Scott v. County Of Richardson
Decision Date | 15 October 2010 |
Docket Number | No. S-10-039.,S-10-039. |
Citation | 789 N.W.2d 44,280 Neb. 694 |
Parties | James M. SCOTT, appellee, v. COUNTY OF RICHARDSON, appellant. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
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Syllabus by the Court1. Administrative Law: Appeal and Error. 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.
2. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.
3. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.
4. Due Process: Public Officers and Employees: Property: Contracts. A public employee's due process rights arise from a contractually created property right to continued employment.
5. Termination of Employment: Due Process: Case Overruled. Deficiencies in due process during pretermination proceedings may be cured if the employee is provided adequate posttermination due process. To the extent that Martin v. Nebraska Dept. of Public Institutions, 7 Neb.App. 585, 584 N.W.2d 485 (1998), holds to the contrary, it is expressly overruled.
6. Public Officers and Employees: Termination of Employment: Due Process. Due process requires that a public employer provide its employees with appropriate pretermination and posttermination proceedings.
Vincent Valentino, Lincoln, for appellant.
Jeanette Stull, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., Lincoln, for appellee.
After James M. Scott was terminated from his employment as a deputy sheriff for Richardson County (County), he filed a grievance. Richardson County's grievance board (Board) found irregularities in the manner in which Scott was terminated, and it reinstated his employment for the period between his termination and the date of the grievance hearing. Scott was also awarded backpay and benefits. Finding just cause, the Board subsequently terminated Scott's employment effective the date of the grievance hearing. After Scott filed a petition in error, the district court reversed and vacated the Board's decision to terminate Scott's employment and ordered that he be reinstated. The County appeals.
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 determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law. Hickey v. Civil Serv. Comm. of Douglas Cty., 274 Neb. 554, 741 N.W.2d 649 (2007). On a question of law, an appellate court is obligated to reach a conclusion independent of the court below. Id.
Scott's employment was terminated by Randy Raney, who was the chief deputy and Scott's supervisor, on February 17, 2009. As a deputy sheriff, his employment with the sheriff's department was covered by a labor agreement between the County and the International Union of Operating Engineers, Local 571 (Union). The agreement includes a multistep grievance procedure.
Scott filed a grievance with Sheriff Vernon Buckminster, who denied it. Scott next submitted a complaint to the Richardson County Board of Commissioners, which complaint was also denied. He then appealed to the Board, which consists of two members appointed by the county commissioners, two members appointed by the Union, and one member agreed upon by the County and the Union. The Board upheld the termination of Scott's employment effective July 16, 2009.
Testimony about the basis for Scott's termination was received at a hearing before the Board on July 16, 2009. Raney testified that June Dettmann, a dispatcher and jailer for the sheriff's office, complained in December 2008 that Scott had “become affectionate toward her” and indicated he wanted a relationship with her. Dettmann stated that after she told Scott she was not interested in a relationship, Scott became distant, slammed doors when he left the office area, failed to contact her on the radio as required by office policy, and hung up on her when she called him. Raney asked Dettmann to submit her complaint in writing, and Raney subsequently met with Scott and advised him that his conduct was not acceptable and that it could be considered sexual harassment. Raney advised Scott not to talk to Dettmann about personal matters at work. Scott denied Dettmann's allegations.
Dettmann contacted Raney on January 25, 2009, to report that Scott's behavior had deteriorated. That night, Scott had been in the office and responded to a disturbance call in the southeast part of the county. He did not report to Dettmann that he was responding to the call. Raney said office policy provided that the dispatcher is to be informed of where an officer is going and of the type of call because the dispatcher serves as a lifeline for officers and needs to be able to dispatch other officers for assistance.
When Scott returned to the office, Dettmann was preparing a crime report about the disturbance call. Scott asked her to change the report because he thought it would bring undue attention to him. Dettmann told Raney she felt pressured to change the report lest Scott have her fired.
On January 29, 2009, Raney informed Scott that he was on paid suspension for gross insubordination and harassment pending an internal investigation. Raney met with Scott, Buckminster, and a Union representative on February 6. Raney gave Scott a detailed report stating the reasons for the disciplinary action against him, including (1) that Scott asked Dettmann to participate in a sexual relationship and other behavior that could be considered sexual harassment if it continued; (2) that Raney found a letter, dated January 24, 2008, written by Scott on a sheriff's office computer, which letter made allegations of inappropriate conduct by Dettmann; (3) that Raney received a complaint in April 2008 from another dispatcher about Scott and Dettmann's spending time together in the office or in Scott's patrol car when Dettmann was not on duty; and (4) that Dettmann called Raney on January 25, 2009, reporting that Scott had failed to inform her of his location, hung up on her, tried to turn other employees against her, and coerced her into changing a crime report. Scott denied all the allegations included in the report.
Between February 6 and 17, 2009, Raney investigated the allegations against Scott. On February 16, Scott submitted to a polygraph examination; however, the results were not offered or admitted at the hearing. On February 17, at a meeting attended by Scott, Raney, Buckminster, and the Union representative, Raney asked for Scott's resignation. Scott refused to resign, and Raney terminated his employment.
Dettmann also testified at the grievance hearing. She stated that on January 25, 2009, Scott called in on the police radio but she did not know his location. Scott reported that he had left the information on the counter in the office. Dettmann found a note from Scott underneath the logbook indicating that he was responding to a call. Dettmann called Scott to tell him she was upset because he had not followed office procedure. In response, Scott told her that he had drafted a complaint about her that he was going to submit to Raney. Scott said that if they could work things out, he would shred the complaint.
When Scott returned to the office, Dettmann was working on the crime report for the disturbance call. Scott said he had torn up the complaint about her. Scott asked Dettmann to change the crime report so it would not include his violation of office policy, because it would reflect poorly on him. She changed the report because she was upset and intimidated by Scott.
The Board found that just cause existed to terminate Scott's employment as of July 16, 2009. The evidence showed that Scott sexually propositioned Dettmann and that he denied the accusation when questioned by Raney. The Board concluded that Scott lied to Raney, his supervisor, and, in doing so, was insubordinate and unprofessional. The Board found that Scott left the office on January 25 and failed to follow office policy and procedure by not properly notifying Dettmann of his destination or his purpose in leaving. Upon his return to the office, Scott pressured, intimidated, and coerced Dettmann into altering the crime report. The Board found that this conduct was inappropriate, unprofessional, and contrary to department policy and procedure and that it constituted insubordination and unprofessional conduct.
However, the Board expressed reservations about the manner in which Scott's termination had been handled and whether there was inappropriate reliance on the results of a polygraph examination. The Board determined that any irregularities could effectively be cured by granting Scott's grievance in part. It ordered that Scott's employment be reinstated with backpay and benefits from July 16, 2009 (the date of the Board's decision), retroactively to February 17 (the date of Scott's termination of employment). However, the Board determined that Scott's due process rights had been fully honored in the proceedings before the Board, and it denied the grievance as to Scott's employment beyond July 16.
Scott filed a petition in error pursuant to Neb.Rev.Stat. § 25-1901 (Reissue 2008). The district court concluded that Scott's...
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