LaMont v. Riverton City Board of Appeals

2017 UT App 198THE UTAH COURT OF APPEALS
CHRIS LAMONT,
Petitioner,
v.
RIVERTON CITY BOARD OF APPEALS,
Respondent.
Opinion
No. 20160445-CA
Filed October 26, 2017
Original Proceeding in this Court
Lincoln W. Hobbs and Sarah H. Orme, Attorneys
for Petitioner
Maralyn M. English and Christopher W. Droubay,
Attorneys for Respondent
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Riverton City (the City) fired Chris LaMont from his
position as a construction supervisor after he refused to submit
to a “reasonable suspicion drug [and alcohol] test” while on
duty. LaMont appealed his termination, and the Riverton City
Board of Appeals (the Board) upheld the City’s decision. LaMont
now seeks judicial review of the Board’s conclusion, claiming
that (1) the City did not have reasonable suspicion to ask him to
submit to an alcohol test in the first place; (2) the test he was
asked to take, had he agreed to take it, would have been
administered improperly; and (3) the Board upheld his
termination “on an entirely different ground than that originally
used” to fire him. We conclude that the City did have reasonable
suspicion to test LaMont for alcohol; that LaMont’s refusal was
not based on any objections to the procedures of the particular
LaMont v. Riverton City Board of Appeals
test he was asked to take; that the City gave LaMont sufficient
notice that it was terminating his employment for, among other
things, his insubordination in refusing the test; and that the
Board properly relied on that insubordination as grounds to
uphold LaMont’s termination. Accordingly, we decline to
disturb the Board’s decision.
BACKGROUND
¶2 In September 2014, LaMont’s supervisor (Supervisor)
developed suspicions that LaMont may have been consuming
alcohol while at work. On September 29, Supervisor and a
Riverton City attorney (Attorney) exchanged text messages
noting that LaMont would be at a conference the next day and
speculating that he might drink alcohol during the conference.
Accordingly, Attorney and Supervisor planned to have
Supervisor observe LaMont at the conference and, if LaMont
showed signs of intoxication, Supervisor and Attorney would
later observe LaMont together to determine whether they had
reasonable suspicion to ask LaMont to submit to an alcohol test.
¶3 The next day, Supervisor observed LaMont at the
conference and noted that LaMont was “agitated,” “his face was
swollen and very red,” “[h]is eyes were bloodshot,” and he
exuded the odor of alcohol. Supervisor immediately asked
LaMont to meet with Supervisor and Attorney, then called
Attorney outside of LaMont’s presence and reported his belief
that LaMont was intoxicated. Upon hearing this, Attorney began
arranging for an alcohol test, and made plans to personally
observe LaMont to determine whether he also believed LaMont
was intoxicated. When LaMont met with Attorney and
Supervisor shortly thereafter, Attorney noticed that LaMont’s
eyes were bloodshot, that he smelled like alcohol, and that his
speech was slow or slurred.
20160445-CA 2 2017 UT App 198LaMont v. Riverton City Board of Appeals
¶4 Following a quick conference about their observations,
Attorney and Supervisor jointly asked LaMont to take an alcohol
test. LaMont refused. LaMont later claimed he did so because he
“felt uneasy,” felt the test was unauthorized, and believed the
test may have been tampered with. LaMont did not give any
other reasons for refusing the test, and he did not offer to take a
different kind of test. At oral argument before this court,
LaMont’s counsel conceded that there is no evidence in the
record indicating that LaMont, at the time he was asked to
submit to the test, expressed any concerns about the testing
procedure itself.
¶5 Under the Riverton City Personnel Policies and
Procedures Manual (the City’s Manual), “[a]n employee will be
required to provide a urine sample” when “reasonable suspicion
arises” that the employee has used alcohol. Refusal to do so
upon request violates City policy and may also constitute
“insubordination.” The City’s Manual defines “insubordination”
as a “critical offense” that “may justify involuntary termination.”
Following LaMont’s refusal to take the alcohol test, the City
placed him on administrative leave.
¶6 On November 23, 2015, the City sent LaMont a pre-
determination letter informing him that the City intended to
conduct a hearing “considering discipline, up to and including
termination.” In the letter, the City explained that one of the
grounds for potential discipline was his “insubordination” in
refusing to submit to an alcohol test after Attorney and
Supervisor formed a reasonable suspicion that he had been
drinking. On December 2, the City held a hearing, and thereafter
terminated LaMont’s employment. In a “notice of
determination” letter (Termination Letter) sent to LaMont on
December 10, the City informed LaMont that he was being fired
in part because the “City has determined that the appropriate
20160445-CA 3 2017 UT App 198LaMont v. Riverton City Board of Appeals
discipline for your insubordination of September 30, 2014, is to
terminate your employment.” 1
¶7 LaMont appealed his termination to the Board. After a
hearing, the Board issued a written decision upholding LaMont’s
termination. In the decision, the Board concluded that the City
was justified in terminating LaMont’s employment because his
“refusal to comply” with Attorney and Supervisor’s instructions
to take a “reasonable suspicion [alcohol] test” constituted
insubordination.
ISSUES AND STANDARDS OF REVIEW
¶8 LaMont seeks review of the Board’s decision, contending
that the Board upheld his termination “on an entirely different
ground than [the City] originally used to justify termination,”
that the alcohol test would have been improper had it been
administered, and that Supervisor and Attorney were not
justified in asking him to take the alcohol test because they had
not formed a reasonable suspicion that he was using alcohol.
¶9 We review the final action of an appeals board for abuse
of discretion. Nelson v. City of Orem, 2013 UT 53, ¶ 24, 309 P.3d
237; see also Utah Code Ann. § 10-3-1106(6)(c)(ii) (LexisNexis
2015) (“The Court of Appeals’ review shall be . . . for the purpose
of determining if the appeal board or hearing officer abused its
discretion or exceeded its authority.”). In addition, “we review
as a matter of law whether a specific set of facts gives rise to
1. In addition to insubordination, the City also indicated it was
terminating LaMont for “refus[ing] to complete a DOT
reasonable suspicion alcohol test” as well as for “violat[ions of]
the City’s Ethical Conduct Statement.” However, we center our
analysis on insubordination, and discuss the City’s other reasons
only as necessary to the analysis.
20160445-CA 4 2017 UT App 198LaMont v. Riverton City Board of Appeals
reasonable suspicion.” State v. Gurule, 2013 UT 58, ¶ 20, 321 P.3d
1039 (citation and internal quotation marks omitted).
ANALYSIS
¶10 LaMont first contends that the Board upheld his
termination “on an entirely different ground than [the City]
originally used” to fire him, thus violating his due process right
to adequate notice. “[M]unicipal employees . . . have a due
process right to adequate notice of the reasons for their
discharge so that they can meaningfully prepare for and
participate in the municipal appeal board hearing.” Becker v.
Sunset City, 2013 UT 51, ¶ 15, 309 P.3d 223. Further, when
determining whether to uphold a municipality’s decision to
discharge an employee, an appeals board may only consider
“evidence related to the grounds . . . for which the employee has
received proper notice.” Id.
¶11 LaMont’s argument is grounded in language found in the
Termination Letter stating that he was being terminated for
“refus[ing] to complete a [Department of Transportation]
reasonable suspicion alcohol test.” LaMont correctly notes that
the Board concluded that the test LaMont was asked to take
would not have satisfied Department of Transportation
requirements, because LaMont had not been performing a
“safety sensitive function” prior to being asked to take the test
and because Supervisor and Attorney had not completed the
requisite paperwork following their request for LaMont to take
the test. Instead, the Board concluded that the test LaMont had
refused to take could be considered a “reasonable suspicion
[drug or alcohol] test” authorized by City policy. The Board then
determined that LaMont’s termination could be upheld on the
basis that he refused to take a City reasonable-suspicion alcohol
test, even though the pre-determination letter had referred to the
test as a “[Department of Transportation] reasonable suspicion”
20160445-CA 5 2017 UT App 198LaMont v. Riverton City Board of Appeals
test. The different nomenclature, LaMont argues, reflects “a new
reason for discharge that LaMont had never received notice of.”
¶12 However, LaMont’s argument overlooks several
important facts, including that the pre-determination letter
informed him that a potential ground for his termination could
be “insubordination,” that the Termination Letter stated that his
“insubordination” in refusing to submit to the test formed an
independent ground for the decision, and that “insubordination”
is indeed a terminable offense per City policies. Further, LaMont
does not dispute that the Board determined that his
“insubordination” in refusing the alcohol test constituted valid
grounds for the City to terminate him. Because LaMont received
notice of a valid reason for his termination—insubordination for
refusing to submit to an alcohol test—and the Board upheld his
termination specifically with reference to that reason, there are
no material infirmities in the notice that the City provided to
LaMont. The fact that the Board also considered other potential
grounds for termination is irrelevant. See Nelson, 2013 UT 53,
¶ 43 (declining to disturb a board of appeals decision to uphold
the termination of a police officer on the asserted grounds of
excessive force even though the board reversed a separate
asserted ground entirely); see also Hugoe v. Woods Cross City, 2013
UT App 278, ¶ 10, 316 P.3d 979 (determining that no due process
violation occurred, even where the board heard evidence
concerning an incident not included in the pre-termination
notice, as long as the board “did not rely on” the non-noticed
incident and had an independent, properly-noticed ground upon
which to uphold termination). For this reason, we hold that
LaMont’s due process rights were not violated when the Board
upheld his termination on the ground of “insubordination” for
refusal to submit to an alcohol test—a ground that was identified
in his pre-determination letter as well as in the Termination
Letter.
¶13 Similarly, it does not matter that the test LaMont was
asked to take would not have met Department of Transportation
20160445-CA 6 2017 UT App 198LaMont v. Riverton City Board of Appeals
requirements, or that it may have been administered improperly
had it been given. LaMont correctly points out that Supervisor
and Attorney both referred to the test as a “[Department of
Transportation] reasonable suspicion test,” even though the test
that Supervisor and Attorney would have had him take did not
meet Department of Transportation standards. LaMont also
argues that the test would have been improperly administered,
and that had he agreed to the test its results would not have
been compliant with City or Department of Transportation
policies. But these arguments, while accurate, are ultimately
irrelevant. Even if we assume that the test LaMont refused to
take did not meet Department of Transportation requirements
and would have been improperly administered, and that
therefore any evidence that may have been derived from it
would ultimately have been untrustworthy, LaMont rendered
any such considerations moot by insubordinately refusing to
take the test in the first place. As noted, there is no evidence that
LaMont’s refusal had anything to do with procedural concerns.
Under these circumstances, LaMont’s refusal to take a
reasonable-suspicion alcohol test represented sufficient grounds
for LaMont’s termination, completely independent of any
unexpressed concerns about the testing procedures.
¶14 Finally, LaMont contends that Supervisor and Attorney
did not ever form a reasonable suspicion that LaMont was under
the influence of alcohol. LaMont correctly notes that under the
terms of the City’s Manual, an employee may be asked to submit
to an alcohol test only if his supervisor and an acting risk
manager 2 form a “reasonable suspicion” that he has consumed
2. LaMont also argues that the test was not in compliance with
the City’s policies because Supervisor and Attorney—rather than
a “risk manager”—observed him. However, the record clearly
indicates that Attorney had two official job titles, that of “city
attorney” and that of “legal risk manager.” Accordingly,
(continued…)
20160445-CA 7 2017 UT App 198LaMont v. Riverton City Board of Appeals
alcohol. The Manual does not define the term “reasonable
suspicion,” and the parties have not argued for any specific
definition of that term. However, the term “reasonable
suspicion” is commonly used in criminal procedure, and has
been interpreted by extensive state and federal precedent. “‘We
review administrative rules in the same manner as statutes,
focusing first on the plain language of the rule’” and seeking “‘to
give effect to the intent of the body that promulgated the rule.’”
Phillips v. Department of Commerce, 2017 UT App 84, ¶ 7, 397 P.3d
863 (quoting Utah Chapter of Sierra Club v. Air Quality Board, 2009
UT 76, ¶ 13, 226 P.3d 719). In this case, given that City policy
uses the term “reasonable suspicion” in relation to violations of
policy, we think it best to apply the same definition of
“reasonable suspicion” in the context of the City’s policies as is
commonly applied in the context of criminal law.
¶15 In the criminal context, “reasonable suspicion” exists
when an observer is “’able to point to specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant th[e] intrusion’” upon the suspected
individual. State v. Anderson, 2013 UT App 272, ¶ 12, 316 P.3d
949 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968) (bracket in
original)). A court considers the “totality of the circumstances to
determine whether, taken together, the facts” known to the
observer “warranted further investigation.” Id. ¶ 13 (quoting
State v. Alvarez, 2006 UT 61, ¶ 14, 147 P.3d 425) (internal
quotation marks omitted).
¶16 Applying that definition here, we conclude that, under all
of the circumstances presented, the City had a reasonable
suspicion that LaMont had consumed alcohol. As noted,
(…continued)
Supervisor and Attorney’s joint concurrence that there existed
reasonable suspicion that LaMont had consumed alcohol
satisfied the City’s policy.
20160445-CA 8 2017 UT App 198LaMont v. Riverton City Board of Appeals
Supervisor and Attorney both observed that LaMont smelled
like alcohol, that his eyes were bloodshot and his face puffy, that
his speech was slow, and that he appeared agitated. These
circumstances, taken together, have been held to constitute
reasonable articulable suspicion in the criminal context. See, e.g.,
State v. Perkins, 2009 UT App 390, ¶ 14, 222 P.3d 1198(concluding that officers had reasonable suspicion where the
defendant exhibited “red eyes and slurred speech, was slow to
respond . . . and stumbled upon leaving the vehicle”); see also
State v. Morris, 2011 UT 40, ¶ 27, 259 P.3d 116 (holding that “the
smell of alcohol emanating from [the defendant’s vehicle] was
enough to generate” reasonable suspicion). We draw a similar
conclusion here.
¶17 Accordingly, Supervisor and Attorney’s request that
LaMont submit to an alcohol test was based on reasonable
suspicion and constituted a legitimate order. LaMont’s refusal to
submit to that test was therefore insubordinate.
CONCLUSION
¶18 LaMont refused to take an alcohol test that was based on
reasonable suspicion, received notice that his refusal constituted
insubordination and was a potential ground for termination, and
then was terminated for insubordination. The Board did not
abuse its discretion when it upheld LaMont’s termination on
those grounds. Accordingly, we do not disturb the Board’s
decision.
20160445-CA 9 2017 UT App 198