North Dakota Game & Fish Department v. Brashears

325 N.W.2d 671, 1982 N.D. LEXIS 328
CourtNorth Dakota Supreme Court
DecidedOctober 20, 1982
DocketCiv. No. 10208
StatusPublished
Cited by1 cases

This text of 325 N.W.2d 671 (North Dakota Game & Fish Department v. Brashears) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Dakota Game & Fish Department v. Brashears, 325 N.W.2d 671, 1982 N.D. LEXIS 328 (N.D. 1982).

Opinions

PAULSON, Justice.

This is an appeal by the North Dakota Game and Fish Department [Department] from a judgment of the District Court of Burleigh County entered on March 24, 1982. We affirm in part and reverse in part.

On August 4, 1981, Sidney Brashears, a wildlife resource management biologist for the Department, was suspended from duty without pay by the Department pending a removal hearing. This suspension without pay was made pursuant to Section 8-2-1 of the North Dakota Personnel Policies, which provides:

“The appointing authority may, after written notice, suspend any employee without pay for misconduct or other just cause for a period not to exceed thirty calendar days. A permanent employee shall have the right to appeal.”

On August 11, 1981, Dale Henegar, North Dakota Game and Fish Commissioner, filed written verified charges against Brashears with North Dakota Governor Allen I. Olson and requested the Governor to initiate removal proceedings, pursuant to § 20.1-02-19 of the North Dakota Century Code.1 On [673]*673October 6, 1981, following Governor Olson’s determination that the charges constituted grounds for Brashears’s removal, a hearing was held before the Game and Fish Hearing Board.

Governor Olson issued a notice of suspension on October 20, 1981, ratifying the Department’s August 4, 1981, suspension of Brashears and ordered that such suspension continue until final determination of the matter by the Game and Fish Hearing Board. On November 19, 1981, the Game and Fish Hearing Board issued its findings of fact, conclusions of law, and order. The Hearing Board found that the charges filed against Brashears constituted grounds for disciplinary action and ordered that “Brash-ears be suspended without pay from his employment . . . from August 4, 1981, through November 30, 1981”.

On December 18, 1981, Brashears appealed the Hearing Board’s order to the District Court of Burleigh County. He claimed as a specification of error that the Hearing Board was without authority to impose the suspension without pay from August 4, 1981, through October 20, 1981, because the Governor did not exercise his “exclusive statutory authority” to suspend until October 20, 1981. After determining that it had jurisdiction to hear the appeal, the district court agreed with Brashears, finding that upon the commencement of removal proceedings pursuant to Chapter 20.1-02, N.D. C.C., only the Governor can suspend the accused person without pay, pursuant to § 20.1-02-21, N.D.C.C., and under the circumstances of this case, the Governor’s attempt to make the October 20, 1981, order for suspension without pay retroactive was null and void. The district court thus concluded that Brashears was entitled to receive his pay from August 11,1981, which is the date the removal procedure was commenced, through October 20, 1981, which is the date the Governor suspended him without pay.

The Department appeals from the judgment and presents the following issues for review: (1) whether or not the district court had subject matter jurisdiction to hear Brashears’s appeal from the Hearing Board’s decision, and (2) whether or not the North Dakota Game and Fish Hearing Board had authority to suspend Brashears without pay from August 11 to October 20, 1981.

I

The Department contends that the district court lacked subject matter jurisdiction to hear Brashears’s appeal.2 It argues that without express statutory authority no right of appeal from a decision of an administrative body exists. The Department’s ar[674]*674gument is premised on § 20.1-02-22 of the North Dakota Century Code, which provides for appeals from hearing board determinations:

“20.1-02-22. Appeal to district court. —An individual dismissed by order of the hearing board, may. appeal to the Bur-leigh County district court. This appeal shall be taken and determined in the manner provided by chapter 28-32.” [Emphasis added.]

Because Brashears was “suspended” rather than “dismissed”, the Department urges that the district court lacked jurisdiction to hear the appeal and, therefore, it must be dismissed.

We decline to adopt such a narrow interpretation of the statute. Prior to the enactment of the current statutory scheme relating to the removal of Department employees, the Game and Fish Board had authority to remove an employee from office “without preferring charges and without hearing”. Hartung v. Manning, 50 N.D. 478, 481, 196 N.W. 554 (1923). In 1959, the Legislature enacted this statute (formerly § 20-0205 and now codified under Chapter 20.1-02, N.D.C.C.) for the purpose of patterning appointment and removal procedures of Game and Fish Department personnel after those of the State Highway Patrol, giving tenure rights to Game.and Fish employees because it was believed that such employees deserved this security as specialists and technicians in their chosen fields. See Minutes of the Senate Natural Resources Committee, 36th Legislative Assembly, January 30, 1959 (S.B.lll). Thus, it is clear that this statutory framework evinces a definite recognition of the importance of tenure and job security for Department personnel.

The Supreme Judicial Court of Massachusetts addressed an analogous issue in Setterlund v. Groton Dunstable Regional School Committee, 382 Mass. 328, 415 N.E.2d 214 (1981). In Setterlund, the plaintiff contended that his reduction from full-time teacher to part-time teacher constituted sufficient “dismissal” to entitle him to review of the committee’s action in the Superior Court. The committee in that case had similarly argued for a construction of “dismissal” as meaning complete separation from employment. We find persuasive the following rationale of the Massachusetts Court in Setterlund, supra 415 N.E.2d at 216 [quoting from Caviness v. Bd. of Ed. of Ludlow Community, Etc., 59 Ill.App.3d 28, 31, 16 Ill.Dec. 526, 527-28, 375 N.E.2d 157, 158-159 (1978)]:

“For purposes of claiming entitlement to the procedural protection afforded by G.L. c. 71, § 43A, we think that a tenured teacher who is reduced to part-time employment without his consent has been ‘dismissed.’ ‘[T]o be consistent with the purpose of the School Code the words [“removed” or “dismissed”] must encompass any reduction in the extent of employment. The tenure provisions of the School Code were intended to protect experienced and veteran teachers against capricious, fickle and irregular exploits of school boards.... And limiting the application of ‘removed’ or ‘dismissed’ to instances of complete termination would — as a practical matter — totally obliterate the protection intended by the statute. If this were the case, a board could merely nibble away and reduce one’s employment until economic necessity forced the tenured teacher to resign. Such interpretation cannot be sanctioned.’ ” [Emphasis in original.]

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325 N.W.2d 671, 1982 N.D. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-dakota-game-fish-department-v-brashears-nd-1982.