Parent v. City of Bellevue Civil Service

• Citation: 763 N.W.2d 739,17 Neb. App. 458
• Decision Date: 17 March 2009
• Docket Number: No. A-08-630.,A-08-630.
• Parties: Christopher D. PARENT, appellee and cross-appellant, v. CITY OF BELLEVUE CIVIL SERVICE COMMISSION, appellee, and the City of Bellevue, Nebraska, a municipal corporation, appellant and cross-appellee.
• Court: Court of Appeals of Nebraska

763 N.W.2d 739

17 Neb. App. 458

Christopher D. PARENT, appellee and cross-appellant, v. CITY OF BELLEVUE CIVIL SERVICE COMMISSION, appellee, and the City of Bellevue, Nebraska, a municipal corporation, appellant and cross-appellee.

No. A-08-630.

Court of Appeals of Nebraska.

March 17, 2009.

Patrick J. Sullivan and Michael F. Polk, of Adams & Sullivan, P.C., for appellant.

John C. Hewitt, Steven M. Delaney, and Pamela Epp Olsen, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee Christopher D. Parent.

CARLSON, MOORE, and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

This appeal, which has a complex procedural history, described below, follows the district court's review of an administrative proceeding addressing the firing of a police officer for alleged violation of a policy concerning physical ability. The court characterized as jurisdictional a time limitation specified by a collective bargaining agreement, and remanded the matter for further findings. Because case law demonstrates that such time limitations are not jurisdictional, we reverse. Reaching the merits, we conclude that under the specific policy utilized to justify the officer's firing, he satisfied the only objective standard imposed by the policy. Therefore, the decision of the administrative agency upholding the termination of employment must also be reversed.

BACKGROUND

The City of Bellevue, Nebraska (the City), employed Christopher D. Parent as a police officer. On August 31, 2007, police Lt. Mark Elbert filed an administrative report alleging that Parent had engaged in misconduct. The report alleged that Parent had violated specified portions of two separate employment policies of the Bellevue Police Department (Department): one concerning firearms proficiency and the other addressing physical, mental, and emotional health.

Because the City ultimately fired Parent for violating only the latter policy and because the wording of the policy is critical to the decision, we set forth the full content of the pertinent policy as follows:

Police Officers are called upon to perform a variety of tasks that require physical endurance and agility. This dictates that officers maintain a high level of physical, mental and emotional conditioning, which can only be acquired through regular exercise, proper diet and utilizing time.

All officers are required to maintain at least a "fair" level of physical wellness pursuant to the standards contained within the ... Department's Wellness Program Manual.

Elbert's report stated that during firearm training which had occurred on August 28, 2007, Parent had "significant problems getting up from one knee throughout the course of fire." The report indicated that Parent subsequently performed better in firearm training on August 31, but still had problems getting up from the ground without using his gun hand. According to the record, Parent's excessive weight caused the difficulty with the firearms training.

On August 31, 2007, Parent was notified of the alleged violations of policies and placed on administrative leave pending the outcome of an investigation. Later, Elbert investigated this matter. Elbert concluded his investigation on or about September 18. However, a police captain who was charged with reviewing the investigation instructed Elbert to obtain medical evaluations of Parent.

The applicable collective bargaining agreement required that the investigation be concluded and that disciplinary action be taken within 30 days of the notification Parent received on August 31, 2007. The provision contains certain exceptions related to delays in obtaining necessary evidence. Elbert then requested and received an extension of the deadline to acquire medical reports. The record contains a memorandum recording the extension, which memorandum appears to be initialed by Parent and indicates that a copy of the memorandum was provided to an officer of the police union.

On November 9, 2007, after Elbert had concluded his investigation, the police captain who reviewed the investigation recommended that Parent's employment be terminated, in part due to the results of four medical evaluations. On November 13, the Bellevue chief of police also recommended that Parent's employment be terminated. The city administrator reviewed the police chief's recommendations and, after a pretermination hearing, adopted them and terminated Parent's employment as of November 28. Parent's employment was terminated on the ground that he had violated the physical, mental, and emotional health policy.

Parent then requested a hearing before the City of Bellevue Civil Service Commission (the Commission). After a hearing, the Commission concluded that Parent had violated the first paragraph of the Department's physical, mental, and emotional health policy and stated that Parent "does not have a level of physical conditioning to safely perform the duties of a police officer." The Commission also found that Parent's termination of employment was "undertaken in good faith for cause." The Commission affirmed the City's decision and additionally stated that Parent's termination of employment was justified pursuant to Neb.Rev.Stat. § 19-1832(3) and (6) (Reissue 2007). With respect to these sections, the Commission found Parent to be respectively "physically unfit for the position he holds" and "unfit for his position."

Parent appealed the Commission's decision to the district court. The court did not consider the merits of the appeal but instead "remanded [the case] to the ... Commission to determine whether the City complied with the requirements of the [applicable] collective bargaining agreement, so as to vest the Commission with proper jurisdiction over the termination hearing." The court relied upon a provision in the City's collective bargaining agreement with the police union, which agreement stated in pertinent part:

The City shall begin investigation of any cause that might lead to disciplinary action upon notification of such cause. Disciplinary action shall be taken within thirty (30) days of such notification. This thirty (30) day period may be extended if the City finds it necessary to interview any person that is not a member of the Department, or if a Department member is not available due to leave, sickness, or training. If the Department finds it necessary to extend the investigation beyond the thirty (30) day period, the employee under investigation will be notified in writing of the extension. The [Bellevue Police Officers] Association President will also be notified in writing if the extension involves circumstances beyond the control of the Department.

The court reasoned that "disciplinary action was not taken against Parent within thirty (30) days of his notification," that the "unilateral" extension of the time "was not pursuant to one of the delineated reasons," and that no written notice of an extension of time was provided to Parent or the "Association President."

The City timely appeals from the decision of the district court. Parent timely cross-appeals.

ASSIGNMENTS OF ERROR

On appeal, the City made three assignments of error, which we consolidate and restate into two issues. First, the City alleges that the district court erred in reversing the decision of the Commission and remanding the matter to the Commission for a factual determination. Second, the City asserts the court erred in failing to find that the preponderance of the evidence supported the termination and that the termination was made in good faith for cause.

On cross-appeal, Parent makes four assignments of error regarding substantive matters which the district court did not reach because it decided the case on jurisdictional grounds. Parent assigns that the district court erred in (1) failing to find that the Commission's decision was not supported by sufficient relevant evidence; (2) failing to find that the Commission's decision was arbitrary, capricious, and not made in good faith for cause; (3) failing to find that the Commission violated due process in receiving a number of exhibits into evidence; and (4) failing to find that the Commission violated due process by relying on § 19-1832 as grounds for termination, where the notice Parent received alleged violations of the firearms policy and physical, mental, and emotional health policy.

STANDARD OF REVIEW

In reviewing an administrative agency decision on a petition in error, both the district court and the appellate court review the decision to determine whether the agency acted within its jurisdiction and whether sufficient, relevant evidence supports the decision of the agency. Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d 660 (2008). The evidence is sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did based on the testimony and exhibits contained in the record before it. Id. In addition, the administrative action must not be arbitrary or capricious. Id. The reviewing court in an error proceeding is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact. Id.

We determine jurisdictional issues that do not involve factual disputes as a matter of law. Id. On a question of law, we reach a conclusion independent of the court below. Id.

ANALYSIS

Jurisdiction.

We find no support for the district court's disposition of the case on jurisdictional grounds. In the court's order, it provided no authority to support its conclusion that a failure to comply with the time limitation of the collective bargaining agreement creates a jurisdictional defect. The parties have not cited any authority which suggests that the identified defect is jurisdictional. Further, we can find no authority in Nebraska law which indicates that this or any other circumstance apparent in the instant case creates a jurisdictional defect. Because the record...