from a district court order denying a petition tor judicial
review in an employment matter. Eighth Judicial District
Court, Clark County; Nancy L. Allf, Judge.
D. Ford, Attorney General, and Michelle Di Silvestro Alanis,
Deputy Attorney General, Carson City, for Appellant.
Office of Daniel Marks and Daniel Marks and Adam Levine, Las
Vegas, for Respondent.
HARDESTY, STIGLICH and SILVER, JJ.
appellant Nevada Department of Corrections (NDOC) terminated
respondent Brian Ludwick's employment for a first-time
offense, Ludwick was reinstated by a hearing officer on
administrative appeal. At issue is whether the hearing
officer erred in finding that NDOC's decision to
terminate was improper. We hold that the hearing officer
erred by relying, even if only in part, on a regulation that
the State Personnel Commission (Commission) had not approved
as statutorily required. The hearing officer also did not
properly consider, as addressed in our recent opinion
O'Keefe v. State, Department of Motor Vehicles,
134 Nev., Adv. Op. 92, 431 P.3d 350 (2018),  whether
Ludwick's actions constituted violations of the valid
regulations NDOC charged him with violating and, if so,
whether those violations warranted termination as a
first-time disciplinary measure. Accordingly, we reverse the
district court's denial of NDOC's petition for
judicial review and remand for proceedings consistent with
AND PROCEDURAL HISTORY
worked for NDOC as a correctional officer. During his
employment, he qualified for leave under the Family and
Medical Leave Act (FMLA), 29 U.S.C. § 2601 (2012), due
to hypertension. In the more than two years Ludwick worked
for NDOC, he had no disciplinary history.
day of the incident for which Ludwick was terminated, Ludwick
was assigned to Unit 1 at the correctional facility. Unit 1
houses inmates returning from solitary confinement and tends
to have more violent incidents than any other unit. The
mandated minimum staffing for Unit 1 at the time was two
officers, but three officers were assigned to Unit 1 on that
day. During his shift, Ludwick attempted to contact his
supervisor to inform him that he was not feeling well, but
could not get ahold of him. Ludwick then left Unit 1, without
prior permission, to speak to his supervisor in person.
Although the parties dispute the specifics of the
conversation that ensued, Ludwick ultimately left work on
FMLA leave. The supervisor subsequently generated a report
stating that Ludwick neglected his duty and abandoned his
post without authorization when he left Unit 1.
an internal investigation into the supervisor's report,
NDOC charged Ludwick with violating NAC 284.650(1) (activity
incompatible with employee's conditions of employment),
NAC 284.650(3) (violating or endangering the security of the
institution), NAC 284.650(7) (inexcusable neglect of duty),
and NDOC's Administrative Regulation (AR) 339.05.15
(neglect of duty-leaving an assigned post while on duty
without authorization of a supervisor). NDOC initially
recommended a five-day suspension but ultimately decided to
terminate Ludwick for consistency purposes, as other
employees who had violated AR 339 were terminated.
administratively challenged NDOC's decision and,
following a hearing, the hearing officer overturned the
termination. The hearing officer agreed with NDOC that
"Ludwick engaged in inexcusable neglect by leaving his
post without the prior permission of a supervisor." The
hearing officer found that termination of employment,
however, was too harsh a penalty, as Ludwick had no prior
discipline and no incidents arose in Unit 1 after Ludwick
left. The hearing officer also disagreed with NDOC's
argument that Ludwick's leaving Unit 1 without prior
approval constituted a serious security risk, as the minimum
staffing requirements for the unit were still met and no one
was assigned to replace Ludwick in Unit 1 after he left for
the day. Finding that "some discipline" was still
required because Ludwick "in fact violate[d] a very
important safety and security policy by leaving his post
without prior authorization from a supervisor/' the
hearing officer ordered that Ludwick be suspended for not
more than 30 days. The district court denied NDOC's
subsequent petition for judicial review and this appeal
reviewing a district court's denial of a petition for
judicial review of an agency decision, this court engages in
the same analysis as the district court." Taylor v.
State, Dep't of Health & Human Servs., 129 Nev.
928, 930, 314 P.3d 949, 951 (2013) (quoting Rio All Suite
Hotel & Casino v. Phillips, 126 Nev. 346, 349, 240
P.3d 2, 4 (2010)). Thus, pursuant to Nevada's
Administrative Procedure Act (NAPA), we review the hearing
officer's decision to determine whether it is clearly
erroneous, arbitrary or capricious, or affected by an error
of law. NRS 233B. 135(3). In doing so, we review questions of
law de novo but "defer[ ] to [a hearing officer's]
interpretation of its governing statutes or regulations if
the interpretation is within the language of the
statute." Taylor, 129 Nev. at 930, 314 P.3d at
951 (quoting Dutchess Bus. Servs., Inc. v. Nev. State Bd.
of Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165
hearing officer's review of NDOC's ...