Clements v. Airport Authority of Washoe County

• Decision Date: 25 May 1995
• Docket Number: No. 23025,23025
• Parties: Douglas CLEMENTS and Sue Clements, Appellants, v. AIRPORT AUTHORITY OF WASHOE COUNTY, Respondent.
• Court: Nevada Supreme Court

Page 458

896 P.2d 458

111 Nev. 717

Douglas CLEMENTS and Sue Clements, Appellants, v. AIRPORT AUTHORITY OF WASHOE COUNTY, Respondent.

No. 23025.

Supreme Court of Nevada.

May 25, 1995.

[111 Nev. 718] Lynn G. Pierce, Reno, for appellants.

Walther, Key, Maupin, Oats, Cox, Klaich & LeGoy, Reno, for respondent.

OPINION

ROSE, Justice:

Appellants Douglas Clements (Douglas) and Susan Clements (Susan) were employed by the respondent Airport Authority of Washoe County (AAWC). Susan and Douglas were terminated by the Executive Director of the AAWC following reorganization of the AAWC, and the AAWC Board of Trustees (the Board) sustained these terminations. Because Susan was a civil servant protected by the provisions of the AAWC civil service plan, she should have been transferred to another position in lieu of termination, in accordance with plan provisions. Douglas, however, was not a civil servant and was properly terminated.

FACTS

In 1986, Susan was hired by the AAWC Property Management Department (Properties). At the time she was terminated, Susan held the position within Properties of Advertising/Marketing Specialist. Douglas was hired as AAWC Chief of Planning, Engineering, and Maintenance (PEM) in December, 1985.

On April 6, 1989, the Board approved a reorganization plan submitted to it by its Executive Director, Robert White (White). White became the Executive Director of the AAWC in November, 1988, following the resignation of the predecessor Executive Director after allegations of misconduct. Shortly after White became the Executive Director, he commenced planning the reorganization of the AAWC "to create an efficient operation." The reorganization, as passed by the Board, involved the termination of both Susan and Douglas. White personally chose Susan as the employee in her department to be laid off, and the reorganization plan, developed by White, specifically targeted Douglas's position as Chief of PEM for termination.

Douglas and Susan each filed a grievance protesting their termination, and separate grievance hearings were held for both Douglas and Susan before three-member grievance panels. The grievance panels unanimously found that the AAWC violated its own Personnel Policies and Procedures Manual (the Manual), setting forth the AAWC civil service plan, by wrongfully terminating Douglas and Susan, and that Douglas and Susan should have been offered positions within the AAWC in lieu of termination.

White, claiming power of review over the grievance panels' decisions under Manual section 7.1D, unilaterally reversed the decision of both panels, finding that he properly terminated Susan and Douglas. White concluded that the grievance panels' decisions were not compatible with personnel policies, to wit: (1) that Douglas, as a department head, was an at-will employee, unprotected by the provisions of the Manual, and (2) that The Board, which may review the decision of a grievance panel or the Executive Director, and whose decision is the final and binding agency decision, affirmed White's decision. As to Douglas, the Board determined that White had jurisdiction to render his decision, that Douglas was an at-will employee, and that White did not err in reversing the decision of the grievance panel. As to Susan, the Board determined that she was a professional employee, and that she was therefore not entitled to the protections of the Manual, and that White did not err in reversing the decision of the grievance panel.

Susan was a professional employee, also unprotected by the provisions of the Manual.

Douglas and Susan apparently claimed before the grievance panel that their terminations were the result of exercising their lawful rights to report improper activity. However, both grievance panels determined that it was not the proper forum to make this determination. The findings of fact, conclusions of law, and decision of the Board give no indication that the issue of retaliatory firing was considered, except a very general determination that Douglas and Susan were provided with due process in their terminations.

Douglas and Susan filed a complaint styled as a petition for judicial review in the district court asking that the decisions of the Board be reviewed because they were clearly erroneous, arbitrary, and capricious, represented an excess of authority, and were an abuse of discretion. There was no cause of action for retaliatory firing or claim that Douglas and Susan were terminated because of exercising their right of free speech in reporting improper activity. The Clements' brief to the district court did claim that the reorganization was a subterfuge to get rid of Douglas and Susan because they had reported improprieties of a prior Executive Director. However, no amendment to the complaint was requested by the Clements to assert retaliatory firing or termination in violation of Nevada's public policy. Accordingly, the district court determined that substantial evidence and the policy and procedures manual supported the Board's terminations of Douglas and Susan, and the court specifically addressed the claim of retaliatory firings.

Petitioners argue that their discharge was in retaliation of their coming forward and offering information concerning improprieties by the previous Director. This is an issue not addressed in the Board of Trustees' decision and, thus, not an issue properly before this Court at this time.

The record before the district court also contained Douglas and Susan's complaint in the United States District Court filed April 12, 1991. In this pleading, the Clements claim that jurisdiction of the court rested on 28 U.S.C. § 1331 (1988) and reiterated their claim of retaliatory discharge. The complaint specifically noted that the grievance panel declined to rule on the issue of retaliatory discharge because it was beyond the scope and authority of the grievance panel. The Clements then went on to claim that their termination violated the United States Constitution and Nevada law, that the termination was without cause and breached the implied covenant of good faith and fair dealing, that the termination constituted a violation of Nevada's public policy because it was a retaliatory discharge, and that they suffered the infliction of emotional distress.

Standard of Review

This court's role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to the agency in order to determine whether the agency's decision was arbitrary or capricious and was thus an abuse of the agency's discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983); see NRS 233B.135 ¹ The dissent of Justice Shearing states that only those determinations that are specifically within the administrative agency's ken or expertise are entitled to deferential review. While we have no major quarrel with this observation, we note that no such distinction is made in NRS 233B.135 or in our prior case law. Further, we believe that decisions involving the intricacies of an agency's operation and procedures are entitled to some deference by this court. However, given the issues and record on appeal in this case, we would reach the same result without giving any deference to the Board.

State Envtl. Comm'n v. John Lawrence Nev., 108 [111 Nev. 722] Nev. 431, 433-34, 834 P.2d 408, 410 (1992). "Administrative agencies may receive and weigh evidence and a reviewing court may not substitute its judgment on questions of fact." Southwest Gas v. Woods, 108 Nev. 11, 15, 823 P.2d 288, 290 (1992) (citations omitted). On questions of fact, this court is limited to determining whether substantial evidence exists in the record to support the administrative agency's decision. See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987). Although a reviewing court may decide pure legal questions without deference to an agency determination, an agency's conclusions of law which are closely related to the agency's view of the facts are entitled to deference and should not be disturbed if they are supported by substantial evidence. SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218, 220 (1992). Substantial evidence is " 'that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.' " State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n. 1, 729 P.2d 497, 498 n. 1 (1986) (quoting Robertson Transp. Co. v. P.S.C., 39 Wis.2d 653, 159 N.W.2d 636, 638 (1968)).

AAWC Creation and the Manual

The AAWC was created by the Legislature in 1977, under Chapter 474 of the 1977 Statutes of Nevada (the Act), as a quasi- municipal corporation. 1977 Nev.Stat., ch. 474, § 4 at 969. Section 29 of the Act authorized the AAWC to adopt its own civil service plan to be administered by the AAWC Board. 1977 Nev.Stat., ch. 474, § 29 at 975. The Manual sets forth the civil service system as adopted by the AAWC. Therefore, any protections provided to AAWC employees by the Manual apply only to those employees covered by the Manual, i.e., those employees within the civil service system.

In addition to being excluded from the civil service system by the express provisions of the Manual, an employee may also be excluded from the civil service system by the provisions of section 29 of the Act. Under section 29(13), "persons employed to render professional, scientific, technical or expert service, [and] persons providing services of a temporary or exceptional character" are mandatorily exempt from the AAWC civil service plan. 1985 Nev.Stat., ch. 494, § 5 at 1513. Those included within the AAWC civil service plan may be entitled to protection from termination by Manual section 9.2, which states:

When necessary to reduce the number of employees in any job classification, it is the policy of the Airport Authority whenever possible to attempt to minimize lay-offs by readjustment of personnel through transfer, if...