Bockbrader v. Department of Public Institutions

• Decision Date: 17 May 1985
• Docket Number: No. 84-302,84-302
• Citation: 367 N.W.2d 721,220 Neb. 17
• Parties: Golda BOCKBRADER, Appellant, v. DEPARTMENT OF PUBLIC INSTITUTIONS, State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 721

367 N.W.2d 721

220 Neb. 17

Golda BOCKBRADER, Appellant, v. DEPARTMENT OF PUBLIC INSTITUTIONS, State of Nebraska, Appellee.

No. 84-302.

Supreme Court of Nebraska.

May 17, 1985.

Syllabus by the Court

1. Administrative Law: Due Process: Notice: Appeal and Error. A court reviewing an order of an administrative agency to determine whether there has been due process of law must determine whether there was reasonable notice and an opportunity for fair hearing.

2. Administrative Law: Due Process. There must be a hearing before an impartial board at some time before an order of dismissal from an administrative agency becomes effective, to ensure due process of law.

3. Administrative Law: Public Officers and Employees: Due Process. Due process requires a pretermination hearing to determine whether there are reasonable grounds to believe that the charges against a tenured public employee are true and support the proposed action.

4. Administrative Law: Public Officers and Employees: Due Process. A tenured public employee is entitled to notice of the charges against him, an explanation of the employer's evidence, and an opportunity to respond at a pretermination hearing.

5. Final Orders: Jurisdiction. The power to decide usually implies the power to reconsider.

Elaine A. Waggoner of Waggoner Law Office, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Martel J. Bundy, Lincoln, for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired.

BOSLAUGH, Justice.

The plaintiff, Golda Bockbrader, appeals from the order of the district court which affirmed the order of the State Personnel Board approving the termination of her employment by the Department of Public Institutions (DPI) of the State of Nebraska.

The plaintiff was employed as the volunteer-recreation coordinator at the Nebraska Veterans' Home, Grand Island, Nebraska (Home). On March 18, 1980, the plaintiff's employment was terminated by Everett Phillips, the Home's administrator, for "continued inability to follow the direction of management."

The termination of her employment was preceded by a series of complaints made against her by the Home's nursing department and a representative of the American Legion Auxiliary (Auxiliary). Specifically, on three occasions, despite requests by the nursing department, the plaintiff failed to provide volunteers for an enclosed area outside the home, which was used for recreational purposes. The plaintiff was aware that she was supposed to coordinate such activities with the nursing department, but refused to do so because she considered the fenced area like a prison camp and was sure that volunteers would not want to work within it.

Additionally, friction existed between the plaintiff and Eleanor Brown, the deputy representative from the Auxiliary to the Home. The plaintiff instructed an employee from the volunteer department not to assist the Auxiliary in turning on a bingo board. Brown complained to Phillips about the plaintiff's lack of cooperation with the Auxiliary. Phillips also received complaints from the department president of the Auxiliary that the plaintiff acted like she were the Auxiliary representative at the home, was trying to take over the Auxiliary program at the Home, and had a habit of representing herself as the representative at Auxiliary meetings.

In response to these complaints, Phillips discussed the problems with the plaintiff and issued six directives to her on July 25, 1979. They directed the plaintiff to (1) cooperate with specifically identified volunteers in the coming year; (2) cooperate with nursing programs as requested; (3) not represent the Home at veterans' meetings, and make sure the Auxiliary representative received credit for services performed at the Home; (4) give her employees written directives to cooperate in any way possible with all volunteers; (5) keep this conversation privileged; and (6) provide her three CETA workers to the nursing department on July 26, 1979, at 9:30 a.m.

When the plaintiff received a 5-percent merit pay increase in November 1979, she thought she had complied with the directives. However, beginning in January 1980, more problems arose. The plaintiff objected to Brown's receipt of free meals while at the Home as a representative of the Retired Senior Volunteer Program (RSVP). The plaintiff's objections, which were voiced at an RSVP board meeting, embarrassed Brown. Subsequently, the plaintiff resigned from the RSVP board over the issue of meal reimbursement.

On January 21, 1980, Phillips received a request from the American Legion for the plaintiff to speak at an upcoming convention. When Phillips instructed the plaintiff to decline the invitation, several angry Legionnaires met with Phillips on January 31, 1980, to determine why the plaintiff could not speak.

On February 27, 1980, Phillips again met with the plaintiff and asked her about the RSVP incident and the Legionnaires' meeting. He also reminded her of the July directives. She claimed to know nothing of the Legionnaires' meeting, and requested a meeting with Brown. Phillips then presented the plaintiff with a written corrective action, pursuant to rule 14.12.5 of the Nebraska Personnel System Rules and Regulations (Oct. 24, 1977), for her "repeated failure to maintain satisfactory and harmonious working relations with other departments and various volunteer groups." The corrective stated that the plaintiff was working against management rather than with it. It warned of further disciplinary action if there was no evidence in the immediate future of a cooperative attitude between the plaintiff's office and the volunteer groups.

The meeting with Brown that the plaintiff had requested was held on February 28. By all accounts the meeting solved nothing, and the plaintiff antagonized Brown. The personnel manager, who attended this meeting and had been investigating complaints against the plaintiff, then recommended termination to Phillips, based on the meeting and a review of the plaintiff's performance records relating to cooperation with management.

Phillips met with the plaintiff on March 10, 1980, to discuss the results of the meeting with Brown. They also discussed her attitudes about providing volunteers in the enclosed area, which had not changed.

On March 18, 1980, Phillips terminated the plaintiff's employment. She was informed by Phillips that the termination was based on her inability to cooperate with Brown and her inability to cooperate with management in utilizing the enclosed area.

The plaintiff then filed a grievance with the director of DPI, who affirmed the termination for violation of the same regulations referred to by Phillips in his written response to the grievance: (1) failure to comply with regulations, policies, and procedures of the Department of Personnel; (2) refusal to accept a reasonable work assignment; (3) use of undue influence to gain individual advantage; and (4) failure to maintain harmonious working relationships with the public or with other employees.

The plaintiff then appealed to Jan Pieper, the director of the Department of Personnel. Pieper, after hearing testimony, recommended reinstatement, based on management's failure to provide specific guidance as to how the plaintiff could correct her deficiencies.

The DPI then brought the matter before the State Personnel Board. A full evidentiary hearing was held on October 9 and 10, 1980, before four board members. This hearing resulted in a tie vote. On its own motion the board held a second hearing on July 16 and 17, 1981, before two new board members and one other member. This panel unanimously affirmed the termination.

The plaintiff then appealed to the district court, raising five errors which, upon hearing, were consolidated into two: (1) Whether the board's tie vote after the first hearing was a final order which deprived the board of jurisdiction to hold the second hearing, which thus deprived the plaintiff of due process; and (2) Whether the evidence on rehearing was sufficient to support the termination. The district court held that the board had acted within its jurisdiction, there had been no denial of due process, and the decision was supported by competent, material, and substantial evidence.

The plaintiff claims the district court erred in its finding of jurisdiction and substantial evidence. She also alleges other due process violations under the broad umbrella that the district court's decision is "contrary to the law." Specifically, she questions the sufficiency of her termination notice, as it did not tell her why she was fired, and the sufficiency of the procedures used by Phillips prior to termination.

A court reviewing an order of an administrative agency to determine whether there has been due process of law must determine whether there was reasonable notice and an opportunity for a fair hearing. In re Appeal of Levos, 214 Neb. 507, 335 N.W.2d 262 (1983).

The requisite notice must inform the employee of the accusation made, identify the accuser, provide a factual basis for the accusation, and afford an opportunity to present evidence concerning the accusation. Levos, supra; Benton v. Board of Ed. of Sch. Dist. No. 17, 219 Neb. 134, 361 N.W.2d 515 (1985).

The hearing must be before an impartial board, Levos, supra, and Benton, supra, and occur at some point before the final order becomes effective. Chase v. Board of Trustees of Nebraska State Colleges, 194 Neb. 688, 235 N.W.2d 223 (1975).

Here, there was substantial compliance with the notice requirements, and there can be no doubt that the plaintiff knew why she was terminated. The termination notice itself was minimal, but Phillips informed the plaintiff at the termination meeting of the specific reasons for termination: lack of cooperation with Brown and lack of cooperation in staffing the enclosed area. While no specific regulations that had been violated were listed...