Buhrmann v. Sellentin

• Decision Date: 10 August 1984
• Docket Number: No. 83-526,83-526
• Citation: 352 N.W.2d 907,218 Neb. 288
• Parties: Mark BUHRMANN, Appellant, v. Jerry L. SELLENTIN et al., members of the Nebraska State Personnel Board; Jan Pieper, Director, State Department of Personnel, et al., Appellees.
• Court: Nebraska Supreme Court

Page 907

352 N.W.2d 907

218 Neb. 288

Mark BUHRMANN, Appellant, v. Jerry L. SELLENTIN et al., members of the Nebraska State Personnel Board; Jan Pieper, Director, State Department of Personnel, et al., Appellees.

No. 83-526.

Supreme Court of Nebraska.

Aug. 10, 1984.

Syllabus by the Court

1. Administrative Law: Appeal and Error. An appeal from a decision of the State Personnel Board is governed by the provisions of the State Administrative Procedure Act. In such an appeal the Supreme Court determines only whether the findings of the agency are supported by substantial evidence and whether the district court applied the proper statutory criteria.

2. Administrative Law: Due Process: Termination of Employment. A failure to provide due process at some point in a termination procedure does not invalidate the termination if that defect is later cured.

3. Administrative Law: Words and Phrases. Generally, the word "may" will be given its ordinary, permissive, and discretionary meaning unless it can be shown that the intent of the drafters would be defeated by the application of such a meaning.

4. Administrative Law: Constitutional Law. The combination of investigative and adjudicative functions does not necessarily create an unconstitutional risk of bias in administrative adjudication.

Terrance A. Poppe of Hecht, Sweet, Alesio & Morrow, P.C., Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, for appellees.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

BOSLAUGH, Justice.

The plaintiff, Mark Buhrmann, appeals from the order of the district court which affirmed the action of the Nebraska State Personnel Board terminating Buhrmann's employment with the Nebraska Department of Correctional Services.

Buhrmann was employed as a correctional corporal at the state penitentiary. On May 6, 1982, Buhrmann was arrested and charged with pandering. The reports of the investigating officers state that Buhrmann procured the services of a prostitute for two undercover officers.

On May 7, 1982, Adelbert Knight, the major in charge of security at the penitentiary, telephoned Buhrmann and informed him that he was suspended from his employment. Buhrmann received an "Official Notice of Suspension" dated May 10, 1982, informing him that he was suspended without pay until further notice. In a letter dated May 18, 1982, which included a statement of charges, Major Knight advised Buhrmann that a meeting with Warden Charles Black and Knight had been scheduled for May 25, 1982, and at that time Buhrmann could present any information valuable to his defense. On May 24, 1982, Buhrmann was accepted in the pretrial diversion program and the charge was dismissed. Participation in the program involves an admission of guilt.

Buhrmann attended the May 25 meeting, with counsel. Following that meeting, Warden Black recommended that Buhrmann's employment be terminated. Termination of his employment was approved by Charles Benson, director of the Department of Correctional Services, on May 26, 1982. After a hearing before the State Personnel Board, the action of the agency was affirmed.

Upon appeal to the district court, that court held the suspension of Buhrmann from May 7 to May 26 was invalid because Knight had failed to follow the procedure outlined in the rules and regulations of the Nebraska State Personnel System manual. The trial court ordered that Buhrmann be paid his salary and benefits for the period of suspension. As to termination, the court held that the proper procedure had been followed and that the evidence supported that action. Buhrmann has now appealed to this court.

An appeal from a decision of the State Personnel Board is governed by the provisions of the State Administrative Procedure Act. Neb.Rev.Stat. § 81-1319 (Reissue 1981). In such an appeal this court determines only whether the findings of the agency are supported by substantial evidence and whether the district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973); Neb.Rev.Stat. §§ 84-917 and 84-918 (Reissue 1981).

On this appeal Buhrmann contends that since the suspension was improper, it follows that the termination was also improper. This contention is without merit.

The suspension of Buhrmann was improper because he was not given an opportunity to refute the charges against him or to present mitigating evidence before the suspension was imposed as required by rule 13.11.2 of the Nebraska Personnel System Rules and Regulations.

Rule 13.11.2 provides:

13.11.2. The agency head, upon obtaining information which would indicate the possibility of administering corrective or disciplinary action, shall attempt to verify the information and give the employee an opportunity to refute the information or present mitigating evidence. The agency head shall notify the employee prior to any meeting which occurs pursuant to this section.

However, as to the termination, Buhrmann was given an opportunity to present information vital to his defense at the May 25, 1982, meeting which he attended with his counsel.

In Glenn v. Newman, 614 F.2d 467 (5th Cir.1980), the fifth circuit dealt with a similar situation and concluded that a failure to provide due process at some point in a termination procedure does not invalidate the termination if that defect was later cured. The court stated at 472:

In seeking to minimize the risk of wrongful termination to an employee without burdening the government with elaborate pretermination proceedings, this Court has outlined a procedure to meet minimum due process requirements. Thurston v. Dekle, 531 F.2d [1264] at 1273. This includes, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal means giving the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision. Id. We hold that the pretermination procedures afforded Glenn did not conform with Thurston's requirements.

Nevertheless, we find that any error involved was cured in the subsequent public hearing before the Mayor and City Council. See Blair v. Robstown Independent School District, 556 F.2d 1331, 1334-35 (5th Cir.1977); Thurston v. Dekle, 531 F.2d at 1269. In the post-termination proceedings, Glenn received written notice of the charges against him and was given sufficient time to prepare for the hearing. At the hearing, he was represented by an attorney who examined and cross-examined witnesses on his behalf, and he was allowed to present his case orally.

See, also, Wilson v. Taylor, 658 F.2d 1021 (5th Cir.1981).

The procedural error was corrected by affording Buhrmann an opportunity to present a defense to charges of which he had been specifically notified before the termination took place. The termination did not violate any rules of the State Personnel System, nor did it otherwise violate the due process rights of Buhrmann.

Buhrmann next contends that the State Personnel System rules require that he be reinstated because the charges against him were dropped. The section upon which Buhrmann relies does not require automatic reinstatement.

Rule 13.14.5 provides:

13.14.5. Suspension for Legal Charges or Investigation. Employees who are under investigation for or charged with criminal activity may, following a meeting as prescribed in paragraph 13.11.2 be indefinitely suspended pending outcome of a trial or investigation. Employees who are found guilty shall not be compensated for the suspension and may be dismissed. If they are not found guilty or if no judicial action is taken, they may be restored to their position and granted full pay and service credit for the period of their suspension, if circumstances justify such restoration.

(Emphasis supplied.)

Generally, the word "may" will be given its ordinary, permissive, and discretionary meaning unless it can be shown that the intent of the drafters would be defeated by the application of such a meaning. See, State ex rel. Hubbard v. Northwall, 150 Neb. 894, 36 N.W.2d 282 (1949); Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949); County of Keith v. Triska, 168 Neb. 1, 95 N.W.2d 350 (1959); State v. Noll, 171 Neb. 831, 108 N.W.2d 108 (1961). In the present case the word "may" indicates that an employee who has been charged with criminal activity may be reinstated at the discretion of the board if the circumstances warrant. The determination made by the board in this case was that the circumstances warranted termination.

Buhrmann next argues that the pretermination hearing of May 25, 1982, violated his due process rights because Warden Black, the officer before whom the hearing was held, had made a determination of guilt prior to that hearing. A similar argument was advanced in Nevels v. Hanlon, 656 F.2d 372 (8th Cir.1981). The court stated at 376-77:

In his cross-appeal, Nevels alleges that the district court erred in holding that he was not denied his due process right to have his case heard by an impartial decisionmaker. The crux of Nevels' claim is that, because the Merit System Rules require the Commissioner to make the initial determination to dismiss an employee and then to make the final decision of any appeal, the Commissioner is predisposed to uphold his original decision and is, therefore, not an impartial decisionmaker. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed.2d...