the Specificity of Charges included the following: (1) unbecoming conduct
that reflects negatively upon appellant (Class 5), (2) neglect of duty for
failure to discharge duties resulting in serious physical injuries to an
inmate (Class 5), (3) neglect of duty constituting a security violation (Class
5), and (4) neglect of duty for concealing evidence (Class 3). Ultimately,
appellant terminated respondent based on the allegations contained in the
Specificity of Charges. According to Nevada Department of Corrections
Administrative Regulation 339, the appointing authority is the "Director,"
who "has the final and overall responsibility for administering employee
discipline."
Respondent appealed the appointing authority's decision and
requested a hearing on the matter before the Nevada State Personnel
Commission. The hearing officer reversed and remanded appellant's
adjudication, concluding that while one of the three Class 5 allegations
was established, because respondent was a model employee outside of the
mistake at issue, his termination would not be in the best interests of
public service. Accordingly, the hearing officer ordered appellant to
reinstate respondent and administer a lesser form of discipline. Appellant
then filed a petition for judicial review of the hearing officer's decision and
a motion for a stay pending appeal. The district court first denied the
motion for a stay, and after determining that respondent did not violate a
long-standing policy or rule, it denied the petition for judicial review. This
appeal follows.
As a preliminary matter, we note that respondent has filed a
motion to dismiss, arguing that numerous factors render the appeal moot.
After reviewing the motion, opposition, reply, and other documents before
this court, we conclude that the appeal is not moot.
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We next consider the district court's decision to deny
appellant's petition for judicial review. "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." Taylor v. Dep't of
Health & Human Servs., 129 Nev., Adv. Op. 99, 314 P.3d 949, 951 (2013)
(internal quotation omitted). We defer to "an agency's interpretation of its
governing statutes or regulations if the interpretation is within the
language of the statute." Id. (internal quotation omitted). We review
other questions of law de novo. See Bisch v. Las Vegas Metro. Police Dep't,
129 Nev., Adv. Op. 36, 302 P.3d 1108, 1112 (2013). Finally, we uphold
findings of fact when supported by substantial evidence, which is defined
as "evidence that a reasonable person would accept as adequate to support
[the] conclusion." Id.
This court has previously determined that "the critical need to
maintain a high level of security within the prison system entitles the
appointing authority's decision to deference by the hearing officer
whenever security concerns are implicated in an employee's termination."
Dredge u. State, ex rel., Dep't of Prisons, 105 Nev. 39, 42, 769 P.2d 56, 58
(1989). In Dredge, we held that the hearing officer committed clear error
by refusing to consider substantial evidence supporting a determination
from the Director of the Nevada Department of Prisons. Id. at 42-45, 769
P.2d at 58-60. In particular, the Director determined that the terminated
employee associated with an ex-inmate in violation of regulations that
constituted a security concern. Id. We recognized that the Director's
finding that the terminated employee's conduct constituted a security
concern was supported by substantial evidence; therefore, deference to the
Director's decision was warranted. See id. at 44, 769 P.2d at 59.
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Accordingly, we concluded that the hearing officer's order reversing that
decision was clearly erroneous, and we affirmed the district court's order
reversing the hearing officer's decision. See id. 44-45, 769 P.2d at 59-60.
In addition, in State, ex rel. Dep't of Prisons v. Jackson, 111
Nev. 770, 771-73, 895 P.2d 1296, 1297-98 (1995), this court reversed a
district court order affirming a hearing officer's decision for failing to defer
to the appointing authority when an employee's violation of a regulation,
which resulted in termination, implicated a security concern. Although we
did not call Dredge into question, we clarified that deference would only be
considered when "the facts indicate a clear and serious security threat."
Id. at 773, 895 P.2d at 1298.
Here, the appointing authority's determination that
respondent committed a security violation is supported by substantial
evidence. The hearing officer found the same, and based on that finding,
determined that Dredge deference was warranted, but then refused to
actually give deference to the appointing authority's decision. Despite this
refusal, the district court affirmed the hearing officer's decision. With
respect to the applicability of Dredge deference, the district court made no
findings.
We are concerned with the hearing officer's refusal to defer
after determining that Dredge deference was warranted. Additionally, we
are concerned with the district court's failure to announce support within
the record of substantial evidence relevant to the applicability of Dredge
deference. If the district court does not defer, it must base its decision on
specific factual findings that there was no clear and serious security
threat. In this case, the district court simply refused to defer, without
stating its findings or reasons.
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Accordingly, we ORDER the order of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Parraguirre
J.
cc: Hon. Timothy C. Williams, District Judge
Salvatore C. Gugino, Settlement Judge
Attorney General/Las Vegas
Morris Polich & Purdy, LLP/Las Vegas
Eighth District Court Clerk
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