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Shear v. City of Wayne Civil Service Commission

Court of Appeals of Nebraska

January 14, 2014

Philip Shear, Appellant,
v.
City of Wayne Civil Service Commission and the City of Wayne, Nebraska, a municipal corporation, Appellees.

Page 604

[Copyrighted Material Omitted]

Page 605

Appeal from the District Court for Wayne County: ROBERT B. ENSZ, Judge. Affirmed.

Steven M. Delaney and Richard Whitworth, of Reagan, Melton & Delaney, L.L.P., for appellant.

Jerry L. Pigsley and Karen A. Haase, of Harding & Schultz, P.C., L.L.O., for appellees.

Moore and Bishop, Judges.

Syllabus

1. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

2. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Page 606

3. Administrative Law: Appeal and Error. In reviewing an administrative agency decision on a petition in error, both the district court and the appellate court review the decision to determine whether the agency acted within its jurisdiction and whether sufficient, relevant evidence supports the decision of the agency.

4. Administrative Law: Appeal and Error. The reviewing court in an error proceeding is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact.

5. Administrative Law: Evidence. The evidence is sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did from the testimony and exhibits contained in the record before it.

6. Public Officers and Employees: Termination of Employment: Due Process. Under [21 Neb.App. 645] Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), a public employee possesses certain due process rights when state law grants a property right to continued employment.

7. Public Officers and Employees: Termination of Employment: Due Process. When a state deprives a public employee of the right to continued employment, the deprivation must be preceded by notice and an opportunity for hearing appropriate to the nature of the case.

8. Termination of Employment: Due Process. Deficiencies in due process during pretermination proceedings may be cured if the employee is provided adequate posttermination due process.

9. Termination of Employment: Due Process. An impartial decisionmaker is not required at the pretermination stage so long as the employee has access to posttermination proceedings before an impartial adjudicator.

Moore, Judge.

Following termination from his position as a lieutenant for the Wayne Police Department, Philip Shear filed a written demand for an investigation and public hearing with the City of Wayne Civil Service Commission (the Commission). After the Commission upheld the termination, Shear filed a petition in error in the district court for Wayne County. The district court also affirmed the Commission's decision to terminate Shear's employment. Shear now appeals to this court, asserting that his due process rights were violated in his pretermination hearing, that the Commission's decision was arbitrary and capricious, and that the Commission erred in allowing undisclosed testimony at the hearing. Finding no merit to these assignments of error, we affirm.

FACTUAL BACKGROUND

The City of Wayne, Nebraska (the City), employed Shear as a lieutenant in the Wayne Police Department. As lieutenant, Shear acted in a supervisory capacity within the department. In a letter dated February 17, 2011, Lowell Johnson, in his [21 Neb.App. 646] position as city administrator for the City, filed written accusations with the Commission, alleging Shear had engaged

Page 607

in misconduct. Specifically, Johnson alleged that Shear had committed the following acts:

1. Created and tolerated an environment within the Wayne Police Department in which employees were hostile to other staff members, to other members of law enforcement and to the community; he further failed to demand the unquestionable integrity, reliability, and honesty from Wayne Police Department employees that would be consistent with public expectations, undermining the efficiency, morale and good order of the Wayne Police Department.
2. Engaged in an extramarital affair with an employee he supervised in the ...

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