[¶ 1] Raymond J. Geffre appeals from a judgment affirming an administrative decision upholding the Department of Health’s termination of his employment for cause. The Department cross-appeals from the district court’s denial of its motion to dismiss Geffre’s appeal and the court’s award to Geffre of $1,289.79 in attorney fees incurred for responding to the Department’s motion. We conclude that the district court did not err in refusing to dismiss Geffre’s appeal, that the court did not abuse its discretion in award
I
[¶ 2] The Department hired Geffre for the position of fire and life safety surveyor in December 2000. The position entailed surveying basic health care facilities, hospitals, long-term care facilities, ambulatory surgery centers, and intermediate care facilities for compliance with the Life Safety Code. In April 2004, Geffre received a pre-action notice informing him that the Department was considering disciplinary action against him for failing to follow departmental policy in accurately reporting hours worked, claiming payment for hours not worked, and working non-standard work days. After receiving a satisfactory response from Geffre, the Department took no further action.
[¶ 3] Geffre was issued another pre-action notice by the Department in February 2005. This notice informed Geffre the Department was considering terminating his employment for “your continuing performance problems” in the form of “your apparent disregard of your inappropriate use of Department time, your untruthfulness, [and] your failure to follow the policy and directive ... for working a non-standard workday.” After his employment was terminated, Geffre filed an internal grievance which was reviewed by the State Health Officer. Although noting Geffre’s actions provided “adequate grounds for dismissal,” the State Health Officer reinstated Geffre’s employment. The State Health Officer said to Geffre in a letter that he had “decided to provide you one last opportunity to appropriately follow policies and procedures,” and further informed him:
Your supervisor will outline specifically what is expected of you in terms of performance standards and professional behavior. Your performance will be monitored closely. It is my sincere hope that you recognize the seriousness of your actions and take corrective action to prevent any recurrence.
Upon his reinstatement, Geffre was presented with a work plan to monitor his work time and periodic performance reviews were scheduled. Geffre signed the document, agreeing with the contents of the work plan and stating he would abide by those conditions of employment as well as any state, Department, section and division policies, procedures and guidelines.
[¶ 4] Under the work plan, Geffre was required to log in and log out with an electronic key card when working in the Bismarck office. In September 2005, Geffre failed to comply with a Department directive when he parked in an unauthorized area on the Capitol grounds. Geffre’s supervisor met with Geffre in September 2005 to discuss his performance surveys. The supervisor pointed out that safety citations made by a federal surveyor in “look behind” surveys revealed Geffre did not cite the same problems found by the federal surveyor. In addition, Geffre had a lower rate of citations than the Department’s other two fire and life safety surveyors. In October 2005, it was discovered Geffre had been inaccurately recording his work time on some travel vouchers and claimed meal reimbursements he was not entitled to receive. After meeting with supervisors to discuss the work plan and the progress on his job performance, Geffre failed to consistently comply with the requirement to card in and card out, which made it difficult for the Department to evaluate the accuracy of his attendance
[¶ 5] Geffre’s need to improve his rate of citations, which was about one-half the rate of the other surveyors, became an ongoing performance issue in his performance reviews and in his work plan. In August 2007, Geffre smoked a cigarette in a State Fleet vehicle, contrary to policy. In September 2007, Geffre was issued another pre-action notice that termination of his employment was being considered by the Department. Geffre submitted a written response admitting parking in an unauthorized area on the Capitol grounds and smoking in a state vehicle, but stated, “for the past approximately 30 months, I have been routinely subjected to different standards, different treatment, and a different level of scrutiny than other Health Department employees. The allegations contained in the Notice are the direct result of those different standards, that different treatment, and different level of scrutiny.” Geffre also said, “As a Fire Safety Surveyor, I’ve tried to use common sense in citing serious violations, not incidental, inconsequential trivialities. I believe that the Department’s constituents have understood and appreciated my approach.” The Department terminated Geffre’s employment.
[¶ 6] Geffre appealed his termination to Human Resource Management Services (“HRMS”). Following an administrative hearing, the administrative law judge (“ALJ”) upheld the Department’s decision. The ALJ found the Department had cause to terminate Geffre’s employment and Geffre had failed to show he was subjected to reprisal. Geffre appealed the decision to district court and served the notice of appeal and specifications of error on the State Health Officer, the Department’s attorney, and the Attorney General. The Department moved to dismiss Geffre’s appeal because he had failed to serve HRMS. The district court denied the motion, ordered the Department to prepare the record on appeal, and awarded Geffre $1,289.79 for attorney fees incurred in responding to the motion. The court affirmed the administrative decision upholding the Department’s termination of Geffre’s employment. These appeals followed.
II
[¶ 7] In its cross-appeal, the Department argues the district court erred in refusing to dismiss Geffre’s appeal and in awarding Geffre attorney fees incurred in responding to the motion to dismiss.
A
[¶ 8] The Department argues Geffre’s appeal should have been dismissed because Geffre failed to properly perfect the appeal. The Department contends Geffre was required to serve the notice of appeal and specifications of error on HRMS to properly perfect the appeal.
[¶ 9] An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal. North Dakota Dep’t of Human Services v. Ryan,
An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk of the district court to which the appeal is taken.
[¶ 10] In Ryan,
[¶ 11] The Department argues that our decision in Ryan should not be applied to direct appeals from administrative decisions because Ryan “was concerned only with failure to serve on cross-appeals,” and the “procedural importance of serving HRMS on direct appeal was not considered.” The Department contends applying Ryan to direct appeals is improper because it would place the burden on the Department, the appellee, rather than Geffre, the appellant, to provide the administrative record on appeal.
[¶ 12] The Department’s argument is not persuasive in this case. Fust, although the issue in Ryan involved a cross-appeal, this Court resolved the issue by focusing on the meaning of the statutory phrases “administrative agency concerned” and “parties to the proceeding” contained in N.D.C.C. § 28-32-42(4).
[¶ 13] Second, we think the Department overstates the “burden” placed upon it by not requiring service on HRMS. The Department could simply contact HRMS when it receives a notice of appeal. An appellant remains responsible for the costs of preparation of the record under N.D.C.C. § 28-32-44(2).
[¶ 14] Third, the Department’s perceived “burden” appears to have been lifted from its shoulders by the Legislature. About one month after the district court denied the Department’s motion to dismiss in this case, the Legislature amended N.D.C.C. § 54-44.3-12.2 effective August 1, 2009. See 2009 N.D. Sess. Laws ch. 510, § 1. The Legislature amended the statutory language relied upon in Ryan,
[¶ 15] We decline the Department’s invitation to overrule Ryan when applied to administrative appeals taken before August 2009. We do note, however, that in denying the motion to dismiss the district court ordered that “the Department initially bear the entire cost of preparing the record on appeal, subject to allocation of those costs at the close of the Court’s review.” The court’s decision on the merits of Geffre’s appeal does not allocate the cost of preparing the record to Geffre. We modify the judgment to assess the cost of preparing the record on appeal to Geffre, as is required by N.D.C.C. § 28-32-44(2).
[¶ 16] We conclude the district court did not err in refusing to dismiss Geffre’s appeal because it was properly perfected under the law as it existed at the time.
B
[¶ 17] The Department argues the district court erred in awarding Geffre $1,289.79 for attorney fees incurred in responding to its motion to dismiss his appeal.
[¶ 18] The district court awarded Geffre his attorney fees for defending the Department’s motion, concluding the “Department’s failure to certify the record in a properly perfected appeal prejudiced the rights of Geffre, was in violation of N.D.C.C. § 28-32-44(2), Rule 11[,] N.D.R.Civ.P.[,] and was not substantially justified under N.D.C.C. § 28-32-50.” In its ruling on the merits of the appeal, the court indicated its award of attorney fees was premised on N.D.R.Civ.P. 11. The Department contends the award of attor
[¶ 19] Section 28-32-50(1), N.D.C.C., addresses attorney fees and costs in actions involving administrative agencies:
In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorney’s fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification.
[¶ 20] This Court interpreted the predecessor statute to N.D.C.C. § 28-32-50(1) in Little v. Traynor,
[¶ 21] On appeal, this Court reversed the district court’s invalidation of the Bureau’s rules, but upheld the award of attorney fees. Little,
Subsection 1 of the statute broadly directs a court in “any civil judicial proceeding” between a nonadministrative party and an agency to award the nonadministrative party reasonable attorney fees and costs “if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification.” (Emphasis added). By limiting the “without substantial justification” requirement to cases of a “final agency order,” the Legislature recognized attorney fees and costs could be awarded to a nonadministrative party who prevails in some instances without having to show an absence of substantial justification for the agency’s action. This case did not involve a final agency order rendered by an agency acting in an adjudicatory, quasi-judicial capacity, see Lamplighter Lounge, Inc. v. State,523 N.W.2d 73 , 74-75 (N.D.1994), and the district court correctly ruled no showing of an absence of substantial justification was necessary.
The Legislature clearly evidenced its intention attorney fees and costs could be awarded to a nonadministrative party in some instances where the court simply “finds in favor of that party.” TheBureau’s motion for leave to pursue discovery and the resulting request for attorney fees were clearly an intertwined part of this rulemaking appeal. The language of the statute does not limit payment of attorney fees and costs to instances where the nonadministrative party prevails on the underlying appeal, to the exclusion of other related motions and orders which are made and rendered in conjunction with the appeal.
Id. at ¶¶ 39-40.
[¶ 22] Like the situation in Little,
[¶ 23] We apply the abuse of discretion standard of review to a challenge of an award of attorney fees under N.D.C.C. § 28-32-50(1). See Little,
Ill
[¶ 24] Geffre argues the district court erred in upholding the Department’s termination of his employment.
[¶ 25] We exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Zimmerman v. North Dakota Workforce Safety and Ins. Fund,
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
N.D.C.C. § 28-32-46.
[¶ 26] On appeal, we review the agency’s decision and the record compiled before the agency, but we give respect to sound reasoning of the district court. Sample v. North Dakota Dep’t of Transp.,
[¶ 27] Geffre was a “regular employee” under the definition of the term in N.D. Admin. Code § 4-07-20.1-02(4). Under N.D. Admin. Code § 4-07-19-03, a “regular employee may be disciplined only for cause.” “Cause” is defined as “conduct or factors related to a regular employee’s job duties, job performance, or working relationships that is detrimental to the discipline and efficiency of the service in which the employee is or was engaged.” N.D. Admin. Code § 4-07-19-02(1). Under N.D. Admin. Code § 4-07-19-04, “[progressive discipline must be used to correct a regular employee’s job performance problems or for a violation of rules or standards unless an infraction or a violation of a serious nature is committed, including insubordination, theft, falsification of pay records, or assaulting or threatening to harm a supervisor or coworker, patient, or client, and for which the imposition of less severe disciplinary action would be inappropriate.” “In an employer-employee relationship insubordination ‘imports a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders.’ ” deOliveira v. State Bd. of Educ.,
[¶ 28] An appointing authority is precluded from taking reprisal action against a regular employee. See Jacobs v. North Dakota State Pers. Bd.,
A
[¶ 29] Geffre argues the ALJ erred in placing the burden of proof upon him in these proceedings.
B
[¶ 31] Geffre argues he was denied due process in his termination and appeal proceedings.
[¶ 32] The United States Supreme Court has determined that “all the process that is due to ... a public employee is that he receive ‘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,’ coupled with a full post-termination administrative hearing.” Berdahl v. North Dakota State Pers. Bd.,
[¶ 33] Geffre’s appellate brief is littered with other allegations of constitutional due process violations, but he provides no coherent constitutional analysis or citations to authority to support his allegations. “We have repeatedly cautioned a party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities an argument is without merit.... A party must do more than submit bare assertions to adequately raise a constitutional issue.” Olson v. Workforce Safety and Ins.,
C
[¶ 34] Stripped of the constitutional rhetoric, Geffre’s arguments simply boil down to attacks on the ALJ’s findings of fact and conclusions of law.
[¶ 35] There is evidence in the record that during his inspections of health facilities Geffre refused to cite deficiencies he believed were trivial, even though the Department had given him various opportunities to perform the inspections correctly. We agree with the ALJ that this conduct constituted insubordination and provided the Department cause to terminate Geffre’s employment without applying progressive discipline under N.D. Admin. Code § 4-07-19-04. The ALJ correctly observed:
The Department of Health met its burden to show there was cause to terminate Geffre’s employment. Despite long-standing efforts to assist him to improve his job performance, Geffre failed or refused to correct his job performance deficiencies to comply with stated performance expectations and to adhere to Departmental rules and policies. He was insubordinate in refusing to follow the directives of his supervisor and Division management to consistently cite all deficiencies found in conducting surveys of Health Facilities, even after being repeatedly instructed to do so and after repeated notation of his performance deficiency in that job task on performance reviews. Such conduct was certainly detrimental to the efficiency and discipline of the job in which Geffre was engaged and to the agency as a whole, and constitutes cause for termination of his employment.
[¶ 36] Furthermore, Geffre presented no evidence that the Department took reprisal action against him under the circumstances listed in N.D. Admin. Code § 4-07-20.1-02(5). Rather, Geffre contends “his termination was the result of retaliation or reprisal for having successfully challenged his earlier termination and been reinstated in his job.” We agree with the ALJ’s cogent rejection of this argument:
Geffre was under a disciplinary performance improvement plan, one which he agreed to. He cannot come now after the fact and try to justify his failure to comply as “new and unreasonable burdens.” His statement, “insisting on citation of deficiencies which, in his judgment, did not rise to the level of deficiencies” speaks volumes as to the reason for the unfortunate outcome in his case. He simply could not get beyond exercising his own judgment of what deficiencies to cite, instead of complying with direct orders to cite all deficiencies found in surveys.
Geffre claims he was treated differently and subjected to more scrutiny than other Department employees. That is true, but not because the employer had singled him out in retaliation for any reason. Geffre was under a disciplinary performance improvement plan, unlike the other surveyors. Obviously that would result in more scrutiny and different performance expectations.
Geffre was unable to establish even a prima facie showing of reprisal, which was his burden to do. Even had he done so, the Department of Health provided a reasonable explanation for its actions and established that its decision to terminate his employment was not a pretext or some hidden motivation for reprisal, but rather, it was based on legitimate reasons. Geffre’s termination came about as the culmination of a long period of documented performance deficiencies and violation of agency rules and policies. The employer had in fact been very tolerant in giving Geffre ample time and opportunity to correct his performance deficiencies. The evidence shows that he was terminated, not as the result of any retaliatory animus on the part of his employer, but because of a lengthy record of persistent job performance deficiencies and insubordination.
[¶ 37] We conclude the ALJ’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision upholding the termination of Geffre’s employment is supported by the conclusions of law.
IV
[¶ 38] We have considered the other arguments raised by the parties and conclude they are either unnecessary to address in view of our disposition of the case or are without merit. The judgment is affirmed as modified.