Kathy S. Crofts v. State of Wyoming, ex rel., Department of Game and Fish

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 4
OCTOBER TERM, A.D. 2015
January 7, 2016
KATHY S. CROFTS,
Appellant
(Petitioner),
v.
S-15-0090
STATE OF WYOMING, ex rel.,
DEPARTMENT OF GAME AND FISH,
Appellee
(Respondent).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Bruce S. Asay and Greg B. Asay of Associated Legal Group, LLC, Cheyenne,
Wyoming. Argument by Greg Asay.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
General; Elizabeth C. Gagen, Senior Assistant Attorney General. Argument by
Ms. Gagen.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] Kathy Crofts appeals from the Office of Administrative Hearings’ (OAH) finding
that good cause supported two suspensions and her dismissal by the Wyoming Game and
Fish Department (Game & Fish). Ms. Crofts claims she was denied pre-deprivation due
process and that the OAH did not have jurisdiction to hear her case because her
supervisors did not have authority to issue her suspensions. Ms. Crofts did not raise these
issues below. We conclude her due process claim is not of such a fundamental nature
that it may be raised for the first time on appeal, and that, because the question of her
supervisors’ authority is not jurisdictional and was not raised below, we will not hear it
now. We affirm.
ISSUES
[¶2] 1. May Ms. Crofts raise the issue of deprivation of her procedural due process
rights for the first time on appeal?
2. Did the OAH lack jurisdiction over Ms. Crofts’ personnel appeal?
FACTS
[¶3] Kathy Crofts was a long-term Game & Fish employee. At all relevant times, Ms.
Crofts was a wildlife investigator based in Cody, and was entitled to the protections
provided to full-time, permanent employees by the State of Wyoming’s Personnel Rules.
[¶4] Ms. Crofts was issued a one-day suspension without pay on October 13, 2011.
That suspension was based upon Ms. Crofts’ insubordinate behavior during a September
8, 2011, mid-term performance evaluation meeting with her immediate supervisor, Mike
Ehlebracht, and other unprofessional behaviors that Mr. Ehlebracht had addressed during
that meeting (including improperly completed travel vouchers and Daily Activity Record
(DAR) entries, rude behavior toward the public, and overtime misuse). Mike Choma,
Mr. Ehlebracht’s immediate supervisor, investigated the conduct and issued the notice of
disciplinary suspension. The notice of suspension was hand-delivered at 4:00 p.m. on
October 13 and Ms. Crofts served the suspension the next day.
[¶5] Ms. Crofts filed a grievance concerning the October 13, 2011, suspension on
October 27, 2011. In that grievance, Ms. Crofts claimed that the suspension was issued
without cause. She did not question the notice provided to her or Mr. Choma’s authority
to issue the suspension.
[¶6] On April 27, 2012, Game & Fish issued Ms. Crofts a three-day suspension, again
without pay. This suspension arose from Ms. Crofts’ behavior in conjunction with a joint
investigation with U.S. Forest Service Special Agent Bragonier. Ms. Crofts and Special
1
Agent Bragonier had investigated a Wyoming outfitter regarding several alleged unlawful
behaviors. Ms. Crofts and Special Agent Bragonier had agreed upon the violations to be
charged in state court and those to be filed in federal court. Despite their understanding
and contrary to their agreement, state citations were issued on two charges that
effectively precluded the federal charges. When he confronted Ms. Crofts about this, she
told Special Agent Bragonier that it was “luck” that the Park County Deputy Attorney
chose to prosecute those charges. However, when Special Agent Bragonier questioned
him, the attorney told him that Ms. Crofts had specified which state charges should be
pursued and which could be dismissed. As a result, Special Agent Bragonier submitted a
written complaint to Mr. Ehlebracht questioning Ms. Crofts’ credibility and stating that
he had no desire to work any further investigations with her.
[¶7] Mr. Ehlebracht investigated the complaint and concluded that Ms. Crofts had
misled Special Agent Bragonier and then lied to him to cover it up. The three-day
disciplinary suspension without pay was based upon the results of this investigation, past
behaviors, and personnel rule violations. The letter notifying Ms. Crofts of the
suspension was signed by Mr. Ehlebracht and delivered to Ms. Crofts on Friday, April
27, 2012. She began serving the suspension the following Monday.
[¶8] Ms. Crofts filed a grievance concerning the April 27, 2012, three-day disciplinary
suspension on May 3, 2012. That grievance challenged the factual allegations contained
in the suspension notice, and contended that the suspension was in retaliation for her
filing the first grievance and charges of discrimination that she had previously filed
before the Equal Employment Opportunity Commission. The grievance did not mention
the notice provided to her or Mr. Ehlebracht’s authority to sign the letter issuing the
suspension.
[¶9] Ms. Crofts returned to work on May 3, 2012, and was immediately placed on
administrative leave, this time with pay, and was given notice of intent to dismiss. John
Kennedy, the Deputy Director of Internal Operations for Game & Fish, issued this notice
of intent to dismiss Ms. Crofts based upon a number of items, including prior
misconduct, unsatisfactory work performance history, incapacity to perform assigned
duties, her likely inability to testify in future cases due to her disciplinary record, and her
behavior surrounding the Ten Sleep case. Ms. Crofts’ participation in the Ten Sleep case
resulted in U.S. Fish and Wildlife Senior Special Agent Armstrong’s complaints that “the
success of the investigation was frequently in jeopardy due to [Ms. Crofts’] refusal to
recognize [her] own faults and amend [her] behavior to what was expected . . .”; that Ms.
Crofts incorrectly and inaccurately documented information in her reports; and stating
that he would prefer not to work with her in the future.
[¶10] In addition, because of Ms. Crofts’ prior suspensions, the attorney prosecuting the
case determined that her testimony would raise Giglio v. United States, 405 U.S. 150, 92
S. Ct. 763, 31 L. Ed. 2d 104 (1972) issues, bringing into question her credibility as a
2
witness, and thus, he elected not to call her as a witness in the trial, which was to be held
in Casper. Ms. Crofts was advised by the attorney that she would not testify as a result of
pending disciplinary matters. The day before trial was to start, Ms. Crofts left Cody,
heading to Casper. At 8:30 that morning, Mr. Ehlebracht phoned the Cody office and got
no answer; he then called Ms. Crofts’ cell phone, spoke to her about the trial, and
directed her to stay in Cody. She questioned his decision several times and did not tell
him she was on her way to Casper. Mr. Ehlebracht emailed Ms. Crofts and got no
response. He then called her again at 8:50 and asked where she was and what she was
doing. At that time, Ms. Crofts admitted that she was three-and-a-half hours out of Cody
en route to Casper. He told her to return to Cody and answer his email when she got
there. She did not respond to the email until 2:59 p.m.
[¶11] On May 16, 2012, Ms. Crofts filed a written response to the notice of intent to
dismiss in which she argued that the intent to dismiss was taken in retaliation for her
complaint of a hostile work environment; her grievance concerning the October 13, 2011,
disciplinary suspension; her discrimination and hostile work environment claim; and the
decision of the state human resources manager to go forward with her grievance. She
contended that her April 27, 2012, suspension was retaliatory, and that all of the
disciplinary actions were instigated by Mr. Ehlebracht to set the stage for allegations of
dishonesty and ultimately her termination. In addition, she contested the factual bases for
the termination. On May 25, 2012, Mr. Kennedy issued his letter terminating Ms. Crofts’
employment.
[¶12] Ms. Crofts timely appealed her dismissal to the OAH. In her Petition for
Personnel Appeal Hearing before the OAH, Ms. Crofts alleged:
a. That there is no cause for her dismissal, and that the
grounds alleged for her dismissal were fabricated to
provide otherwise non-existent cause for her dismissal.
b. That the dismissal and disciplinary suspensions were
taken in retaliation for:
i. Her having filed a formal complaint within the
Department alleging hostile work environment sexual
harassment.
ii. Her having grieved the October 13, 2011 Disciplinary
Suspension without Pay.
iii. Her having filed a Charge of Discrimination pursuant
to Title VII of the Civil Rights Act of 1964 on
December 22, 2011.
iv. The April 4, 2012 decision of the Human Resources
Manager to allow her grievance of the October 13,
2011 disciplinary action to go forward.
3
v. Her initial grievance of the April 27, 2012
Disciplinary Suspension without Pay.
vi. Her alleging retaliation in her Response to the Notice
of Intent to Dismiss and her grievance of the April 27,
2012 disciplinary action.
c. That the retaliatory disciplinary actions including her
discharge violate both Chapter 12, § 1 of the Personnel
Rules for the State of Wyoming[1] and Title VII of the
Civil Rights Act of 1964.
In her prehearing memorandum/disclosures, she stated: “The sole issue is whether there
was just cause for her termination[,]” and “Petitioner does not anticipate any amendments
to pleadings.”
[¶13] The OAH held a week-long administrative hearing of Ms. Crofts’ consolidated
appeals of the three disciplinary actions (the October 13, 2011 suspension, the April 27,
2012 suspension, and the May 25, 2012 dismissal). The hearing examiner determined
that “good cause” supported the disciplinary actions and that they were supported by
substantial evidence.
[¶14] Ms. Crofts timely appealed the hearing examiner’s decision to the district court,
which affirmed the OAH findings. This appeal followed. She raises these issues:
I. Did the agency action violate the Appellant’s right to due
process infringing on Appellant’s fundamental rights
including her right to pursue a career of her choosing?
II. Did the hearing examiner lack jurisdiction to determine
whether the agency had good cause, as the suspensions and
termination of the Appellant were void ab initio?
DISCUSSION
I. May Ms. Crofts raise the issue of deprivation of her procedural due process rights
for the first time on appeal?
[¶15] Wyoming Rule of Appellate Procedure 12.09(a) limits an appellate court’s review
of administrative action to “issues set forth in the petition and raised before the agency.”
Accordingly, we have routinely held that, with the exception of jurisdictional or certain
fundamental issues, issues raised for the first time on appeal from an administrative
1
Chapter 12, Section 1 of the Personnel Rules in effect at the time relates to the grievance procedure.
State of Wyoming Personnel Rules, ch. 12, § 1 (effective December 7, 2001).
4
decision will not be considered. State ex rel. Dep’t of Family Servs. v. Kisling, 2013 WY
91, ¶ 14, 305 P.3d 1157, 1162 (Wyo. 2013); BP Am. Prod. Co. v. Dep’t of Revenue, 2006
WY 27, ¶ 18, 130 P.3d 438, 462 (Wyo. 2006).
[¶16] Ms. Crofts argues that she raised the issue of deprivation of procedural due
process at the administrative hearing, and that, to the extent she did not raise it, she was
prevented from doing so by the OAH hearing examiner. Our review of the record reveals
that Ms. Crofts did not raise the issue in her Petition for Personnel Appeal Hearing. In
her petition, Ms. Crofts generally denied the factual allegations underlying her
suspensions and dismissal; she claimed that the agency lacked cause and that the
dismissal and suspensions were retaliatory. Ms. Crofts did not raise the procedural due
process issue in her Prehearing Memorandum and Prehearing Disclosures, or in her
proposed Findings of Fact, Conclusions of Law and Order.
[¶17] Prior to the OAH hearing, Game & Fish filed a motion in limine to restrict
evidence at the hearing to the issues pled and contested by Ms. Crofts. In granting that
motion, the hearing examiner noted that “Crofts did not file a formal response to the
motion[,]” and concluded that “no procedural issues have been raised or pled by the
parties and will not be considered at the hearing.”
[¶18] Ms. Crofts argues that her testimony at the hearing on Mr. Ehlebracht’s authority
to issue disciplinary suspensions was sufficient to preserve her procedural due process
issue. However, the testimony she cites has no relation to Ms. Crofts’ contention that she
was denied procedural due process. Rather, it goes only to the separate issue of authority
to suspend, which we address below. We find no indication in the record that Ms. Crofts
raised the issue of procedural due process at any time during the OAH proceedings.
[¶19] “This court has taken a dim view of a litigant trying a case on one theory and
appealing it on another. . . . Parties are bound by the theories they advanced below.”
Davis v. City of Cheyenne, 2004 WY 43, ¶ 26, 88 P.3d 481, 490 (Wyo. 2004) (citation
omitted). There is a sound basis for our general rule “that we will not consider claims
raised for the first time on appeal.” Id. We follow this rule because “it is unfair to
reverse a ruling of a trial court for reasons that were not presented to it, whether it be
legal theories or issues never formally raised in the pleadings nor argued to the trial
court.” Basic Energy Servs., L.P. v. Petroleum Res. Mgmt., Corp., 2015 WY 22, ¶ 28,
343 P.3d 783, 791 (Wyo. 2015) (quoting Bredthauer v. TSP, 864 P.2d 442, 446-47 (Wyo.
1993)). “This rule is equally applicable to appeals from administrative decisions as to
those from district courts.” Kisling, 2013 WY 91, ¶ 14, 305 P.3d at 1162 (citation
omitted). “[O]rderly procedure and good administration require that objections to the
proceedings of an administrative agency be made while it has the opportunity for
correction in order to raise issues reviewable by the courts.” Id. (citation omitted).
5
[¶20] Ms. Crofts argues that the issue “is of such a fundamental nature that it must be
considered” even though it is raised for the first time on appeal, citing Kordus v. Montes,
2014 WY 146, ¶ 10, 337 P.3d 1138, 1141 (Wyo. 2014). Ms. Crofts equates fundamental
rights, which she claims to be at issue here, with issues that are of “such a fundamental
nature” they must be considered on appeal. Id. The fundamental rights at issue in her
case, Ms. Crofts contends, are her right to due process, to her protected property interest
in continued employment, to pursue a livelihood, to pursue a common calling, and to ply
her chosen trade. These rights fall into two categories: her property interest in continued
employment, and her liberty interest in her good name.
[¶21] Game & Fish contends the only issue implicated in Ms. Crofts’ allegation that she
was not provided with pre-deprivation notice and a hearing is the issue of procedural due
process, which is not a fundamental right. Game & Fish points out that the full post-
deprivation hearing resulted in a finding that Ms. Crofts did in fact engage in the
misconduct alleged by Game & Fish, and it contends it is that determination that has
interfered with Ms. Crofts’ job prospects, not the absence of notice. At oral argument,
Game & Fish also asserted that Ms. Crofts had no liberty interest because she had a
property interest, and the two were mutually exclusive. 2
[¶22] As we have observed, a solid definition of “fundamental” has proven elusive:
Perhaps we should have been more specific when using the
word “fundamental” in prior opinions. Compare Frank [v.
State By and Through the Wyo. Bd. of Dental Exam’rs], 965
P.2d [674,] 679 [(Wyo. 1998)] (“‘there is no fundamental
interest involved in the practice of medicine . . . or any other
profession’”), with Slagle v. Wyoming State Board of
Nursing, 954 P.2d 979, 982 (Wyo. 1998) (“Slagle’s license to
practice—a property right—and her right to earn a living—a
liberty interest—are so fundamental that such rights cannot be
restricted by agency action without the agency first giving
notice of the alleged grounds for sanctions”).
Painter v. Abels, 998 P.2d 931, 940 (Wyo. 2000).
2
Game & Fish cites no authority, and we find none, for the proposition that the two interests are mutually
exclusive. Property and liberty interests are frequently implicated together. See, e.g., Tonkovich v.
Kansas Bd. of Regents, 159 F.3d 504, 526-28 (10th Cir. 1998) (property and liberty interest in tenured
teacher’s employment context). We do not consider contentions unsupported by cogent argument or valid
authority. In re Gen. Adjudication of All Rights to Use Water in Big Horn River System, 2015 WY 104,
¶ 24, 355 P.3d 1222, 1228 (Wyo. 2015).
6
[¶23] On the specific question of what issues are of such a fundamental nature as to
allow us to consider them for the first time on appeal, we have also recognized a lack of
clarity:
Our case law does not define with precision what issues are of
“such a fundamental nature that they must be considered.”
[Byrd v. Mahaffey, 2003 WY 137], ¶¶ 10-11, 78 P.3d [671,]
674 [(Wyo. 2003)]. The fact that the issue is constitutional
does not necessarily make it fundamental. For example, in
[WR v. Natrona Cty. Dep’t of Family Servs. (In Interest of
DG)], 916 P.2d [991,] 997-98 [(Wyo. 1996)], and TR [v.
Washakie Cty. Dep’t of Pub. Assistance & Soc. Servs.], 736
P.2d [712,] 719-20 [(Wyo. 1987)], we refused to address
issues concerning the constitutionality of the parental rights
termination statutes. In contrast, we considered in Kordus v.
Montes, 2014 WY 146, ¶ 10, 337 P.3d 1138, 1141 (Wyo.
2014), a claim that application of the statute of limitations to
a minor’s medical malpractice action violated the
fundamental right to access to courts even though the issue
was not raised at trial. In Zupan v. Zupan, 2010 WY 59, ¶ 34,
n.4, 230 P.3d 329, 338, n.4 (Wyo. 2010) we ruled Mother’s
argument that the residency provision in the divorce decree
violated her constitutional right to travel could be considered
on appeal even though it was not raised at trial.
Gjertsen v. Haar, 2015 WY 56, ¶ 15, 347 P.3d 1117, 1123 (Wyo. 2015). “We have also
on occasion said the plain error standard applies in cases where a constitutional issue was
not raised below.” Id. at ¶ 15, 347 P.3d at 1123 n.4 (citing WR v. Natrona Cty. Dep’t of
Family Servs. (In Interest of DG), 916 P.2d 991, 998 (Wyo. 1996); TR v. Washakie Cty.
Dep’t of Pub. Assistance & Soc. Servs., 736 P.2d 712, 720 (Wyo. 1987)).
[¶24] An appellant’s assertion of a “fundamental right” does not necessarily persuade
this Court to consider the issue for the first time on appeal. Rather, we will recognize an
exception to the rule “for an issue that ‘is of such a fundamental nature that it must be
considered.’” Kordus, 2014 WY 146, ¶ 10, 337 P.3d at 1141 (emphasis added) (quoting
Utley v. Lankford (In re Guardianship of Lankford), 2013 WY 65, ¶ 28, 301 P.3d 1092,
1101 (Wyo. 2013)). We have “declined to address newly raised issues that present
constitutional questions where nothing more is shown to compel the Court’s review[,]”
Utley, 2013 WY 65, ¶ 29, 301 P.3d at 1101, and we have held that:
[A] petitioner cannot obtain review of procedural errors in the
administrative process that were not raised before the agency
merely by alleging that every such error violates due process.
7
“Due process” is not a talismanic term which guarantees
review in this court of procedural errors correctable by the
administrative tribunal.
State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Wright (In re Wright), 983 P.2d 1227,
1232 (Wyo. 1999), overruled in part on other grounds by Torres v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2004 WY 92, 95 P.3d 794 (Wyo. 2004) (emphasis in
original). Other courts have declined to consider a new issue on appeal, even when it
may be an issue of a fundamental nature, because the issue was “not properly developed
for review[.]” Greenwood v. FAA, 28 F.3d 971, 978 (9th Cir. 1994). In Greenwood, the
court held that it could not consider the appellant’s argument that his equal protection
rights were violated by the FAA’s nonrenewal of his pilot examiner designation because
there was no information in the record regarding his contention that the FAA’s decision
was motivated by his age. The court held that “[a] limited agency record may preclude
review of substantive claims.” Id.
[¶25] With this background, we turn to the issues which Ms. Crofts contends are of such
a fundamental nature that we should consider them despite the fact that they are being
raised for the first time on appeal.
Deprivation of procedural due process
[¶26] Ms. Crofts does not challenge the procedure she was provided relating to her
termination. She was given prior notice, an opportunity to respond, and a full name-
clearing hearing. Rather, her allegations that she was deprived of procedural due process
are directed to the two suspensions, to which no liberty interest attaches.
[¶27] In order to establish a procedural due process claim, Ms. Crofts must first
demonstrate that she possessed a property or liberty interest. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1492, 84 L. Ed. 2d 494 (1985). The
Fourteenth Amendment does not create property or liberty interests. Rather, the right, if
any, must arise out of an independent source, such as state law. Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). To
“assess whether an individual was denied procedural due process, courts must engage in a
two-step inquiry: (1) did the individual possess a protected interest such that the due
process protections were applicable; and, if so, then (2) was the individual afforded an
appropriate level of process.” Montgomery v. City of Ardmore, 365 F.3d 926, 935 (10th
Cir. 2004) (internal quotation marks and citation omitted). In employment cases, the
protected interest asserted is generally the property interest in continued employment, and
the liberty interest in the employee’s “good name and reputation as it affects [her]
property interest in continued employment.” Workman v. Jordan, 32 F.3d 475, 480 (10th
Cir. 1994).
8
[¶28] It is undisputed that Ms. Crofts had a property interest in her continued
employment with Game & Fish. Metz v. Laramie Cty. Sch. Dist. No. 1, 2007 WY 166,
¶ 29, 173 P.3d 334, 342 (Wyo. 2007). She seems to concede that right may not rise to the
level of an issue of such fundamental nature that it must be considered for the first time
on appeal, citing Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1215 n.17
(10th Cir. 1998) (noting “it is unclear” whether an interest in continued employment is
protected by substantive due process). However, Ms. Crofts contends that her liberty
interest – the right to pursue a career of her own choosing – is a fundamental right.
[¶29] “Where a person’s good name, reputation, honor, or integrity is at stake because
of what the government is doing to him, notice and an opportunity to be heard are
essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27
L. Ed. 2d 515 (1971).
In Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct.
2701, 2707, 33 L. Ed. 2d 548 (1972), we explained that the
dismissal of a government employee accompanied by a
“charge against him that might seriously damage his standing
and associations in his community” would qualify as
something “the government is doing to him,” so as to trigger
the due process right to a hearing at which the employee
could refute the charges and publicly clear his name.
Owen v. City of Independence, Mo., 445 U.S. 622, 633 n.13, 100 S. Ct. 1398, 1406 n.13,
63 L. Ed. 2d 673 (1980).
[¶30] In the employment context, liberty interests involve: “1) the protection of [the
employee’s] good name, reputation, honor, and integrity, and 2) [the employee’s]
freedom to take advantage of other employment opportunities.” Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988). To support a claim for violation of her liberty interests
without due process, Ms. Crofts must show that Game & Fish made statements that: (1)
impugned her “good name, reputation, honor, or integrity;” (2) were false; (3) occurred in
the course of her termination or will foreclose other employment opportunities; and (4)
were published. Workman, 32 F.3d at 481; see also Paul v. Davis, 424 U.S. 693, 710, 96
S. Ct. 1155, 1165, 47 L. Ed. 2d 405 (1976) (for a liberty interest to attach, “the defamation
had to occur in the course of the termination of employment”). The Tenth Circuit has
“clarified that the third element of this test is conjunctive, and that in order to satisfy it,
the employee must show both that the defamatory statement occurred in the course of
employment termination and that it will foreclose other employment opportunities.”
Bjorklund v. Miller, 467 Fed. Appx. 758, 767 (10th Cir. 2012).
[¶31] Ms. Crofts might contend that the findings of dishonesty associated with her two
suspensions do give rise to a liberty interest because they foreclose her ability to take
9
advantage of other employment opportunities. See, e.g., Miller v. City of Mission, Kan.,
705 F.2d 368, 373 (10th Cir. 1983). However, she cites no authority for the proposition
that the suspensions alone are sufficient to support a liberty interest claim. Further, and
equally troubling, the record is inadequate for this Court to find that either or both of Ms.
Crofts’ suspensions actually would limit her freedom to take advantage of other
employment opportunities. “A sufficient administrative record is one that permits
informed judicial evaluation of the issues raised. . . . A limited agency record may
preclude review of substantive claims.” Greenwood, 28 F.3d at 978 (citing Southern Cal.
Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 676 (9th Cir. 1989)).
[¶32] We hold that neither the property interest nor the liberty interest asserted by Ms.
Crofts adequately supports a due process claim “of such a fundamental nature that it must
be considered” for the first time on appeal.
II. Did the OAH lack jurisdiction over Ms. Crofts’ appeal?
[¶33] Ms. Crofts contends that the hearing examiner did not have jurisdiction to hear her
personnel appeal because the head of Game & Fish did not properly delegate authority to
her two supervisors to issue the suspensions, contrary to the state’s personnel rules. Ms.
Crofts asserts the rules only authorize an agency head to suspend or discharge a
permanent employee, unless that authority is delegated in writing. State of Wyoming
Personnel Rules, ch. 1 § 4(b)(i) (effective November 2, 2009), and ch. 11 § 3(b), (d)
(effective December 7, 2001).3 She claims that the two supervisors who signed her
suspension letters lacked this requisite written authority. Therefore, she argues, the
suspensions in her case were void because they were improperly issued, and her dismissal
is also void because it was based, in part, on the two prior suspensions. She goes on to
argue that, since the suspensions and termination were void, the OAH had no jurisdiction
over the personnel appeal that she filed.
[¶34] Ms. Crofts claims that she raised the question of authority at the hearing when her
attorney attempted to introduce facts concerning Mr. Ehlebracht’s authority to issue the
three-day suspension.
Q. [Ms. Crofts’ attorney]: On April 25, 2012, you
received a notice of disciplinary suspension without pay for
three days; is that correct?
A. [Ms. Crofts]: That’s correct.
3
Game & Fish takes issue with this reading of the language of the rules. We will not address that issue
because we decide the case on other grounds.
10
Q. And that was issued by Mr. Ehlebracht; is that
correct?
A. Yes it was.
Q. I believe you’ve had some questions as to whether
Mr. Ehlebracht had the authority to issue that disciplinary
suspension?
A. Correct.
Q. What is your question? What are your concerns
about that?
A. As I read the disciplinary policy, the only person
that can issue suspensions without pay or dismissal is the
agency head. However, the agency head may delegate his
duties to another person in writing to perform those actions
on his behalf, and that supervisors are, according to policy,
only allowed to write written reprimands, whereas [Mr.]
Ehlebracht had – as we found out later, did not have written
permission to act on behalf of the agency head, nor was he –
and it was not a written reprimand that he issued. It was
actually a suspension without pay.
[Attorney for Game & Fish]: And I’m going to object
and move to strike that entire response. Procedural issues
have been ruled outside of this matter, including procedural
issues that was [sic] specifically part of respondent’s motion
in limine, and that – that OAH has already ruled on.
[Ms Crofts’ attorney]: I don’t believe that’s been ruled
on, and the question is whether or not Mr. Ehlebracht had the
authority to do so.
[¶35] In order to preserve an issue for appeal, it must be called to the attention of the
trial court in a “clear or meaningful manner.” Kisling, 2013 WY 91, ¶ 16, 305 P.3d at
1163.
Father’s position is that an issue may be raised by implication
from the pleadings, or that the mere mentioning of an issue is
sufficient to preserve it for appeal. This notion runs contrary
to both the purpose of the rule and our established
11
jurisprudence. We have held that we will not consider issues
that were not raised below in any meaningful manner. . . . It
is a basic premise of appellate practice that to preserve an
issue for appeal, that issue must be called to the attention of
the trial court in a clear manner.
Yates v. Yates, 2003 WY 161, ¶ 15, 81 P.3d 184, 189 (Wyo. 2003) (internal citations and
quotation marks omitted).
[¶36] Ms. Crofts’ cited testimony was insufficient to call the issue to the attention of the
OAH in a clear and meaningful manner. Game & Fish’s attorney objected to the
introduction of this evidence and the OAH had already ruled that procedural evidence
would not be admitted. Ms. Crofts dropped the line of questioning and failed to make an
offer of proof on the subject. See Guy-Thomas v. Thomas, 2015 WY 35, ¶ 12, 344 P.3d
782, 786 (Wyo. 2015) (“[A]n offer of proof should have been made so that we would
know what would have been presented[.]”).
[¶37] Ms. Crofts did raise the issue in her appeal to the district court. There, however,
she only contended that the suspensions were procedurally deficient because they were
improperly issued. She did not argue that the deficiency deprived the OAH of
jurisdiction. The district court correctly refused to consider the question, as she had not
raised it below. This appeal is the first time Ms. Crofts has set forth the argument that the
alleged procedural deficiencies raise a jurisdictional question.
[¶38] The question of jurisdiction is one that cannot be waived and may be raised for the
first time on appeal. Meima v. Broemmel, 2005 WY 87, ¶ 56, 117 P.3d 429, 447 (Wyo.
2005).
“‘Jurisdiction’ refers to ‘a court’s adjudicatory authority.’”
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S. Ct.
1237, 1243, 176 L. Ed. 2d 18 (2010) (citation omitted). There
are two types of jurisdiction—personal jurisdiction and
subject matter jurisdiction. Id. at 160–61, 130 S.Ct. at 1243.
Personal jurisdiction refers to the power of a court to make an
adjudication applicable to a person, while subject matter
jurisdiction refers to the power of a court to hear and
determine certain classes of cases. Id.
Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101, ¶ 33, 332
P.3d 523, 533 (Wyo. 2014); see also Birkle v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2007 WY 9, ¶¶ 5-6, 11, 150 P.3d 187, 189-90 (Wyo. 2007) (principles of
jurisdiction apply to administrative agencies). Ms. Crofts argues that the OAH lacked
subject matter jurisdiction to decide her personnel appeal.
12
[¶39] Ms. Crofts relies upon State ex rel. Minor v. Eschen, 656 N.E.2d 940 (Ohio 1995),
for the assertion that because the suspensions were void, the OAH lacked jurisdiction to
consider an appeal of the suspensions. In that case, the mayor discharged a civil service
employee because he had been found shoplifting. The mayor was not an “appointing
authority” who was authorized to terminate his employment under the terms of the city
charter. Id. at 943. The employee sought a writ of mandamus instead of appealing to the
civil service commission, contending that he could not appeal because the civil service
commission lacked jurisdiction. The Ohio court agreed. Id. at 943-44.
[¶40] Wyoming statutes, however, grant the presiding officer in administrative hearings
the authority “[t]o determine if the agency complied with relevant procedural
requirements of the personnel rules[.]” Wyo. Stat. Ann. § 9-2-1019(a)(ii) (LexisNexis
2015). The state personnel rules also provided that the presiding officer may “determine
if the agency complied with relevant procedural requirements of the personnel rules[.]”
State of Wyoming Personnel Rules, ch. 12, § 7(g)(iii) (effective December 7, 2001). The
OAH, therefore, had subject matter jurisdiction over the question of whether Game &
Fish followed the personnel rules, including whether the disciplinary actions were
properly issued.
[¶41] As one court has stated:
If an employee believes that his termination was not
authorized by the proper appointing authority, that problem
could be easily remedied in the grievance process. If the
termination had been authorized by the appointing authority,
that could be documented and made clear to the employee. If
the termination were truly unauthorized, as [the employee]
alleges here, it could be reversed.
Tom Beu Xiong v. Fischer, No. 13-CV-418-JDP, 2014 WL 2765802 at *10 (W.D. Wis.
June 18, 2014).
[¶42] The same is true in this case. The OAH had the power to hear and determine the
question of whether Mr. Ehlebracht or Mr. Choma were authorized to suspend Ms.
Crofts. It did not do so because Ms. Crofts did not raise that issue, and we will not
consider it now for the first time on appeal.
CONCLUSION
[¶43] Ms. Crofts has not asserted a due process claim of such a fundamental nature that
we will consider it for the first time on appeal. She failed to preserve her claim that her
suspensions were issued without authority. That claim is not jurisdictional, and we
therefore also decline to consider it for the first time on appeal. The decision of the
district court affirming the decision of the OAH is affirmed.
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