Martin v. Nebraska Dept. of Public Institutions, A-97-326
| Decision Date | 08 September 1998 |
| Docket Number | No. A-97-326,A-97-326 |
| Citation | 7 Neb.App. 585,584 N.W.2d 485 |
| Parties | Louis C. MARTIN, Appellant, v. NEBRASKA DEPARTMENT OF PUBLIC INSTITUTIONS, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Administrative Law: Final Orders: Appeal and Error. Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency.
2. Administrative Law: Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.
3. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
5. Administrative Law: Appeal and Error. If an administrative agency agrees with the recommended decision of the hearing officer in a contested case, the agency may simply adopt or affirm the recommendation.
6. Administrative Law: Appeal and Error. An administrative agency must articulate reasons for its rejection of a recommended decision of the hearing officer in a contested case.
7. Administrative Law: Records: Presumptions: Appeal and Error. When an administrative agency chooses not to adopt the findings and recommendations of its hearing officer, it must examine the record independently. In the absence of evidence to the contrary, it will be presumed that the deciding officials have so considered the record.
8. Due Process. The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.
9. Termination of Employment: Property: Due Process: Notice. As a prerequisite to terminating the employment of an employee with a property right in continued employment, the employer must provide notice and an opportunity for a hearing appropriate to the nature of the case.
10. Termination of Employment: Property: Due Process: Notice. Before termination of employment, an employee with a property right in continued employment must be given oral or written notice of the basis for the termination, an explanation of the employer's evidence, and an opportunity to present his or her side of the story.
11. Termination of Employment: Due Process. Procedurally adequate posttermination of employment proceedings do not cure pretermination due process violations.
12. Due Process. Postdeprivation remedies do not provide due process if predeprivation remedies are practical.
Patricia A. Knapp, of Polsky, Cope & Knapp, Lincoln, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson, Lincoln, for appellee.
Dr. Louis C. Martin filed a petition for review in the district court for Lancaster County seeking review of a decision of the Nebraska State Personnel Board (Board) that affirmed the investigatory suspension and termination of his employment by the Nebraska Department of Public Institutions (DPI). The district court affirmed the decision of the Board. For the reasons stated below, we reverse, and remand with directions.
Martin is a psychiatrist, who was employed with DPI beginning in 1989. At all times relevant to this case, Martin was the chief of service for the Forensic Mental Health Services at DPI.
On October 23, 1995, DPI gave Martin a "Personal Action Notification," stating that he was being placed on investigatory suspension. On this same date, Martin was also given a "Written Notice of Allegation(s)" (notice). The notice alleged that Martin had acted insubordinately in sending a memo on October 1 to certain superiors, stating that Bill Zinn, the chief executive officer for DPI, and Dr. Somasundaram Rajendran, the clinical director at the Lincoln Regional Center, who was Martin's supervisor, had committed " 'incompetent and reckless administrative acts.' " The notice also alleged that Martin had failed to fulfill basic job responsibilities as the chief of service for the Forensic Mental Health Services, particularly by failing "to provide facilitative leadership and overall management" to the Forensic Mental Health Services. The notice advised Martin that the allegations could lead to disciplinary action being taken against him. The notice also provided the date and time, October 30 at 1 p.m., for a meeting with Dr. Steven Higgins, medical services director for DPI. As medical services director, Higgins is responsible for, among other things, appointing and removing for cause the heads of the administrative subdivisions within the Division of Medical Services. See Neb.Rev.Stat. § 83-1,149(2) (Reissue 1994).
Within a few days thereafter, a meeting was held with Martin, Martin's attorney, and Higgins. An investigator retained by DPI to conduct an independent investigation regarding the allegations against Martin was also present. Following the meeting, the investigator began her investigation, which included reviewing documents and interviewing DPI employees. Following her investigation, the investigator prepared a report setting forth her findings. After receiving the investigator's report, Higgins decided to dismiss Martin from his employment. In the notice of dismissal, Higgins stated that Martin's memorandum of October 1, 1995, was "insubordinate" and that Martin had failed to fulfill basic job responsibilities as the chief of service of the Forensic Mental Health Services. Higgins set out the evidence supporting his decision. Higgins' decision to terminate Martin's employment was based on both insubordination and failure to fulfill basic job responsibilities. Martin received the written notification of his dismissal on January 4, 1996.
Thereafter, Martin filed a grievance alleging that DPI lacked just cause to terminate his employment and that the process followed by DPI in terminating his employment was inadequate. The director of DPI denied Martin's grievance. Martin appealed the director's decision to the Board.
An evidentiary hearing was held before a hearing officer on April 30, 1996. In a detailed 13-page decision, the hearing officer ultimately concluded that termination of Martin's employment was not for just cause. She found insufficient evidence to support the allegation that Martin had failed to fulfill basic job responsibilities. In addition, she found that Martin did not receive adequate due process regarding the insubordination allegation, because prior to his termination, Martin was not given an opportunity to respond to evidence gathered during the subsequent investigation on which Higgins relied in terminating Martin's employment. Nevertheless, she ultimately concluded that there was sufficient evidence to support the insubordination allegation. The hearing officer recommended that DPI's termination of Martin's employment be overruled; that DPI's finding of insubordination for statements in the October 1, 1995, memorandum be sustained; that Martin be placed back in his position of chief of service and receive backpay; and that appropriate discipline be imposed regarding the insubordination allegation.
The record shows that prior to the Board's meeting of August 16, 1996, at which time Martin's appeal was to be considered, the hearing officer's recommended decision, the parties' briefs, and Martin's "appeal form" were forwarded to the Board. At its August 16 meeting, the Board concluded, based upon its review of the record, that DPI had sufficiently proved the allegations of insubordination and failure to fulfill basic job responsibilities. The Board found that Martin had been dismissed for just cause. The Board "adopted [the recommended decision of the hearing officer] to the extent that it [was] consistent with [the Board's decision] and rejected [it] to the extent that it [was] inconsistent...."
On August 29, 1996, Martin filed a petition for review in the district court pursuant to the Administrative Procedure Act, Neb.Rev.Stat. § 84-901 et seq. (Reissue 1994 & Cum.Supp.1996). The district court affirmed the decision of the Board. This appeal timely followed.
Martin's assigned errors may be summarized and restated as follows: (1) The Board erroneously determined whether to accept or reject the recommendations of the hearing officer without examining the record; (2) the Board's order is inadequate, because it does not set forth specific findings regarding its decision to reject a portion of the hearing officer's recommendations; and (3) Martin's termination from employment was unlawful, because he was not provided adequate due process of law prior to his termination.
Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. § 84-917(5)(a); Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997); George Rose & Sons v. Nebraska Dept. of Revenue, 248 Neb. 92, 532 N.W.2d 18 (1995). A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. § 84-918(3); Wolgamott, supra; Piska v. Nebraska Dept. of Soc. Servs., 252 Neb. 589, 567 N.W.2d 544 (1997). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the...
To continue reading
Request your trial
-
White v. Busboom
...district court overturned Scott's termination because the defendants had violated his predeprivation due process rights. It relied on Martin v . Nebraska Dept. of Public Institutions ,27 a Nebraska Court of Appeals decision holding that posttermination proceedings cannot cure a violation of......
-
Scott v. County Of Richardson
...may be cured if the employee is provided adequate posttermination due process. To the extent that Martin v. Nebraska Dept. of Public Institutions, 7 Neb.App. 585, 584 N.W.2d 485 (1998), holds to the contrary, it is expressly overruled. 6. Public Officers and Employees: Termination of Employ......
-
Katruska v. Department of Educ.
...insufficient to cure taint of proceedings of inmate being without representation); see also Martin v. Nebraska Department of Public Institutions, 7 Neb.App. 585, 584 N.W.2d 485 (1998) ("post-termination proceedings ... which included de novo review of the case ... although procedurally adeq......
-
Trackwell v. Nebraska Dept. of Administrative Services, A-97-1171
...Neb.Rev.Stat. § 84-918(3) (Reissue 1994); Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997); Martin v. Nebraska Dept. of Public Institutions, 7 Neb.App. 585, 584 N.W.2d 485 (1998). When reviewing an order of a district court under the Administrative Procedure Act for errors appeari......