Moon v. Dept. of Natural Resources

----ooOoo---- Randy G. Moon,

Petitioner and Cross-
respondent,

v.

Department of Natural Resources, and the Career Service Review Board, 

Respondents and Cross-
petitioner. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981134-CA

F I L E D
February 4, 1999

1999 UT App 024

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Original Proceeding in this Court

Attorneys:
Erik Strindberg and Bradley M. Strassberg, Salt Lake City, for Petitioner
Jan Graham and Stephen G. Schwendiman, Salt Lake City, for Respondents

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Before Judges Greenwood, Bench, and Davis.

BENCH, Judge:

¶1     Moon argues that his single unintentional wildlife violation does not warrant termination. "[W]e review an agency's application of its own rules for reasonableness and rationality, according the agency some, but not total deference." Lunnen v. Utah Dep't of Transp., 886 P.2d 70, 72 (Utah Ct. App. 1994), cert. denied, 892 P.2d 13 (Utah 1995). We must determine if the Department of Natural Resources (Department) presented sufficient evidence to meet its burden of proving that the sanction was not disproportionate to the misconduct. See id. at 73.

¶2     After Moon compared himself with "other DWR [Division of Wildlife Resources] employees who had been disciplined with far fewer sanctions than he," the Career Services Review Board (CSRB) reasoned that when these comparisons are scrutinized, [Moon]'s actions: (1) were committed by a person of higher DWR managerial position than the other employees, (2) compare unfavorably because many of the other employees voluntarily turned themselves in and some even wrote themselves citations, and (3) constituted big game poaching in a neighboring state and then upon being found out, being subjected to Wyoming's judicial punishment - which resulted in disgracing Utah's DWR staff in particular and the division in general. All things considered, the antelope incident on its own was a very serious, even an egregious, incident. [Moon]'s culpability is substantial. The CSRB concluded "that the Department's dismissal of Randy Moon is reasonable and rational." We agree. The Department presented sufficient evidence to support the sanction imposed. We therefore hold that the CSRB's ruling falls within the bounds of reasonableness and rationality.

¶3     Although Moon argues that the CSRB failed to consider mitigating factors, analysis of those factors is discretionary. See Utah Admin. Code R477-11-1(3)(e) (Supp. 1997) ("When deciding the specific type and severity of the discipline to administer to any employee, the agency representative may consider the following factors . . . ." (Emphasis added.)). Thus, the rule does not require the CSRB to consider mitigating factors. Moon also argues that the Department must establish the nexus requirement by showing that his off-duty conduct casts doubt on his ability to perform his duties. The Department satisfied the nexus requirement by determining that Moon violated the public trust. See Utah Dep't of Corrections v. Despain, 824 P.2d 439, 447 (Utah Ct. App. 1991).

¶4     The Department met its burden of proving that the sanction was not disproportionate to Moon's misconduct. We therefore affirm the CSRB's conclusion that the Department's dismissal of Moon was reasonable and rational. Because of our holding, we do not reach the Department's argument in its cross-petition that the CSRB erred in ruling that Moon did not abuse his position by failing to follow proper procedure when obtaining a permit change.
 

 
Russell W. Bench, Judge

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WE CONCUR:
 

 
Pamela T. Greenwood,
Associate Presiding Judge
 
 

 
James Z. Davis, Judge