Lead Opinion
Opinion
11 Jоdi Howick was employed by Salt Lake City Corporation as general counsel to the Salt Lake City International Airport. The principal questions on appeal are (1) whether Howick was a merit employee under the Utah Municipal Code, (2) if so, whether she could legally forfeit merit protection, and (3) if so, whether she did. We answer the first and second questions in the affirmative. We remand for the district court to answer the third question.
BACKGROUND
¶ 2 In 1992, the City hired Howick as counsel for the Salt Lake City International Airport. In 1998, the City created a new position, "Appointed Senior City Attorney," in response to the salary dissatisfaction of some city attorneys. The position came with а significant pay increase, but the City required employees applying for the position to sign a document titled "Salt Lake City Corporation At-Will Employment Disclaimer." The Disclaimer purported to terminate the signer's merit employee status:
I understand that, if I am appointed by the Salt Lake City Attorney to the "Appointed Senior City Attorney" position, my employment will be at-will and will be for no fixed length of time.
The City offered the new position to several attorneys. Some declined the offer and remained in their existing pay grades. Others, including Howick, signed the Disclaimer and moved to the new status. Both groups continued to receive pay increases, but the Appointed Senior City Attorneys received larger pay increases.
¶ 3 Although Howick had "tremendous expertise and experience that [was] not replicated by anyone else in the City Attorney's Office," the City terminated her employment in 2007. Howick filed a notice of appeal with the Salt Lake City Employee Appeals Board. See generally Howick v. Salt Lake City Corp., 2008 UT App 216U,
¶ 4 The City then referred Howick's appeal of her termination to the Board. Without hearing testimony, the Board considered memoranda on the issue of whether Howick was a merit or an at-will employee at the time of her termination. See Howick v. Salt Lake City Emp. Appeals Bd. (Howick II),
ISSUES AND STANDARD OF REVIEW
T6 The City contends that the district court erred by failing to fully analyze the issues before it, ruling that Howick's claims were not time-barred, concluding that How-ick was a merit employee, and rejecting the City's defenses of waiver and estoppel based on the Disclaimer. Howick counters that the district court should have granted her summary judgment motion in its entirety and reinstated her as an employee of the City.
T7 Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Bingham v. Roosevelt City Corp.,
ANALYSIS
T8 At the heart of this dispute is what we will refer to as the Merit Protection Statute, as it existed in 1998. The statute mandates merit protection for all municipal employees, subject to several enumerated exceptions. See Utah Code Ann. § 10-83-1105 (Michie 1996). The next statutory section provides that no protected municipal employee may be discharged or demoted "because of his politics or religious belief, or incident to, or through changes, either in the elective officers, governing body, or heads of departments." Id. § 10-8-1106(1). That section also sets forth a termination and appeals procedure applicable to protected employees. See id. § 10-3-1106(2)-(7).
T9 The main substantive questions raised by this appeal are (1) whether Howick qualified as a merit employee under the Merit Protection Statute and (2) if so, whether she forfeited its protections by accepting a promotion to an "at-will professional position" and signing the Disclaimer. However, before we reach these questions we must address threshold procedural issues concerning (1) whether the district court made all rulings necessitated by our decision in Howick II and (2) whether Howieck's claim is barred by the statute of limitations.
I. The District Court Made All Required Rulings.
110 The City contends that the district court "failed to undertake the legal analysis required by this court." In Howick II we held that a district court action would permit Howick to test her claim of statutory merit status against the City's defenses of waiver and estoppel and thus allow the district court to determine whether she was a merit or an at-will employee.
1 11 The district court ruled that the question of liability "comes down to an issue of statutory construction." It read the Merit Protection Statute as mandatory, "meaning that the provisions of the merit system apply to аll employees except those that are specifically exempted." The court further determined that "there are simply no facts in the record from which to conclude that Ms. How-ick was either a department head or a superintendent"; thus, it concluded, she was not specifically exempted by the statute. Finally, the court ruled that "because of the language of the statute, the parties cannot create an exception to the statute by contract, waiver, or estoppel." Allowing a city and its employee to expand the statutory exceptions to merit protection, the court reasoned,
T 12 The City argues that the district court failed to analyze its waiver and estoppel defenses. The City asserts that "[wlaiver and estoppel are threshold doctrines that are applied to a party's claims at the outset and without considering the underlying legal merits." The City cites no legal authority for this assertion.
113 The district court also rejected the City's statute of limitations defense. It did so on two alternative grounds. First, it ruled that "regardless of the merits of the [statute of limitations] argument," our decision in Howick II required that it address the substance of Howick's claim. Second, it ruled that in any event, "on the merits, [Howick] has the better position." The court explained that "(allthough technically either side could have brought a declaratory judgment action testing the validity of Ms. How-ick's at-will status frоm the time it went into effect, there was no real justiciable dispute until Ms. Howick was terminated." The court continued, "When she was, [she] did exactly what she was entitled to do as a merit employee-she pursued her direct remedy by filing a timely appeal to the city's employee appeals board and then filing timely appeals with the Court of Appeals."
114 The City contends that the district court "disregarded the statute of limitations governing Ms. Howieck's claim, while implicitly admitting that her claim was time barred." The City quotes the district court's oral ruling, which stated that "almost regardless of the merits, [it] would not decide this case on statute of limitations grounds because the Court of Appeals clearly wanted this done." However, the district court also concluded that "on the merits, [Howick] has the better position" and explained its rationale for that conclusion.
1 15 We conclude that the district court did address the limitations defense "on the merits" and thus do not agree with the City that the district court, in the City's words, "failed to undertake the legal analysis required by this court" in Howick II. See Allen v. Friel,
II. Howieck's Wrongful Termination Claim Is Not Time-Barred.
116 The City next contends that, in any . event, Howick's declaratory judgment cause of action is barred by the statute of limitations as a matter of law. "Because the basis of Ms. Howick's claim is that she was improperly made an at-will employee in 1998 and that her at-will agreement was 'void' and 'Megal in 1998," the City argues, "her claim is barred by the statute of limitations." Under this analysis, Howiek's claim for declaratory judgment arose when she accepted the promotion and signed the Disclaimer in 1998, but she did not file her complaint until 2009. As a result, the City argues, her claim is time-barred whether it is viewed as alleging a statutory violation аnd is thus subject to a three-year limitations period, see Utah Code Ann. § 78B-2-805(4) (LexisNexis 2012), or as alleging breach of contract and is thus subject to a six-year limitations period, see id. § 78B-2-309.
118 If the determination of a claim for damages requires a district court to determine the respective rights of the parties, a "separate request for declaratory relief is subsumed by [thе plaintiffs] damages action." See Rhodes v. Robinson,
III. Howick Was Legally Able To Waive Her Merit Protection.
A. Howick Enjoyed Merit Protection.
119 The City contends that even before Howick signed the Disclaimer in 1998 she was an at-will employee under the Merit Protection Statute "because the statute (as it was worded at the time) allowed municipalities to make 'superintendents' and 'heads of departments' at-will employees" and that Howick fit within these exempt job classifications.
1 20 The Merit Protection Statute provided that all municipal employees are merit employees except for those holding positions specifically enumerated:
All appointive officers and employees of municipalities, other than members of the police departments, fire departments, heads of departments, and superintendents, shall hold their employment without limitation of time, being subject to discharge or dismissal only as hereinafter provided.
Utah Code Ann. § 10-83-1105 (Michie 1996). Commenting on the 2004 version of the Merit Protection Statute, we have stated that by enumerating "very limited exceptions to the presumption that all municipal employees are merit employees ..., the statute appears to be aimed at ensuring that a maximum number of employees are guaranteed stability in employment." Kocherhans v. Orem City,
121 The Merit Protection Statute thus "preserves the ability of a new administra
{22 The question before us is whether Howick fit within the exceptions for "heads of departments" or "superintendents" who are exempt from this protection. See Utah Code Ann. § 10-38-1105. This question is governed by her actual duties, not her job title. See Pearson v. South Jordan City,
¶ 23 The district court ruled that Howick was not a superintendent or department head. It read the statute carefully, emphasizing that the word "all" tended to broaden the class of merit-protected employees. Thе court observed that the City never referred to Howick as the head of a department or as a superintendent; the Airport's organizational chart showed her in a staff position rather than a line position "as you would expect for a department head or superintendent"; and Howick supervised only a secretary, a paralegal, and occasionally another attorney.
¶ 24 In support of its claim that Howick was a superintendent or department head, the City points to the following facts: How-ick was the Airport's "in house legal counsel" and held the title of "Chief Counsel"; she was involved in "all management decision making at the Airport"; she was еvaluated by the Airport's Executive Director rather than the City Attorney; she supervised a paralegal, a legal secretary, and during one period another attorney; and she supervised outside counsel.
¶ 25 The City does not identify any department that Howick headed or superintended. At most she supervised her own secretary, a paralegal, and one other attorney, while overseeing contractual work done by outside counsel. The Utah Municipal Code does not define the term department. However, it specifies that the administrative authority in a city of the first class,
¶ 26 Despite her designation as "Chief Counsel," Howick in fact presided over no named municipal department. She supervised only her own personal secretary and paralegal and occasionally one additional attorney. That she was involved in all management decision-making at the Airport and that she was evaluated by the Airport's Executive Director rather than the City Attorney suggest that she was a key employee, but not that she was a department head.
¶ 28 In sum, the district court correctly ruled that Howick did not fall within what Kocherhans called the "very limited exeep-tions" to the Merit Protection Statute. See Kocherhans,
B. Public Policy Does Not Prevent Howick from Waiving Merit Protection.
129 Having determined that Howick was covered by the protections of the Merit Protection Statute, we must now decide whether those protections may be forfeited by contract, waiver, or estoppel. Howick contends that permitting cities to contract around the Merit Protection Statute would undermine the important public policy it advances.
1380 This analysis informed the district court's ruling. It reasoned that "[alllowing an exception to the statute [by contract, waiver, or estoppel] would vitiate the entire purpose behind the statute ..., because the city could do the same thing with any employee.... This could effectively end merit employment as mandated by the legislature." The court thus ruled, and Howick agrees, that the document she signed, coupled with her job description in the City's personnel manual, offended the public policy expressed in the Merit Protection Statute.
131 The City contends that the district court erred in ruling that "the language in sections> 10-38-1105 and 10-83-1106 trumped all other arguments, including waiver and estoppel."
132 First, the City argues that "[alttor-nеys are subject to the strong public policy principle that the client may always terminate the attorney-client relationship at the client's sole discretion," relying on comment 4 to rule 1.16 of the Utah Rules of Professional Conduct. This argument proves too much-it would effectively nullify the Merit Protection Statute as applied to all attorneys based on a comment to a professional rule. Moreover, as Howick notes, competing public policy weighs against permitting government officials to discharge their staff counsel at will: "a lawyer for the government may have a legal duty to question the conduct of government officials and perform аdditional remedial or corrective actions including investigation and prosecution." Utah R. Profl Conduct 1.18, emt. 182.
33 Second, the City argues that "[oJuly where a statute embodies public policy in a strong sense may it be used to invalidate a contract voluntarily entered into (and only where the contract harms the public in general)," and that no such public policy considerations are present here.
¶ 34 "People are generally free to bind themselves pursuant to any contract, barring such things as illegality of subject matter or legal incapacity." Ockey v. Lehmer,
. 185 With respect to the first factor, the City rightly observes that unlike many Utah statutes, the Merit Protection Statute contains no express anti-waiver provision. Seq, e.g., Utah Code Ann. § 19-8-819(7)(a) (Lexis-Nexis 2010) ("An agreement ... requiring the employee to waive benefits under [the Radiation Control Act] is void."); id. § 34A-2-108(1) (LexisNexis 2011) ("[(Aln agreement by an employee to waive the employee's rights under [the Worker's Compensation Act] is not valid."); id. § 35A-4-103(1)(a) ("Any agreement by an individual to waive, release, or commute his rights to benefits [under the Utah Employment Security Act] is void."); id. § 57-11-58) (LexisNexis 2010) (providing that a "right of rescission [under the Land Sales Practicе Act] may not be waived by agreement"); id. § 61-1-108(2) (LexisNexis 2011) ("An individual may not waive a right or protection provided by [the Utah Uniform Securities Act] by agreement...."). The first Ockey factor thus weighs in favor of permitting merit employees to contract away their merit protection. 136 The second factor is whether the contract offends public policy or harms the public as a whole. See Ockey,
137 However, the City argues that public policy as embodied in the statute has recently shifted. In 2012 the Utah Legislature amended the. Merit Protection Statute, apparently in response to cases recently decided by this court. See Utah Code Ann. § 10-38-1105 (LexisNexis 2012). The amendment represents a substantial expansion of the statute; the 2012 version of the statute contains 426 words, as compared to 178 words in the 2004 version and a mere 39 words in the 1998 version. The 2012 version also adds approximately nine categories of excluded employees and permits a municipality to exempt up to five percent of its workforce from the protections of the statute. And, of relevance here, it excludes from merit protection an employee who has either "acknowledged in writing that the employee's employment status is appointed or at-will" or "voluntarily waived the procedures required by Section 10-8-1106." Id. § 10-3-1105(@2)(e) These amendments took effect after the district court had ruled and after opening briefs were filed in this appeal. Although the City did not argue that the 2004 amendment to the statute applied to How-ick's claims, it does argue that the 2012 amendment controls.
¶ 38 We do not agree. "[Wle apply the law as it exists at the time of the event regulated by the law in question." State v. Clark,
1 39 However, our courts have "recognized a narrow, judge-made exception to the retro-
40 As noted above, the 2012 amendment expanded the Merit Protection Statute to 426 words-a ten-fold increase when compared to the 1998 version. The 2012 amendment added many exceptions to the statute's protections, including one for employees like Howick who waive its protections. Like exemptions for the administrative assistants of elected officials, persons whose job descriptions identify their positions as at-will, and temporary employees, the exemption for those waiving merit protection did not appear in the 1998 or 2004 versions of the statute. Accordingly, the 2012 amendment "was not a mere clarification of the law; it was an affirmative addition of ... new exemption[s] to the statute." Salt Lake County v. Holliday Water Co.,
141 Therefore, because the 2012 amendment of the Merit Protection Statute was substantive, was not expressly declared to be retroactive, and was not a mere clarification of the prior version of the statute, it may not be applied to actions taken before its passage. It therefore does not control this case.
142 But neither is the 2012 amendment irrelevant. Although it is "inapplicable to this case," we regard it "as a reflection of current legislative views on public policy." Farmers New World Life Ins. Co. v. Bountiful City,
43 In sum, neither Ockey factor is satisfied here. The Merit Protection Statute does not specifically declare contrary contracts to be void, nor does this case present a showing free from doubt that the contract offends public policy. See Ockey,
IV. Remand Is Required for Further Proceedings by the District Court and, If Appropriate, the Employee Appeals Board.
1T 44 The district court understandably concluded that no contract, waiver, or estoppel could cireumvent the protections afforded by the Merit Protection Statute. It therefore did not adjudicate those issues. But because we conclude that the Merit Protection Statute does not foreclose those defenses, we remand to the district court for plenary resolution of those issues. See Warne v. Warne,
45 If the district court on remand rules in favor of the City's contract, waiver, or estoppel defenses and so concludes that Howick was an at-will employee, it should proceed to dispose of the case as appropriate, inasmuch as "the Board lacks jurisdiction over the claims of non-merit employees." Howick II,
CONCLUSION
146 The district court addressed all the issues necessitated by our opinion in Howick II. It prоperly concluded that Howiek's lawsuit is not time-barred and that she was originally a merit employee covered by the Merit Protection Statute. However, based on the absence of an anti-waiver provision and the lack of a showing "free from doubt" that Utah public policy prohibits an employee
Notes
. Although Howick frames a portion of her cross-appeal as a challеnge to the ruling of the Board, that ruling is not before us. In any event, we need not reach it given our resolution of the central issues of this appeal. Accordingly, we do not discuss it further.
. Later in its argument the City cites Glew v. Ohio State. Bank,
. -We cite to the current version of the Utah Code where the relevant provisions have not changed in any way material to our analysis.
. The statute was amended in 2004. See Utah Code Ann. § 10-3-1105 (LexisNexis 2007), amend. notes. Howick was terminated in 2007. Although our opinion in Pearson v. South Jordan City suggests that the version of the statute in effect on the date of an emplоyee's termination might govern a dispute arising from that termination,
. "To get a proper vision and perspective we go back to the" 1899 statute, which allowed municipal department heads to remove subordinates "at any time, without cause, hearing or opportunity to be heard, and such action was not subject to review or to be called in question." Vetterli v. Civil Serv. Comm'n of Salt Lake City,
Patronage practice is not new to American politics. It has existed at the federal level at leаst since the Presidency of Thomas Jefferson, although its popularization and legitimation primarily occurred later, [with] the Presidency of Andrew Jackson.. . .. More recent times have witnessed a strong decline in its use, particularly with respect to public employment. Indeed, only a few decades after Andrew Jackson's administration, strong discontent with the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the foundation of modern civil service. And on the state and local levels, merit systems have increasingly displaced this practice.
Elrod v. Burns,
. A city of the first class is defined as one with a populatiоn of 100,000 or more. Utah Code Ann. § 10-2-301 (LexisNexis 2012).
. This conclusion is consistent with our statement in Howick II that Howick's "job position is not listed among the positions specifically excluded from merit status." See Howick II,
. Given our resolution of these issues, we need not address the issues presented in Howick's cross-appeal and her attempt to challenge the ruling of the Board. See State v. Carter,
Concurrence Opinion
(concurring):
T47 I concur in the court's opinion but write separately to add a comment about the role of public policy in this case. The lead opinion correctly concludes that Howick has not made "a showing free from doubt that the contract offends public policy." See suрra ¶ 43. I agree, but I wish to emphasize that, at least in my view, we can so conclude largely because of the unique facts of this case. Howick was not an unsophisticated public employee but rather was a seasoned, experienced attorney who can be presumed to have known exactly what she was doing in entering into the contract. Indeed, as a key attorney for the City, she should have alerted her client, who also happened to be her employer, to the possibility that the contract was illegal if she honestly thought that it was. My view about the public policy implications of a contract like the one Howick signed would be very different if she were a less sophisticated, less well-educated employee.