Sarpy County Public Employees Ass'n v. Sarpy County

• Decision Date: 12 July 1985
• Docket Number: No. 84-238,84-238
• Citation: 220 Neb. 431,370 N.W.2d 495
• Parties: , 123 L.R.R.M. (BNA) 2220 SARPY COUNTY PUBLIC EMPLOYEES ASSOCIATION, Appellant and Cross-Appellee, v. COUNTY OF SARPY, Appellee; Carl Hibbeler, Sarpy County Register of Deeds, et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 495

370 N.W.2d 495

220 Neb. 431, 123 L.R.R.M. (BNA) 2220

SARPY COUNTY PUBLIC EMPLOYEES ASSOCIATION, Appellant and Cross-Appellee, v. COUNTY OF SARPY, Appellee Carl Hibbeler, Sarpy County Register of Deeds, et al., Appellees and Cross-Appellants.

No. 84-238.

Supreme Court of Nebraska.

July 12, 1985.

Syllabus by the Court

1. Counties: Political Subdivisions: Public Officers and Employees. A county board is without authority, in the absence of a grant, to perform the duties which are part of the official duties of other officials or boards.

2. Labor and Labor Relations: Public Officers and Employees. Absent the existence of a labor organization as defined by the provisions of Neb.Rev.Stat. § 48-801(6) (Reissue 1984), the statutes make it relatively clear that in most instances the elected officials are authorized in the first instance to hire their own employees, set their salaries, and prescribe their terms and conditions of employment.

3. Counties: Political Subdivisions: Public Officers and Employees. Although the county board is given the right to approve the salary set by the elected official, the county board may not act arbitrarily or capriciously.

4. Statutes: Courts: Legislature. A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable. A construction of a statute which, in effect, repeals another statute, will not be adopted unless such construction is made necessary by the evident intent of the Legislature.

5. Counties: Political Subdivisions: Public Officers and Employees: Labor and Labor Relations. Except for the county assessor, whose authority regarding the setting of wages, and therefore the terms and conditions of employment, has been transferred to the county board, the elected county official is the proper person to represent the county in connection with negotiations involving employees of the elected official's office and the employees' bargaining representatives pursuant to Neb.Rev.Stat. §§ 48-801 et seq. (Reissue 1984).

Richard J. Dinsmore of Dowd, Fahey, Dinsmore & Hoffman, Omaha, for appellant and cross-appellee.

George C. Rozmarin of Swarr, May, Smith & Andersen, P.C., Omaha, for appellee Sarpy County.

Allen E. Daubman and Verne Moore, Jr., of McGill, Koley, Parsonage & Lanphier, P.C., Omaha, for appellees and cross-appellants Hibbeler et al.

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

KRIVOSHA, Chief Justice.

This is an appeal from an order entered by the Commission of Industrial Relations (CIR) and appears to be a case of first impression. As presented by the parties, the question, first presented to the CIR, is, "Who among the defendants is the employer of the plaintiff's members?" The defendants are the County of Sarpy and the register of deeds, county clerk, county assessor, county treasurer, clerk of the district court, election commissioner, and county surveyor of Sarpy County, Nebraska. The plaintiff is the Sarpy County Public Employees Association, an organization created under the provisions of Neb.Rev.Stat. §§ 48-801 et seq. (Reissue 1984). Its members are clerical employees of the various Sarpy County offices.

Following a hearing, the CIR concluded that both the county board of Sarpy County, Nebraska, and the individual, elected officials of each of the offices named herein were the collective, joint employers of the employees described in the plaintiff's bargaining unit and, as such, each of the parties must be a part of the bargaining process. The CIR then remanded the matter for further negotiations between the plaintiff organization and the joint employers. All of the parties, dissatisfied with the decision, argue for reversal in this court. We believe that the decision of the CIR, under the facts and law applicable to this case, was in error, and for that reason we must reverse and remand.

The parties argue that the main issue to be decided by this court is who the "employer" is. We believe that the answer to that question is relatively easy, though not dispositive of the issues presented by this case. Section 48-801(4) clearly and unequivocally defines "employer." It provides: "Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska...." Under the provisions of § 48-801(4) it is unquestionable that the County of Sarpy is the employer of plaintiff's members, for it is only the county and neither the county board nor the various county officers which is a political or governmental subdivision of the State of Nebraska. Determining, however, that the County of Sarpy is the employer does little, if anything, to solve the question any more than determining that pursuant to § 48-801(4) the State of Nebraska is an employer in its labor negotiations. The more appropriate question is who or what body is authorized to represent the employer. Neither the State of Nebraska nor the County of Sarpy as a subdivision has a voice. If they are to be heard, they must be heard through some body or individual authorized to speak on their behalf. While, as we have noted, the CIR concluded that that voice should be made up of a body consisting jointly of the county board and the various elected officials, we believe, for reasons hereinafter set out, that each publicly elected official, with the exception of the county assessor, is the person authorized to speak on behalf of the county with regard to those employees working in that public official's individual office.

Both the labor organization and the county argue that only the county board can speak on behalf of the county and therefore, by implication, is the proper body to represent the county in its labor negotiations. In support of their position they argue that when § 48-801(4) is read together with Neb.Rev.Stat. § 23-103 (Reissue 1983), no other conclusion can be reached. The argument has some initial merit and appeal. As we have noted, § 48-801(4) defines an "employer" for purposes of collective bargaining as "any political or governmental subdivision of the State of Nebraska." Neb.Rev.Stat. § 23-101 (Reissue 1983) provides that each county "shall be a body politic and corporate" and thus is a political or governmental subdivision. Under the provisions of § 23-103 "[t]he powers of the county as a body corporate or politic, shall be exercised by a county board...." Furthermore, absent a specific statute to the contrary, it is the county board which enters into contracts for and on behalf of the county. See, State ex rel. Johnson v. County of Gage, 154 Neb. 822, 49 N.W.2d 672 (1951); Speer v. Kratzenstein, 143 Neb. 300, 9 N.W.2d 306 (1943), rev'd on other grounds 143 Neb. 310, 12 N.W.2d 360.

If this was all of the law on the subject, the answer to the question might easily be resolved as both the county and the employees association contend. Unfortunately, such is not the case, and an examination of all of the applicable statutes as well as our previous decisions makes the resolution of this question extremely complex.

In addition to the provisions of §§ 48-801(4) and 23-103, we are further required to consider Neb.Rev.Stat. § 23-1111 (Reissue 1983), which reads as follows: "The county officers in all counties shall have the necessary clerks and assistants for such periods and at such salaries as they may determine with the approval of the county board, whose salaries shall be paid out of the general fund of the county." (Emphasis supplied.)

It has long been the recognized rule in this jurisdiction that a county board is without authority, in the absence of a grant, to perform the duties which are part of the official duties of other officials or boards. See Speer v. Kratzenstein, supra. Therefore, unless the county board is specifically given authority to act for and on behalf of the various elected officials, it is without authority to do so. Therein lies the conflict which we must resolve. We believe that an analysis of the various statutes as previously interpreted by this court compels us to resolve the conflict by holding that the authority in this case lies with the various elected officials except as to the county assessor, who is controlled by a specific statute. See Neb.Rev.Stat. § 77-401.01 (Reissue 1981).

Absent the existence of a labor organization as defined by the provisions of § 48-801(6), the statutes make it relatively clear that in most instances the elected officials are authorized in the first instance to hire their own employees, set their salaries, and prescribe their terms and conditions of employment. See § 23-1111. While § 23-1111 speaks only about salary, it seems obvious that the body or official authorized to set the salary has, by necessary implication, the authority to prescribe the manner in which the work must be done in order to entitle the employee to the salary set by the county official. To hold otherwise, in the absence of a specific statute, would permit the employee to set his or her own terms of employment while requiring the elected official to set the salary. Such a result would be untenable.

Although the county board is given the right to approve the salary set by the elected official, the county board may not act arbitrarily or capriciously. In Meyer v. Colin, 204 Neb. 96, 102, 281 N.W.2d 737, 741 (1979), we said: "It is clear that section 23-1111, R.R.S.1943, requiring the approval of salaries by the County Board, does not allow the Board to arbitrarily reduce the salaries recommended by the elected officer." Further, in Meyer, supra at 102, 281 N.W.2d at 741, we said: "The question presented is actually distinct from mere budgeting procedures and relates, instead, to the independence and discretion which are to be afforded an elected officer."

We earlier decided a similar case in Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960). In the Bass case the...