Opinion
No. 65611
08-31-2015
STATE OF NEVADA, DEPARTMENT OF BUSINESS AND INDUSTRY/TAXICAB AUTHORITY, Appellant, v. AMERICO COSTANTINO, AN INDIVIDUAL, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
Appeal from a district court order denying a petition for judicial review in an employment matter. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.
Appellant Nevada Department of Business and Industry Taxicab Authority employed Respondent Americo Costantino as a senior investigator. Costantino was injured in a non-work related incident. His injury resulted in a rupture of his left quadriceps tendon, which necessitated surgical repair. While he recovered from his injury, Costantino obtained several various Ability to Work forms from his treating physician, Dr. Craig Tingey, which Costantino then provided to the Taxicab Authority. Based upon these Ability to Work forms, the Taxicab Authority assigned Costantino to a light duty status. During the time period when he was assigned to light duty, Constantino participated in a promotional wrestling event at a Las Vegas area gym, Future Stars of Wrestling, in which he demonstrated physical abilities beyond those recounted in the Ability to Work forms presented to the Taxicab Authority. The Taxicab Authority conducted an internal investigation and concluded that termination was appropriate based upon Costantino's perceived dishonesty regarding his ability to work.
As a result of the investigation, Costantino was served with a specificity of charges. Commissioner Westrin, of the Mortgage Division in the Nevada Department of Business and Industry conducted the required pre-disciplinary hearing, and affirmed Taxicab Administrator Harvey's decision to terminate Costantino. Costantino was terminated from the Taxicab Authority effective April 11, 2013. Costantino appealed the decision to a Department of Personnel hearing officer who reversed the termination, saying that the State failed to prove a factual basis constituting just cause supporting the termination. The Taxicab authority brought a petition for judicial review in the Eighth Judicial District Court. The district court denied the petition and this appeal followed.
On appeal, the Taxicab Authority first argues that its appeal is not governed by the Administrative Procedures Act, NRS Chapter 233B, whose provisions require the district court to give deference to the factual findings of the hearing officer. Instead, the Taxicab Authority argues that it is an "institution administering a security program" under NAC 284.650(3), and consequently the district court erred in failing to give due deference to its hiring and termination decisions. NAC 284.650 states in pertinent part as follows:
NAC 284.650 Causes for disciplinary action. (NRS 284.065, 284.155, 284.383) Appropriate disciplinary or corrective action may be taken for any of the following causes:
3. The employee of any institution administering a security program, in the considered judgment of the appointing authority, violates or endangers the security of the institution.
In Dredge v. State ex rel. Dep't Prisons, 105 Nev. 39, 769 P.2d 56 (1989), the Nevada Supreme Court held that the Nevada Department of Corrections is an "institution administering a security program" under NAC 284.650(3). Furthermore, the court held that when the NDOC imposed discipline upon a corrections officer for a breach of security (for allowing civilians to wander through prison offices unescorted in violation of prison regulations), the need to maintain proper security within the prison system entitled the appointing authority (NDOC), rather than the hearing officer or appeals officer, to deference. See State v. Jackson, 111 Nev. 770 773, 895 P.2d 1296, 1298 (1995) ("Generally, we would defer to the hearing officer, were it not for Dredge, which requires deference to the appointing authority in cases of breach of security").
Here, the Taxicab Authority argues that, because it is a law-enforcement agency and its investigators possess lawful arrest power, it is such an "institution administering a security program" and Costantino's conduct implicated "security concerns" and therefore deference should be given to it rather than to the hearing officer. However, the Nevada Supreme Court has never held that a law-enforcement agency "administers" a "security program" merely because it is engaged in law-enforcement work. See Bisch v. Las Vegas Metro Police Dept., 129 Nev. ___, ___, 302 P.3d 1108, 1115 (2013) (giving deference to hearing officer under NRS 233B, not to agency under NAC 284.650(3), when reviewing disciplinary action imposed upon police officer by the Las Vegas Metropolitan Police Department). Moreover, NAC 284.650(3) uses the language "institution administering a security program" while NAC 289.060 refers to "peace officers" and NAC Chapter 248 refers to local sheriffs. Applying settled rules of construction leads to the conclusion that NAC 284.650(3) was never intended to broadly encompass law-enforcement agencies such as the Taxicab Authority, local police departments, or sheriff's offices. We therefore apply the provisions of NRS Chapter 233B and give deference to the findings of the hearing officer.
"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." Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, ___, 240 P.3d 2, 4 (2010). The function of this court "...is to review the evidence presented to the administrative body and ascertain whether that body acted arbitrarily or capriciously, thus abusing its discretion." Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980). This court will generally defer to a hearing officer's findings of fact and conclusions of law "where those conclusions are closely related to the agency's view of the facts" and are supported by substantial evidence. State v. Tatalovich, 129 Nev. ___, ___, 309 P.3d 43, 44 (2013). This court may set a hearing officer's decision aside only if it rests on an error of law or constitutes an abuse of discretion. Id. We review the hearing officer's conclusions of law, insofar as they concern purely legal questions, de novo. Knapp v. State ex rel. Dep't of Prisons, 111 Nev. 420, 423, 892 P.2d 575, 577 (1995).
The Taxicab Authority argues that, even under NRS 233B, the hearing officer applied an incorrect standard of review, and that his factual findings are arbitrary and capricious constituting an abuse of discretion. We disagree.
The Nevada Administrative Code governs the hearing officer's standard of review, stating, "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 to him or her at the hearing." NAC 284.798. "Generally, a hearing officer does not defer to the appointing authority's decision. A hearing officer's task is to determine whether there is evidence showing that a dismissal would serve the good of the public service." Knapp, 111 Nev. at 424, 892 P.2d at 577 (1995). Having reviewed the record on appeal, we conclude that the hearing officer applied the correct standard of review, looking at the facts as a whole from a neutral perspective to determine if there was a factual basis supporting termination.
Having determined that the hearing officer applied the correct standard of review, we now review the hearing officer's findings of fact. To be arbitrary and capricious, the decision of an administrative agency must be in disregard of the facts and circumstances involved. Meadow v. Civil Serv. Bd. of Las Vegas Metro. Police Dep't, 105 Nev. 624, 627, 781 P.2d 772, 774 (1989) (citing State v. Ford, 755 P.2d 806, 808 (Wash. 1988)). Put differently, "[i]f the decision lacks substantial evidentiary support, the decision is unsustainable as being arbitrary or capricious." Bisch v. Las Vegas Metro Police Dep't, 129 Nev. ___, 302 P.3d 1108, 1113 (2013) (citing City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 894, 59 P.3d 1212, 1216 (2002)). "Substantial evidence is evidence that a reasonable person would accept as adequate to support a conclusion." Id.
In the hearing below, Costantino testified that his injury prevented him from performing his normal job duties, and that his participation in wrestling was merely part of his ongoing rehabilitation. His treating physician, Dr. Craig Tingey, also testified that Costantino's participation in the wrestling match could not be scientifically compared to his ability to work as an investigator. While the hearing officer also heard considerable testimony to the contrary, including medical and scientific testimony presented by the Taxicab Authority, the hearing officer found Costantino's version of events to be credible. The hearing officer also found that Costantino's light duty assignment was warranted and that his alleged misrepresentations were not willful or intentional.
Questions of credibility are for the hearing officer who heard the testimony and saw the witnesses as they testified, and on appeal we do not re-weigh the evidence presented. This Court's role is strictly limited by NRS 233B.135(3). The only inquiry before us is whether the hearing officer's findings were supported by substantial evidence. Here, the testimony of Costantino and his treating physician provided a substantive basis for the hearing officer's conclusions. Therefore, substantial evidence exists supporting the hearing officer's conclusion that there was no factual basis to support Costantino's termination.
Based upon the foregoing, we
AFFIRM the judgment of the district court.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. Mark R. Denton, District Judge
Lansford W. Levitt, Settlement Judge
Attorney General/Las Vegas
Morris Polich & Purdy, LLP/Las Vegas
Eighth District Court Clerk