Can municipal employees waive their merit protection under Utah law? Howick v. Salt Lake City Corp. Explained

In Howick v. Salt Lake City Corp., the Utah Court of Appeals addressed whether municipal employees can contractually waive their statutory merit protection under the Utah Municipal Code. The case provides important guidance on balancing individual contract rights against public employment policies.

Background and Facts

Jodi Howick worked as general counsel to the Salt Lake City International Airport from 1992. In 1998, the City created a new position called “Appointed Senior City Attorney” that came with significantly higher pay but required employees to sign an at-will employment disclaimer waiving their merit protection. Howick signed the disclaimer and accepted the promotion. When the City terminated her employment in 2007, she claimed the waiver was invalid and that she retained merit employee status.

Key Legal Issues

The court addressed three main questions: (1) whether Howick qualified as a merit employee under the Utah Municipal Code, (2) whether she could legally forfeit merit protection, and (3) whether she actually did so. The Merit Protection Statute mandates merit protection for all municipal employees except specifically enumerated exceptions like department heads and superintendents.

Court’s Analysis and Holding

The court first determined that Howick was originally a merit employee, as she did not qualify as a department head or superintendent based on her actual duties supervising only personal assistants. The court then applied the Ockey test to determine whether public policy prevented waiver of merit protection. This test examines whether the statute contains an express anti-waiver provision and whether the contract offends public policy or harms the public generally. The court found the Merit Protection Statute lacked an anti-waiver provision and that Howick had not shown “free from doubt” that the waiver violated public policy, particularly given the 2012 legislative amendment expressly permitting such waivers.

Practice Implications

This decision clarifies that statutory protections can be waived absent express anti-waiver language, but practitioners must carefully analyze whether such waivers violate public policy. The court’s consideration of subsequent legislative changes as evidence of current public policy provides guidance for similar analyses. The case was remanded to determine whether Howick actually waived her protection through the disclaimer, emphasizing that factual development remains crucial even after establishing the legal framework.