Dutchover v. State, Dept. of Public Safety

 Safety (DPS), but he failed to disclose the 1995 border incident during the
application process. Eleven years later, the border incident came to the
attention of his superiors, and, after an investigation, Dutchover was
terminated despite his contention that he had forgotten about the incident
at the time he applied to be an NHP trooper. He appealed the termination
to respondent State of Nevada Department of Personnel, State Personnel
Commission, and a hearing officer determined that Dutchover had
intentionally concealed the border incident during the application process
and that his termination was warranted. Dutchover petitioned for judicial
review in the district court, and the court upheld Dutchover's termination.
This appeal followed.
"This court's function when reviewing a district court's order
denying a petition for judicial review is the same as the district court's: to
determine whether substantial evidence supports the appeals officer's
decision and whether that decision is affected by legal error." Holiday Ret.
Corp. v. State, Diu. of Indus. Relations, 128 Nev. 274 P.3d 759,
761 (2012). "Neither this court nor the district court may substitute its
judgment of the evidence for that of the administrative agency," and
review is limited to the record that was before the agency. Nev. Emp't Sec.
Dep't v. Cline, 109 Nev. 74, 76, 847 P.2d 736, 738 (1993); NRS
233B.135(1)(b), (3).
At the administrative hearing, the hearing officer found that
Dutchover intentionally concealed the border incident and thus committed
"fflraud in securing appointment" pursuant to NAC 284.650(8), and
"[d]ishonesty" pursuant to NAC 284.650(10). Based on our review of the
record before us, we conclude that substantial evidence supports the
hearing officer's findings. The evidence presented demonstrated that two
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and one-half years prior to applying to be an NHP trooper, Dutchover was
detained at the Mexican border. At that time, a search of his vehicle
resulted in the discovery of illegal substances, which were confiscated and
caused his car to be impounded. The personal history report Dutchover
was required to complete during the application process inquired
specifically about the use, possession, and transportation of controlled
substances, including steroids, and Dutchover failed to disclose this
incident on his application. Finally, during the NHP's internal
investigation, Dutchover was interviewed and asked whether he failed to
disclose the incident because he believed there would be no record, to
which he answered "[t]here was no record of it[,] that is according to what
they told me."
We conclude that the hearing officer's decision that
Dutchover's violations warranted termination was not arbitrary or
capricious. See Holiday Ret. Corp., 128 Nev. at , 274 P.3d at 761; State
ex rel. Whalen v. Welliver, 60 Nev. 154, 159, 104 P.2d 188, 190-91 (1940)
(explaining that dismissal of a law enforcement officer must be supported
by "legal cause, . . . one touching the qualifications of the officer or his
performance of his duties"); NRS 284.385(1)(a) (providing that a state
employee may be "[d]ismiss[ed] . . when the appointing authority
considers that the good of the public service will be served thereby").
This court has previously recognized that honesty is
fundamental to a law enforcement officer's ability to effectively perform
his or her job. See Bisch v. Las Vegas Metro Police Dep't, 129 Nev.
, 302 P.3d 1108, 1115 (2013) ("A police officer's job is to uphold the law,
and the act of lying. . . could plausibly bear directly upon [his or her]
fitness to be an officer."). Because NHP officers are often called upon to
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testify in court, Dutchover's dishonesty may allow his credibility to be
impeached, thus rendering him a liability on the stand and unable to
perform a vital function of his duties as a law enforcement officer. See
id.at , 302 P.3d at 1115 (noting that since officers are often summoned
as witnesses at trial, an officer's "untruthfulness could be used to impeach
[the officer's] credibility").
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
- , J.
Hardesty
ieSS J.
Douglas
cc: Hon. Michelle Leavitt, District Judge
Paul H. Schofield, Settlement Judge
Law Office of Daniel Marks
Attorney General/Transportation Division/Las Vegas
Eighth District Court Clerk
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