Devine v. Dept. of Public Institutions, 43927

Decision Date02 April 1982
Docket NumberNo. 43927,43927
PartiesFrancis S. DEVINE, Appellant, v. DEPARTMENT OF PUBLIC INSTITUTIONS, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Administrative Law: Appeal and Error. The review in the District Court of an order of the State Personnel Board is on the record of the agency.

2. Administrative Law: Appeal and Error. The questions to be determined are whether the findings of the board are supported by substantial evidence; whether the action taken was within the jurisdiction of the board; and whether its action was arbitrary and capricious.

3. Constitutional Law. The right of free speech is not absolute.

4. Administrative Law. Administrative probation may be imposed upon a member of the staff of a regional center who refuses to comply with stated policies and procedures regarding the treatment of patients.

Michael E. Sullivan of Helmann & Sullivan, Hastings, and Alan E. Peterson, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and John Boehm, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

BOSLAUGH, Justice.

Francis S. Devine appeals from the judgment of the District Court affirming an order of the State Personnel Board affirming the imposition of administrative probation upon the appellant.

Devine is a staff psychologist employed at the Drug and Alcohol Treatment Center of the Hastings Regional Center. As a part of his duties, Devine delivered a series of seven lectures to patients participating in the 21-day treatment program. In these lectures Devine was critical of the philosophy of the program at the Regional Center that alcoholism was a disease and expressed his opinion that the Alcoholics Anonymous program was satisfactory for only a small number of patients. As a result of these statements, which contradicted the statements of other members of the staff, many patients became confused. As a further consequence of the statements of Devine, other staff members were required to abandon their prepared schedules and devote their efforts to a discussion and refutation of Devine's statements.

Frank Touchstone, the director of psychology at the Regional Center, is the immediate supervisor of Devine. After a series of conferences proved to be of no effect, Touchstone placed Devine on administrative probationary status for 90 days, a form of disciplinary action. Devine then filed a grievance complaint which was denied successively by the director of psychology and the superintendent of the Regional Center, the director of the Department of Public Institutions, and the Director of State Personnel. Devine then appealed to the State Personnel Board which found that Devine had failed to comply with the stated policies and procedures of the Regional Center concerning the treatment philosophy and approach toward alcoholism which, by statute, was based in part on an Alcoholics Anonymous model, and that his negative actions and derogatory statements had resulted in patient confusion and negative staff relations. From the order of the board affirming the imposition of administrative probation, Devine appealed to the District Court.

The review in the District Court of an order of the State Personnel Board is on the record of the agency. Neb.Rev.Stat. § 84-917(5) (Reissue 1976). The questions to be determined are whether the findings of the board are supported by substantial evidence; whether the action taken was within the jurisdiction of the board; and whether its action was arbitrary and capricious.

The principal issue here is whether Devine's conduct and statements were protected under the first amendment to the Constitution of the United States. Devine contends that the situation at the Regional Center was comparable to that of an academic institution and that Devine should enjoy a form of "academic freedom" similar to that of a professor in a college or university. The analogy is not appropriate.

The patients to whom Devine spoke were not students at an educational institution but were persons with a serious problem who were at the Regional Center to receive treatment for their problem. The treatment at the Regional Center was based on the theory that alcoholism is a disease, and by statute the center was required to include an Alcoholics Anonymous program as a part of its treatment approach. See Neb.Rev.Stat. § 83-307.01 (Reissue 1976). It is apparent that if the treatment was to have any hope of success, it was essential that the cooperation of the patients be obtained.

The negative effects and confusion that resulted from Devine's statements to patients are described in the testimony of the director of psychology, the director of the Alcohol and Drug Unit, the project coordinator of the Alcohol and Drug Unit, a senior professional counselor, and an alcohol drug counselor at the center. The following excerpt from the testimony of one of the alcohol drug counselors illustrates the problems and disruption in treatment caused by the appellant: "Q- You were going to discuss the first lecture. A- Okay, I would enter the lecture hall to give my lecture, which was on an orientation to the AA steps, and I would go in and I was introducing my name and the title of my lecture, and some of the patients responded that--let me see, how long--responded that the person before me, who was Dr. Devine, had said that counselors do not know anything about alcoholism, that the program of Alcoholics Anonymous does not work,...

To continue reading

Request your trial
4 cases
  • Wood v. Tesch
    • United States
    • Nebraska Supreme Court
    • 2 Mayo 1986
    ...Cir.1985); Brockell v. Norton, 732 F.2d 664 (8th Cir.1984). This court recently applied the approach in Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982). Devine, a staff psychologist employed at the drug and alcohol treatment center of the Hastings Regional Center......
  • Ambroz v. Cornhusker Square Ltd.
    • United States
    • Nebraska Supreme Court
    • 25 Noviembre 1987
    ...upon constitutionally protected interests. Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986). See, also, Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982); Nebraska Dept. of Roads Emp. A. v. Department of Roads, 364 F.Supp. 251 (D.Neb.1973); Patteson v. Johnson, 7......
  • Schriner v. Meginnis Ford Co.
    • United States
    • Nebraska Supreme Court
    • 1 Abril 1988
    ...upon constitutionally protected interests. Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986). See, also, Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982); Nebraska Dept. of Roads Emp. A. v. Department of Roads, 364 F.Supp. 251 (D.Neb.1973); Patteson v. Johnson, 7......
  • Sedivy v. State ex rel. Stenberg
    • United States
    • Nebraska Court of Appeals
    • 3 Junio 1997
    ...a possible consequence is that his professional license may be jeopardized by his criminal activities. Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982), involved a free speech claim by a staff psychologist in the drug and alcohol unit at the Hastings Regional Cent......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT