Unland v. City of Lincoln

• Decision Date: 21 April 1995
• Docket Number: No. S-93-736,S-93-736
• Citation: 530 N.W.2d 624,247 Neb. 837
• Parties: Lee UNLAND, Appellant, v. CITY OF LINCOLN, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 624

530 N.W.2d 624

247 Neb. 837

Lee UNLAND, Appellant, v. CITY OF LINCOLN, Nebraska, Appellee.

No. S-93-736.

Supreme Court of Nebraska.

April 21, 1995.

Syllabus by the Court

1. Actions: Employment Contracts: Appeal and Error. A suit under an employment contract is an action at law, and an appellate court will overturn factual findings of the trial court only if they are clearly wrong.

2. Judgments: Appeal and Error. As to questions of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, the appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Public Officers and Employees: Termination of Employment: Property: Due Process. Public employees may have a property right in continued employment. When such property rights exist, they are created not by the Constitution, but by an independent source such as state law. If an employee has a property right in continued employment, he or she may not be discharged from his or her job without due process.

5. Property: Due Process: Notice. It is fundamental to established principles of due process that as a prerequisite to an intentional deprivation of a protected property interest, the government must provide some notice and an opportunity for hearing appropriate to the nature of the case.

6. Public Officers and Employees: Termination of Employment: Property: Due Process: Notice. A public employee with a property interest in continued employment who is given posttermination administrative procedures must, before termination, be given (1) oral or written notice of the charges against him, (2) an explanation of the employer's evidence, and (3) an opportunity to present his side of the story.

7. Termination of Employment: Due Process. A pretermination procedure functions only as an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The pretermination process need not resolve the propriety of the discharge. All process that is due is provided by a pretermination opportunity to respond, coupled with posttermination procedures.

8. Attorney and Client: Notice. The general rule is that notice to, or knowledge of facts by, an attorney is notice to, or knowledge of, his client.

9. Actions: Attorney and Client: Proof. A litigant is not permitted to thrust his lack of knowledge into litigation as a foundation or condition necessary to sustain a claim against another while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge negating the very foundation or condition necessary to prevail on the claim asserted.

Thom K. Cope, of Bailey, Polsky, Cope, Wood & Knapp, Lincoln, for appellant.

William F. Austin, Lincoln City Atty., and Don W. Taute, Lincoln, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

FAHRNBRUCH, Justice.

Claiming that he was constructively discharged from his employment with the City of Lincoln without due process, Lee Unland petitioned the district court for Lancaster County to order his reinstatement as a police officer.

The district court held that Unland received the procedural due process to which he was entitled and dismissed Unland's petition. Unland appealed that determination.

We affirm the holdings of the district court in all respects.

STANDARD OF REVIEW

This is an action alleging breach of an employment contract and a denial of procedural due process. A suit under an employment contract is an action at law, and an appellate court will overturn factual findings of the trial court only if they are clearly wrong. Hammond v. City of Broken Bow, 239 Neb. 437, 476 N.W.2d 822 (1991).

As to questions of law, an appellate court has an obligation to reach a conclusion In reviewing a judgment awarded in a bench trial, the appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Ashland State Bank v. Elkhorn Racquetball, Inc., 246 Neb. 411, 520 N.W.2d 189 (1994).

independent from a trial court's conclusion in a judgment under review. Winslow v. Hammer, 247 Neb. 418, 527 N.W.2d 631 (1995); In re Guardianship & Conservatorship of Bloomquist, 246 Neb. 711, 523 N.W.2d 352 (1994).

FACTS

Unland was hired by the City of Lincoln (City) as a police officer in 1978. On September 1, 1988, the City entered into a written labor agreement with the Lincoln Police Union, of which Unland was a member. Article 8 of the agreement provides that discipline and discharge of police officers shall occur only for cause. Unland held his position with the police department until July 1990.

John Becker, then a captain with the Lincoln Police Department, testified that in early July 1990, problems with Unland's performance in a robbery investigation were brought to his attention. Becker testified that Sgt. Roger D. Schmidt, Unland's first line supervisor, informed Becker that a member of his investigation team had been assigned to duplicate the investigation of the July 1990 robbery case because Unland had not completed the necessary reports.

Becker testified that on July 19, he and Schmidt met with Unland to discuss the deficiencies in the robbery investigation. Becker testified that Unland was informed of the duplicate investigation and told that the failure to complete reports in the investigation was a violation of policy and procedure.

Becker testified that on July 24, he again met with Unland and specifically outlined the direction of the discipline he wanted to follow in the matter. Within the previous 6 months, Unland had received 1- and 3-day suspensions for performance deficiencies. Becker testified that he specifically told Unland that he would be recommending to Police Chief Allen Curtis that Unland be terminated because of the prior disciplinary situations and that he did not see the City "going backwards" in the disciplinary process.

Unland testified that he had a discussion with Schmidt and Becker. He testified that he was questioned about the robbery investigation and the timeliness of specific reports. Unland said that he did not recall any discussion regarding the earlier disciplinary matters. Unland also testified that he told Becker that "you ... think I shouldn't work here."

Unland received a written notice, dated July 24, 1990, that a "Personnel Action Report" had been filed by his first line supervisor and team commander. The notice advised Unland that the report would be reviewed at a hearing to be held July 27, at which Unland's attendance was required.

Becker also testified that on either July 25 or 26, he met with Unland's attorney, J. David Thurber. Becker testified that the two discussed the reasons for the upcoming July 27 hearing and his recommendation for Unland's termination.

Thurber testified that when he and Becker met, Becker indicated that he would be recommending Unland's termination because of the pattern of performance deficiencies shown by Unland, his prior disciplinary history, and the current circumstances involving the robbery investigation. Thurber also testified that he reviewed various reports Becker had in his possession concerning the factual circumstances of the current complaint against Unland. Thurber further testified that he told Unland of his discussions with Becker and that termination of his employment was a "real possibility in this case."

Thurber testified that prior to the July 27 hearing, he also contacted Curtis, and that Curtis indicated his concerns about Unland's prior history and the possibility of the termination of Unland's employment.

On July 27, Unland and Thurber attended a hearing over which Chief Curtis presided. Curtis, Becker, and Thurber testified that Thurber testified that he stated on behalf of his client that it was not necessary to have the facts reviewed. Thurber further testified that he presented a proposal as an alternative to Unland's termination. Curtis testified that Thurber's proposal for Unland included a 30-day suspension, 1 year's probation, and termination without any right to appeal in the event that Unland violated any police procedures during his probation period.

Curtis began the meeting by asking if anyone wanted him to review the facts and allegations of the situation. Allen Berndt, Lincoln Police Union president, agreed that the accounts of these witnesses reflected what actually occurred at the meeting. It was Unland's testimony that he did not recall specifically what Curtis' general opening comments were as to why they were conducting the hearing. Unland testified that at the hearing, he gave a brief statement on his own behalf regarding why he felt he was "a good police officer and could continue to be a good police officer...."

Chief Curtis did not accept Thurber's proposal, and suspended Unland for 15 days, at the end of which period his employment would be terminated.

Unland testified that after the hearing was adjourned, he asked his attorney if it was still possible for him to resign. Unland explained at trial that "a firing would not reflect well on a resume, and a resignation would be a better item to approach another employer." Thurber talked to Curtis after the meeting and asked if he would accept Unland's resignation instead of terminating his employment. Curtis testified that he answered in the affirmative, and on July 31, Curtis received...