Brehm v. Department of Workforce Services ( 2014 )


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    2014 UT App 281
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    KIM R. BREHM,
    Petitioner,
    v.
    DEPARTMENT OF WORKFORCE SERVICES AND STATE OF UTAH,
    Respondents.
    Opinion
    No. 20130947-CA
    Filed November 28, 2014
    Original Proceeding in this Court
    Lauren I. Scholnick and Rachel E. Otto, Attorneys
    for Petitioner
    Suzan Pixton, Attorney for Respondent
    Department of Workforce Services
    SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
    which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
    concurred.1
    GREENWOOD, Senior Judge:
    ¶1   Kim R. Brehm petitions for judicial review of the Workforce
    Appeals Board’s (the Board) decision to deny her claim for
    unemployment benefits. We do not disturb the Board’s decision.
    BACKGROUND
    ¶2     Petitioner was employed by the judicial branch of the State
    of Utah (Employer) from July 3, 1995, through June 11, 2013. Prior
    1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
    special assignment as authorized by law. See generally Utah R. Jud.
    Admin. 11-201(6).
    Brehm v. Department of Workforce Services
    to her termination, she worked as a Senior Probation Officer in the
    Third District Juvenile Court, where she had access to the court’s
    juvenile tracking database referred to as “CARE.” This database is
    used by authorized court personnel to access a variety of
    information, including demographics, calendars, incident reports,
    e-citations, case relationships, assignments, related people in
    incidents, case dispositions, general accounting, case notes, orders,
    minutes, documents, critical messages, social summaries, substance
    abuse evaluations, and petitions. Most of the information stored in
    CARE is not accessible by the public; however, the juvenile courts
    allow access to some of these records via a different database called
    “MyCase,” which includes a special section that is accessible by a
    juvenile’s parents.
    ¶3      On May 24, 2013, Petitioner met with her supervisors to
    discuss her use of the CARE database. In that meeting, she was
    asked to explain why she had used CARE to repeatedly access two
    of her children’s case files,2 the case file of one of her children’s co-
    defendants, the files of cases assigned to another probation officer,
    and the files of six other supervisors.3 The meeting culminated in
    a formal request for a written explanation from Petitioner
    regarding her access of these files.
    ¶4     Petitioner provided her explanation in a letter dated May 29,
    2013. In that letter, Petitioner admitted that she had used CARE to
    access her children’s case files. She explained that she had done so
    in order to make sure that their fines were paid, that one of her
    children’s fines had been reduced because of good grades, and that
    the children had not missed any hearings. She also admitted to
    2. Petitioner’s children had apparently been the subjects of juvenile
    delinquency cases in the juvenile court system.
    3. Although somewhat confusing, the record refers to two sets of
    supervisors: Petitioner’s supervisors and supervisors who were co-
    workers of Petitioner. Consistent with the record, our opinion
    refers to both sets of supervisors, and we will attempt to preserve
    the distinction between the two sets as clearly as possible.
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    Brehm v. Department of Workforce Services
    accessing the case files of the other probation officer in order to
    “find out what the typical consequence was for someone who had
    committed a shoplifting offense” like her child.
    ¶5      She then admitted that she had also accessed the file of one
    of her children’s co-defendants, explaining that she had done so at
    the request of the co-defendant’s father, who was an acquaintance
    of hers. According to Petitioner, the father believed that a warrant
    had been issued for his son’s arrest, which prompted him to
    approach her for advice about what to do. Petitioner asserted that
    she advised the father to contact his son’s probation officer and that
    she gave him the officer’s contact information.
    ¶6      Finally, Petitioner also admitted that she had accessed the
    case files of six co-workers because she wanted to discover whether
    her supervisor was treating her differently from the other
    supervisors. Specifically, Petitioner suspected that her supervisor
    was giving her extra work and requiring her to perform additional
    tasks in retaliation for her taking leave under the federal Family
    and Medical Leave Act. See 
    29 U.S.C. §§ 2601
     to 2654 (2012).
    Accordingly, she accessed the case files of her co-workers in order
    to discover whether their work assignments were the same as hers.
    Throughout her letter, Petitioner argued that she was unaware of
    any policy or rule that prevented this sort of access and that such
    access was commonplace among probation officers. Nevertheless,
    she also admitted, “I already know your response to the majority
    of this letter, you are going to say that each individual [probation
    officer] has a right to privacy and I respect that . . . .”
    ¶7     After reviewing Petitioner’s explanation, Employer issued
    a written termination notice dated June 11, 2013. In that notice,
    Employer gave a detailed account of Petitioner’s use of the CARE
    database, as well as a number of reasons why it had concluded that
    termination was appropriate. The notice stated that, according to
    Employer’s information and technology department, Petitioner
    accessed her children’s case files on ten different occasions between
    March 28, 2013, and May 10, 2013. And although Petitioner had
    claimed that she was merely looking up fines and court dates, the
    access history indicated that she had also viewed other information
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    Brehm v. Department of Workforce Services
    in her children’s files, including “demographics, calendars,
    incidents, . . . reports, e-citations, case relationships, assignments,
    calendar, calendar event list, related people in incidents, case
    dispositions, general accounting, order account summary, notes,
    orders, documents, critical messages, assessments, and PI letters.”
    ¶8     Petitioner’s access history of her child’s co-defendant’s file
    also differed from her explanation. Although Petitioner claimed
    that she had merely provided the co-defendant’s father with the
    contact information of the co-defendant’s probation officer, her
    access history revealed that she had accessed the file on four
    different occasions and had viewed “incidents, demographics,
    orders, minutes, accounting, a substance abuse evaluation, social
    summaries, court reports, petitions, and case notes.” Employer
    further indicated that Petitioner’s access history made it clear that
    she had also accessed the files of the other probation officer and six
    other supervisors.
    ¶9     Employer concluded that Petitioner’s access of these files
    was not “for the purposes for which they were intended” and that
    she “had no legitimate business reason to access the information
    contained in these cases.” Employer then concluded that
    Petitioner’s access of these files violated various statutes, rules, and
    policies, including Utah’s Government Records Access and
    Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to
    -901 (LexisNexis 2011 & Supp. 2013), the Public Officers’ and
    Employees’ Ethics Act, id. §§ 67-16-1 to -15, the Utah Rules of
    Judicial Administration, and the policies contained in both
    Employer’s Human Resources and Probation Officer Policy
    manuals. After explaining each violation, Employer concluded that
    “nothing in [Petitioner’s] justification . . . overcomes the enormous
    weight of guidance from Statute, Rule and Policy prohibiting
    employees from using personal information of others, obtained by
    systems [under an employee’s] control for purposes other than
    they were intended.” Accordingly, Employer terminated
    Petitioner’s employment.
    ¶10 After her discharge, Petitioner applied for unemployment
    benefits. The Department of Workforce Services (DWS) denied her
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    Brehm v. Department of Workforce Services
    claim, concluding that “she knew or should have known looking
    up this information was wrong.” Petitioner appealed DWS’s
    decision, and a hearing was held before an administrative law
    judge (the ALJ). Employer did not participate at the hearing, but
    the ALJ did take sworn testimony from Petitioner. In her decision,
    the ALJ concluded that Petitioner’s testimony that she was not
    aware that she was violating any rule or policy was not credible,
    because “Employer prohibits accessing computer files for non-
    business purposes.” The ALJ further concluded that “Employer
    risks liability and public trust if employees access computer records
    for personal reasons. The [public] expects government and court
    records to be kept confidential.” Additionally, the ALJ observed
    that Petitioner “knew or should have known that accessing
    computer records without a legitimate business purpose or
    authorization was prohibited,” because “[i]t is . . . universal
    knowledge among government employees that accessing records
    for personal or non-business purposes is prohibited.” Accordingly,
    the ALJ affirmed DWS’s denial of benefits.
    ¶11 Petitioner then appealed the ALJ’s decision to the Board,
    which affirmed the ALJ’s decision. The Board agreed with the ALJ’s
    determination that “it is not credible that [Petitioner] did not know
    she could not access the files or cases of her coworkers and
    supervisors,” because “it is inconceivable that any state employee
    would not know that state employees cannot access private records
    unless there is a legitimate business purpose for doing so.” The
    Board further determined that “this was not an isolated incident”
    and that the potential harm to Employer was “so egregious as to
    warrant immediate discharge,” despite Petitioner’s long work
    history. Petitioner now asks us to review the Board’s decision.
    ISSUE AND STANDARD OF REVIEW
    ¶12 The central issue in this case is whether the Board acted
    properly when it determined that Petitioner was ineligible for
    unemployment benefits because Employer had just cause for
    discharging her. “Whether an employee is terminated for just cause
    is a mixed question of law and fact.” Southeastern Utah Ass'n of Local
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    Brehm v. Department of Workforce Services
    Gov’ts v. Workforce Appeals Bd., 
    2007 UT App 20
    , ¶ 6, 
    155 P.3d 932
    (citation and internal quotation marks omitted). Nevertheless,
    “[d]ue to the fact-intensive inquiry involved at the agency level,”
    cases involving unemployment benefits do “not lend [themselves]
    to consistent resolution by a uniform body of appellate precedent.”
    Carbon County v. Workforce Appeals Bd., 
    2013 UT 41
    , ¶ 7, 
    308 P.3d 477
    . Therefore, these cases are more “fact-like” than “law-like,” see
    id.; In re adoption of Baby B., 
    2012 UT 35
    , ¶ 42, 
    308 P.3d 382
    (explaining this distinction in cases dealing with mixed questions
    of law and fact), and the Board’s decision to award or deny
    unemployment benefits is entitled to deference, see Carbon County,
    
    2013 UT 41
    , ¶ 7. Accordingly, within the context of unemployment
    benefits, “we will not disturb the Board’s application of law to its
    factual findings unless its determination exceeds the bounds of
    reasonableness and rationality.” Johnson v. Department of Emp’t Sec.,
    
    782 P.2d 965
    , 968 (Utah Ct. App. 1989).
    ANALYSIS
    ¶13 Petitioner argues that because she did not violate any of the
    statutes, rules, or policies cited by Employer and because she did
    not violate a reasonable employment rule or a universal standard
    of conduct, the Board wrongly denied her claim for unemployment
    benefits. In the alternative, she argues that even if she did violate
    any of those rules or standards, Employer failed to show that she
    did so knowingly or with the degree of culpability required by
    Utah law. For the reasons stated below, we reject these arguments
    and uphold the Board’s denial of unemployment benefits.
    I. The Standard for Denying Unemployment Benefits Under the
    Utah Administrative Code Differs from Petitioner’s Description.
    ¶14 Petitioner asserts that because Employer did not meet the
    requirements of rule R994-405-208(1) of the Utah Administrative
    Code, the Board erred in denying her unemployment claim. That
    section provides that “[i]f a claimant violates a reasonable
    employment rule and just cause is established, benefits will be
    denied.” Utah Admin. Code R994-405-208(1) (emphasis added).
    20130947-CA                      6                
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    Brehm v. Department of Workforce Services
    Petitioner argues that her unemployment claim should have been
    granted because Employer failed to prove a violation of a
    “reasonable employment rule.” We disagree.
    ¶15 Petitioner’s reliance on rule R994-405-208(1) is misplaced. As
    its caption indicates, rule R994-405-208 merely provides “examples
    of reasons for discharge.” 
    Id.
     It does not, however, describe the
    only reasons for a “discharge.” In fact, rule R994-405-208 expressly
    incorporates other sections of the rule—namely, sections 201 and
    202—when it states, “In the following examples, the basic elements
    of just cause must be considered in determining eligibility for
    benefits.” 
    Id.
     (emphasis added). Accordingly, we look to sections
    201 and 202 of rule R994-405—not section 208—in order to
    understand what an employer is required to show before a claim
    for unemployment benefits can be properly denied. See 
    id.
     R994-
    405-203 (stating that an employer bears the burden of proving just
    cause).
    ¶16 Our case law is in accord with this approach in determining
    whether unemployment benefits are warranted. Our cases have
    consistently looked to sections 201 and 202 of rule R994-405 to
    determine what an employer must prove before DWS is justified in
    denying a claim for unemployment benefits. See, e.g., Spencer Law
    Office, LLC v. Department of Workforce Servs., 
    2013 UT App 138
    , ¶ 4,
    
    302 P.3d 1257
    ; Peyton v. Department of Workforce Servs., 
    2013 UT App 130
    , ¶ 3, 
    302 P.3d 1255
    ; Dinger v. Department of Workforce Servs.,
    
    2013 UT App 59
    , ¶ 15, 
    300 P.3d 313
    ; Nicol v. Department of Workforce
    Servs., 
    2012 UT App 360
    , ¶ 3, 
    293 P.3d 1101
    ; Provo City v.
    Department of Workforce Servs., 
    2012 UT App 228
    , ¶ 6, 
    286 P.3d 936
    .
    We are unaware of—and Petitioner does not provide a citation
    to—any Utah case where the standard for denying unemployment
    benefits was derived directly from rule R994-405-208. Accordingly,
    we analyze this case under the standards set forth in sections 201
    and 202, not section 208.
    ¶17 Under rule R994-405-201, in order to properly deny
    unemployment benefits, the claimant must have been discharged
    for “just cause.” See Utah Admin. Code R994-405-201; see also
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    Brehm v. Department of Workforce Services
    Spencer Law Office, 
    2013 UT App 138
    , ¶ 4. To show “just cause,” the
    employer must prove three elements: culpability, knowledge, and
    control. Utah Admin. Code R994-405-202 (setting forth definitions
    of culpability, knowledge, and control); 
    id.
     R994-405-203 (placing
    burden of proof on the employer); see also Spencer Law Office, 
    2013 UT App 138
    , ¶ 4.
    ¶18 Given the foregoing, Petitioner’s argument that it was
    necessary for the Board to first determine whether she had violated
    a specific statute, rule, policy, or universal standard of conduct
    before denying her claim for unemployment benefits is mistaken.
    Under sections 201 and 202 of rule R994-405, the Board’s task was
    to assess whether there was “just cause” for Petitioner’s discharge,
    which entailed determining whether Employer had shown
    culpability, knowledge, and control. The majority of the Board
    concluded that each of these elements had been adequately shown
    and, consequently, denied Petitioner’s claim. We therefore do not
    focus on Petitioner’s arguments about specific violations but
    instead review the Board’s assessment of each of the elements of
    “just cause.”
    II. The Board Did Not Err in Its Conclusion that Employer Had
    Adequately Shown “Just Cause” for Petitioner’s Discharge.
    ¶19 Petitioner argues that because Employer did not adequately
    show culpability or knowledge, it failed to establish just cause and
    the Board accordingly erred in denying her claim. We disagree.
    A.     The Board’s Conclusion that the Severity of Petitioner’s
    Actions Outweighed Her Work History Was Not
    Unreasonable or Irrational.
    ¶20 In order to demonstrate culpability, the employer must
    show the following:
    The conduct causing the discharge must be so serious
    that continuing the employment relationship would
    jeopardize the employer’s rightful interest. If the
    conduct was an isolated incident of poor judgment
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    Brehm v. Department of Workforce Services
    and there was no expectation it would be continued
    or repeated, potential harm may not be shown. The
    claimant’s prior work record is an important factor in
    determining whether the conduct was an isolated
    incident or a good faith error in judgment. An
    employer might not be able to demonstrate that a
    single violation, even though harmful, would be
    repeated by a long-term employee with an
    established pattern of complying with the employer’s
    rules. In this instance, depending on the seriousness
    of the conduct, it may not be necessary for the
    employer to discharge the claimant to avoid future
    harm.
    Utah Admin. Code R994-405-202(1). Petitioner argues that it was
    error for the Board to conclude that her work history—containing
    only isolated incidents of discipline, none of which related to
    accessing private files for personal reasons—did not outweigh the
    severity of her actions. Employer responds by arguing that it was
    neither unreasonable nor irrational for the Board to conclude that
    the severity of Petitioner’s actions was such that termination was
    necessary in order to protect its “rightful interests.”
    ¶21 In Kehl v. Board of Review of the Industrial Commission, 
    700 P.2d 1129
     (Utah 1985), an employee was terminated after failing to
    follow her employer’s safety policies and procedures for
    transporting explosives across a set of railroad tracks. 
    Id.
     at
    1131–32. Although the employee’s termination was based upon a
    single instance of misconduct, the Utah Supreme Court ultimately
    concluded that the employer had adequately shown culpability. Id.
    at 1134. Specifically, the court observed that “a single violation of
    a safety rule may be sufficient to show that the potential harm to
    the employer’s interests warranted discharge.” Id. It also
    emphasized that the analysis of culpability should not focus “upon
    the number of violations” but rather upon the “problem of whether
    the discharge was necessary to avoid actual or potential harm to
    the employer’s rightful interest.” Id. (citation and internal quotation
    marks omitted).
    20130947-CA                       9                 
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    Brehm v. Department of Workforce Services
    ¶22 In this case, the Board determined that despite Petitioner’s
    generally favorable work history, her conduct was “so egregious
    as to warrant immediate discharge.” This is so because, according
    to both the Board and the ALJ, Employer had a rightful interest in
    preserving the public trust and avoiding any liability that might
    ensue if court employees accessed private files for personal
    reasons.
    ¶23 The United States Supreme Court has observed that the
    power of the judicial branch lies “in its legitimacy, [which is] a
    product of substance and perception that shows itself in the
    people’s acceptance of the Judiciary as fit to determine what the
    Nation’s law means and to declare what it demands.” Planned
    Parenthood of Se. Pa. v. Casey, 
    505 U.S. 833
    , 865 (1992). We believe
    that this is especially true with respect to our juvenile courts, which
    aspire to “act in the best interests of the minor in all cases and
    preserve and strengthen family ties,” while acting “consistent with
    the ends of justice.” Utah Code Ann. § 78A-6-102(5)(g) (LexisNexis
    2012). As an employer, therefore, the state judiciary has a “rightful
    interest” in preserving a legitimate, positive public perception of
    the judiciary by demanding that judges and judicial employees
    conduct themselves with the highest levels of integrity.
    ¶24 Consonant with this goal, the judiciary has adopted rules
    similar to GRAMA regarding court records, exhibits, and files. See
    Utah R. Jud. Admin. 4-202. In fact, portions of these rules
    specifically address juvenile court records and restrict access to
    juvenile court “social” and “legal” records. Id. R. 4-202.02(6)–(7),
    -202.03(5)–(6) (classifying certain records as juvenile “social” or
    “legal” records and restricting access to them). Specifically, rule 4-
    202.03 of the Utah Rules of Judicial Administration permits court
    personnel to access court records “only to achieve the purpose for
    which the record was submitted.” Id. R. 4-202.03. And finally, as
    pointed out by Employer, there are also policies in place governing
    the conduct of juvenile probation officers that encourage them to
    “observe high standards of conduct so that the Judiciary is
    preserved, and public confidence [in] the judiciary is promoted.”
    Thus, it cannot be disputed that Petitioner’s accessing CARE
    records for purposes outside of her employment responsibilities
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    Brehm v. Department of Workforce Services
    was inconsistent with rules and policies restricting such access and
    designed to ensure confidentiality.
    ¶25 In light of the foregoing, the ALJ correctly observed that
    “[t]he public expects government and court records to be kept
    confidential” and that “Employer risks liability and [loss of] public
    trust if employees access computer records for personal reasons.”
    We also defer to the Board’s finding that given the presence of the
    statutes, rules, and policies discussed above, it is inconceivable that
    any state employee—much less an employee with over eighteen
    years of experience as a public servant within the judicial
    branch—would not realize that accessing confidential case files for
    personal reasons violates the public’s trust and ultimately serves to
    undermine the legitimacy of the judiciary. Accordingly, it was
    neither unreasonable nor irrational for the Board to conclude that
    despite her favorable work history, Petitioner’s actions were “so
    egregious as to warrant immediate discharge.” Indeed, even
    though Petitioner may have been able to access some of the same
    information through the parental section of the MyCase website, it
    is clear that most of the information she accessed—including the
    substance abuse evaluation of her child’s co-defendant and the files
    of another probation officer and her co-workers—was not available
    to other parents through MyCase and that accessing them was
    therefore a serious violation. Thus, the Board’s determination that
    Employer adequately demonstrated culpability was both rational
    and reasonable.
    B.     It Was Not Error for the Board To Conclude that Petitioner
    Knew that Her Conduct Was Unacceptable.
    ¶26 Petitioner also argues that the Board erred in concluding
    that Employer had adequately met the “knowledge” requirement
    of just cause. Specifically, she argues that she never received any
    training or written policies regarding the use of the CARE database
    and that Employer never issued a warning regarding her conduct.
    As noted above, however, the Board concluded that “it is
    inconceivable that any state employee would not know that state
    employees cannot access private records unless there is a legitimate
    business purpose for doing so.”
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    ¶27 In order to show “knowledge,” an employer must show that
    the employee “had knowledge of the conduct the employer
    expected.” Utah Admin. Code R994-405-202(2). In this case,
    Petitioner’s own admissions show that she knew that the files of the
    other supervisors she was accessing were private and that those
    supervisors were entitled to a “right to privacy.” In her letter dated
    May 29, 2013, she stated, “I already know your response to the
    majority of this letter, you are going to say that each individual
    [probation officer] has a right to privacy and I respect that . . . .”
    This admission is sufficient to establish knowledge because it
    shows that Petitioner knew that both Employer and the other
    supervisors expected these files to remain private. This conclusion
    is further buttressed by the observations made in the prior section
    of this opinion regarding the near-universal knowledge among
    both government employees and the public at large that many
    government records—and particularly many juvenile court
    records—are confidential, that accessing them for non-business
    purposes is prohibited, and that such access can lead to serious
    consequences. Accordingly, it was neither irrational nor
    unreasonable for the Board to conclude that Employer had
    adequately proven the “knowledge” element of just cause.
    CONCLUSION
    ¶28 The Board did not err by failing to first determine whether
    Petitioner had violated a specific statute, policy, rule, or universal
    standard of conduct. Rather, it correctly applied the “just cause”
    standard for denying unemployment benefits, and its analysis of
    the elements of that standard do not depart from the “bounds of
    reasonableness and rationality.” Accordingly, we decline to disturb
    the Board’s denial of Petitioner’s claim.
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Document Info

Docket Number: 20130947-CA

Judges: Greenwood, Orme, Voros

Filed Date: 11/28/2014

Precedential Status: Precedential

Modified Date: 11/13/2024