Weeks v. State Bd. of Ed.

Decision Date30 October 1979
Docket NumberNo. 42325,42325
Citation284 N.W.2d 843,204 Neb. 659
CourtNebraska Supreme Court
PartiesMargaret D. WEEKS, Appellant, v. STATE BOARD OF EDUCATION of the State of Nebraska et al., Appellees.

Syllabus by the Court

1. Administrative Law: Statutes. Administrative rules and regulations as defined by section 84-901(2), R.R.S.1943, of an administrative agency are not effective until promulgated, approved, and filed as required by statute.

2. Evidence: Appeal and Error. Evidence which does not appear in the record cannot be considered by this court on appeal.

3. Administrative Law: Statutes. Contested case means a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing. § 84-901(3), R.R.S.1943.

4. Statutes: Appeal and Error. The availability of an appeal under the provisions of section 84-917(1), R.R.S.1943, does not prevent resort to other means of review, redress, or relief provided by law.

5. Property: Due Process. Where a public employee has a property interest in continued employment he cannot be deprived of that interest without a due process hearing. However, whether or not such a property interest exists is determined by state law.

Steven D. Burns of Noren & Burns, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Harold Mosher, Asst. Atty. Gen., Lincoln, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

This action originated from a grievance filed by the appellant, Margaret D. Weeks, against her employer, the State Department of Education. Weeks sought promotion to the position of supervisor of the Right to Read program. The position was filled by another woman not previously employed by the department. After a hearing before the State Board of Education under procedural rules promulgated by that board, Weeks was denied both the promotion and the alternative relief she sought, an equivalent position together with pay benefits retroactive to December 29, 1976. Weeks appealed from the denial by the Board, purportedly under the provisions of the Administrative Procedure Act, to the District Court for Lancaster County. That court denied relief and issued a memorandum opinion giving various reasons for the denial.

Weeks has appealed to this court and makes the following contentions: (1) As an employee of the State Department of Education at the time the vacancy opened, she had a property interest in and entitlement to promotional opportunities under the provision of section II, C-3 of the personnel manual of the State Department of Education. This provision allegedly gave her a preferential right to the promotion over persons not then employed by the department. (2) She had a property interest in and a right to promotion under the Affirmative Action Plan promulgated by the department and was the victim of discrimination contrary to the provisions of the Affirmative Action Plan. (3) She was, under the Fourteenth Amendment to the United States Constitution, entitled to and did not receive due process in that a notice required by the above section of the personnel manual was not given to her. (4) The findings made by the State Board of Education were not sufficient to satisfy the requirements of section 84-915, R.R.S.1943. (5) The various reasons given by the District Court for its decision were without merit. Included among these reasons was a finding that the policies purportedly established by the personnel manual were unconstitutional and in violation of public policy and Article VII, section 4, of the Nebraska Constitution, which section grants the State Board of Education power to appoint all employees of the State Department of Education upon recommendation of the Commissioner of Education.

The Board defends on various grounds, including the following: (1) The matter before the Board was not a "contested case" as defined by section 84-901(3), R.R.S.1943, and therefore was not entitled to be appealed to the District Court on the provisions of section 84-917(1), R.R.S.1943. (2) The "rules" of the personnel manual were not shown to have been properly promulgated under the Administrative Procedure Act, were not offered or received in evidence, and are not contained in the bill of exceptions to this court. Furthermore, the rules in question are rules for internal management of the department and not rules and regulations within the meaning of the Administrative Procedure Act. (3) The Affirmative Action Plan of the department prohibits discrimination in employment, promotion, etc., only where such discrimination is founded on political or religious opinions or affiliations, race, age, sex, national origin, or physical disability. The record contains no evidence whatever that Weeks was the victim of discrimination in any of these respects.

We affirm the denial of relief to Weeks by the Board and the District Court, but in so doing approve only the results of the District Court's judgment and not its rationale.

The personnel manual rule upon which Weeks bases her claim to a property interest in a promotion does not appear in the bill of exceptions; nor was it offered or received in the District Court. It is not contended that the personnel manual was ever promulgated, approved, and filed in accordance with the provisions of the Administrative Procedure Act. §§ 84-902, 84-904, 84-905, 84-905.01, 84-906, R.R.S.1943. If we assume, for the purposes of this appeal, that the contents of the personnel manual were rules and regulations within the meaning of section 84-901(2), R.R.S.1943, and not mere regulations for the internal operation of the department as the Board contends (a determination we need not make), then such rules did not become operative because they were not properly promulgated, approved, and filed. Administrative rules and regulations as defined by section 84-901(2), R.R.S.1943, of an administrative agency are not effective until promulgated, approved, and filed as required by statute. School Dist. No. 228...

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6 cases
  • Gaige M. v. Winterer
    • United States
    • Nebraska Supreme Court
    • 23 de abril de 2015
    ...note 4.34 See, e.g., Martin A. Schwartz & Kathryn R. Urbonya, Section 1983 Litigation 26 (2d ed.2008).35 See Weeks v. State Board of Education, 204 Neb. 659, 284 N.W.2d 843 (1979).36 See, Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012) ; Duggan v. Be......
  • Smith v. Sorensen
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 6 de dezembro de 1984
    ...public employee from the rules and regulations which have become a part of his employment contract. Weeks v. State Board of Education, 204 Neb. 659, 663, 284 N.W.2d 843, 846 (1979). Since the rules were promulgated under the authority of Nebraska's Administrative Procedures Act, Neb.Rev.Sta......
  • Mace v. Mace, 82-559
    • United States
    • Nebraska Supreme Court
    • 18 de novembro de 1983
    ...the court. Evidence which does not appear in the record cannot be considered on appeal by the Supreme Court. Weeks v. State Board of Education, 204 Neb. 659, 284 N.W.2d 843 (1979). The hearing took place over an 8-day period, some 2 weeks after James' petition was filed. It appears from the......
  • Blankenbaker v. McCook Public Power Dist., 90-2994
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 6 de agosto de 1991
    ...however, the sufficiency of the claim of entitlement must be decided by reference to state law."); see also Weeks v. Board of Educ., 204 Neb. 659, 663, 284 N.W.2d 843, 846 (1979) (Supreme Court of Nebraska stating this rule of law). In addition, under Salve Regina College v. Russell, --- U.......
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