Anderson v. Daggett School District

2023 UT App 76

THE UTAH COURT OF APPEALS

CLARK ANDERSON,
Appellant,
v.
DAGGETT SCHOOL DISTRICT AND STATE OF UTAH,
Appellees.

Opinion
No. 20210155-CA
Filed July 20, 2023

Eighth District Court, Manila Department
The Honorable Clark A. McClellan
No. 200800001

Julie J. Nelson and Tracey M. Watson,
Attorneys for Appellant
Sean D. Reyes and Peggy E. Stone,
Attorneys for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1 Clark Anderson taught in the Daggett School District (the
District) for 24 years. After the series of incidents described below,
the District terminated his employment. Anderson believed his
termination was unlawful, so he challenged it. At the conclusion
of a two-day evidentiary hearing, a designated hearing officer (the
Hearing Officer) upheld the termination.

¶2 Anderson then filed a petition asking this court to review
the Hearing Officer’s decision. After the District asserted that we
lacked jurisdiction, we transferred the matter on our own motion
to the district court. Once there, however, the District asserted that
 Anderson v. Daggett School District

the district court lacked jurisdiction too. The district court agreed
with the District and dismissed for lack of jurisdiction.

¶3 Anderson now appeals, and the District again asserts that
we lack jurisdiction. As set forth below, we first conclude that we
have jurisdiction to review the Hearing Officer’s decision. We
accordingly vacate our prior order transferring the matter to the
district court, thus reinstating the initial petition for review that
Anderson filed in this court. From there, we next conclude that
the Hearing Officer applied the wrong standard when reviewing
Anderson’s termination. We accordingly set aside the Hearing
Officer’s decision and instruct the Hearing Officer to reassess
Anderson’s termination under the correct standard.

BACKGROUND

¶4 The District serves a rural community in northeastern Utah
on the Wyoming border. The District has two elementary schools
and one combined junior high/high school that is called Manila
High School. Manila High School has an average class size of
twelve students.

¶5 Anderson began teaching for the District in 1995 as a career
educator. 1 His most recent teaching assignment was at Manila
High School, where he taught math, coached golf, and acted as a
substitute bus driver.

1. A “career educator” is “a licensed employee who has a
reasonable expectation of continued employment under the
policies of a local school board.” Utah Code § 53G-11-501(2).
Career educators have a property right in their employment and
are entitled to due process before dismissal. Id. § 53G-11-512(2)(a);
Utah Const. art. I, § 7; U.S. Const. amend. XIV, § 1; Cleveland Board
of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

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¶6 Toward the end of the 2018–19 school year, Anderson and
the Manila High School principal (Principal) decided on a new
math textbook to be purchased for the following school year.
Anderson later testified that he was “entirely sure we had ordered
[the new textbooks].” In May 2019, on or near the final day of
school, Anderson told his students that he did not want to see
their current math textbooks back in class and that the students
“were welcome to destroy or burn the textbooks.” He also said,
“[I]f you want, you can set [the current math textbooks] back there
on the shelf, but if you bring [them] to me[,] . . . I’ll just lower your
grade.” Anderson later claimed that his statement about lowering
grades was a joke, but two of his students testified that it was
“unclear” if “Anderson was serious or joking” and that they
“were not willing to take any chances with their grades.” A group
of at least four students subsequently burned the math textbooks,
an event that was captured on video.

¶7 There was a “general practice” in the District in which
students were “required to take a [w]ithdrawal [s]lip to each of
their teachers on the final day of school.” That withdrawal slip
listed each class on the student’s schedule and had spaces for the
teacher to indicate whether the student was returning a book in
damaged condition. If “there was no property to be returned or
the property was returned in suitable condition, the teacher
would make a dash mark in the space.”

¶8 In late May 2019, the District’s superintendent
(Superintendent) became aware that the current math textbooks
from Anderson’s classes had not been returned to Manila High
School. Superintendent worked with Manila High School’s
secretary to check the withdrawal slips for any record of the
textbooks having been returned. On review, the withdrawal slips
for Anderson’s classes showed “dash marks” in the spaces and
were initialed by Anderson “in every instance,” thus indicating
that “there was no property to be returned or [that] the property
was returned in suitable condition.”

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 Anderson v. Daggett School District

¶9 Superintendent asked Principal to investigate the textbook
matter further. Principal communicated with Anderson, who
admitted that he did not have his students return their math
textbooks. When Principal informed Anderson that there was a
process to dispose of District textbooks, Anderson responded that
“he knew it was hard to get rid of them.” Principal then told
Anderson they needed to attempt to recover the textbooks. But
Anderson later testified that he did not understand this to mean
that he, personally, “was supposed to attempt to retrieve any
textbooks.” The District was eventually able to recover just a few
of the textbooks.

¶10 During the textbook investigation, Principal informed
Superintendent of another concern regarding Anderson, namely,
that Anderson had encouraged his students to “sluff class” on
certain occasions. Principal’s daughter, who was a student of
Anderson’s at Manila High School, informed Principal that
“Anderson said if two students or less showed up for class, he
would not give the class an assignment for the day.” Students at
Manila High School participated in many extracurricular
activities that led to excused absences for involved students.
Students who testified at Anderson’s hearing said that he “led
them to believe that they should skip class if most of the kids were
attending school-sponsored events away from the school to avoid
the whole class receiving an assignment.” Principal testified that
“it’s kind of up to the teacher” whether to give assignments on
days in which many students were absent. Anderson explained
that “he told the students the policy so they could decide for
themselves” whether to attend class on days when several
students would be absent.

¶11 Based on these incidents, Superintendent determined that
Anderson “had committed substantial violations” of District
policy, and in June 2019 Anderson received a letter, signed by
Superintendent, that indicated Superintendent’s intent to

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 Anderson v. Daggett School District

terminate Anderson’s employment. 2 The letter concluded that the
destruction of District property, the unethical use of the grading
policy, and the encouragement for students to skip school all
“constituted unprofessional behaviors disrupting the ethical and
legal operations of the [D]istrict.” The letter also concluded that
“refusing to act on [Principal’s] verbal directive” to retrieve the
math textbooks “constituted insubordination.”

¶12 An informal conference was held in July 2019 with
Anderson, Superintendent, Principal, a Utah Education
Association representative, and another District employee. “The
conference was not cordial,” and Superintendent “raise[d]
additional allegations, which were not raised” in the intent-to-
terminate letter. Anderson asked to be reinstated, but
Superintendent instead sent Anderson another letter in late July
rejecting his request and now including additional allegations
“that strengthen[ed] the District’s position and resolve to
terminate.” Superintendent memorialized these additional
allegations in an August 2019 amended termination notice. 3

2. Despite career educators’ reasonable expectation of continued
employment, school districts have authority to dismiss career
educators from their positions. Utah Code §§ 53G-11-512, -513.
When doing so, school districts must provide due process,
including a “fair hearing” if the employee requests one. Id.
§§ 53G-11-512(2)(a), -513(5)(e).

3. The additional allegations were that Anderson (1) failed to add
his wife and children to the bus manifest when they traveled on a
school bus to golf tournaments with Anderson and the golf team;
(2) used the school bus for personal business when he diverted
the bus “less than 600 yards from the highway” to drop his dog
off at a veterinarian during a school trip; (3) asked a fellow
teacher, rather than Superintendent, to sign his educator license
(continued…)

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 Anderson v. Daggett School District

¶13 Under Utah law, Anderson had a “right to a fair hearing”
upon receiving this termination notice. Utah Code § 53G-11-
513(5)(e) (2020). And a provision in the Utah Code allowed the
District to “delegate its authority to a hearing officer to make
decisions relating to the employment of an employee which are
binding upon both the employee and the board.” Id.
§ 53G-11-515(1)(c) (2020). Anderson and the District participated
in a formal hearing before the Hearing Officer, as authorized by
statute, in early 2020. See id. § 53G-11-515(a), (c). The parties
submitted exhibits, called witnesses (including Anderson, who
testified in his own behalf), and were given opportunities to cross-
examine each witness. Counsel also offered opening and closing
statements. After closing argument, Anderson’s counsel told the
Hearing Officer that “the questions about whether, in addition to
proving a violation of [District] policy, employees are entitled to
consistent application of the law and entitled to review of the
proportionate nature of the level of discipline as it relates to what
they’ve been . . . accused of doing, I think those are very well-
settled principles in Utah law.” At the close of the hearing, the
Hearing Officer said that he did “not require any post-hearing
briefing” and took the matter under advisement.

¶14 On January 31, 2020, the Hearing Officer issued a written
and “final decision” to terminate Anderson. The Hearing Officer
began by noting that “[c]ases in Utah are relatively scant on
employment law specifically involving the termination of
educators.” But in the Hearing Officer’s view, a 2016 federal
district court case from the District of Utah—Hays v. Park City
School District, 214 F. Supp. 3d 1162 (D. Utah 2016)—“provided a
restatement of current law related to due process requirements in
the context of terminating an educator.” Relying on that case, the
Hearing Officer concluded that to overcome the District’s decision

renewal; and (4) failed to complete mandatory Utah High School
Activities Association coaching trainings.

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 Anderson v. Daggett School District

to terminate him, Anderson was required to “demonstrate a
degree of outrageousness and a magnitude of potential or actual
harm that is truly conscience shocking.” See Hays, 214 F. Supp. 3d
at 1182.

¶15 Applying that standard, the Hearing Officer concluded
that the “decision to terminate Mr. Anderson [did] not shock the
conscience and did not unlawfully deprive [him] of any
substantive rights.” The Hearing Officer found that Anderson
violated policies when he knowingly “circumvent[ed]” the
District’s book disposal process by instructing students to destroy
or burn math textbooks and then “affirmatively hid[ing]” the
books’ disposal by omitting material information from the
withdrawal slips. The Hearing Officer also found that Anderson’s
lack of response to directives was “unjustified” and that
Anderson had displayed a “rogue attitude about rules and
expectations” by encouraging students to skip class, failing to
complete the bus manifests, and refusing to ask Superintendent to
sign his educator license renewal. From all this, the Hearing
Officer concluded that the “District’s determination to terminate
Mr. Anderson has a rational basis and shall not be disturbed by
the Hearing Officer.” 4

4. The Hearing Officer did, however, find in Anderson’s favor on
some of the allegations. The Hearing Officer concluded that
Anderson’s failure to include his wife and children on the bus
manifest, in isolation, did “not rise to the level of a disciplinable
offense”; that “[d]elivering a dog to the veterinarian was not a
violation of District policy”; and that while asking another
teacher, rather than Superintendent, to sign his educator license
renewal “demonstrated poor judgment and provides further
evidence of Mr. Anderson’s cavalier disposition and attitude
toward rules,” it “did not, by itself, constitute insubordination”
such that it was a “disciplinable offense.”

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 Anderson v. Daggett School District

¶16 At the time, the same statute in the Utah Code that allowed
school boards to delegate their authority to hearing officers also
stated that it did “not limit the right of the board or the employee
to appeal to an appropriate court of law.” Utah Code
§ 53G-11-515(1)(d) (2020). But that provision did not define or
identify what court was an “appropriate court of law” for such an
appeal.

¶17 Still believing that he had been wrongfully terminated,
Anderson filed a timely petition for review with this court in
which he challenged the Hearing Officer’s decision. The District
moved for summary disposition, arguing that this court did not
have jurisdiction over the matter. In response, Anderson stated
that he did “not oppose [the] motion.” But he then requested that,
if “this court determines Daggett School District is correct,” this
court should then “transfer the case to the appropriate district
court pursuant to rule 44 of the Utah Rules of Appellate
Procedure.”

¶18 Under rule 44, when a “petition for review is filed in a
timely manner but is pursued in an appellate court that does not
have jurisdiction in the case, the appellate court, either on its own
motion or on motion of any party,” will “transfer the case . . . to
the court with jurisdiction in the case.” Utah R. App. P. 44. In
March 2020, this court issued an order “on its own motion to
transfer the petition for review pursuant to rule 44.” Our order
concluded that the petition was “within the jurisdiction of the
district court,” and the order accordingly transferred the petition
to the Eighth District Court.

¶19 When Anderson’s petition arrived at the district court,
however, the District filed a motion to dismiss for lack of
jurisdiction, now asserting that the district court lacked
jurisdiction too. Over Anderson’s opposition, the district court
entered an order in January 2021 dismissing for lack of
jurisdiction.

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 Anderson v. Daggett School District

¶20 Anderson timely challenged that decision. Several months
after Anderson filed his notice of appeal, the legislature amended
the statute that governs appeals from school board decisions.
Under the new version of the statute, which was effective as of
May 5, 2021, “[a]ny final action or order of the school board may
be appealed to the Court of Appeals for review.” Utah Code
§ 53G-11-515(5)(a) (2021). 5

ISSUES AND STANDARDS OF REVIEW

¶21 There are two issues before us. The first is whether this
court has jurisdiction over Anderson’s challenge to his
termination. “Whether appellate jurisdiction exists is a question

5 . The statute’s use of the term “appealed” is potentially
problematic. Typically, a decision from a lower court is appealed,
while a decision by an administrative entity is challenged by filing
a petition for judicial review. These two avenues for appellate
court review are similar in many ways, but they are not
identical. See Utah R. App. P. 18. It may be that the legislature did
not use the term “appealed” inadvertently but instead intended
to make challenges to “local school board decisions” matters of
appeal rather than of judicial review. See Utah Code § 78A-4-
103(3)(a)(i)(C). If so, the amended statute’s designation of such
actions as “appeals” may be at odds with the Utah Rules of
Appellate Procedure, at least regarding the treatment of
interlocutory orders and agency actions. Compare Utah R. App. P.
18 (stating that “[r]ules 3 through 8” of the rules of appellate
procedure “are not applicable” to “review of decisions or orders
of agencies”) with Utah R. App. P. 5 (allowing for “[d]iscretionary
appeals from interlocutory orders”). But even so, the differences
between an appeal and a petition for review are not before us in
this case, and the order at issue is not interlocutory in any event,
so we leave for another day the question of how to resolve any
potential implications from this verbiage.

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of law.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 9, 44 P.3d 819
(quotation simplified).

¶22 If jurisdiction exists, the next issue is whether the Hearing
Officer applied the correct legal standard when reviewing
Anderson’s termination. This court generally reviews a public
employee termination decision for an abuse of discretion. Perez v.
South Jordan City, 2014 UT App 31, ¶ 24, 320 P.3d 42; Nelson v.
Orem City, Dep’t of Public Safety, 2012 UT App 147, ¶ 16, 278 P.3d
1089. The “choice of legal standard,” however, “presents an issue
of law that we review for correctness.” Peeples v. Peeples, 2019 UT
App 207, ¶ 11, 456 P.3d 1159.

ANALYSIS

I. Jurisdiction

¶23 Anderson challenges the Hearing Officer’s decision to
uphold his termination. Before reaching the merits of his
arguments, however, we must first determine whether we have
jurisdiction to consider the matter at all. After all, as a general rule,
“we have an independent obligation to ensure that we have
jurisdiction over all matters before us, and we do not take lightly
our responsibility to ensure we have proper jurisdiction before
deciding a case.” 11500 Space Center LLC v. Private Capital Group
Inc., 2022 UT App 92, ¶ 34, 516 P.3d 750 (quotation simplified).
And in this case, the District specifically argues that we don’t have
jurisdiction.

¶24 The jurisdictional question turns on the interplay between
two versions of the same statute—one that existed at the time of
Anderson’s initial petition for review to us (and, also, at the time
of the Hearing Officer’s decision), and the other that was enacted
by the legislature later. At the time of Anderson’s initial petition,
the controlling statute stated that it did “not limit the right of the

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board or the employee to appeal to an appropriate court of law.”
Utah Code § 53G-11-515(1)(d) (2020) (the Pre-Amendment
Statute). But that version of the statute did not identify what an
“appropriate court of law” would be. Id. In 2021, however, the
legislature amended the statute to now state that “[a]ny final
action or order of the school board may be appealed to the Court
of Appeals for review.” Utah Code § 53G-11-515(5)(a) (2021) (the
Amended Statute).

¶25 The parties disagree about what we should do with these
two versions of this one statute. In Anderson’s view, the
Amended Statute can and should be applied retroactively as a
procedural amendment; in the District’s view, however, the
Amended Statute is not retroactively applicable. We agree with
Anderson.

¶26 “A provision of the Utah Code is not retroactive, unless the
provision is expressly declared to be retroactive.” Utah Code
§ 68-3-3. And as “a general rule, retroactivity is not favored in the
law.” B.A.M. Dev., LLC v. Salt Lake County, 2006 UT 2, ¶ 20, 128
P.3d 1161 (quotation simplified). But the “rule against
retroactivity applies only where a statute implicates substantive
laws.” Id. In this sense, our courts have “long recognized a
distinction between substantive and procedural laws as it relates
to retroactive application of newly enacted statutes.” Waddoups v.
Noorda, 2013 UT 64, ¶ 8, 321 P.3d 1108. “Laws that enlarge,
eliminate, or destroy vested or contractual rights are substantive
and are barred from retroactive application absent express
legislative intent.” Id. (quotation simplified). By contrast, laws
that “merely pertain to and prescribe the practice and procedure
or the legal machinery by which the substantive law is
determined or made effective are procedural and may be given
retrospective effect.” Id. (quotation simplified); see also B.A.M.
Dev., 2006 UT 2, ¶ 20. Put differently, a “statute is procedural
when it provides a remedy for already existing rights or merely
adds to or provides a substitute for already existing remedies.”

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 Anderson v. Daggett School District

Docutel Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 478
(Utah 1986).

¶27 The statute at issue—the Amended Statute—is a
jurisdictional statute that affirmatively states that this court has
jurisdiction to hear an appeal from a termination decision
involving a teacher. With regard to jurisdictional statutes and
retroactivity, the United States Supreme Court has held that if an
amended statute “creates jurisdiction where none previously
existed,” it “speaks not just to the power of a particular court but
to the substantive rights of the parties as well.” Hughes Aircraft Co.
v. United States ex. rel. Schumer, 520 U.S. 939, 951 (1997) (emphasis
in original). Thus, “such a statute, even though phrased in
‘jurisdictional’ terms, is as much subject to our presumption
against retroactivity as any other.” Id. (quotation simplified). By
contrast, “statutes merely addressing which court shall have
jurisdiction to entertain a particular cause of action can fairly be
said merely to regulate the secondary conduct of litigation and
not the underlying primary conduct of the parties.” Id. (emphasis
in original, quotation otherwise simplified). Such statutes are
regarded as procedural because they “affect only where a suit may
be brought, not whether it may be brought at all.” Id. (emphasis in
original). In our view, this framework is consistent with the
approach taken by Utah courts to the procedural-versus-
substantive retroactivity dynamic in general. And under this
construct, we conclude that the Amended Statute was procedural,
rather than substantive, because the Pre-Amendment Statute had
already recognized that there was a right to judicial review of a
termination decision.

¶28 An appellate court’s “primary goal” in “interpreting
statutory language” is to “give effect to the legislature’s intent.”
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 33, 267 P.3d
863. And here, both parties seem to agree that the jurisdictional
question before us largely starts with the language of the
Pre-Amendment Statute. Again, that statute stated that it did “not

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limit the right of the board or the employee to appeal to an
appropriate court of law,” Utah Code § 53G-11-515(1)(d) (2020),
but it did not then identify what an “appropriate court of law”
would be. This is something of a curious omission. In Anderson’s
view, however, the statute as a whole still implied that some court
had jurisdiction, while the District asserts that this omission
meant that no court had jurisdiction.

¶29 We agree with Anderson. “Not every gap in the law is a
purposeful omission. Some gaps are just gaps—to be filled in
later, as by the exercise of common-law power or the inherent
power of a court.” Davis County v. Purdue Pharma, LP, 2020 UT 17,
¶ 13, 463 P.3d 619. In MacDonald v. MacDonald, 2018 UT 48,
¶¶ 32–33, 430 P.3d 612, our supreme court held that when a
governing statute is “underdeterminate”—that is, the statute
“articulates the governing standard” and “identifies the relevant
timeframe,” but doesn’t identify “what information to consider in
deciding” the issue—a court “can answer that question” by
“resorting to a body of case law.”

¶30 Like Anderson, we think that the most natural reading of
the Pre-Amendment Statute is that it was simply
underdeterminate as to the question of which court had
jurisdiction to review a termination decision involving a teacher.
After all, the statute stated at the outset that it was not limiting
“the right of the board or the employee to appeal” a termination
decision. Utah Code § 53G-11-515(1)(d) (2020) (emphasis added).
If the legislature thought that no such right even existed, there
would have been little reason for it to have created a statutory
hedge to protect against the impairment of this non-existent right.

¶31 Moreover, if the legislature thought that no court had
jurisdiction to review a termination decision, there also would
have been little reason for it to have stated that it was not
“limit[ing] the right of the board or the employee to appeal to an
appropriate court of law.” Id. (emphasis added). Again, the District’s

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view is that no court could hear such disputes. In light of this, the
District is essentially assuming that the statute’s reference to “an
appropriate court of law” was an affirmative reference by the
legislature to an entity that the legislature didn’t think existed.

¶32 The “canon of independent meaning” and “its converse,
the presumption against surplusage,” both communicate “a
reluctance to attribute to the legislature the intent to adopt a
nullity—to enact a provision that says nothing not already stated
elsewhere.” Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc.,
2017 UT 8, ¶ 13, 391 P.3d 218. Put differently, “it seems hard to
attribute to the legislature the intent to adopt a statutory mandate
that has no operative effect.” Id. ¶ 14.

¶33 While the canons of interpretation aren’t infallible, they
are, of course, routinely employed by courts as interpretive
guides. See Croft v. Morgan County, 2021 UT 46, ¶ 21, 496 P.3d 83
(noting that the canons “are not formulaic, dispositive indicators
of statutory meaning but merely guide our construction of
statutes in accordance with common, ordinary usage and
understanding of language” (quotation simplified)). Here, rather
than assuming that the legislature made a statutory reference to a
non-existent “right” to appeal to a non-existent “appropriate
court of law,” the more natural reading is the one offered by
Anderson—namely, that the legislature contemplated that
jurisdiction did exist with some court, even though there was a
gap in the statute as to which court could hear such appeals.

¶34 Our reading of the Pre-Amendment Statute also finds
support in the absurdity canon. The “absurd consequences canon
. . . resolves an ambiguity by choosing the reading that avoids
absurd results.” Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000
(quotation simplified). “In defining the parameters of what
constitutes an absurd result, we have noted that such a result must
be so absurd that the legislative body which authored the

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legislation could not have intended it.” Marion Energy, 2011 UT
50, ¶ 26 (quotation simplified).

¶35 In his brief, Anderson points to an array of public
employees who have a statutory right to some form of judicial
review of a termination decision. For example, he points out that
municipal government employees have the right to such review,
as do peace officers, sheriffs, and firefighters. See Utah Code § 10-
3-1106(6) (municipal employees); id. § 17-30a-404 (peace officers);
id. § 17-30-20 (sheriffs); id. § 17-28-13 (firefighters). When this issue
arose at oral argument, the District couldn’t point to any other
kind of career public employee who doesn’t have such a right;
instead, the District asserted that “teachers were a category of
their own” in this respect up until the time of the Amended
Statute. Indeed, the District asserted this would have been true
even if a teacher was fired for a transparently unlawful reason. In
response to a question about this, the District argued that even if
a teacher was fired for racially discriminatory reasons, for
example, the teacher’s only recourse would have been to sue the
school district for damages, but that the teacher would have had
no right to ask a court to review the termination decision itself.

¶36 We can see no reason, and the District has given us none,
why the legislature would have believed that teachers (and
teachers alone) should not have the right to judicial review of an
adverse employment decision—even if it was based on a
transparently unlawful reason—nor do we see any reason why
the legislature would have preferred to have teachers (and
teachers alone) be forced to instead file damage suits from the
outset. Given this, the absurdity canon likewise suggests that the
District’s reading of the Pre-Amendment Statute is simply
incorrect.

¶37 In short, given the Pre-Amendment Statute’s reference to
the “right” to appeal and an “appropriate court,” as well as the
problems of surplusage and absurdity that follow from the

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District’s reading of that statute, we have no hesitancy in
concluding that Anderson had a right to judicial review of his
termination decision even before the Amended Statute. In light of
this, we likewise conclude that the Amended Statute “affect[ed]
only where [the] suit may be brought, not whether it may be
brought at all.” Hughes Aircraft, 520 U.S. at 951 (emphasis in
original). As a result, that statute can be retroactively applied to
this case. And since that statute provides that “[a]ny final action
or order of the school board may be appealed to the Court of
Appeals for review,” Utah Code § 53G-11-515(5)(a) (2021), this
means that we have jurisdiction to consider Anderson’s challenge
to the Hearing Officer’s decision.

¶38 We acknowledge, of course, that in our March 2020 order,
we acted “on [our] own motion” and “transfer[red] the petition
for review” to the district court pursuant to rule 44. With the
benefit of full briefing and argument in this appeal, as well as the
legislature’s subsequent action, we now conclude that this order
should be withdrawn. Again, the Pre-Amendment Statute
recognized a “right” to judicial review and referred to an
“appropriate court of law,” thus contemplating that some court
had jurisdiction—but this is at odds with the position taken by the
District after our transfer, wherein the District asserted that no
court had jurisdiction. Moreover, to the extent that there was any
lingering question about which court was an “appropriate court”
to conduct this review, our legislature has since passed the
Amended Statute and has now explicitly stated that this court is
the appropriate court to review such cases. Since we’ve now
concluded that the Amended Statute is retroactively applicable,
we accordingly vacate our prior order and hold that this matter is
within our jurisdiction. Cf. Bradley v. Payson City Corp., 2003 UT
16, ¶ 34 n.3, 70 P.3d 47 (acknowledging that while the court of
appeals made a “valiant attempt to account for” an order that
transferred a case from the Utah Supreme Court, the supreme

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court had “incorrectly transferred it to” the court of appeals “in
the first place”).

II. Governing Legal Standard

¶39 Applying a standard that it borrowed from federal due
process cases, the Hearing Officer held that Anderson was
required to “demonstrate a degree of outrageousness and a
magnitude of potential or actual harm that is truly conscience
shocking.” Citing Hays v. Park City School Dist., 214 F. Supp. 3d
1162, 1182 (D. Utah 2016) (quotation simplified). Under that
standard, the Hearing Officer then upheld Anderson’s
termination because, in the Hearing Officer’s view, the decision
did not “shock the conscience and did not unlawfully deprive
[him] of any substantive rights.”

¶40 Anderson now argues that the Hearing Officer applied the
wrong standard. In Anderson’s view, the Hearing Officer should
have instead reviewed the case under the consistency and
proportionality standard. We agree with Anderson. 6

¶41 The Hearing Officer based his choice-of-standard decision
on his observation that “[c]ases in Utah are relatively scant on
employment law specifically involving the termination of
educators.” That very narrow observation was true. But even so,
teachers are public employees. And when assessing whether a
public employee’s “misconduct warrant[ed]” a particular
“sanction[],” this court had, at the time of Anderson’s hearing,

6. As noted, we review the Hearing Officer’s ultimate decision
under the abuse of discretion standard. But the “choice of legal
standard . . . presents an issue of law that we review for
correctness.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d
1159. And it’s well settled that applying the wrong legal standard
constitutes an abuse of discretion. See, e.g., Johnson v. Johnson, 2014
UT 21, ¶ 24, 330 P.3d 704.

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“divided the inquiry into two prongs: (1) Is the sanction
proportional? and (2) Is the sanction consistent with previous
sanctions imposed by the department pursuant to its own
policies?” Burgess v. Department of Corr., 2017 UT App 186, ¶ 35,
405 P.3d 937 (quotation simplified).

¶42 Of note, we had applied that standard to many different
kinds of public employees. In Ogden City Corp. v. Harmon, 2005 UT
App 274, ¶¶ 1, 7, 116 P.3d 973, for example, we reviewed a
decision from the Ogden Civil Service Commission that had
reversed Ogden City’s decision to terminate a fire captain. After
noting that our own review is for an abuse of discretion, id. ¶ 9,
we concluded that there had been an abuse of discretion below
because of certain errors in the Commission’s process, id. ¶¶ 9–16.
We then remanded the matter with instructions for the
Commission to determine whether the sanction of dismissal was
“(1) appropriate to the offense and (2) consistent with previous
sanctions imposed by the department.” Id. ¶¶ 16, 19. In Leavitt v.
Salt Lake City Corp., 2019 UT App 70, 442 P.3d 1217, we reviewed
the Salt Lake City Civil Service Commission’s affirmance of a
police officer’s termination. In doing so, we noted that the Civil
Service Commission should have reviewed the termination for
proportionality and consistency, while we would then review that
decision for an abuse of discretion. Id. ¶¶ 14–17. Other cases
involving public employees likewise recognized that the
proportionality and consistency standard applied to the initial
review of a disciplinary action against a public employee. See, e.g.,
Macfarlane v. Career Service Review Office, 2019 UT App 133,
¶¶ 44–46, 450 P.3d 87 (department of public safety employee);
Perez v. South Jordan City, 2014 UT App 31, ¶ 24, 320 P.3d 42 (police
officer); Hugoe v. Woods Cross City, 2013 UT App 278, ¶¶ 12–15,
316 P.3d 979 (mechanic employed by a city); Sorge v. Office of Att’y
Gen., 2006 UT App 2, ¶¶ 26–32, 128 P.3d 566 (assistant attorney
general); Lunnen v. Utah Dep’t of Transp., 886 P.2d 70, 72 (Utah Ct.
App. 1994) (department of transportation employee).

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 Anderson v. Daggett School District

¶43 It’s true that none of these cases involved the termination
of a teacher. And it’s also true, as the District points out, that
teachers are excluded from some portions of the Utah
Administrative Procedures Act (UAPA). But even so, we see
nothing in the Utah Code or in any case that established that the
termination of a teacher was reviewed under something other
than this well-worn common law standard, and the District has
given us no reason to conclude that there was such a difference.
Indeed, we note that both sides below framed much of their
arguments to the Hearing Officer around the question of whether
Anderson’s termination was “proportional” to his offenses and
“consistent” with discipline that other employees in similar
situations had received. In light of all this, we disagree with the
Hearing Officer’s conclusion that Anderson was required to
satisfy a higher “shocks the conscience” standard. Instead, we
conclude that the proper question was whether Anderson’s
termination was proportionate and consistent.

¶44 In anticipation of this potential outcome, the District
suggests in its brief that we may alternatively affirm Anderson’s
termination on the basis that the Hearing Officer actually did
apply this standard. And here, we acknowledge that the Hearing
Officer did hear “argument and testimony on proportionality and
consistency” and that the Hearing Officer fleetingly mentioned
proportionality in his written decision (though he did not mention
consistency).

¶45 But even so, the Hearing Officer’s decision as a whole was
largely framed around his assessment of whether the termination
“shock[ed] the conscience” under the Hays test. “Where an
incorrect legal standard is applied to the facts of a case, we may
reverse and remand for further proceedings consistent with our
opinion.” Jensen Tech Services v. Labor Comm’n, 2022 UT App 18,
¶ 16, 506 P.3d 616 (quotation simplified); see also Schroeder v. Utah
Att’y Gen.’s Office, 2015 UT 77, ¶ 54, 358 P.3d 1075 (remanding a
case where the district court’s “incorrect interpretation of the law”

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 Anderson v. Daggett School District

“drove the district court’s analysis”); Northgate Village Dev. LC v.
Orem City, 2018 UT App 89, ¶ 21, 427 P.3d 391 (reversing and
remanding after concluding that the district court “abused its
discretion” when it “based its determination on an incorrect
interpretation of the law”). Here, the Hearing Officer began with
a detailed description of Hays’s “shocks the conscience” standard.
The Hearing Officer then noted that “[w]hile it could be
legitimately argued that a superintendent in a separate school
district may have opted to issue progressive discipline to Mr.
Anderson under the same circumstances, based on the factual
record, the action of [Superintendent] to recommend termination
was not shocking to the conscience”—a statement that belies the
District’s assertion that the Hearing Officer was actually applying
a standard that turned, in part, on consistency. And at the end of
his ruling, the Hearing Officer concluded that “[t]he decision to
terminate Mr. Anderson does not shock the conscience” and that
the District therefore “did not unlawfully deprive Mr. Anderson
of any substantive rights.”

¶46 Again, applying the wrong legal standard constitutes an
abuse of discretion. Because the Hearing Officer applied the
wrong standard, and because that standard seems to have driven
his analysis, we set aside his decision and instruct him to reassess
Anderson’s termination under the proportionality and
consistency standard. 7

7. We’ve decided above that under the common law that existed
at the time of Anderson’s hearing, the Hearing Officer should
have reviewed Anderson’s termination for proportionality and
consistency.
We do note one potential wrinkle that we are not deciding.
At oral argument, the District pointed out that in the same set of
2021 statutory amendments discussed above (i.e., the
amendments that added language stating that the court of appeals
(continued…)

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 Anderson v. Daggett School District

CONCLUSION

¶47 We first conclude that the Pre-Amendment Statute
included a right for teachers to seek judicial review of a
termination decision made by a school district or hearing officer.
We next determine that because the additional language set forth
in the Amended Statute was procedural in nature, it applies
retroactively to Anderson’s case. And under the terms of that
statute, we have jurisdiction to consider Anderson’s challenge to
the Hearing Officer’s decision.

has jurisdiction over discipline decisions involving teachers), the
legislature added a separate provision stating that the court of
appeals’ review “shall be for the purpose of determining whether
the school board exceeded the school board’s discretion, or the
school board exceeded the school board’s authority.” Utah Code
§ 53G-11-515(5)(c)(ii) (2021). At oral argument, the District
surmised that this new reference to a “school board’s discretion”
might somehow change the nature of a hearing officer’s inquiry.
But the District didn’t develop any such argument in its brief, nor
did it brief the question of whether any such change would be
retroactively applicable. Indeed, after highlighting this potential
issue at oral argument, the District said that it is not asking this
court to decide this issue in this case and then asked us to avoid
opining on it. When Anderson’s counsel was asked about this in
rebuttal, she likewise agreed that we only need to decide whether
the proportionality and consistency standard applied at the time
of Anderson’s hearing. In the absence of any direct briefing by the
parties on this potential argument (much less a request for a
ruling on it), we leave it for another day. Instead, we simply hold
here that the Hearing Officer did not apply the correct standard
that applied at the time, and because the application of that
standard to Anderson’s termination is best addressed by the
Hearing Officer in the first instance, we set aside that decision on
that basis alone.

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¶48 We further conclude that the Hearing Officer improperly
assessed Anderson’s termination under a “shocks the conscience”
framework and that he should have instead assessed the
termination for proportionality and consistency. We therefore
instruct the Hearing Officer to revisit Anderson’s case and make
a new determination under the correct standard.

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