Taylor v. State Department of Health & Human Services ( 2013 )

129 Nev., Advance Opinion 91
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL TAYLOR, No. 61241
Appellant,
vs.
THE STATE OF NEVADA FILED
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DEC 2 6 2013
Respondent. CLE
T E
BY
CHIEt DEPUTY CLERK
Appeal from a district court order denying a petition for
judicial review in a state employment matter. Eighth Judicial District
Court, Clark County; Joanna Kishner, Judge.
Affirmed.
Law Office of Daniel Marks and Daniel Marks and Adam Levine, Las
Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, and Shannon C. Richards,
Deputy Attorney General, Carson City,
for Respondent.
BEFORE GIBBONS, DOUGLAS and SAITTA, JJ.
SUPREME COURT
OF
NeetmA
(0) 1947A at
OPINION
By the Court, DOUGLAS, J.:
In this appeal from a district court order denying a petition for
judicial review, we review a State Personnel Commission hearing officer's
decision in a state employment matter. We conclude that the hearing
officer did not err or abuse her discretion in determining that, pursuant to
the clear and unambiguous language of NRS Chapter 284, while hearing
officers may determine the reasonableness of disciplinary actions and
recommend appropriate levels of discipline, only appointing authorities
have the power to prescribe the actual discipline imposed on permanent
classified state employees. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Michael Taylor was employed by respondent State
of Nevada, Department of Health and Human Services (DHHS), in the
Division of Child and Family Services (DCFS), in a permanent classified
position as a group supervisor at Caliente Youth Center. As part of his
duties there, Taylor participated in a room search due to allegations of
youths stealing food. During the search, there was an incident involving
Taylor and one of the youths As a result of this incident, Taylor was
issued a specificity of charges document that recommended his
termination from employment. Thereafter, Taylor was dismissed from
employment.
Taylor administratively appealed his dismissal pursuant to
NRS 284.390, and following an evidentiary hearing, the State Personnel
Commission hearing officer issued a decision setting aside Taylor's
dismissal and remanding the case to DCFS to determine the appropriate
level of discipline for Taylor's infraction. In her decision, the hearing
SUPREME COURT
OF
NEVADA
2
(0) 1947A
officer recommended that DCFS impose a suspension and require
remedial training concerning the use of force. Taylor sought
reconsideration of the decision, arguing that the hearing officer, as
opposed to the employer, should determine the appropriate amount of
discipline where modified discipline is required. The hearing officer
denied reconsideration, and Taylor subsequently filed a petition for
judicial review to have a district court decide the issue of who determines
the appropriate level of discipline in his situation. Following briefing by
the parties, the district court denied Taylor's petition for judicial review,
concluding that hearing officers are not required to determine the
appropriate level of discipline after finding that dismissal was
unreasonable. This appeal followed.
DISCUSSION
On appeal, Taylor argues that the statute governing hearings
to determine the reasonableness of employee discipline, NRS 284.390, does
not expressly address the situation where a hearing officer determines
that dismissal from state employment is too severe, but that some amount
of discipline is warranted for an employee's misconduct. He claims that
some hearing officers remand the matter back to the employer, while other
hearing officers determine the appropriate level of discipline themselves.
Taylor asserts that the hearing officer should make the decision about the
appropriate level of discipline because the hearing officer is the "fact
finding tribunal" and doing so is consistent with the statutory and
regulatory scheme adopted under NRS Chapter 284. We disagree and
hold that pursuant to the clear and unambiguous language of NRS
Chapter 284, while hearing officers may determine the reasonableness of
disciplinary actions and recommend appropriate levels of discipline, only
SUPREME COURT
OF
NEVADA
3
(01 1947A
appointing authorities have the power to prescribe the actual discipline
imposed on permanent classified state employees.
"When reviewing a district court's denial of a petition for
judicial review of an agency decision, this court engages in the same
analysis as the district court." Rio All Suite Hotel & Casino v. Phillips,
126 Nev. „ 240 P.3d 2, 4 (2010). Specifically, this court reviews an
administrative agency's decision for an abuse of discretion or clear error.
See id.; see also NRS 233B.135(3). In doing so, this court defers to the
agency's findings of fact that are supported by substantial evidence;
however, questions of law are reviewed de novo. Rio, 126 Nev. at , 240
P.3d at 4. Although statutory construction is generally a question of law
reviewed de novo, this court "defer[s] to an agency's interpretation of its
governing statutes or regulations if the interpretation is within the
language of the statute." Dutchess Bus. Servs., Inc. v. Nev. State Bd. of
Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008). Accordingly, if
the hearing officer's interpretation of NRS Chapter 284 and its associated
regulations is "within the language of the statute," this court will defer to
that interpretation.
On appeal, Taylor challenges the hearing officer's decision to
remand this matter to DCFS for a determination of appropriate discipline
and her conclusion that NRS 284.390 "does not grant the hearing officer
authority to determine the discipline to be imposed should he find the
employer's decision unreasonable." In determining whether this
interpretation of a hearing officer's authority is "within the language of
the statute," several statutory and regulatory provisions must be
addressed. NES 284.385 expressly empowers appointing authorities to
dismiss, demote, or suspend permanent classified employees. NAC
SUPREME COURT
OF
NEVADA
4
(0) 1947A e
284.022 provides that an "'[a]ppointing authority' .. . [is] an official, board
or commission having the legal authority to make appointments to
positions in the state service, or a person to whom the authority has been
delegated by the official, board or commission." Here, DCFS is an
appointing authority and, as such, may dismiss, demote, or suspend its
permanent classified employees.
Notably absent in the definition of appointing authority,
however, is any reference to a hearing officer. See NAC 284.022. This is
because the role and authority of a hearing offer is distinct from that of an
appointing authority. While the appointing authority may dismiss,
demote, or suspend an employee, "[an] employee who has been dismissed,
demoted or suspended may request ... a hearing before the hearing
officer.... to determine the reasonableness of the action." NRS 284.390(1);
Knapp v. State ex rel. Dep't of Prisons, 111 Nev. 420, 424, 892 P.2d 575,
577 (1995). The section further provides that:
If the hearing officer determines that the
dismissal, demotion or suspension was without
just cause as provided in NRS 284.385, the action
must be set aside and the employee must be
reinstated, with full pay for the period of
dismissal, demotion or suspension.
NRS 284.390(6). These provisions grant the hearing officer the power to
review for reasonableness, and potentially set aside, an appointing
authority's dismissal, demotion, or suspension decision; however, they do
not make hearing officers appointing authorities or provide them with
explicit power to prescribe the amount of discipline to be imposed.
Moreover, "[aft the conclusion of the hearing, the hearing officer.... shall
SUPREME COURT
OF
NEVADA
5
(0) 1947A )1 009.
notify the parties . . . of the hearing officer's findings and
recommendations." NAC 284.818. At best, then, a hearing officer's only
influence on the prescription of discipline in a matter on administrative
appeal comes from his or her ability to determine the reasonableness of
the disciplinary decision, see NRS 284.390(1), and to recommend what
may constitute an appropriate amount of discipline, see NAC 284.818.
Based on the clear and unambiguous language of these
statutes and regulations, while hearing officers may determine the
reasonableness of disciplinary actions and recommend appropriate levels
of discipline, only appointing authorities have the power to prescribe the
actual discipline imposed on permanent classified state employees. The
hearing officer's interpretation of her authority is within the language of
NRS Chapter 284 and its associated regulations, and we therefore do not
disturb that interpretation on appeal. Accordingly, we affirm the district
court's order denying judicial review.
J.
Douglas
J.
iaitta
SUPREME COURT
OF
NEVADA 6
(0) 1947A ea