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Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
Cooper. Chief Hinman voluntarily removed himself from serving on the committee because of the recent grievance filed by Cassidy and told Berry that he would affirm any recommendation made by the committee. After the interviews, the committee unanimously recommended retaining Cooper as captain and promoting Painter to captain. Chief Hinman affirmed those recommendations.
In response to Cassidy's grievance concerning the interview process, the Council conducted an administrative hearing on January 28, 1993, but refused to consider the grievance because it believed it had no jurisdiction in matters of hiring and promotion. Cassidy appealed that decision to the Third District Court. Judge Timothy R. Hanson ruled the Council did have jurisdiction and ordered the Council to hear Cassidy's grievance. On April 11, 1995, the Council exercised its jurisdiction, ruling that Fire Chief Hinman did not violate Cassidy's First Amendment rights and affirming the fire chief's decision that other candidates were more qualified than Cassidy.
Cassidy appealed the Council's ruling to the Third District Court on May 11, 1995, arguing that (1) his First Amendment and due process rights were violated, (2) the fire department violated Utah law by improperly promoting other candidates, and (3) the fire department had retaliated against him for exercising his constitutional rights. The court limited its review to the record before the Council and entered judgment for the Council. Cassidy now appeals, arguing the trial court erred by not ruling that he suffered an adverse employment action by the department's failure to promote him, his complaints were protected speech, and the department illegally refused to promote him in violation of his First Amendment free speech rights. The Council responds that Cassidy's action must be dismissed because he failed to join the fire chief as a necessary and indispensable party. The Council also argues Cassidy failed to marshal the evidence supporting the trial court's findings and denies any violation of Cassidy's First Amendment rights.
ANALYSIS
I. Necessary and Indispensable Party
We first address the Council's argument, raised for the first time on appeal, that Chief Hinman is a necessary and indispensable party to this action. Generally, we will not consider issues not preserved in the trial court absent plain error or exceptional circumstances. See State v. Schweitzer, 943 P.2d 649, 654 n.3 (Utah Ct. App. 1997). Nevertheless, a party may raise the issue of failure to join an indispensable party at any time in the proceedings, including for the first time on appeal. See Seftel v. Capital City Bank, 767 P.2d 941, 944 (Utah Ct. App. 1989), aff'd sub nom. Landes v. Capital City Bank, 795 P.2d 1127 (Utah 1990). We therefore address the merits of the Council's argument.
Rule 19 of the Utah Rules of Civil Procedure governs the compulsory joinder of parties to an action. Under the Rule's scheme, a person should be joined as a party if "in his absence complete relief cannot be accorded among those already parties." Utah R. Civ. P. 19(a)(1); accord Landes, 795 P.2d at 1130-31. Joinder is also compulsory if the absent person claims an interest in the subject matter of the action and continuing without that person would (1) impair the person's ability to protect his or her interest, or (2) expose the parties already joined to the action to multiple litigation. See Landes, 795 P.2d at 1130-31.
The Council has attempted to show that Chief Hinman is necessary to this action by carefully dissecting the relevant code sections authorizing the Firemen's Civil Service system. See Utah Code Ann. ยงยง 17-28-8 and -9 (1995). T
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