Swicord v. Police Stds. Adv. Council , 309 Neb. 43 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43Blake Swicord, appellant, v. Police Standards
Advisory Council and Nebraska Commission
on Law Enforcement and Criminal
Justice, also known as Nebraska
Crime Commission, appellees.
___ N.W.2d ___
Filed April 23, 2021. No. S-20-411.
1. Administrative Law: Judgments: Appeal and Error. 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.
2. ____: ____: ____. 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 com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Rules of the Supreme Court: Appeal and Error. Where a brief
of a party fails to comply with the mandate of Neb. Ct. R. App. P.
§ 2-109(D)(1)(e) (rev. 2014), an appellate court may proceed as though
the party failed to file a brief or, alternatively, may examine the proceed-
ings for plain error.
4. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
Appeal from the District Court for Hall County: Ryan C.
Carson, Judge. Affirmed.
Megan E. Shupe and Steven M. Delaney, of Reagan, Melton
& Delaney, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After serving as a law enforcement officer in Georgia, Blake
Swicord moved to Nebraska hoping to do the same here. As
part of an application to obtain certification to work in law
enforcement in Nebraska, Swicord submitted a form in which
he answered questions regarding his personal background. The
director of the Nebraska Law Enforcement Training Center
(NLETC) denied the application, concluding that Swicord pro-
vided answers that were untrue and failed to disclose requested
information. Swicord unsuccessfully challenged the denial of
his application first in administrative proceedings and then in
a judicial review proceeding in district court. He now appeals
the district court’s order to us. We find no error in the decision
of the district court and thus affirm.
BACKGROUND
Swicord’s Application for
Reciprocity Certification.
From 1995 until 2017, Swicord served as a law enforcement
officer in the State of Georgia. He began his law enforcement
career as a lieutenant in a county sheriff’s department and later
became a sergeant in the Georgia State Patrol. The Georgia
State Patrol terminated his employment in December 2017.
After his employment in Georgia was terminated, the
Seward County sheriff’s office hired Swicord, and he moved
to Nebraska. The Seward County sheriff’s office filed an appli-
cation on Swicord’s behalf with NLETC, seeking reciprocity
certification. Reciprocity certification allows law enforcement
officers who are certified in other jurisdictions and who meet
other criteria to obtain Nebraska certification without par-
ticipating in basic officer training. See 79 Neb. Admin. Code,
ch. 3 (2016).
Among the materials that must be included in an applica-
tion for reciprocity training is a “Personal Character Affidavit.”
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43See 79 Neb. Admin. Code, ch. 8, § 008.01A(3) (2005). The
Personal Character Affidavit that Swicord submitted is a form
document, which instructs applicants to answer various ques-
tions regarding their personal background. The first page of
the form document instructs applicants to “answer all ques-
tions and sections truthfully” and states that “[f]alsification or
omission of information is grounds for denial to admission to
an academy and denial of or revocation of your law enforce-
ment certification in Nebraska.” The first page of the docu-
ment also states, “IF YOU HAVE ANY DOUBTS WHETHER
SOMETHING OR SOME TYPE OF VIOLA­TION SHOULD
BE INCLUDED, LIST IT ON THE AFFIDAVIT. FAIL­URE TO
LIST A VIOLATION MAY RESULT IN TER­MI­NA­TION OF
TRAINING, DENIAL OF CER­TI­FI­CA­TION, AND POSSIBLE
CRIMINAL PENALTIES.” (Empha­sis in original.)
One of the questions on the form relevant to this appeal
directed the applicant to answer if he or she had “ever, either
as an adult or juvenile, been cited, arrested, charged, or con-
victed for a violation of any law (except moving traffic viola-
tions to be reported under the next question, and except for
minor parking violations.” (Emphasis in original.) If answered
affirmatively, the Personal Character Affidavit form directed
the applicant to provide information regarding the charge, the
arresting agency, the date of the incident, whether the applicant
was booked into jail, convictions stemming from any arrest,
and the disposition of the case; the form also contained a space
for the applicant to include a “[n]arrative” regarding the inci-
dent. Swicord checked the box indicating “No.”
Swicord also answered “No” to a number of questions
regarding professional licenses or certifications. These ques-
tions asked, “Have you ever had a professional license that
you hold be under investigation?”; “Is a professional license
that you currently hold under investigation?”; and “Have you
had a law enforcement certification or any other professional
license/certificate revoked or suspended in this state or any
other state?”
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Cite as 309 Neb. 43The conclusion of the Personal Character Affidavit form
directed the applicant to certify that “there are no willful mis-
representations, omissions, or falsifications in the for[e]going
statements and answers to questions and that all statements and
answers are true and correct to the best of my knowledge and
belief.” Swicord signed the certification.
In addition to the Personal Character Affidavit, Swicord also
signed and submitted a notarized document entitled “Authority
to Release Information.” In it, Swicord authorized “a review
and full disclosure of any and all records or files (or any part
thereof) pertaining to me, including but not limited to . . .
records, files or documents regarding any arrests, convictions
or other criminal investigations or charges involving me.” He
also authorized the release of information to NLETC “concern-
ing all of the above mentioned areas, or any other information
which has a bearing on my fitness or ability to become trained
and certified as a law enforcement officer.”
Denial of Swicord’s Application
for Reciprocity Certification.
Brenda Urbanek, the director of NLETC, denied Swicord’s
application for reciprocity certification. She issued a letter in
which she listed several reasons for her decision. In the letter,
Urbanek stated that she had performed a background check
on Swicord and learned that he had been arrested for alleged
battery in January 2018 and that the “Georgia Peace Officer
Standards and Training Council” (Georgia POST) had voted
to revoke his law enforcement certification in December 2018.
She noted that Swicord had failed to disclose these facts in the
Personal Character Affidavit.
Regulations permit individuals or agencies aggrieved by
decisions of the director of NLETC “related to admission to
training, certification status, and discipline” to “appeal” by,
among other things, presenting specific reasons in writing for
the director to review and reconsider the decision. 79 Neb.
Admin. Code, ch. 13, § 004.02A (2005). Swicord pursued
such an appeal. In a letter to Urbanek, Swicord addressed each
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43of the reasons Urbanek identified for her decision denying
Swicord reciprocity certification. As to his negative response
to the question in the Personal Character Affidavit regarding
prior arrests, Swicord stated, “I must apologize as I under-
stood the question to be about convictions.” As to his negative
response to the questions regarding investigations regarding a
professional license, he stated, “I have never considered my
peace officer certification to be a ‘license’ and so that is why I
marked those boxes as such.”
Urbanek denied Swicord’s appeal. In a letter, she stated that
she had reviewed the documents submitted by Swicord but did
not find that any new or mitigating information was provided.
Police Standards Advisory Council.
Pursuant to regulations, Swicord appealed Urbanek’s deci-
sion to the Police Standards Advisory Council (the Council).
See 79 Neb. Admin. Code, ch. 13, § 004.02E. The Council held
an administrative hearing.
At the hearing, the Council received evidence that the
Georgia POST investigated Swicord’s fitness to serve as a law
enforcement officer. The investigation was opened shortly after
Swicord’s employment with the Georgia State Patrol was ter-
minated in December 2017. After the investigation, the Georgia
POST voted to revoke Swicord’s Georgia law enforcement
certification. Swicord appealed the decision, and the appeal
remained pending at the time of the hearing.
Swicord testified that at the time he submitted the Personal
Character Affidavit, he knew about the Georgia POST’s inves-
tigation. He explained that he did not believe the questions
in the Personal Character Affidavit regarding past or present
investigations into a professional license covered the Georgia
POST investigation. He testified that the eligibility to serve as
a law enforcement officer in Georgia is referred to as a “certi-
fication” and never as a “license.” He claimed that he thought
the questions “were referring to like my driver’s license, had
it ever been suspended or revoked” or “[m]aybe you were
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Cite as 309 Neb. 43certified to have a license [as] a chiropractor, . . . that you prac-
ticed in the medical field or something of that nature.”
The Council also received evidence that Swicord was
arrested in Georgia in January 2018 for suspected battery after
a physical altercation with his girlfriend. Swicord admitted
that he had been arrested for suspected battery, but testified
that the prosecutors did not pursue the charges. He testi-
fied that he denied previously being arrested in the Personal
Character Affidavit based on the advice of an attorney who
“practices in Georgia and Alabama.”
Swicord called law enforcement officers from Georgia and
Nebraska to testify on his behalf. Each testified positively
regarding Swicord’s professionalism, work ethic, and character.
At the end of the hearing, the Council voted to uphold
Urbanek’s decision denying reciprocity certification on the
grounds that Swicord failed to disclose his arrest and that his
professional license was under investigation. The Council later
issued a unanimous written decision. In the written decision,
the Council found that Swicord “knowingly made a false state-
ment when he indicated that he had never been arrested.” The
order expressly stated that the Council found Swicord’s expla-
nations for not disclosing the arrest not credible. The Council
also determined that Swicord’s failure to disclose the Georgia
POST’s investigation constituted a knowing falsification. It
concluded that Swicord’s “actions in the application process
demonstrate to this body that [Swicord] cannot be . . . charac-
terized as being truthful, honest or trustworthy.”
District Court.
Swicord sought review of the Council’s decision in the
district court for Hall County by filing a petition for review
pursuant to the Administrative Procedure Act. See Neb. Rev.
Stat. § 84-917 (Reissue 2014). The district court affirmed the
Council’s decision. It found that Swicord knowingly made
false statements in his responses on the Personal Character
Affidavit and that thus denial of his application for reciprocity
certification was warranted.
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43ASSIGNMENTS OF ERROR
Our rules of appellate practice require that the appellant’s
initial brief include a section containing a “separate, concise
statement of each error a party contends was made by the trial
court, together with the issues pertaining to the assignments of
error.” Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014). Swicord’s
initial brief does not contain a separate section assigning error
to the district court.
In his reply brief, Swicord acknowledges the absence of
an assignments of error section, but points out that his initial
brief does contain section headings, each of which asserts
that the district court erred in various respects. He requests
that we consider those headings as assignments of error, but
we must decline. We have very recently explained that we
will not treat headings as a substitute for properly placed and
properly designated assignments of error. See Great Northern
Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, ___ N.W.2d
___ (2021).
STANDARD OF REVIEW
[1-4] Ordinarily, a judgment or final order rendered by a dis-
trict 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. Tran v.
State, 303 Neb. 1, 926 N.W.2d 641 (2019). When reviewing an
order of the 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 unreason-
able. Tran v. State, supra. However, where a brief of a party
fails to comply with the mandate of § 2-109(D)(1)(e), we may
proceed as though the party failed to file a brief or, alterna-
tively, may examine the proceedings for plain error. See Estate
of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915
N.W.2d 427 (2018). Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43would result in damage to the integrity, reputation, or fairness
of the judicial process. Id.ANALYSIS
In his reply brief and again at oral argument, Swicord
argued that even under a plain error standard of review, we
should reverse the order of the district court upholding the
denial of Swicord’s application for reciprocity certification.
Swicord contends that the district court plainly erred because,
under Neb. Rev. Stat. § 29-3523 (Cum. Supp. 2018), he was
legally entitled to deny that he had been arrested; because his
responses in the Personal Character Affidavit did not justify
the denial of reciprocity certification; and because the Council
exceeded its authority by issuing a written order commenting
on his honesty and trustworthiness. We take up these argu-
ments below, but, as we will explain, find no plain error.
§ 29-3523.
There is no dispute that Swicord’s answer to the arrest ques-
tion in the Personal Character Affidavit was factually inac-
curate. Swicord asserted he had not ever been “cited, arrested,
charged, or convicted for a violation of any law” (emphasis
omitted), when, as he now acknowledges, he had previously
been arrested for alleged battery. Swicord contends, however,
that even if his response was factually inaccurate, § 29-3523
legally entitled him to respond as he did.
Swicord points to two subsections of § 29-3523 in support
of his argument. The first, § 29-3523(3)(a), generally provides
that when “no charges are filed as a result of the determination
of the prosecuting attorney,” arrest records are to be removed
from the public record “after one year from the date of arrest.”
Swicord claims that because prosecutors in Georgia declined to
charge him following his arrest, he was entitled to deny that he
was arrested.
Swicord claims that § 29-3523(8) also requires that his
assertion he had never been arrested be treated as truthful.
It provides:
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43In any application for employment, bonding, license,
education, or other right or privilege, any appearance as
a witness, or any other public inquiry, a person cannot
be questioned with respect to any offense for which the
record is sealed. If any inquiry is made in violation of
this subsection, the person may respond as if the offense
never occurred.
The district court held that § 29-3523 did not give Swicord
a right to deny he had previously been arrested. It reasoned
that § 29-3523(3) only addresses Nebraska criminal records. It
also noted that even if § 29-3523(3) applied to Swicord’s arrest
records in Georgia, § 29-3523(1)(c) provides an exception.
That subsection allows the dissemination of criminal history
record information if “the subject of the record” has made a
“notarized request for the release of such record.” The dis-
trict court observed that Swicord executed a notarized release
authorizing NLETC to obtain, among other things, any records
regarding arrests. We do not believe the district court commit-
ted plain error by concluding that § 29-3523(3) did not give
Swicord a right to deny his prior arrest.
As for § 29-3523(8), the district court concluded that because
there was no evidence that the record of Swicord’s Georgia
arrest was sealed, the statute did not apply. Again, we do not
believe the district court committed plain error, either by con-
cluding the statute applies only to sealed records or by finding
that there had been no showing that the records of Swicord’s
arrest were sealed.
Denial of Reciprocity Certification.
Swicord also contends that the district court plainly erred
by concluding that his responses on the Personal Character
Affidavit justified denial of reciprocity certification. We do
not understand Swicord to contend that it is improper for
NLETC to deny reciprocity certification when an applicant
has made deliberate misrepresentations in the application proc­
ess. Indeed, the relevant regulations appear to foreclose any
such argument. See 79 Neb. Admin. Code, ch. 8, § 005.04A2
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Cite as 309 Neb. 43(2005) (“[a]pplicants are under a duty to disclose any and all
information that may affect the applicant’s qualifications for
entrance into certification training. Any deliberate omissions,
falsification, and/or misrepresentations made on the applica-
tion or through the application process, including the back-
ground investigation, are grounds for denial of entrance into
a Training Academy, suspension from training, or termination
of training”). Rather, we understand Swicord to contend that
his responses on the Personal Character Affidavit that are at
issue here were not deliberate falsifications but, at most, hon-
est mistakes.
In support of his argument that he did not make any deliber-
ate omissions or misrepresentations, Swicord emphasizes his
testimony that he was advised by counsel he could deny his
prior arrest. He also points to his testimony that he believed
that the questions regarding past or present investigations of
a professional license did not cover the investigation of his
Georgia law enforcement certificate.
Swicord cannot show plain error, however, merely by point-
ing to his own testimony. Even under our ordinary standard
of review for judicial review actions under the Administrative
Procedure Act, we will not substitute our factual findings for
those of the district court where competent evidence supports
the district court’s findings. See Tran v. State, 303 Neb. 1,
926 N.W.2d 641 (2019). We will not impose a less deferential
standard for factual findings on plain error review. See, e.g.,
U.S. v. Johnson, 874 F.3d 990, 1003 n.3 (7th Cir. 2017) (“plain
error standard is more deferential to the district court than clear
error analysis”). Accordingly, in order to find plain error, we
would have to conclude that, at a minimum, the district court’s
conclusion that Swicord made knowing omissions and misrep-
resentations was not supported by competent evidence. We do
not believe that is the case.
Although Swicord testified that he believed his responses
were accurate, the district court pointed to other evidence in
the record in the course of concluding otherwise. It agreed
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43with the Council’s determination that Swicord’s explanations
for not disclosing his arrest were not credible, noting that
Swicord offered different reasons for the denial in his letter to
Urbanek than he offered at the administrative hearing. The dis-
trict court also relied on evidence in the record when it found
that Swicord made knowing misrepresentations in response
to the questions regarding investigations of a professional
license. It observed that there was evidence in the record that,
in Georgia, a law enforcement certificate was, at least some
of the time, referred to as a “license.” It also pointed out that
a question in the Personal Character Affidavit form referred
to “‘a law enforcement certification or any other profes-
sional license/certificate’” (emphasis supplied), and concluded
that this suggested that the terms were used interchangeably.
Finally, it emphasized that the Personal Character Affidavit
specifically instructed that if the applicant had any doubts
about whether disclosure was required, the applicant should
err on the side of disclosure.
Because we find that competent evidence supported the
district court’s determination that Swicord made knowing
misrepresentations or omissions in the Personal Character
Affidavit, we find that the district court did not plainly err by
upholding the denial of Swicord’s application for reciprocity
certification.
Council’s Authority.
Finally, Swicord argues that the Council exceeded its author-
ity by commenting on Swicord’s honesty and trustworthiness
in its written decision. Swicord claims that the district court
plainly erred by allowing the written decision to stand.
It is not clear to us whether Swicord contends that the
Council lacked authority to issue any written decision or
whether he merely contends that it lacked authority to com-
ment on Swicord’s honesty and trustworthiness. In either case,
we discern no plain error. The written decision to which
Swicord objects contained the Council’s findings of fact and
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SWICORD v. POLICE STDS. ADV. COUNCIL
Cite as 309 Neb. 43conclusions of law. The Administrative Procedure Act requires
that decisions by an agency in a contested case be accom-
panied by findings of fact and conclusions of law. See Neb.
Rev. Stat. § 84-915 (Reissue 2014). Further, the applicable
regulations list as a qualification for reciprocity certification
that the applicant “possess good character as determined by
a thorough background investigation.” 79 Neb. Admin. Code,
ch. 8, § 005.01G (2005). Those same regulations provide that
a person of good character “[c]an be characterized as being
honest, truthful and trustworthy.” Id. at § 005.02A5. Swicord’s
honesty and trustworthiness were thus relevant to the deci-
sion to approve reciprocity certification. We see no basis to
conclude that the district court plainly erred by allowing the
Council’s written decision to stand.
CONCLUSION
Because we find that the district court did not commit plain
error in affirming the decision of the Council, we affirm.
Affirmed.