2023 UT App 46

THE UTAH COURT OF APPEALS

COREY BRINDLEY,

Petitioner,

v.

LOGAN CITY AND LOGAN CITY EMPLOYEE APPEALS BOARD,

Respondents.

Opinion

No. 20220187-CA

Filed May 4, 2023

Original Proceeding in this Court

Josh Chambers and J. Brett Chambers,

Attorneys for Petitioner

Craig Carlston, Kymber Housley, and Mohamed I. 

Abdullahi, Attorneys for Respondents

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 Corey Brindley was fired by Logan City (Logan) after 

random testing revealed alcohol in his system for the second time 

in three years. Brindley appealed his termination to the Logan 

City Employee Appeals Board (the Board), which held a hearing. 

Logan provided the Board with evidence from the technician 

(Technician) who administered the breathalyzer test. This 

evidence consisted of (1) an emailed statement purportedly

written by Technician but sent from his supervisor’s email 

account and (2) a form containing Technician’s certification from

the time of administration that the test was performed according 

to standard procedure and his handwritten report of the test 

results. But Technician was not present at the hearing, and Logan 

offered no other evidence as to the correctness of the test’s

administration. In fact, there was evidence presented calling the 
Brindley v. Logan City

20220187-CA 2 2023 UT App 46

reliability of the test administration into question. Because 

Brindley had a statutory right to confront the witnesses whose 

testimonies the Board considered, and because the Board 

considered a statement and a certification ascribed to Technician 

despite Technician’s absence, we conclude that the Board 

exceeded its discretion in upholding Brindley’s termination. 

Accordingly, we set aside the Board’s decision.

BACKGROUND

¶2 Brindley was employed as a wastewater inspector for 

Logan. Brindley’s position required a commercial driver license 

(CDL) and was classified as a safety-sensitive position. All 

personnel in such positions are subject to random drug and 

alcohol testing under section 15-02(2) of the Logan Employee 

Handbook (the Handbook).1 See Logan City Employee Handbook 

§ 15-02(2) (revised Nov. 2009).2

1. This complies with requirements imposed by the United States 

Department of Transportation (DOT) for random drug and 

alcohol testing of CDL licensees and employees in safety-sensitive 

positions. See 49 C.F.R. § 382.305 (2021). While DOT forms and 

procedures are referred to in the record and in this opinion, the 

issue before us relies on Logan’s policies, not DOT policies, 

because the positive screen in question was below the threshold 

for DOT action. See id. § 40.23(c) (“[A]n employer who receives an 

alcohol test result of 0.04 or higher . . . must immediately remove 

the employee involved from performing safety-sensitive 

functions. If [the employer] receive[s] an alcohol test result of 

0.02–0.039, [it] must temporarily remove the employee involved 

from performing safety-sensitive functions . . . .”).

2. This section and others in the Handbook have been 

revised since the events at issue. See Logan City Employee 

(continued...)
Brindley v. Logan City

20220187-CA 3 2023 UT App 46

¶3 In December 2018, Brindley was selected for random drug 

and alcohol screening at work, and his breathalyzer test result—

uncontested here—indicated a blood alcohol content (BAC) of 

.029. He was sent home but was allowed to return to work on a 

later day, as was consistent with existing policy for a first-time 

positive result. See id.

¶4 On December 9, 2021, Brindley was again selected for 

random drug and alcohol testing. He began work at 7:00 a.m. that 

day. He reported to Sterling Urgent Care—Logan’s third-party 

provider for random drug and alcohol testing—when directed. 

Technician performed a breathalyzer test and wrote the results as 

allegedly indicating a BAC of .017 with a reading time of 9:45 a.m. 

Some ten or eleven minutes later,3 Technician performed a 

confirmation test and wrote an alleged result of .014. Technician 

was not able to print the results, purportedly because the printer 

was not working. But Technician completed the DOT Alcohol 

Testing Form, which included the following certification: “I 

certify that I have conducted alcohol testing on the above named 

individual in accordance with the procedures established in the 

US Department of Transportation regulation, 49 CFR Part 40, that 

I am qualified to operate the testing device(s) identified, and that 

the results are as recorded.” Technician checked the box 

indicating that he was a blood alcohol technician, wrote in the 

results, and signed and dated the form. A report was printed the 

Handbook § 15-02(3)-(4) (revised Feb. 2022), https://cms9files.re

vize.com/loganut/document_center/Employee%20Handbook/S

ECTION%2015%20Substance%20Abuse%20and%20Drug%20Te

sting%20-%20February%202022.pdf [https://perma.cc/K9CR-D6

SG]. Unless otherwise indicated, we refer to the version of the 

Handbook in effect at the time of Brindley’s termination.

3. Technician stated that he performed the confirmation test ten 

minutes after the first, but Technician’s supervisor testified that it 

was eleven minutes later, presumably based on the machine’s 

recalled results.
Brindley v. Logan City

20220187-CA 4 2023 UT App 46

next day for Logan’s Safety Officer (Safety Officer), showing a 

BAC of .017.

¶5 The Handbook specifies that “[a]n employee who has 

tested positive on a drug test and is allowed to return to work and 

who receives a positive result on any subsequent drug test will be 

terminated.” Logan City Employee Handbook § 15-02(2)(b) 

(revised Nov. 2009).4 On December 14, 2021, a “Notice of 

Termination of Employment” was sent to Brindley, stating,

On December 9, 2021 you took a random drug and 

alcohol screening. This screening resulted in a BAC 

of 0.017. Due to the timing of the screening, it is clear 

that you were under the influence of alcohol while 

at work.[5]

4. The Handbook has been revised to state that “[a]ny employee 

who has tested positive for any measurable amount on an alcohol or 

drug test will be subject to discipline, up to and including 

termination” and that “[a]n employee who has tested positive for 

any measurable amount on an alcohol or drug test and is allowed to 

return to work and who receives a positive result on any 

subsequent alcohol or drug test within five years of the first 

positive test will be terminated.” See id. (emphasis added). 

Brindley argues that “tested positive”—without the updated 

language—is vague and unenforceable. Because we resolve this 

case on other grounds, we need not address this issue.

5. Logan’s use of “under the influence” is curious because Logan 

does not define this term, see Logan City Employee Handbook 

§ 15-01(1) (revised Nov. 2009), and Brindley’s alleged BAC of .017 

falls well under Utah’s nationally low statutory definition for 

“under the influence” as a BAC of .05, see Utah Code § 41-6a502(1)(a), and—as previously noted—also under DOT’s action 

threshold, see 49 C.F.R. § 40.23(c) (2023).
Brindley v. Logan City

20220187-CA 5 2023 UT App 46

. . . .

Also, in December 2018 you had an 

additional positive alcohol screening and you were 

allowed to continue employment.

. . . .

Due to your positive tests for alcohol on the 

above date(s), we have determined it is the best 

solution to terminate your employment with Logan

. . . .

Two days later, Brindley appealed his termination. 

The Handbook indicates that in an appeal, “[t]he burden of 

proof is on the employee to prove, by a preponderance of 

the evidence, that disciplinary measures were not in 

accordance with established policy.” Logan City 

Employee Handbook § 8-03(5) (revised April 2018),

https://cms9files.revize.com/loganut/departments/hr/SECTION

%208%20Grievances%20-%20November%202009%20Final.pdf

[https://perma.cc/G3A9-MKY6].6

6. We acknowledge that there are potential due process issues 

with foisting the burden of proof on a municipal employee like 

Brindley in such a hearing. As Brindley highlights, qualifying 

municipal employees have a recognized property interest in their

jobs. See Utah Code § 10-3-1105(1)(a); Becker v. Sunset City, 2009 

UT App 197, ¶ 6, 216 P.3d 367 (“[Employees have] a recognized 

property right in [their] job[s]. . . . Accordingly, [the employer]

was required to follow adequate due process procedures in 

connection with its termination of . . . employment.”), aff’d, 2013 

UT 51, 309 P.3d 223; Lucas v. Murray City Civil Service Comm’n, 949 

P.2d 746, 752 (Utah Ct. App. 1997) (“If a property interest in 

continued employment exists, then the employee is entitled to 

(continued...)
Brindley v. Logan City

20220187-CA 6 2023 UT App 46

¶6 The next month, the Board held a hearing to consider 

Brindley’s appeal. At the hearing, the Board first heard testimony 

from Safety Officer. Safety Officer testified about Logan’s 

procedures for random employee drug and alcohol tests. Safety 

Officer also testified about Brindley’s prior tests, indicating that 

in December 2018, Brindley was tested around 7:00 a.m. and 

“blew a .032,” which “hit the action level for DOT at .02,” meaning

that the employee has to “complete a confirmation test” after 

“they wait 15 minutes and no longer than 30 minutes.” Safety 

Officer indicated that “[t]he second test is the one that actually 

gets reported to the DOT and Logan” and that for Brindley, “[a] 

second test was given, and it was .029 and . . . was reported to the 

DOT” and to Logan’s human resource department. At that time, 

Brindley “was sent home because under DOT regulations they 

say that an individual that is above a .02 has to be removed from 

their safety sensitive position for at least 24 hours and then upon 

their return they have to produce a negative test,” which—

according to Logan’s then-unwritten policy—meant “zero”

alcohol in the blood.

¶7 Brindley’s counsel inquired into Logan’s policy of 

interpreting a “positive result” as any measurable amount of 

alcohol, and Safety Officer acknowledged that the term “positive” 

was not defined in the Handbook and explained that the “no 

tolerance” policy was “just something that we have always gone 

with.” Safety Officer admitted, though, that this was Logan’s first 

experience with “a positive,” having “always had zeros” 

previously. Brindley’s counsel stated that he was “trying to figure 

out where the zero came from” because “there is nothing in the 

DOT and nothing in the Logan City Code that specifies that 

anything between zero and .02 would be a positive result. There 

procedures comporting with the minimum requirements of due 

process, as provided in the Constitution.”). These are weighty 

questions we need not answer here, but we note that we are 

dubious of Logan’s ability to place this burden on the employee.
Brindley v. Logan City

20220187-CA 7 2023 UT App 46

is nothing in the Logan City Code that specifies this at all.” Safety 

Officer agreed, saying, “No, nothing.”

¶8 The Board next heard testimony from Technician’s 

supervisor (Supervisor), the Occupational Director of Sterling 

Urgent Care, who joined via Zoom. Technician was not present—

either virtually or in person—to testify. According to the minutes 

of the meeting, Logan’s counsel said that “this is not ideal and 

[Logan] would have liked to have the person attend [the] hearing 

in person who administered the test to Mr. Brindley . . . . 

Unfortunately, this body does not have subpoena powers so we 

could not force [Technician] to attend.”7 Instead, Logan indicated 

that it had “a substitute,” who was Supervisor.

¶9 Logan further indicated that it had received a 

statement from Technician in the form of an email and that 

it wanted Supervisor to read the statement to the Board. The email 

said it was “[Technician’s] statement,” but it was sent 

from Supervisor’s email address to Safety Officer. Brindley’s 

counsel “objected on the basis [that] this is hearsay and an out of 

court statement being taken [for] the truth of the matter” asserted. 

Brindley’s counsel further argued that under Utah law, “the 

employee has the right to have the witness whose testimony is 

being offered against him actually in court.” See Utah Code § 10-

3-1106(4)(a)(iii) (“An employee who is the subject of the 

discharge, suspension, or transfer may . . . confront the 

witness whose testimony is to be considered . . . .”).8 The 

7. This quotation and those that follow are taken from the minutes 

of the hearing because a transcript of the hearing is not included 

in the record. Accordingly, we are aware that the minutes likely 

do not capture all questions and testimony verbatim. But we are 

satisfied that this reality does not affect our decision.

8. This provision applies to all “employee[s] to which [s]ection 10-

3-1105 applies,” Utah Code § 10-3-1106(1), which includes 

municipal employees with some exceptions, id. § 10-3-1105. 

(continued...)
Brindley v. Logan City

20220187-CA 8 2023 UT App 46

Handbook, too, states that “[t]he employee shall be entitled to . . . 

confront the witnesses whose testimony is to be considered.” 

Logan City Employee Handbook § 8-03(1) (revised April 2018), 

https://cms9files.revize.com/loganut/departments/hr/SECTION

%208%20Grievances%20-%20November%202009%20Final.pdf

[https://perma.cc/G3A9-MKY6]. Accordingly, Brindley’s counsel 

“objected to this statement being introduced.” But the Board—

empowered by the Handbook to “determine[] the admissibility of 

evidence and its use” and “not [being] bound by the rules of 

evidence” but being able to “hear any evidence it determine[d]

relevant to the matter,” see id. § 8-03(2)—permitted Supervisor to 

read and provide copies of the following statement purportedly 

provided by Technician: 

I tested Corey Brindley for a DOT breath alcohol 

and a DOT drug screen test on December 9, 2021. 

The machine was activated at 9:34 [a.m.] for test 714. 

The result was .017 with a reading time of [9:35 

a.m.]. . . . [A]fter attempting to print out a copy of 

the previous test, ten minutes had passed by before 

performing a second breath alcohol test. Due to the 

result being lower than the DOT limit of .02 the 

patient was released.

¶10 Supervisor testified about the machine, providing its 

model information and declaring that “[i]t was not the handheld 

breath alcohol machine itself that was having issues” but “just the 

printer on the machine.” She stated that “[Technician] is a newer 

employee” and that after he brought to her attention the failure to 

print the test receipts, they performed “a memory recall” to “pull 

up the results.” She further testified that the machine had been 

calibrated the day before Brindley’s test, and she asserted that 

there was no “reason to doubt the accuracy of the test results.” But 

she also testified that she “did not perform the test.” Brindley’s 

counsel asked, “Because you did not administer the test yourself, 

Brindley’s former position does not fall under any of the 

exceptions. See id.
Brindley v. Logan City

20220187-CA 9 2023 UT App 46

you don’t know if the test was actually performed correctly?” 

Supervisor responded, “I was not there but [Technician] has gone 

through the training and the machine pretty much does the test 

for you.” She confirmed that Technician administered Brindley’s 

second test “at 11 minutes versus 15 minutes” after the first test—

referring to the timeframe for a confirmation test required by DOT

when an initial test is above .02—but stated that “had it been 15 

minutes versus 11 minutes there really would not have been a big 

difference.”

¶11 Brindley’s counsel asked Supervisor, “What are some of 

the errors that can occur if the test is not administered correctly?” 

Supervisor responded, “You can get inaccurate results such as 

someone that has gum in their mouth, chew in their mouth at the 

time of the test.” She also stated that “foods and drinks and even 

if the person if they were to belch too much can sometimes alter 

the results of a test” and “that is why they get the opportunity to 

take the confirmation test.”

¶12 The Board next heard from a lieutenant with the Logan 

City Police Department (Lieutenant). Lieutenant testified that the 

average alcohol burn-off rate for adults is .015 grams of alcohol 

per hour. He then estimated that Brindley’s BAC would have been 

“somewhere around a .045” at 7:00 a.m. when he began working 

that day based on a BAC of .017 at 9:35 a.m. Brindley’s counsel 

asked if it was “true that certain foods can interfere with the 

accuracy of the test,” and Lieutenant responded, “Yes.” Brindley’s 

counsel then asked if that was why it was “important that the test 

be administered correctly,” and Lieutenant again responded, 

“Yes.”

¶13 Finally, the Board heard testimony from Brindley. He

testified that he stopped drinking alcohol before he went to bed 

the previous night at 9:00 p.m. He further testified that he uses 

chewing tobacco every day and that he was chewing tobacco on 

the morning of December 9, 2021, until “[r]ight before [he] walked 

through the door” to be tested. Logan’s counsel asked, “Isn’t it 

true that you didn’t tell [Technician] who administered the test 

that you had chewing tobacco in your mouth?” and Brindley 
Brindley v. Logan City

20220187-CA 10 2023 UT App 46

responded, “He never asked.” Brindley’s counsel—not Brindley 

himself—indicated that Brindley removed the chewing tobacco 

between ten and fifteen minutes before the first test was 

administered. Brindley stated that Technician did not tell him to 

remove the chewing tobacco. Logan’s counsel asked, “Did they 

inspect your mouth at all?” Brindley responded, “No, they did 

not.” Logan’s counsel repeated the question: “So, you are saying 

that before they gave that first test, they did not have you open 

your mouth and see if you had anything in it?” And again 

Brindley stated, “No, they did not.”

¶14 At this point in the hearing, the Board indicated that it 

would have liked to ask Supervisor—who had left the hearing—

to address procedures and implications related to chewing 

tobacco and breathalyzer tests. Logan’s counsel asked Safety 

Officer to see if Supervisor was able to rejoin the hearing via 

Zoom, stating that “the troubling thing” about the situation is not 

knowing whether the presence of chewing tobacco would impact 

the test results a little or could result in a false positive. Brindley’s 

counsel indicated that he felt Technician was a key witness 

because there was no evidence of whether Technician asked 

Brindley about chewing tobacco or whether the test was 

performed correctly. Logan’s counsel “agreed and said this is very 

frustrating to him” that Technician was not present to testify. He 

noted that “there is no disputing” that technicians administering 

breathalyzer tests “are required to check the mouth and are 

required to make sure [test subjects] don’t have anything” in there 

but that Technician was not present to testify as to whether he did 

so. Logan’s counsel indicated that the Board had the right to 

continue the hearing to try to secure Technician’s presence or that 

it could make a decision based on the evidence it had received. 

Brindley’s counsel expressed his concern related to continuing the 

hearing that Brindley had already been out of work for over a 

month awaiting the hearing. The Board members discussed 

whether they should try to secure Technician’s presence, and one 

stated that he expected that Supervisor could have information 

related to chewing tobacco.
Brindley v. Logan City

20220187-CA 11 2023 UT App 46

¶15 Supervisor then rejoined the hearing via Zoom. She 

testified that by fifteen minutes after removing chewing tobacco, 

the impact on the test results would be zero. When asked what the 

impact would be if chewing tobacco was removed five minutes 

before a test, Supervisor responded, “Where confirmation results 

were still given 11 minutes after the first test[,] the chewing 

tobacco should have dissipated to where it would not have 

affected the test.” Then Brindley’s counsel asked whether test 

results would be affected if chewing tobacco juices were still in 

the mouth, to which Supervisor responded, “Yes, it could. How 

much it could affect the results would be a question for a medical 

review officer in regard to the scientific levels.” But she indicated 

that “[i]n her 17 years” in the field “she has never had that 

happen.” And she stated, “Had [Brindley] had chewing tobacco 

in his mouth, and he removed [it] 10 minutes prior to the first test, 

and they did the confirmation test 10 minutes later[,] it would 

have been gone. It would not have affected the test.” The Board 

then adjourned the hearing.

¶16 Later that day, the Board filed a brief two-sentence 

decision, indicating that it “voted by ballot to uphold the 

decision” to terminate Brindley because it “determined that

[Logan] did follow its policies and procedures properly in 

terminating” him. But it made no findings or conclusions in 

support of its decision. 

¶17 The Utah Code indicates that “[a] final action or order of 

the appeal board . . . may be reviewed by the Court of Appeals by 

filing with that court a petition for review.” Utah Code § 10-3-

1106(6)(a). Brindley now petitions us to review the Board’s 

decision.

ISSUES AND STANDARDS OF REVIEW

¶18 Brindley raises five issues on appeal. First, Brindley 

argues that the Board violated his statutory and constitutional 

due process right to confront Technician. Next, he argues that 

the Board abused its discretion and exceeded its authority in three 
Brindley v. Logan City

20220187-CA 12 2023 UT App 46

respects: by speculating that Brindley’s BAC was .017 given that 

the Board did not have testimony from Technician that the tests 

were performed correctly, by enforcing Logan’s policy that a 

“positive result” means any measurable amount of alcohol, and

by upholding his termination despite uncontroverted evidence 

that Brindley had been chewing tobacco before the test and that 

doing so could affect the reliability of the test results. Finally, he 

argues that the Board failed to make adequate findings of fact, 

rendering its decision arbitrary and capricious.

¶19 The applicable statute indicates that we perform 

our review “on the record of the appeal board” and “for 

the purpose of determining if the appeal board . . . abused 

its discretion or exceeded its authority.” Utah Code § 10-3-

1106(6)(c)(i)–(ii). “Generally, our review of administrative 

agency decisions is limited to determining whether the 

agency abused its discretion or exceeded its authority. But 

when the agency’s decision implicates due process, we review it 

for correctness.” Palmer v. St. George City Council, 2018 UT App 94, 

¶ 11, 427 P.3d 423 (cleaned up), cert. denied, 432 P.3d 1231 (Utah 

2018).

ANALYSIS

¶20 Brindley had a clear statutory right to confront the 

witnesses testifying against him, and the Board did not observe 

this right.9 Accordingly, we conclude that the Board exceeded its 

9. We need not consider Brindley’s argument that he had a 

constitutional due process right to confront witnesses because we 

are satisfied that he had a statutory right to do so and that this 

right was not observed.
Brindley v. Logan City

20220187-CA 13 2023 UT App 46

discretion, and we set aside the Board’s decision upholding 

Brindley’s termination.10

¶21 The Utah Code is clear that a municipal “employee who is 

the subject of . . . discharge, suspension, or transfer may . . . 

confront the witness whose testimony is to be considered.” Utah 

Code § 10-3-1106(4)(iii). This right is also indicated by the 

Handbook: “The employee shall be entitled to . . . confront the 

witnesses whose testimony is to be considered.” Logan City 

Employee Handbook § 8-03(1) (revised April 2018).11

Accordingly, Brindley had a right to confront the witnesses whose 

testimonies were considered by the Board. 

¶22 “It is well settled that when faced with a question of 

statutory interpretation, our primary goal is to evince the true 

intent and purpose of the legislature. The best evidence of the 

legislature’s intent is the plain language of the statute itself. . . . 

When the meaning of a statute can be discerned from its language, 

no other interpretive tools are needed.” Marion Energy, Inc. v. KFJ

Ranch P’ship, 2011 UT 50, ¶¶ 14–15, 267 P.3d 863 (cleaned up). The 

plain language of Utah Code section 10-3-1106(4)(iii) is that a 

qualifying employee has a right to stand “face-to-face” with and 

to cross-examine any adverse witnesses whose testimony the 

Board considers. See, e.g., State v. Isom, 2015 UT App 160, ¶ 48, 354 

10. Because we set aside the Board’s decision on this ground, we 

need not address the remainder of Brindley’s issues presented.

11. Brindley does not argue, and we do not decide, that the 

Handbook created a contractual right to confront witnesses. 

However, the Board voted to uphold Logan’s decision to 

terminate Brindley because it “determined that [Logan] did 

follow its policies and procedures properly in terminating” 

Brindley. The ability to confront witnesses was among Logan’s 

policies and procedures and was not followed. 
Brindley v. Logan City

20220187-CA 14 2023 UT App 46

P.3d 791, cert. denied, 364 P.3d 48 (Utah 2015);12 see also Confront, 

Black’s Law Dictionary (11th ed. 2019). Where there was no other 

opportunity for Brindley to face adverse witnesses, this can only 

mean that Brindley had a right to face adverse witnesses at the 

Board’s hearing and cross-examine them there. 

¶23 The Board heard testimony against Brindley from Safety 

Officer, Supervisor, and Lieutenant, and Brindley was able to 

question each of these individuals. However, Technician, who 

administered the tests, was not present at the hearing. Counsel for 

both parties indicated that Technician’s absence was problematic, 

and the Board also expressed frustration with Technician’s 

12. We readily acknowledge that “the Sixth Amendment right to 

confront witnesses . . . pertains only to criminal prosecutions.” 

State v. One 1980 Cadillac, 2001 UT 26, ¶ 14, 21 P.3d 212; see also Iota 

LLC v. Davco Mgmt. Co. LC, 2016 UT App 231, ¶ 66 n.17, 391 P.3d 

239. Accordingly, we do not apply this right—as deriving from 

the Sixth Amendment—here. However, we think it implausible 

that in using the phrase “confront the witness,” the legislature did 

not also intend to secure the opportunity to cross-examine each 

adverse witness face-to-face at the Board’s hearing, given that the 

common usage of “confront” related to witnesses undeniably 

expresses the opportunity to cross-examine them in person. See 

Envirocare of Utah v. Utah State Tax Comm’n, 2009 UT 1, ¶ 5, 201 

P.3d 982 (“When a term is not defined by statute, we look to its 

common usage to define it.”); see, e.g., Crawford v. Washington, 541 

U.S. 36, 68 (2004) (“Where testimonial evidence is at issue, . . . the 

Sixth Amendment demands what the common law required: 

unavailability and a prior opportunity for cross-examination.”); 

State v. Kendrick, 538 P.2d 313, 315 (Utah 1975) (“The problem has 

been before the United States Supreme Court wherein the rule has 

been laid down that the right of . . . defendant[s] to confront the 

witnesses against [them] is a fundamental right and is essential to 

a fair trial. Right of confrontation is based upon the notion that 

[those] accused should have an opportunity to cross-examine the 

witnesses against [them].”).
Brindley v. Logan City

20220187-CA 15 2023 UT App 46

absence. However, the Board admitted a statement attributed to 

Technician despite Technician not being present and available for 

cross-examination. And the Board accepted the testing form 

containing Technician’s certification and handwritten results. 

Because the Board did not permit Brindley to “confront the 

witness whose testimony [was] . . . considered,” see Utah Code 

§ 10-3-1106(4)(a)(iii), we set aside the Board’s decision. 

¶24 We are convinced that the Board not only considered 

Technician’s testimony but also relied on it in reaching its 

decision. While the Board did not explicitly state that its decision 

relied on Technician’s statement or certification,

13 Logan provided 

no evidence indicating that Brindley had any alcohol in his system

beyond the test results, so the Board must have relied on the test 

results. And the only evidence available to the Board that the tests 

were administered properly was the certification that Technician 

13. The Board did not provide any specific findings or conclusions 

related to its decision. We have stated that “without any findings 

of fact, or even a discussion on the record to support a decision, 

this court cannot perform its duty of reviewing the agency’s 

decision in accordance with established legal principles and of 

protecting the parties and the public from arbitrary and 

capricious administrative action.” Palmer v. St. George City Council, 

2018 UT App 94, ¶ 38, 427 P.3d 423 (cleaned up), cert. denied, 432 

P.3d 1231 (Utah 2018). Indeed, “the failure of an agency to make 

adequate findings of fact on material issues renders its findings 

arbitrary and capricious unless the evidence is clear, 

uncontroverted and capable of only one conclusion.” Id. ¶ 13 

(cleaned up); see also Northern Monticello All. LLC v. San Juan 

County, 2023 UT App 18, ¶ 1, 526 P.3d 829 (“[The Planning 

Commission] failed to produce written findings sufficient for 

appellate review, so its decision was unsupported by substantial 

evidence and was, therefore, arbitrary and capricious.”). 

Although we need not rest our decision on this ground, a 

significant question exists as to whether we would be required to 

set aside the Board’s decision on this basis alone.
Brindley v. Logan City

20220187-CA 16 2023 UT App 46

completed on the testing form. Supervisor testified that the

machine was calibrated correctly, but she also testified that there 

can be “inaccurate results” if the tests are not administered 

correctly. So to accept the test results as accurate and thereby 

uphold Brindley’s termination, the Board must have believed 

Technician’s testimony that the tests were administered 

accurately. But the record supports the conclusion that Brindley 

had chewing tobacco or its juices in his mouth at or soon before 

testing and that such a condition could invalidate the test. And 

even Technician’s purported statements do not verify that he 

checked Brindley’s mouth before testing, as Brindley testified 

Technician failed to do. For these reasons, we are not convinced 

that the test was administered reliably or, accordingly, that the 

Board could have rightly determined that in terminating 

Brindley, Logan abided by its policies and procedures.

¶25 But even if the Board somehow reached its conclusion 

without relying on Technician’s testimony, it erred by not 

enforcing Brindley’s statutory right and Logan’s Handbook 

policy when denying Brindley the ability to confront Technician 

even though the Board considered Technician’s testimony.14

14. Logan argues that “Brindley waived his right to confront” 

Technician “because he did not attempt to secure [Technician’s] 

presence and when offered a continuance to do so, failed to accept 

the continuance.” We disagree that Brindley was offered a 

continuance and failed to accept it. The hearing minutes indicate 

that Logan’s counsel stated that the Board could choose to 

continue the hearing to seek Technician’s presence; they do not 

indicate that Brindley was informed that he could continue the 

hearing and chose not to do so. Brindley’s counsel’s comment 

about Brindley being unemployed for over a month while 

awaiting the hearing was not a denial of an offer for a 

continuance. Accordingly, we do not accept Logan’s argument 

that Brindley waived his right to confront the witness in this way. 

(continued...)
Brindley v. Logan City

20220187-CA 17 2023 UT App 46

CONCLUSION

¶26 Brindley had a right to confront witnesses whose 

testimony was to be considered—a right that was guaranteed by 

statute and listed in Logan’s policies outlined in the Handbook. 

Because Logan offered testimonial evidence from Technician and 

Brindley was not able to confront Technician, the Board exceeded 

its discretion in upholding Brindley’s termination. Accordingly, 

we set aside the Board’s decision and direct the Board to conduct 

such further proceedings as might be appropriate, including 

perhaps a new hearing. 

Additionally, Logan argues that Brindley waived this right 

by not attempting to secure Technician’s attendance. Logan 

reasons that Brindley bore the burden of proof upon appeal to 

show that his termination was not in accordance with established 

policy, see Logan City Employee Handbook § 8-03(5) (revised 

April 2018), and that he also bore the burden of producing 

Technician. Logan fails, however, to provide any support 

whatsoever for this position. Accordingly, we conclude that this 

issue is inadequately briefed because Logan “has completely 

shifted the burden of researching . . . applicable law to the court” 

on this point. See Jacob v. Cross, 2012 UT App 190, ¶ 3, 283 P.3d 539 

(per curiam). More importantly, even if Brindley bore the burden 

of proof upon appeal, this fact would not negate his statutory 

right to confront adverse witnesses at his hearing.