State, Dept. of Health and Human Serv. v. Morse ( 2013 )

 This court, like the district court, reviews an administrative
decision for an abuse of discretion or error of law. Knapp v. State, Dep't of
Prisons, 111 Nev. 420, 423, 892 P.2d 575, 577 (1995); see also NRS
233B.135(3). We review pure questions of law de novo, but will give
deference to the agency's decision concerning a question of fact if it is
supported by substantial evidence. Knapp, 111 Nev. at 423, 892 P.2d at
577. "Substantial evidence is evidence that a reasonable person could
accept as adequately supporting a conclusion." Vredenburg v. Sedgwick
CMS, 124 Nev. 553, 557 n.4, 188 P.3d 1084, 1087 n.4 (2008) (internal
quotation omitted). Having reviewed appellant's arguments and the
record on appeal, we conclude that substantial evidence supports the
hearing officer's determination that respondents actions did not warrant
the imposed suspensions and that ,the hearing officer made no errors of
law.
As an initial matter, appellant asserts that the hearing officer
applied the wrong standard of review and that the hearing officer should
have deferred to the agency's disciplinary decision because it was
supported by substantial evidence. Contrary to appellant's contention, the
hearing officer generally does not defer to the appointing authority's
decision, but instead must take a new and impartial view of the evidence
and assess, among other things, the reasonableness of the discipline.
Knapp, 111 Nev. at 424, 892 P.2d at 577-78; see also NRS 284.390(1)
(explaining that the hearing officer "determine[s] the reasonableness" of a
state employee's dismissal, demotion, or suspension); NAC 284.798 ("The
hearing officer shall make no assumptions of innocence or guilt but shall
be guided in his or her decision by the weight of the evidence as it appears
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to him or her at the hearing."). Thus, we find no error in the standard of
review applied by the hearing officer.
Next, appellant contends that the hearing officer erred by
failing to consider certain hearsay evidence. Respondents, however, argue
that the hearing officer appropriately found that the hearsay evidence
lacked credibility. The administrative record reveals that there was no
objective evidence regarding the events at issue here, and that the hearing
officer had to make his determination based on the testimony of multiple
witnesses and the documents submitted, including investigation reports
completed by various entities. Those investigation reports relied on the
testimony of the patient who alleged the misconduct, two other patients
who were present at the time of the incident, and multiple Desert Willow
staff members, including respondents. While appellant argues that the
hearing officer failed to consider the hearsay evidence presented in the
reports, the hearing officer's decision indicates otherwise, as it specifically
notes that "[h]earsay evidence is admissible at this administrative
hearing. . . . However, the hearing officer is not bound to accept it as
credible and determine[s] the weight to be given to each element of
evidence." The hearing officer determined that respondents were credible
witnesses, and it is apparent that he therefore gave more weight to
respondents' testimony, even though the investigative reports had
substantiated the patient's claims. Appellant has not demonstrated that
the hearing officer failed to consider the evidence before him, and it was
within the hearing officer's purview to determine the credibility of these
witnesses and the weight of the evidence presented. See Nellis Motors v.
State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061,
1066 (2008) (explaining that on judicial review, this court will not reweigh
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the evidence, reassess witness credibility, or substitute the administrative
agency's judgment with our own).
Finally, appellant asserts that the hearing officer committed
an error of law by determining that the lack of objective or direct evidence
of an injury to the patient was relevant and corroborated respondents'
testimony. In response, respondents argue that the lack of injury
supported their testimony that they did not inappropriately restrain the
patient. While the X-ray presented demonstrates that there was no
observable injury to the patient's arm, it does not necessarily show
whether respondents physically restrained the patient. Nevertheless, we
conclude that the hearing officer's decision should not be disturbed as we
will not reweigh the evidence presented to the hearing officer and
substantial evidence in the administrative record supports the hearing
officer's ultimate finding of no misconduct. See Knapp, 111 Nev. at 423,
892 P.2d at 577; Nellis Motors, 124 Nev. at 1269-70, 197 P.3d at 1066.
For the reasons set forth above, we conclude that the hearing
officer did not abuse his discretion or commit an error of law in the
administrative decision. Accordingly, we affirm the district court's order
denying appellant's petition for judicial review. See Knapp, 111 Nev. at
424-25, 892 P.2d at 577-78 (setting forth the standard of review for this
court when reviewing an administrative officer's decision).
It is so ORDERED.
J.
Hardesty
Parraguirre
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cc: Hon. Timothy C. Williams, District Judge
Carolyn Worrell, Settlement Judge
Attorney General/Las Vegas
Angela J. Lizada
Eighth District Court Clerk
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