City of Casper v. Utech

THOMAS, Justice.

The controversy in this appeal centers upon the articulation of findings of fact by an administrative agency when the party holding the burden of proof fails to sustain that burden. In a post-termination hearing, the Personnel Review Panel (Board) ruled the City of Casper (Casper) had faded to establish the asserted grounds for discharge of its employee, Michael Utech (Utech) by admissible, relevant, and credible evidence. Its finding as to each ground was that there was insufficient evidence. Casper sought review in the district court where the Board’s decision was affirmed. Complaining the Board failed to make findings of basic facts, and the Board’s findings of fact and conclusions of law were not supported by sufficient evidence, Casper appealed. We affirm the decision of the district court.

Casper, in its Brief of Appellant states the issues to be:

I. Whether the Personnel Review Panel made findings of basic facts upon which their ultimate findings of facts were based as required by Wyo.Stat. § 16-3-110?

II. Whether the Personnel Review Panel’s findings of fact and conclusions of law are supported by substantial evidence?

The counterstatement of the issues by Utech is:

I. Did the panel make sufficient findings of basic fact to permit meaningful court review?

II. Is there substantial evidence in the record to support the panel’s findings that the city did not prove just cause for the employee’s termination?

At the time of his discharge, Utech had been employed for sixteen years by Casper and was superintendent of the city garage. The preceding October, the city manager had received a memo from Utech’s supervisor in which termination of Utech’s employment was recommended. The city manager conducted a pre-termination hearing, at which Utech was not allowed representation by counsel, to determine the basis for this recommendation. The city manager then addressed a letter of termination to Utech.

In that letter, which was given to Utech on January 24, 1992, Casper notified him his employment would be terminated because of his actions with respect to supervisory practices, personal problems brought to the job, and use of city-owned property. Specifically, the letter stated:

Supervisory Practices

1. Threatening employees, under your supervision, both verbally and physically.

2. Creating or allowing to exist, an atmosphere that’s detrimental to the work site that you are responsible for supervising.

3. Inconsistent treatment of employees under your supervision.

Personal Problems Brought to the Job

1. Harassment of City Employees

A. 06-10-91 Written reprimand.

B. 08-26-91 Citizen complaint.

C. Criminal Action No. 91-17212.

Use of City-owned Property

1. Unauthorized use of City-owned property, by yourself and by employees under your supervision.

Utech’s employment was terminated, according to the letter, the same day.

Utech requested, and received, a post-termination hearing before the Board. The parties stipulated that the structure of the hearing imposed the burden of proof upon Casper. We have defined the concept of burden of proof in this way:

The phrase “burden of proof’ is often used as meaning the necessity of establishing a fact to a legally required extent, or the necessity of finally establishing a fact. 31 C.J.S. Evidence § 103, p. 709.

Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962). The encyclopedia tells us:

The term burden of proof has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.

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The burden of persuasion aspect of the burden of proof describes the obligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true.

The burden of persuasion has two components; first, the facts a party must plead and prove in order to prevail on a particular issue, and second, how persuasively it must prove those facts.

29 Am.JuR.2d Evidence § 155, 181-82 (1994) (footnotes omitted).

Casper was required to submit sufficient evidence of just cause to terminate Utech’s employment, and it was charged with doing so by a preponderance of the evidence.

Following a lengthy hearing in which numerous witnesses testified and a number of exhibits were introduced, the Board made these conclusions of law pertinent to this appeal:

6. The City has presented insufficient admissible, relevant and credible evidence to conclude that there was just cause to terminate the employment of Michael Utech.

7. The Personnel Review Panel concludes, as a matter of law, that the City of Casper has not met its burden of proving that there was just cause for the termination of the employment of Michael Utech.

The Board’s findings of fact with respect to these conclusions of law were:

11. Insufficient evidence was received by the Panel to find that while Michael Utech was the Superintendent of the Garage he threatened employees under his supervision.

12. Insufficient evidence was received by the Panel to find that Michael Utech created or allowed to exist an atmosphere detrimental to the work site.

13. Insufficient evidence was received by the Panel to find that Michael Utech was responsible for inconsistent treatment of employees under his supervision.

14. Insufficient evidence was received by the Panel to find that Michael Utech harassed City employees.

15. Insufficient evidence was received by the Panel to find that Michael Utech used city property without authorization.

The Board ordered that the decision of the city manager be reversed.

Casper asserted the findings of fact did not comply with Wyo.Stat. § 16-3-110 (1990), and it requested the Board to specify the basic facts which led to its findings of insufficient evidence on these points. While the Board’s ruling was pending, Casper appealed the Board’s decision to the district court, where Casper asserted the identical issue. The district court ruled the findings provided a reasonable basis for the decision of the Board, and it affirmed that decision. Casper has appealed from the Order Affirming entered in the district court.

Casper relies fiercely upon the decision of this court in Pan American Petroleum, Corp. v. Wyoming Oil and Gas Conservation Comm’n, 446 P.2d 550 (Wyo.1968). We there articulated the requirement that an agency must encompass in its decision findings of basic facts sufficient to assist the court in applying the substantial evidence standard. Casper bolsters its reliance upon Pan American by citation to a number of other cases which have reiterated the requirement for findings of basic facts. Holding’s Little America v. Bd. of County Comm’rs of Laramie County, 670 P.2d 699 (Wyo.1983). See Campbell County v. Wyoming Community College Comm’n, 731 P.2d 1174 (Wyo.1987); Mountain Fuel Supply Co. v. Pub. Serv. Comm’n of Wyoming, 662 P.2d 878 (Wyo.1983); Larsen v. Wyoming Oil and Gas Conservation Comm’n, 569 P.2d 87 (Wyo.1977); Powell v. Bd. of Trustees of Crook County Sch. Dist. No. 1, 550 P.2d 1112 (Wyo.1976); Geraud v. Schrader, 531 P.2d 872 (Wyo.1975), cert. denied sub nom., Wind River Indian Educ. Ass’n, Inc. v. Ward, 423 U.S. 904, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975). We cannot deny the rule of Pan American and its progeny with respect to the requirement that administrative agencies make specific findings of basic facts.

On the other hand, Utech insists Casper is demanding too much and beyond that which our cases require in asserting that the content of an agency’s basic factual findings must summarize the evidence or detail how the agency weighed and evaluated that testimony. We agree mere summaries of evidence are insufficient to constitute findings. 2 Frank E. CoopeR, State Administrative Law 471, 478 (1965). Our rule is that the agency, as the trier of fact, has the duty to weigh the evidence and determine the credibility of the evidence and the witnesses. E.g., Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873 (Wyo.1994); Knight v. Envtl. Quality Council of State of Wyoming, 805 P.2d 268 (Wyo.1991); Story v. Wyoming State Bd. of Medical Examiners, 721 P.2d 1013 (Wyo.1986); Westates Const. Co. v. Sheridan County Sch. Dist. No. 2, Bd. of Trustees, 719 P.2d 1366 (Wyo.1986); W. Radio Communications, Inc. v. Two-Way Radio Serv., Inc., 718 P.2d 15 (Wyo.1986); Employment Security Comm’n of Wyoming v. Bryant, 704 P.2d 1311 (Wyo.1985); Gilmore v. Oil and Gas Conservation Comm’n, 642 P.2d 773 (1982); First Nati Bank of Worland v. Fin. Institutions Bd., 616 P.2d 787 (Wyo.1980); Wyoming Bancorporation v. Bonham, 527 P.2d 432 (Wyo.1974). Indeed, it is because of that duty we defer to the findings of fact made by administrative agencies. E.g., Wyoming Steel & Fab, Inc.; L & H Welding and Machine Co. v. State ex rel. Wyoming Worker’s Compensation Div., 876 P.2d 984 (Wyo.1994); Hohnholt v. Basin Elec. Power Co-op, 784 P.2d 233 (Wyo.1989); Trout v. Wyoming Oil and Gas Conservation Comm’n, 721 P.2d 1047 (Wyo.1986).

It is at this point we depart in this case from the argument of Casper and its reliance upon Pan American and its progeny. Those cases do not address the situation in which there is no finding of fact. Neither does Wyo.Stat. § 16-3-110 speak to that situation. The cases and the statute are concerned with a requirement that is imposed when facts are found. Even accounting for the dichotomy articulated in Pan American with respect to whether the burden of proof encompasses the burden of establishing the case as a whole or the burden to establish a prima facie case at a certain stage of the hearing, we are satisfied that, when the agency concludes there is a failure of proof because “insufficient evidence was received by the panel” to permit the agency to find any of the allegations of the party charged with the burden of proof, Pan American does not apply.

It is clear Casper is demanding an explanation by the Board of why or how it reached the conclusion that, “[t]he City has presented insufficient admissible, relevant and credible evidence to conclude that there was just cause to terminate the employment of Michael Utech.” Our difficulty with Casper’s argument is that we discern no way in which the articulation of why or how the evidence was insufficient to establish facts will assist us in appellate review. Should that explanation be forthcoming, probably along the lines of Utech’s brief, it would be of no assistance since we are not permitted to reweigh the evidence nor to tread upon the agency disposition of credibility.

We are satisfied, given some thirty years of additional experience with respect to administrative proceedings, a practical and pragmatic rule can be announced with respect to this issue. We hold, since we cannot reweigh the evidence nor redetermine the credibility of the evidence, no purpose is to be served by demanding the agency explain how it evaluated the evidence in arriving at a conclusion that a party failed to meet its burden of proof.

Instead, we are satisfied such cases come within the argument made by Casper with respect to its second issue addressing the sufficiency of the evidence, and the case must be considered under the arbitrary, capricious, and contrary to law language of Wyo. Stat. § 16-3-114(c)(ii) (1990). In making this argument, Casper relies upon Mekss v. Wyoming Girls’ Sch., 813 P.2d 185 (Wyo. 1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); FMC v. Lane, 773 P.2d 163 (Wyo.1989); and Mountain Fuel. An agency’s decision totally contrary to the evidence in the record is subject to such a test. We would have no equivocation in reversing and remanding such a decision.

The decision to reverse and remand on the ground the agency decision is arbitrary, capricious, and contrary to law because it is totally contrary to the evidence could only be made based upon our examination of the entire record, a duty we are charged with under the statute. Wyo.Stat. § 16-3-114(c). See, e.g., L & H Welding; Hohnholt; Trout. Our examination of this record satisfies us the decision of the Board was not arbitrary; was not capricious; was not an abuse of discretion; and there is no other justification for concluding it was not in accordance with law. It is plain to. us that, having heard the evidence of the several witnesses, the Board, with justification, decided some witnesses were motivated by malice or ill will; some of the occurrences were exaggerated, if not fabricated; some information was simply presented to add weight to the proceedings; some of the witnesses were not truthful; and, indeed, the evidence was not sufficient to sustain the allegations made by Casper in the letter of dismissal given to Utech.

The Order Affirming entered in the district court is affirmed.