                IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 8

                                                          OCTOBER TERM, A.D. 2014

                                                                  January 12, 2015

PAULA SABATKA,

Appellant
(Petitioner),

v.
                                                     S-14-0062
BOARD OF TRUSTEES OF THE
FREMONT COUNTY PUBLIC
LIBRARY SYSTEM,

Appellee
(Respondent).


                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge

Representing Appellant:
      Gay Woodhouse of Woodhouse Roden Nethercott, LLC, Cheyenne, Wyoming;
      Mark Wingerson, Law Offices of Mark R. Wingerson, Brooklyn, New York

Representing Appellee:
      No brief filed.


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Paula Sabatka was the manager of the Dubois branch of the Fremont
County Library System (FCLS). Believing that she was authorized to do so, she used an
FCLS account to order books for the Dubois school system, which then repaid FCLS for
them. Unfortunately, this good deed did not go unpunished. Based upon a misreading of
Wyo. Stat. Ann. § 9-13-105 (LexisNexis 2013) by FCLS counsel, the FCLS executive
director fired Appellant, believing that she had violated the statute and committed a
misdemeanor by buying the books as she did. Appellant requested a grievance hearing,
and the FCLS Board of Trustees (Board) upheld the executive director’s action.
Appellant filed a petition for review with the district court, which affirmed because
Appellant’s employment was at-will.

[¶2] While Appellant presents several issues on appeal, the inescapable and controlling
verity is that her employment was at-will. We must affirm.

                                       ISSUE

[¶3] The dispositive question in this matter is one that is controlled by Appellant’s
employment status; for that reason, we restate the decisive issue as follows:

             Must the decision to terminate Appellant, who was an at-will
             employee, be overturned because the basis for that decision
             was an erroneous belief that she violated a statute while
             working as the Dubois branch manager of FCLS?

                                       FACTS

[¶4] Appellant was the manager of the Dubois Branch of the FCLS for about six years.
In the years leading up to her termination, the Dubois school system was beset by
declining enrollments and reduced funding. For budgetary reasons, it eliminated some
positions, including that of a part-time librarian who maintained the Dubois School
District’s (District) libraries.

[¶5] Needing help, the District negotiated with the FCLS in hopes that a Memorandum
of Understanding (MOU) could be reached. It sought an agreement which would
formally permit the staff of the FCLS branch to help the Dubois schools maintain their
libraries, including acquiring additional books which would benefit students. Although
an MOU was drafted, it was never executed.

[¶6] There may arguably have been an informal agreement allowing the FCLS to assist
the District in acquiring books for its libraries. The District’s superintendent, for
instance, adamantly maintained that there was such an agreement because he and the


                                           1
FCLS executive director, Matt Nojonen, met face-to-face and shook hands on it. Based
upon what she learned of the discussions between the FCLS executive director and
District superintendent, Appellant also believed that she was authorized to buy books for
the District. However, the executive director did not believe there was any such informal
agreement between the FCLS and the District.

[¶7] In early November of 2012, Appellant, believing she was authorized to do so,
utilized an FCLS account to place two orders for books for the District.1 The total cost
was $544.00, which the District repaid to the FCLS. The District superintendent
explained during the grievance hearing that “we made that very clear” that the District
would reimburse FCLS for the books.

[¶8] On November 7, 2012, Appellant told the FCLS business manager about the book
orders, explaining that the District would reimburse FCLS when she received the
invoices and presented them to it. The business manager relayed this information to the
FCLS executive director. Evidently suspecting wrongdoing, the executive director
contacted a deputy in the office of the County and Prosecuting Attorney. The deputy
county attorney advised him that Appellant had committed a crime under Wyo. Stat. Ann.
§ 9-13-105 when she purchased the books, and that he would therefore be justified in
terminating her employment.2

1
  The FCLS maintains an account with the State Library through which it purchases books from the
company of Baker & Taylor. The District also has an account with the State Library which it uses to
purchase books from the same company.
2
  Wyo. Stat. Ann. § 9-13-105 provides that “[a] public official, public member or public employee shall
not use public funds, time, personnel, facilities or equipment for his private benefit or that of another
unless the use is authorized by law.” A “public employee” means:

                (A) The attorney general and the director of any department of the
                executive branch appointed by the governor under W.S. 9-2-1706, or the
                director of any legislative agency;
                (B) The chief executive officer of any separate operating agency under
                W.S. 9-2-1704(d), except those listed in paragraphs (d)(vi) and (x) of that
                section;
                (C) To the extent the incumbent in the position serves at the pleasure of
                persons listed in subparagraphs (A) and (B) of this section,
                administrators of department or agency divisions, and deputy directors of
                departments;
                (D) Commissioners of the public service commission and members of
                the state board of equalization;
                (E) Deputies and administrators of divisions within the offices of state
                elected officials under W.S. 9-2-1704(a). The positions, in the governor’s
                office, of chief of staff, attorney for intergovernmental affairs and chief
                of policy are included within this subparagraph.

Wyo. Stat. Ann. § 9-13-102(a)(xii). A violation of this section is a misdemeanor, and provides “sufficient
cause for termination of a public employee’s employment . . . .” Wyo. Stat. Ann. § 9-13-109(a) and (b).


                                                     2
[¶9] The next day, on November 8, 2012, the executive director traveled to Dubois and
informed Appellant that she was terminated because she used FCLS funds to purchase
books for the District. A letter of termination stated:

               You have used the library’s account with Baker and Taylor to
               order materials for the Dubois school district. That action
               was unauthorized and is a violation of Wyoming Statute 9-13-
               105.

               Your position as Branch Manager is terminated effective
               immediately.

Appellant requested a grievance hearing before the Board, as permitted by the grievance
procedures set forth in the FCLS Organizational & Personnel Policies adopted February
7, 2007 and revised October 3, 2012 (FCLS Policies).

[¶10] The FCLS Board held a special meeting at which the grievance hearing was held
in executive session at the Lander library. The Board engaged an “examiner” (who was
an attorney) to conduct the hearing, and the parties were represented by “advocates”
under this policy (in this case, the advocates were also attorneys). Evidence was
presented in a fashion similar to that called for in contested cases by the Wyoming
Administrative Procedures Act.3

[¶11] The Board upheld the termination based upon an erroneous belief that Appellant
had in fact violated Wyo. Stat. Ann. § 9-13-105. Its order denied Appellant reinstatement
as the FCLS manager of the Dubois Branch, concluding:

               2.      Having found that Mrs. Sabatka violated the
               provisions of Wyo. Stat. § 9-13-105, (1977) as amended, the
               Board concludes that Mrs. Sabatka, as a terminated employee
               filing a grievance pursuant to the Grievance Policy set out in
               the Fremont County Library System Organizational and
               Personnel Policies, adopted February 7, 2007 and Revised
               May 2, 2012 (“Policies”) as well as the Grievance Procedure
               set out in the Fremont County Library System Library
               Procedures and Manager’s Handbook, Revised 2011
               (“Procedures”), had the burden of proof at the time of hearing


3
 The Board’s order noted that “[t]he hearing in executive session was conducted in accord with the
Policies and Procedures of the FCLS, and further in accord with Wyoming Law including the
Administrative Procedures Act, Wyo. Stat. §§ 16-3-101 and 107-112 . . . .”


                                                 3
                to establish that Mr. Nojonen’s decision to terminate her
                employment was not justified under the circumstances. . . .[4]

                                               .   .    .

                4.     The Board concludes that Mrs. Sabatka was an “at-
                will” employee of the FCLS as the Policies contained a
                disclaimer to that effect at the top of page 2. As such Mr.
                Nojonen could have terminated Mrs. Sabatka at any time for
                any reason he found sufficient. By the same token Mrs.
                Sabatka could terminate her employment without notice if she
                saw fit. “In an at-will employment relationship, either the
                employer or the employee may terminate the relationship at
                any time, for any reason or for no reason at all.” Kuhl v.
                Wells Fargo Bank, N.A., 2012 WY 85, 281 P.3d 716, 721
                (Wyo. 2012)[.]

                5.     The Board concludes that neither the Grievance Policy
                nor Procedure for hearing such a grievance negates the effect
                of the disclaimer on page 2 of the Policies. . . . Thus the
                decision of Mr. Nojonen to terminate Mrs. Sabatka was in
                accord with her status as an “at-will” employee of the Library
                System absent some extenuating circumstance which is
                established by a preponderance of the evidence that
                termination was not justified.

                6.     The Board concludes as a matter of law that Mrs.
                Sabatka has failed to prove by a preponderance of the
                evidence that Mr. Nojonen’s decision to terminate her was
                not justified. Mrs. Sabatka in purchasing the books for the
                school district clearly violated a state law Wyo. Stat. § 9-13-
                105, (1977) as amended. The statute was adopted to protect
                the expenditure of the public monies by those entities to
                which it has been allocated.

The decision was therefore held to be justified not only because the Board believed
Appellant had committed a crime, but also because she was an at-will employee.

[¶12] Appellant then sought review in the district court. At this stage of the
proceedings, however, the Board—represented by the same deputy county attorney—

4
 We do not necessarily agree that in a contested case the burden of proof should be so allocated, but we
do not reach that issue for reasons explained below.


                                                    4
completely changed its tune. In its briefing in the district court, the Board conceded that
§§ 9-13-105 and 9-13-102 “clearly” did not apply to Appellant. This is so because
Appellant did not receive a private benefit as required by § 105, and she does not fit the
definition of “public employee” under § 102. The district court highlighted this
concession, but nevertheless determined in its Order Affirming Agency Action

             that the incorrect statutory reference was indeed utilized in
             [Appellant’s] termination notice and in the hearing.
             However, that does not change her position as an “at-will”
             employee who may be terminated ay any time with or without
             cause. The fact that the FCLS Policy Manual provides for a
             Grievance Procedure and that procedure was provided does
             not change her employment status. . . .

Appellant timely perfected this appeal.

                              STANDARD OF REVIEW

[¶13] Our standard of review regarding agency action has been plainly set forth many
times:

                    We accord no deference to a district court decision
             reviewing an administrative agency order. Instead, we review
             the case as if it came directly from the administrative agency.
             Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) . . .

                           (c) To the extent necessary to make a decision
                    and when presented, the reviewing court shall decide
                    all relevant questions of law, interpret constitutional
                    and statutory provisions, and determine the meaning or
                    applicability of the terms of an agency action. In
                    making the following determinations, the court shall
                    review the whole record or those parts of it cited by a
                    party and due account shall be taken of the rule of
                    prejudicial error. The reviewing court shall:

                           (i) Compel agency action unlawfully withheld
                    or unreasonably delayed; and
                           (ii) Hold unlawful and set aside agency action,
                    findings and conclusions found to be:
                           (A) Arbitrary, capricious, an abuse of discretion
                    or otherwise not in accordance with law;



                                             5
                           (B) Contrary to constitutional right, power,
                    privilege or immunity;
                           (C) In excess of statutory jurisdiction, authority
                    or limitations or lacking statutory right;
                           (D) Without observance of procedure required
                    by law; or
                           (E) Unsupported by substantial evidence in a
                    case reviewed on the record of an agency hearing
                    provided by statute.

                    Where both parties present evidence at an
             administrative hearing, we review the entire record to
             determine if the agency findings are supported by substantial
             evidence. Substantial evidence is relevant evidence that a
             reasonable mind might accept as adequate to support a
             conclusion. Phrased another way, findings of fact are
             supported by substantial evidence if, from the evidence
             preserved in the record, we can conclude a reasonable mind
             might accept the evidence as adequate to support the agency
             findings. We review the agency’s conclusions of law de
             novo.

Batten v. Wyoming Dep’t of Transp. Drivers’ License Div., 2007 WY 173, ¶¶ 6-7, 170
P.3d 1236, 1239-40 (Wyo. 2007) (internal citations and quotation marks omitted).

                                     DISCUSSION

[¶14] Having carefully reviewed the entire record, we are convinced that the Board and
district court correctly determined that Appellant was an at-will employee. The FCLS
Policies contains several disclaimers explaining that Appellant’s employment was at-will,
including the following:

             At-Will Employment Statement

             Your employment with the Fremont County Library System
             is a voluntary one and is subject to termination by you or the
             Fremont County Library System at will, with or without
             cause, and with or without notice, at any time. Nothing in
             these policies shall be interpreted to be in conflict with or
             eliminate or modify in any way the employment at-will status
             of Fremont County Library System employees.




                                            6
             The policy of employment at-will may not be modified by
             any officer or employee and shall not be modified in any
             publication or document. The only exception to this policy is
             a written employment agreement approved at the discretion of
             the Fremont County Library System Board of Directors.

Appellant did not have a written employment agreement approved by the Board, and she
does not contend that there was any other basis to change her at-will status to that of an
employee terminable for cause.

[¶15] Nevertheless, Appellant raises several arguments based upon the Board’s Order
and how the grievance hearing was conducted. She also claims the district court erred
when it wrote that the Board found that she was terminated for taking an action she was
not authorized to take. However, our review is limited because when employment is at-
will, “either the employer or the employee may terminate the relationship at any time, for
any reason or for no reason at all.” Finch v. Farmers Co-op. Oil Co. of Sheridan, 2005
WY 41, ¶ 10, 109 P.3d 537, 541 (Wyo. 2005).

[¶16] We can succinctly dismiss Appellant’s assertions based upon her employment
status. She was an at-will employee who was provided a grievance hearing permitted by
the FCLS policy. She was not an employee whose express or implied contract required
cause for termination; if she had been, there would have been a property interest in
continued employment and the fundamental requirements of due process notice and a
meaningful opportunity to be heard would have to have been provided. See Lucero v.
Mathews, 901 P.2d 1115, 1120 (Wyo. 1995). Because she had no such interest, she had
no right to a contested case hearing, which is required only when “legal rights, duties or
privileges of a party are required by law to be determined by an agency after an
opportunity for hearing . . . .” Wyo. Stat. Ann. § 16-3-101(b)(ii) (LexisNexis 2013).

[¶17] The Board and the examiner conducted the grievance hearing as if it were hearing
a contested case. The fact that she received a contested case-style hearing did not change
Appellant’s at-will employment to require cause for termination. The Board could have
exercised its general authority to rehire Appellant regardless of how the grievance was
heard, but it did not do so. The Board correctly concluded that Appellant was an at-will
employee, and it therefore acted lawfully in declining to set aside her termination. See
e.g., Erwin v. State, Dep’t of Family Servs., 2010 WY 117, ¶ 9, 237 P.3d 409, 412 (Wyo.
2010) (this Court may affirm a decision on any proper legal grounds supported by the
record).

[¶18] Perhaps unfortunately in this case, “[t]he at-will employment rule offers no
remedy to an employee who has been arbitrarily or improperly discharged and has
suffered adverse effects on his or her economic and social status regardless of how



                                             7
devastating those effects actually were.”5 Townsend v. Living Centers Rocky Mtn., Inc.,
947 P.2d 1297, 1299 (Wyo. 1997).

[¶19] Affirmed.




5
  This is an appeal from an administrative decision, and the scope of our review is narrow. At-will
employees may of course have other statutory remedies which are not implicated in this appeal, including
but not limited to protections against various forms of specific discrimination under the Wyoming Fair
Employment Practices Act (Wyo. Stat. Ann. § 27-9-101 et seq.), the Equal Employment Opportunity Act
(42 U.S.C. § 2000e et seq.), the Americans With Disabilities Act (42 U.S.C. § 12181 et seq.), the Age
Discrimination in Employment Act (29 U.S.C. § 621 et seq.), and the Family and Medical Leave Act (29
U.S.C. § 2601). Citizens’ constitutional liberty interests in their status and reputations may also be
protected from deprivation without due process under certain limited circumstances under 42 U.S.C. §
1983. See, e.g., Dee v. Borough of Dunmore, 549 F.3d 225, 234 (3d Cir. 2008); Paul v. Davis, 424 U.S.
693, 701-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Certain common law torts have also been
recognized in the employment context, including breach of an implied covenant of good faith and fair
dealing, intentional infliction of emotional distress, and retaliatory termination in violation of public
policy. Hoff v. City of Casper-Natrona County Health Dept., 2001 WY 97, ¶ 18, 33 P.3d 99, 103 (Wyo.
2001). A government employee’s ability to pursue some of these state law claims may be limited by the
immunities conferred by the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-101 et seq. In
any event, no such claims are raised in this review of administrative agency action.



                                                    8
