dissenting:
I would afirm the order of the district court denying the petition for judicial review of the agency decision denying unemployment benefits. This court has no sound justification for concluding as a matter of law, that two accidents in which a taxicab driver was involved were not misconduct. This court is not to substitute its judgment of the evidence for that of the administrative agency. State, Dep’t of Mtr. Vehicles v. Beckstead, 107 Nev. 456, 458, 813 P.2d 995, 996 (1991). The majority recognizes this rule too, and therefore couches its opinion in terms of lack of substantial evidence. However, the majority’s own recitation of the evidence and Kolnik’s testimony show that there was substantial evidence from which a trier of fact could conclude that the accidents were the result of misconduct.
This court stated in Fremont Hotel v. Esposito, 104 Nev. 394, 397, 760 P.2d 122, 123-24 (1988):
Misconduct may be established by “a deliberate violation or disregard on the part of the employee of standards of behavior which his employer has a right to expect.” Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968).
It should be clear that an employer of a professional driver has a right to expect that that professional driver will drive carefully and will not negligently cause automobile accidents resulting in damage to the employer. Even the public has a right to expect careful professional drivers, not negligent ones. The majority appears to add a requirement that a taxicab driver must either recklessly or intentionally cause an automobile accident before the accident can be characterized under NRS 612.385 as misconduct connected with his work. There is no basis for such an added requirement, especially for a professional driver. The definition quoted by the majority supports the finding of misconduct in the circumstances here since it states:
“Carelessness or negligence on the part of the employee of such a degree as to show a substantial disregard of the employer’s interests or the employee’s duties and obligations to his employer are also considered misconduct connected with the work. ...”
Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968). In this case, there was evidence that Kolnik’s negligence *18caused both accidents resulting in thousands of dollars of damage to the employer. This demonstrates substantial disregard for the employer’s best interests. The collective bargaining agreement under which Kolnik was working provided that the conduct was sufficient cause for discharge. Two chargeable accidents within three years were essentially defined by the collective bargaining agreement as misconduct sufficient for discharge. Kolnik had two chargeable accidents within nearly one year. This evidence should be sufficient for the appeals officer to base its finding of misconduct under NRS 612.385.
In Fremont this court stated the appropriate standard as follows:
[B]oth this court and the district court are restricted in the review of the administrative agency proceedings. The district court does not hold a trial de novo.
When analyzing the concept of misconduct, the trier of fact must consider the legal definition, Barnum, in context with the factual circumstances surrounding the conduct at issue. Misconduct then becomes a mixed question of law and fact. Jones v. Rosner, 102 Nev. 215, 719 P.2d 805 (1986). Findings of misconduct must be given deference similar to findings of fact, when supported by substantial evidence in the lower court. Id.
104 Nev. at 397, 760 P.2d at 124, quoting Garman v. State, Employment Security Dep’t, 102 Nev. 563, 565, 760 P.2d 1335, 1336 (1986).
This court has no basis for overturning the administrative agency’s decision.