State, Dept. of Human Resources, Welfare Div. v. Fowler

• Decision Date: 25 August 1993
• Docket Number: No. 22945,22945
• Citation: 858 P.2d 375,109 Nev. 782
• Parties: The STATE of Nevada, DEPARTMENT OF HUMAN RESOURCES, WELFARE DIVISION, Appellant, v. Terry M. FOWLER, Respondent.
• Court: Nevada Supreme Court

Page 375

858 P.2d 375

109 Nev. 782

The STATE of Nevada, DEPARTMENT OF HUMAN RESOURCES, WELFARE DIVISION, Appellant, v. Terry M. FOWLER, Respondent.

No. 22945.

Supreme Court of Nevada.

Aug. 25, 1993.

Frankie Sue Del Papa, Atty. Gen., and Gerald E. Weis, Sr. Deputy Atty. Gen., Carson City, for appellant.

Jonathan H. King, Reno, for respondent.

OPINION

PER CURIAM:

On November 22, 1989, appellant Welfare Division of the Nevada State Department of Human Resources ("Welfare Division") terminated respondent Terry M. Fowler ("Fowler") from his position as a computer system programmer because he allowed another individual to have unauthorized access to the Welfare Division's computer system. Fowler appealed the termination to the Personnel Commission hearing officer.

After a three-day personnel hearing, the hearing officer found that Fowler violated the Welfare Division's requirements in permitting the unauthorized access to the computer system. Finding no further evidence of indiscretions on Fowler's part, the hearing officer held that Fowler's discipline must be progressive, and that the Welfare Division was not justified in terminating Fowler. The hearing officer ordered the Welfare Division to reinstate Fowler with full back pay and benefits, minus offsets for Fowler's earnings during the period between his termination and reinstatement. The hearing officer further held that the reversal and reinstatement "is without prejudice to the right of the employer to impose lesser discipline, up to and including either 90 days' suspension without pay or demotion for the conduct established at trial in this matter." Fowler returned to work at the Welfare Division on October 15, 1990.

Although the hearing officer reinstated Fowler's employment, Fowler filed a petition for judicial review. Fowler challenged the hearing officer's finding that the Welfare Division was entitled to offset Fowler's earnings subsequent to his termination in arriving at the amount of back wages to be paid. Fowler also challenged the portion of the hearing officer's decision which permitted the Welfare Division to impose lesser discipline. The Welfare Division cross-petitioned, challenging the hearing officer's rulings that Fowler's termination was unjustified and that Fowler was entitled to reinstatement with full back pay and benefits.

The district court held that the Welfare Division was not justified in terminating Fowler, that the Welfare Division could impose lesser discipline on Fowler, and that the Welfare Division could offset Fowler's earnings from employment subsequent to termination in arriving at a net sum to pay him for back wages. The district court reduced Fowler's period of suspension and found that Fowler was entitled to interest from the time the wages became due and owing to him until paid. On May 8, 1991, Fowler's attorney filed a motion for attorney's fees and costs pursuant to NRS 18.010(2) and NRS 608.140 on the grounds that Fowler was a prevailing party.

In its Findings of Fact, Conclusions of Law and Judgment entered June 4, 1991, the district court awarded Fowler attorney's fees in the amount of $13,125.00 and interest to be calculated by his attorney. On June 17, 1991, the Welfare Division filed a motion to alter or amend the judgment. On November 19, 1991, the court denied the motion to alter or amend, and served written notice of the order's entry on January 13, 1992. The Welfare Division appeals the order awarding attorney's fees and interest.

DISCUSSION

Attorney's Fees

The Welfare Division contends that the district court erred in awarding attorney's fees to Fowler because there is no statutory authority for the award. The established rule is that a court may not award attorney's fees unless authorized by statute, rule or contract. Nevada Bd. Osteopathic Med. v. Graham, 98 Nev. 174, 175, 643 P.2d 1222, 1223 (1982); State ex rel. List v. Courtesy Motors, 95 Nev. 103, 108, 590 P.2d 163, 166 (1979).

Fowler brought the instant action pursuant to a petition for judicial review of an agency's disciplinary action against an employee. The Welfare Division disciplined Fowler pursuant to NRS 284.383 ¹ and 284.385. ² Fowler appealed the agency's disciplinary action under NRS 284.390. ³ The hearing officer's decision was subject to judicial review pursuant to NRS 284.390(7) ⁴ and NRS 233B.130. ⁵

First, NRS Chapter 284 does not authorize an award of attorney's fees in an administrative disciplinary proceeding or appeal therefrom. The only remedy set forth in NRS Chapter 284 is as follows:

If the hearing officer determines that the dismissal, demotion or suspension was without just cause as provided in NRS 284.385, the action must be set aside and the employee must be reinstated, with full pay for the period of dismissal, demotion or suspension.

NRS 284.390(5).

Second, this court has previously held that NRS Chapter 233B applies to judicial review of disciplinary action taken by the Welfare Division. See Navarro v. State ex rel. Dep't Human Res., 98 Nev. 562, 655 P.2d 158 (1982). NRS 233B.130(6) provides: "The provisions of this chapter are the exclusive means of judicial review of, or judicial action concerning a final decision in a contested case involving an agency to which this chapter applies." NRS 233B.130 does not contain any specific language authorizing the award of attorney's fees in actions involving petitions for judicial review of agency action.

1. NRS 18.010

In State Indus. Ins. System v. Snapp, 100 Nev. 290, 293, 680 P.2d 590, 592 (1984), Snapp petitioned the district court under NRS 233B.130 for review of the appeals officer's decision. The district court awarded him attorney's fees pursuant to NRS 18.010 ⁶, not pursuant to any provision of NRS Chapter 233B. Id. This court reversed the attorney's fees award pursuant to NRS 18.010 because it was not an action for money damages. Id. at 294, 680 P.2d at 592; see McCracken v. Cory, 99 Nev. 471, 473, 664 P.2d 349, 350 (1983). In SIIS v. Wrenn, 104 Nev. 536, 537, 762 P.2d 884, 885 (1988) cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661 (1989), the district court awarded the respondent attorney's fees following his successful petition for judicial review of a worker's compensation claim. In reversing the award, this court stated that "the legislature has not expressly authorized an award of attorney's fees in worker's compensation cases except in limited circumstances not applicable here. We have repeatedly refused to imply provisions not expressly included in the legislative scheme." Id. at 539, 762 P.2d at 886; see also Weaver v. SIIS, 104 Nev. 305, 306, 756 P.2d 1195, 1196 (1988); Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 632, 729 P.2d 1355, 1356-57 (1986).

Fowler contends that the district court erred in not granting attorney's fees pursuant to NRS 18.010. The district court stated that Fowler was not entitled to an award of attorney's fees under NRS 18.010 because it was not a case for money damages. See McCracken v. Cory, 99 Nev. 471, 473, 664 P.2d 349, 350 (1983); International Indus. v. United Mtg. Co., 96 Nev. 150, 156-57, 606 P.2d 163, 167 (1980). The instant case involved reinstatement and full back pay and benefits. Therefore, because Fowler did not request money damages in the judicial review proceedings below, the district court did not have any authority to award attorney's fees under NRS 18.010.

2. NRS Chapter 608

Although it did not find authority for an attorney's fees award under NRS 18.010 the district court found enabling authority for the award in NRS 608.140. ⁷ The Welfare Division contends that the district court erred because NRS Chapter 608 governs disputes only between private employers and their employees. The chapter does not apply to a disciplinary action by a public employer against a public employee pursuant to NRS 284.383 and 284.385.

The legislative declaration of the purpose of NRS Chapter 608 is contained in NRS 608.005, which provides:

The legislature hereby finds and declares that the health and welfare of workers and the employment of persons in private enterprise in this state are of concern to the state and that the health and welfare of persons required to earn their livings by their own endeavors require certain safeguards as to hours of service, working conditions and compensation therefore.

(Emphasis added.) This declaration indicates that the Nevada Legislature enacted NRS Chapter 608 to address private employment issues; the chapter does not address public employment. In fact, NRS 608.0113 defines "private employment" as "all employment other than employment under the direction, management, supervision and control of this state or any county, city or town therein, or any office or department thereof." See also Op.Nev.Atty.Gen. 81-9 (Sept. 24, 1981) ("[W]e have reached the conclusion that Chapter 608 of NRS in its entirety is not applicable to the State of Nevada, because this chapter was intended to control private employment only.").

Fowler asserts that there is no rational basis for distinguishing between public and private employers for the purposes of NRS Chapter 608. He contends that such a distinction violates equal protection of the law under the Nevada and United States Constitutions. This argument is unpersuasive. This classification does not affect a fundamental right or involve a suspect or quasi-suspect classification. Therefore, under equal protection analysis, this court must uphold the statute if it is rationally related to a legitimate government purpose. In its brief, the Welfare Division sets forth the following rationale for distinguishing between public and private employers:

Generally, a private employee is hired on an at-will basis and wages earned and found due are actual wages for which the employee put in his time on the job. Permanent public employees, on the other hand, may not be terminated except for cause. There is a procedure under which permanent...