408 P.3d 161 (Nev.App. 2017), 71372, Knickmeyer v. State ex. rel. Eighth Judicial District Court

• Docket Nº: 71372
• Citation: 408 P.3d 161
• Opinion Judge: TAO, J.
• Party Name: Thomas KNICKMEYER, Appellant, v. The STATE of Nevada, EX. REL. EIGHTH JUDICIAL DISTRICT COURT, Respondent.
• Attorney: Kirk T. Kennedy, Las Vegas, for Appellant. Adam Paul Laxalt, Attorney General, Clark G. Leslie, Chief Deputy Attorney General, Carson City; D. Randall Gilmer, Senior Deputy District Attorney, Las Vegas, for Respondent.
• Judge Panel: BEFORE TAO and GIBBONS, JJ. I concur: Gibbons, J.
• Case Date: November 16, 2017
• Court: Court of Appeals of Nevada

Page 161

408 P.3d 161 (Nev.App. 2017)

Thomas KNICKMEYER, Appellant,

v.

The STATE of Nevada, EX. REL. EIGHTH JUDICIAL DISTRICT COURT, Respondent.

No. 71372

Court of Appeals of Nevada

November 16, 2017

Page 162

[Copyrighted Material Omitted]

Page 163

Appeal from a district court order denying a petition to set aside an arbitration order. Eighth Judicial District Court, Clark County; Nancy Becker, Senior Judge.

Kirk T. Kennedy, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Clark G. Leslie, Chief Deputy Attorney General, Carson City; D. Randall Gilmer, Senior Deputy District Attorney, Las Vegas, for Respondent.

BEFORE TAO and GIBBONS, JJ.¹

OPINION

TAO, J.

The principal legal question addressed in this appeal is whether certain provisions of NRS Chapter 289 (namely, NRS 289.040, 289.057 and 289.060), intended to provide job-related protections to peace officers employed by law enforcement agencies, apply to bailiffs and marshals employed by the Eighth Judicial District Court. We conclude that judicial marshals are " peace officers" within the meaning of those statutes, but the Eighth Judicial District Court is not a " law enforcement agency" as statutorily defined. Accordingly, the provisions at issue do not apply to Knickmeyer, and we affirm the district court’s denial of his petition to set aside the arbitration award in this case.

FACTUAL AND PROCEDURAL HISTORY

The Eighth Judicial District Court (EJDC) employed Thomas Knickmeyer first as a bailiff, and then later as an administrative marshal. Knickmeyer’s employment was governed by the terms of a written Memorandum of Understanding (MOU) between the Clark County Marshal’s Union and the EJDC which stipulated that adverse employment actions, including possible termination, were to be resolved through a series of administrative proceedings, eventually culminating in a binding arbitration hearing if necessary.

The EJDC sought to terminate Knickmeyer’s employment after co-workers reported several incidents of insubordination, vulgar language, and unprofessional behavior. The allegations included reports that Knickmeyer used foul language in the presence of a co-worker, publicly referred to an attorney who had complained about him as a " bitch," and retaliated against her by ordering that her purse be searched and re-scanned even after being told it contained no suspicious items. He also openly used an obscenity to refer to a superior officer. In seeking termination, the EJDC noted that Knickmeyer had previously been subject to lesser disciplinary actions in 1997, 2003, and 2013.

During the various administrative proceedings below, every hearing officer agreed that termination was appropriate and warranted. Knickmeyer appealed each step as outlined in the MOU, ultimately seeking arbitration. The arbitrator upheld the EJDC’s decision to terminate Knickmeyer, finding that a preponderance of the evidence demonstrated that Knickmeyer committed the infractions in question and that termination was an appropriate response. The arbitrator’s decision specifically noted that his conclusion was based only upon the immediate incidents at stake and not upon the previous complaints from 1997, 2003, or 2013.

Knickmeyer petitioned the district court to set aside the arbitrator’s decision, arguing that the EJDC violated his statutory rights

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under NRS Chapter 289 by improperly disclosing and relying upon his prior disciplinary history as justification for termination in this case. The district court denied the petition, and Knickmeyer appeals, repeating the same arguments made to the district court.

ANALYSIS

This court reviews a district court decision to confirm an arbitration award de novo. Thomas v. City of N. Las Vegas, 122 Nev. 82, 97, 127 P.3d 1057, 1067 (2006). But the scope of the district court’s review of an arbitration award (and, consequently, our own de novo review of the district court’s decision) is extremely limited, and is " nothing like the scope of an appellate court’s review of a trial court’s decision." Health Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev. 689, 695, 100 P.3d 172, 176 (2004). " A reviewing court should not concern itself with the ‘correctness’ of an arbitration award and thus does not review the merits of the dispute." Bohlmann v. Printz, 120 Nev. 543, 547, 96 P.3d 1155, 1158 (2004) (quoting Thompson v. Tega-Rand Int’l., 740 F.2d 762, 763 (9th Cir. 1984)), overruled on other grounds by Bass-Davis v. Davis, 122 Nev. 442, 452 n.32, 134 P.3d 103, 109 n.32 (2006).

Rather, when a contractual agreement mandates that disputes be resolved through binding arbitration, courts give considerable deference to the arbitrator’s decision. Judicial review is limited to inquiring only whether a petitioner has proven, clearly and convincingly, that one of the following is true: the arbitrator’s actions were arbitrary, capricious, or unsupported by the agreement; the arbitrator manifestly disregarded the law; or one of the specific statutory grounds set forth in NRS 38.241(1) was met. Clark Cty. Educ. Ass’n v. Clark Cty. Sch. Dist., 122 Nev. 337, 341, 131 P.3d 5, 8 (2006); Health Plan of Nev., 120 Nev. at 695, 100 P.3d at 176.

In this appeal, Knickmeyer asserts that the EJDC violated his due process rights by failing to comply with certain provisions of NRS Chapter 289 relating to discovery. He also contends that the arbitrator manifestly disregarded relevant law and exceeded his authority by determining that Knickmeyer’s conduct violated standards not articulated within the MOU and by failing to make required findings of reasonableness.²

NRS Chapter 289

Knickmeyer first argues that his statutory rights under NRS Chapter 289 were violated because he was not provided with discovery relating to three prior disciplinary incidents (from 1997, 2003, and 2013) that were used against him during the arbitration, in violation of the...