Berger v. State Personnel Board

502 N.W.2d 539, 1993 N.D. LEXIS 131, 62 Fair Empl. Prac. Cas. (BNA) 754, 1993 WL 236551

• Court: North Dakota Supreme Court
• Decided: July 1, 1993
• Docket: Civ. 920347
• Status: Published

Opinions

SANDSTROM, Justice.

In this case, we address the issue of the authority of the State Personnel Board to award attorney's fees to someone who is not now and has never been a state employee.

Jerri A. Berger appeals from a district court judgment affirming the State Personnel Board’s ruling that attorney’s fees are not available to a prevailing party in a sex discrimination claim brought before the Board. We affirm the denial of attorney’s fees to Berger.

I

Berger was a full-time cartographic aide, employed by the United States Department of Agriculture Soil Conservation Service in Bismarck. Although a federal employee, Berger worked in the offices of the North Dakota State Soil Conservation Committee (State Soil Conservation Committee) and was supervised by State Soil Conservation Committee employees. Berger applied for an Engineering Technician I position with the State Soil Conservation Committee when her employer, the United States Department of Agriculture, decided to eliminate her position. Eleven people, including Berger, interviewed for the job. Although she was highly rated, she was not selected. Claiming sex discrimination, she appealed the State Soil Conservation Committee hiring decision to the State Personnel Board.¹ A hearing officer, appointed by the Board, found that the State Soil Conservation Committee had discriminated against Berger on the basis of her sex and recommended that “the State Personnel Board instate Jerri Berger in an Engineering Technician I position within the State Soil Conservation Service.... ” Apparently, the State Personnel Board adopted this recommendation by order on April 14, 1992.² And, apparently, Berger having taken private sector employment, declined instatement in the position. The Board awarded Berger $7,580.52 in back pay and benefits. The Board rejected Berger’s claim for attorney’s fees, citing a lack of statutory authority to make such an award. The Board did not indicate if it would grant attorney’s fees if it had the authority to do so.

Berger appealed to the district court, solely on the issue of attorney’s fees. The district court affirmed the Board’s order.

Berger appeals arguing that N.D.C.C. § 54-44.3-07(3) empowers the Personnel Board to award attorney’s fees within the scope of the clause “the board may order any needed remedy.” In interpreting this clause, Berger says we should look to N.D.C.C. § 14-02.4-20, which provides that attorney’s fees may be awarded by the courts in discrimination cases brought under North Dakota’s Human Rights Act.³ Alternatively, Berger argues that attorney’s fees can be awarded under N.D.C.C. § 28-32-21.1(1), part of the Administrative Agencies Practices Act, because the State Soil Conservation Committee acted “without substantial justification.”

N.D.C.C. § 28-32-19 sets the standard for reviewing an appeal from an administrative agency decision.⁴ We review the decision of the agency, not the decision of the district court. Schadler v. Job Service North Dakota, 361 N.W.2d 254, 256 (N.D.1985). We affirm unless we find:

“1. The order is not in accordance with the law.

“2. The order is in violation of the constitutional rights of the appellant.

“3. Provisions of this chapter have not been complied with in the proceedings before the agency.

“4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

“5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

“6. The conclusions of law and order of the agency are not supported by its findings of fact.”

N.D.C.C. § 28-32-19. Questions of law are fully reviewable. Kallhoff v. North Dakota Workers’ Comp. Bureau, 484 N.W.2d 510, 512 (N.D.1992).

II

In Hammond v. North Dakota State Personnel Board, 332 N.W.2d 244 (N.D.1983), this Court wrestled with an ambiguous N.D.C.C. ch. 54-44.3 to determine the scope of the State Personnel Board’s authority to hear appeals. “[W]e believe the legislative intent was to authorize an appeal mechanism for all classified state employees through which they could obtain a review of personnel actions including dismissals.” Hammond at 250.

Since Hammond, the legislature has replaced the ambiguity by spelling out in unambiguous language the exact scope of the Personnel Board’s authority to hear appeals. The 1991 legislature amended the Personnel Board’s authority by enacting a new N.D.C.C. § 54-44.3-07(3) to provide that the Board shall:

“Hear, consider, and determine appeals by nonprobationary employees in the classified service from agency grievance procedures under section 54-44.3-12.2 related to position classifications, pay grade assignments, merit system qualification, discrimination, reprisals, reduction-in-force, forced relocation, demotion with loss of pay, suspension without pay, and dismissal. The board may assign the initial hearing of an appeal to an administrative hearing officer for the receipt of evidence and the preparation of findings of fact, conclusions of law, and a recommended decision under chapter 28-32. The board’s decision on an appeal shall resolve the issues presented between the employer and employee, and the board may order any needed remedy, including affirming, modifying, or reversing the employer’s decision, vacating suspensions, directing back pay and adjustments to back pay, and reinstatement to the classified service.” (Emphasis added.)

Berger’s reliance on this subsection is misplaced. By its own terms, the subsection and its “any needed remedy” clause are limited to appeals “by nonproba-tionary employees.” Berger is not now, nor was she, a state employee. Berger does not fall within the necessary category and the Board could not award Berger attorney’s fees under the subsection. Additionally, and necessarily, we conclude that the Board did not have authority to hear Berger’s appeal. The Board’s authority to hear appeals is limited to “nonprobationary employees” and its decisions limited to issues between “employer and employee.” An administrative body has the adjudicatory jurisdiction conferred by statute and jurisdiction must meet the basic mandatory provisions of statute before jurisdiction is established.⁵ Schwind v. Director, Dept. of Transp., 462 N.W.2d 147, 150 (N.D.1990). Even a long-established administrative policy must be set aside if it violates the intent of statute. Smith v. N.D. Workers Comp. Bureau, 447 N.W.2d 250, 262 (N.D.1989). Administrative regulation may not exceed statutory authority and regulation which goes beyond what the legislature has authorized is void. Moore v. North Dakota Workmen’s Comp. Bureau, 374 N.W.2d 71, 74 (N.D.1985). Berger was entitled to seek relief through the district court under North Dakota’s Human Rights Act, N.D.C.C. ch. 14-02.4. If she prevailed, the court could award reasonable attorney’s fees under N.D.C.C. § 14-02.4-20.

We appropriately do not reach the issue of whether nonprobationary state employees could be awarded attorney’s fees under the subsection.

Ill

Berger also argues that N.D.C.C. § 28-32-21.1 gives the Board authority to award attorney's fees.

N.D.C.C. § 28-32.21.1 provides, in part:

“Actions against administrative agencies — Attorneys’ fees and costs.

“1. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorneys’ fees and costs if the court finds in favor of that party and determines that the administrative agency acted without substantial justification.

“2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency as a result of the rulemaking action being appealed.”

Berger asserts that the record clearly demonstrates the State Soil Conservation Committee acted “without substantial justification” in discriminating against her. Consequently, she is entitled to attorney’s fees under N.D.C.C. § 28-32-21.1(1). Her argument, however, is misplaced.

Section 28-32-21.1, N.D.C.C., refers to a court’s power to award attorney’s fees, not an agency’s. Subsection 1 refers to a “civil judicial proceeding.” An administrative proceeding before the State Personnel Board is not a civil judicial proceeding. Subsection 2 states that “[t]his section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial review of a final agency order....” The State Personnel Board does not perform judicial review of final agency orders. The Board cannot award attorney’s fees under N.D.C.C. § 28-32-21.1. For N.D.C.C. § 28-32-21.1 judicial review, in this case, the administrative agency is the State Personnel Board, not the State Soil Conservation Committee.

The judgment of the district court upholding the State Personnel Board’s denial of attorney’s fees is affirmed.

VANDE WALLE, C.J., and NEUMANN, J., concur.

1 . The incomplete record certified on appeal by the State Personnel Board makes review of this case unnecessarily difficult. Among the missing documents is the original complaint.

2 . Although there are references to the State Personnel Board adopting this recommendation by order on April 14, 1992, that order is not included in the certified record.

3 .State employees are specifically included as those who can seek relief through the courts under the North Dakota Human Rights Act:

" 'Employee' means a person who performs services for an employer, who employs one or more individuals, for compensation, whether in the form of wages, salaries, commission, or otherwise. 'Employee' does not include a person elected to public office in the state or political subdivision by the qualified voters thereof, or a person chosen by the officer to be on the officer’s political staff, or an appointee on the policymaking level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. Provided, ‘employee’ does include a person subject to the civil service or merit system or civil service laws of the state government, governmental agency, or a political subdivision.”

N.D.C.C. § 14-02.4-02(4).

4 . In Hammond v. North Dakota State Personnel Board, 332 N.W.2d 244 (N.D.1983), we ruled that the State Personnel Board was an administrative agency and its final orders appealable under N.D.C.C. ch. 28-32. Since Hammond was decided, the legislature amended N.D.C.C. § 54-44.3-07(3), providing that the "board’s decision on an appeal shall resolve the issues presented between the employer and employee." Administrative Agency orders "declared final" by statute are not appealable under the terms of N.D.C.C. § 28-32-15. Berger, however, is not an employee of the state.

5 . The dissent misstates the law by saying: "The State Personnel Board has 'primary responsibility ... to foster and assure a system of personnel administration in the classified service of state government.’ ” N.D.C.C. § 54-44.3-07 actually says: "The primary responsibility of the board is to foster and assure a system of personnel administration in the classified service of state government.” The dissent’s alteration of the sentence, alters its meaning. While we can say: "The primary responsibility of a Supreme Court law clerk is to research and analyze the law in North Dakota.” That is far different than saying: “A Supreme Court law clerk has ‘primary responsibility ... to research and analyze the law in North Dakota.’ ”

As the dissent develops it further transforms the initial misstatement into "the Board is charged with ‘primary responsibility’ to enforce discrimination laws in state employment practices.”