(concurring in part and dissenting in part):
1 11 We concur in the lead opinion's conclusion that the district court must determine whether Petitioner is an at-will or merit employee, and we dissent from the lead opinion's decision to stay further consideration pending the district court's decision.
T 12 We agree that Petitioner must obtain a determination from the district court regarding her employment status before we can entertain any appellate review. We write separately because we find the rationale underlying the lead opinion insufficient. The lead opinion essentially concludes that Petitioner must first turn to the district court for declaratory judgment regarding her employment status because the Board is not "well suited" to make a determination involving such "legal complexity." See supra T1 7, 8. The question, however, is not one of the Board's suitability but rather a matter of the Board's authority.
113 In making the threshold legal determination regarding Petitioner's status as an at-will employee, the Board exceeded the authority granted to it by statute, municipal ordinance, and municipal policy. See generally Utah Code Ann. § 10-8-1106(6)(c) (2007) (providing that this court's "review shall be ... for the purpose of determining if the appeal board abused its discretion or exceeded its authority" (emphasis added)). As was recently noted in Pearson v. South Jordan Employee Appeals Board, 2009 UT App 204, 216 P.3d 996, "we see nothing in [the Utah Code section pertaining to the discharge, suspension, or involuntary transfer of municipal employees] that confers upon [an employee appeals board] the authority to consider an appeal of the [municipality]'s decision that [the petitioner]'s employment could be terminated at will." Id. £13 (citing Utah Code Ann. § 10-8-1106 (Supp.2008)). The Pearson court also noted that "there is nothing in that section that grants [an employee appeals board] any authority to conduct proceedings or to issue decisions on the interpretation or application of [the Utah Code section listing at-will municipal positions]." Id. 114 (citing Utah Code Ann. § 10-83-1105 (2007)).
T14 Furthermore, the Board is governed by a set of policies and procedures instituted by the City, which delineate the seope of the *767Board's decision-making authority. Pursuant to section LB. of the Salt Lake City Employee Appeals Board Procedures, "[the Board has authority to investigate, take and receive evidence, and fully hear and determine the matter that relates to the cause for an employee discharge." Salt Lake City Employee Appeals Board Procedures § L.B. When making this determination, the Board is empowered to answer two questions: (1) "Do the facts support the need for discipline ... taken by the department head?" (2) "If so,] is the action taken proportionate to the discipline imposed?" See id. § VILG.
{15 These policies and procedures also specify what the Board does not have authority to do. They state, in relevant part, "[The Board has no jurisdiction to review or decide any other personnel matters." Id. § L.C. "Additionally, the Board has no authority to determine the City's legal liability under federal or state law." Id.
{16 The issues raised by Petitioner's appeal to the Board essentially raise issues regarding the legality and efficacy of the City's conversion of Petitioner's status from merit to at-will employee. The resolution of these issues does not involve an assessment the Board is authorized to make. The issues do not invite an assessment of the cause of Petitioner's discharge, nor do they involve an evaluation of the City's compliance with its own standards for employee discipline. Instead, the issues raised by Petitioner require a determination of "the City's legal liability under federal or state law" governing employer-employee relations. See id.
{17 The Board's decision regarding its jurisdiction in this particular case, therefore, went beyond the seope of its authority. The Petitioner must receive a decision regarding her employment status from the entity having authority to make such a determination in the first instance-the district court. If the district court determines that Petitioner was a merit employee, then she may return to the Board for a hearing on the issues that the Board is authorized to consider. If the district court determines that Petitioner was an at-will employee, she may choose to seek redress through an avenue other than the Board. We may properly conduct our appellate review only after the threshold questions are answered.
118 Finally, we dissent from the lead opinion's decision to stay further consideration of the appeal pending a possible declaratory judgment. We, too, acknowledge that Petitioner has been before a number of decision-making bodies in her attempts to receive redress, including this court. See Howick v. Salt Lake City Corp., 2008 UT App 216U, 2008 WL 2312598 (mem.) (per curiam). However, the decision to stay further consideration of Petitioner's appeal is without legal support and stands in contradiction to recent precedent. While it is unfortunate that the statutes governing the discharge of a municipal employee have not provided a clear, concise mechanism for resolving Petitioner's case, we are compelled to conclude that the only appropriate action is to dismiss Petitioner's appeal "without prejudice to [her] right to file an appeal with this court from a decision rendered by the district court on the same issues." See Pearson v. South Jordan Employee Appeals Bd., 2009 UT App 204, 17, 216 P.3d 996. Where the Board lacks authority to make a particular determination, we lack subject matter jurisdiction to review that decision. See id. TM And it is a fundamental principle that where "we do not have subject matter jurisdiction over [an] appeal ..., we must dismiss." See id. 114 (citing Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989)).
19 I CONCUR: JAMES Z. DAVIS, Judge.