Maxon v. City of Grand Island
| Decision Date | 25 May 2007 |
| Docket Number | No. S-05-1204.,S-05-1204. |
| Citation | 731 N.W.2d 882,273 Neb. 647 |
| Parties | Howard L. MAXON, Appellant, v. CITY OF GRAND ISLAND, Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellant.
William A. Harding and Adam J. Prochaska, of Harding, Shultz & Downs, Lincoln, and Douglas R. Walker, Grand Island City Attorney, for appellee.
Howard L. Maxon, a former officer of the City of Grand Island, Nebraska, appeals from the order of the district court affirming the termination of his employment by the city. Pursuant to Grand Island city ordinance § 2-22, an officer of the city, such as Maxon, may be removed from office by the mayor for "misconduct." Because we conclude that the city's allegations against Maxon do not constitute misconduct, we reverse the judgment of the district court and remand the cause to the court with directions to provide relief in a manner that is not inconsistent with this opinion.
Maxon served as the emergency management director of the City of Grand Island and Hall County for approximately 25 years. As the emergency management director, Maxon was considered an appointive officer of the City of Grand Island.1
On February 15, 2005, Gary Greer, the Grand Island city administrator, asked Maxon to come to Greer's office, where Greer took Maxon's keys, asked him to sign a letter of resignation, and then asked him to leave. Maxon refused to sign the letter and ultimately left the building. Greer issued a letter to Maxon, dated February 15, 2005, informing him that he was being suspended with pay, effective immediately. The letter indicated that a copy of the letter would be sent to the mayor and that Greer was requesting that Maxon be discharged at the earliest possible time. The letter set forth specific instances in which Greer considered Maxon's conduct to have been unacceptable for a director of the City of Grand Island.
The following day, February 16, 2005, Maxon wrote a letter to the mayor requesting a hearing to appeal the notice of discharge and asking that he be permitted to continue working pending the outcome of the hearing. Maxon's request to continue working was denied.
On February 25, 2005, in compliance with § 2-22, the mayor signed and filed formal charges of misconduct against Maxon. The alleged charges of misconduct were divided into four categories: (1) unsatisfactory performance; (2) incompetence; (3) demeaning, disruptive, and uncooperative conduct in the workplace; and (4) insubordination. Instances of each were specified in the charges.
The hearing before the city council was held on March 29, 2005. At the time of the hearing, the city chose to prosecute only three of the four charges of misconduct, removing the third category, "Demeaning, Disruptive and Uncooperative Conduct in the Work Place." During the course of the hearing, both the city and Maxon were allowed to submit evidence and examine witnesses.
In support of its contention that Maxon's job performance was unsatisfactory, the city offered into evidence two of Maxon's performance evaluations that Greer had conducted. The first evaluation occurred on April 27, 2004, and Greer concluded that Maxon had met or exceeded expectations in some areas but needed improvement in other areas, including dependability, productivity, initiative, attitude, self-improvement, leadership, and training.
Greer performed a second performance evaluation of Maxon on February 9, 2005. The results of this evaluation indicated that Maxon's job performance had not improved. The evaluation provided that Maxon still needed improvement in all of the same areas as in his April 2004 evaluation and also needed improvement in the areas of quality, versatility, communication skills, and delegation.
Maxon presented evidence that all his performance evaluations prior to the time Greer became the city administrator were satisfactory. On cross-examination, Greer admitted that his performance evaluations of Maxon were vastly different when compared to the evaluations of prior supervisors. Maxon testified that he was "shocked" when Greer informed him that his performance was unsatisfactory.
With regard to the city's allegation that Maxon was incompetent, the city presented evidence that while Maxon was the emergency management director, 911 emergency dispatch service surcharges increased from 50 cents per telephone landline to $1 per telephone landline, which should have resulted in an increase in revenue for Maxon's department. David Springer, the finance director for the City of Grand Island, testified that he asked Maxon multiple times if everything was "on track" for the surcharge to be increased starting on January 1, 2002, and that Maxon assured him that it was. However, Springer testified that Maxon failed to implement the surcharge increase for 2002 and that this resulted in a 1-year delay and cost the city an estimated $100,000 to $180,000 in lost revenue.
Maxon testified that he did everything he could to facilitate the 911 surcharge implementation process and that any delay was not his fault, but was the result of the county board's failure to act in a timely manner. Maxon presented evidence that at a July 11, 2000, county board meeting, he and a committee of the Hall County Board of Supervisors recommended increasing the 911 surcharge. The board, however, voted to table the recommendation. The record shows that the next time the county board discussed the increase concerning the 911 surcharge was on November 13, 2001.
The Hall County clerk testified that at this meeting, it was Maxon who brought to the board's attention the notice requirements to be complied with before implementing the surcharge increase. The county board met on December 18, 2001, and again discussed the 911 surcharge increase. The county clerk testified, however, that the board "took no action at that time with respect to the 911 surcharge." The resolution to increase the 911 surcharge was eventually adopted by the county board on July 16, 2002.
With respect to this 1-year delay, Maxon testified that "we thought everything was fine and then at the last minute we found out that the telephone companies . . . had to be notified." When asked about a September 2000 letter generically addressed from Qwest Communications, Inc., to "QWEST Enhanced 911 Customer," which provided information that such notice was required, Maxon testified that he did not recall receiving the letter, and his customary initials acknowledging receipt were not contained on the letter.
Greer also testified that he asked Maxon to configure the telephone system so that National Public Radio would play when a caller was placed on hold. Approximately 1 month after asking Maxon to perform this responsibility, the system had still not been configured. Shortly thereafter, Greer reassigned this responsibility to another department. Maxon testified that after receiving this assignment, he discovered a broken cable which he unsuccessfully attempted to repair. Maxon explained that he contacted a vendor, who then repaired the broken cable shortly before Greer reassigned the project.
The city's remaining charge against Maxon involved allegations of insubordination. The city presented evidence that Greer interviewed every employee in Maxon's department and then created an inter-office memorandum, addressed to Maxon, that summarized the content of the interviews and made suggestions for correcting certain problems. Greer concluded the memorandum by stating, "I would encourage you to share this memo (post it on the wall) and discuss its contents with department team members." Greer testified that he expressly told Maxon to post this memorandum on the wall, but Maxon failed to do so.
Maxon testified that although he did not post the memorandum on the wall, he did share the memorandum with the department team leaders. In response to why he did not post the memorandum on the wall, Maxon explained that he and another official in his department felt that it "would not further the betterment of the department at that time." Maxon further testified that although the memorandum was not posted on the wall, it was eventually distributed to all of the employees.
The city council voted to affirm the charges of misconduct and the termination of Maxon's employment. Maxon filed a petition in error with the district court seeking review of the city council's determination. The district court affirmed the city council's decision. Maxon appealed.
Maxon assigns, restated and renumbered, that the district court erred in (1) finding that § 2-22 is not unconstitutionally vague, (2) determining that there was sufficient evidence in the record to sustain the formal charges of misconduct against him and that he received proper notice of those charges, (3) failing to find that the city had violated his procedural due process rights, (4) finding that he received proper notice of the charges against him when the city adduced evidence outside of the formal charges, (5) finding that his failure to request a continuance at the hearing waived any procedural defects he may have had regarding the city's failure to formally appoint a special assistant city attorney to prosecute the charges against him, (6) concluding that the interlocal agreement between the city and Hall County allowed the city to unilaterally terminate him, and (7) failing to conclude that the city council was required to make findings of fact and conclusions of law relating to its determination to affirm the charges of misconduct against him.
The constitutionality of an ordinance presents a question of law, in which an appellate court is obligated to reach a conclusion independent...
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