Date: 11-28-2014

Case Style: Kim R. Brehm v. Department of Workforce Services and State of Utah

Case Number: 2014 UT App 281

Judge: Greenwood

Court: Utah Court of Appeals

Plaintiff's Attorney: Lauren I. Scholnick and Rachel E. Otto, Attorneys for Petitioner

Defendant's Attorney: Suzan Pixton, Attorney for Respondent Department of Workforce Services

Description: ¶1 Kim R. Brehm petitions for judicial review of the Workforce
Appeals Board’s (the Board) decision to deny her claim for
unemployment benefits. We do not disturb the Board’s decision.
BACKGROUND
¶2 Petitioner was employed by the judicial branch of the State
of Utah (Employer) from July 3, 1995, through June 11, 2013. Prior
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
Brehm v. Department of Workforce Services
to her termination, she worked as a Senior Probation Officer in the
Third District Juvenile Court, where she had access to the court’s
juvenile tracking database referred to as “CARE.” This database is
used by authorized court personnel to access a variety of
information, including demographics, calendars, incident reports,
e-citations, case relationships, assignments, related people in
incidents, case dispositions, general accounting, case notes, orders,
minutes, documents, critical messages, social summaries, substance
abuse evaluations, and petitions. Most of the information stored in
CARE is not accessible by the public; however, the juvenile courts
allow access to some of these records via a different database called
“MyCase,” which includes a special section that is accessible by a
juvenile’s parents.
¶3 On May 24, 2013, Petitioner met with her supervisors to
discuss her use of the CARE database. In that meeting, she was
asked to explain why she had used CARE to repeatedly access two
of her children’s case files,2 the case file of one of her children’s codefendants,
the files of cases assigned to another probation officer,
and the files of six other supervisors.3 The meeting culminated in
a formal request for a written explanation from Petitioner
regarding her access of these files.
¶4 Petitioner provided her explanation in a letter dated May 29,
2013. In that letter, Petitioner admitted that she had used CARE to
access her children’s case files. She explained that she had done so
in order to make sure that their fines were paid, that one of her
children’s fines had been reduced because of good grades, and that
the children had not missed any hearings. She also admitted to
2. Petitioner’s children had apparently been the subjects of juvenile
delinquency cases in the juvenile court system.
3. Although somewhat confusing, the record refers to two sets of
supervisors: Petitioner’s supervisors and supervisors who were coworkers
of Petitioner. Consistent with the record, our opinion
refers to both sets of supervisors, and we will attempt to preserve
the distinction between the two sets as clearly as possible.
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Brehm v. Department of Workforce Services
accessing the case files of the other probation officer in order to
“find out what the typical consequence was for someone who had
committed a shoplifting offense” like her child.
¶5 She then admitted that she had also accessed the file of one
of her children’s co-defendants, explaining that she had done so at
the request of the co-defendant’s father, who was an acquaintance
of hers. According to Petitioner, the father believed that a warrant
had been issued for his son’s arrest, which prompted him to
approach her for advice about what to do. Petitioner asserted that
she advised the father to contact his son’s probation officer and that
she gave him the officer’s contact information.
¶6 Finally, Petitioner also admitted that she had accessed the
case files of six co-workers because she wanted to discover whether
her supervisor was treating her differently from the other
supervisors. Specifically, Petitioner suspected that her supervisor
was giving her extra work and requiring her to perform additional
tasks in retaliation for her taking leave under the federal Family
and Medical Leave Act. See 29 U.S.C. §§ 2601 to 2654 (2012).
Accordingly, she accessed the case files of her co-workers in order
to discover whether their work assignments were the same as hers.
Throughout her letter, Petitioner argued that she was unaware of
any policy or rule that prevented this sort of access and that such
access was commonplace among probation officers. Nevertheless,
she also admitted, “I already know your response to the majority
of this letter, you are going to say that each individual [probation
officer] has a right to privacy and I respect that . . . .”
¶7 After reviewing Petitioner’s explanation, Employer issued
a written termination notice dated June 11, 2013. In that notice,
Employer gave a detailed account of Petitioner’s use of the CARE
database, as well as a number of reasons why it had concluded that
termination was appropriate. The notice stated that, according to
Employer’s information and technology department, Petitioner
accessed her children’s case files on ten different occasions between
March 28, 2013, and May 10, 2013. And although Petitioner had
claimed that she was merely looking up fines and court dates, the
access history indicated that she had also viewed other information
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in her children’s files, including “demographics, calendars,
incidents, . . . reports, e-citations, case relationships, assignments,
calendar, calendar event list, related people in incidents, case
dispositions, general accounting, order account summary, notes,
orders, documents, critical messages, assessments, and PI letters.”
¶8 Petitioner’s access history of her child’s co-defendant’s file
also differed from her explanation. Although Petitioner claimed
that she had merely provided the co-defendant’s father with the
contact information of the co-defendant’s probation officer, her
access history revealed that she had accessed the file on four
different occasions and had viewed “incidents, demographics,
orders, minutes, accounting, a substance abuse evaluation, social
summaries, court reports, petitions, and case notes.” Employer
further indicated that Petitioner’s access history made it clear that
she had also accessed the files of the other probation officer and six
other supervisors.
¶9 Employer concluded that Petitioner’s access of these files
was not “for the purposes for which they were intended” and that
she “had no legitimate business reason to access the information
contained in these cases.” Employer then concluded that
Petitioner’s access of these files violated various statutes, rules, and
policies, including Utah’s Government Records Access and
Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to
-901 (LexisNexis 2011 & Supp. 2013), the Public Officers’ and
Employees’ Ethics Act, id. §§ 67-16-1 to -15, the Utah Rules of
Judicial Administration, and the policies contained in both
Employer’s Human Resources and Probation Officer Policy
manuals. After explaining each violation, Employer concluded that
“nothing in [Petitioner’s] justification . . . overcomes the enormous
weight of guidance from Statute, Rule and Policy prohibiting
employees from using personal information of others, obtained by
systems [under an employee’s] control for purposes other than
they were intended.” Accordingly, Employer terminated
Petitioner’s employment.
¶10 After her discharge, Petitioner applied for unemployment
benefits. The Department of Workforce Services (DWS) denied her
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claim, concluding that “she knew or should have known looking
up this information was wrong.” Petitioner appealed DWS’s
decision, and a hearing was held before an administrative law
judge (the ALJ). Employer did not participate at the hearing, but
the ALJ did take sworn testimony from Petitioner. In her decision,
the ALJ concluded that Petitioner’s testimony that she was not
aware that she was violating any rule or policy was not credible,
because “Employer prohibits accessing computer files for nonbusiness
purposes.” The ALJ further concluded that “Employer
risks liability and public trust if employees access computer records
for personal reasons. The [public] expects government and court
records to be kept confidential.” Additionally, the ALJ observed
that Petitioner “knew or should have known that accessing
computer records without a legitimate business purpose or
authorization was prohibited,” because “[i]t is . . . universal
knowledge among government employees that accessing records
for personal or non-business purposes is prohibited.” Accordingly,
the ALJ affirmed DWS’s denial of benefits.
¶11 Petitioner then appealed the ALJ’s decision to the Board,
which affirmed the ALJ’s decision. The Board agreed with the ALJ’s
determination that “it is not credible that [Petitioner] did not know
she could not access the files or cases of her coworkers and
supervisors,” because “it is inconceivable that any state employee
would not know that state employees cannot access private records
unless there is a legitimate business purpose for doing so.” The
Board further determined that “this was not an isolated incident”
and that the potential harm to Employer was “so egregious as to
warrant immediate discharge,” despite Petitioner’s long work
history. Petitioner now asks us to review the Board’s decision.
ISSUE AND STANDARD OF REVIEW
¶12 The central issue in this case is whether the Board acted
properly when it determined that Petitioner was ineligible for
unemployment benefits because Employer had just cause for
discharging her. “Whether an employee is terminated for just cause
is a mixed question of law and fact.” Southeastern Utah Ass'n of Local
20130947-CA 5 2014 UT App 281
Brehm v. Department of Workforce Services
Gov’ts v. Workforce Appeals Bd., 2007 UT App 20, ¶ 6, 155 P.3d 932
(citation and internal quotation marks omitted). Nevertheless,
“[d]ue to the fact-intensive inquiry involved at the agency level,”
cases involving unemployment benefits do “not lend [themselves]
to consistent resolution by a uniform body of appellate precedent.”
Carbon County v. Workforce Appeals Bd., 2013 UT 41, ¶ 7, 308 P.3d
477. Therefore, these cases are more “fact-like” than “law-like,” see
id.; In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382
(explaining this distinction in cases dealing with mixed questions
of law and fact), and the Board’s decision to award or deny
unemployment benefits is entitled to deference, see Carbon County,
2013 UT 41, ¶ 7. Accordingly, within the context of unemployment
benefits, “we will not disturb the Board’s application of law to its
factual findings unless its determination exceeds the bounds of
reasonableness and rationality.” Johnson v. Department of Emp’t Sec.,
782 P.2d 965, 968 (Utah Ct. App. 1989).
ANALYSIS
¶13 Petitioner argues that because she did not violate any of the
statutes, rules, or policies cited by Employer and because she did
not violate a reasonable employment rule or a universal standard
of conduct, the Board wrongly denied her claim for unemployment
benefits. In the alternative, she argues that even if she did violate
any of those rules or standards, Employer failed to show that she
did so knowingly or with the degree of culpability required by
Utah law. For the reasons stated below, we reject these arguments
and uphold the Board’s denial of unemployment benefits.
I. The Standard for Denying Unemployment Benefits Under the
Utah Administrative Code Differs from Petitioner’s Description.
¶14 Petitioner asserts that because Employer did not meet the
requirements of rule R994-405-208(1) of the Utah Administrative
Code, the Board erred in denying her unemployment claim. That
section provides that “[i]f a claimant violates a reasonable
employment rule and just cause is established, benefits will be
denied.” Utah Admin. Code R994-405-208(1) (emphasis added).
20130947-CA 6 2014 UT App 281
Brehm v. Department of Workforce Services
Petitioner argues that her unemployment claim should have been
granted because Employer failed to prove a violation of a
“reasonable employment rule.” We disagree.
¶15 Petitioner’s reliance on rule R994-405-208(1) is misplaced. As
its caption indicates, rule R994-405-208 merely provides “examples
of reasons for discharge.” Id. It does not, however, describe the
only reasons for a “discharge.” In fact, rule R994-405-208 expressly
incorporates other sections of the rule—namely, sections 201 and
202—when it states, “In the following examples, the basic elements
of just cause must be considered in determining eligibility for
benefits.” Id. (emphasis added). Accordingly, we look to sections
201 and 202 of rule R994-405—not section 208—in order to
understand what an employer is required to show before a claim
for unemployment benefits can be properly denied. See id. R994-
405-203 (stating that an employer bears the burden of proving just
cause).
¶16 Our case law is in accord with this approach in determining
whether unemployment benefits are warranted. Our cases have
consistently looked to sections 201 and 202 of rule R994-405 to
determine what an employer must prove before DWS is justified in
denying a claim for unemployment benefits. See, e.g., Spencer Law
Office, LLC v. Department of Workforce Servs., 2013 UT App 138, ¶ 4,
302 P.3d 1257; Peyton v. Department of Workforce Servs., 2013 UT App
130, ¶ 3, 302 P.3d 1255; Dinger v. Department of Workforce Servs.,
2013 UT App 59, ¶ 15, 300 P.3d 313; Nicol v. Department of Workforce
Servs., 2012 UT App 360, ¶ 3, 293 P.3d 1101; Provo City v.
Department of Workforce Servs., 2012 UT App 228, ¶ 6, 286 P.3d 936.
We are unaware of—and Petitioner does not provide a citation
to—any Utah case where the standard for denying unemployment
benefits was derived directly from rule R994-405-208. Accordingly,
we analyze this case under the standards set forth in sections 201
and 202, not section 208.
¶17 Under rule R994-405-201, in order to properly deny
unemployment benefits, the claimant must have been discharged
for “just cause.” See Utah Admin. Code R994-405-201; see also
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Brehm v. Department of Workforce Services
Spencer Law Office, 2013 UT App 138, ¶ 4. To show “just cause,” the
employer must prove three elements: culpability, knowledge, and
control. Utah Admin. Code R994-405-202 (setting forth definitions
of culpability, knowledge, and control); id. R994-405-203 (placing
burden of proof on the employer); see also Spencer Law Office, 2013
UT App 138, ¶ 4.
¶18 Given the foregoing, Petitioner’s argument that it was
necessary for the Board to first determine whether she had violated
a specific statute, rule, policy, or universal standard of conduct
before denying her claim for unemployment benefits is mistaken.
Under sections 201 and 202 of rule R994-405, the Board’s task was
to assess whether there was “just cause” for Petitioner’s discharge,
which entailed determining whether Employer had shown
culpability, knowledge, and control. The majority of the Board
concluded that each of these elements had been adequately shown
and, consequently, denied Petitioner’s claim. We therefore do not
focus on Petitioner’s arguments about specific violations but
instead review the Board’s assessment of each of the elements of
“just cause.”
II. The Board Did Not Err in Its Conclusion that Employer Had
Adequately Shown “Just Cause” for Petitioner’s Discharge.
¶19 Petitioner argues that because Employer did not adequately
show culpability or knowledge, it failed to establish just cause and
the Board accordingly erred in denying her claim. We disagree.
A. The Board’s Conclusion that the Severity of Petitioner’s
Actions Outweighed Her Work History Was Not
Unreasonable or Irrational.
¶20 In order to demonstrate culpability, the employer must
show the following:
The conduct causing the discharge must be so serious
that continuing the employment relationship would
jeopardize the employer’s rightful interest. If the
conduct was an isolated incident of poor judgment
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Brehm v. Department of Workforce Services
and there was no expectation it would be continued
or repeated, potential harm may not be shown. The
claimant’s prior work record is an important factor in
determining whether the conduct was an isolated
incident or a good faith error in judgment. An
employer might not be able to demonstrate that a
single violation, even though harmful, would be
repeated by a long-term employee with an
established pattern of complying with the employer’s
rules. In this instance, depending on the seriousness
of the conduct, it may not be necessary for the
employer to discharge the claimant to avoid future
harm.
Utah Admin. Code R994-405-202(1). Petitioner argues that it was
error for the Board to conclude that her work history—containing
only isolated incidents of discipline, none of which related to
accessing private files for personal reasons—did not outweigh the
severity of her actions. Employer responds by arguing that it was
neither unreasonable nor irrational for the Board to conclude that
the severity of Petitioner’s actions was such that termination was
necessary in order to protect its “rightful interests.”
¶21 In Kehl v. Board of Review of the Industrial Commission, 700
P.2d 1129 (Utah 1985), an employee was terminated after failing to
follow her employer’s safety policies and procedures for
transporting explosives across a set of railroad tracks. Id. at
1131–32. Although the employee’s termination was based upon a
single instance of misconduct, the Utah Supreme Court ultimately
concluded that the employer had adequately shown culpability. Id.
at 1134. Specifically, the court observed that “a single violation of
a safety rule may be sufficient to show that the potential harm to
the employer’s interests warranted discharge.” Id. It also
emphasized that the analysis of culpability should not focus “upon
the number of violations” but rather upon the “problem of whether
the discharge was necessary to avoid actual or potential harm to
the employer’s rightful interest.” Id. (citation and internal quotation
marks omitted).
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¶22 In this case, the Board determined that despite Petitioner’s
generally favorable work history, her conduct was “so egregious
as to warrant immediate discharge.” This is so because, according
to both the Board and the ALJ, Employer had a rightful interest in
preserving the public trust and avoiding any liability that might
ensue if court employees accessed private files for personal
reasons.
¶23 The United States Supreme Court has observed that the
power of the judicial branch lies “in its legitimacy, [which is] a
product of substance and perception that shows itself in the
people’s acceptance of the Judiciary as fit to determine what the
Nation’s law means and to declare what it demands.” Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865 (1992). We believe
that this is especially true with respect to our juvenile courts, which
aspire to “act in the best interests of the minor in all cases and
preserve and strengthen family ties,” while acting “consistent with
the ends of justice.” Utah Code Ann. § 78A-6-102(5)(g) (LexisNexis
2012). As an employer, therefore, the state judiciary has a “rightful
interest” in preserving a legitimate, positive public perception of
the judiciary by demanding that judges and judicial employees
conduct themselves with the highest levels of integrity.
¶24 Consonant with this goal, the judiciary has adopted rules
similar to GRAMA regarding court records, exhibits, and files. See
Utah R. Jud. Admin. 4-202. In fact, portions of these rules
specifically address juvenile court records and restrict access to
juvenile court “social” and “legal” records. Id. R. 4-202.02(6)–(7),
-202.03(5)–(6) (classifying certain records as juvenile “social” or
“legal” records and restricting access to them). Specifically, rule 4-
202.03 of the Utah Rules of Judicial Administration permits court
personnel to access court records “only to achieve the purpose for
which the record was submitted.” Id. R. 4-202.03. And finally, as
pointed out by Employer, there are also policies in place governing
the conduct of juvenile probation officers that encourage them to
“observe high standards of conduct so that the Judiciary is
preserved, and public confidence [in] the judiciary is promoted.”
Thus, it cannot be disputed that Petitioner’s accessing CARE
records for purposes outside of her employment responsibilities
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Brehm v. Department of Workforce Services
was inconsistent with rules and policies restricting such access and
designed to ensure confidentiality.
¶25 In light of the foregoing, the ALJ correctly observed that
“[t]he public expects government and court records to be kept
confidential” and that “Employer risks liability and [loss of] public
trust if employees access computer records for personal reasons.”
We also defer to the Board’s finding that given the presence of the
statutes, rules, and policies discussed above, it is inconceivable that
any state employee—much less an employee with over eighteen
years of experience as a public servant within the judicial
branch—would not realize that accessing confidential case files for
personal reasons violates the public’s trust and ultimately serves to
undermine the legitimacy of the judiciary. Accordingly, it was
neither unreasonable nor irrational for the Board to conclude that
despite her favorable work history, Petitioner’s actions were “so
egregious as to warrant immediate discharge.” Indeed, even
though Petitioner may have been able to access some of the same
information through the parental section of the MyCase website, it
is clear that most of the information she accessed—including the
substance abuse evaluation of her child’s co-defendant and the files
of another probation officer and her co-workers—was not available
to other parents through MyCase and that accessing them was
therefore a serious violation. Thus, the Board’s determination that
Employer adequately demonstrated culpability was both rational
and reasonable.
B. It Was Not Error for the Board To Conclude that Petitioner
Knew that Her Conduct Was Unacceptable.
¶26 Petitioner also argues that the Board erred in concluding
that Employer had adequately met the “knowledge” requirement
of just cause. Specifically, she argues that she never received any
training or written policies regarding the use of the CARE database
and that Employer never issued a warning regarding her conduct.
As noted above, however, the Board concluded that “it is
inconceivable that any state employee would not know that state
employees cannot access private records unless there is a legitimate
business purpose for doing so.”
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¶27 In order to show “knowledge,” an employer must show that
the employee “had knowledge of the conduct the employer
expected.” Utah Admin. Code R994-405-202(2). In this case,
Petitioner’s own admissions show that she knew that the files of the
other supervisors she was accessing were private and that those
supervisors were entitled to a “right to privacy.” In her letter dated
May 29, 2013, she stated, “I already know your response to the
majority of this letter, you are going to say that each individual
[probation officer] has a right to privacy and I respect that . . . .”
This admission is sufficient to establish knowledge because it
shows that Petitioner knew that both Employer and the other
supervisors expected these files to remain private. This conclusion
is further buttressed by the observations made in the prior section
of this opinion regarding the near-universal knowledge among
both government employees and the public at large that many
government records—and particularly many juvenile court
records—are confidential, that accessing them for non-business
purposes is prohibited, and that such access can lead to serious
consequences. Accordingly, it was neither irrational nor
unreasonable for the Board to conclude that Employer had
adequately proven the “knowledge” element of just cause.
CONCLUSION
¶28 The Board did not err by failing to first determine whether
Petitioner had violated a specific statute, policy, rule, or universal
standard of conduct. Rather, it correctly applied the “just cause”
standard for denying unemployment benefits, and its analysis of
the elements of that standard do not depart from the “bounds of
reasonableness and rationality.”

Outcome: Accordingly, we decline to disturb the Board’s denial of Petitioner’s claim.

Plaintiff's Experts:

Defendant's Experts:

Comments: