Haeffner v. State, Dept. of Public Institutions

• Decision Date: 02 August 1985
• Docket Number: No. 83-930,83-930
• Citation: 220 Neb. 560,371 N.W.2d 658
• Parties: Reggie HAEFFNER, Appellant, v. STATE of Nebraska, DEPARTMENT OF PUBLIC INSTITUTIONS, et al., Appellees.
• Court: Nebraska Supreme Court

Page 658

371 N.W.2d 658

220 Neb. 560

Reggie HAEFFNER, Appellant, v. STATE of Nebraska, DEPARTMENT OF PUBLIC INSTITUTIONS, et al., Appellees.

No. 83-930.

Supreme Court of Nebraska.

Aug. 2, 1985.

Syllabus by the Court

Administrative Law: Appeal and Error: Cases Overruled. Pursuant to Neb.Rev.Stat. § 84-918 (Reissue 1981), the Supreme Court reviews an agency's decision de novo on the record. Previous decisions of this court holding that the Supreme Court's review of an agency's decision is other than a review de novo on the record are hereby overruled.

Steven D. Burns of Steven D. Burns, P.C., Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Timothy E. Divis, Lincoln, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Reggie Haeffner appeals from the judgment of the district court for Lancaster County. The district court affirmed the decision of the personnel board of the State of Nebraska terminating Haeffner's employment with the Department of Public Institutions of the State of Nebraska. After a hearing on allegations that Haeffner had cashed checks for patients at the Lincoln Regional Center and had supplied a controlled substance to patients at the center, the personnel board voted to terminate Haeffner's employment due to his violation of existing rules adopted by the Department of Public Institutions. Haeffner appealed to the district court under the Administrative Procedures Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1981). Upon a review of the record of proceedings before the personnel board, the district court modified and affirmed the personnel board's decision terminating Haeffner's employment. We affirm.

Haeffner was employed by the Department of Public Institutions in 1980 as a Security Specialist I at the Lincoln Regional Center. Haeffner's duties involved supervision of patients in the center's security building. At the regional center on July 19, 1982, Haeffner's supervisor accused him of delivering a controlled substance, LSD, to some patients. The supervisor's accusation, if true, constituted Haeffner's violation of rules promulgated by the Department of Public Institutions. The department suspended Haeffner from employment and investigated the supervisor's accusation. The investigation not only supported the controlled substance charge but also revealed that Haeffner had cashed checks for patients, also a violation of departmental rules. Following this investigation, on August 2 Haeffner's employment was terminated as a result of his violating departmental rules concerning check-cashing for patients and illegally delivering a controlled substance to patients. Haeffner filed a grievance and requested a hearing before the personnel board.

At Haeffner's hearing before the personnel board on February 17 and March 17, 1983, six witnesses testified about Haeffner's supplying LSD to patients or the subsequent departmental investigation of Haeffner's activities. The evidence presented to the personnel board showed that Haeffner had cashed checks for patients but that cashing checks was a common practice among security specialists and other employees at the regional center in order to gain a patient's confidence and cultivate a better relationship with patients.

Specifically, evidence presented at Haeffner's hearing before the personnel board shows that on July 17, 1982, a patient at the regional center was found to be under the influence of LSD. That patient claimed he received LSD from another patient who in turn claimed to have received the LSD from Haeffner. The patient who initially received the LSD testified Haeffner had delivered seven or eight pieces of paper called "blotter acid," when Haeffner handed him a cup of coffee and held the blotter acid against the cup. In this manner Haeffner delivered the blotter acid, each about the size of a fingernail. This transaction was the basis for Haeffner's ultimate dismissal.

Haeffner, apart from presenting witnesses testifying about his good character, presented no evidence in his defense except his own testimony.

On April 21, 1983, the personnel board found against Haeffner and approved termination of Haeffner's employment, finding that the State's witnesses had given credible and consistent testimony.

Haeffner appealed to the district court pursuant to § 84-917 for judicial review of the personnel board's decision. In his petition filed in the district court, Haeffner alleged that the decision of the personnel board was not supported by competent, material, and substantial evidence and that the personnel board made its decision arbitrarily and capriciously with improper motivation, for example, bias. As required by § 84-917(5), the district court reviewed the record made before the personnel board. Section 84-917(6) pertaining to a district court's review of an agency's decision provides:

The court may affirm the decision of the agency [personnel board] or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner [Haeffner] may have been prejudiced because the agency decision is:

(a) In violation of constitutional provisions;

(b) In excess of the statutory authority or jurisdiction of the agency;

(c) Made upon unlawful procedure;

(d) Affected by other error of law;

(e) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or

(f) Arbitrary or capricious.

During Haeffner's hearing before the district court, the judge asked Haeffner's attorney: "[Court] It sounds to the Court that basically it's a question of credibility of witnesses; is the Court correct on that? [Counsel] I think that's a fair statement, Your Honor."

The district court, in applying the standards set forth in § 84-917(6), concluded:

[W]hile some of the witnesses were inmates at the Lincoln Regional Center their testimony appears to be consistent and believable; there was evidence that one patient was under the influence of LSD on July 17, 1982, that he had obtained the drug from a patient who testified that he had received the LSD from Mr. Haeffner having paid for the same by Mr. Haeffner cashing his check and retaining part of the proceeds therefrom for the LSD; that there was corroboration by another patient who testified that Mr. Haeffner had previously delivered controlled substances to him under similar circumstances; that there was evidence and corroboration that a check had passed from the patient to whom the LSD was delivered to Mr. Haeffner and Mr. Haeffner admitted that he had cashed the inmate's paycheck.

... Except as hereinbefore stated the decision of the Board was supported by competent, material and substantial evidence in view of the entire record as made on review and the termination for possession and delivery of drugs was not arbitrary or capricious.

... [T]he only issue raised on the appeal at time of trial was whether there was competent, material and substantial evidence to uphold the termination of the plaintiff-appellant as Security Specialist I at the Lincoln Regional Center.

The court concluded that Haeffner's cashing checks for patients at the regional center did not constitute a sufficient ground for termination of employment, absent a showing of consistent enforcement of departmental rules prohibiting such activity. As authorized by § 84-917(6), the district court modified the personnel board's decision to terminate Haeffner's employment on account of the check-cashing incidents. The district court then affirmed Haeffner's dismissal from employment because Haeffner had delivered LSD to patients in the regional center. Haeffner has appealed to this court.

Of the 14 separate assignments of error alleged for appeal to this court, 12 of Haeffner's alleged errors relate to application of the correct law pertinent to Haeffner's hearing before the personnel board; for example, proper allocation of the burden of proof and applicable rules of evidence. As such, those 12 errors claimed by Haeffner are classified as questions of law, whereas the remaining two errors claimed by Haeffner are directed to the evidence before the personnel board as a basis for the decision to terminate Haeffner's employment. These last two questions, whether there was substantial, competent, and material evidence supporting the personnel board's decision and whether the personnel board acted arbitrarily or capriciously in reaching its decision, were the only questions presented to the district court in Haeffner's petition for judicial review of the agency's decision.

In disposing of an appeal the Supreme Court considers only those errors which are properly assigned and presented to this court. See Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984). Where a cause has been appealed to the Supreme Court from a district court exercising appellate jurisdiction, only issues properly presented to and passed upon by the district court may be raised on appeal to this court. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, it will be disregarded inasmuch as the district court cannot commit error in resolving an issue never presented and submitted for disposition. See In re Estate of Kothe, 131 Neb. 780, 270 N.W. 117 (1936).

In Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 792, 140 N.W.2d 626, 633 (1966), we held:

" 'No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " ... "A constitutional question should be raised at the earliest practical opportunity."

(Citation omitted.)

If questions about constitutional rights may be waived by failure to properly assert such questions...