Brown v. DWS

IN THE UTAH COURT OF APPEALS

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Jodilyn H. Brown,
Petitioner,

v.

Department of Workforce Service, Workforce Appeals Board;
and Department of Agriculture,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020588-CA
 

F I L E D
(May 22, 2003)
 

2003 UT App 150

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Original Proceeding in this Court

Attorneys: Graham H. Norris, Jr., Provo, for Petitioner

Lorin R. Blauer, Salt Lake City, for Respondents

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

We reject Petitioner's contention that her felony conviction for willful failure to file a federal tax return was not "in connection with" her employment with the Department of Agriculture, for purposes of Utah Code Ann. § 35A-4-405(2)(b) (2001). Contrary to Petitioner's claim that her criminal wrongdoing preceded her employment by the Department,(1) the income for which she failed to file a federal income tax return included income earned while she was employed by the Department of Agriculture in 1998 and 1999. This fact was clearly before the administrative law judge. With respect to this income, she received pay at regular intervals from the Department. In essence, then, one object of her tax return offense was to avoid paying taxes on the very income she earned "in connection with" her employment by the Department. Thus, there is clearly a sufficient nexus between this felony conviction and her work.(2) See Utah Admin. Code R994-405-211 (2002) ("The offense must be connected to the employment in such a manner that it is a subject of legitimate and significant concern to the employer. . . . Legitimate employer interests include . . . honesty[.]").

In so concluding, we must acknowledge that ours is not the exact logic employed by the administrative law judge or the Workforce Appeals Board in reaching their decisions. However, we "may affirm a judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even though that ground or theory was not identified by the lower [tribunal] as the basis of its ruling." Boud v. SDNCO, Inc., 2002 UT 83,¶10, 54 P.3d 1131 (internal quotation marks and citations omitted).

In view of our decision, we have no occasion to reach the additional question of whether, given the employer's firm policy, clearly communicated to Petitioner, of not employing convicted felons, the decision challenged by Petitioner could also be upheld on "just cause" grounds under Utah Code Ann. § 35A-4-405(2)(a). We note, however, that this subsection appears to be less directly applicable, given its reference to behavior "not constituting a crime." Id.

Nor do we find fault with her employer's decision to withhold judgment pending the conclusion of Petitioner's felony case rather than terminating her employment immediately upon learning of her guilty plea. See Utah Admin. Code R994-405-206(2) (2002). On the contrary, such a measured and patient response is commendable.

Accordingly, we decline to disturb the decision of the Workforce Appeals Board.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

1. If counsel's misrepresentation was inadvertent, it is puzzling that he did not take the occasion in the reply brief to correct it and apologize for it.

2. Given the clear connection in this case, we have no occasion to definitively construe the relevant statutory subsection and opine as to just how close the connection must be to satisfy the requirement of a connection between the felony and the work.