Berdahl v. North Dakota State Personnel Bd., 890081

• Decision Date: 24 October 1989
• Docket Number: No. 890081,890081
• Citation: 447 N.W.2d 300
• Parties: Ross K. BERDAHL, Appellant, v. NORTH DAKOTA STATE PERSONNEL BOARD, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 300

447 N.W.2d 300

Ross K. BERDAHL, Appellant, v. NORTH DAKOTA STATE PERSONNEL BOARD, Appellee.

Civ. No. 890081.

Supreme Court of North Dakota.

Oct. 24, 1989.

Steven L. Latham of Wheeler Wolf, P.C., Bismarck, for appellant.

Patricia M. Moen, Asst. Atty. Gen., Bismarck, for appellee.

VANDE WALLE, Justice.

Ross Berdahl appealed from a judgment of the district court of Foster County affirming the North Dakota Personnel Board's termination of his employment. We affirm the district court's judgment.

Ross Berdahl was employed as an Equipment Operator II with the Carrington section of the North Dakota Highway Department. Berdahl's employment involved the operation of a four-ton Highway Department truck and similar vehicles. In addition to his employment with the Highway Department, Berdahl repaired automobiles as a personal business.

Highway Department policies prohibit the use of State vehicles for personal purposes. Department policies also provide that outside employment must not interfere with the employee's performance of his or her Highway Department job, and must be done outside assigned working hours. These policies were in effect throughout the eight years Berdahl was employed with the Highway Department. The violation of either of these policies by Highway Department employees could result in disciplinary sanctions up to and including dismissal. These Department policies were discussed at district safety meetings conducted twice a year. Attendance at the safety meetings was mandatory for all employees, and Berdahl regularly attended those meetings while employed by the Highway Department.

On September 23, 1986, Jerry Miller, the maintenance superintendent for the Devils Lake district of the Highway Department, discussed a number of violations of Department policy with Berdahl. Miller informed Berdahl that the district office had received a report from a member of the public alleging that he had misused a State vehicle for personal purposes. Miller then specifically warned Berdahl that if he misused State vehicles it could result in the termination of his employment. ¹

On March 13, 1987, Miller observed Berdahl driving a State vehicle outside his normal work routes. When Miller questioned Berdahl about the incident, Berdahl eventually admitted that he had been en route to a local machinery dealership to pick up automobile parts for his personal use. On March 16, 1987, Berdahl was notified that the Highway Department was considering suspending him from his employment. On April 9, 1987, the Department notified Berdahl of its decision to suspend his employment for a period of three days. The reason given by the Department for the three-day suspension was that Berdahl had, on two separate occasions, ² violated the Department's policies on the use of State vehicles. Berdahl appealed the action through the Highway Department's internal grievance procedure and then to the State Personnel Board. The State Personnel Board upheld the suspension of Berdahl, finding that he had violated Department policy in September of 1986 and in March of 1987 by using a State vehicle for personal purposes. Berdahl served the three-day suspension. Since the date of the suspension, there is no indication that Berdahl further violated Department policies regarding the personal use of State vehicles.

After the Highway Department had suspended Berdahl, it learned of another incident that occurred prior to Berdahl's suspension in which Berdahl had used a State vehicle for personal purposes. In May of 1987, Larry Falk, a Highway Department employee, informed the district engineer for the Devils Lake district, Clay Sorneson, that Berdahl stopped at Lake Region Junior College on December 17, 1986, to run a personal errand while using a State vehicle. Berdahl eventually admitted the December incident of vehicle misuse.

In the meantime, Sorneson had received a report from the mayor of Carrington, James Erickson, that Berdahl entered one of Erickson's businesses in April of 1987 to conduct personal matters during Highway Department hours. Sorneson also studied Berdahl's sick leave records and found a sick leave usage that was high.

On July 24, 1987, Sorneson informed Berdahl by written notice that the Department was contemplating dismissing him. The notice indicated that the contemplated disciplinary action was based upon charges that Berdahl operated a Department vehicle for personal use, conducted personal business during Department work hours, created an unacceptable public image for the Department, and abused his sick leave benefits.

Berdahl responded to the Department's notice of its intent to discipline him through a letter by his attorney dated July 28, 1987. On August 20, 1987, Berdahl was informed of the Highway Department's decision to terminate his employment. Berdahl appealed his termination through the Department's internal grievance procedures and eventually to the State Personnel Board. On March 30, 1988, the Board convened to hear Berdahl's appeal. The Board consisted of five persons, one of whom was Joseph Carlson, a management officer in the Driver's License Division of the Highway Department. The Board upheld the dismissal of Berdahl by a three-to-two vote, with Carlson voting to terminate Berdahl's employment. Berdahl subsequently appealed the Board's decision to the district court. On December 21, 1988, the district court entered a judgment affirming the decision of the State Personnel Board. Following the district court's judgment, Berdahl filed a timely appeal to this court.

Berdahl raises three issues on appeal. First, Berdahl contends that the Department's findings of fact that he violated Highway Department policies were not supported by a preponderance of the evidence. Next, Berdahl argues that he was denied a fair hearing and due process in regard to the termination of his employment. Finally, Berdahl contends that administrative res judicata prohibits the Board and the Department from further disciplining him for the violations of Department policies that occurred prior to earlier disciplinary action for violations of the same policies. We consider each of these arguments separately.

I. FINDINGS OF FACT

Berdahl first argues that the Department's findings of fact regarding his personal use of State vehicles, his conducting of personal business during Department hours, his creation of an unacceptable public image, and his abuse of sick leave benefits were not supported by a preponderance of the evidence.

When an administrative agency's decision is appealed to the district court and then to the Supreme Court, the Supreme Court reviews the decision of the agency and not the decision of the district court. Falcon v. Williams Cty. Social Serv. Bd., 430 N.W.2d 569 (N.D.1988); Goeller v. Job Service North Dakota, 425 N.W.2d 925 (N.D.1988); Montana-Dakota Util. Co. v. P.S.C., 413 N.W.2d 308 (N.D.1987). Our review of administrative agency decisions is governed by Section 28-32-19, N.D.C.C., which requires us to affirm an agency's decision unless one of six conditions is present. ³ Section 28-32-19, N.D.C.C.; Mund v. North Dakota Workers Compensation Bureau, 444 N.W.2d 706 (N.D.1989); Triangle Oilfield Services, Inc. v. Hagen, 373 N.W.2d 413 (N.D.1985); Matter of Annexation of Part of Donnybrook Pub. S., 365 N.W.2d 514 (N.D.1985). Specifically, under Section 28-32-19(5) we must affirm an agency's decision unless its findings of fact are not supported by a preponderance of the evidence. See Section 28-32-19(5); Inglis v. North Dakota Workmen's Comp. Bureau, 312 N.W.2d 318 (N.D.1981). The standards we use in making such a determination have been summarized as follows:

1. We do not make independent findings of fact or substitute our judgment for that of the agency, but determine only whether a reasoning mind could have reasonably determined that the factual conclusions drawn were supported by the weight of the evidence.

2. We exercise restraint when we review administrative agency findings.

3. It is not the function of the judiciary to act as a super board when reviewing administrative agency determinations.

4. We will not substitute our judgment for that of the qualified experts in the administrative agencies.

Skjefte v. Job Service North Dakota, 392 N.W.2d 815, 817 (N.D.1986); Blueshield v. Job Service North Dakota, 392 N.W.2d 70, 72 (N.D.1986). See also Howes v. Workers Compensation Bureau, 429 N.W.2d 730 (N.D.1988), cert. denied --- U.S. ----, 109 S.Ct. 1126, 103 L.Ed.2d 189 (1989); Redwood Village v. N.D. Dept. of Human S., 420 N.W.2d 333 (N.D.1988); Grace v. North Dakota Workmen's Comp. Bureau, 395 N.W.2d 576 (N.D.1986); Otto v. Job Service North Dakota, 390 N.W.2d 550 (N.D.1986).

Our review of the Highway Department's termination hearing transcript, which was submitted to the State Personnel Board on appeal, reveals that Berdahl's first argument is rather anemic. The transcript is replete with testimony by Sorneson and Falk regarding Berdahl's use of a State vehicle on December 17, 1986, to carry out personal business at Lake Region Junior College in Devils Lake. Furthermore, the transcript contains Berdahl's admission of this incident of vehicle misuse.

Likewise, the transcript contains testimony by Sorneson that he had received a report from Mayor Erickson stating that Berdahl had entered one of Erickson's businesses during Department hours to conduct personal business. There was also testimony by Mr. Lee, the manager of a tire company in Carrington, indicating that Berdahl would often stop by his place of business during Department hours to visit with his shop foreman, and that Berdahl was not conducting business on behalf of the Highway Department at the time.

Additionally, the transcript contains testimony by Sorneson and Miller that they could not reach Berdahl by telephone at his mobile home on days when Berdahl claimed sick leave. Sorneson further testified that he...