Vinci v. Nebraska Dept. of Correctional Services, S-96-107

• Decision Date: 05 December 1997
• Docket Number: No. S-96-107,S-96-107
• Citation: 253 Neb. 423,571 N.W.2d 53
• Parties: , 13 IER Cases 869 Angelo VINCI, Appellee and Cross-Appellant, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES and the State of Nebraska, Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 53

571 N.W.2d 53

253 Neb. 423, 13 IER Cases 869

Angelo VINCI, Appellee and Cross-Appellant, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES and the State of Nebraska, Appellants and Cross-Appellees.

No. S-96-107.

Supreme Court of Nebraska.

Dec. 5, 1997.

Syllabus by the Court

1. Administrative Law: Judgments: Final Orders: Appeal and Error. An aggrieved party may obtain review of any judgment or final order entered by a district court under the Administrative Procedure Act.

2. Administrative Law: Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

3. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

4. Judgments: Appeal and Error. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court.

5. Administrative Law: Judgments: Appeal and Error. On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings.

6. Administrative Law: Courts: Appeal and Error. In a de novo review by a district court of the decision of an administrative agency, the level of discipline imposed by the agency is subject to the district court's power to affirm, reverse, or modify the decision of the agency or to remand the case for further proceedings.

7. Constitutional Law: Public Officers and Employees: Appeal and Error. The threshold question in determining whether the First Amendment applies to a government employee's statement is whether it constitutes speech on a matter of public concern. If the statement at issue is a matter of public concern, an appellate court must balance the employee's interest in making the statement against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. However, if the statement does not involve a matter of public concern, then the First Amendment does not apply and the court's inquiry is at an end.

8. Constitutional Law: Public Officers and Employees: Records. Whether an employee's statement is a matter of public concern is determined by its content, form, and context, as revealed by the entire record.

9. Constitutional Law: Public Officers and Employees: Appeal and Error. Whether a statement was made at the workplace or at home is of no consequence to an appellate court's public concern analysis.

10. Constitutional Law: Public Officers and Employees. An employee who makes an unprotected statement is not immunized from discipline by the fact that his statement is surrounded by protected statements.

11. Constitutional Law: Public Officers and Employees: Appeal and Error. An important factor in an appellate court's content, form, and context analysis is whether the government employee intended to disseminate his statement's content to the public. The employee's motivation in making 12. Administrative Law: Statutes: Appeal and Error. The interpretation of statutes and regulations presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below, according deference to an agency's interpretation of its own regulations, unless plainly erroneous or inconsistent.

the statement is another relevant factor in determining whether a statement is of public concern.

13. Administrative Law: Appeal and Error. In the absence of anything to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning. An appellate court will not resort to interpretation to ascertain the meaning of words in a rule or regulation which is plain, direct, and unambiguous.

14. Administrative Law: Appeal and Error. A district court, in applying a de novo standard of review, can consider and may give weight to the fact that the hearing officer observed the witnesses and accepted one version of the facts rather than another.

15. Administrative Law: Records: Rules of Evidence: Judicial Notice: Appeal and Error. In a de novo review on the record of an agency, the record consists of the transcripts and bill of exceptions of the proceedings before the agency and facts capable of being judicially noticed pursuant to Neb. Evid. R. 201. The bill of exceptions consists of all evidence offered at trial, including exhibits.

Don Stenberg, Attorney General, and Lynne R. Fritz, Lincoln, for appellants and cross-appellees.

Lynnette Z. Boyle, of Tietjen, Simon & Boyle, Omaha, for appellee and cross-appellant.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CONNOLLY, Justice.

At issue in this case is whether the Nebraska Department of Correctional Services (Department), acting as an employer, can discipline an employee for using a racial epithet to refer to a superior officer without offending the 1st and 14th Amendments to the U.S. Constitution. We conclude that such remarks, as used in the form and context in the instant case, are not a matter of public concern and therefore are not protected by the 1st and 14th Amendments. We reverse in part, and remand with directions.

BACKGROUND

Lt. Angelo Vinci, a 13-year employee of the Department, was employed at the Lincoln Correctional Center (LCC). On February 8, 1994, he was demoted to the rank of correctional officer, his pay was reduced to the minimum level for that position, and he was transferred within the Department. This action was taken by the director of the Department, Harold W. Clarke, at the recommendation of the warden of the LCC. According to the findings of the Department's disciplinary committee, which were adopted by the director, Vinci was demoted for violating three Department rules under administrative regulation No. 112.6, Employee Discipline: (1) C-V001--Failure to Obey Orders, Rules or Regulations; (2) C-V004--Insubordinate Acts; and (3) C-V006--Conduct Inappropriate for a State Employee. He was also found to have violated administrative regulation No. 112.7, Policies Against Workplace Harassment. The disciplinary committee's findings were based upon certain comments Vinci had allegedly made about other employees and the actions of management.

These comments were first brought to the attention of the Department by Sgt. Kevin Edelmaier, who worked directly under Vinci. On November 3, 1993, Edelmaier submitted a statement to the administration of the LCC alleging that Vinci had been using racially and sexually offensive language to describe other Department employees and that Vinci had made other comments critical of the administration. According to Edelmaier, between October 13 and November 3, 1993, Vinci referred to Capt. Alvin Moore, an African-American who was one of Vinci's superior officers, as "an ignorant mother fucker" and a "nigger." Edelmaier stated that Vinci An investigation was ordered as a result of Edelmaier's report, which investigation was headed by an outside officer, Mona Rhynalds, superintendent of the Hastings Correctional Center. Rhynalds interviewed Vinci, Edelmaier, and other employees whom Edelmaier reported as having heard Vinci use racially and sexually derogatory terms. At the conclusion of her investigation, Rhynalds stated: "While no definitive verifications of Sergeant Edelmaier's allegations were revealed during this investigation, I believe sufficient grounds have been established to continue this investigation." Rhynalds further recommended that polygraphs be administered to key individuals, which apparently was done.

                referred to Deputy Warden Howard Ferguson, also an African-American and superior to Moore, as a "stupid nigger" or a "psycho nigger" or just as a "psycho."   Vinci also allegedly referred to a female employee, Shirley Afsharkah, as a "black cunt," "nigger cunt," and "bitch" on several occasions.  In addition, Vinci allegedly criticized that "stupid fucking Ferguson" for not locking down the facility after a prisoner named "Goodenow" was killed
                

At the conclusion of the investigation, Vinci received a written notice of charges setting forth the factual allegations against him and the rules of conduct he had violated. A disciplinary hearing was held before Warden Robert P. Houston and a disciplinary committee, with Vinci represented by counsel. During the hearing, Vinci admitted telling subordinates that Moore was "an ignorant fucker" and that this was inappropriate behavior, but he denied calling Moore a "nigger." Edelmaier testified concerning the statements he had put in his previous report. Another individual, Cpl. Robert Laycock, testified that he had heard Vinci refer to either Moore or Ferguson as a "nigger" either at Vinci's home or in the parking lot. As a result of the hearing, the disciplinary committee found that Vinci had violated the rules as set forth above and recommended his demotion, which recommendation was adopted by the director.

VINCI'S ADMISSIONS

Vinci appealed the disciplinary committee's decision to the Nebraska State Personnel Board (Board). At the hearing before the Board's hearing officer, Vinci admitted referring to Ferguson as a "psycho jerk" in conversations with Edelmaier at the LCC. He also admitted referring to Ferguson as a "nigger" during a conversation with Laycock at Vinci's home, but denied having done so at his...