Hill v. Gerber, 83-451

• Citation: 350 N.W.2d 545,217 Neb. 670
• Decision Date: 22 June 1984
• Docket Number: No. 83-451,83-451
• Parties: Wilson P. HILL, Appellant, v. Donald E. GERBER, Director of the Nebraska Department of Public Welfare, et al., Appellees.
• Court: Supreme Court of Nebraska

Page 545

350 N.W.2d 545

217 Neb. 670

Wilson P. HILL, Appellant, v. Donald E. GERBER, Director of the Nebraska Department of Public Welfare, et al., Appellees.

No. 83-451.

Supreme Court of Nebraska.

June 22, 1984.

Syllabus by the Court

1. Employer and Employee: Termination of Employment: Due Process: Notice. Any employee who has obtained a property interest in his employment is entitled to both notice in accordance with employment rules as well as notice which affords him constitutional due process.

2. Due Process: Notice. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Hal W. Anderson of Berry, Anderson, Creager & Wittstruck, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Royce N. Harper, Lincoln, for appellees.

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

KRIVOSHA, Chief Justice.

The appellant, Wilson P. Hill, appeals from a judgment entered by the district court for Lancaster County, Nebraska, affirming the action of the Nebraska Joint Merit System Council, which had earlier upheld the Nebraska Department of Public Welfare's (department) termination of Hill as an employee of the department. We believe the judgment of the district court must be reversed.

Hill had been employed by the department as a recreation supervisor at the Nebraska Center for Children and Youth (NCCY) from June of 1978 until his termination on August 25, 1981. The record reflects that sometime on May 31, 1981, Hill took seven residents of NCCY to a minibike course for recreation, and thereafter to Pioneers Park, a local park area. It appears from the record that Hill may have violated the rules of the department by taking the residents to the park without permission, and by failing to provide adequate supervision while at the park. These rules allegedly violated were never offered in evidence, although several employees of NCCY testified that taking the residents to the park without permission and without constant supervision at the park was contrary to the rules. After they returned to NCCY two of the girls who had been with Hill were determined to be under the influence of drugs. After a series of different explanations the girls told their cottage supervisor and other residents that Hill had given them some hashish and had smoked it with them at the park. NCCY officials, after a preliminary investigation, reported the incident to the State Patrol, which further investigated the alleged incident. No formal charges were ever filed against either Hill or the girls.

On August 25, 1981, Hill received a notice from the department, advising him that he was terminated as an employee effective 14 days from receipt of the letter. The termination, according to the letter, was "based on the incident that occurred on May 31, 1981 when you allegedly supplied two of our state ward residents with 'hash' and smoked it with them while you were on duty."

Pursuant to rule 13 of the Nebraska Joint Merit System Council rules and regulations, Hill appealed his dismissal. A hearing was held on February 9, 1982, at which time testimony was offered. The testimony as to whether Hill had in fact provided the girls with the drugs was generally in conflict. The testimony further revealed that Hill had been reprimanded for the unauthorized taking of the residents to the park, as well as for his failure to supervise the youths at the park. Following the hearing, the Joint Merit System Council found that the testimony as to whether Hill had provided the girls with the hashish was inconclusive. Specifically, the findings of the council provided, in part, as follows: "Disregarding testimony implicating the Appellant [Hill] in providing drugs to the residents, the Appellant must still bear responsibility for actions resulting from his disregarding accepted agency procedures." Apparently, it was the opinion of the Joint Merit System Council that, while the evidence was inconclusive concerning whether Hill had provided the drugs to the girls, he had nevertheless violated the agency's rules, which were not in evidence, with regard to taking residents on excursions without permission and in failing to properly supervise them while on the excursion, and therefore the agency was justified in terminating his employment.

While there may have been sufficient grounds to terminate Hill by reasons of his failure to obtain permission before taking the girls to the park and his failure to supervise them while at the park, the difficulty with this case is that he was not so charged, nor was he given notice of the fact that he was being discharged for the unauthorized taking and the failure to supervise the residents. He was specifically charged with supplying two of the state ward residents with a drug and smoking it with them while on duty. The notice of August 25 did not in any manner advise Hill that the basis of his termination was his failure to obtain permission to take the wards on an excursion or his failure to supervise them. In fact, Hill could have reasonably believed that these issues would no longer be raised because, first, he had already received a written reprimand and, second, as testified to by an agency employee, failing to supervise the residents would be considered in a different light than providing the residents with hashish. While it may very well be that the agency could first reprimand Hill and then, after proper notice and hearing, terminate him for the very same incident, we need not reach that question. It is apparent that the notice given to Hill is inadequate to satisfy the agency's own rules and his constitutional right to due process. Any employee who has obtained a property interest in his employment is entitled to both notice in accordance with employment rules as well as notice which affords him constitutional due process. See, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Rule 12(2)(e) of the Nebraska Merit System rules and regulations regarding discharge provides in part as follows: "A written statement setting forth the specific cause or causes under which the Appointing Authority has so acted shall be given to the employee within twenty-four (24) hours of the action." (Emphasis supplied.)

Furthermore, the department's own rules require specific notice. Section 6520 of...