2014 UT App 281

_________________________________________________________

THE UTAH COURT OF APPEALS

KIM R. BREHM,

Petitioner,

v.

DEPARTMENT OF WORKFORCE SERVICES AND STATE OF UTAH,

Respondents.

Opinion

No. 20130947-CA

Filed November 28, 2014

Original Proceeding in this Court

Lauren I. Scholnick and Rachel E. Otto, Attorneys

for Petitioner

Suzan Pixton, Attorney for Respondent

Department of Workforce Services

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in

which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.

concurred.1

GREENWOOD, Senior Judge:

¶1 Kim R. Brehm petitions for judicial review of the Workforce

Appeals Board’s (the Board) decision to deny her claim for

unemployment benefits. We do not disturb the Board’s decision.

BACKGROUND

¶2 Petitioner was employed by the judicial branch of the State

of Utah (Employer) from July 3, 1995, through June 11, 2013. Prior

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah R. Jud.

Admin. 11-201(6).
Brehm v. Department of Workforce Services

to her termination, she worked as a Senior Probation Officer in the

Third District Juvenile Court, where she had access to the court’s

juvenile tracking database referred to as “CARE.” This database is

used by authorized court personnel to access a variety of

information, including demographics, calendars, incident reports,

e-citations, case relationships, assignments, related people in

incidents, case dispositions, general accounting, case notes, orders,

minutes, documents, criticalmessages, social summaries, substance

abuse evaluations, and petitions. Most of the information stored in

CARE is not accessible by the public; however, the juvenile courts

allow access to some of these records via a different database called

“MyCase,” which includes a special section that is accessible by a

juvenile’s parents.

¶3 On May 24, 2013, Petitioner met with her supervisors to

discuss her use of the CARE database. In that meeting, she was

asked to explain why she had used CARE to repeatedly access two

of her children’s case files, the case file of one of her children’s co- 2

defendants, the files of cases assigned to another probation officer,

and the files of six other supervisors. The meeting culminated in

3

a formal request for a written explanation from Petitioner

regarding her access of these files.

¶4 Petitioner providedher explanation in a letter dated May 29,

2013. In that letter, Petitioner admitted that she had used CARE to

access her children’s case files. She explained that she had done so

in order to make sure that their fines were paid, that one of her

children’s fines had been reduced because of good grades, and that

the children had not missed any hearings. She also admitted to

2. Petitioner’s children had apparently been the subjects of juvenile

delinquency cases in the juvenile court system.

3. Although somewhat confusing, the record refers to two sets of

supervisors: Petitioner’s supervisors andsupervisors who were coworkers of Petitioner. Consistent with the record, our opinion

refers to both sets of supervisors, and we will attempt to preserve

the distinction between the two sets as clearly as possible.

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accessing the case files of the other probation officer in order to

“find out what the typical consequence was for someone who had

committed a shoplifting offense” like her child.

¶5 She then admitted that she had also accessed the file of one

of her children’s co-defendants, explaining that she had done so at

the request of the co-defendant’s father, who was an acquaintance

of hers. According to Petitioner, the father believed that a warrant

had been issued for his son’s arrest, which prompted him to

approach her for advice about what to do. Petitioner asserted that

she advised the father to contact his son’s probation officer and that

she gave him the officer’s contact information.

¶6 Finally, Petitioner also admitted that she had accessed the

case files of six co-workers because she wanted to discover whether

her supervisor was treating her differently from the other

supervisors. Specifically, Petitioner suspected that her supervisor

was giving her extra work and requiring her to perform additional

tasks in retaliation for her taking leave under the federal Family

and Medical Leave Act. See 29 U.S.C. §§ 2601 to 2654 (2012).

Accordingly, she accessed the case files of her co-workers in order

to discover whether their work assignments were the same as hers.

Throughout her letter, Petitioner argued that she was unaware of

any policy or rule that prevented this sort of access and that such

access was commonplace among probation officers. Nevertheless,

she also admitted, “I already know your response to the majority

of this letter, you are going to say that each individual [probation

officer] has a right to privacy and I respect that . . . .”

¶7 After reviewing Petitioner’s explanation, Employer issued

a written termination notice dated June 11, 2013. In that notice,

Employer gave a detailed account of Petitioner’s use of the CARE

database, as well as a number of reasons why it had concluded that

termination was appropriate. The notice stated that, according to

Employer’s information and technology department, Petitioner

accessed her children’s case files on ten different occasions between

March 28, 2013, and May 10, 2013. And although Petitioner had

claimed that she was merely looking up fines and court dates, the

access history indicated that she had also viewed otherinformation

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in her children’s files, including “demographics, calendars,

incidents, . . . reports, e-citations, case relationships, assignments,

calendar, calendar event list, related people in incidents, case

dispositions, general accounting, order account summary, notes,

orders, documents, critical messages, assessments, and PI letters.”

¶8 Petitioner’s access history of her child’s co-defendant’s file

also differed from her explanation. Although Petitioner claimed

that she had merely provided the co-defendant’s father with the

contact information of the co-defendant’s probation officer, her

access history revealed that she had accessed the file on four

different occasions and had viewed “incidents, demographics,

orders, minutes, accounting, a substance abuse evaluation, social

summaries, court reports, petitions, and case notes.” Employer

further indicated that Petitioner’s access history made it clear that

she had also accessed the files of the other probation officer and six

other supervisors.

¶9 Employer concluded that Petitioner’s access of these files

was not “for the purposes for which they were intended” and that

she “had no legitimate business reason to access the information

contained in these cases.” Employer then concluded that

Petitioner’s access of these files violated various statutes, rules, and

policies, including Utah’s Government Records Access and

Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to

-901 (LexisNexis 2011 & Supp. 2013), the Public Officers’ and

Employees’ Ethics Act, id. §§ 67-16-1 to -15, the Utah Rules of

Judicial Administration, and the policies contained in both

Employer’s Human Resources and Probation Officer Policy

manuals.After explaining each violation, Employer concluded that

“nothing in [Petitioner’s] justification . . . overcomes the enormous

weight of guidance from Statute, Rule and Policy prohibiting

employees from using personal information of others, obtained by

systems [under an employee’s] control for purposes other than

they were intended.” Accordingly, Employer terminated

Petitioner’s employment.

¶10 After her discharge, Petitioner applied for unemployment

benefits. The Department of Workforce Services (DWS) denied her

20130947-CA 4 2014 UT App 281
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claim, concluding that “she knew or should have known looking

up this information was wrong.” Petitioner appealed DWS’s

decision, and a hearing was held before an administrative law

judge (the ALJ). Employer did not participate at the hearing, but

the ALJ did take sworn testimony from Petitioner. In her decision,

the ALJ concluded that Petitioner’s testimony that she was not

aware that she was violating any rule or policy was not credible,

because “Employer prohibits accessing computer files for nonbusiness purposes.” The ALJ further concluded that “Employer

risks liabilityandpublic trust if employees access computer records

for personal reasons. The [public] expects government and court

records to be kept confidential.” Additionally, the ALJ observed

that Petitioner “knew or should have known that accessing

computer records without a legitimate business purpose or

authorization was prohibited,” because “[i]t is . . . universal

knowledge among government employees that accessing records

for personal or non-businesspurposes is prohibited.” Accordingly,

the ALJ affirmed DWS’s denial of benefits.

¶11 Petitioner then appealed the ALJ’s decision to the Board,

which affirmed the ALJ’sdecision.The Board agreed with the ALJ’s

determination that “it is not credible that [Petitioner] did not know

she could not access the files or cases of her coworkers and

supervisors,” because “it is inconceivable that any state employee

would not know that state employees cannot access private records

unless there is a legitimate business purpose for doing so.” The

Board further determined that “this was not an isolated incident”

and that the potential harm to Employer was “so egregious as to

warrant immediate discharge,” despite Petitioner’s long work

history. Petitioner now asks us to review the Board’s decision.

ISSUE AND STANDARD OF REVIEW

¶12 The central issue in this case is whether the Board acted

properly when it determined that Petitioner was ineligible for

unemployment benefits because Employer had just cause for

discharging her. “Whether an employee is terminated for just cause

is a mixed question of law and fact.” Southeastern Utah Ass'n of Local

20130947-CA 5 2014 UT App 281
Brehm v. Department of Workforce Services

Gov’ts v. Workforce Appeals Bd., 2007 UT App 20, ¶ 6, 155 P.3d 932

(citation and internal quotation marks omitted). Nevertheless,

“[d]ue to the fact-intensive inquiry involved at the agency level,”

cases involving unemployment benefits do “not lend [themselves]

to consistent resolution by a uniform body of appellate precedent.”

Carbon County v. Workforce Appeals Bd., 2013 UT 41, ¶ 7, 308 P.3d

477. Therefore, these cases are more “fact-like” than “law-like,” see

id.; In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382

(explaining this distinction in cases dealing with mixed questions

of law and fact), and the Board’s decision to award or deny

unemployment benefits is entitled to deference, see Carbon County,

2013 UT 41, ¶ 7. Accordingly, within the context of unemployment

benefits, “we will not disturb the Board’s application of law to its

factual findings unless its determination exceeds the bounds of

reasonableness and rationality.” Johnson v. Department of Emp’t Sec.,

782 P.2d 965, 968 (Utah Ct. App. 1989).

ANALYSIS

¶13 Petitioner argues that because she did not violate any of the

statutes, rules, or policies cited by Employer and because she did

not violate a reasonable employment rule or a universal standard

of conduct, the Board wrongly denied her claim for unemployment

benefits. In the alternative, she argues that even if she did violate

any of those rules or standards, Employer failed to show that she

did so knowingly or with the degree of culpability required by

Utah law. For the reasons stated below, we reject these arguments

and uphold the Board’s denial of unemployment benefits. 

I. The Standard for Denying Unemployment Benefits Under the

Utah Administrative Code Differs from Petitioner’s Description.

¶14 Petitioner asserts that because Employer did not meet the

requirements of rule R994-405-208(1) of the Utah Administrative

Code, the Board erred in denying her unemployment claim. That

section provides that “[i]f a claimant violates a reasonable

employment rule and just cause is established, benefits will be

denied.” Utah Admin. Code R994-405-208(1) (emphasis added).

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Petitioner argues that her unemployment claim should have been

granted because Employer failed to prove a violation of a

“reasonable employment rule.” We disagree.

¶15 Petitioner’s reliance onruleR994-405-208(1)is misplaced. As

its caption indicates, rule R994-405-208 merely provides “examples

of reasons for discharge.” Id. It does not, however, describe the

only reasons for a “discharge.” In fact, rule R994-405-208 expressly

incorporates other sections of the rule—namely, sections 201 and

202—when it states, “In the following examples, the basic elements

of just cause must be considered in determining eligibility for

benefits.” Id. (emphasis added). Accordingly, we look to sections

201 and 202 of rule R994-405—not section 208—in order to

understand what an employer is required to show before a claim

for unemployment benefits can be properly denied. See id. R994-

405-203 (stating that an employer bears the burden of proving just

cause).

¶16 Our case law is in accord with this approach in determining

whether unemployment benefits are warranted. Our cases have

consistently looked to sections 201 and 202 of rule R994-405 to

determine what an employer must prove before DWS is justified in

denying a claim for unemployment benefits. See, e.g., Spencer Law

Office, LLC v. Department of Workforce Servs., 2013 UT App 138, ¶ 4,

302 P.3d 1257; Peyton v. Department of Workforce Servs., 2013 UT App

130, ¶ 3, 302 P.3d 1255; Dinger v. Department of Workforce Servs.,

2013 UT App 59, ¶ 15, 300 P.3d 313; Nicol v. Department of Workforce

Servs., 2012 UT App 360, ¶ 3, 293 P.3d 1101; Provo City v.

Department of Workforce Servs., 2012 UT App 228, ¶ 6, 286 P.3d 936.

We are unaware of—and Petitioner does not provide a citation

to—any Utah case where the standard for denying unemployment

benefits was derived directly from rule R994-405-208. Accordingly,

we analyze this case under the standards set forth in sections 201

and 202, not section 208.

¶17 Under rule R994-405-201, in order to properly deny

unemployment benefits, the claimant must have been discharged

for “just cause.” See Utah Admin. Code R994-405-201; see also

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Spencer Law Office, 2013 UT App 138, ¶ 4. To show “just cause,” the

employer must prove three elements: culpability, knowledge, and

control. Utah Admin. Code R994-405-202 (setting forth definitions

of culpability, knowledge, and control); id. R994-405-203 (placing

burden of proof on the employer); see also Spencer Law Office, 2013

UT App 138, ¶ 4.

¶18 Given the foregoing, Petitioner’s argument that it was

necessary for the Board to first determine whether she had violated

a specific statute, rule, policy, or universal standard of conduct

before denying her claim for unemployment benefits is mistaken.

Under sections 201 and 202 of rule R994-405, the Board’s task was

to assess whether there was “just cause” for Petitioner’s discharge,

which entailed determining whether Employer had shown

culpability, knowledge, and control. The majority of the Board

concluded that each of these elements had been adequately shown

and, consequently, denied Petitioner’s claim. We therefore do not

focus on Petitioner’s arguments about specific violations but

instead review the Board’s assessment of each of the elements of

“just cause.”

II. The Board Did Not Err in Its Conclusion that Employer Had

Adequately Shown “Just Cause” for Petitioner’s Discharge.

¶19 Petitioner argues that because Employer did not adequately

show culpability or knowledge, it failed to establish just cause and

the Board accordingly erred in denying her claim. We disagree.

A. The Board’s Conclusion that the Severity of Petitioner’s

Actions Outweighed Her Work History Was Not

Unreasonable or Irrational.

¶20 In order to demonstrate culpability, the employer must

show the following:

The conduct causing the discharge must be so serious

that continuing the employment relationship would

jeopardize the employer’s rightful interest. If the

conduct was an isolated incident of poor judgment

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and there was no expectation it would be continued

or repeated, potential harm may not be shown. The

claimant’s prior work record is an important factor in

determining whether the conduct was an isolated

incident or a good faith error in judgment. An

employer might not be able to demonstrate that a

single violation, even though harmful, would be

repeated by a long-term employee with an

established pattern of complying withthe employer’s

rules. In this instance, depending on the seriousness

of the conduct, it may not be necessary for the

employer to discharge the claimant to avoid future

harm.

Utah Admin. Code R994-405-202(1). Petitioner argues that it was

error for the Board to conclude that her work history—containing

only isolated incidents of discipline, none of which related to

accessing private files for personal reasons—did not outweigh the

severity of her actions. Employer responds by arguing that it was

neither unreasonable nor irrational for the Board to conclude that

the severity of Petitioner’s actions was such that termination was

necessary in order to protect its “rightful interests.”

¶21 In Kehl v. Board of Review of the Industrial Commission, 700

P.2d 1129 (Utah 1985), an employee was terminated after failing to

follow her employer’s safety policies and procedures for

transporting explosives across a set of railroad tracks. Id. at

1131–32. Although the employee’s termination was based upon a

single instance of misconduct, the Utah Supreme Court ultimately

concluded that the employer had adequately shown culpability. Id.

at 1134. Specifically, the court observed that “a single violation of

a safety rule may be sufficient to show that the potential harm to

the employer’s interests warranted discharge.” Id. It also

emphasized that the analysis of culpability should not focus “upon

the number of violations” but rather upon the “problem of whether

the discharge was necessary to avoid actual or potential harm to

the employer’s rightfulinterest.” Id.(citation and internal quotation

marks omitted).

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¶22 In this case, the Board determined that despite Petitioner’s

generally favorable work history, her conduct was “so egregious

as to warrant immediate discharge.” This is so because, according

to both the Board and the ALJ, Employer had a rightful interest in

preserving the public trust and avoiding any liability that might

ensue if court employees accessed private files for personal

reasons.

¶23 The United States Supreme Court has observed that the

power of the judicial branch lies “in its legitimacy, [which is] a

product of substance and perception that shows itself in the

people’s acceptance of the Judiciary as fit to determine what the

Nation’s law means and to declare what it demands.” Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865 (1992). We believe

that this is especially true with respect to our juvenile courts, which

aspire to “act in the best interests of the minor in all cases and

preserve and strengthen family ties,” while acting “consistent with

the ends of justice.” Utah Code Ann. § 78A-6-102(5)(g) (LexisNexis

2012). As an employer, therefore, the state judiciary has a “rightful

interest” in preserving a legitimate, positive public perception of

the judiciary by demanding that judges and judicial employees

conduct themselves with the highest levels of integrity.

¶24 Consonant with this goal, the judiciary has adopted rules

similar to GRAMA regarding court records, exhibits, and files. See

Utah R. Jud. Admin. 4-202. In fact, portions of these rules

specifically address juvenile court records and restrict access to

juvenile court “social” and “legal” records. Id. R. 4-202.02(6)–(7), 

-202.03(5)–(6) (classifying certain records as juvenile “social” or

“legal” records and restricting access to them). Specifically, rule 4-

202.03 of the Utah Rules of Judicial Administration permits court

personnel to access court records “only to achieve the purpose for

which the record was submitted.” Id. R. 4-202.03. And finally, as

pointed out by Employer, there are also policies in place governing

the conduct of juvenile probation officers that encourage them to

“observe high standards of conduct so that the Judiciary is

preserved, and public confidence [in] the judiciary is promoted.”

Thus, it cannot be disputed that Petitioner’s accessing CARE

records for purposes outside of her employment responsibilities

20130947-CA 10 2014 UT App 281
Brehm v. Department of Workforce Services

was inconsistent with rules and policies restricting such access and

designed to ensure confidentiality.

¶25 In light of the foregoing, the ALJ correctly observed that

“[t]he public expects government and court records to be kept

confidential” and that “Employer risks liability and [loss of] public

trust if employees access computer records for personal reasons.”

We also defer to the Board’s finding that given the presence of the

statutes, rules, and policies discussed above, it is inconceivable that

any state employee—much less an employee with over eighteen

years of experience as a public servant within the judicial

branch—would not realize that accessing confidential case files for

personal reasons violates the public’s trust and ultimately serves to

undermine the legitimacy of the judiciary. Accordingly, it was

neither unreasonable nor irrational for the Board to conclude that

despite her favorable work history, Petitioner’s actions were “so

egregious as to warrant immediate discharge.” Indeed, even

though Petitioner may have been able to access some of the same

information through the parental section of the MyCase website, it

is clear that most of the information she accessed—including the

substance abuse evaluation of her child’s co-defendant and the files

of another probation officer andher co-workers—was not available

to other parents through MyCase and that accessing them was

therefore a serious violation. Thus, the Board’s determination that

Employer adequately demonstrated culpability was both rational

and reasonable.

B. It Was Not Error for the Board To Conclude that Petitioner

Knew that Her Conduct Was Unacceptable.

¶26 Petitioner also argues that the Board erred in concluding

that Employer had adequately met the “knowledge” requirement

of just cause. Specifically, she argues that she never received any

training or written policies regarding the use of the CARE database

and that Employer never issued a warning regarding her conduct.

As noted above, however, the Board concluded that “it is

inconceivable that any state employee would not know that state

employees cannot access private records unless there is a legitimate

business purpose for doing so.”

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¶27 In order to show “knowledge,” an employer must show that

the employee “had knowledge of the conduct the employer

expected.” Utah Admin. Code R994-405-202(2). In this case,

Petitioner’s own admissions show that she knew that the files of the

other supervisors she was accessing were private and that those

supervisors were entitled to a “right to privacy.” In her letter dated

May 29, 2013, she stated, “I already know your response to the

majority of this letter, you are going to say that each individual

[probation officer] has a right to privacy and I respect that . . . .”

This admission is sufficient to establish knowledge because it

shows that Petitioner knew that both Employer and the other

supervisors expected these files to remain private. This conclusion

is further buttressed by the observations made in the prior section

of this opinion regarding the near-universal knowledge among

both government employees and the public at large that many

government records—and particularly many juvenile court

records—are confidential, that accessing them for non-business

purposes is prohibited, and that such access can lead to serious

consequences. Accordingly, it was neither irrational nor

unreasonable for the Board to conclude that Employer had

adequately proven the “knowledge” element of just cause.

CONCLUSION

¶28 The Board did not err by failing to first determine whether

Petitioner had violated a specific statute, policy, rule, or universal

standard of conduct. Rather, it correctly applied the “just cause”

standard for denying unemployment benefits, and its analysis of

the elements of that standard do not depart from the “bounds of

reasonableness andrationality.”Accordingly, we decline to disturb

the Board’s denial of Petitioner’s claim.

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