On March 25, 2008, Nye County Sheriff's Deputy "Smith" (not his real name) observed a female driver as she failed to stop at a posted stop sign.  Deputy Smith was proceeding with emergency lights and siren while responding as a back-up to a domestic battery call at a nearby park.

When Deputy Smith observed the driver violate the stop sign and pull across his path, he had no idea whether she was somehow impaired or simply not paying attention, and he was concerned that she might continue to drive recklessly, resulting in an accident.  He felt that she clearly observed his emergency vehicle coming toward her, yet she inexplicably rolled through the stop sign and directly across his path of travel.  He felt that he had no choice but to intercept the driver and make sure that situation was under control.

Conscious of his continuing responsibility to respond to the nearby park call, Deputy Smith obtained the driver’s license and registration and ordered her to meet him at the park, a short distance away.

NRS 171.123 states that the detention of a person by a peace officer must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested.

Did Deputy Smith violate NRS 171.123(4) by ordering the driver to drive to a location less than 4 miles from the original stop, before concluding her detention?  Probably.  However, even the employer admitted that there is no internal policy, no local law and no Nevada state law that defines the “immediate vicinity” to which a police officer is obliged to keep a detainee after the initial detention.  Therefore, the only definition of whether Deputy Smith’s actions constituted a violation of that statute would be a definition of what was “reasonable” under the circumstances.

The Nye County Sheriff’s Office has a specific arrangement for the final decision making process in disciplinary cases.  The Sheriff’s policy relies upon what it terms the “Final Decision Maker” to conduct a pre-disciplinary hearing and decide the employee’s fate.

The “Final Decision Maker” is also referenced within the labor contract between the Sheriff’s Office and the Nye County Law Enforcement Association, and is defined as the “Sheriff, District Attorney, or his/her designee.”  As set forth in the their contract, an employee may request a pre-disciplinary hearing before the Final Decision Maker.  No person other than the Final Decision maker is permitted by contract to hear the employee's case at the pre-disciplinary hearing.

In Deputy Smith’s case, one of the Assistant Sheriffs was ordered by the Sheriff to act as the Final Decision Maker.  Following a pre-disciplinary hearing before that Assistant Sheriff, Deputy Smith was recommended for punishment, but not termination.

Nevertheless, in what can only be described as an arrogant refusal to follow his own policies and the collective bargaining agreement, the Sheriff overruled the Final Decision Maker and terminated Deputy Smith on August 13, 2008.

On September 25, 2009, after multiple days of arbitration hearing in which Deputy Smith was represented by Richard McCann, J.D., Plan Administrator & Chief Labor Representative for the Nevada Association of Public Safety Officers (NAPSO/CWA Local 9110), the arbitrator decided that the employer failed to demonstrate that it had “just cause” to terminate Deputy Smith and he was reinstated with full back pay and benefits, and with an order that he be disciplined in the same manner as was originally recommended by the Assistant Sheriff.

The arbitrator accepted McCann’s arguments that the Sheriff violated “a fundamental notion of due process” by ignoring the employee’s clear policy and contractual right to confront the Final Decision Maker before having discipline imposed against him.  The arbitrator found that the Sheriff acted in an “arbitrary and capricious” manner when he ignored the mandated policies and contract provisions.  He also found the Sheriff’s assertions that he had decided several years ago to change the requirements for the Final Decision Maker, to be without merit, since not only were they not supported by the evidence at the hearing, but any such attempted changes were unilateral and violated Nevada state law requiring that they be bargained with the Union.