LAS VEGAS METRO. POLICE DEP’T v. BERNI, 111 Nev. 958 (1995)

899 P.2d 1106

No. 25353Supreme Court of Nevada.
July 27, 1995 [Rehearing denied October 19, 1995]

Appeal from Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.

Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Appellant.

Potter Law Offices, Las Vegas, for Respondents.

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OPINION
By the Court, STEFFEN, C.J.:

Appellant Las Vegas Metropolitan Police Department (Metro) terminated respondent, Metro Officer Richard Berni (Berni), for misconduct involving two suspected prostitutes. Respondent Civil Service Board of the Las Vegas Metropolitan Police Department (Board) upheld Berni’s discharge on three different occasions, each of which was appealed to the district court and thereafter remanded to the Board for further review. Finally, the district court found that termination constituted excessive punishment and ordered the Board to impose a lesser punishment as circumscribed by the court. Resigned to its inability to sustain Officer Berni’s termination, the Board imposed the punishment fixed by the district court, thus prompting Metro to seek relief in this court.

FACTS
During his duty shift, Officer Berni accosted two suspected

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prostitutes and advised them of techniques for avoiding vice investigators. Later that afternoon, while still on duty, Berni entered the women’s motel room with their permission and proceeded to secure background information on each woman. During the visit, however, Officer Berni began browsing through pornographic magazines that he discovered during a cursory search of the motel room. In addition, Berni admitted to sliding his hand down one woman’s pantyhose and fondling her vagina. Upon leaving, Berni told the women that he would come back after his shift to retrieve a “collector’s edition” of a pornographic magazine.

After Berni’s visit, the two women cooperated with other Metro officers in a sting operation in exchange for a promise of “a lot of money.” Berni returned to the motel room and the scantily clothed women at the end of his shift. The women helped Berni remove his clothes and then signaled police officers waiting outside to join them. Upon entering the room, the officers found a naked Officer Berni attempting to hide behind the door.

Metro subsequently terminated Berni, and the officer appealed to the Board. The Board sustained the following charges against him: (1) giving assistance to suspects; (2) neglect of duty; (3) conduct unbecoming an employee; and (4) consorting with persons of ill repute. A fifth charge, failure to maintain communications, was rejected by the Board on the basis of insufficient evidence. The Board concluded that the four meritorious charges against Berni justified his termination.

In petitioning the district court for relief, Berni’s counsel successfully limited the hearsay evidence that could be considered by the Board. Eventually, the district court limited and specified the punishment the Board could impose on Berni.

The first petition to the district court resulted in a determination that the Board improperly considered the transcripts of interviews with the two suspected prostitutes. Both women left Las Vegas soon after the incident and were unavailable to testify at the hearing before the Board. The district court also questioned the evidence supporting two of the four charges (giving assistance to suspects and neglect of duty) against Berni. The district court reasoned that because the women had no criminal history, Berni’s actions could not necessarily be viewed as giving assistance to suspects.

The district court also reasoned that a momentary perusal of pornographic magazines and the touching of a woman’s buttocks at her request did not necessarily rise to the level of neglect of duty. Finally, the district court instructed the Board not to consider the hearsay evidence available against Berni in reaching its decision. On remand, the Board specifically noted that it was

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sustaining all four charges without reference to the transcripts, and based on the same facts, the Board reaffirmed its initial decision to terminate Berni.

In ruling on a subsequent petition, the district court determined that the Board had not overcome the district court’s initial reservations concerning the lack of evidence supporting the charges of giving assistance to suspects and neglect of duty. In its order of remand, the district court restricted the Board’s consideration solely to the charges of conduct unbecoming an employee and consorting with persons of ill repute. The Board thereafter determined that the remaining two charges were meritorious and sufficient to justify Metro’s decision to terminate Berni.

In a final review, the district court again reversed the Board’s decision and ordered the Board to reinstate Berni with back pay and benefits, and to limit any punishment imposed on Berni to no more than 240 hours of suspension. In its decision, the district court analyzed various disciplinary measures imposed on other officers for similar misconduct, and concluded that Berni’s conduct was less egregious than the conduct of another recently disciplined officer who was reinstated with back pay and benefits and suspended for only 240 hours. The latter officer had called in sick, improperly obtained a key to Metro’s undercover narcotics apartment, and invited his girlfriend, with whom he had had sexual relations, up to the apartment.

On remand, the Board members, after expressing frustration over their inability to exercise the powers conferred upon them in reviewing Berni’s termination, followed the district court’s instruction. Metro promptly appealed.

DISCUSSION
Metro contends on appeal that the district court abused its discretion in (1) finding that substantial evidence did not support the first two charges, (2) finding that the Board grossly abused its discretion in upholding Berni’s termination on the latter two charges, and (3) limiting the discretion of the Board in determining Berni’s punishment.

When reviewing an administrative agency’s decision, this court’s function is the same as that of the district court, which is to determine whether in light of the evidence presented, the agency acted arbitrarily and capriciously, thereby abusing its discretion. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980).

We conclude that the district court manifestly abused its discretion

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in finding that the Board acted arbitrarily and capriciously in determining that Berni was guilty of the charge of neglect of duty. Berni admitted to giving suspected[1] prostitutes information on how to avoid vice detection. He also admitted to perusing pornographic magazines with these women and to fondling one woman’s vagina during his first visit to the motel room. At the time, Berni was on duty.

Indeed, even if we were to assume that the district court somehow correctly divined that Berni only momentarily perused the magazines and briefly touched one of the women on the buttocks at her request, the Board still reasonably could have found that such conduct amounted to neglect of duty by a police officer during his duty shift. Consequently, we conclude that the district court abused its discretion in substituting its view of the evidence for that of the Board, in finding that the Board acted arbitrarily, and in directing the Board not to consider the charge of neglect of duty.

The Board also correctly found that Berni violated the rule against giving assistance to suspects. Berni admitted to getting the two women to admit that they were prostitutes, and then to advising them to take certain specified measures in order to avoid arrest.[2]

We also conclude that the district court abused its discretion in finding that the Board “grossly abused its discretion” in sustaining

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Berni’s termination by Metro and in limiting the punishment the Board could impose. First, Civil Service Rule 970 provides:

An employee’s appointment may be terminated by dismissal for “cause” or “misconduct” in accordance with Rules 510.2 [which includes “Conduct Unbecoming an Employee”] and 510.3 of these rules. Termination under this rule shall not require the giving of any notice.

Pursuant to this rule and otherwise, the Board properly considered termination as an appropriate punishment for Berni’s misconduct, even if it had been properly limited to considering Berni’s behavior with respect to the charges conduct unbecoming an employee and consorting with persons of ill repute.[3]

Second, the record does not support the conclusion that the Board acted without regard for disciplinary measures imposed for comparable conduct. Berni’s conduct is discernibly worse than that of the officer who received only 240 hours of suspension for a frolic with his girlfriend. Finally, in response to Berni’s complaints that the Board capriciously referred to his lack of remorse, we note that it is not necessarily arbitrary to refer to a perceived lack of remorse. The record indicates that Berni apologized for his actions before the Board on at least one occasion. Nevertheless, it is not unreasonable for the Board to have perceived Berni’s excuses and the blame he attributed to other police officers as indications of a lack of remorse.

“Neither this court nor the district court may substitute its judgment for that of the administrative agency as to the weight of

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the evidence on questions of fact.” State, Dep’t of Mtr. Vehicles v. McLeod, 106 Nev. 852, 856, 801 P.2d 1390, 1392 (1990). The Board’s determination regarding punishment, being closely related to its evaluation of the evidence, is entitled to deference See SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218, 220
(1992). We conclude that the Board’s decision to sustain Metro’s termination of Berni was manifestly supported by substantial evidence, and consequently, that the district court’s substitution of its judgment for that of the Board constituted a clear abuse of the district court’s discretion.

We have carefully considered the other issues raised and have concluded that they are either without merit or need not be addressed given our disposition of this appeal.

CONCLUSION
For the reasons stated above, we reverse the order of the district court and remand this matter to the district court with instructions to reinstate the Board’s original decision sustaining Metro’s termination of Berni.

YOUNG, SHEARING and ROSE, JJ., concur.

SPRINGER, J., dissenting:

I would affirm the judgment of the trial court except with respect to punishment. The matter should be returned to the Board for imposition of punishment less than termination.

NEGLECT OF DUTY AND GIVING ASSISTANCE TO SUSPECTS
The charge of neglect of duty arises out of an encounter between Berni and some suspected prostitutes, in the prostitute’s motel room. Berni had previously learned that one of the women had given him a false name and decided to go about searching the motel room for evidence of criminal activity. During the search he discovered some thirty pornographic magazines. While he was examining the magazines, one of the suspects kneeled over in a position that would expose her posterior to Berni’s view and asked him if her anatomy compared favorably with what was portrayed in the magazines. The suspect in question claimed that Berni accepted the invitation and made the suggested anatomical comparison tactilely as well as visually. This momentary distraction forms part of the basis of charges that Berni “neglected” his duties as a police officer; but the main thrust of the charges relates to the manner in which he later conducted himself during off-duty hours.

Berni’s off-duty encounter with the women arose as a result of

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a “sting” executed by police officers who were investigating Berni. By this time the women were cooperating with officers who were investigating Berni, and the women were offered “lots of money” if they would assist the investigating officers in incriminating Berni. The investigating officers instructed the women to tape any further contacts with Berni and to undress themselves and to fondle Berni or do anything else they thought of that might compromise Berni. When Berni made his off-duty visit to the women’s motel room, the women started (as instructed by the investigating officers) to disrobe themselves and to expose their sexual apparatus. When, on cue, the investigating officers were let into the room by the prostitutes, Berni was not fully clothed, but he was not engaging in sexual activities with the women. The women later “disappeared” and did not testify against Berni during the disciplinary proceedings.

The two trial judges who heard this case on two consecutive occasions were both of the opinion that although Berni was probably guilty of conduct unbecoming a police officer, there was insufficient evidence to support the charge that he was at the same time guilty of neglect of duty.

The first trial judge who heard this judicial review considered the source of the accusations (the unavailable prostitutes) and the hearsay nature of the statements of two prostitutes who had been promised “a lot of money” to entrap Berni to be “impalpable and suspect” and of “very dubious quality.” This was particularly true in light of the failure on the part of those making the charges against Berni to produce these vital witnesses at the hearings.

The first trial judge also concluded, as I do, that although the momentary and consensual touching that went on between Berni and the two prostitutes might be seen as supporting findings of “conduct unbecoming” an officer or “consorting with persons of ill repute,” the more serious charges of neglect of duty cannot stand.

The first trial judge remanded the case back to the Board, giving the Board an opportunity to develop findings of fact to support the mentioned charges. The Board, however, did not comply with the court’s instructions. After the remand, the matter was heard by another trial judge. After the second review, the second trial judge concluded that he, too, was “not satisfied with anything presented at the Board at this time in regard to [the charges `Giving Assistance to Suspects’ and `Neglect of Duty’]. Therefore, I’m going to take it for granted that there is no evidence regarding those two issues, and they should be dismissed from the complaint.”

The “neglect of duty” charge, under Department Rule 4/102.11, requires either (1) the failure to “comply, by act or

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omission, with any law, or with any order, procedure, rule or regulation of the Department” or (2) performance of official duties “in a manner which could bring discredit upon himself, upon the Department, or upon any other member of the Department.”

Failure to comply with the law or rules and procedures does not seem to be what this case is about. It can be argued, however, that Berni, in making the first visual and tactile comparison of one of the prostitute’s derrieres, while he was on duty, was performing his official duties in a manner that would bring discredit to himself or upon the Department. It seems to me, however, that any discredit that he might bring upon himself or the Department was limited to discredit in the eyes of the woman who invited him to share momentarily in her bounty and the other woman who was present in the motel room. I would not argue that it was the proper thing to do, but I think that the two trial judges were entitled to conclude that this brief encounter did not amount to “neglect of duty.” If Berni had done these things in the parking lot, for example, there would be a different case; but a momentary yielding to the temptations offered to make the subject inspection, although certainly not performed in the line of duty, do not seem to create a likely expectation that it would result in any appreciable discredit or disgrace to Berni or to the Department. I would affirm the trial court’s judgment relative to the charges of neglect of duty.

With regard to the charges of “giving assistance to suspects,” I understand that in his first encounter with the women in question, Berni engaged them in a conversation relating to ways in which prostitutes in general could divert attention to themselves and thus lessen the chances of their arrest. This conversation took place at a time when Berni thought that he might be dealing with prostitutes and appears to be part of an inquiry designed to determine whether or not the women in question were in fact prostitutes. These kinds of statements by Berni appear to me to be more designed to gain the suspect’s confidence than an attempt to school them in the methods of carrying out a successful criminal career. Berni spoke to them in non-specific terms about the ways and methods employed by prostitutes in general, and he did not go about instructing the women about how to evade the law. The trial court judges who heard this case correctly concluded that this conversation was employed to try to get the women to admit that they were prostitutes and that the conversation was general in nature and not a particular attempt to give “assistance” to them so that they could avoid an imminent arrest. Berni freely admitted discussing these matters with the women, and it appears to me that had Berni not been the target of an investigation, these conversations would have created no inferences of improper

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conduct. Giving the worst of it to Berni, Berni might be said to have been using bad taste in saying anything about the manner in which prostitutes evade detection, but to me this is at most a momentary lapse of good judgment and cannot be described in terms of the very serious misconduct called “giving assistance to suspects.”

Also, with regard to these “assistance to suspects” charges, I would note that to violate Department Rule 4/102.06 Berni must have communicated “information which may delay arrest or enable persons guilty of criminal acts to escape arrest.” To have violated this rule Berni had to have given information to these women with the intention of assisting them in avoiding arrest for acts of prostitution. At the time of the conversation, Berni did not know if they were prostitutes or not. Certainly his conversation could not have had the effect of either delaying an imminent arrest or allowing the women to escape arrest for “criminal acts” that they had committed. At the point of Berni’s conversation with these women there were no criminal acts that had been committed by the women; and Berni’s general conversation with them could not have constituted communicating “information” that might have allowed them to delay or escape arrest for the past commission of criminal acts. There is no violation of the “giving assistance” rule; and it appears to me that this charge was constructed just as a part of an attempt to prefer as many charges as possible against this officer and not in the serious belief that Berni was actually giving aid and assistance to the enemy.

THE LIMITATION OF PUNISHMENT
It does not appear to me that the review proceedings before the district court covered the issue of whether the Board had abused its discretion in terminating Berni; therefore, I think that the district court exceeded its scope of review when it altered the punishment imposed by the Board. The trial court should have returned the issue of punishment to the Board. The district court appears to have acted reasonably in imposing its lesser punishment on the assumption that Berni’s most egregious conduct occurred off-duty. In my opinion, however, although the court could properly have put limits on the punishment or could have suggested a reasonable sanction to the Board, it did not have the power to decree a specified punishment. I would therefore remand the case to the district court with instructions to submit the case to the Board for imposition of punishment (short of termination) for conduct unbecoming a police officer and for consorting with persons of ill repute.

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