2017 UT App 198

THE UTAH COURT OF APPEALS

CHRIS LAMONT,

Petitioner,

v.

RIVERTON CITY BOARD OF APPEALS,

Respondent.

Opinion

No. 20160445-CA

Filed October 26, 2017

Original Proceeding in this Court

Lincoln W. Hobbs and Sarah H. Orme, Attorneys

for Petitioner

Maralyn M. English and Christopher W. Droubay, 

Attorneys for Respondent

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Riverton City (the City) fired Chris LaMont from his 

position as a construction supervisor after he refused to submit 

to a “reasonable suspicion drug [and alcohol] test” while on 

duty. LaMont appealed his termination, and the Riverton City 

Board of Appeals (the Board) upheld the City’s decision. LaMont

now seeks judicial review of the Board’s conclusion, claiming 

that (1) the City did not have reasonable suspicion to ask him to 

submit to an alcohol test in the first place; (2) the test he was 

asked to take, had he agreed to take it, would have been 

administered improperly; and (3) the Board upheld his 

termination “on an entirely different ground than that originally 

used” to fire him. We conclude that the City did have reasonable 

suspicion to test LaMont for alcohol; that LaMont’s refusal was 

not based on any objections to the procedures of the particular 
LaMont v. Riverton City Board of Appeals

20160445-CA 2 2017 UT App 198

test he was asked to take; that the City gave LaMont sufficient 

notice that it was terminating his employment for, among other 

things, his insubordination in refusing the test; and that the 

Board properly relied on that insubordination as grounds to 

uphold LaMont’s termination. Accordingly, we decline to 

disturb the Board’s decision.

BACKGROUND

¶2 In September 2014, LaMont’s supervisor (Supervisor) 

developed suspicions that LaMont may have been consuming 

alcohol while at work. On September 29, Supervisor and a 

Riverton City attorney (Attorney) exchanged text messages 

noting that LaMont would be at a conference the next day and 

speculating that he might drink alcohol during the conference. 

Accordingly, Attorney and Supervisor planned to have

Supervisor observe LaMont at the conference and, if LaMont

showed signs of intoxication, Supervisor and Attorney would 

later observe LaMont together to determine whether they had 

reasonable suspicion to ask LaMont to submit to an alcohol test.

¶3 The next day, Supervisor observed LaMont at the 

conference and noted that LaMont was “agitated,” “his face was 

swollen and very red,” “[h]is eyes were bloodshot,” and he 

exuded the odor of alcohol. Supervisor immediately asked 

LaMont to meet with Supervisor and Attorney, then called 

Attorney outside of LaMont’s presence and reported his belief 

that LaMont was intoxicated. Upon hearing this, Attorney began 

arranging for an alcohol test, and made plans to personally 

observe LaMont to determine whether he also believed LaMont 

was intoxicated. When LaMont met with Attorney and 

Supervisor shortly thereafter, Attorney noticed that LaMont’s 

eyes were bloodshot, that he smelled like alcohol, and that his 

speech was slow or slurred.
LaMont v. Riverton City Board of Appeals

20160445-CA 3 2017 UT App 198

¶4 Following a quick conference about their observations, 

Attorney and Supervisor jointly asked LaMont to take an alcohol 

test. LaMont refused. LaMont later claimed he did so because he 

“felt uneasy,” felt the test was unauthorized, and believed the 

test may have been tampered with. LaMont did not give any 

other reasons for refusing the test, and he did not offer to take a 

different kind of test. At oral argument before this court, 

LaMont’s counsel conceded that there is no evidence in the

record indicating that LaMont, at the time he was asked to 

submit to the test, expressed any concerns about the testing 

procedure itself.

¶5 Under the Riverton City Personnel Policies and 

Procedures Manual (the City’s Manual), “[a]n employee will be 

required to provide a urine sample” when “reasonable suspicion

arises” that the employee has used alcohol. Refusal to do so 

upon request violates City policy and may also constitute 

“insubordination.” The City’s Manual defines “insubordination” 

as a “critical offense” that “may justify involuntary termination.”

Following LaMont’s refusal to take the alcohol test, the City 

placed him on administrative leave.

¶6 On November 23, 2015, the City sent LaMont a predetermination letter informing him that the City intended to 

conduct a hearing “considering discipline, up to and including 

termination.” In the letter, the City explained that one of the 

grounds for potential discipline was his “insubordination” in 

refusing to submit to an alcohol test after Attorney and 

Supervisor formed a reasonable suspicion that he had been 

drinking. On December 2, the City held a hearing, and thereafter

terminated LaMont’s employment. In a “notice of 

determination” letter (Termination Letter) sent to LaMont on 

December 10, the City informed LaMont that he was being fired 

in part because the “City has determined that the appropriate 
LaMont v. Riverton City Board of Appeals

20160445-CA 4 2017 UT App 198

discipline for your insubordination of September 30, 2014, is to 

terminate your employment.”1

¶7 LaMont appealed his termination to the Board. After a 

hearing, the Board issued a written decision upholding LaMont’s 

termination. In the decision, the Board concluded that the City 

was justified in terminating LaMont’s employment because his 

“refusal to comply” with Attorney and Supervisor’s instructions 

to take a “reasonable suspicion [alcohol] test” constituted 

insubordination.

ISSUES AND STANDARDS OF REVIEW

¶8 LaMont seeks review of the Board’s decision, contending 

that the Board upheld his termination “on an entirely different 

ground than [the City] originally used to justify termination,”

that the alcohol test would have been improper had it been 

administered, and that Supervisor and Attorney were not 

justified in asking him to take the alcohol test because they had 

not formed a reasonable suspicion that he was using alcohol.

¶9 We review the final action of an appeals board for abuse 

of discretion. Nelson v. City of Orem, 2013 UT 53, ¶ 24, 309 P.3d 

237; see also Utah Code Ann. § 10-3-1106(6)(c)(ii) (LexisNexis 

2015) (“The Court of Appeals’ review shall be . . . for the purpose 

of determining if the appeal board or hearing officer abused its 

discretion or exceeded its authority.”). In addition, “we review 

as a matter of law whether a specific set of facts gives rise to 

 

1. In addition to insubordination, the City also indicated it was 

terminating LaMont for “refus[ing] to complete a DOT 

reasonable suspicion alcohol test” as well as for “violat[ions of] 

the City’s Ethical Conduct Statement.” However, we center our 

analysis on insubordination, and discuss the City’s other reasons 

only as necessary to the analysis.
LaMont v. Riverton City Board of Appeals

20160445-CA 5 2017 UT App 198

reasonable suspicion.” State v. Gurule, 2013 UT 58, ¶ 20, 321 P.3d 

1039 (citation and internal quotation marks omitted).

ANALYSIS

¶10 LaMont first contends that the Board upheld his 

termination “on an entirely different ground than [the City]

originally used” to fire him, thus violating his due process right 

to adequate notice. “[M]unicipal employees . . . have a due 

process right to adequate notice of the reasons for their 

discharge so that they can meaningfully prepare for and 

participate in the municipal appeal board hearing.” Becker v. 

Sunset City, 2013 UT 51, ¶ 15, 309 P.3d 223. Further, when 

determining whether to uphold a municipality’s decision to 

discharge an employee, an appeals board may only consider 

“evidence related to the grounds . . . for which the employee has 

received proper notice.” Id.

¶11 LaMont’s argument is grounded in language found in the 

Termination Letter stating that he was being terminated for 

“refus[ing] to complete a [Department of Transportation] 

reasonable suspicion alcohol test.” LaMont correctly notes that 

the Board concluded that the test LaMont was asked to take 

would not have satisfied Department of Transportation 

requirements, because LaMont had not been performing a 

“safety sensitive function” prior to being asked to take the test 

and because Supervisor and Attorney had not completed the 

requisite paperwork following their request for LaMont to take 

the test. Instead, the Board concluded that the test LaMont had 

refused to take could be considered a “reasonable suspicion 

[drug or alcohol] test” authorized by City policy. The Board then 

determined that LaMont’s termination could be upheld on the 

basis that he refused to take a City reasonable-suspicion alcohol 

test, even though the pre-determination letter had referred to the 

test as a “[Department of Transportation] reasonable suspicion” 
LaMont v. Riverton City Board of Appeals

20160445-CA 6 2017 UT App 198

test. The different nomenclature, LaMont argues, reflects “a new 

reason for discharge that LaMont had never received notice of.”

¶12 However, LaMont’s argument overlooks several 

important facts, including that the pre-determination letter

informed him that a potential ground for his termination could 

be “insubordination,” that the Termination Letter stated that his 

“insubordination” in refusing to submit to the test formed an 

independent ground for the decision, and that “insubordination” 

is indeed a terminable offense per City policies. Further, LaMont

does not dispute that the Board determined that his 

“insubordination” in refusing the alcohol test constituted valid 

grounds for the City to terminate him. Because LaMont received 

notice of a valid reason for his termination—insubordination for 

refusing to submit to an alcohol test—and the Board upheld his 

termination specifically with reference to that reason, there are 

no material infirmities in the notice that the City provided to 

LaMont. The fact that the Board also considered other potential 

grounds for termination is irrelevant. See Nelson, 2013 UT 53, 

¶ 43 (declining to disturb a board of appeals decision to uphold 

the termination of a police officer on the asserted grounds of

excessive force even though the board reversed a separate 

asserted ground entirely); see also Hugoe v. Woods Cross City, 2013 

UT App 278, ¶ 10, 316 P.3d 979 (determining that no due process 

violation occurred, even where the board heard evidence 

concerning an incident not included in the pre-termination 

notice, as long as the board “did not rely on” the non-noticed 

incident and had an independent, properly-noticed ground upon 

which to uphold termination). For this reason, we hold that 

LaMont’s due process rights were not violated when the Board

upheld his termination on the ground of “insubordination” for 

refusal to submit to an alcohol test—a ground that was identified 

in his pre-determination letter as well as in the Termination 

Letter.

¶13 Similarly, it does not matter that the test LaMont was 

asked to take would not have met Department of Transportation 
LaMont v. Riverton City Board of Appeals

20160445-CA 7 2017 UT App 198

requirements, or that it may have been administered improperly 

had it been given. LaMont correctly points out that Supervisor 

and Attorney both referred to the test as a “[Department of 

Transportation] reasonable suspicion test,” even though the test 

that Supervisor and Attorney would have had him take did not 

meet Department of Transportation standards. LaMont also 

argues that the test would have been improperly administered, 

and that had he agreed to the test its results would not have 

been compliant with City or Department of Transportation 

policies. But these arguments, while accurate, are ultimately 

irrelevant. Even if we assume that the test LaMont refused to 

take did not meet Department of Transportation requirements 

and would have been improperly administered, and that

therefore any evidence that may have been derived from it 

would ultimately have been untrustworthy, LaMont rendered 

any such considerations moot by insubordinately refusing to 

take the test in the first place. As noted, there is no evidence that

LaMont’s refusal had anything to do with procedural concerns.

Under these circumstances, LaMont’s refusal to take a 

reasonable-suspicion alcohol test represented sufficient grounds 

for LaMont’s termination, completely independent of any 

unexpressed concerns about the testing procedures.

¶14 Finally, LaMont contends that Supervisor and Attorney 

did not ever form a reasonable suspicion that LaMont was under 

the influence of alcohol. LaMont correctly notes that under the 

terms of the City’s Manual, an employee may be asked to submit 

to an alcohol test only if his supervisor and an acting risk 

manager2 form a “reasonable suspicion” that he has consumed 

 

2. LaMont also argues that the test was not in compliance with 

the City’s policies because Supervisor and Attorney—rather than 

a “risk manager”—observed him. However, the record clearly 

indicates that Attorney had two official job titles, that of “city 

attorney” and that of “legal risk manager.” Accordingly, 

(continued...)
LaMont v. Riverton City Board of Appeals

20160445-CA 8 2017 UT App 198

alcohol. The Manual does not define the term “reasonable 

suspicion,” and the parties have not argued for any specific 

definition of that term. However, the term “reasonable 

suspicion” is commonly used in criminal procedure, and has 

been interpreted by extensive state and federal precedent. “‘We

review administrative rules in the same manner as statutes, 

focusing first on the plain language of the rule’” and seeking “‘to

give effect to the intent of the body that promulgated the rule.’” 

Phillips v. Department of Commerce, 2017 UT App 84, ¶ 7, 397 P.3d 

863 (quoting Utah Chapter of Sierra Club v. Air Quality Board, 2009 

UT 76, ¶ 13, 226 P.3d 719). In this case, given that City policy 

uses the term “reasonable suspicion” in relation to violations of 

policy, we think it best to apply the same definition of 

“reasonable suspicion” in the context of the City’s policies as is 

commonly applied in the context of criminal law.

¶15 In the criminal context, “reasonable suspicion” exists 

when an observer is “’able to point to specific and articulable 

facts which, taken together with rational inferences from those 

facts, reasonably warrant th[e] intrusion’” upon the suspected 

individual. State v. Anderson, 2013 UT App 272, ¶ 12, 316 P.3d 

949 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968) (bracket in 

original)). A court considers the “totality of the circumstances to 

determine whether, taken together, the facts” known to the 

observer “warranted further investigation.” Id. ¶ 13 (quoting 

State v. Alvarez, 2006 UT 61, ¶ 14, 147 P.3d 425) (internal 

quotation marks omitted).

¶16 Applying that definition here, we conclude that, under all 

of the circumstances presented, the City had a reasonable 

suspicion that LaMont had consumed alcohol. As noted, 

 

(...continued)

Supervisor and Attorney’s joint concurrence that there existed 

reasonable suspicion that LaMont had consumed alcohol 

satisfied the City’s policy.
LaMont v. Riverton City Board of Appeals

20160445-CA 9 2017 UT App 198

Supervisor and Attorney both observed that LaMont smelled 

like alcohol, that his eyes were bloodshot and his face puffy, that 

his speech was slow, and that he appeared agitated. These 

circumstances, taken together, have been held to constitute 

reasonable articulable suspicion in the criminal context. See, e.g., 

State v. Perkins, 2009 UT App 390, ¶ 14, 222 P.3d 1198 

(concluding that officers had reasonable suspicion where the 

defendant exhibited “red eyes and slurred speech, was slow to 

respond . . . and stumbled upon leaving the vehicle”); see also

State v. Morris, 2011 UT 40, ¶ 27, 259 P.3d 116 (holding that “the 

smell of alcohol emanating from [the defendant’s vehicle] was 

enough to generate” reasonable suspicion). We draw a similar 

conclusion here.

¶17 Accordingly, Supervisor and Attorney’s request that 

LaMont submit to an alcohol test was based on reasonable 

suspicion and constituted a legitimate order. LaMont’s refusal to 

submit to that test was therefore insubordinate.

CONCLUSION

¶18 LaMont refused to take an alcohol test that was based on 

reasonable suspicion, received notice that his refusal constituted

insubordination and was a potential ground for termination, and 

then was terminated for insubordination. The Board did not 

abuse its discretion when it upheld LaMont’s termination on 

those grounds. Accordingly, we do not disturb the Board’s 

decision.