BENCH, Presiding Judge:
Appellant, Ralph Tolman, seeks reversal of an administrative decision by the Salt Lake County Career Services Council (CSC). The CSC upheld the termination of Tolman’s job as an investigator for the Salt Lake County Attorney’s Office (CAO). Tolman petitioned the district court for an extraordinary writ under Rule 65B of the Utah Rules of Civil Procedure. The district court refused to grant Tolman any relief from the CSC’s decision. We conclude that Tolman is entitled to a new hearing and therefore vacate the district court’s order denying relief.
In September 1986, then-county attorney Ted Cannon sent Tolman a letter informing him that his employment as an investigator for the CAO would be terminated because of “continuing misconduct and acts inimical to public service.” Tolman appealed the termination to the CSC. The CSC upheld the termination, finding that the alleged misconduct did in fact occur and that termination was therefore warranted. The CSC relied upon six events of misconduct by Tolman in making its decision, but only one of those events is directly relevant to our discussion.
The CSC found that on June 10, 1986, Tolman, while off-duty, assaulted and battered his ex-girlfriend and a male acquaintance after finding them naked in her hot tub. The CSC also found that on June 11, 1986, while on his way to work, Tolman stopped again at his ex-girlfriend's house and again battered the male acquaintance who had stayed the night. The CSC concluded that in regards to this series of events, Tolman “used poor judgment and that his actions constituted acts inimical to public service.”
The CSC held that “(1) the allegations against Ralph Tolman by the Salt Lake County Attorney’s Office were not only supported by the facts but that they were not controverted; [and] (2) the action taken, the termination of Ralph Tolman, was warranted.” Tolman sought relief from the CSC decision by petitioning the district court for an extraordinary writ pursuant to Rule 65B.
The district court held that the CSC did not exceed its jurisdiction or abuse its discretion and therefore upheld the termination by refusing to grant Tolman any relief. Tolman appeals the district court’s denial of relief.
STANDARD OF REVIEW
Rule 65B
The procedural posture of this case presents an unusual standard of review.
Under Rule 65B, this court looks at the administrative proceeding as if the petition were brought here directly, even though technically it is the district court’s decision that is being appealed.
Erkman v. Civil Service Comm’n,
114 Utah 228, 198 P.2d 238, 240 (1948). Since the review performed by the district court under Rule 65B is a review of the entire record, it is the same review that would have been afforded if the matter were raised as a direct appeal.
In re: Discharge of Jones,
720 P.2d 1356, 1360 (Utah 1986). We give no deference to the district court’s initial appellate review since it was a review of the record, which this court is just as capable of reviewing as the district court.
Bennion v. State Bd. of Oil, Gas & Mining,
675 P.2d 1135, 1139 (Utah 1983);
Vali Convalescent & Care Insts. v. Division of Health Care Financing,
797 P.2d 438, 443 (Utah App.1990);
Davis County v. Clearfield City,
756 P.2d 704, 710 (Utah App.1988). We therefore review the CSC’s actions directly. No claim has been made by Tolman that the CSC exceeded its jurisdiction, we therefore review its actions for an abuse of discretion.
Abuse of Discretion
Discretion “encompass[es] the power of choice among several courses of action, each of which is considered permissi-ble_” R. Aldisert,
The Judicial Process
759 (1976). Tribunals may exercise discretion in many matters where there are no hard and fast rules of law and the tribunal is in an advantaged position to make the correct decision. Discretion, however, “is limited in that it must be exercised within the confines of the legal standards set by appellate courts_”
Maughan v. Maughan,
770 P.2d 156, 159 (Utah App.1989). Discretion may also be confined by statute.
See Williams v. Mountain States Tel. & Tel. Co.,
763 P.2d 796, 800 (Utah 1988) (statute does not “eliminate the Commission’s power,” it “establishes the perimeters within which the PSC may properly exercise its expertise, authority, and jurisdiction”). Discretion may best be viewed as an arena bounded by the law, within which the tribunal may exercise its judgment as it sees fit.
By an “abuse of discretion” ... “is meant a clearly erroneous conclusion and judgment — one that is clearly against the logic and the effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.” It does not imply intentional wrong or bad faith or misconduct, nor any reflection on the judge. It is a legal term to indicate that the appellate court is of the opinion that there was commission of error of law in
the circumstances. It is an improvident exercise of discretion; an error of law.
State v. Draper,
83 Utah 115, 143, 27 P.2d 39, 49-50 (1933) (quoting
Starr v. State,
5 Okl.Cr. 440, 115 P. 356, 363 (1911); citations omitted).
A claim that a tribunal has “abused its discretion” may more accurately be framed as a claim that the tribunal has “misused” or “exceeded” its discretion. An abuse of discretion, therefore, is an act by a tribunal, not a standard of review in and of itself. A reviewing court discovers such acts by applying varying standards of review depending upon the error alleged. For example, if an alleged error involves a tribunal’s factual findings, a determination clearly within the arena of the tribunal’s discretion due to its advantaged position to hear and see the evidence firsthand, we review the tribunal’s factual finding using a clearly erroneous standard, giving great deference to the tribunal’s findings.
See
Utah R.Civ.Proc. 52(a). If an alleged error involves other decisions that are traditionally left to the discretion of a tribunal, we will not disturb the tribunal’s determination unless it is “arbitrary, capricious, or unreasonable.”
Child v. Salt Lake City Civil Serv. Comm’n,
575 P.2d 195, 197 (Utah 1978) (rule 65B petition).
See also Peatross v. Board of Comm’rs,
555 P.2d 281, 284 (Utah 1976). If, however, a party claims that a tribunal has stepped out of the arena of discretion and thereby crossed the law, we review using a correction of error standard, giving no deference to the tribunal’s legal determination. We give no deference to such decisions because we are in as good a position as the tribunal to determine the law. Obviously, the making of a clearly erroneous factual finding is an abuse of discretion, as is acting unreasonably or misinterpreting the law. In essence, a reviewing court never overturns a lower tribunal unless there has been an abuse of discretion.
In the present ease, Tolman does not challenge any of the CSC’s findings of the basic facts. He does challenge the reasonableness of the CSC’s conclusions that the evidence supports the charges and that his dismissal was warranted. Tolman also urges that the CSC abused its discretion by not providing him with a hearing that satisfies the minimal procedural requirements of due process. We are unable to address the reasonableness of the CSC’s decision because of the lack of an adequate record.
Even in its incomplete form, however, the record does provide us with a sufficient basis for determining Tolman’s due process claims.
“In cases where the basic question is what does the law require? the standard is a correction of error standard.”
Savage Indus., Inc. v. Utah State Tax Comm'n,
811 P.2d 664, 668 (Utah 1991). The constitutional issue of whether Tolman was denied due process requires a determination of what minimal procedural safeguards are required as a matter of law. Due process challenges, therefore, are questions of general law and we give no deference to the agency’s determination of what constitutes due process as reflected by the actual hearing.
Utah Dept. of Admin. Servs.,
658 P.2d at 608.
See also Bunnell v. Industrial Comm’n,
740 P.2d 1331, 1333 (Utah 1987).
DUE PROCESS
“[Ejvery person who brings a claim in a court or at a hearing held before an administrative agency has a due process right to receive a fair trial in front of a fair tribunal.”
Bunnell,
740 P.2d at 1333. As a general rule, “due process demands a new trial when the appearance of unfairness is so plain that we are left with the abiding impression that a reasonable person would find the hearing unfair.”
Id.
n. 1.
It is well settled that administrative hearings need not possess the formality of judicial proceedings. The degree of formality depends on the nature of the administrative proceedings.
Department of Community Affairs,
614 P.2d at 1262. Inasmuch as the CSC’s decision is of a judicial nature, more formality is required.
See, e.g., Kirk v. Division of Occupational & Professional Licensing,
815 P.2d 242, 244 (Utah App.1991) (petitioner was not afforded “the rights and procedural safeguards that must be present when an agency acts in a judicial capacity conducting a trial-type hearing”). The strict rules of evidence and procedure that apply in a courtroom, however, need not apply in an administrative hearing.
See, e.g., Nelson v. Department of Employment Sec.,
801 P.2d 158, 163 (Utah App.1990). Hearsay and other forms of evidence that might be inadmissible in a court of law may be considered during an administrative hearing.
Bunnell,
740 P.2d at 1333. Salt Lake County has expressly determined that CSC hearings “shall not be bound either by legal procedures or by legal rules of evidence.” Salt Lake County Policy and Procedures, Policy No. 5710.7.1.
Despite the flexibility of administrative hearings, there remains the “necessity of preserving fundamental requirements of procedural fairness in administrative hearings.”
Nelson,
801 P.2d at 163. It is a clear abuse of discretion for an administrative body to exercise its discretion over the manner in which it conducts its proceedings such that it denies due process to a party appearing before it.
Hearsay
Tolman claims that the CSC denied him due process by admitting out-of-court declarations made by the male acquaintance whom Tolman was charged with assaulting. The declarations concerned the events of June 10th and 11th and had been made to Sam Dawson, Tolman’s supervisor,
as part of the CAO’s investigation of Tol-man. In order to admit the testimony, the CAO called upon Dawson to establish that the acquaintance was “unavailable” to testify. Dawson testified the acquaintance told him he would not attend the hearing because,
the retributions that would be leveled against him by Ralph Tolman for testifying against him would be far more serious than any action brought by this board. He further stated that his, he felt his family was at risk as well as himself, his job and just refused to face Ralph.
Tolman’s attorney promptly moved for dismissal claiming that Dawson’s hearsay testimony as to why the acquaintance was not present to testify was “prejudicial beyond any ability to correct without getting to the witness.” We agree that such statements were extremely prejudicial. There was no effective way for Tolman to challenge such an accusation without the acquaintance himself testifying and being subject to cross-examination. The CSC nevertheless denied Tolman’s motion and permitted Dawson to continue testifying as to what the acquaintance had told him.
Assuming arguendo that the CAO satisfied its burden of showing that the acquaintance was unavailable, the testimony was still inadmissible hearsay under the rules of evidence.
See
Utah R.Evid. 804. Despite the flexibility of administrative hearings in admitting legally inadmissible hearsay evidence, due process requires minimal safeguards, including an opportunity to cross-examine witnesses.
[T]he more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended. In such cases the Commissioners cannot act upon their own information as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and
must be given opportunity to cross-examine witnesses,
to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding....
Department of Community Affairs,
614 P.2d at 1262 (quoting
Interstate Commerce Comm’n v. Louisville & Nashville R.R. Co.,
227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431 (1913)) (emphasis added).
In
D.B. v. Division of Occupational & Professional Licensing,
779 P.2d 1145 (Utah App.1989), D.B. sought judicial review of the revocation of his license to practice as a clinical and certified social worker. Allegations were made that D.B. had participated in unprofessional conduct with a former client, identified as Jane Doe. Jane Doe’s entire testimony was placed in the record by proffer. Counsel for the State narrated seven pages of information that she stated would be included if Jane Doe were to give the testimony herself. At the conclusion of the proffer, Jane Doe was asked whether the proffered statement was equivalent to the testimony she would have given. She replied, “Yes.” D.B. was never given an opportunity to cross-examine Doe.
This court held that the introduction of Jane Doe’s testimony by proffer, which precluded cross-examination, created “a strong element of unfairness.”
Id.
at 1147. We recognized that an opportunity to challenge the truthfulness of testimony,
[wjhile_important in the case of documentary evidence_ is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots.
Id.
at 1147 (quoting
Greene v. McElroy,
360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959)).
This court then held that the denial of an opportunity to cross-examine Jane Doe amounted to a denial of D.B.’s due process rights. Tolman was similarly denied an opportunity to confront and cross-examine
the absent male acquaintance. Dawson, in effect, proffered the testimony of the acquaintance. The acquaintance thereby testified in absentia through Dawson, in much the same way (as Jane Doe testified through counsel for the State in
D.B.
The district court in this case held that the procedure employed by the CSC did not violate Tolman’s due process rights because he was given an adequate opportunity to cross-examine, and in fact did cross-examine, the witnesses. While Tolman was given an opportunity to cross-examine Dawson, he was never given an opportunity to cross-examine the acquaintance. Even if Dawson fully and accurately relayed the statements made by the acquaintance, Tolman had no opportunity to challenge the statements themselves which were purported to be the statements of the acquaintance “whose memory might be faulty” or who might have been “motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.”
Id.
In other words, no amount of cross-examination of Dawson could have been considered a cross-examination of the acquaintance himself, and yet, the testimony of the acquaintance was admitted through Dawson.
The hearsay testimony also should not have been admitted under the simple test of “fairness” given in
Bunnell,
740 P.2d at 1333. Under the “fairness” test, the evidence may only be admitted if it has “some probative weight and reliability.”
Id.
The nature of the hearsay testimony given by Dawson was simply too unreliable to be fairly admitted. There was not any affirmance by the declarant as to the accuracy of the hearsay, as there was in
D.B.
The proffered testimony of the acquaintance was not made under the minimal protection of a written statement sworn to by the out-of-court declarant.
Cf. Department of Community Affairs,
614 P.2d at 1261 (“Retention of a job is a legally-protected interest, and loss of a job should not be countenanced on the basis of statements made by fellow employees not under oath.” (citations omitted)). Instead, the hearsay was offered by Dawson, as Dawson remembered it.
Tolman’s attorney correctly pointed out to the CSC that Dawson was not a neutral party, but was one of the individuals seeking Tolman’s dismissal. As argued by Tol-man’s attorney, Dawson “had the opportunity to filter that information through his mind, that mind being one of the minds that put together this whole situation.” It was Dawson who initiated the investigation into the incident with the ex-girlfriend. Dawson himself interviewed the ex-girlfriend the week before the hearing and likely knew what her testimony would be. Without any implication of intentional wrongdoing on Dawson’s part, we find that any retelling of what the acquaintance told him was simply too unreliable to be admitted because of his active managerial role in collecting facts regarding Tolman’s dismissal.
The CAO seeks to minimize the impact of the hearsay by characterizing it as merely “corroborative,” or in other words, harmless. The CSC, however, expressly found otherwise. It stated that the testimony of the acquaintance was “so crucial that [it] should be heard,” and that “this information definitely is probative, relevant and substantive.” We agree with the CSC. It is true that the hearsay testimony corroborated the testimony of Tolman’s ex-girlfriend. It was, however, very critical evidence because Tolman’s version of the events was at odds with the testimony of his ex-girlfriend. In very simplified terms, the ex-girlfriend’s testimony was that Tol-man was out of control and the clear aggressor in the confrontation. Tolman’s testimony, on the other hand, was that he was in control and acted primarily out of self-defense. The acquaintance was therefore a key witness, albeit in absentia, against Tolman.
This court recognized in
D.B.
that the denial of an adequate opportunity to cross-examine a key witness requires a new hearing, even if it appears that the agency’s decision may have had an adequate basis absent the tainted evidence. We reasoned:
While it is apparent from the record that D.B.’s admission ... may have established “unprofessional conduct” under
the specific rules established by the Division ... and thus may constitute a basis upon which the Division could justify revocation of D.B.’s license, we believe that such should be permitted only in proceedings where the Division itself affords a fair hearing under due process as mandated and required by law.
D.B.,
779 P.2d at 1148 (footnote omitted).
Even if there is other evidence to support Tolman’s dismissal, the CSC can only make such a determination in a hearing which affords Tolman due process. If the CAO wishes to use the testimony of the acquaintance at the new hearing, then it must produce him at the hearing where he may be subject to cross-examination.
Consideration of Legal Issues
The overriding question before the CSC was whether Tolman was an unfit public employee. The “retention of unfit public employees is inimical to the public interest.”
Department of Community Affairs,
614 P.2d at 1261. Tolman claims the CSC did not adequately address several questions of law raised at the hearing before it rendered its decision that he was an unfit public employee. First, he claims that three of the events should not have been considered as support for his dismissal because he had already been disciplined for those matters and there had not been any repeat of the misconduct. Any consideration of that past misconduct, according to Tolman, constituted multiple punishment for a single act. Second, he claims the CSC failed to show that his off-duty conduct was relevant by failing to show a nexus between his off-duty conduct and his public employment.
Third, he claims that he was denied an opportunity to show why the sanction of dismissal was disproportionate. Tolman asserts the CSC would not even consider the following issues he raised in favor of mitigating the sanction imposed: (1) whether the dismissal was an act of retaliation, (2) whether he was receiving disparate treatment, and (3) whether he had received adequate notice that his misconduct had placed his employment in jeopardy.
Tolman made several motions based upon the foregoing arguments and sought to exclude any evidence relating to certain events as being irrelevant. The CSC told Tolman his motions were “too restrictive” and refused to even answer his legal challenges, electing instead to admit any and all evidence as part of its fact-finding duty. The record gives no indication that the CSC ever addressed Tolman’s legal claims during the hearing.
The CSC justified its non-responsiveness by indicating that it was not bound by formal rules of evidence and procedure. The fact that administrative agencies may not be bound by formal rules of evidence and procedure, does not mean that they are above the law. In the absence of formal legal rules, an administrative body must still determine what evidence should, in “fairness,” be admitted. The evidence must have “some probative weight and reliability.”
Bunnell,
740 P.2d at 1333. Whether proffered evidence has probative value is in large part a question of whether the evidence is legally relevant. Therefore, an agency must at some point address the legal issues raised by a party appearing before it.
Denver & Rio Grande W. R.R. Co.,
287 P.2d at 887 (commission could not “arbitrarily ignore” contentions raised by parties). Due process includes “an opportunity to present [one’s] case, that is, [one’s] evidence
and
[one’s] contentions.”
Peatross,
555 P.2d at 283 (emphasis added). Ignoring a party’s legal contentions denies the party a fair “opportunity to be heard and defend.”
R.W. Jones Trucking v.
Public Serv. Comm’n,
649 P.2d 628, 629 (Utah 1982).
At a minimum, the CSC should have addressed Tolman’s legal contentions in its findings and conclusions. While it is true that the CSC stated its ultimate conclusions, administrative bodies may not rely upon findings that contain only ultimate conclusions.
See Vali Convalescent & Care Insts.,
797 P.2d 438, 448 (Utah App.1990).
Cf. Boston First Nat’l Bank v. County Bd. of Equalization,
799 P.2d 1163, 1166 (Utah 1990) (agency expertise is not a substitute for making adequate findings);
Williams v. Mountain States Tel. & Tel. Co.,
763 P.2d 796, 799 (Utah 1988) (“commission expertise is not an adequate basis upon which ultimate findings ... may be based,” quoting
Mountain States Legal Foundation v. Public Serv. Comm’n,
636 P.2d 1047, 1051 (Utah 1981)). We cannot conclude from the mere statement of the ultimate conclusions reached by the CSC that the CSC ever actually considered and determined Tolman’s legal claims in accordance with established legal principles.
Inasmuch as there is no indication in the record that Tolman's legal claims were actually considered, we must conclude, as Tolman asserts, that his legal challenges went unheard and that he was thereby denied due process.
The failure of the CSC to address Tolman’s legal contentions was also an abuse of discretion by the CSC because it prevented the CSC from properly performing its review of the CAO’s decision to terminate Tolman’s employment.
The Merit Commission’s authority on review of disciplinary decisions involves two inquiries: (1) do the facts support the charges made by the department head, and, if so, (2) do the charges warrant the sanction imposed?
If the Merit Commission finds upon review that the facts support the charges against the deputy, then it must affirm the sheriffs disciplinary action, unless it finds the sanction so clearly disproportionate to the charges as to amount to an abuse of the sheriff’s discretion.
In re: Discharge of Jones,
720 P.2d 1356, 1361, 1363 (Utah 1986) (citing
Vetterli v. Civil Serv. Comm’n,
106 Utah 83, 90, 145 P.2d 792, 796 (1944)).
If Tolman is correct and any of the misconduct relied upon by the CAO as grounds for his termination is legally irrelevant, the misconduct may not be considered by the CSC as support for the charges against Tolman. The CSC should have therefore limited its review to only the legally relevant misconduct, if any.
The technical basis for our ruling is found in the residuum rule. Under the residuum rule, all hearsay and other legally inadmissible evidence admitted by an agency is set aside by the reviewing court. There must then remain some “residuum of legal evidence competent in a court of law,” to support the agency’s findings and
conclusions of law.
Yacht Club v. Utah Liquor Control Comm’n,
681 P.2d 1224, 1226 (Utah 1984). If there is not a residuum of legally competent evidence remaining, the agency action is reversed.
Compare Sandy State Bank v. Brimhall,
636 P.2d 481, 486 (Utah 1981) (residuum found after hearsay evidence was set aside)
with Williams v. Schwendiman,
740 P.2d 1354, 1357 (Utah App.1987) (no residuuip found after inadmissible evidence was set aside).
Inasmuch as evidence regarding a legally irrelevant event would be inadmissible under the rules of evidence, Utah R.Evid. 402, no evidence of an irrelevant event could remain under the residuum rule. Therefore, any factual finding that an irrelevant event actually occurred could not be upheld. It would be arbitrary and capricious for the CSC to base its decision upon factual findings that are not supportable by legally competent evidence.
At the new hearing the CSC must analyze each event, determine whether the event is legally relevant given Tolman’s legal arguments, discard any that are not, and determine whether the remaining legally relevant events constitute sufficient support for the CAO’s decision to terminate Tolman. In so holding, we do not imply that Tolman was necessarily correct in his legal arguments, only that they were not adequately considered by the CSC.
CONCLUSION
The admission of the hearsay evidence without an opportunity to cross-examine the acquaintance, and the failure of the CSC to address Tolman’s legal claims, create an “appearance of unfairness [that] is so plain that we are left with the abiding impression that a reasonable person would find the hearing unfair.”
Bunnell,
740 P.2d at 1333 n. 1. We therefore hold that the CSC deprived Tolman of his procedural due process rights and vacate the order of the district court refusing to grant Tolman relief. Pursuant to Rule 65B, we direct that the CSC provide Tolman with a new hearing consistent with this opinion.
JACKSON and RUSSON, JJ., concur.