Busch v. Civil Service Commission ( 2014 )

Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 789
Cite as 21 Neb. App. 789Sean Busch, appellant and cross-appellee,
v. Civil Service Commission for the
City of Alliance, Nebraska,
appellee and cross-appellant.
___ N.W.2d ___
Filed February 25, 2014. No. A-13-391.
1. Administrative Law: Appeal and Error. In reviewing an administrative
agency decision on a petition in error, both the district court and the appel-
late court review the decision to determine whether the agency acted within its
jurisdiction and whether sufficient, relevant evidence supports the decision of
the agency.
2. Administrative Law: Evidence. The evidence is sufficient, as a matter of law, if
an administrative tribunal could reasonably find the facts as it did on the basis of
the testimony and exhibits contained in the record before it.
3. Administrative Law: Appeal and Error. The reviewing court in an error pro-
ceeding is restricted to the record before the administrative agency and does not
reweigh evidence or make independent findings of fact.
4. Administrative Law: Words and Phrases. Agency action is arbitrary and
capricious if it is taken in disregard of the facts or circumstances of the case,
without some basis which would lead a reasonable and honest person to the same
conclusion.
5. 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.
6. 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.
7. Civil Service: Administrative Law: Termination of Employment. Neb. Rev.
Stat. § 19-1832(3) (Reissue 2012) permits an employee to be discharged for
physical unfitness for the position which the employee holds.
8. Civil Service: Administrative Law: Termination of Employment: Municipal
Corporations: Ordinances. The Civil Service Act, Neb. Rev. Stat. § 19-1825et seq. (Reissue 2012), provides that no person in the civil service shall be dis-
charged except for cause and then only upon a written accusation. The governing
body of a municipality shall establish by ordinance procedures for acting upon
such written accusations.
9. Administrative Law. Agency action taken in disregard of the agency’s own sub-
stantive rules is arbitrary and capricious.
10. Civil Service: Administrative Law: Termination of Employment: Time. Neb.
Rev. Stat. § 19-1833 (Reissue 2012) provides that a written accusation is required
and that after discharge, the employee may, within 10 days after being notified
of the discharge, file with the commission a written demand for an investigation,
followed by a hearing.
Decisions of the Nebraska Court of Appeals
790 21 NEBRASKA APPELLATE REPORTS
11. Constitutional Law: Public Officers and Employees: Termination of
Employment: Due Process. When a public employer deprives an employee of
a property interest in continued employment, constitutional due process requires
that the deprivation be preceded by (1) oral or written notice of the charges,
(2) an explanation of the employer’s evidence, and (3) an opportunity for the
employee to present his or her side of the story.
12. Termination of Employment: Due Process. Deficiencies in due process during
pretermination proceedings may be cured if the employee is provided adequate
posttermination due process.
13. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
14. Civil Service: Administrative Law: Records: Appeal and Error. Neb. Rev.
Stat. § 19-1833(5) (Reissue 2012) requires that on appeal from the Civil Service
Commission to the district court, a certified transcript of the record and all papers
on file in the office of the commission affecting or relating to the judgment or
order on appeal be provided.
15. Civil Service: Administrative Law: Legislature: Attorney Fees: Costs: Appeal
and Error. In enacting the Civil Service Act, the Legislature did not authorize
the award of fees or costs except when the appealing party was the govern-
ing body.
Appeal from the District Court for Box Butte County:
Randall L. Lippstreu, Judge. Affirmed.
Andrew W. Snyder, of Chaloupka, Holyoke, Snyder,
Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.
Howard P. Olsen, Jr., and John F. Simmons, of Simmons
Olsen Law Firm, P.C., for appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
The city manager of the City of Alliance (City) terminated
the employment of Sean Busch, a police sergeant, following
Busch’s long-term absence from his job due to a non-work-
related injury. The civil service commission (Commission) for
the City upheld the termination, and Busch sought review by
the district court for Box Butte County, which affirmed the
Commission’s decision. Busch appeals the termination, and
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 791
Cite as 21 Neb. App. 789the Commission cross-appeals the denial of its motion to tax
certain costs to Busch. We affirm.
FACTUAL BACKGROUND
Busch began his employment as a patrol officer in January
1999. His employment record has largely been exemplary, and
he was promoted to sergeant in 2008. His job duties required
him to investigate crimes, make patrol stops, chase down sus-
pects, operate heavy equipment, and shoot a weapon. There
is a minimum lifting requirement of 100 pounds, and it takes
51⁄2 pounds of force to pull the trigger on the Glock semi­
automatic weapon currently used by employees of the police
department.
Busch began experiencing pain in his right hand in March
2012. It was initially believed he had fractured his hand,
and on March 20, he was restricted to lifting no more than
2 pounds. Further investigation resulted in a diagnosis of a
cyst in Busch’s right wrist requiring surgery. A “Return to
Work” form dated April 23, 2012, indicated that the 2-pound
lifting restriction was still in effect until surgery scheduled
for May 2, after which Busch would be unable to work for 2
to 6 weeks. By June, physicians permitted Busch to return to
work with a restriction of lifting or carrying no more than 5
pounds. Busch requested light duty, and John Kiss, the City’s
police chief, recommended a light-duty position at full pay,
but J.D. Cox, the City’s manager, did not approve. Instead,
Cox offered a light-duty office position in a different depart-
ment to Busch at about half his normal pay, an offer that
Busch declined.
Busch had exhausted his paid leave time in early May 2012
and was granted an additional 12 weeks’ leave pursuant to
the Family and Medical Leave Act of 1993, which leave was
scheduled to expire on August 5, 2012. On July 24, Busch
submitted a written request to Cox and Kiss for a minimum of
2 months’ additional unpaid leave of absence. The following
day, July 25, Busch obtained a release from his physician to
return to work on August 1 with no restrictions. It is undis-
puted that Busch did not immediately inform Cox or Kiss of
Decisions of the Nebraska Court of Appeals
792 21 NEBRASKA APPELLATE REPORTS
the July 25 appointment and the attendant release to return
to work.
Unaware of Busch’s medical appointment, Kiss submitted
a memorandum to Cox on July 25, 2012, recommending that
Busch’s latest request for extended leave be denied. Kiss cited
hardships to the police department caused by Busch’s extended
absence, noting that the department had been without a super-
visor since March 2012 and that other officers had been per-
forming his duties, resulting in overtime pay and “comp time.”
Kiss had a conversation with Busch on August 1 in which
Busch told him that his next medical appointment was the fol-
lowing week, on August 8, and did not inform Kiss that, in
fact, he had already had an appointment on July 25 and knew
he had been released to return to work on August 1.
Meanwhile, having received no response to his request for
additional unpaid leave, Busch visited Cox unannounced at
Cox’s office on August 3, 2012, in an agitated state, demand-
ing to know if Cox planned to fire him. Cox told Busch that he
planned to extend his leave until August 8, which he believed
to be Busch’s next medical appointment. Busch then admitted
to Cox that he had actually seen his doctor on July 25—but
he told Cox that his work restrictions remained in place.
Surprised to learn that the appointment had already taken
place, Cox inquired about the “Return to Work” form that
was typically provided to the City following Busch’s medical
appointments. Busch responded that “it hadn’t made its way
over [there] yet,” despite the fact that Busch was in possession
of the form. Cox testified that he lost confidence in Busch fol-
lowing Busch’s admission that his medical appointment had
already taken place and Cox’s subsequent discovery that no
departments of the City had received a copy of the “Return
to Work” form such as they had routinely received following
past appointments.
Cox stated that this loss of confidence in Busch prompted
him to request that Busch sign a release of his medical records
so that Cox could determine why additional leave was needed.
Busch refused to permit access to his medical records. The
record contains a copy of Cox’s August 3, 2012, e-mail to
Busch sent after the impromptu meeting recounted above:
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 793
Cite as 21 Neb. App. 789Dear [Busch],
You have asked for 30 days of extended leave pursuant
[to] “7.04 of City of Alliance Personnel Manual - Leave
without Pay outside of [Family and Medical Leave Act]
Provisions.” In order to grant that request, I must show
good cause and that the request is in the best interest of
the City.
You have been off almost five months as the result of
surgery to remove a cyst in your hand. I would be remiss
in granting your request without an opportunity to review
your medical records in hopes of understanding what has
happened with your hand necessitating the expiration of
all leave afforded you by the City . . . .
I am disappointed that you have declined our request
for a release of medical records.
I would like to discuss with you at 8:00 am Monday
morning the status of your employment.
Feel free to bring a representative with you.
At the subsequent meeting on Monday, August 6, Busch again
declined Cox’s request for access to his medical records. Cox
asked for Busch’s resignation, and Busch declined. The meet-
ing ended with Cox’s stating that he would “get back with”
Busch about his employment status. Cox called Busch later
that day to inform him that the City would pursue termination
of his employment upon the filing of the required documents
with the secretary of the Commission.
PROCEDURAL BACKGROUND
On August 10, 2012, Cox sent a written “Accusation” to the
secretary of the Commission in which he extensively detailed
the history of Busch’s injury and the resulting work restric-
tions and time off work. The “Accusation” concluded that the
needs of the organization and the department took primary
precedence; that Busch had expired all leave banks; that Busch
elected not to take a temporary alternate position; that Busch
failed to produce any documentation to show that he could
fulfill the essential functions of his job within a reasonable
amount of time; and that after all leave banks were expired,
Busch refused to grant the release of his medical records upon
Decisions of the Nebraska Court of Appeals
794 21 NEBRASKA APPELLATE REPORTS
his request for an extraordinary further extension of leave.
On the same date, the Commission forwarded a copy of the
“Accusation” to Busch, along with a letter informing him of his
right to appeal within 10 days and of the requirement that he
then provide to the Commission and to Cox a written demand
for an investigation and public hearing. Busch complied, and
the public hearing was held on October 1 and 11.
The secretary of the Commission, who was a City employee,
testified that she was present at the August 3 and 6, 2012,
meetings between Cox and Busch. She stated that Busch had
not been forthcoming about his July 25 medical appoint-
ment and that she was shocked when he admitted that he had
seen the doctor on July 25. She testified that at the August 6
meeting, Busch wanted an answer as to whether his employ-
ment was to be terminated, but that Cox said he needed time
to consider the matter. The secretary stated that Busch was
asked to relate why his employment should not be terminated
and that Busch replied that he was tired of “the game play-
ing” and stated that if he had been placed on light duty, he
would not have had to use all of his leave banks. She testified
that Busch told Cox that it would be at least another month
before he could return to fulfill the essential requirements of
his job.
The secretary claimed that the medical release Busch was
asked to sign would have been limited to issues related to
his wrist, but she admitted that the document present in the
room at the August meetings contained no restrictions on the
information that could be requested. She acknowledged that
the City had no policy requiring the release of medical records
and that Busch was never told that refusal to sign the medi-
cal release would be held against him. The secretary further
conceded that she was unaware of any meeting that took place
after the August 10, 2012, “Accusation” that gave Busch the
opportunity to present his version of the circumstances that
resulted in the filing of the “Accusation.” She stated that she
did not receive from Kiss a written recommendation following
the “Accusation” and did not receive from Cox a copy of a
decision made following Kiss’ written recommendation.
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 795
Cite as 21 Neb. App. 789Kiss acknowledged that he did not receive a copy of the
August 10, 2012, “Accusation” and therefore did not conduct
an investigation of it. He stated that after August 10, he had
never met with Busch to explain the “Accusation,” given
Busch an opportunity to present his version of the facts, or
recommended in writing to Cox that Busch’s actions warranted
“removal.” He stated that he did, however, review draft copies
of the “Accusation.”
In an order dated October 15, 2012, the Commission affirmed
the actions of Cox in terminating Busch’s employment with the
City. The Commission found that Cox’s conclusions, set forth
in the “Accusation” of August 10, were supported by compe-
tent evidence, were made in good faith for cause, and were not
based upon any political or religious reasons. The Commission
stated that Cox’s conclusion and decision were based on com-
petent evidence that existed prior to August 10 and were prop-
erly confirmed by evidence presented at the appeal hearings
after August 10. Busch timely filed his petition in error with
the district court.
In its April 3, 2013, memorandum order, the district court
recounted the facts of Busch’s case at length, noting that there
was not much factual dispute in the case. The court mistak-
enly stated that the decision of the Commission was not in
its record but that it was nonetheless able to address Busch’s
assigned errors. The district court affirmed the Commission’s
decision affirming Busch’s discharge from his employment.
Later realizing its error in overlooking the Commission’s
written decision, the court entered a supplemental order on
April 5 in which it stated that it had now read the decision
and reaffirmed its conclusion to affirm the Commission’s
decision.
On appeal to the district court, the Commission sought
to recover $2,588.55, the cost of transcribing and certifying
the record of the proceedings. Finding no statutory authority
for the assessments of these costs, the district court denied
the motion.
Busch timely appealed from the district court’s order affirm-
ing the Commission’s decision. The Commission properly
Decisions of the Nebraska Court of Appeals
796 21 NEBRASKA APPELLATE REPORTS
cross-appealed under Neb. Ct. R. App. P. § 2-109(D)(4) (rev.
2012) with regard to the district court’s denial of its motion
for costs.
ASSIGNMENTS OF ERROR
Busch contends, restated and summarized, that the district
court erred in applying an incorrect standard of review to the
Commission’s decision, in concluding that the Commission’s
decision was made in good faith for cause, and in failing to
find that the Commission acted in an arbitrary and capricious
manner by applying the technical rules of evidence.
In its cross-appeal, the Commission assigns error to the
district court’s denial of its motion to recover the cost of tran-
scribing and certifying the verbatim record of the proceedings
before it.
STANDARD OF REVIEW
[1-4] 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. Fleming v. Civil
Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792 N.W.2d
871 (2011). The evidence is sufficient, as a matter of law, if
an administrative tribunal could reasonably find the facts as it
did on the basis of the testimony and exhibits contained in the
record before it. Id. 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. Id. Finally, agency action is arbitrary and capricious if it
is taken in disregard of the facts or circumstances of the case,
without some basis which would lead a reasonable and honest
person to the same conclusion. Id.[5,6] The determination of whether the procedures afforded
an individual comport with constitutional requirements for
procedural due process presents a question of law. Id. On a
question of law, an appellate court is obligated to reach a con-
clusion independent of the determination reached by the court
below. Id.Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 797
Cite as 21 Neb. App. 789ANALYSIS
Did District Court Apply Correct
Standard of Review?
Busch first asserts that the district court applied an incorrect
standard of review when it reviewed the Commission’s deci-
sion on Busch’s petition in error. Busch points to the district
court’s initial mistaken belief that the Commission’s order was
not in the record.
With regard to appeals from a civil service commission,
Neb. Rev. Stat. § 19-1833(5) (Reissue 2012) sets forth the
scope of the district court’s review:
The district court shall proceed to hear and determine
such appeal in a summary manner. The hearing shall be
confined to the determination of whether or not the judg-
ment or order of removal, discharge, demotion, or suspen-
sion made by the commission was made in good faith for
cause which shall mean that the action of the commission
was based upon a preponderance of the evidence, was not
arbitrary or capricious, and was not made for political or
religious reasons.
In Fleming v. Civil Serv. Comm. of Douglas Cty., 280
Neb. 1014, 1015, 792 N.W.2d 871, 875 (2011), the Nebraska
Supreme Court set forth the standard of review applicable to
a district court reviewing a decision by a civil service com-
mission: “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.”
The district court’s order sets forth the language of both
§ 19-1833(5) and Fleming, supra. Busch contends, however,
that because the district court did not review the Commission’s
decision prior to issuing its first order, it could not have
applied the proper standard of review. Busch is correct that
a district court, sitting as the reviewing court in an error pro-
ceeding, does not make independent findings of fact. Due
to the district court’s mistaken belief that it did not have the
Commission’s report, it made findings of fact, pointing out that
the facts were largely undisputed. The district court corrected
Decisions of the Nebraska Court of Appeals
798 21 NEBRASKA APPELLATE REPORTS
its mistake, however, when it issued its supplemental order. It
specifically reaffirmed its conclusion that the Commission’s
decision should be affirmed. It is the supplemental order that is
the final, appealable order.
Moreover, in an appeal of an agency decision to this court,
we review the agency decision to determine whether the agency
acted within its jurisdiction and whether sufficient, relevant
evidence supports the decision of the agency. Upon our review
of the Commission’s decision, we find that it was within its
jurisdiction and that sufficient, relevant evidence supported its
decision, as more fully set forth below.
Was Commission’s Decision
Arbitrary and Capricious?
[7] The Civil Service Act, Neb. Rev. Stat. § 19-1825 et seq.
(Reissue 2012), regulates the hiring, suspension, and discharge
of certain employees of the fire and police departments in
the cities where it is applicable. It prohibits the suspension or
discharge of employees for political or religious reasons, but
provides that employees may be suspended or discharged for
cause for any of the reasons which are listed in § 19-1832.
Section 19-1832(3) permits an employee to be discharged for
“physical unfitness for the position which the employee holds.”
Neb. Rev. Stat. § 19-646 (Reissue 2012) vests city managers
with authority to make employment decisions subject to the
civil service provisions of the Civil Service Act.
[8] The Civil Service Act further provides that no person in
the civil service shall be discharged except for cause and then
only upon a written accusation, and that the governing body of
a municipality shall establish by ordinance procedures for act-
ing upon such written accusations. See § 19-1833(1) and (2).
The City established such procedures in ordinance No. 1855,
art. III, § 5, passed October 24, 1985, which are summarized
as follows, in relevant part: A written accusation must be
filed with the secretary of the Commission, who shall deliver
a copy within 72 hours to the police chief, the city manager,
and the employee. Prior to the decision of the city manager,
the police chief shall, within a reasonable time, investigate the
alleged misconduct, charges, or grounds against the employee
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 799
Cite as 21 Neb. App. 789and provide the employee an opportunity to present his or
her version of the circumstances. Upon completion of the
investigation, the police chief shall recommend, in writing,
whether he or she agrees that the alleged misconduct, charges,
or grounds warrant removal or discharge or a lesser penalty.
Within 5 days of the police chief’s written recommendation,
the city manager can accept or reject the recommendation and
then file his or her decision within 4 calendar days with the
secretary of the Commission, who will then file a copy with
the police chief and the employee. The employee then has 10
days to file a written demand for an investigation and pub-
lic hearing.
[9] Busch contends that the ordinance constitutes a substan-
tive rule and that the failure to strictly follow it results in a
decision that is arbitrary and capricious. Busch is correct that
agency action taken in disregard of the agency’s own substan-
tive rules is arbitrary and capricious. See Middle Niobrara
NRD v. Department of Nat. Resources, 281 Neb. 634, 799
N.W.2d 305 (2011). However, the ordinance upon which Busch
relies is procedural, not substantive. Section 19-1833(1) and
(2) authorizes the governing body to establish procedures for
acting upon an accusation. The City’s ordinance No. 1855, art.
III, § 5(c), established those procedures. Therefore, the failure
to follow the steps set forth in the ordinance does not necessar-
ily result in an arbitrary and capricious decision.
Our decision is supported by Sailors v. City of Falls City,
190 Neb. 103, 206 N.W.2d 566 (1973), in which the Nebraska
Supreme Court held that the failure of a civil service com-
mission of a city to promulgate any procedural termination
rules and regulations, in violation of statute, did not negate an
employee’s termination. In Sailors, the court stated that despite
the absence of statutorily mandated rules and regulations, the
employee was not prejudiced, because his employment was ter-
minated “in accordance with the procedures spelled out in the
statutes.” 190 Neb. at 109-10, 206 N.W.2d at 570.
[10] We likewise determine that although several of the
procedural steps outlined in the ordinance were omitted in
the course of Busch’s case, his employment was terminated
in accordance with the procedures spelled out in the statute.
Decisions of the Nebraska Court of Appeals
800 21 NEBRASKA APPELLATE REPORTS
Section 19-1833 provides that a written accusation is required
and that after discharge, the employee may, within 10 days
after being notified of the discharge, file with the commission
a written demand for an investigation, followed by a hearing.
Cox filed the “Accusation” in this case on August 10, 2012. On
August 17, Busch filed a demand for an investigation, which
was conducted. The Commission held a subsequent hearing,
as required by statute. As in Sailors, we find no prejudice in
the failure to strictly comply with the procedures set forth in
the ordinance. We further determine that Busch was provided
adequate due process in his termination proceeding.
[11] In Cleveland Board of Education v. Loudermill, 470
U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), the U.S.
Supreme Court held that when a public employer deprives
an employee of a property interest in continued employment,
constitutional due process requires that the deprivation be
preceded by (1) oral or written notice of the charges, (2) an
explanation of the employer’s evidence, and (3) an opportunity
for the employee to present his or her side of the story. See
Hickey v. Civil Serv. Comm. of Douglas Cty., 274 Neb. 554,
741 N.W.2d 649 (2007).
[12] In Scott v. County of Richardson, 280 Neb. 694, 789
N.W.2d 44 (2010), the Nebraska Supreme Court held that
notwithstanding a person’s due process rights set forth above,
deficiencies in due process during pretermination proceed-
ings may be cured if the employee is provided adequate post-
termination due process. In Scott, the employee was given
neither adequate notice of the charges, an explanation of his
employer’s evidence, nor an opportunity to explain his side
of the story before his employment was terminated. After the
termination, the employee was given a hearing before a county
grievance board. The Nebraska Supreme Court pointed out
that prior to the termination, the employee had met with his
supervisor and was advised of the reasons why he was being
placed on paid suspension. He also was given an opportunity
to tell his side of the story. Following the termination, he
was given an extensive hearing in which he was allowed to
present testimony. The Nebraska Supreme Court reversed the
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 801
Cite as 21 Neb. App. 789district court’s order reinstating the employee, finding that his
posttermination proceeding cured the pretermination due proc­
ess violations.
Likewise, in the present action, although the procedures
outlined in the ordinance were not followed, Busch was well
aware of the reason for his termination as a police officer.
The meetings with Cox on August 3 and 6, 2012, involved
extensive conversations about Busch’s employment status as
a result of his extended leave, including his existing restric-
tions and Cox’s request for his medical records. By the end
of the August 6 meeting, Cox had asked for Busch’s resigna-
tion. The secretary of the Commission testified that Busch
was asked at one of the August meetings why his employment
should not be terminated and that he answered the question.
Following the termination, he was provided a full hearing
before the Commission which lasted 2 days. We determine
that Cox’s failure to strictly follow the procedural rules set
forth in the ordinance does not necessitate a finding that
the decision to terminate Busch’s employment was arbitrary
and capricious.
Was Commission’s Decision Made
in Good Faith for Cause?
Busch contends that the Commission’s order was not based
on competent evidence. He points to his history of good per-
formance evaluations which were recently downgraded as a
result of his absence from work, according to Kiss. Busch
asserts that this downgrade was evidence of bad faith. He
complains that neither Cox nor Kiss conducted any investiga-
tion as to whether he could perform the essential functions of
his job, noting that he is ambidextrous and that his restriction
was limited to his right hand. We find these arguments unper-
suasive. There was no evidence that the recent downgrading
of Busch’s performance evaluations had any bearing on his
termination of employment, while there was significant evi-
dence that Cox and Kiss were told only that Busch required
additional leave from his job. Notwithstanding his claimed
proficiency with both hands, it was clear that the significant
Decisions of the Nebraska Court of Appeals
802 21 NEBRASKA APPELLATE REPORTS
restrictions on Busch left him largely unable to perform his
regular job duties in the eyes of Cox and Kiss in the early days
of August 2012.
Busch additionally argues that his termination of employ-
ment was based, in part, on his refusal to provide his medical
records to Cox, someone with no medical training or ability to
properly review and analyze them. However, there is adequate
evidence to show that his employment was terminated primar-
ily because he had requested additional leave time following
an already extended period of leave and that he did not inform
Cox or Kiss that he was then fit to carry out the job duties as
a police sergeant.
Busch contends that the Commission’s order was not rea-
sonably necessary for effectual and beneficial public service,
an argument related to Cox’s denial of Busch’s request for
light-duty work as a police officer. The Commission found that
Cox had denied Busch’s request based upon his discretionary
authority as the City’s manager. Although Busch notes that
other employees had been granted such privileges, the record
contains no indication that the City was required to permit
Busch to return to work at light duty.
[13] Busch directs us to provisions in article II, § 10(f), of
the City’s ordinance No. 1855, which state that the Commission
is not bound by the technical rules of evidence at its hearings.
He contends that the Commission acted in an arbitrary and
capricious manner by applying the technical rules of evidence
at the October 2012 hearing. Although Busch claims that
objections were improperly sustained to some of his prof-
fered evidence, he does not guide us to specific instances of
such erroneously suppressed evidence. To be considered by
this court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error. Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
Busch further complains of the admission of other evidence,
most notably of an exhibit which contains a copy of the July
25 “Return to Work” form that released him to return to work
on August 1 without restrictions. Busch asserts that this evi-
dence should not have been considered by the Commission,
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 803
Cite as 21 Neb. App. 789because it was not known to Cox when he made his decision
to terminate Busch’s employment. Indeed, the record reflects
that when he decided to terminate Busch’s employment, Cox
was unaware that Busch had actually been released to return
to work without restrictions. Nonetheless, Busch had, by that
time, admitted to Cox that he had had a medical appointment
on July 25, an admission that very much surprised Cox and
resulted in a loss of trust in Busch. It was this act of omis-
sion by Busch that set in motion the final chain of events,
starting with Cox’s request for additional medical records
and ending with Cox’s filing the August 10 “Accusation.”
Notwithstanding the admission of evidence related to the
release permitting Busch to return to work August 1, there
remained sufficient evidence for the Commission to uphold
Busch’s termination of employment on the basis that he was
physically unfit to perform his job. This assigned error is
without merit.
CROSS-APPEAL
In a cross-appeal, the Commission asserts that the district
court erred in failing to tax to Busch the costs of preparing
the transcript of the proceedings before the Commission. In
its order, the district court noted that on the same date as
Busch filed his petition in error, he filed a request for the
Commission to prepare a verbatim record of the hearing before
the Commission and file it with the district court. The court
cited § 19-1833(5), which governs an appeal to that court from
an order of a civil service commission, including the require-
ment for the appealing party to demand that “a certified tran-
script of the record and all papers, on file in the office of the
commission affecting or relating to such judgment or order,
be filed by the commission with such court.” That subsection
further provides:
If such appeal is taken by the governing body and
the district court affirms the decision of the commis-
sion, the municipality shall pay to the employee court
costs and reasonable attorney’s fees incurred as a result
of such appeal and as approved by the district court.
Decisions of the Nebraska Court of Appeals
804 21 NEBRASKA APPELLATE REPORTS
If such appeal is taken by the governing body and the
district court does not affirm the decision of the com-
mission, the court may award court costs and reason-
able attorney’s fees to the employee as approved by the
district court.
The district court found that § 19-1833(5) presupposes the
court would have the evidence from the hearings for review
and that for the statute to make sense, the documents contem-
plated in the phrase “transcript of the record” in subsection (5)
would include a verbatim transcription of the record, including
witness testimony and exhibits. The court further noted that
the statute specifically authorizes the awarding of fees and
costs when the appeal is taken by the “governing body,” i.e.,
the Commission, but that the statute did not extend that author-
ity when the appeal is taken by the “accused,” i.e., Busch.
Finding no statutory authority to award fees and costs in this
case, the court denied the Commission’s request.
On appeal to this court, the Commission attempts to distin-
guish between a transcript and a bill of exceptions for purposes
of § 19-1833(5), arguing that it is not required to pay for the
costs of the transcript of witness testimony and the like. The
Commission further contends that payment for the bill of
exceptions in this case is governed not by § 19-1833(5), but,
rather, by Neb. Rev. Stat. § 25-1140.08 (Reissue 2008), which
pertains to cases where specific provision is not made by law
for a bill of exceptions in all appeals and petitions in error.
We disagree.
[14,15] Section 19-1833(5) clearly governs appeals to the
district court from an order of a civil service commission and
the production of the record before the commission. The stat-
ute requires a certified transcript of the record “and all papers,
on file in the office of the commission affecting or relating to
such judgment or order.” In addition, as pointed out by the dis-
trict court, the Legislature did not authorize the award of fees
or costs except when the appealing party was the “governing
body.” The only meaningful reading of § 19-1833(5) is that
it required the Commission to provide to the district court a
verbatim transcription of the proceedings before it on October
1 and 11, 2012, including all witness testimony and exhibits
Decisions of the Nebraska Court of Appeals
BUSCH v. CIVIL SERVICE COMMISSION 805
Cite as 21 Neb. App. 789offered at the hearing. There is no means of assessing related
costs to Busch. The Commission’s assigned error on cross-
appeal is without merit.
CONCLUSION
We conclude that none of Busch’s assignments of error
have merit. The record reflects that the Commission acted
within its jurisdiction in affirming Busch’s termination from
his job, and its decision was supported by sufficient, relevant
evidence. We find that the Commission’s cross-appeal is also
without merit.
Affirmed.