County may appeal decision on legislator’s back pay, reinstatement

Launce Rake and Stephen Curran

Monday, June 28, 2004 | 10:57 a.m.

Clark County leaders say they are looking into appealing a decision made June 25 by a federal arbitrator that allows a county employee fired for claiming sick pay while he worked as a legislator to return to work.

Kelvin Atkinson, D-North Las Vegas, was not penalized for his claims to sick pay, and the arbitrator ruled that Atkinson should receive back pay for the eight months he was out of work, the assemblyman said.

The Atkinson decision comes in stark contrast to the punishment levied against Kathy McClain, an assemblywoman who also took county pay while receiving a legislative paycheck.

McClain was suspended without pay for four months, but did win her job back June 2 and received back pay dating from Feb. 27 in a separate proceeding. The four-month suspension, levied retroactively by the arbitrator, was the largest in county history, county officials said.

County Manager Thom Reilly said he was shocked by Friday's decision by federal arbitrator Ronald Hoh.

"I find it mind-boggling," he said. "Here we have two instances with similar circumstances. One draws a record find. The other is completely exonerated."

While the county accepted the McClain decision with relative equinimity, that may not be the case with the Atkinson decision. Reilly kept the door open for the unusual court appeal.

"We're going to ask the District Attorney to look at it and see if there are grounds for appeal," he said.

Atkinson said his case was different from McClain's because he had worked out an agreement to shift his county job schedule and continue to work from Carson City. McClain, he said, made no such deal with her supervisors.

While in Carson City, Atkinson said he was given the task of updating an operations manual for the county Parks and Community Services Department, where McClain also works.

"I think the deciding factor is that there are no clear policies, and I worked within the rules that were given to me by my supervisors," Atkinson said. "I was given work while I was up there (Carson City) and I think I performed it adequately."

Reilly said the contract with rank-and-file employees clearly states that claiming sick time while working elsewhere is a firable offense, so no charges are anticipated in the conract. He said the county also moved quickly last fall to make it clear that any legislators must take unpaid leave while working in Carson City.

Reilly said he does not believe the decision will affect other employees.

"We trust our employees," he said. "I can say that these issues, these kinds of instances are extremely rare. Our employees are very honest individuals."

Earlier this month arbitrator David Heilbrun found that McClain, D-Las Vegas, had violated county policies by receiving sick pay while serving on the 2003 session of the Legislature. Heilbrun also ruled that McClain's violations did not rise to a "permeating intent to defraud, as opposed to grasping at a careless opportunity for gain."

McClain returned to work on June 7. She said that Atkinson may have been helped because his supervisor spoke on his behalf.

"They (the two cases) were pretty similar from what I understand," she said. "I doubt it (her suspension) was anything personal. I'm glad I was reinstated and can get on with my life."

The biggest factor, she said, was differing outlooks by the two arbitrators.

"It was a big difference in arbitrators," McClain said. "But I think it (Atkinson's reinstatement) is great. I'm really happy for him."

Reilly noted that in the arbitration hearing, Atkinson admitted charging the county for the sick time while he worked as a legislator -- a firing offense under the county's contract. But the arbitrator found that Atkinson should not be fired because the discovery of the "double-dipping" occurred months after the session ended.

"The message it sends to employees is, if you can get away with it, you're OK," Reilly said.

Top Nevada legal officials, including state Attorney General Brian Sandoval, have argued that public employees should be barred from serving in the Legislature because it violates the consitutionally mandated separation of powers.

George Harris, chairman of the conservative Nevada Republican Liberty Caucus, said both decisions were indicative of an arbitration process "rife with liberalism."

Harris expects his organization will launch an investigation into the arbitrator's role within the union structure.

"Unfortunately when you have those arbitratrors that are ultra-liberal, that's what you get," he said. "It is disappointing that someone can steal from taxpayers and get their jobs back. ... There's no way around it. The guy (Atkinson) stole from taxpayers."

Reilly said the county would not accept the services of that arbitrator again. Both the union representing the county workers and the county management can reject particular arbitrators.

"It clearly is a crap shoot when you get an arbitrator," Reilly said.