Stewart Becker was a police officer with the Sunset City, Utah Police Department. Becker was terminated on April 4, 2007, and was given a letter that briefly outlined the appeals process, including his rights to a hearing, to be represented by counsel, to examine evidence, and to confront witnesses. The letter, however, did not mention the requirement that the “City Appeal Board’s” decision had to be made within 15 days of the date the Board received the appeal.
Becker filed his appeal on April 5, the day after his termination. He promptly began looking for an attorney to represent him and made an appointment for April 18. On April 9, the City sent Becker a letter, via certified mail, informing him that his hearing would be held on April 16. Although the post office unsuccessfully attempted to deliver the letter on April 10, Becker received no notice of the attempt or notice that the letter was being held at the post office.
On April 13, Becker called a lieutenant in the Department, who informed him the hearing would be held three days later. Prompted by a call from Becker, a City employee tracked the letter via the internet and determined that the letter had not been delivered and was still at the post office.
The Board convened its hearing on April 16. As soon as the hearing began, Becker informed the Board that he had received notice of the hearing only the previous Friday, that he wished to be represented by counsel, and that due to the short notice he was unable to prepare his case or to obtain counsel for the hearing despite arranging, more than a week earlier, for an appointment with an attorney. The Board ignored Becker’s request, proceeded with the hearing, and affirmed his termination.
The Utah Court of Appeal found that the Board’s actions violated due process. In particular, the Court found that the notice given Becker of the hearing was inadequate:
“The Board was statutorily required, absent a continuance, to make its decision within 15 days after it received the appeal. Given this remarkably short time frame, the Board must be vigilant in taking reasonable steps to attempt to provide actual notice. Certified mail is generally an adequate means of providing notice. However, more was required here given the facts of this case, i.e., that the notice was placed in the mail only one week before the hearing and that in order for Becker to receive the written notice – at least absent some notification from the postal service that a certified letter was being held for him at the post office – he would have had to have been at home at the time the mail was delivered to sign for it.
“Sending the notice by both certified and regular mail, placing a phone call to inform Becker of the imminent hearing, or hand delivering a copy of the notice to Becker would ensure the notice was reasonably calculated to provide adequate notice of the hearing and give Becker as much time as possible for the hearing.”
The Court was also critical of the Board’s decision not to grant a continuance. The Court ruled that given the facts of the case, “a continuance was clearly warranted. First, the immediacy of the hearing once Becker received notice left him only a weekend to prepare. Second, Becker stated at the hearing his firm desire to be represented by an attorney, a right to which he is statutorily entitled. Significantly, this was not some vague desire on Becker’s part, but rather he had promptly set about to find an attorney, had found one that would meet with him soon, and had made an appointment to see the attorney within mere days of calling him. When the Board was informed of these facts, it abused its discretion in not considering whether to continue the hearing.”
The Court directed the Board to hold a new hearing on Becker’s termination.
Becker v. Sunset City, 216 P.3d 367 (Utah App. 2009).
This article appears in the December 2009 issue