Cieply v. Weber Cty. Career Serv. Council

546 P.3d 980

2024 UT App 36

Charles CIEPLY, Appellant,

v.WEBER COUNTY CAREER SERVICE COUNCIL and Weber County, Appellees.

No. 20220449-CA

Court of Appeals of Utah.

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.

Opinion

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 propor- tional nor consistent, we reverse the district court and vacate the order of the administrative law judge (the ALJ) imposing these sanctions.

BACKGROUND¹

¶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

¶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.

¶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 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 infoimi him that Cieply and his wife were not to work 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."

¶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 warming, 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 [predetermination 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 would be highly inappropriate and inconsistent...