Appeal of Levos, 82-159

• Citation: 214 Neb. 507,335 N.W.2d 262
• Decision Date: 03 June 1983
• Docket Number: No. 82-159,82-159
• Parties: In re Appeal of Chris LEVOS. Chris LEVOS, Appellant, v. COLUMBUS CIVIL SERVICE COMMISSION, Appellee.
• Court: Supreme Court of Nebraska

Page 262

335 N.W.2d 262

214 Neb. 507

In re Appeal of Chris LEVOS.

Chris LEVOS, Appellant, v. COLUMBUS CIVIL SERVICE COMMISSION, Appellee.

No. 82-159.

Supreme Court of Nebraska.

June 3, 1983.

Syllabus by the Court

1. Due Process: Notice. For procedural due process a notice must reasonably inform a person of the accusation levied and the forum where evidence upon such accusation can be presented.

2. Administrative Orders: Appeal and Error. Action of an administrative agency or tribunal must be sustained, if such action is not arbitrary and capricious and is based upon competent evidence.

3. Administrative Orders. In reviewing the findings and decision of an administrative agency or tribunal, it is not for the Supreme Court to resolve conflicts in the evidence. Credibility of witnesses and the weight to be given to testimony are for the administrative agency or tribunal as the trier of fact.

4. Due Process: Appeal and Error. Procedural due process does not require a trial de novo or an additional and independent evaluation of evidence.

5. Administrative Orders. Action of a civil service commission is "in good faith for cause" when the findings and decision of such agency are based on competent evidence, neither "arbitrary and capricious" nor the result of "political or religious reasons," and reasonably necessary for effectual and beneficial public service.

6. Evidence: Appeal and Error. A litigant on appeal cannot complain about the admission of evidence which favored or benefited the litigant's case.

Richard L. Kuhlman, Fremont, for appellant.

Noyes W. Rogers of Leininger, Grant & Rogers, Columbus, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

SHANAHAN, Justice.

This matter involves an appeal from action taken by a civil service commission. The District Court for Platte County, Nebraska, upheld the disciplinary action ordered by the civil service commission for the city of Columbus, Nebraska.

Chris Levos, who had 15 years' experience in the Columbus Police Department, was promoted to captain on June 1, 1980, but with a 6-month term of probation regarding such captaincy.

At approximately 1:30 a.m. on October 17, 1980, police had been summoned to a commotion in downtown Columbus. After the crowd dispersed uneventfully, Roger Cooley, a Columbus police officer in "plain clothes," also started to leave the scene. Present at this time were another policeman, Officer Donald Miller, and two civilians, Jeff Adkisson and Kenny Grape. Adkisson and Grape had been passing by in Grape's car and were attracted by the gathering. The trio of Miller, Adkisson, and Grape observed Bryan J. Timms walk to Cooley's station wagon and slam the door on Cooley's legs as the officer attempted to enter his vehicle.

As Timms began to walk away, Cooley ran after him and tackled Timms from behind. Timms and Cooley fell struggling to the pavement. As Miller went to assist Cooley, another officer, Jimmy Peters, arrived. Cooley was then kneeling on Timms' back, and Miller helped apply handcuffs so that Timms' hands were secured behind his back. At this point Levos arrived. Timms in handcuffs was to be taken to the police station in Miller's cruiser. Cooley and Levos brought Timms, still shackled, to the passenger's side of the cruiser within view of Peters, Adkisson, and Grape.

As Cooley and Levos were attempting to put Timms into the cruiser, Timms resisted but to no great degree. Levos thereupon grabbed Timms' hair and "banged his head" three times on the top of the cruiser. Timms was then shoved into the cruiser, and, while Timms was lying in the front seat of the cruiser, Levos struck him. According to Levos, what the others had observed to be Levos' striking Timms was in fact an attempt to fasten Timms' seat belt for transportation to the police station. Miller drove Timms to the police station, and the other officers followed in their vehicles.

The police station is in the Hall of Justice where offices of the Platte County sheriff are also located. When Miller's cruiser arrived at the Hall of Justice, it was met by Levos, Trooper Robert Meyer and the jailer, Deputy Kim Wolfe of the sheriff's department, who assisted in removing Timms from Miller's cruiser. Timms still had his hands secured behind his back. Upon entering the Hall of Justice, Timms was taken by Levos and Meyer to the "booking room." As these three were walking to the booking room, Timms spit at Levos. Meyer testified that Levos then doubled his fist and swung at Timms two or three times. Meyer also heard the sound of "flesh on flesh contact" in the course of this fracas. Levos testified that he did not strike Timms but did "push his head down" so that Timms could not spit at Levos while they walked down the hallway.

In the booking room Wolfe and Meyer inventoried Timms' personal effects. Timms was seated in a chair, while Wolfe and Meyer were unlacing the "combat" or military boots worn by Timms. Levos was standing nearby at a filing cabinet and was smoking a cigarette. Both Meyer and Wolfe testified there was no struggle involving Timms and the situation was "under control." That description was verified by two deputies of the sheriff's department, Gilbert Maschmeier and Kenneth Kildare. In this setting Miller entered the room where Timms was seated with handcuffs still securing his hands behind his back. Although there was no request for assistance, Miller with both his hands pushed Timms' head down on a table located in front of Timms' chair. Maschmeier and Kildare testified that this maneuver was done in such a manner that Timms' neck was forced against the edge of the table and cut off the air supply of Timms, who was "gasping for air."

When Maschmeier asked Miller, "Why don't you let him up?" Levos finally stepped forward and told Miller to "let him up." Miller released Timms who then slipped from the chair to the floor. Kildare unlocked the handcuffs from Timms, and, when Deputy Kildare saw visible signs of injury to Timms, including a swollen nose and fresh blood around the nose and mouth, Kildare told Levos that Timms, as an injured and prospective prisoner, would not be accepted by the sheriff's department for incarceration without medical attention. Any question about medical attention was resolved when Timms signed a "citation" alleging that he had resisted arrest and committed an assault. Timms was then "released" and later obtained medical attention. Evidence regarding intoxication of Timms is in deep dispute, and opinions ranged from "not intoxicated" (Meyer) to "under the influence" (Levos).

Each officer involved in the incident filed a written report with his agency. A preliminary investigation of the incident included statements by three officers, namely, Meyer, Wolfe, and Peters. All written reports, including the sworn statements of the aforenamed officers, were available to Levos before and during the hearing which Levos requested of the commission.

After written reports had been filed by the officers, Meyer requested hypnosis in order to sharpen his recollection, especially in view of some inconsistencies regarding Meyer's report and the reports filed by some of the other officers. At the hearing before the commission, counsel for Levos objected to the testimony of Meyer because Meyer had been hypnotized relative to his recollection of the incident.

Levos asks review of the following: (1) Fulfillment of procedural due process concerning the notice or accusation against him and the action taken by the commission pursuant to such notice; (2) The elements required in order that any disciplinary action be "in good faith for cause" in compliance with Neb.Rev.Stat. § 19-1808 (Reissue 1977); and (3) The correctness in receiving testimony from a witness previously hypnotized relative to the incident under examination by the commission.

Concerning a review of procedural due process required of an administrative agency or tribunal, the scope of such review is found in 73 C.J.S. Public Administrative Bodies and Procedure § 215 at 573 (1951): "It is the function of a court called on to review an order of an administrative agency to determine whether there has been due process of law; and this includes an inquiry into the jurisdiction of the agency, whether there was reasonable notice and an opportunity for fair hearing, and whether the finding was supported by evidence."

Levos has not challenged the jurisdiction of the commission, and so we proceed to the question regarding the notice given. The criterion for a constitutionally sufficient notice is found in Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950): "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.... The notice must be of such nature as reasonably to convey the required information ... and it must afford a reasonable time for those interested to make their appearance.... But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied." Here the notice delivered by the mayor and city council of Columbus referred to three sworn statements of law enforcement officers (Trooper Meyer, Deputy Wolfe, and Officer Peters) concerning the Timms incident of October 17, 1980, and recited that "there was a willful failure to properly conduct yourself as a police officer and said conduct tended to injure the public service...." The notice then set out the disciplinary action to be taken against Levos and informed him of his right to a hearing before the commission in accordance with Neb.Rev.Stat. §§ 19-1801 et seq. (Reissue 1977).

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