State v. Bronder, 120320 NVSC, 79695

• Docket Nº: 79695
• Opinion Judge: PARRAGUIRRE, J.:
• Party Name: THE STATE OF NEVADA, DEPARTMENT OF TRANSPORTATION, Appellant, v. JOHN BRONDER, Respondent.
• Attorney: Aaron D. Ford, Attorney General, and Cameron P. Vandenberg, Chief Deputy Attorney General, Carson City, for Appellant. Dyer Lawrence, LLP, and Thomas J. Donaldson, Carson City, for Respondent.
• Judge Panel: BEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ. Parraguirre J. We concur: Hardesty, Cadish Judges
• Case Date: December 03, 2020
• Court: Supreme Court of Nevada

136 Nev.Adv.Op. 76

THE STATE OF NEVADA, DEPARTMENT OF TRANSPORTATION, Appellant,

v.

JOHN BRONDER, Respondent.

No. 79695

Supreme Court of Nevada

December 3, 2020

Appeal from a district court order denying a petition for judicial review of a Nevada Division of Personnel Commission decision. First I Judicial District Court, Carson City; James Todd Russell, Judge.

Aaron D. Ford, Attorney General, and Cameron P. Vandenberg, Chief Deputy Attorney General, Carson City, for Appellant.

Dyer Lawrence, LLP, and Thomas J. Donaldson, Carson City, for Respondent.

BEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ.

OPINION

PARRAGUIRRE, J.:

NRS 281.641(5) provides that the Nevada Department of Administration's Personnel Commission may adopt procedural rules for whistleblower appeal hearings. NAC 281.305(1)(a), which the Personnel Commission promulgated under NRS 281.641(5), provides that a state officer or employee claiming whistleblower protection "must" file a whistleblower appeal within 10 workdays of the alleged reprisal or retaliation. In this appeal, we consider whether NAC 281.305(1)(a) is a procedural rule and thus within the rulemaking authority that NRS 281.641(5) confers upon the Personnel Commission, or instead a jurisdictional rule that exceeds the Personnel Commission's authority and thus invalid. We conclude that NAC 281.305(1)(a) is a jurisdictional rule and thus invalid.

FACTS

This dispute arose when appellant Nevada Department of I Transportation (NDOT) fired respondent John Bronder. Bronder was a probationary NDOT employee at the time of his termination.¹ Approximately 8 months after NDOT fired him, Bronder filed a whistleblower appeal alleging that his termination was retaliation for his disclosure of certain information. NDOT moved to dismiss, arguing that under the 10-day rule for filing whistleblower appeals, Bronder's appeal was untimely by several months. The hearing officer concluded that the 10-day rule is invalid and ultimately ordered NDOT to reinstate Bronder's probationary employment. NDOT petitioned the district court for judicial review, but the district court denied the petition, thereby affirming the hearing officer's decision.

NDOT now appeals, arguing that the hearing officer erroneously concluded that Bronder timely filed his whistleblower appeal.²

DISCUSSION

This appeal involves a statute and a related regulation. The statute, NRS 281.641(5), provides that "[t]he Personnel Commission may adopt rules of procedure for conducting" whistleblower-appeal hearings. The regulation, NAC 281.305(1)(a), provides that a state officer or employee claiming whistleblower protection must file a whistleblower appeal within 10 workdays of the alleged reprisal or retaliation. The issue before us is whether NAC 281.305(1)(a) is a procedural rule and thus within the rulemaking authority that NRS 281.641(5) confers, or instead a jurisdictional rule that exceeds the Personnel Commission's authority and thus invalid.

NDOT simply argues that NAC 281.305(1)(a) is valid because it "was adopted in accordance with ... NRS...