North Dakota Game and Fish Dept. v. Brashears, 10208

• Decision Date: 20 October 1982
• Docket Number: No. 10208,10208
• Citation: 325 N.W.2d 671
• Parties: The NORTH DAKOTA GAME AND FISH DEPARTMENT, Petitioner and Appellant, v. Sidney BRASHEARS, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 671

325 N.W.2d 671

The NORTH DAKOTA GAME AND FISH DEPARTMENT, Petitioner and Appellant, v. Sidney BRASHEARS, Respondent and Appellee.

Civ. No. 10208.

Supreme Court of North Dakota.

Oct. 20, 1982.

DeNae H.M. Kautzmann and Kathryn L. Dietz, Asst. Attys. Gen., Bismarck, for petitioner and appellant; argued by Kathryn L. Dietz.

Chapman & Chapman, Bismarck, for respondent and appellee; argued by Charles L. Chapman, Bismarck.

PAULSON, Justice.

This is an appeal by the North Dakota Game and Fish Department [Department] from a judgment of the District Court of Burleigh County entered on March 24, 1982. We affirm in part and reverse in part.

On August 4, 1981, Sidney Brashears, a wildlife resource management biologist for the Department, was suspended from duty without pay by the Department pending a removal hearing. This suspension without pay was made pursuant to Section 8-2-1 of the North Dakota Personnel Policies, which provides:

"The appointing authority may, after written notice, suspend any employee without pay for misconduct or other just cause for a period not to exceed thirty calendar days. A permanent employee shall have the right to appeal."

On August 11, 1981, Dale Henegar, North Dakota Game and Fish Commissioner, filed written verified charges against Brashears with North Dakota Governor Allen I. Olson and requested the Governor to initiate removal proceedings, pursuant to Sec. 20.1-02-19 of the North Dakota Century Code. ¹ On October 6, 1981, following Governor Olson's determination that the charges constituted grounds for Brashears's removal, a hearing was held before the Game and Fish Hearing Board.

Governor Olson issued a notice of suspension on October 20, 1981, ratifying the Department's August 4, 1981, suspension of Brashears and ordered that such suspension continue until final determination of the matter by the Game and Fish Hearing Board. On November 19, 1981, the Game and Fish Hearing Board issued its findings of fact, conclusions of law, and order. The Hearing Board found that the charges filed against Brashears constituted grounds for disciplinary action and ordered that "Brashears be suspended without pay from his employment ... from August 4, 1981, through November 30, 1981".

On December 18, 1981, Brashears appealed the Hearing Board's order to the District Court of Burleigh County. He claimed as a specification of error that the Hearing Board was without authority to impose the suspension without pay from August 4, 1981, through October 20, 1981, because the Governor did not exercise his "exclusive statutory authority" to suspend until October 20, 1981. After determining that it had jurisdiction to hear the appeal, the district court agreed with Brashears, finding that upon the commencement of removal proceedings pursuant to Chapter 20.1-02, N.D.C.C., only the Governor can suspend the accused person without pay, pursuant to Sec. 20.1-02-21, N.D.C.C., and under the circumstances of this case, the Governor's attempt to make the October 20, 1981, order for suspension without pay retroactive was null and void. The district court thus concluded that Brashears was entitled to receive his pay from August 11, 1981, which is the date the removal procedure was commenced, through October 20, 1981, which is the date the Governor suspended him without pay.

The Department appeals from the judgment and presents the following issues for review: (1) whether or not the district court had subject matter jurisdiction to hear Brashears's appeal from the Hearing Board's decision, and (2) whether or not the North Dakota Game and Fish Hearing Board had authority to suspend Brashears without pay from August 11 to October 20, 1981.

I

The Department contends that the district court lacked subject matter jurisdiction to hear Brashears's appeal. ² It argues that without express statutory authority no right of appeal from a decision of an administrative body exists. The Department's argument is premised on Sec. 20.1-02-22 of the North Dakota Century Code, which provides for appeals from hearing board determinations:

"20.1-02-22. Appeal to district court.--An individual dismissed by order of the hearing board, may appeal to the Burleigh County district court. This appeal shall be taken and determined in the manner provided by chapter 28-32." [Emphasis added.]

Because Brashears was "suspended" rather than "dismissed", the Department urges that the district court lacked jurisdiction to hear the appeal and, therefore, it must be dismissed.

We decline to adopt such a narrow interpretation of the statute. Prior to the enactment of the current statutory scheme relating to the removal of Department employees, the Game and Fish Board had authority to remove an employee from office "without preferring charges and without hearing". Hartung v. Manning, 50 N.D. 478, 481, 196 N.W. 554 (1923). In 1959, the Legislature enacted this statute (formerly Sec. 20-0205 and now codified under Chapter 20.1-02, N.D.C.C.) for the purpose of patterning appointment and removal procedures of Game and Fish Department personnel after those of the State Highway Patrol, giving tenure rights to Game and Fish employees because it was believed that such employees deserved this security as specialists and technicians in their chosen fields. See Minutes of the Senate Natural Resources Committee, 36th Legislative Assembly, January 30, 1959 (S.B.111). Thus, it is clear that this statutory framework evinces a definite recognition of the importance of tenure and job security for Department personnel.

The Supreme Judicial Court of Massachusetts addressed an analogous issue in Setterlund v. Groton-Dunstable Regional School Committee, --- Mass. ---, 1981 Mass.Adv.Sh. 156, 415 N.E.2d 214 (1981). In Setterlund, the plaintiff contended that his reduction from full-time teacher to part-time teacher constituted sufficient "dismissal" to entitle him to review of the committee's action in the Superior Court. The committee in that case had similarly argued for a construction of "dismissal" as meaning complete separation from employment. We find persuasive the following rationale of the Massachusetts Court in Setterlund, supra 415 N.E.2d at 216 [quoting from Caviness v. Bd. of Ed. of Ludlow Community, Etc., 59 Ill.App.3d 28, 31, 16 Ill.Dec. 526, 527-28, 375 N.E.2d 157, 158-159 (1978) ]:

"For purposes of claiming entitlement to the procedural protection afforded by G.L. c. 71, Sec. 43A, we think that a tenured teacher who is reduced to part-time employment without his consent has been 'dismissed.' '[T]o be consistent with the purpose of the School Code the words ["removed" or "dismissed"] must encompass any reduction in the extent of employment. The tenure provisions of the School Code were intended to protect experienced and veteran teachers against capricious, fickle and irregular exploits of school boards.... And limiting the application of 'removed' or 'dismissed' to instances of complete termination would--as a practical matter--totally obliterate the protection intended by the statute. If this were the case, a board could merely nibble away and reduce one's employment until economic necessity forced the tenured teacher to resign. Such interpretation cannot be sanctioned.' " [Emphasis in original.]

Construing the statute "with a view to effecting its objects and to promoting justice", Sec. 1-02-01, N.D.C.C., we hold that the term "dismissed", as used in Sec. 20.1-02-22, N.D.C.C., encompasses a "suspension" ordered by the Game and Fish Hearing Board for purposes of allowing an aggrieved individual to appeal to the district court. ³ It follows that the district court acquired jurisdiction to hear Brashears's appeal and, therefore, the judgment of the district court is properly before us for review.

II

We next determine whether or not the North Dakota Game and Fish Hearing Board had authority to suspend Brashears without pay from August 11 to October 20, 1981. ⁴ The district court found that upon the commencement of removal proceedings only the Governor can suspend the accused person without pay, pursuant to Sec. 20.1-02-21, N.D.C.C., and that the Governor's attempt to make the October 20, 1981, order for suspension without pay retroactive was null and void. The court then ordered that Brashears was entitled to receive his pay from August 11, 1981--which is the date the removal procedure was commenced--through October 20, 1981, which is the date the Governor suspended him without pay.

The district court based its decision on its interpretation of Sec. 20.1-02-21, N.D.C.C., which provides:

"20.1-02-21. Suspension pending hearing.--When the governor orders a hearing, he may, at his discretion, suspend the accused individual pending the final determination of the hearing board. If the charges are dismissed, the suspended individual shall be reinstated without loss of salary during the period of suspension."

From this statute the district court concluded, and Brashears urges, that the Governor held exclusive authority to order suspension from August 17 (which is the date the Governor determined that the verified charges constituted grounds for removal) through November 19, 1981 (which is the date the Board issued its order); that he failed to exercise his exclusive statutory authority, which could not be retroactively applied; and, therefore, that the Hearing Board was without authority to order retroactive suspension and thereby intrude upon the Governor's exclusive authority.

We do not agree. Brashears's argument, in effect, ignores the provisions of Sec. 20.1-02-20, N.D.C.C., which sets forth the authority of the Hearing Board and provides:

"20.1-02-20. Time of hearing--Notice of hearing and of determination.--The hearing specified in section 20.1-02-19 shall be held within sixty days of the filing of the charges. Not less than fifteen days before the time set for the hearing, notice thereof, signed by the governor, together with a copy...