Joseph v. SLC Civil Service

----ooOoo----

Robert L. Joseph,
Petitioner and Appellant,

v.

Salt Lake City
Civil Service Commission;
and Salt Lake City Corporation,
Police Department,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000729-CA

F I L E D
November 16, 2000 2000 UT App 327 -----

Original Proceeding in this Court

Attorneys:
Robert L. Joseph, Sandy, Appellant Pro Se
Steven W. Allred and Martha Stonebrook, Salt Lake City, for Appellees

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Before Judges Greenwood, Orme, and Thorne.

PER CURIAM:

Under applicable law, [t]he finding and decision of the civil service commission upon the hearing shall be certified to the head of the department from whose order the appeal is taken, and shall be final and immediately enforced by him. Utah Code Ann. § 10-3-1012 (1999). We have jurisdiction over "[a]ny final action or order of the commission" if a notice of appeal is "filed within 30 days of the issuance of the final action or order of the commission." Utah Code Ann. § 10-3-1012.5 (1999).

According to the records from the Civil Service Commission, the "Findings of Fact, Conclusions, and Order" was signed by the chairperson of the Commission on July 19, 2000. Salt Lake City argues that Joseph had to file his notice of appeal within thirty days of July 19th. However, there is no indication in the record that the order was "certified to the head of the department," an apparent prerequisite to finality. Moreover, the order is not date-stamped. The cases to which Salt Lake City cites, in support of its assertion that Joseph's notice of appeal was late, stand for the proposition that an agency order is final the day it is issued, not the day it is mailed. See e.g., Bonded Bicycle Couriers v. Dep't of Employment Sec., 844 P.2d 358 (Utah Ct. App. 1992). However, these cases involved agency orders that were properly issued and date-stamped. Id. at 360 (reiterating supreme court's determination that "the date the order constituting final agency action issues is the date the order bears on its face").

Analogous agency cases have likewise required a mailing certificate showing that the claimant was given notice and an opportunity to file a timely appeal. See e.g. Buczynski v. Industrial Comm'n, 917 P.2d 552, 555 (Utah 1996) (requiring Industrial Commission to "provide a party in interest actual or constructive notice of an order for such party to timely file a petition for judicial review); see also Utah Code Ann. § 34A-1-302(4) (1997) (requiring Labor Commission to give "notice of the entry of a presiding officer's order or any order or award of the commission" by mailing copy of said order to last-known address). Because there is no mailing certificate in the record, we cannot be assured that Joseph received appropriate notice of the order signed on July 19, 2000, and, therefore, even if the order had been certified and "issued" on that date, it may not be appropriate to begin counting the appeal period from July 19th.

Thus, we dismiss the appeal because there is no evidence in the record to suggest that the July 19th order was ever properly issued and made final. However, this dismissal is without prejudice to Joseph filing a new, timely notice of appeal,(1) and payment of appropriate filing fees, after the Commission has "issued" its order. We expect that the final, issued order will be date-stamped and sent to Joseph, with a certificate evidencing it has been properly mailed.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge
 
 
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Although appeals from administrative agencies are generally made by filing a petition for review, appeals from the Civil Service Commission are done by filing a notice of appeal "within 30 days of the issuance of the final action or order of the commission." Utah Code Ann. § 10-3-1012.5 (1999).