Opinion
Case No. 20070863-CA.
Filed June 5, 2008. Not For Official Publication
Appeal from the Original Proceeding in this Court.
Elizabeth T. Dunning, Salt Lake City, for Petitioner.
W. Mark Gavre and Susan E. Baird, Salt Lake City, for Respondent.
Before Judges Billings, Davis, and McHugh.
MEMORANDUM DECISION
This matter is before the court on its own motion for summary disposition based upon lack of jurisdiction due to the absence of a final, appealable order.
Utah Code section 10-3-1106(6) states that "[a] final action or order of the appeal board may be appealed to the Court of Appeals by filing with that court a notice of appeal." Utah Code Ann. § 10-3-1106(6)(a) (2007). As such, this court only has jurisdiction over final actions of the appeals board. In this case the appeals board for Salt Lake City never issued a formal decision concerning the merits of Jodi Howick's case.
After being terminated, Howick filed a Notice of Appeal before Salt Lake City Employee Appeals Board. Shortly thereafter, the Labor Relations Officer for Salt Lake City responded that the appeals board could not hear her appeal because it did not have jurisdiction to review the termination of appointed or at-will employees. Further, the letter indicated that the appeal would not be forwarded to the Salt Lake City Appeals Board for that reason. Thus, the Salt Lake City Appeals Board never held any hearing, nor did it issue any order. This court has previously determined that it lacks jurisdiction to review decisions not to hold adjudicative proceedings. See Nielson v. Division of Peace Officer Standards Training, Dep't of Pub. Safety, 851 P.2d 1201, 1205 (Utah Ct.App. 1993) (concluding that this court did not have jurisdiction to review a decision not to hold a decertification hearing). Therefore, because there was no adjudicative proceeding or any final action upon which an appeal could be based, this court lacks jurisdiction to review this matter. See Utah Code Ann. § 10-3-1106(6)(a). When a court lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989).
Accordingly, we dismiss the appeal.
This decision should not be construed as foreclosing other potentially available avenues of redress, including a petition for an extraordinary writ seeking an order mandating that the Salt Lake City Appeals Board issue a final agency decision on its own jurisdiction. Salt Lake City's Employee Appeals Board procedures nowhere permit the City's Labor Relations Officer to issue final decisions regarding the Board's jurisdiction. Rather, those procedures allow the Board to request an opinion from the City Attorney regarding questions of whether an employee is within the class of persons who may appeal. See Salt Lake City Employee Board Procedures, III(G). Salt Lake City's method of dealing with Howick's notice of appeal circumvents judicial review of the decision regarding the Board's jurisdiction by substituting a letter from the Labor Relations Officer for a final administrative decision of the Board.
Judith M. Billings, Judge, James Z. Davis, Judge, Carolyn B. McHugh, Judge.