 	consider 	the
consistency of [Palmer’s] treatment because [she] ‘failed to point
to sufficiently similar episodes of conduct by other officers so as
to trigger consistency analysis.’” (Quoting Kelly v. Salt Lake City
Civil Service Comm’n, 2000 UT App 235, ¶ 34, 8 P.3d 1048.) This
was 	an 	onerous 	task, 	considering 	Respondents 	refused 	to
disclose evidence of similar conduct on the basis that it was “not
(continued…)

Palmer v. St. George City Council
20170209-CA 	19 	2018 UT App 94
CONCLUSION
¶40 	We conclude that Palmer was not entitled to counsel in
pre-disciplinary proceedings, because the statutory right to an
attorney 	attaches 	only 	after 	discipline 	has 	been 	imposed.
Because Palmer was able to admit evidence in the form of
exhibits and in direct testimony and cross-examination, and
because she has failed to articulate what evidence she was
prevented from admitting or how it could have affected the
outcome, her due process rights were not violated when she
received one hour to present her case to the Appeal Board. In
addition, Palmer’s due process rights were not violated when
the City Attorney advised the SGPD and the City during pre-
disciplinary hearings and then advised the Appeal Board.
¶41 	We further conclude that failure to disclose comparable
discipline evidence upon request is a due process violation,
because it precludes employees such as Palmer from meeting the
burden 	of 	proving 	that 	the 	discipline 	is 	not 	warranted,
proportional, 	or 	consistent 	with 	what 	was 	imposed 	upon
similarly 	situated 	employees. 	Finally, 	the 	Appeal 	Board
exceeded its discretion when it failed to make factual findings to
support its decision to uphold Palmer’s discipline. We therefore
set aside the Appeal Board’s decision and remand for the City to
produce the comparable discipline evidence and for a new
disciplinary appeal hearing.
(…continued)
relevant.” And in Kelly, the employee had access to comparable
discipline evidence but could not make a showing that her
conduct 	was similar 	to 	other employees with 	more 	lenient
penalties. 	Kelly, 	2000 	UT 	App 	235, 	¶¶ 	31, 	34. 	Therefore,
Respondents’ reliance on Kelly is also misplaced.