Career Service Review Board v. Utah Department of Corrections , 322 Utah Adv. Rep. 8 ( 1997 )

STEWART, Associate Chief Justice,

concurring:

I agree with Justice Durham’s opinion, but I am dubious about the breadth of some of her language concerning the scope of the continuing jurisdiction of an administrative agency to change an order after it has become final for the purpose of an appeal.

Nevertheless, I conclude that the Career Service Board’s 1994 order was lawful. The Board’s 1993 order stated, “Grievant [Tim Parker] should be reinstated forthwith to his prior step and rank at Grade 23, and immediately reimbursed for the full amount of any salary and benefits not paid to date as a result of the demotion to Grade 21.” The essence of the 1993 order, as far as is pertinent here, was to return Parker to his prior rank and pay retroactively as of the time his ten-day suspension terminated so that he would lose no salary by virtue of his demotion. The 1994 order awarded Parker the difference between the grade 23 salary and a grade 17 salary, the grade for the position that he had taken after his demotion. If the • Board erred in changing that aspect of the 1994 order, and even if the error were jurisdictional (which may or may not be the case), the Department of Corrections should have taken an appeal at that time. In not doing so, it waived its right to raise the issue on an appeal and cannot circumvent the waiver rule by a subsequent collateral attack on the 1994 order. In any event, the nub of the matter, as I see it, is that the 1994 order was simply intended to give full effect to what the Board sought to accomplish by its 1993 order, that is, to make Parker whole after the unlawful demotion.

ZIMMERMAN, C.J., concurs in the concurring opinion of STEWART, Associate C.J.