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Nebraska Accountability v. Skinner

Supreme Court of Nebraska

August 15, 2014

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION, APPELLANT,
v.
ROLLAND SKINNER, APPELLEE, AND NORTHWEST RURAL PUBLIC POWER DISTRICT AND GARY FUCHSER, INTERVENORS-APPELLEES. NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION, APPELLANT,
v.
LES TLUSTOS, APPELLEE, AND NORTHWEST RURAL PUBLIC POWER DISTRICT AND GARY FUCHSER, INTERVENORS-APPELLEES

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeals from the District Court for Lincoln County: DONALD E. ROWLANDS, Judge.

Neil B. Danberg, Special Assistant Attorney General, for appellant.

Terry Curtiss, of Curtiss, Moravek & Curtiss, P.C., L.L.O., for appellees.

David A. Jarecke and Vanessa A. Silke, of Blankenau, Wilmoth & Jarecke, L.L.P., for intervenors-appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[288 Neb. 805] Wright, J.

I. NATURE OF CASE

The Nebraska Accountability and Disclosure Commission (Commission) appeals the order of the district court which [288 Neb. 806] reversed the Commission's finding that two employees of Northwest Rural Public Power District (NRPPD) violated the Nebraska Political Accountability and Disclosure Act (Act), Neb. Rev. Stat. § § 49-1401 to 49-14,141 (Reissue 2010) (subsequent amendments to Act are not applicable to instant case).

The question presented is whether the employees used public resources for the purpose of campaigning against a candidate for NRPPD's board of directors (Board). The employees purchased short radio advertisements on the subjects of wind energy, " generation duplication," and electricity rates that were broadcast before the November 2, 2010, general election. We reverse the judgment of the district court and remand the cause for further proceedings consistent with this opinion.

II. SCOPE OF REVIEW

A judgment or 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. J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013). 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. J.P., supra.

In an appeal under the Administrative Procedure Act, an appellate court will not substitute its factual findings for those

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of the district court where competent evidence supports the district court's findings. AT& T Communications v. Nebraska Public Serv. Comm., 283 Neb. 204, 811 N.W.2d 666 (2012). But " [t]o the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below." Liddell-Toney v. Department of Health & Human Servs., 281 Neb. 532, 536, 797 N.W.2d 28, 31 (2011).

[288 Neb. 807] III. FACTS

NRPPD is a political subdivision created under Neb. Rev. Stat. § 70-602 (Reissue 2009). At all times relevant to this case, Rolland Skinner was the general manager of NRPPD and Les Tlustos was the consumer services director. Both were considered public employees subject to the Act.

Skinner and Tlustos were responsible for NRPPD's radio advertisements, including public service announcements. Tlustos wrote the advertisements and determined how they should be distributed. Skinner provided general supervision and approved some of the advertisements before they were distributed, but not all.

The focus of NRPPD's radio advertisements was to " make [NRPPD's] consumers aware of what things were happening within the electric industry" and to assist consumers " in utilizing their resources productively." Throughout 2010, there were advertisements on the efficient use of energy, how to choose high efficiency equipment, energy efficiency credits, energy consumption from appliances and lights, " TogetherWeSave.com," and " [g]etting the most value from your energy dollar." Some advertisements discussed the benefits of using surge protectors, electric heat pumps and water heaters, electric grills, space heaters, and programmable thermostats. In 2010, other advertisements explained services provided by NRPPD, such as the " Youth Energy Camp" and the " Diggers Hotline."

In April 2010, Michael Van Buskirk announced his candidacy for a seat on the Board. The incumbent was the only other candidate for that seat. Between April 12 and 16, Van Buskirk spoke at a public meeting of the Sheridan County commissioners, appeared on a local radio station, and was the subject of an article in the county newspaper. Through these mediums, Van Buskirk touted wind energy as a viable method of containing energy costs and encouraging economic development. He criticized the existing Board for being unsupportive of local attempts to use wind power and for enacting policies that would " basically eliminate our potential to explore wind power within Sheridan County." He also opposed the existing Board's decision to join a lawsuit [288 Neb. 808] against Tri-State Generation and Transmission Association (Tri-State) in an attempt to reduce energy costs.

Skinner and Tlustos were present at a meeting at which Van Buskirk talked about his campaign and his position on wind energy. Tlustos recorded Van Buskirk's radio program. Skinner listened to Van Buskirk's radio program and read the newspaper article outlining Van Buskirk's campaign platform.

In October 2010, Tlustos purchased and Skinner approved three 30-second radio advertisements. The first advertisement, titled " Wind Energy," aired 73 times between October 5 and 26. It stated:

Northwest Rural, a not-for-profit, supports renewable energy. However, we are concerned about how the subsidies are funded. Presently, it is very difficult to make wind energy cost effective

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even with the subsidies that now exits [sic]. When much of the subsidies come through the rural electric utility, a disproportionate amount of the subsidies will be on the backs of the rural customers where the lowest quantities of the population live. Northwest Rural cares about the consumer.

The second advertisement, titled " Rates," was broadcast 73 times between October 6 and 26, 2010. It stated:

As you may know, Northwest Rural Public Power District has joined with four other Nebraska power systems to form the Nebraska Power Supply Issues Group (NPSIG). As part of this effort, Northwest Rural has been engaged in numerous discussions with Tri-State . . . regarding a dispute over the rates that Tri-State charges to its Nebraska-based members. On behalf of our customers, Northwest Rural continues to work toward finding a fair and equitable solution to this problem. Northwest Rural " cares about the consumer."

The third advertisement, titled " Generation Duplication," aired 98 times between October 27 and November 23, 2010. It stated:

Due to the fact that most renewable generating resources are intermittent, the generation equipment becomes a duplication of existing electric generation costs. Thus increasing the cost of providing electricity to all since [288 Neb. 809] full capacity of existing resources must be in place and available at all times. Also, renewable generation is most often not on at our peak requirement time and reduces the efficiency of lightly loaded non-intermittent generation resources. ...

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