Percival v. Department of Correctional Services

• Decision Date: 29 September 1989
• Docket Number: No. 88-100,88-100
• Citation: 233 Neb. 508,446 N.W.2d 211
• Parties: Darlene PERCIVAL, Appellant, v. DEPARTMENT OF CORRECTIONAL SERVICES et al., Appellees.
• Court: Nebraska Supreme Court

Page 211

446 N.W.2d 211

233 Neb. 508

Darlene PERCIVAL, Appellant, v. DEPARTMENT OF CORRECTIONAL SERVICES et al., Appellees.

No. 88-100.

Supreme Court of Nebraska.

Sept. 29, 1989.

Syllabus by the Court

1. Administrative Law: Appeal and Error. In an appeal from a judgment pursuant to the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1987), the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the trial court's findings.

2. Administrative Law. A commission's or agency's action is arbitrary if taken in disregard of facts or circumstances and without some basis which would lead a reasonable person to the same conclusion.

Robert Wm. Chapin, Jr., Lincoln, of Mowbray, Chapin & Walker, P.C., for appellant.

Robert M. Spire, Atty. Gen., and Charles E. Lowe, Lincoln, for appellees.

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

SHANAHAN, Justice.

Darlene Percival appeals from the judgment of the district court for Lancaster County, which affirmed the decision of the State Personnel Board of the State of Nebraska regarding Percival's demotion and transfer within the Department of Correctional Services (department).

In an appeal from a judgment pursuant to the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1987), the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the trial court's findings. Heithoff v. Nebraska State Bd. of Ed., 230 Neb. 209, 430 N.W.2d 681 (1988); Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).

Before the disciplinary action reviewed in this appeal, Percival was the assistant superintendent at the Nebraska Center for Women (NCW) in York, Nebraska, and became acquainted with Carolyn Stansberry, an inmate at NCW. In June 1986, Stansberry was released from NCW on parole to a halfway house in Hastings, Nebraska. In June and July of 1986, Percival visited Stansberry on four occasions, some of which related to Alcoholics Anonymous meetings, while other visits were social. On June 30, 1986, Percival wrote a check to Stansberry in the amount of $350 for Stansberry's purchase of an automobile. Percival's personal contacts with Stansberry and the automobile loan were not authorized by the parole administration and were not disclosed by Percival to her supervisor at NCW.

On August 19, Percival was charged with violating the department's administrative regulation No. 112.31A1, which provides:

No employee will give, accept, or exchange property, services, or favors with an inmate or parolee or with the friends or relatives of an inmate or parolee outside the scope of the employee's official duties. No employee will fraternize with an inmate or parolee or with friends or relatives of an inmate or parolee. If an employee has reason to believe that he or she may have violated one of the provisions of this section, the employee shall immediately notify his or her chief executive officer in writing. The chief executive officer of each institution may permit exceptions to the prohibitions set out in his [sic] paragraph, after considering all relevant information.

She was also charged with violating 273 Neb.Admin.Code, ch. 13, § 001 (1986), of the state's classified personnel rules and regulations, which states in part: "Appropriate disciplinary action may be taken for any of the following offenses: 001.01 Violation of, or failure to comply with, State constitution or statute; an executive order; published rules, regulations, policies or procedures of the employing agency or the State of Nebraska Classified Personnel System."

After a hearing on the charges against Percival, a departmental committee found that Percival had violated the department's administrative regulation No. 112.31A1 and § 001.01 of the state's rules and regulations. The superintendent of NCW sent a letter to Percival on September 19, 1986, which letter, as notice of departmental disciplinary action, stated that on account of the violation of departmental regulation No. 112.31A1 and the state rule, § 001.01, Percival was demoted in rank and grade from assistant superintendent II, grade 15, to unit manager, grade 13, and was transferred to the Lincoln Correctional Center. Also, Percival's salary was reduced by 10 percent, and she was put on 6 months' probation regarding her new position at Lincoln.

Percival appealed to the State Personnel Board, which, after a hearing, affirmed the disciplinary action imposed by the department. Percival then appealed to the district court for Lancaster County, which affirmed the State Personnel Board's decision.

Percival does not contend that there is no rational relationship between the conduct proscribed by regulation No. 112.31A1 and legitimate departmental purposes or activities. Rather, Percival concedes that her conduct violated regulation No. 112.31A1, but argues that the nature and degree of the imposed discipline were contrary to the state's policy on progressive discipline of state employees, the departmental disciplinary action was arbitrary, and the imposed discipline is disproportionate to the infraction.

The state's personnel rules and...