Onysko v. Dept. of Envntl. Quality , 2020 UT App 51 ( 2020 )

2020 UT App 51THE UTAH COURT OF APPEALS
STEVEN J. ONYSKO,
Petitioner,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY AND
CAREER SERVICE REVIEW OFFICE,
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. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
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.
Onysko v. DEQ
BACKGROUND 1
¶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).
20180984-CA 2 2020 UT App 51Onysko v. DEQ
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 room­for­improvement
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
ill­prepared 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
20180984-CA 3 2020 UT App 51Onysko v. DEQ
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
room­for­improvement 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
20180984-CA 4 2020 UT App 51Onysko v. DEQ
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. §§ 63G­2­101 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…)
20180984-CA 5 2020 UT App 51Onysko v. DEQ
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
non­DDW 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.”
20180984-CA 6 2020 UT App 51Onysko v. DEQ
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…)
20180984-CA 7 2020 UT App 51Onysko v. DEQ
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.’”
20180984-CA 8 2020 UT App 51Onysko v. DEQ
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
20180984-CA 9 2020 UT App 51Onysko v. DEQ
allegations in her abusive conduct complaint against Onysko 6
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. § 67­19a­202(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…)
20180984-CA 10 2020 UT App 51Onysko v. DEQ
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, re­check 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 follow­through 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.
20180984-CA 11 2020 UT App 51Onysko v. DEQ
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 Warning 9 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.
20180984-CA 12 2020 UT App 51Onysko v. DEQ
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 seven­day level 4 evidentiary hearing in mid­2018, in
which Onysko represented himself. 10 See id. § 67­19a­302(1); Utah
Admin. Code R137­1­18(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
R137­1­18(3), the Hearing Officer nonetheless applied rule 612(b)
(continued…)
20180984-CA 13 2020 UT App 51Onysko v. DEQ
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 in­chambers
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”).
20180984-CA 14 2020 UT App 51Onysko v. DEQ
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
20180984-CA 15 2020 UT App 51Onysko v. DEQ
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]
20180984-CA 16 2020 UT App 51Onysko v. DEQ
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
in­hearing 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.”
20180984-CA 17 2020 UT App 51Onysko v. DEQ
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
20180984-CA 18 2020 UT App 51Onysko v. DEQ
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.
§ 67­19a-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.
20180984-CA 19 2020 UT App 51Onysko v. DEQ
¶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 in­hearing 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 R137­1­18(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…)
20180984-CA 20 2020 UT App 51Onysko v. DEQ
¶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 well­established
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 in­hearing 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).
20180984-CA 21 2020 UT App 51Onysko v. DEQ
evaluate the evidence,” Utah Code Ann. § 63G­4-208(2)
(LexisNexis 2019), we conclude that “the Legislature . . . has
delegated discretion to the agency within the meaning of section
63G­4­403(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 pre­termination 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
63G­4­403(4)(d), meaning they are reviewed without deference,
for correctness.
20180984-CA 22 2020 UT App 51Onysko v. DEQ
¶36 Onysko’s last argument implicates the residuum rule 15 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
63G­4­403(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 in­hearing
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).
20180984-CA 23 2020 UT App 51Onysko v. DEQ
¶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, morale­breaking, and
intimidating nature of [Onysko’s] conduct.” Based on this, we
agree with DEQ that the Hearing Officer used Onysko’s
in­hearing 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
20180984-CA 24 2020 UT App 51Onysko v. DEQ
the parties that the Hearing Officer was tasked with resolving.
See Utah Admin. Code R137­1­21(3)(a). Thus, under the
circumstances of this case, the Hearing Officer’s consideration of
Onysko’s in­hearing 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.”
20180984-CA 25 2020 UT App 51Onysko v. DEQ
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
pre­termination 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…)
20180984-CA 26 2020 UT App 51Onysko v. DEQ
Department of Workforce Services, 2010 UT App 382, ¶ 17, 245 P.3d
758 (quotation simplified). See Utah Code Ann. § 63G­4­403(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 pre­termination 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 R477­11-2(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. § 63G­4­403(4) (LexisNexis
2019). Accordingly, UAPA, and not Gallegos, governs our review
in this case.
20180984-CA 27 2020 UT App 51Onysko v. DEQ
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
in­hearing 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.
20180984-CA 28 2020 UT App 51Onysko v. DEQ
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.
20180984-CA 29 2020 UT App 51Onysko v. DEQ
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
pre­disciplinary 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…)
20180984-CA 30 2020 UT App 51Onysko v. DEQ
appeal board did not violate due process when it heard evidence
concerning an incident that did not appear in the
pre­termination notice because the board did not rely on that
incident and had an independent, properly­noticed 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.
20180984-CA 31 2020 UT App 51Onysko v. DEQ
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
room­for­improvement 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…)
20180984-CA 32 2020 UT App 51Onysko v. DEQ
¶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 R137­1­21(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.
20180984-CA 33 2020 UT App 51Onysko v. DEQ
. . . 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.
20180984-CA 34 2020 UT App 51Onysko v. DEQ
¶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
over­document 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.
20180984-CA 35 2020 UT App 51Onysko v. DEQ
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.”
20180984-CA 36 2020 UT App 51Onysko v. DEQ
Hearing Officer therefore was not precluded from considering
that event as a ground supporting DEQ’s termination decision.
B. Pre­termination 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. § 63G­4­403(4)
20180984-CA 37 2020 UT App 51Onysko v. DEQ
(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
20180984-CA 38 2020 UT App 51Onysko v. DEQ
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
20180984-CA 39 2020 UT App 51Onysko v. DEQ
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.
20180984-CA 40 2020 UT App 51Onysko v. DEQ
¶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).
20180984-CA 41 2020 UT App 51Onysko v. DEQ
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 need­for­improvement 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…)
20180984-CA 42 2020 UT App 51Onysko v. DEQ
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.
20180984-CA 43 2020 UT App 51Onysko v. DEQ
2. He assails the finding that “[o]ther DDW
engineers were ‘on guard’ against [Onysko]
and regularly took extra time to
over­document 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.
20180984-CA 44 2020 UT App 51Onysko v. DEQ
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…)
20180984-CA 45 2020 UT App 51Onysko v. DEQ
(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.20180984-CA 46 2020 UT App 51