                                                129 Nev., Advance Opinion       91
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                MICHAEL TAYLOR,                                      No. 61241
                Appellant,
                vs.
                THE STATE OF NEVADA                                  FILED
                DEPARTMENT OF HEALTH AND
                HUMAN SERVICES,                                         DEC 2 6 2013
                Respondent.                                      CLE
                                                                    T      E


                                                                BY
                                                                     CHIEt DEPUTY CLERK




                           Appeal from a district court order denying a petition for
                judicial review in a state employment matter. Eighth Judicial District
                Court, Clark County; Joanna Kishner, Judge.
                           Affirmed.


                Law Office of Daniel Marks and Daniel Marks and Adam Levine, Las
                Vegas,
                for Appellant.

                Catherine Cortez Masto, Attorney General, and Shannon C. Richards,
                Deputy Attorney General, Carson City,
                for Respondent.




                BEFORE GIBBONS, DOUGLAS and SAITTA, JJ.




SUPREME COURT
      OF
    NeetmA


(0) 1947A                                                                                 at
                                                 OPINION
                By the Court, DOUGLAS, J.:
                            In this appeal from a district court order denying a petition for
                judicial review, we review a State Personnel Commission hearing officer's
                decision in a state employment matter. We conclude that the hearing
                officer did not err or abuse her discretion in determining that, pursuant to
                the clear and unambiguous language of NRS Chapter 284, while hearing
                officers may determine the reasonableness of disciplinary actions and
                recommend appropriate levels of discipline, only appointing authorities
                have the power to prescribe the actual discipline imposed on permanent
                classified state employees. Therefore, we affirm.
                                 FACTS AND PROCEDURAL HISTORY
                            Appellant Michael Taylor was employed by respondent State
                of Nevada, Department of Health and Human Services (DHHS), in the
                Division of Child and Family Services (DCFS), in a permanent classified
                position as a group supervisor at Caliente Youth Center. As part of his
                duties there, Taylor participated in a room search due to allegations of
                youths stealing food. During the search, there was an incident involving
                Taylor and one of the youths As a result of this incident, Taylor was
                issued a specificity of charges document that recommended his
                termination from employment. Thereafter, Taylor was dismissed from
                employment.
                            Taylor administratively appealed his dismissal pursuant to
                NRS 284.390, and following an evidentiary hearing, the State Personnel
                Commission hearing officer issued a decision setting aside Taylor's
                dismissal and remanding the case to DCFS to determine the appropriate
                level of discipline for Taylor's infraction. In her decision, the hearing

SUPREME COURT
        OF
     NEVADA
                                                      2
(0) 1947A
                officer recommended that DCFS impose a suspension and require
                remedial training concerning the use of force. Taylor sought
                reconsideration of the decision, arguing that the hearing officer, as
                opposed to the employer, should determine the appropriate amount of
                discipline where modified discipline is required. The hearing officer
                denied reconsideration, and Taylor subsequently filed a petition for
                judicial review to have a district court decide the issue of who determines
                the appropriate level of discipline in his situation. Following briefing by
                the parties, the district court denied Taylor's petition for judicial review,
                concluding that hearing officers are not required to determine the
                appropriate level of discipline after finding that dismissal was
                unreasonable. This appeal followed.
                                               DISCUSSION
                            On appeal, Taylor argues that the statute governing hearings
                to determine the reasonableness of employee discipline, NRS 284.390, does
                not expressly address the situation where a hearing officer determines
                that dismissal from state employment is too severe, but that some amount
                of discipline is warranted for an employee's misconduct. He claims that
                some hearing officers remand the matter back to the employer, while other
                hearing officers determine the appropriate level of discipline themselves.
                Taylor asserts that the hearing officer should make the decision about the
                appropriate level of discipline because the hearing officer is the "fact
                finding tribunal" and doing so is consistent with the statutory and
                regulatory scheme adopted under NRS Chapter 284. We disagree and
                hold that pursuant to the clear and unambiguous language of NRS
                Chapter 284, while hearing officers may determine the reasonableness of
                disciplinary actions and recommend appropriate levels of discipline, only

SUPREME COURT
        OF
     NEVADA
                                                      3
(01 1947A
                 appointing authorities have the power to prescribe the actual discipline
                 imposed on permanent classified state employees.
                             "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. „ 240 P.3d 2, 4 (2010). Specifically, this court reviews an
                 administrative agency's decision for an abuse of discretion or clear error.
                 See id.; see also NRS 233B.135(3). In doing so, this court defers to the
                 agency's findings of fact that are supported by substantial evidence;
                 however, questions of law are reviewed de novo. Rio, 126 Nev. at , 240
                 P.3d at 4. Although statutory construction is generally a question of law
                 reviewed de novo, this court "defer[s] to an agency's interpretation of its
                 governing statutes or regulations if the interpretation is within the
                 language of the statute." Dutchess Bus. Servs., Inc. v. Nev. State Bd. of
                 Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008). Accordingly, if
                 the hearing officer's interpretation of NRS Chapter 284 and its associated
                 regulations is "within the language of the statute," this court will defer to
                 that interpretation.
                             On appeal, Taylor challenges the hearing officer's decision to
                 remand this matter to DCFS for a determination of appropriate discipline
                 and her conclusion that NRS 284.390 "does not grant the hearing officer
                 authority to determine the discipline to be imposed should he find the
                 employer's decision unreasonable." In determining whether this
                 interpretation of a hearing officer's authority is "within the language of
                 the statute," several statutory and regulatory provisions must be
                 addressed. NES 284.385 expressly empowers appointing authorities to
                 dismiss, demote, or suspend permanent classified employees. NAC

SUPREME COURT
        OF
     NEVADA
                                                       4
(0) 1947A    e
                         284.022 provides that an "'[a]ppointing authority' .. . [is] an official, board
                         or commission having the legal authority to make appointments to
                         positions in the state service, or a person to whom the authority has been
                         delegated by the official, board or commission." Here, DCFS is an
                         appointing authority and, as such, may dismiss, demote, or suspend its
                         permanent classified employees.
                                     Notably absent in the definition of appointing authority,
                         however, is any reference to a hearing officer.    See NAC 284.022. This is
                         because the role and authority of a hearing offer is distinct from that of an
                         appointing authority. While the appointing authority may dismiss,
                         demote, or suspend an employee, "[an] employee who has been dismissed,
                         demoted or suspended may request ... a hearing before the hearing
                         officer.... to determine the reasonableness of the action." NRS 284.390(1);
                         Knapp v. State ex rel. Dep't of Prisons, 111 Nev. 420, 424, 892 P.2d 575,
                         577 (1995). The section further provides that:
                                     If the hearing officer determines that the
                                     dismissal, demotion or suspension was without
                                     just cause as provided in NRS 284.385, the action
                                     must be set aside and the employee must be
                                     reinstated, with full pay for the period of
                                     dismissal, demotion or suspension.
                         NRS 284.390(6). These provisions grant the hearing officer the power to
                         review for reasonableness, and potentially set aside, an appointing
                         authority's dismissal, demotion, or suspension decision; however, they do
                         not make hearing officers appointing authorities or provide them with
                         explicit power to prescribe the amount of discipline to be imposed.
                         Moreover, "[aft the conclusion of the hearing, the hearing officer.... shall




SUPREME COURT
        OF
     NEVADA
                                                                5
(0) 1947A    )1   009.
                  notify the parties . . . of the hearing officer's findings and
                  recommendations." NAC 284.818. At best, then, a hearing officer's only
                  influence on the prescription of discipline in a matter on administrative
                  appeal comes from his or her ability to determine the reasonableness of
                  the disciplinary decision, see NRS 284.390(1), and to recommend what
                  may constitute an appropriate amount of discipline, see NAC 284.818.
                              Based on the clear and unambiguous language of these
                  statutes and regulations, while hearing officers may determine the
                  reasonableness of disciplinary actions and recommend appropriate levels
                  of discipline, only appointing authorities have the power to prescribe the
                  actual discipline imposed on permanent classified state employees. The
                  hearing officer's interpretation of her authority is within the language of
                  NRS Chapter 284 and its associated regulations, and we therefore do not
                  disturb that interpretation on appeal. Accordingly, we affirm the district
                  court's order denying judicial review.




                                                                                    J.
                                                       Douglas




                                                  J.
                  iaitta

SUPREME COURT
        OF
     NEVADA                                                6
(0) 1947A    ea
