Opinion
Case No. 20011009-CA.
Filed October 3, 2002. (Not For Official Publication)
Original Proceeding in this Court.
Jeff C. Herring and Phillip W. Dyer, Salt Lake City, for Petitioner.
Lorin R. Blauer and Judith D. Wolferts, Salt Lake City, for Respondent.
Before Judges Davis, Orme, and Thorne.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).
The applicable statute provides that a claimant is ineligible for benefits if "discharged for just cause . . . if so found by the division." Utah Code Ann. § 35A-4-405(2)(a) (2001). This statutory language contains an "explicit grant of discretion to the [Department of Workforce Services] to apply the statute." Albertsons, Inc. v. Department of Employment Sec., 854 P.2d 570, 573 (Utah Ct.App. 1993) (interpreting former Utah Code Ann. § 35-4-5(b)(1) (Supp. 1992), which was worded almost identically to current § 35A-4-405(2)(a)). Therefore, "just cause" determinations are reviewed under Utah Code Ann. § 63-46b-16(4)(h)(i) for reasonableness. See id.
The elements for a "just cause" termination are satisfied in this case. See Utah Admin. Code R994-405-202 (2002); Nelson v. Department of Employment Sec., 801 P.2d 158, 161 (Utah Ct.App. 1990). The Board found that Petitioner sent software, which he helped develop, directly to an outside client in violation of company policy and his confidentiality agreement. In addition, the Board found that Petitioner knew about his employer's policy because the company president had multiple discussions with Petitioner in which he counseled Petitioner "about the need to adhere to company policy about providing personal services to the government which would be in violation of the contract, and about safeguarding materials developed while the [Petitioner] was employed by the employer."
Although Petitioner disputes the Board's findings, Petitioner has failed to marshal the evidence that supports the findings — a prerequisite to challenging factual findings on appeal. See Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct.App. 1989). "Therefore, we accept the Board's finding[s] as conclusive." Nelson v. Department of Employment Sec., 801 P.2d 158, 161 (Utah Ct.App. 1990).
Given the Board's findings, we cannot say that its determination of just cause was not "reasonable and rationale." Bhatia v. Department of Employment Sec., 834 P.2d 574, 577 (Utah Ct.App. 1992). Therefore, the Board's determination that Petitioner was terminated for just cause is affirmed.
Given that it was Petitioner's responsibility to ensure the availability of his witnesses, Petitioner's due process rights were not violated by Mr. Berry's absence. Although it is questionable whether Petitioner actually intended to leave Mr. Buss's testimony to the administrative law judge's discretion, Petitioner was not "`substantially prejudiced'" by Buss's failure to testify. Krantz v. Utah Dep't of Commerce, 856 P.2d 369, 370 (Utah Ct.App. 1993) (quoting Utah Code Ann. § 63-46b-16(4)(e) (1989)). According to Petitioner, Buss was prepared to testify about Petitioner's ability to find other employment. However, Petitioner's ability to obtain other employment is irrelevant to a "just cause" determination. See Utah Admin. Code R994-405-202 (2002).
We are also unable to say that Petitioner was substantially prejudiced by the absence from the record of the e-mail referring to Mr. Groombridge. The e-mail was strongly contradicted by other evidence. For example, Petitioner testified at the hearing that the software was a product of his "personal ideas and development." In addition, Petitioner asked Groombridge "to include his name in the title of the program as a co-developer."
Affirmed.
WE CONCUR: James Z. Davis, Judge, and William A. Thorne Jr., Judge.