City of Omaha v. Savard-Henson

• Decision Date: 08 August 2000
• Docket Number: No. A-99-645.,A-99-645.
• Citation: 615 N.W.2d 497,9 Neb.App. 561
• Parties: CITY OF OMAHA, Appellant, v. Susan SAVARD-HENSON and City of Omaha Personnel Board, Appellees.
• Court: Nebraska Court of Appeals

615 N.W.2d 497

9 Neb.App. 561

CITY OF OMAHA, Appellant, v. Susan SAVARD-HENSON and City of Omaha Personnel Board, Appellees.

No. A-99-645.

Court of Appeals of Nebraska.

August 8, 2000.

Paul D. Kratz, Omaha City Attorney, and Bernard J. in den Bosch, for appellant.

Steven J. Lefler, of Lefler & Mullen Law Firm, Omaha, for appellees.

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

Susan Savard-Henson's employment with the City of Omaha (City) was terminated because of alleged drug use at work, felony drug charges against her, and her possession of stolen City property. She appealed the termination to the City of Omaha Personnel Board (Board). The Board, after excluding certain evidence under the Fourth Amendment exclusionary rule, reinstated her with a 30-day suspension without pay. The City filed a petition in error in the district court for Douglas County, which ultimately affirmed the Board's decision. This appeal involves the first impression issue of whether the exclusionary rule, used to suppress evidence which was held to have been obtained in violation of the Fourth Amendment in the criminal proceedings against Savard-Henson, also applies to the administrative proceedings concerning her employment.

BACKGROUND

In April 1998, the Omaha Police Department was called by Savard-Henson's supervisors after several coemployees, who wanted to remain anonymous, provided information to Savard-Henson's supervisors about her possession and distribution of marijuana. The supervisors discussed what to do with this information and finally decided to turn it over to the police. The police were told that Savard-Henson worked for the City in the public works department and that other employees had observed suspicious activity involving Savard-Henson and another City employee named "Jim Thompson." The police were provided with Savard-Henson's address and the make and model of her personal vehicle.

On May 8, 1998, Omaha police officers followed Savard-Henson and her husband from their residence to her husband's place of employment and then to Savard-Henson's place of employment, where the officers set up surveillance on her vehicle. The officers soon observed Savard-Henson and Thompson arrive in a City vehicle and park next to her personal vehicle. The officers then saw Savard-Henson retrieve an item from her personal vehicle. At this point, the officers made contact with her and Thompson. After a drug dog alerted to the presence of drugs in the vehicles, the officers found 2 ½ marijuana cigarettes, several marijuana cigarette butts, and a small quantity of methamphetamine. Thereafter, Savard-Henson was taken to the police station for booking. The legality of the search of the vehicles is not in issue. The officers believed they had probable cause for the issuance of a search warrant for Savard-Henson's residence because they had followed Savard-Henson and her husband from their residence and thought it likely that additional quantities of marijuana or methamphetamine would be located at their residence. The officers also relied on the information from the confidential informants, which they believed was another ground for the issuance of a warrant. An affidavit was completed, and a search warrant for Savard-Henson's residence was issued by a county court judge.

At Savard-Henson's residence, officers located obviously incriminating evidence of a marijuana growing operation, including 33 marijuana plants, high intensity lamps, scales, and reflectors. The officers also discovered approximately $10,000 worth of City property which had apparently been taken by either Savard-Henson or her husband, also a City employee. Among the items were 20 police cruiser stickers, an auto leveler, coils of wire, a street lamp assembly, street signs, traffic light heads, electrical junction boxes, and circuit board components.

Savard-Henson was charged with possession of a controlled substance and manufacturing marijuana. At her criminal trial, pursuant to an order dated November 17, 1998, the district court for Douglas County suppressed all evidence found at Savard-Henson's residence, because

the reliability of the [informants] was not established in connection with the affidavit requesting the issuance of a search warrant for [Savard-Henson's] residence, nor did the evidence seized as a result of the search of the City-owned truck and [Savard-Henson's] personal vehicle provide the police with probable cause sufficient to assume that it was likely that illegal drugs or narcotics would be found in the home of [Savard-Henson].

Most of the criminal charges against Savard-Henson were thereafter dismissed on May 29, 1998.

On June 1, 1998, Savard-Henson's employment with the City was terminated. Savard-Henson appealed the termination to the Board. A hearing was held on December 21, where each side adduced evidence. The only criminal charge left at the time of the Board's hearing was possession of methamphetamine. The City planned to introduce the evidence which was suppressed in the criminal proceedings by the district court. Savard-Henson filed a motion with the Board to suppress and argued that the doctrine of res judicata applied because the district court suppressed the evidence. Thus, her claim was that the Board had to do the same. In support of her claim that the Board should suppress the evidence, Savard-Henson argued that the police should not benefit from illegal searches, City police officers were investigating a City employee, and the Board is quasi-judicial. The City cited case law from other jurisdictions holding that the exclusionary rule does not apply to administrative proceedings. The Board decided that the exclusionary rule was applicable to administrative proceedings and suppressed the evidence stemming from the search of Savard-Henson's home.

Ultimately, the Board gave Savard-Henson a 30-day suspension without pay and ordered her to continue counseling for her drug addiction for a period of at least 3 years. In so finding, the Board took into consideration that Savard-Henson was in possession of two marijuana cigarettes and methamphetamine (evidence gathered from the unchallenged vehicle searches) but had been an exemplary employee of the City for over 20 years and had voluntarily sought and received drug treatment.

The City appealed the Board's decision to the district court for Douglas County via a petition in error. On May 3, 1999, the district court affirmed the Board's decision. The court found that "the city's [sic] bound by the due process requirements, which, in this case, would exclude the illegally seized evidence."

ASSIGNMENT OF ERROR

The City asserts that the district court erred in concluding that the Fourth Amendment exclusionary rule applied to disciplinary appeals being heard by the Board, an administrative body.

STANDARD OF REVIEW

The standard of review in an error proceeding involving an administrative agency is that both the district court and an appellate court review the record to determine whether the agency acted within its jurisdiction and whether there is some competent, relevant evidence to support the decision. Mathes v. City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998).

The Supreme Court has defined "competent evidence" to be that which is admissible and relevant on the point in issue or, stated another way, admissible and tending to establish a fact in issue. Mathes v. City of Omaha, supra.

"Relevant evidence" is defined as that evidence which has any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence. Neb. Evid. R. 401, Neb.Rev. Stat. § 27-401 (Reissue 1995); Mathes v. City of Omaha, supra.

Regarding questions of law, an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000); Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999).

ANALYSIS

Jurisdictional Issue.

Although not assigned as error, we first address Savard-Henson's assertion that we lack jurisdiction to hear this case because the City filed its petition in error with the district court on January 13, 1999, even though the written decision of the Board was not rendered until January 20, 1999. Savard-Henson argues that the City's appeal was premature and did not conform to the requirement of Neb.Rev. Stat. § 25-1931 (Reissue 1995) that such an appeal be filed "within thirty days after the rendition of the judgment or making of the final order complained of." However, the record contains the minutes from the Board's December 21, 1998, meeting, which documents the proceedings plus the Board's vote on Savard-Henson's appeal. The record shows that after the Board's hearing, during which each side presented evidence regarding whether Savard-Henson's employment should be terminated, the members went into "executive session" for a little over an hour. When the members returned, the chairperson moved to sustain Savard-Henson's appeal with a 30-day suspension without pay, after which she would be reinstated and be required to participate in counseling and random drug testing. The Board then voted, and the motion carried by a unanimous vote. Thus, the Board's final decision regarding Savard-Henson's appeal was made on December 21, 1998.

In Brown v. City of Omaha, 179 Neb. 224, 137 N.W.2d 814 (1965), the personnel board held a hearing on an appeal from the dismissal of a city employee. The board announced its decision to deny the appeal in the open hearing, but did not reduce that decision to writing until a later time. The court held that the time to petition the district court for review of the board's decision commenced on the date the board announced its decision, rather than the later date of the written report. The court found that...