Judkins v. Lv Metro Police Dept. ( 2015 )

 In arguing that the district court erred by failing to apply a de
novo standard of review in confirming the arbitrator's decision, appellant
contends that because NRS 289.085 precludes the admission of evidence
obtained during an investigation when that investigation violates
provisions of the POBR, and the arbitrator allowed the admission of
certain evidence in violation of NRS 289.060, the arbitrator's decision to
affirm appellant's termination should not have been given deference.
Under the common law standard of review for arbitration awards,
however, an arbitrator is allowed "broad discretion" in rendering a
decision. See Clark Cnty. Educ. Ass'n v. Clark Cnty. Sch. Dist., 122 Nev.
337, 341, 131 P.3d 5, 8 (2006) (holding that the common law grounds
under which a district court may review arbitration awards are "(1)
whether the award is arbitrary, capricious, or unsupported by the
agreement; and (2) whether the arbitrator manifestly disregarded the
law"). Reviewing the arbitrator's admission of appellant's statements
made during his internal affairs interview under this standard, we
conclude that appellant has not shown that the arbitrator manifestly
disregarded the law. Id. at 342, 131 P.3d at 8 (noting that under the
manifest disregard of the law standard, "the issue is not whether the
arbitrator correctly interpreted the law, but whether the arbitrator,
knowing the law and recognizing that the law required a particular result,
simply disregarded the law"). Here, the arbitrator's written findings
specifically noted that NRS 289.060(3)(c) and (d) applied, and found that
appellant was informed of the claims against him prior to the interview,
was informed of the answers provided by other officers that contradicted
his own, and was given an opportunity to explain his differing account of
the incident. See Clark Cnty. Educ. Ass'n, 122 Nev. at 344-45, 131 P.3d at
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10 (indicating that when an arbitrator recognizes and applies the law, the
arbitrator does not manifestly disregard the law even if the arbitrator's
interpretation of the law may be incorrect). Therefore, appellant has not
shown that the arbitrator manifestly disregarded the law. NRS
289.060(3)(c) and (d); Clark Cnty. Educ. Ass'n, 122 Nev. at 342, 345, 131
P.3d at 8, 10.
We also conclude that appellant failed to show that the
arbitrator arbitrarily and capriciously disregarded provisions of the
collective bargaining agreement, including any possible violations of the
POBR. See Clark Cnty. Educ. Ass'n, 122 Nev. at 344, 131 P.3d at 9-10(stating that a court's "review [of whether an award is arbitrary,
capricious, or unsupported by the agreement] is limited to whether the
arbitrator's findings are supported by substantial evidence in the record");
City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 899, 59 P.3d
1212, 1219 (2002) ("Substantial evidence is evidence that a reasonable
person would deem adequate to support a decision."). In this case, the
arbitrator specifically found that appellant was informed by internal
affairs what other witnesses said about appellant's conduct and gave
appellant an opportunity to explain his answer or refute the negative
implication of his answer, as required by thefl collective bargaining
agreement. The arbitration award also shows that substantial evidence
supports the arbitrator's finding that respondent complied with the
collective bargaining agreement's requirement that an untruthfulness
finding be reviewed and approved by an assistant sheriff. The arbitration
award notes that the disposition report was •sent by email to the
appropriate assistant sheriff and that no evidence was presented that the
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assistant sheriff had not previously reviewed and approved the
disposition.
Lastly we conclude that appellant has not shown that the
arbitrator's finding that appellant was willfully and knowingly dishonest
in his internal affairs interview was arbitrary and capricious. The
arbitrator relied on the arrest report prepared at the time of the incident,
the complaint filed against appellant, the testimony of two other officers,
and appellant's contradictory testimony in reaching the untruthfulness
conclusion. The evidence relied on by the arbitrator was such that a
reasonable person would deem adequate to support the arbitrator's
decision, and thus, the finding that appellant was willfully and knowingly
dishonest in his internal affairs interview was not arbitrary or capricious.
Clark Cnty. Educ. Ass'n, 122 Nev. at 344, 131 P.3d at 9-10; City of Reno,
118 Nev. at 899, 59 P.3d at 1219. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Saitta
atIaafss
Gibboris Pickering
cc: Hon. Kenneth C. Cory, District Judge
Lansford W. Levitt, Settlement Judge
Law Office of Daniel Marks
Marquis Aurbach Coifing
Eighth District Court Clerk
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