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Bisch v. Las Vegas Metropolitan Police Department

Supreme Court of Nevada

May 30, 2013

LAURIE BISCH, Appellant,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, A LOCAL GOVERNMENT EMPLOYER; AND LAS VEGAS POLICE PROTECTIVE ASSOCIATION, INC., Respondents.

Appeal from a district court order denying a petition for judicial review and denying declaratory and injunctive relief in an employment matter. Eighth Judicial District Court, Clark County; Jerome T. Tao, Judge.

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

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 ...


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