noted concerns about appellant's condition and recommended that
appellant seek mental health counseling. The Tax Department
subsequently determined that a fitness-for-duty exam was required before
appellant could return to work. Appellant submitted to an exam and the
medical doctor who performed the exam recommended that appellant
undergo six counseling sessions before appellant would be released to
return to work.
While appellant was on leave, he entered the Tax Department
building after working hours on two occasions. Appellant was able to
access his work computer on the first visit, while on the second visit,
appellant attempted to access his computer but left the premises after a
coworker informed him that he was not supposed to be there. The Tax
Department subsequently informed appellant that his state e-mail
account and remote access to his work computer system would be disabled
for the remaining duration of his time on leave. He was further informed
that the Tax Department would be accessing his work computer.
Thereafter, the Tax Department director requested that the Department
of Information Technology conduct an investigation of appellant's
computer system. The investigation revealed that appellant had deleted
14 gigabytes of data during his first visit to the Tax Department building
while on leave, had attempted to access the computer network remotely
after his account had been disabled, and had apparently used an invalid
United States Department of Justice e-mail address in correspondence to
other state employees. Additionally, during his time off from work,
appellant continued to send e-mails regarding certain records requests
and his leave situation to colleagues at the Tax Department and the
Department of Personnel.
2
After appellant completed the recommended counseling
sessions, he was ultimately cleared to return to work. But on the day he
was scheduled to return to work, the Tax Department director placed
appellant on administrative leave pending an investigation regarding his
activities during the preceding months. While appellant was on
administrative leave, he posted comments on an Internet site regarding
his complaints against the State and various other related issues, which
created safety concerns amongst his coworkers at the Tax Department. In
response to these concerns and in light of appellant's preceding conduct,
the Tax Department recommended terminating appellant's employment
based on violations of NAC 284.650, which provides the causes for
discipline of state employees, and the Department's prohibitions and
penalties.
A document setting out the charges against appellant was
issued outlining a number of misconduct instances spanning a three-
month period, and a predisciplinary hearing was held. The
predisciplinary hearing officer also recommended termination, and
appellant was subsequently dismissed from state employment. Appellant
challenged his dismissal, but the hearing officer affirmed the termination
decision, finding that appellant had violated multiple sections of NAC
284.650 and the Tax Department's prohibitions and penalties, and that
the evidence demonstrated that appellant's dismissal was for the "good of
the public service." Appellant then filed a petition for judicial review in
the district court. The district court denied the petition, and this appeal
followed.
DISCUSSION
On appeal, this court, like the district court, reviews an
administrative decision for an abuse of discretion. Knapp v. State, Dep't of
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Prisons, 111 Nev. 420, 423, 892 P.2d 575, 577 (1995); see also NRS
233B.135(3). On issues of fact and fact-based conclusions of law, the
hearing officer's decision will not be disturbed if it is supported by
substantial evidence. See Knapp, 111 Nev. at 423, 892 P.2d at 577;
Campbell v. Nev. Tax. Com'n, 109 Nev. 512, 516, 853 P.2d 717, 719 (1993).
"Substantial evidence is evidence that a reasonable person could accept as
adequately supporting a conclusion." Vredenburg v. Sedgwick CMS, 124
Nev. 553, 557 11.4, 188 P.3d 1084, 1087 n.4 (2008) (internal quotation
omitted). A hearing officer's determinations on pure issues of law are
reviewed de novo. Knapp, 111 Nev. at 423, 892 P.2d at 577.
Having reviewed appellant's proper person appeal statement
and the administrative record, we conclude that there are no factual or
procedural grounds that warrant reversal of the hearing officer's decision.
The process undertaken in these types of administrative proceedings
involve the hearing officer making factual determinations regarding the
employee's conduct, and if there is misconduct, then the hearing officer
makes determinations regarding whether the employee's conduct
warrants the discipline imposed. Here, in addressing appellant's
administrative challenge to his termination, the hearing officer issued a
detailed, well-reasoned, 23-page decision determining that appellant had
engaged in conduct that violated administrative code provisions and the
Tax Department prohibitions and policies. The hearing officer further
concluded that these violations warranted dismissal.
Because substantial evidence in the administrative record
supports the hearing officer's factual findings regarding appellant's
conduct, we will not disturb these findings on review. See Nellis Motors v.
State, Dep't of Motor Vehicles, 124 Nev. 1263, 1267-70, 197 P.3d 1061,
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1066 (2008) (explaining that this court does not reweigh the evidence or
substitute the hearing officer's judgment on questions of fact with our own
judgment). Furthermore, the disciplinary guidelines set forth in the Tax
Department's prohibitions and policies authorize dismissal in the first
instance for violations of certain provisions, including those that the
hearing officer determined appellant had violated, even without the
application of progressive discipline. See NAC 284.650 (setting forth
causes for disciplinary action); NAC 284.646(1) (explaining that an
employee may be dismissed for any cause set forth in NAC 284.650, if the
agency has adopted any rules or policies that authorize the dismissal for
such a cause or if the "seriousness of the offense or condition warrants
such dismissal"). For the foregoing reasons, we find no abuse of
discretion or legal error in the hearing officer's decision. Accordingly, we
affirm the district court's denial of appellant's petition for judicial review.
It is so ORDERED.
Saitta
cc: Hon. James E. Wilson, District Judge
Todd Robben
Attorney General/Las Vegas
Carson City Clerk
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