Aiono v. Department of Corrections

2017 UT App 143THE UTAH COURT OF APPEALS
ANTIONETTE AIONO,
Petitioner,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
Opinion
No. 20160030-CA
Filed August 10, 2017
Original Proceeding in this Court
Bret W. Rawson, Nate N. Nelson, and Jeremy G.
Jones, Attorneys for Petitioner
Sean D. Reyes, J. Clifford Petersen, and Daniel R.
Widdison, Attorneys for Respondent
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.1
TOOMEY, Judge:
¶1 This case requires us to determine whether a Utah
Department of Corrections (UDC) employee, whose conduct
may well have violated best practices, can be fired for that
conduct if it is not explicitly prohibited by policy. The Career
Service Review Office (CSRO) upheld UDC’s decision to fire
Antionette Aiono for violating a policy governing prohibited
associations. Because the policy does not prohibit what Aiono
did, we set aside the CSRO’s decision.
1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
Aiono v. Department of Corrections
BACKGROUND
¶2 Aiono was a UDC correctional officer assigned to the
Orange Street Community Correction Center. In May 2015 she
worked an overtime shift at the prison in Draper in section 3/4 of
the Oquirrh facility. The Oquirrh facility has two sections,
designated as Oquirrh 1/2 and 3/4.
¶3 Three of Aiono’s relatives were in prison at the time—her
husband M.A. (Husband), her cousin P.W., and her cousin W.W.
(Cousin). Husband and P.W. were incarcerated in Oquirrh 1/2,
and Cousin was in 3/4. Aiono knew where Husband and P.W.
were housed but did not know that Cousin was in the 3/4 section
until the day she reported for her overtime shift.
¶4 When she arrived at Oquirrh 3/4, Aiono talked with the
day shift sergeant (Sergeant), who recognized her last name and
asked “if she was ok to work there.” He asked whether Husband
was in 1/2. Aiono acknowledged that he was and that she could
not go there, but told him she could work in 3/4. Sergeant was
aware of Aiono’s relationship with Cousin and knew that
Cousin was housed in Oquirrh 3/4. Sergeant was neither Aiono’s
supervisor nor her shift commander, and he had no authority to
grant her permission to have contact with her relatives.
¶5 During her shift, Aiono spoke with Cousin.
¶6 Aiono had previously filled out a form disclosing her
relationship with Husband. After speaking with Cousin, she
filled out another form disclosing her relationships with P.W.
and Cousin. She filled out the form three weeks after her
encounter with Cousin, but before a Law Enforcement Bureau
investigation of the incident was completed, and about a month
before UDC gave her notice of its intent to terminate her
employment.
¶7 The notice informed Aiono that her actions violated
Department of Human Resource Management Rule 477-9-1 and
20160030-CA 2 2017 UT App 143Aiono v. Department of Corrections
UDC Policy AE 02/14.00, Prohibited Association/Conduct.
Following a hearing in July 2015, UDC fired Aiono for her
actions during the overtime shift in May. UDC “concluded that
[Aiono] had failed to fill out the mandatory Relationship
Disclosure Form and failed to follow the chain of command.” It
“further concluded that [Aiono] failed to take action and
accountability when she became aware of the conflict of
interest.”
¶8 Aiono appealed her dismissal, and the CSRO conducted
an evidentiary hearing. It issued an order upholding UDC’s
decision. Among other things, it found:
It is a conflict of interest for an employee to
work where a family member is housed. It is a
common theme stressed by [UDC] in training and
throughout an employee’s career that it is
inappropriate for employees to have contact with
family members who are inmates. It is the
employee’s responsibility to take action to avoid a
conflict when the employee becomes aware of the
conflict.
....
The Relationship Disclosure Form should
have been filled out even if the family member was
at [another] facility. Once [Aiono] was aware of the
conflict, [Aiono] should have immediately notified
her supervisor or the shift commander of the
conflict. If neither was available, [Aiono] could
have notified [Adult Probation and Parole] which
has an on-duty supervisor available for questions
24 hours per day, 7 days per week.
....
20160030-CA 3 2017 UT App 143Aiono v. Department of Corrections
. . . The policy does not state when the form
must be filled out or updated, however the form
should be filled out immediately after an employee
becomes aware of a conflict.
The CSRO concluded that UDC “submitted substantial evidence
to support its charges that [Aiono] violated the Prohibited
Association/Conduct policy.”
¶9 Aiono now seeks judicial review.
ISSUE AND STANDARD OF REVIEW
¶10 Aiono’s main contention2 is that the CSRO incorrectly
interpreted UDC’s policy; she argues the policy’s plain language
does not prohibit the conduct for which she was terminated.
¶11 The parties disagree on whether we should give deference
to the CSRO’s decision. UDC argues this analysis is a fact-like
question entitled to deference because of the “complexity of
Aiono’s factual scenario” and “the likelihood that future cases
involving this . . . policy will also have complex and unique
facts.” See Sawyer v. Department of Workforce Services, 2015 UT 33,
¶¶ 11–12, 345 P.3d 1253 (determining that whether a mixed
question should be deemed law-like or fact-like depends on
several factors, including the “degree of variety and complexity
in the facts to which the legal rule is to be applied,” the “degree
to which a trial court’s application of the legal rule relies on facts
observed by the trial judge,” and “other policy reasons” (citation
and internal quotation marks omitted)). Aiono argues this issue
involves the interpretation of UDC’s policy, which is a law-like
2. Aiono also contends substantial evidence does not support the
CSRO’s actions, but because we agree that the CSRO wrongly
interpreted the policy and set aside its order on this basis, we
need not address Aiono’s other claim.
20160030-CA 4 2017 UT App 143Aiono v. Department of Corrections
question that should be reviewed for correctness. We agree with
Aiono.
¶12 While the CSRO did consider extensive evidence,
including UDC’s expectation of how employees were supposed
to handle conflicts of interest, the training given to employees,
and “basic corrections ideology and expectation that officers
avoid conflict[s] of interest[] with family members,” Aiono was
ultimately terminated for violating UDC’s written policy, not for
violating UDC’s expectations, training, or ideology. Neither
party disputes the facts surrounding Aiono’s conduct; rather, we
are asked to review whether that conduct was prohibited by the
plain language of the policy. This is a law-like question because
the CSRO is not “in a better position than [we are] to give effect
to the regulatory objective to be achieved.” Utah Dep’t of Corr. v.
Despain, 824 P.2d 439, 443 (Utah Ct. App. 1991) (alteration in
original) (citation and internal quotation marks omitted); see also
Ellis-Hall Consultants v. Public Service Comm’n, 2016 UT 34, ¶¶ 31–
32, 379 P.3d 1270 (determining that orders issued by the agency
are “binding on interested parties” and such parties “have a
right to read and rely on the terms of these regulations,” and
thus, the appellate court is “in as good a position as the agency
to interpret the text of a regulation that carries the force of law”).
Accordingly, we review the CSRO’s interpretation of the policy
for correctness. See State Dep’t of Public Safety v. Utah Career
Service Review Board, 2004 UT App 171, ¶¶ 2–3, 92 P.3d 776(reviewing the board’s decision interpreting an agency’s policy
for correctness).
ANALYSIS
¶13 The CSRO concluded Aiono was terminated for violating
UDC’s Prohibited Association/Conduct policy AE 02/14.00. The
CSRO quoted from the policy and concluded Aiono violated the
policy (1) by having contact with Cousin, which was a conflict of
interest, and (2) by not immediately filling out the Relationship
Disclosure Form once she became aware of the conflict. Aiono
20160030-CA 5 2017 UT App 143Aiono v. Department of Corrections
argues the policy does not prohibit either of these behaviors. We
address each alleged violation in turn.
I. The Policy Does Not Prohibit Contact with Immediate
Family Members.
¶14 “Our primary source of guidance” in interpreting the
policy “is the plain and ordinary meaning of the [policy’s]
language.” See State v. Mooney, 2004 UT 49, ¶ 11, 98 P.3d 420. In
its decision, the CSRO quoted section one of the Prohibited
Association/Conduct policy:
It is the policy of the department that staff
members shall refrain from social or business
interactions with members of inmate’s/offender’s
immediate family, and avoid off-duty interaction
with offenders or frequenting locations where
criminal activity occurs when such would tend to
impair the reputation of the staff member or the
department.
The CSRO also quoted the rationale contained in the policy,
which states, “If staff members associate with criminal
offenders . . . there is an increased risk that it, (1) may
compromise the staff member or the legitimate interests of the
department; and (2) may adversely affect public confidence and
trust in the department and its staff.” Finally, though not
referenced in the CSRO’s decision, section four of the policy
provides, “Employees shall not establish, maintain or promote a
personal relationship with offenders who are not part of the
employees’ immediate family in any manner that would
compromise an employee’s professional role or which would
tend to discredit the department.”
¶15 The plain language of these provisions does not prohibit
contact with offenders who are a part of the employee’s
immediate family. First, the initial section prohibits “social or
20160030-CA 6 2017 UT App 143Aiono v. Department of Corrections
business interactions with members of inmate’s/offender’s
immediate family.” This precludes an employee from interacting
with members of an offender’s immediate family; it does not
prohibit an employee from interacting with offenders who are
part of the employee’s immediate family. Additionally, the clause
prohibiting off-duty interaction with offenders does not apply to
Aiono, because her contact with Cousin occurred while she was
on duty.
¶16 Next, section four prohibits employees from establishing,
maintaining, or promoting personal relationships with
offenders, but specifically exempts offenders who are part of the
employee’s immediate family. The CSRO’s decision did not
include this provision, but it did conclude that “[i]mmediate
family members include cousins.”3 This section implies
employees are allowed to maintain personal relationships with
offenders who are immediate family members, and thus there is
no implication under this provision that contact with offenders
who are family members is prohibited.
¶17 Most importantly, section six, entitled “Procedure:
Prohibited Association Exceptions,” states, “Nothing in this
section is intended to prevent employees from . . . interacting
with their own family members who are offenders or ex-
offenders . . . .” Rather than prohibiting contact with family
members who are offenders, this provision explicitly allows it.
Though the rationale of the policy outlines why contact with
offenders is be avoided, the policy exempts employees’ own
family members.
3. The CSRO’s conclusion that cousins are immediate family
members may be contrary to the common understanding of the
term. See Family, Immediate Family, Black’s Law Dictionary (9th
ed. 2009) (defining “immediate family” as a “person’s parents,
spouse, children, and siblings,” including “[s]tepchildren and
adopted children”). The CSRO did not provide reasoning for this
conclusion, and neither party challenges it.
20160030-CA 7 2017 UT App 143Aiono v. Department of Corrections
¶18 The CSRO’s decision quoted from the policy but did not
analyze how Aiono had violated it. Nor did the decision
expressly state that the policy prohibited contact with offenders
who are family members. Instead of demonstrating how the
policy prohibited Aiono’s conduct, the CSRO stated that there
“was substantial evidence presented that contact with a family
member is a conflict of interest,” which was “a common theme
stressed by [UDC] in training and throughout an employee’s
career.”
¶19 There is no question that an employee may be terminated
for violating the policy. Because the policy is “binding on
interested parties,” “such parties have a right to read and rely on
the terms” of the policy. See Ellis-Hall Consultants v. Public Service
Comm’n, 2016 UT 34, ¶ 31, 379 P.3d 1270. Therefore, the CSRO
“has no right to revise [the policy] by a later ‘interpretation.’” See
id. As discussed above, the plain language of the policy does not
prohibit contact with immediate family members. Though the
CSRO may have been correct that Aiono’s contact with Cousin
was a conflict of interest of which she should have been aware, it
incorrectly incorporated these standards into the policy.
Therefore, the CSRO erroneously concluded UDC met its burden
in proving Aiono violated the policy by her conduct, and its
decision that Aiono violated UDC’s Prohibited
Association/Conduct policy is incorrect.
II. The Policy Does Not Require an Employee to Immediately
Submit the Disclosure Form.
¶20 Section four of the policy requires employees to “report
relationships with known offenders . . . through the chain of
command, using the attached Relationship Disclosure form.”
Aiono submitted the disclosure form in June 2015, three weeks
after her contact with Cousin in May 2015. The CSRO’s decision
stated, “Although the policy itself does not state when the form
must be filled out or updated, the form should have been filled
out immediately after the employee became aware of the
conflict.”
20160030-CA 8 2017 UT App 143Aiono v. Department of Corrections
¶21 The decision did not elaborate on how the CSRO came to
the conclusion that the form should have been filled out
immediately. One UDC employee testified that if a person is
aware of a conflict of interest beforehand, then the disclosure
form should be filled out. The CSRO’s decision also indicated
that Aiono received training on the completion of the disclosure
form, but then cursorily concluded, “The policy does not state
when the form must be filled out or updated, however the form
should be filled out immediately after an employee becomes
aware of a conflict.”
¶22 We acknowledge that Aiono may have been trained on
when to submit the form and that it may have been best practice
to fill out the form upon becoming aware of a conflict. But the
CSRO has no authority to revise the policy by incorporating the
requirement of immediate disclosure. See Ellis-Hall, 2016 UT 34,
¶ 31. Aiono was terminated for violating the policy, not for
violating training or best practices. The policy does not state
when the form must be filled out, as the CSRO recognized in its
decision. The policy only requires employees to “report
relationships with known offenders . . . using the attached
Relationship Disclosure form,” and the CSRO determined that
Aiono had filled out the form. Additionally, Aiono has “a right
to read and rely on the terms” of the policy. See id. Therefore, the
CSRO incorrectly concluded that Aiono violated the policy.
¶23 Because the plain language of the policy does not prohibit
the conduct for which Aiono was terminated from her
employment, and because the CSRO may not interpret the policy
to incorporate additional requirements, its decision to terminate
Aiono was incorrect.
CONCLUSION
¶24 We set aside the decision of the CSRO. First, the plain
language of the policy does not prohibit an employee from
contacting an immediate family member who is an offender.
20160030-CA 9 2017 UT App 143Aiono v. Department of Corrections
Second, the policy does not specify any timeframe for submitting
the disclosure form. Thus, the policy does not prohibit Aiono’s
conduct and the CSRO incorrectly interpreted it in terminating
Aiono’s employment.
20160030-CA 10 2017 UT App 143