Appeal from a district court order denying judicial review of an administrative decision denying unemployment benefits. Second Judicial District Court, Washoe County; Robert H. Perry, Judge.
Reversed and remanded with instructions.
Lemons, Grundy & Eisenberg and Caryn S. Tijsseling, Reno; Lewis Roca Rothgerber LLP and Darren J. Lemieux, Reno, for Appellant.
J. Thomas Susich, Senior Legal Counsel, Nevada Employment Security Division, Sparks, for Respondents Nevada Employment Security Division, Cynthia Jones, and Katie Johnson.
Office of General Counsel, Washoe County School District, and Christopher B. Reich, Randy A. Drake, and Sara K. Almo, Reno, for Respondent Washoe County School District.
BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.
NRS 453.3363 affords certain first-time drug offenders the opportunity to avoid a criminal conviction if the offender pleads guilty, then successfully completes a probationary period. Upon successfully completing probation, the offender is discharged and the charges are dismissed. Addressing the civil consequences of such a plea to the offender who successfully completes probation, NRS 453.3363(4) provides: " [D]ischarge and dismissal under this [statute] is without adjudication of guilt and is not a conviction for purposes ... of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose." We must decide how this statute applies to a public school teacher who was terminated after pleading guilty but before completing probation, specifically, whether a guilty plea pursuant to NRS 453.3363 may be used to deny unemployment benefits to the terminated teacher in this circumstance. We hold that the guilty plea may not be used as the basis for denying unemployment benefits, and therefore reverse and remand.
Appellant Clinton Hohenstein, then a teacher for the respondent Washoe County School District (WCSD), was arrested for and pleaded guilty to possessing marijuana in his residence in violation of NRS 453.336. Because this was his first offense, the district court did not enter a judgment of conviction. Instead, it suspended Hohenstein's sentence and placed him on probation for a period not to exceed 3 years. Per NRS 453.3363(1), if Hohenstein fulfilled the conditions of probation, the criminal proceedings would be dismissed in accordance with NRS 453.3363(3).
On learning of Hohenstein's arrest the WCSD suspended him and began termination proceedings, during which Hohenstein entered his guilty plea. The WCSD specified its final grounds for terminating Hohenstein, consistent with NRS 391.31297, as: (1) immorality, (2) conviction of a felony or of a crime involving moral turpitude, and (3) any cause which constitutes grounds for revocation of a teaching license.
Hohenstein sought unemployment benefits. After a hearing, the Employment Security Division (ESD) denied Hohenstein benefits on finding that his guilty plea established that the WCSD had terminated Hohenstein for " workplace misconduct," to wit: he had committed immoral conduct under NRS 391.31297(1)(b), which disqualified him from eligibility for unemployment benefits under NRS ...