August 13, 2013, Utah Supreme Court Case Summaries

Stewart Becker v. Sunset City, 2013 UT 51, No. 20120320 (August 13, 2013)

ISSUE: Government employers’ variance from drug testing policies

As indicated in my August 1, 2013 Court of Appeals Case Summaries, I will no longer be summarizing cases that involve a ruling concerning substantial evidence support agency decisions.  Accordingly I will not summarize paragraphs 12 through 22 of this decision.

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.

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.

At ¶¶ 1-2.

Sunset City’s policy manual provides that “Drug/Alcohol Testing is an analysis of a urine specimen provided by the 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.

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.”

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.

At ¶¶ 23-25