Bisch v. Las Vegas Metro. Police Dep't

• Citation: 302 P.3d 1108,129 Nev. Adv. Op. 36
• Decision Date: 30 May 2013
• Docket Number: No. 58810.,58810.
• Parties: Laurie BISCH, Appellant, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a Local Government Employer; and Las Vegas Police Protective Association, Inc., Respondents.
• Court: Nevada Supreme Court

302 P.3d 1108

129 Nev. Adv. Op. 36

Laurie BISCH, Appellant,

v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a Local Government Employer; and Las Vegas Police Protective Association, Inc., Respondents.

No. 58810.

Supreme Court of Nevada.

May 30, 2013.

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

Marquis Aurbach Coffing and Nicholas D. Crosby and Micah S. Echols, Las Vegas, for Respondent Las Vegas Metropolitan Police Department.

Kathryn Werner Collins, Las Vegas, for Respondent Las Vegas Police Protective Association, Inc.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, PARRAGUIRRE, J.:

The Las Vegas Metropolitan Police Department (LVMPD) initiated an internal investigation of appellant Laurie Bisch regarding allegations of insurance fraud after Bisch's dog bit her daughter's 17–year–old friend, and Bisch represented to medical staff that the girl was her own daughter but did not use her employer-provided health insurance. Bisch was not provided a police protective association (PPA) representative during an internal investigation meeting because she had retained a private attorney. At issue here is whether Bisch was entitled to have PPA representation present during an internal investigation meeting. We hold that she was not. NRS 289.080 did not impose a duty on the PPA to provide representation to Bisch.

Although the charges of insurance fraud were ultimately dropped, the LVMPD issued Bisch a formal written reprimand for a violation of “[c]onduct unbecoming an employee” under LVMPD Civil Service Rule 510.2(G)(1). Also at issue is whether Bisch's discipline was based on overly broad criteria or was politically motivated. We conclude that her discipline was proper because the discipline bore directly on her fitness to perform her profession. Further, despite the fact that she established a prima facie case of political motivation, substantial evidence was presented to rebut the presumption of discrimination. We therefore affirm the district court's decision.

FACTS

Bisch is a seasoned veteran of the LVMPD. In 2006, she ran unsuccessfully for Clark County Sheriff, and it was well known that she planned to run again in 2010.

In 2008, while Bisch was off duty, her dog bit her daughter's 17–year–old friend. Bisch took the girl to an urgent care facility for treatment. Unable to contact the girl's mother and concerned that the urgent care would not provide treatment without a legal guardian present, Bisch represented to the urgent care staff that the girl was actually her own daughter, using both her daughter's name and birthday. Bisch paid for the treatment with her own funds and did not use her employer-provided health insurance.

Upon learning of the dog bite and ensuing medical treatment, the girl's mother filed a complaint with the LVMPD, alleging that Bisch had committed insurance fraud by misrepresenting the girl's identity to the hospital.

This complaint generated an Internal Affairs (IA) investigation into Bisch's conduct. Although the IA investigator confirmed that Bisch had not used her insurance to pay for the treatment, IA nonetheless scheduled an interview with Bisch. In preparation for this interview, Bisch informed her PPA representative that she would bring her private attorney to the interview, but requested that a PPA representative also be present. Bisch's PPA representative responded that, per the PPA bylaws, the PPA provided representation only when the member did not procure his or her own attorney. The interview proceeded without PPA representation.

Approximately one week later, the IA investigator determined that Bisch had not committed insurance fraud but still inquired to both the LVMPD and the district attorney's office as to whether Bisch had violated any laws. After hearing a cursory description of Bisch's conduct over the phone, a deputy district attorney informed the IA investigator that Bisch may have committed identity theft, a felony under NRS 205.463.

The IA investigator concluded his investigation by generating a report that recommended sustaining the initial complaint lodged against Bisch on the ground that she had committed identity theft, which, as a felony, was a terminable offense. Pursuant to LVMPD policy, the IA investigator's report was sent to Sergeant Ken Romane for approval. Having received mixed signals from his own supervisor regarding the nature of the complaint against Bisch, Romane spoke with Bisch and the IA investigator directly, and decided that he could not in good faith issue any formal discipline to Bisch. Romane then contacted LVMPD's labor relations office and stated that the report needed to be “pulled back” and reconsidered, as he felt the identity theft charge was unsubstantiated.

A few months later, LVMPD informed Romane that the complaint against Bisch would be sustained, but because Bisch could not be found to have committed identity theft under NRS 205.463, the complaint would be sustained for the lesser violation of LVMPD Civil Service Rule 510.2(G)(1), which forbids “[c]onduct unbecoming an employee.”

Although Romane again sought permission to simply give Bisch a verbal warning, his supervisor instructed him to give Bisch a formal written reprimand—the lowest form of official discipline. Eighteen months later, the written reprimand was removed from Bisch's employee file as required by LVMPD policy.

Following the written reprimand in 2009, Bisch filed a complaint with the Employee Management Relations Board (EMRB) against both the PPA and LVMPD. Bisch alleged that the PPA had breached its duty of fair representation when it refused to represent her at her IA interview. According to Bisch, the PPA's refusal was discriminatory because it was politically motivated by its endorsement of a different candidate for sheriff in the 2006 election. Bisch also contended that NRS 289.080, which governs peace officers' rights during an investigation, granted her the right to have two representatives of her choosing at her IA interview and that the PPA's violation of this statute constituted a separate breach of the duty of fair representation.

With regard to the LVMPD, Bisch contended that it had implemented overly broad disciplinary criteria by disciplining her for off-duty conduct that had no actual effect on her ability to perform her job. Additionally, Bisch argued that her written reprimand was a politically motivated attempt to thwart her 2010 campaign for sheriff. Following a two-day hearing, the EMRB denied Bisch's claims in their entirety. The district court likewise denied Bisch's subsequent petition for judicial review, and this appeal followed.²

DISCUSSION

In this appeal, we first address whether the current matter is moot following the removal of the written reprimand from Bisch's employee file. Concluding that it is not, we then address whether the EMRB properly rejected Bisch's duty-of-fair-representation claim and determine that NRS 289.080 does not impose a duty on Bisch's PPA to provide a representative for an investigatory interview by her employer. We then address whether the EMRB properly rejected Bisch's claim that the discipline was politically motivated, concluding that the EMRB applied the correct legal standard and relied on substantial evidence in upholding LVMPD's written reprimand.

Standard of review

This court, like the district court, gives considerable deference to rulings by the Employee Management Relations Board. City of N. Las Vegas v. State, EMRB, 127 Nev. ––––, ––––, 261 P.3d 1071, 1076 (2011); see alsoNRS 233B.135(3). This court reviews pure questions of law de novo but will affirm the EMRB's decision concerning a question of fact if it is supported by substantial evidence. 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. at 899, 59 P.3d at 1219. In determining whether substantial evidence exists, this court is limited to the record as it was presented before the EMRB. Id. If the decision lacks substantial evidentiary support, the decision is unsustainable as being arbitrary or capricious. Id.

Bisch's appeal is not moot

Prior to oral argument, LVMPD notified this court that the issue of removing the written reprimand is potentially moot, as LVMPD policy requires the removal of written reprimands from employee files 18 months after the employee signs the adjudication. LVMPD represented to this court that the 18–month period had passed and that the reprimand is no longer included in Bisch's employee file.

In Nevada, “[a] moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights.” NCAA v. Univ. of Nev., 97 Nev. 56, 58, 624 P.2d 10, 11 (1981). “Cases presenting real controversies at the time of their institution may become moot by the happening of subsequent events.” Id. Even if this issue is now moot, we may still consider this case as a matter of widespread importance capable of repetition, yet evading review. Personhood Nev. v. Bristol, 126 Nev. ––––, ––––, 245 P.3d 572, 574 (2010). If so, then Bisch must demonstrate that (1) the duration of the challenged action is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important. Id.

Despite the apparent removal of the discipline from Bisch's employee file, the alleged political motivation of the reprimand and the potential effect it could have on Bisch's political ambitions demonstrate that an actual controversy still exists. We therefore decline LVMPD's request to dismiss this appeal as moot.

The EMRB properly rejected Bisch's duty-of-fair-representation claim

In challenging the EMRB's rejection of her duty-of-fair-representation claim, Bisch contends that the PPA breached its duty by declining to have a PPA representative appear on her behalf at the IA...