State ex rel. Spire v. Conway

• Decision Date: 26 July 1991
• Docket Number: No. 90-097,90-097
• Parties: , 69 Ed. Law Rep. 114 STATE of Nebraska ex rel. Robert M. SPIRE, Attorney General of the State of Nebraska, Relator, v. Gerald A. CONWAY, Respondent.
• Court: Nebraska Supreme Court

Page 403

472 N.W.2d 403

238 Neb. 766, 69 Ed. Law Rep. 114

STATE of Nebraska ex rel. Robert M. SPIRE, Attorney General of the State of Nebraska, Relator, v. Gerald A. CONWAY, Respondent.

No. 90-097.

Supreme Court of Nebraska.

July 26, 1991.

Syllabus by the Court

1. Quo Warranto: Public Officers and Employees. For the purposes of quo warranto, a public office is a governmental position, the duties of which invest the incumbent with some aspect of the sovereign power.

2. Quo Warranto: Public Officers and Employees. The position of assistant professor at a state college is a public office for the purposes of quo warranto under the provisions of Neb.Rev.Stat. § 25-21, 121 (Reissue 1989).

3. Constitutional Law. Neb. Const. art. II prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives.

4. Constitutional Law: Courts. Courts must apply and enforce the Constitution as it is written.

5. Constitutional Law. Constitutional provisions are not open to construction as a matter of course; construction of a constitutional provision is appropriate only when it has been demonstrated that the meaning of the provision is not clear and that construction is necessary.

6. Constitutional Law. If a constitutional provision must be construed, its words are to be interpreted in their most natural and obvious sense, although they should receive a more liberal construction than statutes and are not subject to rules of strict construction.

7. Constitutional Law. The Nebraska Constitution, as amended, is to be read as a whole.

8. Constitutional Law. Neb. Const. art. II prohibits one who exercises the powers of one branch of government from being a member of the others.

9. Constitutional Law: Public Officers and Employees. An employee of a state college is a member of the executive branch of government.

Robert M. Spire, Atty. Gen., and Dale A. Comer, Lincoln, for relator.

Robert A. Skochdopole and Thomas D. Wulff, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for respondent.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

This original action in quo warranto brought by the State of Nebraska through the relator, Robert M. Spire, its Attorney General, challenges the right of the respondent, Sen. Gerald A. Conway, to hold a position as an assistant professor at Wayne State College while simultaneously serving as a member of the state's Unicameral Legislature.

The college is a state institution under the government of the Board of Trustees of the Nebraska State Colleges, pursuant to Neb. Const. art. VII, § 13, and Neb.Rev.Stat. § 85-301 (Cum.Supp.1988). The State contends that because he is a senator, respondent's assistant professorship violates the distribution of powers clause found in Neb. Const. art. II, § 1, which reads:

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.

(Inasmuch as the quoted language is the only section this article has ever contained, we hereafter refer to the provision simply as article II.)

Respondent became a member of the Legislature, representing the 17th legislative district, in 1985. He was reelected to this position on November 8, 1988, and took his oath as a legislator in early January 1989. The unsuccessful competing candidate for the seat contested the reelection, contending that respondent was not eligible to hold the office. However, the Legislature Respondent has been teaching in the business division of the college since 1975, first as an instructor and then, upon obtaining tenure in 1979, as an assistant professor. His appointment is renewed each year, and he accepted a renewal on July 14, 1989, for the 1989 academic year. This action was commenced on January 17, 1990.

determined otherwise and dismissed the contest.

While the employment policy manual of the Nebraska state colleges does not specify the rights attendant to tenure, it does provide that of "all rewards and recognitions offered by a college to its faculty members the offer of tenure is the most significant of all," demonstrating success in "satisfying the college--its faculty, administration, and board--during a rigorous probationary period that he/she is worthy of becoming a recognized member of the faculty with full rights and privileges." Although the policy does not detail how the employment of one having tenure may be terminated, it does provide that those not having such status "shall assume they are serving in a probationary capacity," and specifies that, with certain exceptions, " '[p]robationary faculty may be terminated for any reason without right of grievance or hearing....' "

As an assistant professor, respondent serves under the direction of the division chairperson, who assigns respondent's duties and responsibilities. Respondent prepares syllabi, prepares and delivers lectures, and presides over classroom activities for the courses he teaches. Subject to the approval of his division chairperson, respondent may select the books to be used in his classes. He determines the required reading for his classes and assigns those readings, along with other course-related assignments, as he deems appropriate. He also prepares or selects testing materials, grades those tests, and assigns his students their overall grade for each of his courses.

The college does not provide respondent with either a secretary or administrative staff, and respondent has no administrative duties. Although he may advise as to course offerings, he does not determine the courses to be offered by the business division. The record does not indicate whether he chooses or is assigned the classes he is to teach. The number of class hours respondent teaches is set by the division chairperson.

Although respondent is responsible for maintaining control over his classroom and students during class sessions, he cannot directly or formally discipline any student except through established college disciplinary procedures, and he has no authority over the selection of his students. He is not involved in setting the budget of the college, nor does he have any official duties off campus unless such are specifically assigned to him by his superiors.

Respondent's position with the college does not require him to take an oath of office. His salary is set through collective bargaining, but he is not a dues-paying member or officer of the collective bargaining unit. At the time this action was commenced, respondent's salary for the 8-month academic year ending in May 1990 was set at the highest level since his employment.

After becoming a senator, respondent requested and received from the Board of Trustees unpaid leaves of absence for the periods in which the Legislature was in regular session. The board's policy manual on leaves of absence provides that "[n]ormally, with the exception of political leaves, a leave without pay will not be granted more often than once very [sic] four years." The policy also declares that "[w]ith the exception of political leaves, unless there is an unforeseen reason, a leave of absence must be arranged at least one semester before the leave is granted." Political leaves are available to state college employees who are elected or appointed to state or national office, or who are candidates for such offices.

During his leaves of absence, respondent received no pay, insurance, retirement, or other employment benefits. However, the board did not give him a formal leave of absence during the occasions he attended

several special sessions of the Legislature. Instead, the college administration removed him from the payroll for all but the November 1989 special session. The record is silent as to whether respondent received insurance, retirement, or other benefits for those periods. The record does, however, demonstrate that he has participated in interim legislative studies while on the college's payroll and that he has available to him on a year-round basis a Capitol Building office and a two-person staff housed in that building.

APPROPRIATENESS OF REMEDY

As a threshold question, we must determine whether quo warranto is an appropriate means to challenge the right of an assistant professor at a state college to hold his position. Neb.Rev.Stat. § 25-21,121 (Reissue 1989) permits the filing of an action in quo warranto "against any person unlawfully holding or exercising any public office or franchise within this state ... or when any public officer has done or suffered any act which works a forfeiture of his office...." This court's jurisdiction, then, depends upon whether an assistant professor at a state college holds or exercises a "public office" within the meaning of § 25-21,121.

The cases from other jurisdictions respondent cites in support of his position that an assistant professor is not an officer of the executive department dealt with constitutional prohibitions on dual office holding and not with quo warranto. The applicability of those cases to the dual services question is discussed later, but the preliminary question regarding the applicability of quo warranto is resolved under the law of this jurisdiction.

In Eason v. Majors, 111 Neb. 288, 196 N.W. 133 (1923), we held that Eason, a teacher serving as head of the English department of the state normal school at Peru, was a public officer and thus could maintain an action in quo warranto to test the validity of his ouster and replacement. In determining that Eason exercised some portion of the sovereign power and that he thus was a public officer within the meaning of the quo warranto statute, this court stated:

When a position...