Hollenbach v. Salt Lake City Corporation , 810 Utah Adv. Rep. 24 ( 2016 )

2016 UT App 64THE UTAH COURT OF APPEALS
GREG HOLLENBACH,
Appellant,
v.
SALT LAKE CITY CORPORATION,
Appellee.
Memorandum Decision
No. 20140200-CA
Filed April 7, 2016
Salt Lake City Civil Service Commission
Decision of February 10, 2014
Bret W. Rawson, Nate N. Nelson, and Jeremy G.
Jones, Attorneys for Appellant
J. Elizabeth Haws, Attorney for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
concurred.
TOOMEY, Judge:
¶1 In this appeal, 1 we must decide whether the Salt Lake City
Civil Service Commission (the CSC) erred when it determined it
lacked jurisdiction to review Greg Hollenbach’s appeal of his
discharge from the Salt Lake City Police Department (the City).
The CSC made this determination because it received
Hollenbach’s appeal in the mail one day after the deadline for
1. Although challenges to administrative agency decisions are
generally made by filing a petition for review in this court,
appeals from a civil service commission’s final action or order are
made by filing a notice of appeal. Utah Code Ann. § 10-3-1012.5
(LexisNexis 2015).
Hollenbach v. Salt Lake City Corporation
filing an appeal. Because we conclude that when an appeal is
mailed to the CSC, a post office cancellation mark establishes the
date upon which the appeal was filed, we set aside the CSC’s
decision and remand for further proceedings.
¶2 The City discharged Hollenbach with a letter hand-
delivered to him on November 8, 2013. The letter informed
Hollenbach that he could challenge his discharge with a written
“request for appeal” addressed to the CSC “within five (5)
business days.” The last day for Hollenbach to do this was
November 18, 2013.
¶3 Hollenbach sent the CSC a letter captioned “Notice of
Appeal,” and mailed it via United States Postal Service
(the USPS) certified mail. The letter was dated and signed on
November 11, 2013, and the envelope was postmarked the same
date. According to the certified receipt, the USPS processed the
envelope on November 12 but delivered it, and the CSC stamped
it “received,” on November 19, 2013.
¶4 Although Hollenbach submitted proof that he mailed the
appeal of his discharge days in advance of November 18, the
CSC concluded that it had no jurisdiction to consider the appeal
because it received the notice after November 18. It issued an
order explaining its decision, and this appeal followed.
I. Preservation
¶5 Hollenbach argues the CSC erred in determining that his
notice of appeal was not filed in a timely fashion, thereby
depriving it of jurisdiction. Relying on Utah Code subsection 68-
3-8.5(2)(a), which expressly provides that a report or other
document is considered filed with the state or one of its political
subdivisions on the date shown by the post office cancellation
mark stamped on the envelope, Hollenbach reasons that his
appeal was filed on time because it was postmarked before
the deadline. The City argues that Hollenbach failed to preserve
20140200-CA 2 2016 UT App 64Hollenbach v. Salt Lake City Corporation
this argument because he did not raise it when the CSC
considered the matter.
¶6 Generally, “‘[a]n issue is preserved for appeal when it has
been presented to the district court in such a way that the court
has an opportunity to rule on [it].’” Helf v. Chevron U.S.A. Inc.,
2015 UT 81, ¶ 42, 361 P.3d 63 (second alteration in original)
(quoting Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828).
This “ensure[s] that the district court had a chance to rule on an
issue before an appellate court will address it” and “promotes
both judicial economy and fairness to the parties.” Helf, 2015 UT
81, ¶ 42. It follows that “[w]here a district court itself raises and
then resolves an issue sua sponte, it obviously had an
opportunity to rule on the issue,” which “satisfies the basic
purpose of the preservation rule.” Id.; accord Kell v. State, 2012 UT
25, ¶¶ 10–12, 285 P.3d 1133. The same logic applies to the
proceedings of the CSC, and thus to our review of this case. Cf.
ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 11, 211
P.3d 382 (explaining that “the preservation rule applies [to
reviewing state agency decisions] when the issue raised on
appeal could have been resolved in the administrative setting”).
¶7 Here, the CSC itself raised and resolved whether the term
“filing” referred to the date the notice was mailed or the date it
was received. It acknowledged that its jurisdiction “turn[ed] on
the meaning of the word ‘filed,’” and relied on this court’s
holding in Maverik Country Stores, Inc. v. Industrial Commission,
860 P.2d 944 (Utah Ct. App. 1993) to guide its interpretation.
¶8 The City also contends that Hollenbach’s argument was
not preserved because the CSC never had a chance to consider
the authority on which Hollenbach now relies to support his
arguments. Again, we are not persuaded. Appellate courts will
“routinely consider new authority relevant to issues that have
properly been preserved” and will not “disregard controlling
authority that bears upon the ultimate resolution of a case solely
because the parties did not raise it below.” Patterson, 2011 UT 68,
20140200-CA 3 2016 UT App 64Hollenbach v. Salt Lake City Corporation
¶ 18; see also id. ¶ 13 (“Our preservation requirement is self-
imposed and is therefore one of prudence rather than
jurisdiction.”). We conclude that because the CSC had a chance
to resolve the issue and decided it, the issue was preserved.
II. Timeliness
¶9 Our review of the CSC’s decision “shall be on the record
of the commission and shall be for the purpose of determining if
the commission has abused its discretion or exceeded its
authority.” Utah Code Ann. § 10-3-1012.5 (LexisNexis 2015).
But as our supreme court has explained “legal errors, such as the
incorrect interpretation of a statute or the application of an
improper legal standard, are usually an abuse of discretion.”
Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶ 49,
358 P.3d 1075; accord Snow, Christensen & Martineau v. Lindberg,
2013 UT 15, ¶ 17, 299 P.3d 1058. Accordingly, we review an
agency’s interpretation of its own rules under an intermediate
standard, deferring to the agency’s interpretation only so long as
it is both reasonable and rational. See Dorsey v. Department of
Workforce Servs., 2012 UT App 364, ¶ 8, 294 P.3d 580, aff’d,
2014 UT 22, 330 P.3d 91; see also Westside Dixon Assocs. LLC v.
Utah Power & Light Co./Pacificorp, 2002 UT 31, ¶ 7, 44 P.3d 775.
“Our determination of reasonableness is guided by the
fundamental principle that an agency’s rules ‘must be construed
in a manner consistent with the statute.’” Dorsey, 2012 UT App
364, ¶ 8 (quoting SF Phosphates Ltd. Co. v. Auditing Div., Utah
State Tax Comm’n, 972 P.2d 384, 386 (Utah 1998)).
¶10 The CSC, “like other tribunals of limited jurisdiction, can
exercise only such powers as are conferred upon it by statute.”
Salt Lake City Corp. v. Salt Lake City Civil Serv. Comm’n, 908 P.2d
871, 875 (Utah Ct. App. 1995) (citation and internal quotation
marks omitted); accord Utah Const. art. XI, § 8. Under the
controlling statute, which is part of the Utah Municipal Code,
the CSC is charged with regulating employment in the police,
fire, and health departments, including hearing and determining
20140200-CA 4 2016 UT App 64Hollenbach v. Salt Lake City Corporation
appeals from suspensions and discharges. Utah Code Ann. § 10-
3-1012. The CSC statute provides that “[a]ny person suspended
or discharged may, within five days from the issuance . . . of the
order of suspension or discharge, appeal to the civil service
commission.” Id. § 10-3-1012(2). Although the statute provides
that the CSC “shall fully hear and determine the matter,” id., it
does not establish procedural rules for appeals and instead
authorizes the CSC to “make all necessary rules and regulations”
to carry out its work, id. § 10-3-1006.
¶11 In accordance with this authority, the CSC adopted a rule
to establish a procedure for appealing a discharge. The rule
provides:
All requests for appeals must be in writing,
addressed to the Commission, and filed with the
Secretary of the Commission. Depending on the
manner of delivery of the decision or action being
appealed, all requests for appeal must be filed . . .
within five (5) business days of the date the
decision or action was personally delivered to the
person requesting the appeal.
Salt Lake City Civil Service Commission Rules & Regulations 6-
2-1 (2012) (emphasis added), https://perma.cc/8YH2-A84K. Thus,
whether Hollenbach’s notice of appeal was timely under this
rule depends on the meaning of the term “filed.”
¶12 The interpretation of any rule begins with its plain
language. R & R Indus. Park, LLC v. Utah Prop. & Cas. Ins. Guar.
Ass’n, 2008 UT 80, ¶ 23, 199 P.3d 917. But the CSC’s rules are
“‘subordinate to statutes and cannot confer greater rights or
disabilities.’” See Dorsey, 2012 UT App 364, ¶ 19 (quoting Rocky
Mountain Energy v. Utah State Tax Comm’n, 852 P.2d 284, 287
(Utah 1993)). We must therefore construe the language of the
CSC’s rule in a manner “‘consistent with its governing statutes.’”
20140200-CA 5 2016 UT App 64Hollenbach v. Salt Lake City Corporation
See id. ¶ 19 (quoting Sanders Brine Shrimp v. Audit Div. of the Utah
State Tax Comm’n, 846 P.2d 1304, 1306 (Utah 1993)).
¶13 The requirement that an appeal to the CSC must be
“filed” is not in the governing statute; the CSC added this
provision to the rule it promulgated. Accordingly, we must
interpret the term “filed” based on its plain language and also
must ensure the term is interpreted in a manner consistent with
the Utah Code.
¶14 Hollenbach argues Utah Code section 68-3-8.5, which
defines when reports and other documents are filed, governs
appeals filed with the CSC. The City disagrees for two reasons.
It argues section 68-3-8.5 does not apply because (1) a request for
appeal sent to the CSC does not fall within the statute’s
definition of report and (2) a request for appeal sent to the CSC
is like an appeal governed by the Utah Rules of Civil Procedure,
which defines the term “filed” as the date a document is
received.
¶15 Under Utah Code section 68-3-8.5, unless otherwise
provided by statute,
a report . . . that is transmitted through the United
States mail is considered to be filed or made and
received by the state or political subdivision on the
date shown by the post office cancellation mark
stamped upon the envelope or other appropriate
wrapper containing it.
Utah Code Ann. § 68-3-8.5(2)(a)(i)–(ii) (LexisNexis 2014). If “a
report . . . is mailed but not received by the state or political
subdivision,” the report “is considered to be filed or made and
received on the date it was mailed if . . . the sender establishes by
competent evidence that the report . . . was deposited in the
United States mail on or before the date for filing or paying.”
Id. § 68-3-8.5(2)(b).
20140200-CA 6 2016 UT App 64Hollenbach v. Salt Lake City Corporation
¶16 We must first consider whether a request for appeal
directed to the CSC is a “report” within the meaning of Utah
Code section 68-3-8.5. The City argues that an appeal to the CSC
“falls outside of the plain language” of this statute, reasoning
that it applies only in limited circumstances—primarily when
payments are at issue. We are not persuaded.
¶17 The statute provides that it applies to “reports,” which are
broadly defined as “a report, claim, tax return, statement, or
other document required or authorized to be filed with . . . a
political subdivision of the state.” Id. § 68-3-8.5(1)(b). The statute
does not limit its applicability to particular types of cases or
claims. See id. § 68-3-8.5. Rather, its general terms indicate it
applies in many different scenarios in which it would be
necessary to determine when a document was filed with the
government or a payment was made. See id. Indeed, consistent
with a broad interpretation of the term “report,” we note that
our court has determined that the statute applies to documents,
such as a request for a hearing regarding a notice of violation
issued by a municipality, West Valley City v. Foy, 2004 UT App
335, 100 P.3d 275, and notices of claims under the Government
Immunity Act of Utah, Fuqua v. Alpine Sch. Dist., 2014 UT App
81, 324 P.3d 680 (per curiam); Harward v. Utah County, 2000 UT
App 222, 6 P.3d 1140. Accordingly, we see no reason why a
request for appeal would not fall within the statute’s definition
of “report.” See Utah Code Ann. § 68-3-8.5(1)(b).
¶18 We next consider the City’s argument that Hollenbach’s
appeal is “akin to a legal filing” and “the CSC is a quasi-judicial
body akin to a court,” and therefore the word “filed” should be
interpreted in a manner consistent with the Utah Rules of Civil
Procedure. The City relies on Maverik Country Stores, Inc. v.
Industrial Commission, 860 P.2d 944 (Utah Ct. App. 1993), in
which this court rejected a petitioner’s argument that “filing”
referred to the date it mailed documents to a state agency, and
stated, “[I]t is clear that under the procedural rules which govern
20140200-CA 7 2016 UT App 64Hollenbach v. Salt Lake City Corporation
our courts, filing requires actual delivery to the court.” Id. at 950.
We are not convinced by the City’s arguments.
¶19 By definition, an “appeal” can refer to “a legal proceeding
by which a case is brought from a lower court to a higher court
for rehearing” or it can refer to “an application or reference (as to
a recognized authority) for corroboration, vindication, or
decision.” Webster’s Third New Int’l Dictionary 103 (1966);
accord Appeal, Merriam-Webster Online, https://perma.cc/2CPR-
5J55 (last visited Mar. 3, 2016). The first meaning offers a more
technical sense of the word, and such an appeal from a court
decision is subject to the Utah Rules of Appellate Procedure and
Rules of Civil Procedure. See Utah R. App. P. 1 (“These rules
govern the procedure before the Supreme Court and the Court
of Appeals of Utah in all cases.”); Utah R. Civ. P. 1 (“These rules
govern the procedure in the courts of the state of Utah . . . .”).
But in the context of appealing discharge decisions to the CSC,
we think the less technical sense of the word “appeal” applies.
Although “a right to appeal to the [CSC] is granted to the
discharged officer or employee” and “[t]he [CSC] is made the
ultimate authority to determine whether the discharge should or
should not stand,” Vetterli v. Civil Serv. Comm’n of Salt Lake City,
145 P.2d 792, 795–96 (Utah 1944), the similarity to a legal
proceeding in a court of law ends there. The CSC “is neither a
court of law nor a state administrative agency subject to the Utah
Administrative Procedures Act.” Lucas v. Murray City Civil Serv.
Comm’n, 949 P.2d 746, 755 (Utah Ct. App. 1997). By its own
account, the CSC uses the Utah Rules of Civil Procedure merely
as a guide, and they “are not strictly followed or applied.”
Salt Lake City Civil Service Commission Rules & Regulations 6-
4-5(2) (2012), https://perma.cc/8YH2-A84K.
¶20 Rather, the CSC is a three-member panel “appointed by
the city legislative body,” Utah Code Ann. § 10-3-1003(2)
(LexisNexis 2015), where “proceedings are usually conducted
with greater flexibility and informality than judicial proceedings,”
20140200-CA 8 2016 UT App 64Hollenbach v. Salt Lake City Corporation
cf. Pilcher v. State, 663 P.2d 450, 453 (Utah 1983) (explaining that
strict “adherence to judicial procedures in administrative
proceedings is generally inappropriate because it ignores basic
differences between judicial and administrative procedures”).
Indeed, the CSC’s authority is limited to “provid[ing] closure to
disciplinary disputes” involving subordinates in several city
departments. Salt Lake City Corp. v. Salt Lake City Civil Serv.
Comm’n, 908 P.2d 871, 875–76 (Utah Ct. App. 1995). It cannot
modify decisions or remand disciplinary decisions for further
proceedings—it may only offer “a simple thumbs up or thumbs
down on the [department’s] suspension or termination
decisions.” Id.; see also Vetterli, 145 P.2d at 796 (holding that the
CSC cannot substitute its judgment for that of the department’s).
Because an appeal to the CSC is not a legal proceeding in a court,
we determine that it is “an application or reference (as to a
recognized authority) for corroboration, vindication, or
decision.” See Webster’s Third New Int’l Dictionary 103 (1966);
accord Appeal, Merriam-Webster Online, https://perma.cc/2CPR-
5J55 (last visited Mar. 3, 2016).
¶21 Finally, to interpret the term “filed” as the City urges
would render the CSC’s rule invalid. Utah Code section 68-3-8.5
provides that a report is considered filed on the date it is
postmarked. Utah Code Ann. § 68-3-8.5(2)(a)(i) (LexisNexis 2014).
By contrast, the CSC has concluded that the date of receipt
determines when a request for appeal is filed. Because a report—
in this case the request for appeal—that is timely “filed” under
the Utah Code could be considered untimely under the CSC
rule, the CSC’s interpretation of the rule conflicts with state law,
and such an interpretation is thus impermissible. See Hansen v.
Eyre, 2005 UT 29, ¶ 15, 116 P.3d 290 (explaining that city
ordinances that conflict with a statute are invalid).
¶22 Furthermore, the CSC’s interpretation of its rule
improperly imposes greater disabilities than those imposed by
the Utah Code. See Dorsey v. Department of Workforce Servs., 2012
20140200-CA 9 2016 UT App 64Hollenbach v. Salt Lake City Corporation
UT App 364, ¶ 19, 294 P.3d 580 (explaining that state agency
rules “are subordinate to statutes and cannot confer greater
rights or disabilities” (citation and internal quotation marks
omitted)), aff’d, 2014 UT 22, 330 P.3d 91. For instance, if an
employee mails the notice of appeal, the time for preparing it is
reduced to allow time for delivery. An employee would be liable
for factors largely out of the employee’s control, e.g., whether the
USPS will deliver it in time and whether someone at the CSC
will be available to receive it when it is delivered.
¶23 Based on this analysis, and consistent with our decisions
in other cases, we conclude that a proper interpretation of the
term “filed” is based on the legislature’s approved usage of the
word as defined in Utah Code section 68-3-8.5. See, e.g, West
Valley City v. Foy, 2004 UT App 335, ¶¶ 3–5, 100 P.3d 275(holding that, under Utah Code section 68-3-8.5, a property
owner’s request for hearing is deemed “filed” when the request
was mailed to West Valley City); Harward v. Utah County, 2000
UT App 222, ¶¶ 7–8, 6 P.3d 1140 (holding that a notice of claim
against the government under the Governmental Immunity Act
of Utah is deemed “delivered” on the date shown by the post
office cancellation mark).
CONCLUSION
¶24 We conclude the CSC erred in interpreting the term
“filed” and therefore reverse its order determining that it lacked
jurisdiction over Hollenbach’s appeal. Because our resolution
of this issue is dispositive, we need not reach the other issues
raised on appeal. We therefore remand for consideration of
Hollenbach’s appeal on its merits.
20140200-CA 10 2016 UT App 64