Becker v. Sunset City

This opinion is subject to revision before final
publication in the Pacific Reporter

2013 UT 51

IN THE
SUPREME COURT OF THE STATE OF UTAH
STEWART BECKER,
Plaintiff and Appellant,
v.
SUNSET CITY,
Defendant and Appellee.

No. 20120320
Filed August 13, 2013

On Certiorari to the Utah Court of Appeals

Attorneys:
Jerald D. Conder, Salt Lake City, for petitioner
Gary L. Johnson, Zachary E. Peterson, Kallie A. Smith,
Salt Lake City, Felshaw King, Kaysville, for respondent

JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 The Sunset City Police Department fired Officer Stewart
Becker for reporting for duty under the influence of alcohol. The
Sunset City Board of Appeals and the Utah Court of Appeals
affirmed the termination decision. We granted certiorari on two
issues: (1) whether a portable breath test (PBT) result provided
sufficient evidentiary support to uphold Sunset City’s decision to
terminate Mr. Becker and (2) whether Utah Code section 34-38-7
permitted Sunset City to rely on a clause contained in its policy
manual that allowed it to depart from the manual’s specified
procedure of testing urine to establish blood alcohol content.
¶2 We affirm. The Sunset City Board of Appeals properly
determined that the PBT result constituted substantial evidence
supporting Sunset City’s decision to fire Mr. Becker. In addition,
Utah Code section 34-38-7 does not prohibit Sunset City from relying
on the PBT because this statute does not apply to government
employers.
 STEWART BECKER v. SUNSET CITY
Opinion of the Court

BACKGROUND
¶3 Mr. Becker was employed as a police officer in the Sunset
City Police Department. On April 1, 2007, Mr. Becker finished a shift
at 6:00 a.m. and was scheduled to report back for a second shift at
2:00 p.m. that afternoon. When Mr. Becker arrived for work at 2:00
p.m., he discussed the shift change with his supervisor, Sergeant
Bruce Arbogast. Sergeant Arbogast immediately noticed a strong
odor of alcohol coming from Mr. Becker. Mr. Becker admitted that
he had consumed approximately five shots of liquor before going to
bed at 8:00 or 9:00 a.m. that morning. Based on his observations and
Mr. Becker’s statements, Sergeant Arbogast requested that
Mr. Becker blow into a PBT. Mr. Becker offered to use his own PBT,
telling Sergeant Arbogast that he knew it was “pretty accurate.”
Mr. Becker blew into the PBT, which registered a breath alcohol
content of .045 grams.
¶4 At about the same time, two Utah State troopers arrived to
update the clock on an intoxilyzer machine located in Sunset City’s
police headquarters for daylight savings time. The troopers
approached Mr. Becker to discuss his new police vehicle and
immediately noticed a strong odor of alcohol coming from him. The
troopers expressed their concern to Sergeant Arbogast and said they
were considering performing field sobriety tests on Mr. Becker.
Sergeant Arbogast told the troopers that he was aware of the
situation and that he was taking care of it.
¶5 Mr. Becker asked Sergeant Arbogast not to inform the chief
of police, Ken Eborn, about the incident and requested that he be
allowed to wait in the office until the alcohol in his system dissipated
to the point that he could resume his duties. Sergeant Arbogast
declined both requests and called Chief Eborn, who relieved
Mr. Becker of duty and scheduled a disciplinary meeting for the
following day.
¶6 At the disciplinary meeting, Mr. Becker again admitted to
using alcohol before coming to work, increasing his estimated
consumption to between six and eight shots of liquor. Mr. Becker
stated that he did not dispute the amount of alcohol in his system
because his PBT was fairly accurate. Instead he asked for leniency.
Chief Eborn, however, determined that the seriousness of the
violation warranted termination.
¶7 The department issued a termination letter to Mr. Becker,
which stated: “The decision to terminate has been made as a result
of you reporting for duty on April 1, 2007 with a Blood Alcohol

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Content of .045 in violation of Sunset Police Department Policy and
Procedure Manual Section 3-03-02.0, 1-01-04.00 and Sunset City
Policy Manual section 4.2.4 (D).” The Sunset Police Department
policy manual and Sunset City policy manual referenced in the
termination letter (collectively, Alcohol Policy) provide that an
officer shall not “report for duty while under the influence of
intoxicants.” The Alcohol Policy defines “under the influence” to
mean “when an employee is affected by drugs or alcohol . . . to the
extent that it affects his or her ability to perform their job in a safe
manner. An employee . . . whose tests detect[] a Blood Alcohol
Content (BAC) of 0.04 or greater, shall be deemed under the
influence.” The Alcohol Policy also states that being on the job while
under the influence of alcohol is a serious offense that will usually
result in termination.
¶8 Mr. Becker appealed his termination to the Sunset City
Board of Appeals. At the hearing before the board of appeals, Sunset
City presented undisputed testimony that the PBT used by
Mr. Becker registered a breath alcohol content of .045 grams. One of
the state troopers who smelled alcohol on Mr. Becker’s breath also
testified that she believed it would have been dangerous for
Mr. Becker to drive or respond to any calls. The appeals board
issued its decision upholding the termination, and the court of
appeals affirmed. We granted certiorari on two issues: (1) whether
the PBT result provided sufficient evidentiary support to uphold
Sunset City’s decision to terminate Mr. Becker and (2) whether Utah
Code section 34-38-7 permitted Sunset City to rely on a clause
contained in its policy manual that allowed it to depart from the
manual’s specified procedure of testing urine to establish blood
alcohol content. We have jurisdiction under Utah Code section 78A-
3-102(3)(a).
STANDARD OF REVIEW
¶9 In order to arrive at the appropriate standard of review for
Mr. Becker’s claim that the PBT result was insufficient to support his
termination, we must track the standard applied in three successive
levels of review. First, on writ of certiorari we review the opinion of
the court of appeals for correctness. Prinsburg State Bank v. Abundo,
2012 UT 94, ¶ 10, 296 P.3d 709. Second, in determining whether the
court of appeals correctly reviewed a lower tribunal’s decisions, we
assess whether the court of appeals correctly applied the appropriate
standard of review. Jex v. Utah Labor Comm’n, 2013 UT 40, ¶ 14, __
P.3d __. When reviewing a municipal appeal board’s order
regarding an employee’s termination, the court of appeals is limited

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Opinion of the Court

to determining whether the board “abused its discretion or exceeded
its authority.” UTAH CODE § 10-3-1106(6)(c). Third, in determining
whether the municipal appeal board abused its discretion, the court
of appeals must decide whether the board correctly applied the
standard governing its review of a termination decision, which is
“prescribed by the governing body of each municipality by
ordinance.” Id. § 10-3-1106(7)(a). The relevant Sunset City ordinance
provides that its “appeals board shall sustain the discharge,
suspension or transfer [of a city employee] if it is presented
substantial evidence that cause existed for the discharge, suspension
or transfer.” SUNSET CITY, UTAH, CITY CODE § 1-15-2(C), available at
http://www.sterlingcodifiers.com/codebook/index.php?book
id=575.
¶10 Therefore, we must decide whether the board abused its
discretion in concluding that Mr. Becker’s termination was
supported by substantial evidence. “A decision is supported by
substantial evidence if there is a quantum and quality of relevant
evidence that is adequate to convince a reasonable mind to support
a conclusion. ” Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT
54, ¶ 11, 266 P.3d 751 (internal quotation marks omitted).
¶11 Mr. Becker’s second argument that the court of appeals
misconstrued Utah Code section 34-38-7 is a question of statutory
interpretation that we review de novo. See Vorher v. Henriod, 2013 UT
10, ¶ 6, 297 P.3d 614.
ANALYSIS
I. SUBSTANTIAL EVIDENCE SUPPORTS SUNSET CITY’S
DECISION TO TERMINATE MR. BECKER
A. Due Process Constrains the Reasons for Termination
We May Consider
¶12 In determining whether substantial evidence supports
Sunset City’s termination decision, our first task is to establish which
reasons for his termination we may properly consider. Sunset City
argues that regardless of Mr. Becker’s blood alcohol content,
evidence that Mr. Becker emitted a strong odor of alcohol
independently justified his termination because interactions with the
public in this condition would undermine the community’s trust and
confidence in the police department. While we agree that the
potential erosion of public trust occasioned by the odor of alcohol on
Mr. Becker’s breath may have been a proper basis for disciplinary
action, Sunset City did not notify Mr. Becker that this was one of the
reasons for his termination. And we may only consider evidence

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supporting the reasons for termination stated in the termination
letter provided to Mr. Becker in determining whether substantial
evidence supports his termination.
¶13 Where state or local law establishes a public employee’s
right to continued employment absent cause for discharge, that
employee holds a property interest in continued employment that is
protected by the Due Process Clause of the Fourteenth Amendment.
Goss v. Lopez, 419 U.S. 565, 573 (1975); Worrall v. Ogden City Fire
Dep’t, 616 P.2d 598, 601 (Utah 1980). Qualified public employees are
entitled to the due process protections of notice and an opportunity
to be heard regarding the termination of their employment. Goss, 419
U.S. at 579.
¶14 Except for several exclusions not applicable here, Utah has
granted the procedural protection of a hearing before an appeals
board to municipal employees seeking review of the termination of
their employment. UTAH CODE §§ 10-3-1105(1)(a), 10-3-1106(2)(a);
Pearson v. S. Jordan Emp. Appeals Bd., 2009 UT App 204, ¶ 10, 216 P.3d
996. The statutes governing a municipal employee’s appeal from a
termination decision, however, do not establish permissible causes
for termination, instead allowing each municipality to define cause
for an employee’s discharge. UTAH CODE § 10-3-1105(4) (“Nothing
in this section or Section 10-3-1106 may be construed to limit a
municipality’s ability to define cause for an employee termination or
reduction in force.”). Sunset City has adopted an ordinance
providing that employees entitled to a post-termination hearing may
only be terminated for cause. SUNSET CITY, UTAH, CITY CODE § 1-15-
2(C) (“The appeals board shall sustain the discharge, suspension or
transfer [of a city employee] if it is presented substantial evidence
that cause existed for the discharge, suspension or transfer.”
(emphasis added)). The contours of cause for termination (including
for violations of the Alcohol Policy) are defined in Sunset City’s
policy manuals.
¶15 Because qualified Sunset City employees may only be
terminated for cause, they have a due process right to a hearing. This
right is defined by Utah Code section 10-3-1106(3)(b)(ii) to entail a
post-termination hearing before an appeal board, which shall
“receive evidence and fully hear and determine the matter which
relates to the reason for the discharge.” UTAH CODE § 10-3-1106(3)(b)(ii)
(emphasis added). Consequently, protected municipal employees
also 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. Fierro v. Park City

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Opinion of the Court

Mun. Corp., 2012 UT App 304, ¶¶ 18–19, 295 P.3d 696. Thus, the
appeal board may consider only evidence related to the grounds for
discharge for which the employee has received proper notice,
usually in the form of a termination letter or similar memorandum.
Id. ¶¶ 21–22. We may not side-step this due process limitation in
determining whether a municipal appeal board’s decision is
supported by substantial evidence.
¶16 Here, Sunset City issued a termination letter to Mr. Becker,
notifying him that “[t]he decision to terminate has been made as a
result of you reporting for duty on April 1, 2007 with a Blood
Alcohol Content of .045 in violation of [Sunset City’s Alcohol
Policy].” In other words, the termination letter notified Mr. Becker
he was being fired due to his blood alcohol level when he arrived at
work, which indicated his ability to perform his duties had been
impaired. While the potential erosion of public trust caused by the
smell of alcohol on his breath is certainly related to Mr. Becker’s
blood alcohol level, the termination letter did not adequately notify
him that this was one of the reasons for his termination. We
therefore limit our review to a determination of whether substantial
evidence supports the conclusion that Mr. Becker’s blood alcohol
content violated Sunset City’s Alcohol Policy.
B. Substantial Evidence Supports the Conclusion that Mr. Becker
Was “Under the Influence” of Alcohol, in Violation of the
Sunset City’s Alcohol Policy
¶17 Mr. Becker alleges the PBT result is inadequate to support
his termination because PBTs do not directly measure blood alcohol
content. We find, however, that the PBT reading constitutes
substantial evidence that Mr. Becker’s blood alcohol content was
high enough to justify his termination under Sunset City’s policies.
¶18 Sunset City’s Alcohol Policy allows for the termination of
a police officer for reporting for duty while “under the influence” of
alcohol. It further provides that the principal criterion for
determining when an officer is “under the influence” is whether the
officer “is affected by drugs or alcohol . . . to the extent that it affects
his or her ability to perform their job in a safe manner.” The Alcohol
Policy states that an officer “whose tests detect[] a Blood Alcohol
Content (BAC) of 0.04 or greater, shall be deemed under the
influence.” Thus, while a test indicating a blood alcohol content of
.04 grams or greater conclusively establishes that an individual is
under the influence of alcohol, it is not the only potentially relevant
evidence. Other evidence that an officer’s ability to safely perform

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job duties is adversely affected by alcohol could also be grounds for
termination.
¶19 Sunset City proffered evidence that Mr. Becker was under
the influence of alcohol through undisputed testimony that the PBT
registered Mr. Becker’s breath alcohol content to be .045 grams and
through evidence that the PBT reading was accurate. Trooper
McLaughlin testified that PBTs are accurate instruments and that
they typically generate a reading one or two thousandths lower than
an intoxilyzer—a larger instrument that tests breath alcohol levels
and prints the result. The appeals board also heard evidence that the
particular PBT used by Mr. Becker had been scientifically tested and
shown to be accurate. When Mr. Becker was terminated, the PBT
was taken out of service and stored under lock and key. The PBT
was tested on three separate occasions using a certified solution with
a known alcohol concentration. On each occasion, technicians
reported that the PBT was “very accurate” or “dead on.” Moreover,
Mr. Becker chose the PBT he wished to use, stating that he knew that
his PBT was “pretty accurate.”
¶20 Sunset City also produced evidence that although a PBT
directly measures breath alcohol content, it also accurately indicates
an individual’s blood alcohol content.1 A breath alcohol test, such as
a PBT, “measure[s] a person’s blood alcohol content from a sample
of the person’s breath.” BLACK’S LAW DICTIONARY 215 (9th ed. 2009)
(defining “breathalyzer”). Utah’s DUI statutes recognize the close
correspondence between breath alcohol and blood alcohol tests by
criminalizing the operation of a vehicle with a “blood or breath
alcohol concentration of .08 grams or greater.”2 UTAH CODE § 41-6a-
502(1)(a). During the hearing before the appeals board, Sunset City
provided evidence that a PBT accurately indicates an individual’s
blood alcohol level through the testimony of Trooper McLaughlin,
who had been a highway patrol officer for almost ten years and had

1
Cf. State v. Manwaring, 2011 UT App 443, ¶ 28, 268 P.3d 201
(noting that a PBT and subsequent blood tests on an individual
yielded nearly identical readings).
2
Although breath alcohol and blood alcohol are both measured
in grams, blood tests and breath tests gauge the amount of alcohol
contained in different volumes so that the two tests produce similar
results: “Alcohol concentration in the blood shall be based upon
grams of alcohol per 100 milliliters of blood, and alcohol
concentration in the breath shall be based upon grams of alcohol per
210 liters of breath.” UTAH CODE § 41-6a-502(2).

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received specialized training regarding breathalyzers and PBTs.
Trooper McLaughlin testified that, in fact, PBTs generally produce
a slightly lower alcohol content reading than a blood test.
¶21 We find this evidence to be substantial because it
constitutes “a quantum and quality of relevant evidence that is
adequate to convince a reasonable mind” that Mr. Becker reported
for duty with a blood alcohol content of .04 grams or greater. See
Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 11, 266 P.3d
751 (internal quotation marks omitted). “Substantial evidence is
more than a mere ‘scintilla’ of evidence and something less than the
weight of the evidence.” Johnson v. Bd. of Review of Indus. Comm’n,
842 P.2d 910, 911 (Utah Ct. App. 1992). In conducting a substantial
evidence review, we do not “reweigh the evidence” and
independently choose which inferences we find to be the most
reasonable. Utah Ass’n of Cntys. v. Tax Comm’n ex rel. Am. Tel. & Tel.
Co., 895 P.2d 819, 821 (Utah 1995). “Instead, we defer to [a lower
tribunal’s] findings because when reasonably conflicting views arise,
it is the [fact-finder’s] province to draw inferences and resolve these
conflicts.” Id.
¶22 Although a reasonable fact-finder could potentially
conclude that Mr. Becker’s blood alcohol content was not .04 grams
or greater because the PBT reading of .045 grams was close to this
threshold or because PBTs do not directly test blood alcohol content,
this is not the only reasonable conclusion that could be drawn from
the evidence. Evidence that the PBT was accurate and that PBTs tend
to produce a slightly lower reading than a blood alcohol test was
sufficient to support a conclusion that Mr. Becker’s blood alcohol
content was high enough that he was “under the influence” as
defined in Sunset City’s policies. The appeal board properly
determined that substantial evidence supported Mr. Becker’s
termination, and we may not disturb this conclusion.3
II. UTAH CODE SECTION 34-38-7 DOES NOT PROHIBIT
SUNSET CITY FROM DEVIATING FROM ITS
URINE TESTING POLICY
¶23 Sunset City’s policy manual provides that “Drug/Alcohol
Testing is an analysis of a urine specimen provided by the

3
Our holding, of course, is limited to the application of the
substantial evidence standard of review to the specific evidence
presented in this case. We make no broad pronouncements
regarding the use of PBT evidence in criminal cases or civil cases
involving a different standard of review or different evidence.

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employee.” The manual also indicates, however, that Sunset City
may deviate from its policies when circumstances require it to do so:
“The procedures set out below are as complete as Sunset City can
reasonably make them. However, they are not necessarily all
inclusive. Sunset City Corporation may vary from the
rules/procedures listed if, in its opinion, the circumstances require.”
Sunset City asserts that it did not conduct a urine test because
Mr. Becker was the only officer scheduled to work on the afternoon
that he reported for duty while under the influence of alcohol, and
Sergeant Arbogast needed to cover Mr. Becker’s shift until a
replacement could be found. According to Sunset City, these
circumstances required it to deviate from its urine testing procedure
because if Sergeant Arbogast had taken the time to drive Mr. Becker
to the hospital to conduct a urine test, the city would have been left
without any police coverage.
¶24 Mr. Becker contends that Utah Code section 34-38-7
prohibited Sunset City from deviating from its policy manual’s urine
testing policy. Under section 34-38-7(1), “[t]esting or retesting for the
presence of drugs or alcohol by an employer shall be carried out
within the terms of a written policy.”
¶25 A review of the definitions applicable to section 34-38-7
reveals, however, that this statute does not apply to Sunset City.
Utah Code section 34-38-2 provides: “For purposes of this chapter
[including section 34-38-7] . . . ‘Employer’ does not include the
federal or state government, or other local political subdivisions.” As
a local political subdivision of the state, Sunset City is exempt from
the requirements imposed by section 34-38-7.
CONCLUSION
¶26 Because substantial evidence supports Mr. Becker’s
termination, and because Utah Code section 34-38-7 does not apply
to Sunset City, we affirm.

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