STATE, SEC'Y OF STATE v. WENDLAND

140 Nev., Advance Opinion 114-1
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

THE STATE OF NEVADA SECRETARY No. 85360-COA
OF STATE,
Appellant,
vs. FIL
JUSTUS WENDLAND, AN
INDIVIDUAL,
Respondent.

1EF DEPUTY CLERK

Appeal from a district court order denying a petition for judicial
review in an employment matter. First Judicial District Court, Carson City;
James E. Wilson, Judge.
Reversed and rernanded.

Aaron D. Ford, Attorney General, Cameron P. Vandenberg, Chief Deputy
Attorney General, and Bruce C. Young, Deputy Attorney General, Carson
City,
for Appellant.

Reese Ring Velto, PLLC, and Alexander R. Velto, Reno,
for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, WESTBROOK, J.:
For a state employee to administratively appeal a workplace
disciplinary action, NAC 284.6562(2)(b) requires the employee to attach a
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copy of the written notification of discipline to the appeal form. In
Kassebaurn v. State, Department of Corrections, 139 Nev., Adv. Op. 34, 535
P.3d 651 (2023), the Nevada Supreme Court held that an employee's failure
to comply with the attachment rule rendered his administrative appeal
defective and subject to dismissal. In reaching that conclusion, Ka.ssebaurn
did not address whether the attachment requirement mandates strict
compliance or whether it might be satisfied by substantial compliance.
Today, we hold that an employee may substantially comply with NAC
284.6562(2)(b)'s attachment requirement by accurately filling out and
signing forrn NDP-54 and then supplying a copy of the written discipline in
response to a motion to dismiss. Because Justus Wendland substantially
complied, the hearing officer correctly denied the Secretary of State's
motion to dismiss for failure to strictly comply with NAC 284.6562(2)(b).
We also address the procedural due process that is owed to
permanent classified state employees during internal investigations
conducted pursuant to NRS 284.387. In doing so, we conclude that
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), defines
such employees' due process rights prior to the termination of their
employment. In accordance with Loudermill, due process entitles
employees to "oral or written notice of the charges against [them], an
explanation of the employer's evidence, and an opportunity to present
[their] side of the story" at a pretermination hearing. Id. at 546. Because
Wendland received the requisite notice, an explanation of the evidence, and
an opportunity to respond before the Secretary of State terminated his
employment, the hearing officer erred when she found that Wendland's due
process rights were violated during the State's preterrnination
investigation.

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Based on her erroneous finding that Wendland's due process
rights were violated, the hearing officer declined to consider an independent
ground for termination relied on by the Secretary of State. Because this
error affected the Secretary of State's substantial rights, we reverse the
district court's denial of the Secretary of State's petition for judicial review
and remand for proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
In 2012, the Nevada Secretary of State hired Wendland as its
Help America Vote Act administrator. In this supervisory position,
Wendland provided planning for and managed Nevada's federal elections,
oversaw compliance with federal election laws, and administered federal
grants received through the Help America Vote Act. The parties do not
dispute that Wendland was a permanent classified state employee.
On November 22, 2019, Wendland attended a meeting with his
direct supervisor, Wayne Thorley, and Deputy Secretary for Operations,
Mark Wlaschin, to discuss their concerns about his work performance. At
the meeting, Thorley and Wlaschin provided Wendland with a letter of
instruction advising him that they had received multiple complaints about
his lack of professionalism and difficulty working with others. Because
Wendland had shown an "inability to take direction or instruction" when
these behaviors were brought to his attention in the past, the letter was
intended to convey that the Secretary of State took the concerns seriously
and expected Wendland to "demonstrate a willingness to implement
change." At the meeting, Wendland disputed the allegations and appeared
unwilling to consider changing his behavior, so Thorley and Wlaschin
placed him on administrative leave with pay, to investigate further.

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On December 12, 2019, Wlaschin prepared and issued to
Wendland the notice of employee rights during an internal investigation
required by NRS 284.387(1). The notice advised Wendland that he was
under investigation for lollisgraceful personal conduct which impairs the
performance of a job or causes discredit to the agency" and "[Oscourteous
treatment of public or fellow employees, while on duty," in violation of NAC
284.650. Wlaschin appointed Brett Olin to investigate these allegations.
In late December, Olin interviewed Wendland, who was then
accompanied by his attorney. At the interview, Olin informed Wendland he
could "supplement" the investigative file with any documents or names of
witnesses he believed should be interviewed. In addition to interviewing
Wendland, Olin also interviewed 20 of Wendland's current and former
supervisors, coworkers, subordinates, and others who worked with
Wendland both inside and outside the Secretary of State's office.
On January 9, 2020—after Olin completed his investigation
and had already started writing his report—Wendland's attorney offered to
provide Olin supplemental information. In response, Olin advised that he
had completed his investigation and would not consider additional
information. Based on his interviews, Olin compiled a detailed 15-page
report that he submitted to Wlaschin, which was later shared with
Wendland. Olin's report contained no disciplinary recommendations, but
rather described the process of his investigation and summarized each of
the 21 witness statements. The report noted that numerous individuals,
particularly those in the information technology (IT) and accounting
departments, had concerns about Wendland's behavior and lack of
professionalism.

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On February 6, Wlaschin gave Wendland a second notice of
employee rights pursuant to NRS 284.387, which advised Wendland of
additional allegations resulting from Olin's investigation. The new
allegations involved violations of the Secretary of State's Personal Conduct
Guidelines; Prohibitions and Penalties, as follows:
failing to adhere to acceptable standards of
professional conduct; failing to maintain proper
work performance standards; failing to cooperate in
work related projects with other employees and/or
supervisors; discourteous or insulting treatment of
a supervisor, fellow employee or the public; and
making statements, false or otherwise, intended to
demean or disparage supervisor, fellow employees
or the public; or intended to disrupt the work
environment.
Wendland was not re-interviewed after receiving this second
notice. Instead, on February 10, Wlaschin provided Wendland a specificity
of charges1 recommending Wendland's dismissal. As relevant here, the
specificity of charges outlined four independent grounds for termination:
(1) a November 2019 incident involving travel reimbursement requests;
(2) a December 2018 incident where Wendland allegedly aggressively
"threw papers across the table" at another employee; (3) an April 2018
incident involving the Clark County elections staff; and (4) general
allegations regarding Wendland's disrespectful and unprofessional
behavior towards fellow employees and supervisors, including individuals•
in the Secretary of State's IT and accounting departments. The specificity

1A specificity of charges—form NDP-41—is a form developed by the
State of Nevada Department of Personnel pursuant to NAC 284.656 to
inform a permanent state employee of a proposed disciplinary action to be
taken against them, its effective date, and the reasons for such action.
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of charges also set forth the proposed date that the termination would
become effective and the date, time, and place for the predisciplinary review
hearing.
As required by NAC 284.6561, a predisciplinary review hearing
occurred on March 13, 2020, before Chief Deputy Secretary of State Scott
Anderson, who informed Wendland that the hearing was his opportunity to
respond to the specificity of charges and the investigation. Wendland, who
was represented by counsel, stated that his written position statement,
which he had provided to the Secretary of State earlier that same day,
would be his response.2 On March 20, Anderson transmitted a
memorandum to the Secretary of State suggesting to uphold the
recommendation for dismissal. The Secretary of State provided Wendland
a termination letter notifying him of his dismissal on March 23, 2020.
The next day, Wendland appealed his dismissal using the
required form NDP-54. Although the form advised Wendland that he must
attach the written notification of the challenged discipline, Wendland did
not attach the termination letter. However, he did accurately state on the
form that the dismissal occurred on March 23 and signed an affirmation
that "the information . . . provided is true and correct." He also attached
copies of the November 2019 letter of instruction, the specificity of charges,
and his position statement.

2Thisposition statement criticized Olin's investigation report and
argued that the behavioral allegations in the specificity of charges were
unfounded.
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The Secretary of State moved to dismiss Wendland's appeal for
lack of jurisdiction pursuant to NAC 284.6562(2)(b), which provides that a
request for a hearing to determine the reasonableness of a dismissal of a
state employee "must be. . , [a]ccompanied by the written notification of the
appointing authority's decision regarding the proposed action." Wendland
opposed and attached the termination letter as an exhibit. The hearing
officer denied the motion to dismiss, concluding that NAC 284.6562(2)(b)
was not jurisdictional and required only substantial compliance, and that
Wendland substantially complied by providing the effective date of his
dismissal on the appeal form.
A three-day hearing on the merits of Wendland's appeal
commenced in November 2020. A total of 15 witnesses testified at the
hearing, including Scott Anderson, Mark Wlaschin, Wayne Thorley, Brett
Olin, Wendland's attorney, Wendland himself, and several other employees
of the Secretary of State who had professional contact with Wendland.
Thereafter, the hearing officer issued a decision reversing
Wendland's termination and ordering his reinstatement. The hearing
officer found that Wendland's procedural due process rights, as set forth in
NRS 284.387, had been violated during the investigation. Specifically, the
hearing officer found that the Secretary of State violated NRS 284.387 by
failing to give timely and "proper notice of the specific allegations against
[Wendland]," by failing to re-interview Wendland after Olin completed his
investigation report, and by not allowing Wendland "to submit additional
material" in response to the December 12 notice. The hearing officer also
found that the general allegations set forth in the specificity of charges
violated Wendland's procedural due process rights because they did not
Cf
properly inforrn[ ]" Wendland of the specific misconduct at issue. As a

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result, the hearing officer refused to consider whether Wendland's
termination was reasonable due to the general allegations of disrespectful
and unprofessional behavior.3
The Secretary of State petitioned for judicial review in the
district court, arguing that Wendland's appeal failed to comply with NAC
284.6562(2)(b) and that his due process rights were not violated. The
district court denied the petition, finding that NAC 284.6562(2)(b) can be
satisfied by substantial compliance and that Wendland's due process rights
were violated both during the investigation and by the nonspecific general
allegations in the specificity of charges. This appeal followed.
ANALYSIS
"When reviewing a decision of an administrative agency, this
court's role is identical to that of the district court: to review the evidence
presented to the agency in order to determine whether the agency's decision
was arbitrary or capricious and was thus an abuse of the agency's
discretion." Highroller Tran.sp., LLC v. Nev. Transp. Auth., 139 Nev., Adv.
Op. 51, 541 P.3d 793, 799 (Ct. App. 2023) (internal quotation marks
omitted). Where substantial evidence in the record supports a hearing
officer's factual findings, we will not disturb such findings on review. See
Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197
P.3d 1061, 1066 (2008) (explaining that this court does not reweigh the

3The hearing officer did, however, address the allegations concerning
the November 2019 travel reimbursement incident and the April 2018
Clark County elections incident and concluded that the Secretary of State
had failed to present substantial evidence in support of these allegations.
The hearing officer declined to consider the December 2018 paper throwing
incident as a basis for termination, finding that a prior oral warning had
already served as discipline for that incident. The Secretary of State does
not challenge these findings on appeal.
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evidence or substitute the hearing officer's judgment on questions of fact
with our own judgment).
However, "[a] de novo standard of review is applied when this
court addresses a question of law, including the administrative construction
of statutes." Nassiri v. Chiropractic Physicians' Bd., 130 Nev. 245, 248, 327
P.3d 487, 489 (2014). Thus, we review de novo whether NAC 284.6562(2)(b)
demands strict compliance or may be satisfied by substantial compliance.
Similarly, we review "constitutional challenges de novo, including a
violation of due process rights challenge." Eureka County v. Seventh Jud.
Dist. Ct., 134 Nev. 275, 279, 417 P.3d 1121, 1124 (2018). Finally, to the
extent we find error, this court will only reverse where the asserted error is
"prejudicial and not harmless." Khoury v. Seastrand, 132 Nev. 520, 539,
377 P.3d 81, 94 (2016) (citing NRCP 61).
NAC 284.6562(2)(b)'s attachment requirement may be satisfied by
substantial compliance, as it was here
Relying on Kassebaum v. Department of Corrections, 139 Nev.,
Adv. Op. 34, 535 P.3d 651 (2023), the Secretary of State argues Wendland's
failure to attach a copy of the March 23 termination letter to his NDP-54
appeal form rendered his administrative appeal defective, mandating
dismissal. Wendland counters that the attachment requirement of NAC
284.6562(2)(b) may be satisfied by substantial compliance and that
substantial evidence supports the hearing officer's finding that he
substantially complied in this case.
In Kassebaum, the Nevada Supreme Court addressed the
attachment requirement in NAC 284.6562(2)(b) and the consequences of an
employee's failure to provide the written notification of the authority's
decision. The supreme court concluded that NAC 284.6562(2)(b)'s
attachment requirement is "mandatory," but not jurisdictional, and thus
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the failure to attach the written notification does not "divest the hearing
officer of jurisdiction to consider [the] appeal." Kassebaum, 139 Nev., Adv.
Op. 34, 535 P.3d at 656. Nonetheless, if an employee fails to comply with
NAC 284.6562(2)(b), "the appeal is defective and may be dismissed" by a
hearing officer. Kassebaum, 139 Nev., Adv. Op. 34, 535 P.3d at 653
(emphasis added).
Kassebaum conceded that she failed to comply with the
attachment requirement when she filed her administrative appeal. Indeed,
when her employer pointed out the omission in its motion to dismiss,
Kassebaum still failed to provide the required disciplinary notice. As a
result, the supreme court concluded that the hearing officer did not err in
dismissing Kassebaum's administrative appeal. However, in reaching this
conclusion, the supreme court did not decide whether NAC 284.6562(2)(b)
requires strict or substantial compliance; that is, it did not address whether
a hearing officer is required to dismiss an appeal for an employee's failure
to strictly comply with the attachment requirement.
"The substantial compliance standard recognizes performance
as adequate where the reasonable purpose of a statute has been met, even
absent technical compliance with the statutory language." BMO Harris
Bank, N.A. v. Whittemore, 139 Nev., Adv. Op. 31, 535 P.3d 241, 245 (2023).
When a provision requires only substantial compliance, a party's technical
noncompliance is excused so long as the party complies with respect to the
substance essential to every reasonable objective of the rule. Markowitz v.
Saxon Special Servicing, 129 Nev. 660, 665, 310 P.3d 569, 572 (2013).
"Strict compliance, in contrast, requires exact compliance with a statute's
terms." BMO Harris Bank, 139 Nev., Adv. Op. 31, 535 P.3d at 245.

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In deciding whether a statute or rule requires strict or
substantial compliance, we first consider whether the statute or rule "uses
mandatory language." Id.; see also Markowitz, 129 Nev. at 665, 310 P.3d at
572 ("The word 'shall' is generally regarded as mandatory."). The use of
mandatory language "weighs in favor of requiring strict compliance." BMO
Harris Bank, 139 Nev., Adv. Op. 31, 535 P.3d at 245. Here, the attachment
requirement set forth in NAC 284.6562(2)(b) is "mandatory," Kassebaurn,
139 Nev., Adv. Op. 34, 535 P.3d at 653, and thus weighs in favor of a strict
compliance interpretation, see BMO Harris Bank, 139 Nev., Adv. Op. 31,
535 P.3d at 245. However, the use of mandatory language is not dispositive.
See Saticoy Bay LLC v. Nev. Ass'n Servs., 135 Nev. 180, 187-89, 444 P.3d
428, 434-35 (2019) (concluding that "substantial compliance with NRS
Chapter 116's redemption statute's notice requirement is sufficient"
notwithstanding the statutory language that the notice must" be
accompanied by a certified copy of the deed).
We also consider "the type of provision at issue." BMO Harris
Bank, 139 Nev., Adv. Op. 31, 535 P.3d at 245. If a statute's provision is a
"time and manner" restriction, strict compliance is generally required, but
"if the provision concerns form and content, substantial compliance may
suffice." Id. (internal quotation marks omitted). "A time and manner
provision addresses when performance must take place and the way in
which the deadline must be {met]." Id. (emphasis omitted) (internal
quotation marks omitted). "Form and content provisions, on the other hand,
dictate who must take action and what information that party is required
to provide." Markowitz, 129 Nev. at 664, 310 P.3d at 572 (internal quotation
marks omitted). Here, we conclude that NAC 284.6562(2)(b) is a form and
content requirement because it merely dictates which documents must be

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attached to a request for a hearing. See id. Thus, this consideration weighs
in favor of substantial compliance.
In addition, we consider ' the purpose of the attachment
requirement, which Kassebaum determined was "to facilitate the hearing
officer's review" of the disciplinary appeal. 139 Nev., Adv. Op. 34, 535 P.3d
at 656. But here, the Secretary of State identified, and the hearing officer
relied upon, a more specific purpose below: to "provide notice that the
agency issued a final decision effective on a particular date." By attaching
the disciplinary notice to the hearing request form, an employee can
demonstrate to the hearing officer that they timely requested a hearing
"within 10 working days after the effective date" of the discipline, as
required by NRS 284.390 and NAC 284.6562(1). On appeal, the Secretary
of State reiterates that the primary function of the attachment requirement
is to "provide notice of the actual final effective date of discipline." However,
this purpose can also be served where, as here, the employee has accurately
filled out the NDP-54 appeal form, which includes the date of the effective
discipline and requires the employee to sign and affirm the truth and
correctness of all information contained on the form. Further, to the extent
any objection is raised by the government employer, the employee can
provide the disciplinary notice in response, as Wendland did in this case.
Thus, the purpose of the attachment requirement may be accomplished
even absent technical compliance.
Finally, we consider policy and equity principles, with an eye
toward avoiding "harsh, unfaid] or absurd consequences." Leven v. Frey,
123 Nev. 399, 407, 168 P.3d 712, 718 (2007) (internal quotation marks
omitted). Here, we note that the Secretary of State was not prejudiced by
Wendland's failure to attach the notice of discipline. The hearing officer

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found that the Secretary of State already knew the date of the termination
decision as well as the nature of the disciplinary action, which Wendland
provided on the NDP-54 appeal form. Counsel for the Secretary of State
also confirmed at oral argument that the Secretary was not "hindered" in
any way by Wendland's failure to attach the notice. Therefore, policy and
equity principles also support a substantial compliance interpretation of
NAC 284.6562(2)(b). See Markowitz, 129 Nev. at 664, 310 P.3d at 571.
Accordingly, we hold that NAC 284.6562(2)(b) requires
substantial, rather than strict, compliance. We further conclude that
substantial evidence supports the hearing officer's finding that Wendland
substantially complied in this case. Wendland provided the accurate
effective date of his dismissal on form NDP-54 and signed the form,
certifying that all information contained on the form was "true and correct."

Then, in response to the Secretary of State's motion to dismiss, Wendland
provided a copy of the written decision that contained the same information,
verifying its accuracy. See Las Vegas Convention & Visitors Auth. v. Miller,
124 Nev. 669, 683, 191 P.3d 1138, 1147 (2008) (observing that Nevada cases
"have recognized substantial conipliance when a required element was
present but was incomplete or supplied late"); cf. Kassebaurn, 139 Nev., Adv.
Op. 34, 535 P.3d at 653 (noting that the employee "did not seek leave to
amend or otherwise cure her failure to comply with" the attachment
requirement in response to her employer's motion to dismiss). Therefore,
the hearing officer did not err in denying the motion to dismiss.
The hearing officer erred as a rnatter of law in finding that Wendland's due
process rights were violated during the investigation and in the specificity of
charges
The Due Process Clauses of the United States and Nevada
Constitutions provide that the State shall not "deprive any person of life,

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liberty, or property, without due process of law." U.S. Const. amend. XIV,
§ 1; Nev. Const. art. 1, § 8(2). As a permanent classified employee of the
State of Nevada, Wendland had a property interest in his continued
employment that entitled him to procedural due process prior to
termination. See Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 576-78
(1972) (recognizing that public employees have a property interest in
continued employment when state law or a contract guarantees continued
employment absent adequate cause for discharge); NRS 284.150(2)
(providing that classified state employees "must not be appointed,
transferred, promoted, demoted or discharged in the classified service in
any manner or by any means other than those prescribed in this chapter
and the regulations adopted in accordance therewith").
Unlike an "at will" employee who can be "terminated without
liability by either the employer or the employee at any time and for any
reason or no reason," Martin v. Sears, Roebuck & Co., 111 Nev. 923, 926,
899 P.2d 551, 553 (1995), a permanent classified state employee may not be
terminated unless the agency determines that "the good of the public service
will be served thereby," NRS 284.385(1)(a); see also Nigro v. Nev. State Bd.
of Cosrnetology, 103 Nev. 496, 498, 746 P.2d 128, 129 (1987) (distinguishing
employees terminable "at will" from "classified" state employees who are
entitled to procedural protections under NRS Chapter 284). A permanent
classified state employee has the statutory right to challenge any
termination decision, including through a post-termination hearing before

a hearing officer, and subsequent judicial review. NRS 284.390(2), (9). If a
hearing officer deems the termination to have been "without just cause," the
employee must be reinstated. NRS 284.390(7). Here, the parties agree that
Wendland was entitled to procedural due process prior to his termination;

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however, they disagree about the nature of process that was due and
whether those rights were violated during his pretermination investigation.
As a general matter, the Nevada Supreme Court has held that
procedural due process "requires notice and an opportunity to be heard"
before the State may deprive a person of property. Collie v. Bowling, 123
Nev. 181, 183, 160 P.3d 878, 879 (2007) (quoting Maiola v. State, 120 Nev.
671, 675, 99 P.3d 227, 229 (2004)). Our supreme court has recognized that
the right to procedural due process under Nevada's Constitution is
consistent with the procedural due process right under the United States
Constitution. See Turner v. Saka, 90 Nev. 54, 62, 518 P.2d 608, 603 (1974)
(observing that Nevada's "standards of procedural due process seem
consistent with pronouncements of the United States Supreme Court"
requiring notice and an opportunity to be heard).
In Loudermill, the United States Supreme Court addressed the
procedural due process required before a state could terminate a
government employee with a property interest in continued employment.
470 U.S. at 546. The Court recognized several competing interests: the
employees' interest in remaining employed; the government's interest in
removing any unsatisfactory employees; and the risk of a wrongful
termination. Id. at 543. To balance those competing interests, the Court
concluded that due process required "some form of pretermination hearing."
Id. However, that hearing "need not be elaborate" where state law provides
for a full post-termination administrative hearing and judicial review. Id.
at 545.
Because Ohio law provided for a post-termination
administrative hearing and judicial review, Loudermill held that the
following pretermination procedures would satisfy the Due Process Clause

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in Ohio: "oral or written notice of the charges against [the employee], an
explanation of the employer's evidence, and an opportunity to present [the
employee's] side of the story." Id. at 546 (internal citations omitted). No
additional process was necessary; as the Court explained, "to require more
than this prior to termination would intrude to an unwarranted extent on
the government's interest in quickly removing an unsatisfactory employee."
Id.
Like Ohio, Nevada provides robust post-termination
protections, including a hearing and judicial review. See NRS 284.390(2),
(9). Therefore, in accordance with Loudermill, we hold that a permanent
classified state employee in Nevada has a procedural due process right,
prior to termination, to notice of the charges, an explanation of the evidence,
and an opportunity to respond.
The record reflects that Wendland received the procedural due
process required by Louderrnill prior to his termination. On February 10,
2020, Wendland received a specificity of charges, form NDP-41, which
contained all the information required by NAC 284.656. Specifically, form
NDP-41 gave Wendland "notice" of the proposed disciplinary action, here,
termination; the charges, including the reasons for them and the basis for
the proposed action; the proposed date that the termination would become
effective; and the date, time, and place of his predisciplinary review hearing.
See Louderrnill, 470 U.S. at 546; NAC 284.656.
Although the hearing officer found that the specificity of
charges was not sufficiently "specific" because it also included general
allegations of discourteous workplace behavior, we disagree. The general
allegations, coupled with the specific incidents of unprofessional behavior,
were sufficient to put Wendland on notice that the Secretary of State had

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serious concerns about his workplace interactions with coworkers and
supervisors in both the IT and accounting departments. See de Llano v.
Berglund, 282 F.3d 1031, 1035 (8th Cir. 2002) (rejecting a terminated
employee's argument that generalized accusations in the notice of dismissal
were too vague where such accusations "specifically outlined" the
employee's "lack Of collegiality" and "harassment" of other personnel);
Linton v. Frederick Cnty. Bd. of Cnty. Comrn'rs, 964 F.2d 1436, 1441 (4th
Cir. 1992) (holding that when "the core charges giving rise to the
termination are detailed, the inclusion of generalized language can hardly
be fatal to the effectiveness of the notice"); Gniotek v. City of Philadelphia,
808 F.2d 241, 244 (3d Cir. 1986) (holding that a statement of charges is
sufficiently specific if it "allow[s the employee] the opportunity to determine
what facts, if any, within his knowledge might be presented in mitigation of
or in denial of the charges").
Moreover, prior to receiving the specificity of charges,
Wendland had reviewed Olin's detailed 15-page investigative report, which
summarized the 21 witness interviews that formed the basis for the
Secretary of State's proposed recommendation of termination. With access
to this report, Wendland was able to see which witnesses had raised general
concerns about his workplace behavior and the manner in which they had
described those concerns. As a result, he had a full "explanation of the
employer's evidence" prior to his termination. See Louderrnill, 470 U.S. at
546; see also Mueller v. Regents of Univ. of Minn., 855 F.2d 555, 559 (8th
Cir. 1988) (rejecting the appellant's "contention that the notice letter must
restate the details of the charges and identify his accuser" where the
appellant had previously received a report containing this information).

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Finally, Wendland had a meaningful opportunity to respond
and present his "side of the story" prior to his termination. See Louderrnill,
470 U.S. at 546. Wendland appeared with his attorney at the
predisciplinary review hearing on March 13, 2020, where he presented a
seven-page written position statement as his response. Wendland's position
statement referenced the witness statements contained in Olin's
investigatory report, relying on those that supported his case and
discounting those that did not. Thus, the pretermination procedures in this
case satisfied Louderrnill.
Although Wendland received the procedural due process
required by Loudermill, the hearing officer found that NRS 284.387 created
additional due process rights that were violated during the Secretary of
State's internal investigation. Specifically, the hearing officer found that
the letter of instruction that Wendland received in November 2019, as well
as the notice of employee rights during an investigation that he received in
December 2019, were untimely and not specific enough to enable Wendland
to participate meaningfully in Olin's fact-finding interview. The hearing
officer further found that, because Olin did not permit Wendland to submit
additional materials before finalizing his report and because Olin did not
re-interview Wendland regarding the information he learned from others
during the investigation, Wendland did not have a "fair and meaningful
opportunity to be heard." We disagree.
In the first place, we note that a violation of state law is not, in
and of itself, sufficient to establish a due process violation in the
government employment context. See, e.g., Loudermill, 470 U.S. at 541
(observing that "once it is determined that the Due Process Clause applies,
the question remains what process is due" and "Nile answer to that

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question is not to be found in the [state] statute"); Boyd v. Owen, 481 F.3d
520, 524 (7th Cir. 2007) (holding that a district court erred when it found a
due process violation based on the state employer's failure to comply with
investigatory regulations because, under Loudermill, "the requirement of
due process is not defined by state rules and regulations"); Berglund, 282
F.3d at 1035 (recognizing that "federal law, not state law or [state
university] policy, determines what constitutes adequate procedural due
process"). To the extent that the hearing officer relied on perceived
violations of state law to find a constitutional due process violation in this
case, this was error.
Regardless, the hearing officer erred as a matter of law in
finding that the Secretary of State violated NRS 284.387 in connection with
its investigation. The statute entitled Wendland to timely written notice of
the allegations for which he was under investigation, NRS 284.387(1)(a),
and it also gav,e him the right to have a lawyer present "at any time that
the employee is questioned," NRS 284.387(1)(b). The Secretary of State

complied with this statute.
As required by NRS 284.387(1)(a), as soon as Wendland became
the subject of the Secretary of State's internal investigation, it timely
notified him of the allegations it was then investigating in the December 12
notice of employee rights during an internal investigation. The contents of
this notice—which advised Wendland he was under investigation for

"[d]isgraceful personal conduct which impairs the performance of a job or
causes discredit to the agency" and "[d]iscourteous treatment of public or
fellow employees, while on duty"—were specific enough to satisfy NRS
284.387.

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As required by NRS 284.387(1)(b), the Secretary of State
permitted Wendland to have his attorney attend the investigative interview
with him on December 19. Then, when additional allegations were
discovered during the course of Olin's investigation, the Secretary of State
issued a second notice of employee rights during an investigation, which
included those additional allegations. As such, the written notices issued
in connection with Wendland's investigation satisfied both NRS 284.387
and due process. See Green Bay Pro. Police Ass'n v. City of Green Bay, 966
N.W.2d 107, 113 (Wis. Ct. App. 2021) ("Louderrnill does not require any
formal written notice listing all policy violations at issue . . . ."); Higgins v.
Jefferson County, 344 F. Supp. 2d 1004, 1007 (2004) (observing that
Loudermill does not require a government employer "to share their internal
investigation or include [an employee's] input in such an investigation").
Contrary to the hearing officer's finding, NRS 284.387 did not
require the Secretary of State to re-interview Wendland regarding the
additional allegations set forth in the second notice of employee rights.
Nothing in the plain language of NRS 284.387 requires even an initial
investigative interview of an employee under investigation, and procedural
due process likewise does not require such an interview. See, e.g., Derstein
v. Kansas, 915 F.2d 1410, 1413 (10th Cir. 1990) (finding no due process
violation where an employee was merely "told of the investigation" but was
not himself interviewed), abrogated on other grounds by Fed. Lands Legal
Consortium ex rel. Robart Est. v. United States, 195 F.3d 1190 (10th Cir.
1999); Higgins, 344 F. Supp. 2d at 1007 (finding an employee's due process
rights were not violated even though the investigator did not interview the
employee).

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Similarly, the plain language of NRS 284.387 did not require
the Secretary of State to accept documents from Wendland in connection
•

with its investigation. Although Olin told Wendland at his December 19
interview that he could subrnit additional materials, Wendland did not
attempt to submit those materials until after Olin had completed his

investigation. And while Olin could have reopened his investigation to
accept those materials, NRS 284.387 did not require it.
Furthermore, even if best practices would have been for Olin to
accept Wendland's untimely submission and re-interview him upon request,
we conclude that Wendland did not suffer any "actual prejudice" from Olin's
refusal to do so. See Jones v. Nev., Cornm'n on Jud. Discipline, 130 Nev. 99,
105, 107, 318 P.3d 1078, 1082, 1084 (2014) (noting that "due process rights
generally are not implicated during purely investigatory proceedings" and
that "absent due process concerns, relief from any procedural violations
occurring during the investigatory stage may be obtained only by a showing
of actual prejudice"). As noted above, after the investigation concluded, but
before the Secretary of State made its final termination decision, Wendland
attended a pretermination hearing with his attorney and submitted a
detailed position statement. Thus, after reviewing Olin's investigative
report and receiving the second notice of employee rights, Wendland had a
full opportunity to present his side of the story before the Secretary of State
made the final decision to terminate his employment. Because Wendland's

procedural due process rights were not violated in this case, the hearing
officer erred by finding otherwise.
The hearing officer abused her discretion by failing to consider whether the
general allegations warranted termination
Based on the erroneous finding that Wendland's due process
rights had been violated during the investigation, the hearing officer
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refused to consider an independent ground relied on by the Secretary of
State as a basis for Wendland's termination. This was an abuse of
discretion that affected the Secretary of State's substantial rights.
By statute, the hearing officer was required to "determine the
reasonableness" of the Secretary of State's decision to terminate
Wendland's employment. NRS 284.390. Because the agency did not
terminate Wendland as a "first-time disciplinary measure,"4 the hearing
officer was required to "review[] de novo whether the employee in fact
committed the alleged violation," determine whether termination was an
appropriate level of discipline for the violation, and then apply "a
deferential standard of review to the agency's determination that
termination will serve 'the good of the public service." O'Keefe v. Dep't of
Motor Vehicles, 134 Nev. 752, 759-60, 431 P.3d 350, 356 (2018) (quoting
NRS 284.385(1)(a)).
In this case, the hearing officer concluded that two of the
alleged violations—the November 2019 travel reimbursement incident and
the April 2018 Clark County elections incident—were unsupported by
substantial evidence. However, the hearing officer failed to consider
whether the general allegations of Wendland's unprofessional behavior,
including towards the Secretary of State's IT and accounting employees,
would warrant termination pursuant to the standard announced in O'Keefe.
By failing to consider these allegations, the hearing officer could not
properly assess the "reasonableness" of the Secretary of State's termination
decision, as required by NRS 284.390(1). Because this error necessarily

4 The hearing officer found that Wendland was given an oral warning
in December 2018 and that it could be used in the context of progressive
discipline.
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affects the Secretary of State's substantial rights, we reverse and remand
this case to the district court with instructions to direct the hearing officer
to consider evidence relating to the general allegations of unprofessional
behavior.5
CONCLUSION
The attachment requirement of NAC 284.6562(2)(b) requires
only substantial compliance, and an employee may substantially comply
with this requirement by first truthfully and correctly filling out and
signing form NDP-54, and then providing the required disciplinary notice
in response to a motion to dismiss for noncompliance with the rule. Thus,
the district court properly held that Wendland substantially complied with
NAC 284.6562(2)(b) and that dismissal of his administrative appeal was not
warranted.
However, the district court erred when it found substantial
evidence supported the hearing officer's conclusion that Wendland's due
process rights were violated during the investigation. Under Loudermill,
Wendland was entitled to "oral or written notice of the charges against him,
an explanation of the employer's evidence, and an opportunity to present
his side of the story" at a pretermination hearing. 470 U.S. at 546-48.

5We express no opinion as to whether the general allegations, as a
matter of fact or as a matter of law, would warrant termination in this case.
The parties did not raise these issues in the instant appeal, and we decline
to make the requisite factual determinations in the first instance. See
Greenlaw v. United States, 554 U.S. 237, 243 (2008) ("[W]e follow the
principle of party presentation. That is, we rely on the parties to frame the
issues for decisions and assign to courts the role of neutral arbiter of matters
the parties present."); Ryan's Express Transp. Servs., Inc. v. Amador Stage
Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) ("An appellate court
is not particularly well-suited to make factual determinations in the first
instance.").
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Because Wendland received the requisite notice, explanation, and an
opportunity to respond before the Secretary of State terminated his

employment, his due process rights were not violated.
Based on the erroneous finding that Wendland's due process
-rights were violated during the investigation, the hearing officer declined to

consider whether general allegations of Wendland's unprofessional

behavior would warrant his termination. Because we cannot say this error
was harmless, we reverse the district court's denial of the Secretary of

State's petition for judicial review and remand for proceedings consistent
with this opinion.6

J

We concur:

, C.J.
Gibbons r1Lirr.""

Bulla
4 .00mwmmiamea., J.

(Insofar as the parties raised other arguments that are not
specifically addressed in this opinion, we conclude that they either do not
present a basis for relief or need not be reached given the disposition of this
appeal.
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