Wood v. Tesch

• Decision Date: 02 May 1986
• Docket Number: No. 85-346,85-346
• Citation: 386 N.W.2d 436,222 Neb. 654
• Parties: Dennis WOOD, Appellant, v. Fred TESCH and the County of Cass, Nebraska, a Political Subdivision, Appellees.
• Court: Nebraska Supreme Court

Page 436

386 N.W.2d 436

222 Neb. 654

Dennis WOOD, Appellant, v. Fred TESCH and the County of Cass, Nebraska, a Political Subdivision, Appellees.

No. 85-346.

Supreme Court of Nebraska.

May 2, 1986.

Syllabus by the Court

1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings by the defendant admits the truth of all the well-pleaded facts in the petition, together with all reasonable inferences to be drawn therefrom, and treats as untrue all the controverted facts contained in the answer.

2. Pleadings. In the absence of a reply, allegations contained in the answer must be considered denied by plaintiff.

3. Administrative Law: Counties: Public Officers and Employees. Statements of individual county commissioners acting separately do not constitute the statements of the county.

4. Jurisdiction: Appeal and Error. The Nebraska Supreme Court acquires no jurisdiction of a cause appealed from a tribunal which lacked subject matter jurisdiction.

5. Administrative Law: Commission of Industrial Relations: Jurisdiction. The Commission of Industrial Relations is an administrative agency empowered to perform a legislative function and, as such, has no power or authority other than that specifically conferred on it by statute or by a construction thereof necessary to accomplish the purposes of the act establishing the commission.

6. Administrative Law: Commission of Industrial Relations: Jurisdiction. The Commission of Industrial Relations has no authority to vindicate constitutional rights, nor to hear cases for breach of contract, nor to declare rights, duties, and obligations of the parties.

7. Administrative Law: Commission of Industrial Relations: Jurisdiction. Not every controversy concerning the terms, tenure, or conditions of employment is an industrial dispute which lodges jurisdiction in the Commission of Industrial Relations.

8. Administrative Law: Commission of Industrial Relations: Jurisdiction Termination of Employment. A uniquely personal termination of employment does not constitute an industrial dispute notwithstanding the fact it may involve a controversy concerning terms, tenure, or conditions of employment.

9. Constitutional Law: States: Due Process. Freedom of speech and the right of assembly provided by the first amendment to the U.S. Constitution are among the fundamental liberties protected from state impairment by the due process clause of the fourteenth amendment to the U.S. Constitution.

10. Constitutional Law: Public Officers and Employees: Termination of Employment. While one who is a governmental at-will employee may be discharged for no reason at all, he or she may not be discharged on a basis that infringes upon constitutionally protected interests.

11. Constitutional Law: Public Officers and Employees: Termination of Employment. A governmental employee may not constitutionally be compelled to relinquish his or her first amendment right to comment on matters relating to his or her employment which are of public concern.

12. Constitutional Law: Public Officers and Employees: Termination of Employment. In discharging a governmental at-will employee who has exercised his or her right of free speech on matters of public concern, the interest of the governmental employee in commenting as a citizen upon such matters and the interest of the governmental employer in promoting the efficiency of the public services it performs through its employees must be balanced.

13. Constitutional Law: Public Officers and Employees: Termination of Employment. The closeness of working relationships is a factor to be considered in balancing the governmental employee's constitutional right to free speech and the governmental employer's interest in efficiency.

14. Constitutional Law: Public Officers and Employees: Termination of Employment. When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment in discharging an employee is appropriate; it is not necessary for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships are manifest before taking action.

15. Constitutional Law: Public Officers and Employees: Termination of Employment. The more substantially involved in matters of public concern is the employee's speech, the stronger must be the employer's showing as to the disruptive effect upon close working relationships and efficiency.

16. Constitutional Law: Labor and Labor Relations. The right to inform people about unions is protected by both the right to free speech and the right of assembly.

17. Employer and Employee: Labor and Labor Relations. It is unlawful to act adversely toward an employee because of his or her union membership or activity.

John P. Fahey, of Dowd, Fahey & Dinsmore, for appellant.

John W. Iliff and Edward G. Warin, of Gross, Welch, Vinardi, Kauffman & Day, P.C., for appellees.

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

CAPORALE, Justice.

Plaintiff-appellant, Dennis Wood, sued defendants-appellees, Fred Tesch, the sheriff of Cass County, and said county, alleging that they wrongfully terminated his employment as a deputy sheriff. The district court sustained the defendants' motion for "summary judgment" and dismissed Wood's petition. In this appeal Wood assigns error to the district court's ruling that, as an at-will governmental employee, his employment could be terminated "at the will of the appointing officer," without reference to his right of free speech as provided by the first and fourteenth amendments to the U.S. Constitution and by article I, § 5, of the Nebraska Constitution, and his right of assembly as provided by the first and fourteenth amendments to the U.S. Constitution and article XV, § 13, of the Nebraska Constitution. We affirm the dismissal as to the county but reverse and remand for further proceedings as to Tesch.

The record before us consists only of the pleadings and of the lower court's ruling. The pertinent pleadings are Wood's amended petition, the answer thereto of Tesch and the county, and the subject motion. Since no deposition or affidavits were presented in support of the motion, it was in fact one for judgment on the pleadings, notwithstanding its designation as something other than that. Mueller v. Union Pacific Railroad, 220 Neb. 742, 371 N.W.2d 732 (1985); Neb.Rev.Stat. §§ 25-1330, 25-1332 (Reissue 1979).

The well-pleaded facts in Wood's amended petition allege that in late 1980 he and other Cass County deputy sheriffs sought to organize a union for collective bargaining purposes. Thereafter, Tesch and certain unnamed members of the county's board of commissioners stated that the number of deputy sheriffs would be reduced if such efforts continued, but Wood and the others nonetheless persisted in their efforts. On January 29 and 30, 1981, Wood reported to the news media that in 1980 and early 1981 Tesch ordered the destruction of official police records, excluded the Weeping Water and Louisville Police Departments from a course conducted by the state in the use of an Intoxilyzer machine, and utilized persons who were not trained in law enforcement to conduct police raids. On February 1, 1981, Tesch summarily fired Wood for the stated reason that he had made the foregoing remarks to the news media. Wood prayed for reinstatement to his former position with seniority and other employment rights and for the recovery of insurance premiums.

In their answer Tesch and the county generally denied Wood's allegations and asserted that the court lacked subject matter jurisdiction, such being lodged in the Commission of Industrial Relations by Neb.Rev.Stat. § 48-810 (Reissue 1984), and, further, that any cause of action Wood may have had was barred by the 2-year period of limitations imposed by Neb.Rev.Stat. § 25-218 (Reissue 1979) on claims against the state.

Being one for judgment on the pleadings by the defendants, the motion admitted the truth of all the well-pleaded facts in Wood's amended petition, together with all reasonable inferences to be drawn therefrom, and treated as untrue all the controverted facts contained in the answer filed by Tesch and the county. Mueller v. Union Pacific Railroad, supra. Notwithstanding the apparent lack of a reply, the allegations of the answer are considered to have been denied by Wood. Snyder v. Fort Kearney Hotel Co., Inc., 182 Neb. 859, 157 N.W.2d 782 (1968), aff'd after remand 185 Neb. 476, 176 N.W.2d 686 (1970); Neb.Rev.Stat. § 25-820 (Reissue 1979).

In the posture of the case the ultimate task of this court is, as was that of the court below, to determine whether Wood has stated a cause of action against Tesch or the county. Mueller v. Union Pacific Railroad, supra.

As to the county, the answer is in the negative, for Wood's petition alleges only that certain members of the county's board of commissioners, in effect, as individuals, threatened to fire some deputy sheriffs, not necessarily Wood, if unionization efforts continued.

Irrespective of whatever other deficiencies there may or may not be with that allegation, it is clear that the statements of individual county commissioners acting separately do not constitute the statements of the county. Morris v. Merrell, 44 Neb. 423, 62 N.W. 865 (1895). See, also, May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448 (1945). There is no allegation that the county said or did anything through its board of commissioners acting as its legislative body.

Consequently, the court below was correct in dismissing Wood's action against the county.

The questions concerning whether the court below acquired subject matter jurisdiction and whether Wood has stated a viable cause of action against Tesch, however, require further analysis.

To answer those questions we begin by addressing Tesch's affirmative defenses, that the court...