Meadow v. Civil Service Board

— 625 — OPINION By the Court, Young, C. J.: Appellant argues that because the board considered allegedly improper evidence of a polygraph examination, the district court erred when it affirmed the board’s decision. However, we need not address the admissibility of the polygraph evidence because the board heard other substantial evidence supporting its decision to uphold Meadow’s termination. Meadow underwent a polygraph examination in connection with an arrest made by him in September 1987. Donnell Wells charged that Meadow used excessive force when making the arrest. The examination was to verify whether Meadow caused facial injuries to Wells by striking him with an unauthorized chrome baton. However, Meadow was charged with two other acts of excessive force. At the hearing before the board, two witnesses testified as to a December 1986 incident when Meadow placed the barrel of a gun in an informant’s mouth, cocked the trigger, and threatened to “blow his fucking head off” if any police officers were hurt during an upcoming operation. Other witnesses testified as to a July 1987 incident when Meadow beat and choked a suspect who was already handcuffed and under arrest. Thus, even if we disregard the incident involving Donnell Wells, enough evidence was presented at the board hearing to uphold Meadow’s termination. Accordingly, even if the board erred by admitting the polygraph results, this error was harmless and did not prejudice the substantial rights of Meadow. See Bezuneh v. Urlacher, 540 N.Y.S.2d 76 (App.Div. 1989) (holding that erroneous reception of polygraph evidence does not require reversal of administrative tribunal’s decision when, apart from this evidence, the determination is supported by substantial evidence on the entire record). Meadow argues that the board erred by allowing Officer Berni to speculate during his testimony about events which he neither saw nor of which he had personal knowledge. However, Officer Berni’s testimony in this regard was not speculation evidence. Officer Berni had been a police officer for over fourteen years. He testified that he heard grunts, groans and screams coming from the room where Meadow had taken a handcuffed suspect. According to NRS 50.265, lay witness testimony is limited to — 626 — those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. Given Officer Berni’s experience, his testimony that “it sounded like somebody getting their butt whipped” in the other room was rationally based on his perceptions at the time. Therefore, the board properly admitted his testimony. NRS 50.265. Finally, Meadow argues that the evidence presented to the board demonstrated that he was an outstanding and dedicated police officer, and that he did not use excessive force in the line of duty. Accordingly, he contends that the board’s decision to uphold his termination was arbitrary and capricious, and an abuse of its discretion. Again, Meadow’s contention lacks merit.1 It’s true that a number of persons testified as to Meadow’s outstanding performance as a police officer. However, several police officers who worked with Meadow also testified to the excessive force which he used while on the job. Officers Retke and Berni testified regarding the December 1986 incident when Meadow placed a gun barrel in an informant’s mouth and threatened to kill him. Officers Berni and Hixson both testified to the July 1987 incident in which Meadow assaulted a burglary suspect who was already handcuffed and under arrest. Meadow’s supervisor testified that he carried an unauthorized weapon (the chrome-tipped baton). Besides this damaging evidence, the record indicates that the — 627 — members of the board put a substantial amount of thought into their decision to uphold Meadow’s termination. Board member Clark noted Meadow’s fine credentials as a police officer, but also stated that he questioned Meadow’s judgment, professionalism and credibility. Clark observed that an officer in Meadow’s position “must be beyond reproach.” Board member Boyer agreed with Clark as to Meadow’s use of poor judgment. Finally, board chairman Agonía declared that: As counsel for the Department stated, this case is not, it’s not an easy case to deal with, because we have at stake the career of an officer who has obviously distinguished himself both as a member of this community and as a police officer. ... I don’t believe that [the] good work that has taken place over the years and [the] good work that may continue is any excuse for the overlooking of the three incidents that have taken place. The incident with the gun in the mouth, I find inexcusable. Even for a police officer who had been on this force for one year. I think that that demeaning kind of behavior should not be meted out to anyone, irrespective of whether they be an unreliable source of information or whatever. The excessive force that was exhibited in the July 4, 1987 incident, whether excessive or not, I don’t believe that you know there’s any excuse for it in terms of the leadership that has to be exhibited by supervisors within the Metropolitan Police Department. The use of the baton which was clearly not authorized is just another chain in the events. To be arbitrary and capricious, the decision of an administrative agency must be in disregard of the facts and circumstances involved. State v. Ford, 755 P.2d 806, 808 (Wash. 1988). In this case, the record indicates that the board considered all of the evidence, pro and con, regarding Sergeant Meadow, before deciding to uphold his termination. Accordingly, the board did not act arbitrarily and capriciously, nor abused its discretion. NRS 233B.140(5)(f). Therefore, the district court properly upheld the board’s decision. Gandy v. State ex rel. Div. Investigation, 96 Nev. 281, 282, 607 P.2d 581 (1980). Appellant’s other contentions lacking merit, we hereby affirm the decision of the district court. Steffen, Springer, and Mowbray, JJ., concur. Footnotes [1] The record does reveal substantial positive information concerning Meadow. A career police officer, Meadow has obtained a master’s degree in police science and is apparently approaching eligibility for a doctorate degree. As noted in the dissenting opinion, Meadow was active in promoting several programs of positive value to law enforcement and the community which he served. He has received numerous commendations and was discipline-free prior to the occurrence of the incidents resulting in his termination. If we were empowered to function as the equivalent of a board of review, we may very well have concluded that Meadow’s termination was unduly harsh. However, our function is to determine whether the Civil Service Board of the Las Vegas Metropolitan Police Department had before it substantial evidence upon which to base its decision. Because it did, we cannot conclude that the board’s ruling was arbitrary, capricious or an abuse of discretion. Moreover, Meadow’s superior officers in the department, including, presumably, the Sheriff, recommended termination as an appropriate consequence for Meadow’s infractions. We are most reluctant, in light of the evidence in this record, to impose on the Sheriff an officer whom he has determined to be unfit for service in the law enforcement agency over which he is responsible. It is difficult to hold heads of organizations responsible for the quality and effectiveness of their efforts if they are forced to work with persons found, by substantial evidence, to be unfit for service.