Cieply v. Weber County Career Service , 2024 UT App 36 ( 2024 )

2024 UT App 36THE UTAH COURT OF APPEALS
CHARLES CIEPLY,
Appellant,
v.
WEBER COUNTY CAREER SERVICE COUNCIL AND WEBER COUNTY,
Appellees.
Opinion
No. 20220449-CA
Filed March 21, 2024
Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 200905611
Jeremy G. Jones and Richard R. Willie,
Attorneys for Appellant
Christopher F. Allred and Courtlan P. Erickson,
Attorneys for Appellees
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
ORME, Judge:
¶1 Charles Cieply appeals his demotion from the rank of
corporal to the rank of deputy and a temporary reduction in pay.
This disciplinary action was imposed for Cieply’s multiple
violations of a Weber County policy prohibiting the supervision
of relatives. Because the discipline was neither proportional nor
consistent, we reverse the district court and vacate the order of the
administrative law judge (the ALJ) imposing these sanctions.
Cieply v. Weber County
BACKGROUND 1
¶2 In 2015, Cieply began working as a deputy at the Weber
County Sheriff’s Office (the Sheriff’s Office), which oversees two
jail facilities in Ogden, Utah. In 2018, Cieply was promoted to the
rank of corporal. This promotion came with additional
responsibilities, including “command of a post” that consisted of
four housing pods. Cieply’s wife is employed as a corrections
assistant at the same jail where he primarily works.
¶3 At all relevant times, the Weber County Human Resources
Nepotism Policy (the nepotism policy) was in effect. Under the
nepotism policy, “No county officer or employee shall directly or
indirectly supervise a relative in any county position or
employment paid out of county funds.” The list of relatives that a
county officer was prohibited from supervising included, as
relevant here, an officer’s wife and uncle. The Sheriff’s Office also
had a policy in place that, for purposes of this appeal, was similar
to the nepotism policy. 2
1. Because Cieply does not challenge the ALJ’s findings of fact,
which the district court affirmed, “we state the facts and all
legitimate inferences to be drawn from them in the light most
favorable to the [ALJ’s] findings.” WWC Holding Co. v. Public
Service Comm’n, 2002 UT 23, ¶ 2, 44 P.3d 714.
2. Below, Cieply argued that the Sheriff’s Office policy conflicted
with the nepotism policy because the former was less stringent
than the latter, thus causing confusion. But both the ALJ and the
district court rejected this argument. The ALJ held “that although
there is conflicting language between the Sheriff’s Office written
policy and Weber County’s written policy, that conflict is not
relevant here” because it was confined to an exception that did
not apply to this case. Similarly, the district court held that “no
(continued…)
20220449-CA 2 2024 UT App 36Cieply v. Weber County
¶4 Cieply’s first violation of the nepotism policy occurred in
June 2019, when he was assigned to work at the same housing pod
that his wife was assigned to. Subsequently, in an “informal
discussion,” Cieply’s supervising sergeant at the time informed
him that the supervision of his wife violated the nepotism policy.
Following the discussion, Cieply “understood that his
supervisors’ interpretation of [the nepotism policy] prohibited
[him] from supervising—in this case working in the same post—
as his wife.” Cieply received “[n]o formal discipline of any kind”
for this first violation. In a subsequent email to a supervising
lieutenant (Lieutenant), the sergeant stated that following the
informal conversation, “Cieply understood the policy and that in
the future [he] would make all efforts to remedy the situation if it
happened again.” The sergeant also told Lieutenant that he would
email the other housing sergeants to advise them not to assign
Cieply to the same post as his wife. The sergeant later testified
before the ALJ that he did send such an email, although it was not
submitted into evidence. Toward the end of that year, that
sergeant was reassigned, and Cieply began reporting to a
different sergeant (Sergeant).
¶5 In January 2020, Cieply was assigned to supervise his wife
six times, but Cieply was directly responsible for making only one
of those assignments. These violations came to the attention of
Lieutenant during his regular review of post logs. Lieutenant
subsequently informed Sergeant that such assignments “must
cease immediately.” He also initiated disciplinary proceedings
against Cieply, which included issuing a Notice of Potential
Discipline.
material conflict in the two policies has been demonstrated, and
the legal determination of which policy controls is not in
substantial question.” Cieply does not challenge these rulings on
appeal.
20220449-CA 3 2024 UT App 36Cieply v. Weber County
¶6 In addition to the nepotism policy violations, the notice
also charged Cieply with “disregarding safety protocols and
practices that are in place to keep staff and inmates safe” (the
safety policy). 3 Specifically, in November 2019, Cieply had failed
to properly restrain two maximum-security inmates before
opening cell doors to respond to an exigent circumstance.
¶7 Cieply responded to the charges at a pre-determination
hearing. 4 Subsequently, the Weber County Sheriff (the Sheriff)
issued a Notice of Discipline finding that Cieply had violated the
nepotism policy and the safety policy. The Sheriff disciplined
Cieply for those violations by imposing a permanent $1.30 hourly
pay reduction and demoting him back to the rank of deputy.
Cieply appealed the Sheriff’s decision to the Weber County
Career Service Council, which referred the matter to the ALJ. See
Utah Code Ann. § 17-33-4.5(3) (LexisNexis 2017).
¶8 Before the ALJ, evidence was presented that Lieutenant
and another corporal had also violated the nepotism policy.
Namely, Lieutenant, during a temporary placement as chief
deputy over corrections, had indirectly once supervised his uncle
in late 2019 and possibly “for a longer period of time in 2018.”
Lieutenant testified that in 2018, the nepotism policy “was not
closely followed,” but that changed when a new human resources
director was hired. The new director in question, however,
testified at the hearing—and the ALJ later found—that the
nepotism policy, which prohibited both direct and indirect
3. The notice additionally listed several other violations that the
Sheriff ultimately did not cite in the subsequent Notice of
Discipline as bases for the discipline he eventually imposed on
Cieply. See infra ¶ 7.
4. Per Weber County’s policy, the purpose of a pre-determination
hearing is to give an employee facing discipline “an opportunity
to be heard and provide new or additional information that might
be cause to prevent disciplinary action.”
20220449-CA 4 2024 UT App 36Cieply v. Weber County
supervision of relatives, went into effect in mid-2017 and that
there had been much pushback at the time. The director opined
that Lieutenant’s indirect supervision of his uncle violated the
nepotism policy.
¶9 The corporal, like Cieply, had been assigned to the same
shift as his wife, who also worked as a corrections assistant at the
jail. 5 Lieutenant testified that he had not initiated an investigation
into the corporal for violating the nepotism policy because he had
not gotten a personnel complaint. But Lieutenant had earlier
testified that he was the one who initiated the personnel complaint
against Cieply. There was no evidence presented that either
Lieutenant or the corporal had received warnings or otherwise
been disciplined for their violations.
¶10 Sergeant testified that at the time he made the January
assignments, he was aware of the nepotism policy and that Cieply
and his wife were married, but he did not recall receiving an email
from Cieply’s prior sergeant advising that Cieply and his wife
were not to be assigned to work together. He also stated that
shortly after the violations, around February 2020, Lieutenant
called to inform him that Cieply and his wife were not to work
5. The ALJ’s order did not specify how many times the other
corporal violated the nepotism policy, but it likely occurred
multiple times. Notably, the ALJ’s order did not list the number
of violations as a distinguishing factor between Cieply’s
violations and that of the other corporal. Additionally, a deputy
testified that he saw the corporal working as the officer in charge
where his wife would have been under his supervision. Cieply
also testified regarding an instance in which the corporal was the
officer in charge and would have had a supervisory role over his
wife. And in his brief, Cieply asserts that shift schedules in the
record “clearly show [the corporal] and his wife . . . on the same
squad and schedule from December [2019] though April 2020,”
which assertion Weber County has not contradicted.
20220449-CA 5 2024 UT App 36Cieply v. Weber County
together. Sergeant also testified that during the call, Lieutenant
verbally reprimanded him for making the assignments, although
there was no evidence presented that the reprimand was ever
documented or otherwise formalized. Sergeant could not recall
whether Cieply had approached him at the time to advise him that
he should not be working with his wife, although “[h]e may
have.”
¶11 Cieply testified that he told Sergeant that he and his wife
were not supposed to work together and that Sergeant responded,
“[W]ell, if anything comes up, let me know and we’ll handle it
then, we’ll cross that bridge or we’ll find someone who can.”
Cieply stated that he considered Sergeant’s staffing assignments
to be an order and that when he had previously questioned
orders, he “was told that policy’s not a by the letter thing, it’s a
guideline.” This testimony is supported by a Coaching Note
issued to Cieply in August 2019—some two months after the first
nepotism policy violation—for not following the chain of
command when recommending several changes to policy and
procedure and sometimes resubmitting suggestions after being
given an answer. The note stated that he “was reminded that
policy is a guideline and not a follow per the letter type thing.”
The Sheriff similarly testified, “Policies . . . are something that’s
not . . . an absolute mandate. It’s guidance.”
¶12 The chief over corrections testified that Cieply’s
supervisors, although also culpable for the nepotism policy
violations, had not been formally counseled or coached for their
roles in the violations. He could not answer why they had not
been. Cieply’s prior sergeant similarly testified that Sergeant—
and to a lesser extent, Lieutenant—were responsible for ensuring
that the nepotism policy was not violated. He also stated that
Cieply, upon discovering that he was assigned to work with his
wife, had a “responsibility to immediately notify the supervisor
to remedy the situation.”
20220449-CA 6 2024 UT App 36Cieply v. Weber County
¶13 Also of note, Weber County Human Resources Policy
3-6000 (the discipline policy) detailed the procedures for
employee discipline. The discipline policy states,
The usual sequence of progressive discipline shall
be oral warning, written warning, suspension and
termination. Demotion may also be used in the
progressive discipline process. Deviations from
procedure may be justified depending on the
severity and circumstances of the action(s) to be
disciplined. If, in the judgment of the supervisor, the
facts show aggravated misconduct, disciplinary
action may proceed directly to suspension or
termination after the procedures in [a required
pre-determination hearing] are followed.
In discussing the discipline policy, the ALJ stated that “[b]ecause
of its nature with associated economic harm and the requisite
[pre-determination hearing], it appears that demotion also is, or
should be, included in the categories of discipline which require
a finding of aggravated misconduct in order to skip steps in the
progressive discipline process.” The discipline policy does not
define “aggravated misconduct” but appears to leave the issue to
“the judgment of the supervisor.”
¶14 Following the hearing, the ALJ issued his Findings of Fact
and Final Decision (the ALJ’s order). 6 The ALJ first found that
Cieply had violated both the nepotism policy and the safety
policy. The ALJ then considered “whether the level of discipline
imposed by the Sheriff is proportionate and not inconsistent with
previous sanctions imposed.” He determined that the safety
policy violation did not justify demotion because “demotion
6. At the hearing, much attention was also given to the safety
policy violation. Because those details are not relevant to this
appeal, we do not recount them here. See infra note 11.
20220449-CA 7 2024 UT App 36Cieply v. Weber County
would be highly inappropriate and inconsistent with other
sanctions imposed by [the Sheriff’s Office] for this offense” and
because Cieply’s “conduct is precisely the type of conduct which
does not rise to the level of gross misconduct sufficient to skip
steps in the disciplinary process.”
¶15 But the ALJ held that it was not an abuse of discretion for
the Sheriff to demote Cieply for violating the nepotism policy. In
so holding, the ALJ considered the following factors:
• Cieply “had been previously advised (even if no formal
warning was issued) that his working with his wife was a
violation of policy and that if it happened inadvertently he
should notify a supervisor”;
• six different violations of the nepotism policy occurred,
including one that Cieply himself assigned;
• Cieply’s conduct was a poor example of leadership to
subordinate deputies; and
• although Cieply “shared a substantial portion of blame
over these incidents, others that also shared in the blame
received no formal discipline.”
The ALJ also acknowledged “that enforcement of the nepotism
policy—at least within the Sheriff’s Office—has been at best,
inconsistent” as “there appears to be no evidence that the Sheriff’s
Office has issued discipline with respect to any other violations of
the nepotism policy, despite the fact that there have been other
violations.” But the ALJ stated that the other violations were
“apparently not as serious as those here” because Cieply, unlike
Lieutenant or the other corporal, had previously been advised
regarding the policy. The ALJ concluded that “[a]ffording the
Sheriff discretion, particularly with respect to the issue of
20220449-CA 8 2024 UT App 36Cieply v. Weber County
leadership, the Sheriff was acting within his discretion when he
demoted [Cieply] from Corporal to Deputy.”7
¶16 The ALJ next determined that the permanent pay
reduction for violation of both policies was “excessive and
disproportionate.” In so holding, the ALJ stated that there had
been no prior formal progressive discipline; that the nepotism
policy violations, in particular, “demonstrate failures of
leadership” and not “a failure to perform the core competencies
of a Sheriff’s deputy”; that Cieply’s non-reduced pay rate was
consistent with that of a deputy of his tenure; and that such a
permanent reduction “would be inconsistent with other discipline
imposed by the Sheriff.” The ALJ thus modified the Sheriff’s
decision and directed that Cieply’s pay be restored to its prior
rate. See Utah Code Ann. § 17-33-4(1)(c)(iv) (LexisNexis 2017). But
because a temporary pay reduction would not have constituted
an abuse of discretion, the ALJ declined to award back pay.
¶17 Cieply filed a petition for review of the ALJ’s order in the
district court, see id. § 17-33-4(1)(d), asking the court to reinstate
him to the rank of corporal and to award back-pay. In conducting
its review, the court presumed that that the ALJ’s order was valid
and limited its determination to whether the decision was
arbitrary and capricious. See id. § 17-33-4(1)(d)(iv) (“In reviewing
a decision of the career service council, the district court shall
7. Confusingly, immediately prior to stating that the Sheriff acted
within his discretion in demoting Cieply, the ALJ stated,
“Considering all of these factors, the discipline imposed, as a
whole, was not proportionate to the offense committed and the
decision was inconsistent with discipline imposed in similar
circumstances.” As discussed in greater detail in the Analysis
section below, discipline that is not proportionate or that is
inconsistent constitutes an abuse of discretion. But, in light of the
ALJ’s ultimate conclusion and discussion of the factors, this
contradiction is likely the result of a misstatement.
20220449-CA 9 2024 UT App 36Cieply v. Weber County
presume that the decision is valid and may determine only
whether the decision is arbitrary or capricious.”). See also id.§ 17-33-4(1)(d)(iii) (“If there is a record of the career service
council proceedings, the district court review shall be limited to
the record provided by the career service council.”); id.
§ 17-33-4.5(2)–(3) (providing when the career service council
either may or must refer the matter to an administrative law
judge). The court ultimately affirmed the ALJ’s order.
¶18 After affirming the ALJ’s finding that Cieply violated the
nepotism policy, the court next turned to the issue of whether the
discipline imposed for the violation was arbitrary or capricious.
The court first acknowledged that the discipline policy was
ambiguous because the phrasing of the initial sentence that the
“usual sequence . . . shall be” was inconsistent; because despite
providing that demotion “may also be used in the progressive
discipline process,” the policy did not “specify where demotion
falls in the progressive discipline structure”; and because the
policy did not clarify whether demotion required a finding of
aggravated misconduct. But, citing Utah Code section
17-33-4(1)(d)(iii)–(iv), the court held that despite these
ambiguities, “by specific statutory direction the [ALJ] has
discretion to interpret and apply the policy, so long as that
interpretation and application are reasonable.” And here, the
court ruled that the ALJ’s interpretation that demotion was
appropriate discipline for a demonstrated “failure of leadership”
was “within the range of reasonableness.”
¶19 The court also addressed Lieutenant’s and the other
corporal’s violations of the nepotism policy. It stated, “There is no
indication . . . that these other circumstances, including those
involving [Lieutenant,] were similar in scope to the conduct of
[Cieply] in this case, or that they ever rose to the level of
generating a warning. Specifically regarding [Lieutenant], the
situation involved indirect supervision that was not repetitive.”
20220449-CA 10 2024 UT App 36Cieply v. Weber County
¶20 Lastly, the court declined to address Cieply’s arguments
related to the safety policy violation because the ALJ had ruled
that the violation “did not justify the imposition of any of the
discipline that was determined to be otherwise appropriate.”
Accordingly, the court held that any argument related to the
safety policy violation was moot.
¶21 Cieply appeals.
ISSUE AND STANDARD OF REVIEW
¶22 Cieply challenges the district court’s holding that the ALJ’s
order was not arbitrary and capricious. In an appeal of an
administrative order that was previously reviewed by the district
court, “we review the intermediate court’s decision.” McElhaney
v. City of Moab, 2017 UT 65, ¶ 26, 423 P.3d 1284. In so doing, “[w]e
afford no deference to the intermediate court’s decision and apply
the statutorily defined standard to determine whether the court
correctly determined whether the administrative decision was
arbitrary, capricious, or illegal.” Id. Here, “the statutorily defined
standard” is found in Utah Code section 17-33-4(1)(d)(iii)–(iv).
Under that statute, because “the district court relied on the same
record we rely on here,” Larsen v. Davis County, 2014 UT App 74,
¶ 9, 324 P.3d 641 (citing Utah Code Ann. § 17-33-4(1)(d)(iiii)
(LexisNexis 2009)), cert. denied, 333 P.3d 365 (Utah 2014), we “do
not accord any particular deference to the district court’s
decision,” id. (quotation simplified), and, instead, “presume the
validity of the [ALJ’s] decision and review that decision only to
determine ‘whether the decision is arbitrary or capricious,’” id.(quoting Utah Code Ann. § 17-33-4(1)(d)(iv)). An agency’s
decision is arbitrary and capricious if it “exceeds the bounds of
reasonableness and rationality.” Id. ¶ 17 (quotation simplified).
20220449-CA 11 2024 UT App 36Cieply v. Weber County
ANALYSIS
¶23 In reviewing the Notice of Discipline, the ALJ correctly
stated that he was limited to making two inquiries: “(1) do the
facts support the charges made by the department head, and, if
so, (2) do the charges warrant the sanction imposed?” 8 See Kelly v.
Salt Lake City Civil Service Comm’n, 2000 UT App 235, ¶ 16, 8 P.3d
1048 (quotation simplified). If the answer to either question is in
8. We note that the inquiry applied by the ALJ and by the district
court, on which the arguments of the parties on appeal are based,
was largely developed in the context of appeals from a decision to
discharge or suspend municipal employees, which is governed by
Title 10, Chapter 3 of the Utah Code. See Utah Code Ann.
§§ 10-3-1012, -1012.5, -1106(2)(a), -1106(6)(a) (LexisNexis 2022).
See also Nelson v. City of Orem, 2013 UT 53, ¶¶ 23, 25–26, 309 P.3d
237; Harmon v. Ogden City Civil Service Comm’n, 2007 UT App 336,
¶ 6, 171 P.3d 474; Kelly v. Salt Lake City Civil Service Comm’n, 2000
UT App 235, ¶ 16, 8 P.3d 1048. It has also been applied to appeals
brought by state employees, which are governed by the Utah
Administrative Procedures Act. See Utah Code Ann.
§ 63G-4-403(4) (LexisNexis 2019). See also Ofa v. Department of
Human Services, 2023 UT App 156, ¶ 18, 542 P.3d 511; Burgess v.
Department of Corr., 2017 UT App 186, ¶¶ 14, 35, 405 P.3d 937. But
appeals by “suspended, transferred, demoted, or dismissed”
county employees are governed by Title 17, Chapter 33 of the
Utah Code, see Utah Code Ann. § 17-33-4(1)(b), (d) (LexisNexis
2017), for which there is sparse statutory guidance or legal
precedent on this particular issue. Because neither party has
argued that another inquiry is more appropriate in the case of
county employees; the inquiry does not conflict with the
governing statute, see infra note 10; and we see no reason, absent
statutory directive, that the inquiry for county employees should
differ from that of municipal and state employees, we follow suit
and apply essentially the same inquiry to this appeal.
20220449-CA 12 2024 UT App 36Cieply v. Weber County
the negative, reversal of the administrative action is warranted.
See id. Here, because we hold that the discipline imposed was
arbitrary and capricious, we limit our discussion to the second
prong of the inquiry.9
¶24 The second prong is further subdivided into two questions:
(A) “is the sanction proportional” and (B) “is the sanction
consistent with previous sanctions imposed by the department
pursuant to its own policies.” Id. ¶ 21. See Nelson v. City of Orem,
2013 UT 53, ¶ 30, 309 P.3d 237 (“A sanction that is wholly
inconsistent with prior disciplinary practices or department
policy would be arbitrary and capricious[.]”). Again, unless both
questions are answered in the affirmative, the sanction is subject
to reversal. See West Valley City v. Coyle, 2016 UT App 149, ¶ 29,
380 P.3d 327. But this test need not rigidly apply to every case. See
Nelson, 2013 UT 53, ¶ 30. “Instead, we consider proportionality
and consistency insofar as those standards aid our determination
of whether” the decision of the county civil service commission or
of the ALJ was arbitrary or capricious. 10 Perez v. South Jordan City,
9. For this same reason, we do not address Cieply’s arguments
related to the first prong. Because we reverse the court’s order on
other grounds, we need not reach the merits of those arguments.
10. As relevant to our review, the only notable difference on this
issue between the statutory schemes discussed in note 8 above is
the standard of review to be applied by this court. When
evaluating disciplinary action taken against municipal
employees, we review the final agency decision for an abuse of
discretion. See Utah Code Ann. § 10-3-1012.5 (LexisNexis 2022)
(stating that the Court of Appeals reviews the municipal civil
service commission’s decision for an abuse of discretion); id.§ 10-3-1106(6)(c), (7)(a) (stating that the appeals board or hearing
officer applies the standard of review “prescribed by the
governing body of each municipality by ordinance” and that the
(continued…)
20220449-CA 13 2024 UT App 36Cieply v. Weber County
2014 UT App 31, ¶ 24, 320 P.3d 42. We find this inquiry useful to
our analysis in this case and hold that because the discipline
imposed for the nepotism policy violations was neither
Court of Appeals, in turn, reviews the appeals board’s or hearing
officer’s decision for an abuse of discretion). See also Nelson v. City
of Orem, 2013 UT 53, ¶¶ 25–26, 31, 309 P.3d 237; Becker v. Sunset
City, 2013 UT 51, ¶ 9, 309 P.3d 223. And in appeals challenging
discipline of state employees, the inquiry is likewise employed in
reviewing for an abuse of discretion or whether the action is
“contrary to the agency’s prior practice” without “a fair and
rational” justification. See Utah Code Ann. § 63G-4-403(4)(h)(i),
(iii) (LexisNexis 2019); Burgess v. Department of Corr., 2017 UT App
186, ¶¶ 14, 35, 405 P.3d 937. Although the Utah Administrative
Procedures Act does permit review under the arbitrary and
capricious standard, see Utah Code Ann. § 63G-4-403(h)(iv), we
are unaware of any appellate opinions involving discipline of
state employees that have applied that specific standard.
In contrast, our review of disciplinary action against county
employees is a de novo review of the district court’s application
of the arbitrary and capricious standard to the county career
service council’s (or the administrative law judge’s, as the case
may be) decision. See id. §§ 17-33-4(d)(iv), -4.5(2)–(3) (2017);
McElhaney v. City of Moab, 2017 UT 65, ¶ 26, 423 P.3d 1284. The
distinction between the abuse of discretion and the arbitrary and
capricious standards of review is not so great as to mandate
deviation from this inquiry. Compare Burgess, 2017 UT App 186,
¶ 36 (“An agency abuses its discretion when it reaches an outcome
that is clearly against the logic and the effect of such facts as are
presented in support of the application, or against the reasonable
and probable deductions to be drawn from the facts disclosed
upon the hearing.”) (quotation simplified), with Larsen v. Davis
County, 2014 UT App 74, ¶ 17, 324 P.3d 641 (stating that a decision
is arbitrary and capricious when it “exceeds the bounds of
reasonableness and rationality”) (quotation simplified), cert.
denied, 333 P.3d 365 (Utah 2014).
20220449-CA 14 2024 UT App 36Cieply v. Weber County
proportional nor consistent, the ALJ’s order was arbitrary and
capricious, and the district court therefore erred in holding
otherwise. 11
¶25 Proportionality. Although “[t]here is no single set of
factors that must be considered when conducting a
proportionality review,” our case law has identified certain
factors that may aid in the effort. West Valley City v. Coyle, 2016 UT
App 149, ¶ 30, 380 P.3d 327. These factors include
(1) whether the employee has “an exemplary service
record,” (2) whether the evidence of misconduct is
tenuous, (3) whether the employee has been
dishonest, (4) whether there are numerous
violations, (5) whether there has been “ineffective
progressive discipline,” (6) “whether the violation is
directly related to the employee’s official duties and
significantly impedes his or her ability to carry out
those duties,” (7) “whether the offense was of a type
that adversely affects the public confidence in the
department,” (8) “whether the offense undermines
the morale and effectiveness of the department,”
(9) “whether the offense was committed willfully or
knowingly, rather than negligently or
inadvertently,” and (10) whether the misconduct is
likely to reoccur.
11. Weber County argues that the discipline should be affirmed
based on both the nepotism policy and the safety policy violations.
But the district court held that arguments related to the safety
policy were moot. Although the County asserts on appeal that this
ruling was incorrect, it did not separately appeal this issue. See
Utah R. App. P. 4(d). Accordingly, we limit our analysis to the
nepotism policy violations.
20220449-CA 15 2024 UT App 36Cieply v. Weber County
Burgess v. Department of Corr., 2017 UT App 186, ¶ 38, 405 P.3d 937(quoting Ogden City Corp. v. Harmon, 2005 UT App 274, ¶ 18, 116
P.3d 973). This list is nonexclusive and need not be “rigidly
applied.” Leavitt v. Salt Lake City Corp., 2019 UT App 70, ¶ 19, 442
P.3d 1217.
¶26 Although the ALJ generally referenced these factors in
discussing proportionality, with the exception of the fourth listed
factor, he largely found other factors to be more helpful to the
proportionality analysis in this case. The factors the ALJ
considered were that Cieply “had been previously advised (even
if no formal warning was issued) that his working with his wife”
violated the nepotism policy and that he should notify a
supervisor if it happened again; that he subsequently violated the
nepotism policy six times, of which he made one of the
assignments himself; and that the violations were a poor example
of leadership to subordinate deputies.
¶27 But other factors likewise merited consideration in this
case. One factor that should have weighed heavily in the analysis
is that, with one exception, the violations were the result of Cieply
following orders from superiors who knew that he and his wife
were married at the time the assignments were made. 12
Additionally, although the prior sergeant had informally advised
Cieply some two months later that working with his wife violated
the nepotism policy, that same sergeant issued a written Coaching
Note advising Cieply that “policy is a guideline and not a follow
per the letter type thing.” The Sheriff also testified to this effect.
12. Concerning the one instance where Cieply was directly
responsible for the assignment, this assignment was made in the
context of being regularly assigned by Sergeant to work with his
wife. Although Cieply was certainly culpable for that violation,
another relevant factor is that he had reason to believe that the
nepotism policy’s “guidance” carried less weight with Sergeant
than it had with the prior sergeant.
20220449-CA 16 2024 UT App 36Cieply v. Weber County
Moreover, Cieply testified that he did, in fact, approach Sergeant
and tell him that working with his wife violated the nepotism
policy, but Sergeant nonetheless continued to assign them to work
together, thereby placing Cieply in a difficult position. 13 And
when faced with the conflict between following superiors’ orders
or complying with the nepotism policy’s “guidance,” Cieply had
reason to believe that compliance with the former should carry
the day.
¶28 These circumstances drastically altered the context in
which Cieply violated the nepotism policy. These additional
factors therefore merited consideration in the proportionality
analysis. Failure to consider the full context of the violations thus
“exceed[ed] the bounds of reasonableness and rationality.” Larsen
v. Davis County, 2014 UT App 74, ¶ 17, 324 P.3d 641 (quotation
simplified), cert. denied, 333 P.3d 365 (Utah 2014), and the ALJ’s
proportionality analysis was therefore arbitrary and capricious.
¶29 Consistency. “When challenging a sanction’s consistency,
the disciplined employee must first make out a prima facie case
by pointing to specific instances or statistics” to show, “at a
13. Although the ALJ made no findings regarding whether such a
conversation took place, if Cieply had indeed expressed concerns
to Sergeant that went unheeded, resulting in subsequent orders
that he violate the nepotism policy, this would have significantly
affected the proportionality analysis in this case. Moreover,
Cieply’s testimony concerning the conversation was not
contradicted. Although Sergeant could not recall whether such a
conversation took place, he indicated that it “may have.” See
generally Nyrehn v. Industrial Comm’n, 800 P.2d 330, 335 (Utah Ct.
App. 1990) (“The failure of an agency to make adequate findings
of fact on material issues renders its findings arbitrary and
capricious unless the evidence is clear, uncontroverted and
capable of only one conclusion.”) (quotation simplified), cert.
denied, 815 P.2d 241 (Utah 1991).
20220449-CA 17 2024 UT App 36Cieply v. Weber County
minimum, . . . some meaningful disparity of treatment between
himself and other similarly situated employees.” Burgess, 2017 UT
App 186, ¶ 49 (quotation simplified). Here, the ALJ specifically
acknowledged, with our emphasis, “that enforcement of the
nepotism policy—at least within the Sheriff’s Office—has been at
best, inconsistent” as “there appears to be no evidence that the
Sheriff’s Office has issued discipline with respect to any other
violations of the nepotism policy, despite the fact that there have
been other violations.”
¶30 Specifically, at least two other employees had previously
violated the nepotism policy without receiving any form of
discipline: Lieutenant and the other corporal. Lieutenant
indirectly supervised his uncle once in late 2019 and possibly “for
a longer period of time in 2018.” And the corporal, who held the
same rank as Cieply, also worked at the same post as his wife,
who was likewise a corrections assistant. Additionally, at least
one deputy testified that the corporal had supervised his wife,
thus indicating that the corporal was also exhibiting a poor
example of leadership to subordinate deputies. See supra note 5.
¶31 The ALJ distinguished these violations by stating that they
were “apparently not as serious as those here” because Cieply,
unlike Lieutenant or the other corporal, had previously been
advised regarding the policy. 14 But despite Cieply’s situation
14. The district court added that neither Lieutenant’s nor the other
corporal’s violations “ever rose to the level of generating a
warning.” But this mischaracterizes the discussion the prior
sergeant had with Cieply following the first violation. The ALJ
specifically found that it was an “informal discussion” and noted
that Cieply received “[n]o formal discipline of any kind” for the
first violation, thus indicating that it did not rise to the level of a
verbal warning under the discipline policy.
(continued…)
20220449-CA 18 2024 UT App 36Cieply v. Weber County
being substantially similar to that of the other corporal, the fact
that the corporal never received so much as the same type of
informal discussion—which serves as the distinguishing factor
between the two cases—is in and of itself an inconsistency.
Additionally, when asked why he had not investigated the
corporal like he did Cieply, Lieutenant answered that he had
never received a personnel complaint against the corporal. But
this explanation rings hollow given that Lieutenant had been the
one to initiate the personnel complaint against Cieply, thus
likewise indicating inconsistent treatment. Additionally, the fact
that Lieutenant was of a higher rank than Cieply at the time
Lieutenant violated the nepotism policy should have reflected
even more poorly on Lieutenant as far as failure of leadership—
the main reason the Sheriff and the ALJ gave for the demotion—
is concerned. But like the corporal, there was no evidence
presented that Lieutenant received so much as an informal
warning.
¶32 More importantly, as the ALJ acknowledged, “others that
also shared in that blame” for Cieply’s nepotism policy violations
“received no formal discipline.” As discussed in more detail
above, Cieply was placed in the unenviable position of having to
choose between following supervisors’ orders and complying
with the nepotism policy. But those who assigned Cieply to work
with his wife despite knowing the two were married received no
formal discipline whatsoever. Although Lieutenant verbally
reprimanded Sergeant on a call, the reprimand was not
documented or otherwise formalized. And similar to Cieply’s
The court also stated that Lieutenant’s violation “involved
indirect supervision that was not repetitive.” But the nepotism
policy prohibited both direct and indirect supervision of a relative
without distinguishing the two. And the court’s statement
concerning repetitiveness overlooks the ALJ’s finding that
Lieutenant possibly supervised his uncle “for a longer period of
time in 2018.”
20220449-CA 19 2024 UT App 36Cieply v. Weber County
informal conversation with the prior sergeant, Sergeant likely
(although he could not remember) received an email from the
same sergeant advising him not to assign Cieply to work with his
wife. It therefore logically follows that if the violations reflected
negatively on Cieply’s leadership abilities, they would reflect
even more negatively on those with the even greater leadership
responsibilities that accompany a higher rank. Sergeant’s role in
the violations would have, at the very least, demonstrated to
subordinates an indifference to the nepotism policy. But despite
this, Sergeant received no negative repercussions for his own
leadership failures.
¶33 For these reasons, we hold that the ALJ’s conclusion that
the disciplinary action was not inconsistent “exceed[ed] the
bounds of reasonableness and rationality,” Larsen v. Davis County,
2014 UT App 74, ¶ 17, 324 P.3d 641 (quotation simplified), cert.
denied, 333 P.3d 365 (Utah 2014), and was therefore arbitrary and
capricious.
CONCLUSION
¶34 The ALJ’s determination that demotion and a temporary
pay reduction were proportional and consistent sanctions for
Cieply’s violations of the nepotism policy was arbitrary and
capricious. The district court therefore erred in holding otherwise.
We accordingly reverse the district court’s decision and vacate the
ALJ’s order.
20220449-CA 20 2024 UT App 36