Myers v. Nebraska Equal Opportunity Com'n

• Decision Date: 31 July 1998
• Docket Number: No. S-97-480,S-97-480
• Parties: Lawrence R. MYERS, Appellee and Cross-Appellant, v. The NEBRASKA EQUAL OPPORTUNITY COMMISSION, State of Nebraska, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 362

582 N.W.2d 362

255 Neb. 156

Lawrence R. MYERS, Appellee and Cross-Appellant, v. The NEBRASKA EQUAL OPPORTUNITY COMMISSION, State of Nebraska, Appellant and Cross-Appellee.

No. S-97-480.

Supreme Court of Nebraska.

July 31, 1998.

Syllabus by the Court

1. Constitutional Law: Courts. The construction of the Constitution is a judicial function, and the Constitution is interpreted as a matter of law.

2. Attorney Fees: Appeal and Error. On appeal, a trial court's decision allowing or disallowing attorney fees under Neb.Rev.Stat. § 25-824 (Reissue 1995) for frivolous or bad-faith litigation will be upheld in the absence of an abuse of discretion by the trial court.

3. Appeal and Error. Errors which are argued but not assigned will not be considered by an appellate court. Likewise, errors assigned but not argued will not be addressed.

4. Tort Claims Act. If a tort claim has not been instituted against the State under the State Tort Claims Act, then Neb.Rev.Stat. § 81-8,211 (Reissue 1996) is inapplicable.

5. Courts: Appeal and Error. Cases are heard in the state appellate courts on the theory upon which they were tried. An issue not presented to the trial court may not be raised on appeal, inasmuch as a lower court cannot commit error in resolving an issue it was never given an opportunity to resolve.

6. Constitutional Law: Legislature: Political Subdivisions: Public Officers and Employees: Wages: Time. Article III, § 19, of the Nebraska Constitution applies to the State and its political subdivisions and states that the Legislature shall never grant any extra compensation to any public officer, agent, or servant after the services have been rendered.

7. Employer and Employee: Wages: Time. When the services for which compensation is granted are rendered prior to the date the determination to pay is made, the benefits awarded are not compensation, but are a gratuity.

8. Employer and Employee: Public Officers and Employees: Wages. A payment of compensation to a public servant constitutes extra compensation whenever there is no legal obligation to pay such compensation.

9. Contracts: Consideration. Consideration is sufficient to support a contract if there is any detriment to the promisee or any benefit to the promisor.

10. Constitutional Law: Public Officers and Employees: Termination of Employment. While a governmental at-will employee may be discharged for no reason at all, he or she may not be discharged on a basis that infringes upon constitutionally protected interests.

11. Constitutional Law: Political Subdivisions: Employer and Employee: Due Process. When acting as an employer, the State must still heed the 14th Amendment's command not to deprive any person of life, liberty, or property, without due process of law.

12. Constitutional Law: Employer and Employee: Termination of Employment: Due Process. If, upon the termination of the employment of an employee, an employer makes a charge that might seriously damage the employee's standing and associations in his or her community, or imposes on such employee a stigma or other disability that forecloses his or her freedom to take advantage of other employment opportunities, without due process of law, then that employee's liberty interest is violated.

13. Constitutional Law: Employer and Employee: Public Officers and Employees: Due Process. Stigmatizing comments include charges of illegality, dishonesty, or immorality, and in order to violate a state employee's liberty interest, such comments must be publicly disclosed. However, public disclosure of stigmatizing comments violates a state employee's liberty interest only when the employee asserts that the comments are untrue. When the employee disputes the accuracy of the government employer's comments, a hearing must be held for the limited purpose of giving a discharged employee an opportunity to clear his or her name, which hearing satisfies the demands of due process.

Don Stenberg, Attorney General, and Laurie Smith Camp for appellant.

Allan J. Eurek, P.C., Lincoln, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CONNOLLY, Justice.

The appellant, the Nebraska Equal Opportunity Commission (NEOC), agreed to pay the appellee, Lawrence R. Myers, to resign his position as executive director and relinquish his constitutional rights. The NEOC subsequently refused to honor the agreement. Myers brought suit, and the trial court concluded that the agreement was enforceable. The NEOC appealed, asserting that the trial court erred in various respects, including that the payment amounted to an unconstitutional gratuity, in violation of article III, § 19, of the Nebraska Constitution. We conclude that the payment was supported by consideration and, thus, that the payment was not an unconstitutional gratuity. We affirm.

BACKGROUND

The following recitation of events was taken from a joint stipulation of facts and from exhibits offered as part of the stipulation.

Myers was the executive director of the NEOC, serving at the pleasure of the commission pursuant to Neb.Rev.Stat. §§ 48-1007(1) and 48-1116 (Reissue 1993). On June 28, 1995, the chairperson of the NEOC conducted a telephone conference call with the other commissioners to inform them of a reporter's allegations concerning a "love note" from an NEOC employee to Myers. As a result, Myers was suspended, pending an investigation. The existence of the note appeared in newspapers in both Lincoln and Omaha, and the vote of the NEOC to suspend Myers was made public. On June 29, a reporter from the Omaha World-Herald made allegations to the chairperson that Myers had fathered children out of wedlock with staff members of the NEOC.

Myers denied the allegations that the note was a "love note," that he had any relationship with the employee who wrote the note, and that he fathered any children of staff members.

On June 30, 1995, the commission conducted another telephone conference call in which the chairperson told the other commissioners that she had spoken with the NEOC staff and that the staff was opposed to having another investigation of the agency. The commissioners decided to explore the possibility of Myers' resignation.

Later that day, the chairperson spoke with Myers about reaching an agreement whereby Myers would agree to resign and would be paid somewhere between 6 months' and a year's pay. After speaking with his attorney, Myers gave the chairperson a letter of resignation, which was conditioned on an agreement being reached on the amount to be paid.

The commissioners conducted a third conference call on July 3, 1995, during which the commissioners expressed concern over the effect of another investigation, apparently because a prior investigation had significantly reduced the morale and productivity of the NEOC staff. As a result of this meeting, the commissioners directed the chairperson to draft an agreement. A purported agreement was memorialized by Myers and the NEOC that same day, and the commission submitted a request for payment to the Nebraska Department of Administrative Services.

The director of the Department of Administrative Services and the State Treasurer raised questions concerning the propriety of the agreement. Pursuant to their request, the Attorney General's office examined the NEOC's actions and declared the agreement void because the NEOC had not complied with the Nebraska public meeting law. This decision also voided Myers' suspension.

On August 25, 1995, another agreement between the NEOC and Myers was approved by the NEOC at a properly called and conducted meeting.

According to the terms of the agreement, Myers was to release the NEOC from any claims he might have against it and resign his position as executive director in return for a compensatory payment of $35,000 and another payment of $12,314, from which normal payroll deductions were to be made. The agreement purported to constitute the Once again, however, the director of the Department of Administrative Services requested an opinion from the Attorney General as to the validity of the agreement, and the State Treasurer refused to sign a warrant for payment.

entire agreement between the parties, superseding all previous agreements.

On September 13, 1995, the Attorney General authored another opinion letter, this time stating that the payments need not be made to Myers because they were excessive and constituted an unconstitutional gratuity.

On September 15, 1995, the NEOC met and voted that Myers should return to work. Myers did return to work on September 18, with the understanding that he did so only because the agreement had not been honored by the NEOC. Nonetheless, Myers did resign on September 30. The NEOC never paid Myers any amounts due pursuant to the agreement, and there are no conditions precedent that the NEOC claims Myers did not perform, although the NEOC did allege that its payment to Myers was a condition precedent.

Myers brought suit to enforce the agreement, and the trial court concluded that the agreement was enforceable. In his suit, Myers also asked for prejudgment interest, relief from the tax burdens he would sustain as a result of the new 1996 tax law, and attorney fees and costs. The district court did not award prejudgment interest, did not provide tax relief, and did not award attorney fees or costs.

ASSIGNMENTS OF ERROR

The NEOC asserts that the district court erred in (1) failing to find that the payment to be made to Myers was a gratuity, in violation of article III, § 19, of the Nebraska Constitution and (2) finding that the NEOC had the authority to bind the State of Nebraska in an agreement which settled or compromised tort claims. On cross-appeal, Myers assigns as error the failure of the trial court to award him attorney fees, costs, and expenses pursuant to Neb.Rev.Stat. § 25-824 (Reissue 1995).

SCOPE OF REVIEW

The construction of the Constitution is a...