Appeal from the District Court for Douglas County: Stephen A. Davis, Judge.
Boslaugh, White, Shanahan, and Fahrnbruch, JJ., and Witthoff, D.j. Boslaugh, J., Dissenting.
1. Administrative Law: Appeal and Error. In an error proceeding, both the district court and the Supreme Court review an administrative agency's decision to determine whether the agency acted within its jurisdiction and whether relevant evidence in the record supports the agency's decision.
2. Administrative Law: Evidence: Appeal and Error. Evidence supports an administrative agency's decision reviewed in an error proceeding if the agency could reasonably find the facts for the agency's decision on the basis of the relevant evidence contained in the record before the agency.
3. Administrative Law: Appeal and Error. In an error proceeding to review a decision by an administrative agency, the reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact.
4. Employer and Employee: Words and Phrases. Insubordination is an employee's willful or intentional disregard of, or refusal to obey, an employer's reasonable order, rule, or regulation, which is expressed or implied and is given or promulgated under lawful authority related to the employment.
5. Employer and Employee. An employee's good faith disagreement with the employer's opinion or judgment underlying a reasonable order does not justify the employee's refusal to follow the employer's valid order.
The opinion of the court was delivered by: Shanahan
As the result of a hearing before the Omaha personnel director, Robert C. Wadman was dismissed from his employment as chief of police of the Omaha Police Division (OPD) on account of insubordination in his refusal to sign disciplinary notices directed by the Omaha public safety director, Keith Lant. After the Omaha Personnel Board upheld Wadman's dismissal, Wadman filed his petition in error in the district court for Douglas County, contending that Lant's directive to Wadman was unreasonable, so that Wadman's refusal to obey the directive was not insubordination. The district court reversed the personnel board's decision and ordered Wadman's reinstatement. When the city decided not to appeal from the district court's decision, Frank Jackson, an Omaha taxpayer, intervened pursuant to Neb. Rev. Stat. § 14-810 (Reissue 1987) and the Omaha Home Rule Charter, art. VIII, § 8.10, which provide that a taxpayer may defend any suit against a city of the metropolitan class (Omaha) if the city refuses to defend the suit. On behalf of the city, Jackson appeals and claims that the district court erred in its Conclusion that the evidence was insufficient to sustain the personnel board's findings and order for Wadman's dismissal.
In an error proceeding, both the district court and the Supreme Court review an administrative agency's decision to determine whether the agency acted within its jurisdiction and whether relevant evidence in the record supports the agency's decision. Trolson v. Board of Ed. of Sch. Dist. of Blair, 229 Neb. 37, 424 N.W.2d 881 (1988); Stone v. City of Omaha, 229 Neb. 10, 424 N.W.2d 617 (1988). Evidence supports an administrative agency's decision reviewed in an error proceeding if the agency could reasonably find the facts for the agency's decision on the basis of the relevant evidence contained in the record before the agency. Trolson v. Board of Ed. of Sch. Dist. of Blair, supra; Stone v. City of Omaha, supra. In an error proceeding to review a decision by an administrative agency, the reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact. Coffelt v. City of Omaha, 223 Neb. 108, 388 N.W.2d 467 (1986); Richardson v. City of Omaha, 214 Neb. 97, 333 N.W.2d 656 (1983).
DISCIPLINARY PROCEDURE AT OPD
OPD is part of the Department of Public Safety of the City of Omaha. The public safety director heads the safety department and is the police chief's immediate superior. Omaha Mun. Code, ch. 23, art. III, §§ 23-292 to 23-296 (1980) confers on the safety director the power or authority to discipline department employees, including OPD employees, by admonishment, reprimand, suspension, demotion, or dismissal.
Specifically, Omaha Mun. Code, (supra) , § 23-294, states:
A department head may suspend any employee without pay for cause for a period or periods not exceeding sixty (60) calendar days in any twelve (12) months, however, no single suspension shall be for more than thirty (30) calendar days. The department head shall notify the employee concerned and the personnel director in writing not later than one day after the date the suspension is made effective. Such notice shall include the reasons for and the duration of the suspension.
Omaha Mun. Code, (supra) , § 23-296, in part provides:
A department head may dismiss for cause any regular employee under his jurisdiction by delivering at least fifteen (15) days before the effective date thereof a written statement of reasons to the employee concerned and to the personnel director. If the department head, because of the reasons for the discharge, desires to make an immediate separation from the service he may make a suspension without pay pending discharge.
Under the collective bargaining agreement between OPD employees and the city, police officers involved in a disciplinary action must receive written notice of the reason for the officer's suspension or dismissal from employment. Pursuant to the collective bargaining agreement, disciplinary notice relative to suspension and dismissal is patterned on the notice specified by §§ 23-294 and 23-296 of the Omaha Municipal Code.
The safety director and police chief had developed a longstanding practice in furtherance of the disciplinary process authorized by the Omaha Municipal Code and collective bargaining agreement. When improper conduct by police personnel became known, usually as a consequence of an investigation, the police chief drafted a suggested or recommended disciplinary notice, which indicated the proposed discipline to be imposed; signed the notice "By order of /s/ [police chief]"; and submitted the proposed notice to the safety director for the director's approval and signature. The chief's proposed disciplinary notice, submitted for the safety director's approval, was only a recommendation. In the absence of discipline actually imposed by the safety director, the chief cannot discipline a police officer by admonishment, reprimand, suspension, demotion, or dismissal. If the safety director disagreed with the chief's recommended discipline, the chief redrafted another disciplinary notice conforming with the safety director's instructions and submitted the redraft to the safety director for approval. In all cases, after approving the disciplinary notice drafted by the police chief and the discipline to be imposed, the safety director returned the approved disciplinary notice to the chief for transmittal to the police officer involved in the disciplinary action. Since at least 1972, all disciplinary notices, specifying the discipline imposed, have been signed by ...