Blakely v. Lancaster Cnty.

Decision Date16 November 2012
Docket NumberNo. S–11–686.,S–11–686.
Citation825 N.W.2d 149,284 Neb. 659
PartiesMike BLAKELY, appellant, v. LANCASTER COUNTY, Nebraska, and the Lancaster County Personnel Policy Board, appellees.
CourtNebraska Supreme Court


Syllabus by the Court

[284 Neb. 659]1. Administrative Law: Words and Phrases. An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.

2. Civil Service: Administrative Law: Words and Phrases. Under the County Civil Service Act, Neb.Rev.Stat. §§ 23–2517 to 23–2533 (Reissue 2012), a “personnel policy board” is an administrative agency performing quasi-judicial functions when it reviews a grievance of, or disciplinary action against, a classified service employee.

[284 Neb. 660]3. Administrative Law: Appeal and Error. In reviewing an administrative agency decision on a petition in error, both the district court and the appellate court review the decision to determine whether the agency acted within its jurisdiction and whether sufficient, relevant evidence supports the decision of the agency.

4. Administrative Law: Evidence: Appeal and Error. The reviewing court in an error proceeding is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact. The evidence is sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did from the testimony and exhibits contained in the record before it.

5. Administrative Law. An administrative agency decision must not be arbitrary or capricious.

6. Administrative Law. Agency action is arbitrary and capricious if it is taken in disregard of the facts or circumstances of the case, without some basis that would lead a reasonable and honest person to the same conclusion.

7. Administrative Law. Agency action taken in disregard of the agency's own substantive rules is also arbitrary and capricious.

8. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

9. Statutes. The interpretation of statutes and regulations presents questions of law.

10. Contracts. Contract interpretation presents a question of law.

11. Administrative Law: Judgments. Whether an agency decision conforms to the law is by definition a question of law.

12. Judgments: Justiciable Issues. Justiciability issues that do not involve a factual dispute present a question of law.

13. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.

14. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.

15. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.

16. Moot Question. The central question in a mootness analysis is whether changes in circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief.

17. Moot Question. A case is not moot if a court can fashion some meaningful form of relief, even if that relief only partially redresses the prevailing party's grievances.

18. Civil Service: Administrative Law: Statutes. Statutory requirements under a civil service act regarding appointments and promotions are mandatory. Appointing authorities must comply with them for an appointment or promotion to be valid.

19. Civil Service: Words and Phrases. An “appointment” under the County Civil Service Act, Neb.Rev.Stat. §§ 23–2517 to 23–2533 (Reissue 2012), refers to an appointing authority's designation of a person to fill a vacant classified service position.

[284 Neb. 661]20. Civil Service. Properly conducted examinations provide the cornerstone of a merit-based civil service system.

21. Civil Service: Administrative Law.Neb.Rev.Stat. § 23–2525(13) (Reissue 2012) does not preclude a county from defining a transfer to include transfers within the same department.

22. Administrative Law: Statutes. A county is not free to promulgate rules that directly violate statutory requirements.




In construing a statute, a court must look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served. A court must then reasonably or liberally construe the statute to achieve the statute's purpose, rather than construing it in a manner that defeats the statutory purpose.

24. Statutes: Appeal and Error. An appellate court will not read into a statute a meaning that is not there.

25. Civil Service: Administrative Law: Legislature: Intent. Under Neb.Rev.Stat. § 23–2525(3) (Reissue 2012), the Legislature intended a county to conduct competitive examinations to fill all open positions in the classified service, unless an exception applies.

26. Civil Service: Administrative Law: Labor and Labor Relations: Contracts. Under the County Civil Service Act, Neb.Rev.Stat. §§ 23–2517 to 23–2533 (Reissue 2012), a county cannot implement any provision of the county employees' collective bargaining agreement that would violate a provision of the act.

27. Civil Service: Administrative Law: Legislature: Intent. Under Neb.Rev.Stat. § 23–2525(4) (Reissue 2012), the Legislature intended a county to conduct promotional examinations. And appointing authorities must consider records of performance, seniority, and conduct when making promotions.

28. Civil Service: Administrative Law. When a vacancy in the classified service is not filled by a transfer or under a statutory exception, Neb.Rev.Stat. § 23–2525(3) and (4) (Reissue 2012) required the county to fill it through one of two types of examinations: open competitive examinations or promotional examinations.

29. Civil Service: Administrative Law. When a civil service statute requires an appointing authority to consider seniority in making a promotion, that requirement must be respected.

30. Civil Service: Administrative Law. Under Neb.Rev.Stat. § 23–2525(4) (Reissue 2012), a county is not conducting promotional examinations when it posts a position as available to all county employees and fails to consider seniority.

31. Civil Service: Administrative Law: Legislature: Intent. Under Neb.Rev.Stat. § 23–2525(3) (Reissue 2012), the Legislature intended to limit an appointing authority's selection of an applicant to one of the applicants who scored highest on the final score of the examination process.

32. Civil Service. Under Neb.Rev.Stat. § 23–2525(3) (Reissue 2012), when oral interviews are part of the examination process for an appointment to the civil service, an applicant's score on an oral interview must be included in the final score.

33. Civil Service: Administrative Law. Under Neb.Rev.Stat. § 23–2525(3) (Reissue 2012), a county must devise objective standards to test the fitness of applicants as far as possible. When oral examinations are used to test an applicant's subjective traits, the scoring must be guided by measurable standards. That is, the examinations must provide some reasonable means of judicial review.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., Lincoln, for appellant.

Joe Kelly, Lancaster County Attorney, and Thomas W. Fox, Lincoln, for appellees.




The appellant, Mike Blakely, appeals from a district court order that affirmed the Lancaster County Personnel Policy Board's 1 decision that denied Blakely's grievance. Blakely's grievance alleged that the county denied him an opportunity to fairly compete for job vacancies because county officials did not follow the county's personnel rules or the employees' collective bargaining agreement (CBA).

There are two vacancies at issue. The first was a vacancy at the county's mental health center. For that vacancy, the county reassigned one of its employees to that position without conducting competitive examinations. The second vacancy was a grounds maintenance position left open after the county reassigned the first employee to the mental health center.

Regarding the first vacancy at the mental health center, the crux of the issue is the county's claim, and the court's implicit ruling, that a department head's decision to place a current department employee in a newly created vacancy is a “reassignment”—not an appointment subject to competitive examinations. Regarding the second vacancy, the court affirmed the county's promotion of a department employee to the vacancy although the department did not consider the applicants' seniority. Finally, the court ruled Blakely's claim moot because he no longer worked for the county after being laid off in December 2009.

We reverse. We will explain our holding with specificity in the following pages, but briefly stated, it is this:

• Blakely's claim is not moot. Blakely worked for the county when the new positions became available and when he filed his grievance. Because we conclude that his procedural challenges have merit, the county must consider him in new competitive examinations for the vacancies that comply with the county's statutory and contractual duties.

The court erred in affirming the personnel policy board's denial of Blakely's grievance. The County Civil Service Act 2 required county officials to comply with its provisions. In filling the first vacancy, the county failed to post notice of, and conduct, competitive examinations. In filling the second vacancy, it failed to properly conduct competitive examinations. Thus, its hiring and promotion decisions were arbitrary and capricious, and therefore void.



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