*1 сontinuing necessary, by is liable for benefits. See id. longer virtue of repeal, as no Thus, glance a 35-1-70 and its separate status. As 34A-2^416. section its section show, had, have, Legis- the and continue to notes will recodifications the annotation statutory repeatedly despite tinkered with section in scheme the lature has the on, 35-1-68, that, from 1973 which made unmindful 1973 amendments extended 35-1-70, wholly changes payments dependent benefit those rendered section death legislative persons attention particular which no automatic. paid for over seven to have been
seems CONCLUSION decades, unnecessary. quite Comm’n, Hales v. Industrial applicable We hold that the time (Utah Ct.App.1993). n. 7 case, language plain of sections 35- ambiguous and unclear 1-68 and 35-1-70 was argue that our observa Petitioners application. light legislative in of thе its section 35-1-70’s tion Hales underscores history undisputed Leg intent their situation because the applicability to liability islature to shift for death benefit have little or no provision would otherwise beyond period payments the initial 312-week effect, yet good 35-1- remains law. Section employer/carrier, from the ERF to the we not, however, 70 has become obsolete. uphold the Board’s determination that Liber efficacy provision has some not inconsis still responsible ongoing for the death-bene the intent the 1973 and subse tent with payments fit to Ms. Moore. quent amendments to section 35-1-68. The of section 35-1-70 reads as current version The Board’s determination is affirmed. follows: 1) judge may An administrative law ex- BILLINGS, GREENWOOD, Judge, and indefinitely received tend benefits Judge, concur. chap- wholly dependent person under this ... if at the termination of the benе- ter
fits:
(a) wholly dependent person is still condition; dependent
(b) under all reasonable circumstances the
wholly dependent person be enti- should
tled to additional benefits. RACKLEY, Plaintiff L. Cathleen (1997). If Ann. 34A-2-416 Utah Code Appellee, (1), are extended under subsection benefits employer/carrier will not be liable payments; will fall extended that burden CENTERS, INC., FAIRVIEW CARE appear upon the ERF. See id. There corporation, Defendant a Utah circumstances which benefits are not auto- Appellant. in- matically bе extended extended First, definitely by the ALJ: in the case of No. 971213-CA. children, marriage, when attainment of Appeals of Utah. Court dependen- age years, or termination of cy of the minor child does not alter Dec. wholly individu- dependent child’s as a status second, al; remarriage when divorce or spouse does not alter wholly dependent indi-
his or her status as one of
vidual. See id. 34A-2-415. When coupled
the above circumstances is circum- when “under all reasonable
situation wholly person dependent
stances benefits[,]” to additional the ERF
be entitled *2 Danny Quintana, Danny Quintana
C. & Associates, P.C., City, Appel- Salt Lake lant. Isaacson,
Peter C. Collins and Tara L. Bugden Morton, City, & Collins Salt Lake Appellee. ' DAVIS, P.J., WILKINS, Before P.J., GREENWOOD, Associate J. arrival, upon she took it her- informed of its OPINION Muriel, to also call self to not tell DAVIS, Presiding Judge: ex- at her Sharon Centers, Inc. Fairview Care Defendant impropriety about the press her “concerns” (Fairview) appeals the trial court’s Muriel. keeping the information from *3 Rackley. We L. plaintiff in favоr of Cathleen Rackley not take the initiative to tell did reverse.1 Peterson, any did she contact outside nor attempt in an to have the situa-
authorities investigated.3 FACTS tion that, despite nursing upset was her instruc- family-owned care Sharon is a Fairview tions, Rackley decision had made a unilateral consisting of two care facilities. operation to tell Muiiel about the check.4 Sharon “West” facili- Rackley managed the Fairview him February sequently Peterson and told what through called from November Fairview, happened. Peterson then met Rack- had During her tenure 1994. Maroney, Rackley, Merkley, and Joseph Sallie ley suggestions numerous made “East” Peterson, manager manager of the Fairview general and an owner Both'Maroney Merkley received a writ- Fairview, and regarding compliance Fairview’s failing аbout reprimand ten for to tell Muriel state law and other work- with federal and a new the check. Peterson also instituted not all of related issues. While in- policy requiring that be favorably official residents suggested changes were received funds, regardless of Peterson, formed of all by many implemented were none- assisting them with their financial who is theless. affairs. 1994, Rackley that February In discovered Rackley reрrimanded manager re- Peterson also Merkley, the Fairview
Karleen
apologize
for the
instructed
told her to call Sharon
sponsible for resident
had
thought,
incident.
after further
not to tell
Muriel
the Fairview staff
resident
Rackley
to terminate
the Veterans
Peterson decided
that a
cheek from
Mellen
$720
meeting.
the testimo-
Merkley
called her into a
While
had arrived.
herself
Administration
Mellen,
ny
conflicting as tо
Peterson had
by
Muriel’s
is
whether
was so instructed
Sharon
keep
changed
and decided to
Rack-
managing Mu-
his mind
daughter-in-law who had been
administrator, the
ley
Fairview “West”
many years
since
as the
riel’s financial affairs
did,
fact,
that Peterson
Although
trial court found
death of Muriel’s husband.2
Rackley.
cheek into
fire
deposited
had
Muriel’s
Sharon
account, she wanted
Muriel’s
bank
claiming
wrong-
Rackley filed
she was
suit
of its arrival
personally
tell Muriel
by
in violation of
fully discharged
Fairview
Muriel,
convincing
an Alzheimers
hopes of
trial, the trial
public policy. After a bench
resident,
money
spent
be
“[djefendant’s
termi-
that
said
court ruled
her.
purchase
of a wheelchair for
employment implicated a
plaintiffs
nation of
policy, to
wit:
Rackley
check
clear and substantial
discovered Muriel’s
When
of defendant’s Salt
yet
of the residents
thаt Muriel had not
been
and the fact
legal
was marked
funds.”
"Fairview Care Center”
that
facts and
"[t]he
1. We have determined
penned
arguments
adequately presented in
briefs
was
in.
Sharon Mellen’s name
out and
process
the decisional
would not
and record and
argument.”
significantly
oral
aided
Depart-
Rackley eventually contacted the Utah
3.
29(a)(3).
R.App. P.
Safety
Office of the
ment of Health
Ombudsman,
after her
but not until
fact,
that
Muriel had executed
document
separation from Fairview.
hereby
provided:
I
"To whom it
concernid
certify
has authorization to
that Sharon Mellen
conflicting
testimony
as to the tone of
4. The
managing my personal
allow-
needs
assist me
Rackley and Sharon.
between
the conversation
was a modified
funds.” The document
ance
Rackley
that
insinuated
Shar-
insists that
certify
Sharon
originally
herеby
read: "I
form that
money,
denies
while
on had stolen
assist
Center has authorization to
Fairview Care
charge.
my personal
managing
needs allowance
me in
City
facility (including
Lake
west side
resi-
ISSUE AND STANDARD OF REVIEW
Mellen)
Muriel
dent
informed of the
argues
fact that resident
ar-
monies had
by concluding
erred
that a clear
substan
facility.”5
at the
rived
The trial court fur-
nursing
exists that a
home
ther determined that “[defendant violated
immediately
resident must be
notified
public policy by,
in terminating plain-
facility employee
ar
funds
employment, punishing plaintiff
tiffs
for en-
riving
nursing facility.10
at the
Whether
gaging in
furthering
policy.”6
sup
exists
The trial court then concluded that
porting wrongful discharge
claim based on
unlawfully
Defendant
terminated the em-
an employer’s
violation of that
is a
ployment
plaintiff
in violation of the
question of
questions
law. We review
of law
*4
Utah,
public policy of the
of
State
includ-
correctness, giving
no deference to the
ing but not limited to the clear and sub-
legal
trial
Ryan
court’s
conclusion. See
public policy
stantial
Stores, Inc.,
considerations set
Rep.
Dan’s Food
350 Utah Adv.
following:
forth
3, 3,
395,
(Utah 1998);
972 P.2d
399-400
Communications,
v. AT & T
844
Retherford
I,
Article
1 of
Section
the Utah Constitu-
(Utah 1992).
958
tion!;;]
I,
Article
Section 27 of the Utah Consti-
ANALYSIS
tution!;;]
It well
is
established Utah law that
(5)[;]
§§
42
3058g(a)(3)
U.S.C.
employment relationship
an
prеsumptively
is
62A-3-201,
Ann.
seq.[;]
et
at-will.
See
350 Utah Adv.
at
400-02;
972 P.2d at
Fox v. MCI Communi
1396[r(c)(6)7;]
§
42 U.S.C.
(Utah
Corp.,
1997);
cations
931 P.2d
R432-150-4[;
§
Utah Admin. Code
and] Retherford,
958;
generally
see
Centre, Ltd.,
Berube v. Fashion
771 P.2d
483.10[8]
42 C.F.R.
1033, 1041
presump
The atwill
appeals
legal
the trial court’s
employer
tion “allows both the
and the em
public
clusion that a clear and
ployee
substantial
employment
any
terminate the
supporting Rackley’s wrongful
exists
employer
reason and allows the
to do so
discharge claim.9
extending any
without
procedural safeguards
Although
5.
the trial court characterized this de-
public policies
vene the clear and substantial
of
fact,
finding
termination as a
of
Browning,
determination
Utah." Peterson v.
832 P.2d
(Utah 1992)
added).
of what amounts
(emphasis
to a clear and substantial
legal
is a
conclusion.
argues
9. Fairview also
if this court con-
suggests
6. The evidence
that Fairview fired Rack-
ruling
cludes
court did not err in
that a
little,
ley
having
anything,
for reasons
if
exists,
to do
then
conduct for
However,
public policy.
with the furtherance of
which she was terminated was not in furtherance
challenge
because Fairview does not
the trial
policy.
disposi-
the established
Based on our
fact,
findings
accept
court’s
this court
tion, however,
we need not
address
issue.
them as entered.
important
It
alleged
tо note that the
10.
1396(i)(6).
7. The trial court cites to 42 U.S.C.
by
very
found
the trial court is
narrow.
Fairview,
as noted
this section does
suggestion
There is no
that the funds were im
parties
agree
not exist. The
seem to
that the
properly dealt with or that failure to inform
appropriate
1396r(c)(6).
citation is to 42 U.S.C.
component
any attempt by any
Muriel was a
accordingly
We
use that section of the United
improperly
one to
deal with the funds. Such
analysis.
States Code in our
may implicate
circumstances
presumption.
which would overcome the at-will
law,
8.
As
trial court's reliance on federal
See Fox
Corp.,
v. MCI Communications
931 P.2d
(Utah 1997) ("We
Supreme
we note the Utah
Court has
acknowledged
held that
have
public policy exception
"the
employ-
to Utah’s
that the enforcement of a state’s criminal code
encompаsses
ment-at-will doctrine
violations
public poli
constitutes a clear and substantial
[only]
cy.’’).
federal law ...
if those violations contra-
policies”).
important public
stantial
law.”
except as
employee,
to an
narrowly
... will
Additionally,
court
“[t]his
Fox,
P.2d at 859.
public policies on which
construe the
is not conclu
presumption
The at-will
may be based.”
wrongful termination action
sive, however.
Peterson,
A narrow inter-
832 P.2d
1282.
at-
th[e
overcome
An at-will
unreasonably
“avoid
eliminat-
pretation will
by demonstrating that
presumption
will]
employer
discharging
em-
discretion
(1)
agree-
express
implied
or
there is
Rep. at
Ryan, 350 Utah Adv.
ployees.”
termi-
be
employment
ment
972 P.2d
405.
upon satisfaction of
only for cause or
nated
every employment termination
“[N]ot
(2)
condition;
a stat-
agreed-upon
another
violating
effect of
sоme
has the
right of an
regulation restricts the
ute or
Fox,
is actionable.”
employee under
employer to terminate
widely
principles which are
those
“[E]ven
(3)
conditions; the termination
certain
justify
may not
sufficient to
held values
of a
a violation
constitutes
Berube,
recovery.”
wrongful termination
policy.
Furthermore,
this court “will
P.2d at 1043.
(footnotes omitted). Here, Rackley ar-
Id.
principles
[public policy]
appl[y]
those
that,
telling Mu-
by discharging her for
gues
and fundamental
which are so substantial
check,
*5
the Veterans Administration
riel about
question
to
virtually no
as
that there can be
in
of a clear and
fired her
violation
public
promotion of the
importance
their
public policy.
substantial
good.” Id.
wrongful discharge
To succeed on
public policy, a
a violation of
claim based on
only if
public policy
“A
is ‘clear’
satisfy
four-prong test. The
party must
enactments,
by legislative
plainly defined
(i)
employer
that his
“employee must show:
standards,
judicial deci
constitutional
(ii)
him;
a clear and substan
terminated
Rep. at
972
Ryan, 350 Utah Adv.
sions.”
(iii)
existed;
the em
policy
public
tial
at 405. Whether
P.2d
play;
brought
policy
the
into
ployee’s conduct
“by ‘examining]
is determined
substantial
(iv)
discharge
the conduct
and
well as the
strength
policy
the
causally
policy
play
into
are
bringing the
public
the
as a
to which it affects
extent
Rep. at
Ryan, 350 Utah Adv.
connected.”
would
determining whether we
whole’ and
omitted).
(footnote
pur
For
404
972 P.2d at
nullify
to
employer
allow
appeal, Fairview concedes
poses of this
by express agreement.” Id.
the
Thus,
on
we move
Rackley was terminated.
P.2d
Retherford, 844
(quoting
P.2d at 406
was a
prong, whether there
to the secоnd
n.
at 966
policy that nurs
public
right
residents have the
home
poli
public
on a
“Legitimate reliance
arriving at
personal monies
the
informed of
requires an
at-will rule
cy exception to the
facility.
identify
sources of
attempt
the
to
which under
principles
and the
public
repeatedly
has
under-
supreme court
Our
Berube,
Public
clearly Furthermore, was not the ease. CONCLUSION these three simply require sections most review, After careful we conclude that that nursing facility when a charged has been constitutional, none of the legislative, or ad- managing with personal the resident’s ministrative upon by enactments relied provide the resident with an express trial court a clear and substantial accounting only requested when by the resi- public policy requiring a facility employ- 1396r(e)(6)(B)(ii) dent. See U.S.C.A. ee to personal tell resident about funds that (West Supp.1998); Health Financing Care have arrived at the We thus hold Administration, 483.10(c)(4)(ii) C.F.R. Rackley’s that wrongful discharge claim (1996); Utah Admin. Cоde R432-150- premised upon the violation thereof fails. 9(8)(c)(ii) (Supp. Oct. These sec- judgment The trial court’s in favor of Rack- tions do not an duty upon affirmative ley is reversed and the case is remanded to facility employees to tell per- residents when entry in favor arrived, sonal funds have particularly where of Fairview. the resident had party authorized a third to “assist in managing [her] [her] WILKINS, P.J., Associate concurs. neеds allowance funds” and those funds were deposited in the resident’s account. GREENWOOD, Judge (concurring in the result): only language
The
in these sections
that
remotely suggest
even
policy
I concur in
by my
the result reached
col-
arrival,
notification of fund
let
leagues,
alone one of
respectfully
but
disagree with their
deposit funds
majority
requiring
from
a resident
to
achieving that result. The
means
satisfy
Rackley
it,
to
prohibition
that
failed
prefaces
concludes
with the
Ryan, that “a clear and sub-
requirement of
statement,
right
“A
to main-
resident has
policy
Ryan v.
existed.”
stantial
financial
Admin.
tain her
affairs.” Utah
Stores, Inc.,
Rep.
350 Utah Adv.
Dan’s Food
R4.400.
1998) (citations
(Utah
P.2d
my opinion,
Legislature has
In
the Utah
omitted).
Although I believe the
court
important public policy
enunciated
correctly
important public policy
held that an
long-term
issue,
elderly рersons in
care facilities
agree
I do
was at
not
play,”
into
brought
right
“the
deprived
not be
of their
required by Ryan. Id.
manage
their financial
informed about
lack
absent a
determination of
affairs
Centre, Ltd.,
In
v. Fashion
Berube
court, in
competency.
The trial
its oral
(Utah 1989),
1042-43
the Utah
“the
precise
ruling, identified the
Supreme
that “a
defi-
Court observed
virtually impos-
proper-
what their
nition of
of residents to know
sible[,]”
usually grounded
legislation
is,
otherwise,
but is
whether it’s financial or
judicial
decisions.
order
determination,
say
happens
have a
what
exception
to at-will em-
provide
property.”
agree.
I
to that
ployment, it must be both “substantial
believe, however,
I do not
origi-
important.”
(emphasis
Id. at 1043
showing
employ-
“that
met her burden of
nal).
brought
play.”
ee’s conduct
into
poli-
examining
the sources of
After
Adv.
350 Utah
court,
majority con-
cy cited
the trial
this case are somewhat
405. The facts of
cludes that there is not “a clear and substan-
There,
Ryan
in the
case.
similar to those
facility employees
that care
aggressive question-
pharmacist was fired for
to tell the residents of
seeking
prescriptions.
fill
of customers
facility.”
arriving
monies
at the
I read
upheld
pharmacist’s
supreme
court
differently. Title
least two of those sоurces
termination,
prohibiting a
because the law
Code,
62A,
Aging
chapter 3 of the Utah
titled
im-
pharmacist
“knowingly filling an
from
Services,
and Adult
creates the Division
require the
proper prescription,” did not
Aging
Adult
Code. Ann.
Services
*7
(1997)),
investigate.
pharmacist
question
and establishes a
Id.
62A-3-102
Long-Term
Program.
Id.
Care Ombudsman
at 406. The court stated that the
(1997
Supp.1998).
to -208
&
62A-3-201
firing
pharmacist would
be action-
intended to
The ombudsman is
address
repоrting
upon
if was
able
it
based
relating
long-term
ag-
care for
“problems
activity
authorities or
criminal
citizens,
require-
fulfill federal
and to
questioning
prescriptions
as
The statute fur-
ments.” Id.
62A-3-201.
rights patients, facility and it speak created to serve the owners of the long-term facilities specialized problems; their needs that she not until after she was fired was health, safety, and welfare of that for the responsible the state ombudsman contacted citizens, appro- these the state should take investigating acting on such matters. through аdequate legal priate action agreed apparently Interestingly, the owners framework to address their difficulties. that residents should with her and clarified Id. deposits of all to their accounts. be informed Therefore, I would conclude policy, with this the Utah Ad-
Consistent public policy in did not further the prohibits a care ministrative Code appropriate manner and I would reverse court’s on that basis. Utah, in the Interest of STATE M.W. S.W., persons eighteen under
years age.
L.A.W., Appellant, Utah, Appellee.
State of
No. 951412-CA. Appeals
Court of of Utah.
Dec.