Graham v. City of Lincoln Personnel Board ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GRAHAM V. CITY OF LINCOLN PERSONNEL BOARD
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
TRACY GRAHAM, APPELLANT,
V.
CITY OF LINCOLN PERSONNEL BOARD AND THE CITY OF LINCOLN, NEBRASKA,
A MUNICIPAL CORPORATION, APPELLEES.
Filed January 5, 2016. No. A-14-990.
Appeal from the District Court for Lancaster County: JODI NELSON, Judge. Affirmed.
Sean J. Brennan, of Brennan & Nielsen Law Offices, P.C., for appellant.
Tonya Peters, Assistant Lincoln City Attorney, for appellees.
MOORE, Chief Judge, and IRWIN and INBODY, Judges.
MOORE, Chief Judge.
INTRODUCTION
Tracy Graham appeals from an order of the district court for Lancaster County affirming
the decision of the City of Lincoln Personnel Board (Board) to uphold the termination of Graham’s
employment with the Lincoln Police Department (LPD). Because we find no error by the district
court, we affirm.
FACTUAL BACKGROUND
Graham served as a Patrol Sergeant with the LPD prior to her termination. While serving
in this position, Graham responded to a call on January 26, 2013 at approximately 6:20 p.m. from
Officer Michael Wambold regarding his involvement while on duty in a two-car accident where
his LPD cruiser rear-ended another vehicle that was stopped at a stop sign.
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Upon arrival at the scene, Graham observed Wambold and the other driver, Jared Betten,
seated in their respective vehicles. The front end of Wambold’s cruiser was in contact with the rear
end of Betten’s pickup truck. When Graham initially spoke with Betten, she noticed a faint odor
of alcohol coming from him, but did not observe any signs of impairment. Betten admitted to
having consumed a few drinks earlier in the day.
There is a factual dispute regarding the conversation that occurred between Graham and
Wambold following Graham’s arrival on the scene. Graham testified that she asked Wambold if
he had smelled alcohol on Betten and Graham’s recollection was that Wambold said no. Wambold
did not testify at the Board hearing, however, during his interview with the Internal Affairs
investigator, Mark Domangue, Wambold indicated that he told Graham he did smell alcohol on
Betten. Wambold also told Domangue that he suggested that Graham call another officer to do a
DUI investigation on Betten since Graham had not done a DUI investigation in a while and felt
that she was out of practice. Graham denied that Wambold suggested she contact another officer
to conduct a DUI investigation, although Graham felt it was necessary to address the alcohol issue
at the scene and admitted that she had not done a DUI investigation in a long time and probably
was not proficient at doing it.
Graham asked Betten to get out of his truck and performed a horizontal gaze nystagmus
(HGN) field sobriety test. Graham testified that Betten passed this test. However, Wambold
indicated during the investigation that he believed Betten failed the HGN test. Graham also
administered a preliminary breath test (PBT), however, she did not comply with the requirements
of administering the test. Specifically, Graham did not read Betten the required advisory form or
adhere to the 15-minute observation period required to make the PBT admissible as evidence
during a court hearing. The result of Betten’s PBT was .086, above the legal limit of .08. No other
field sobriety tests were administered. Rather than conducting a full DUI investigation, Graham
allowed Betten to be taken home by one of his roommates who had not been drinking.
Upon returning to police headquarters, Graham contacted the duty commander, Captain
Danny Reitan, to inform him of the accident, including the fact that Betten was over the legal limit.
Reitan directed Graham to inform her supervisor, Captain Marty Fehringer, who was off duty at
the time of the accident. Graham sent Fehringer a text message, telling him Wambold had been in
an accident; he was wearing his seatbelt at the time; nobody was injured; and the other driver was
a “little intoxicated.” Importantly, Graham did not inform either Reitan or Fehringer of her failure
to properly administer the PBT while investigating the accident.
LPD’s General Order No. 1930 requires officers to complete and submit a State of
Nebraska Motor Vehicle Accident Report (MVAR) by the end of his or her shift unless a
supervisor approves a late submission. Graham was required to complete a MVAR as part of her
investigation in order to comply with this General Order. Following the accident, Graham worked
until her shift ended at 12:47 a.m. She completed a property report regarding pictures of the
accident scene, but she did not complete the MVAR by the end of her shift. Graham testified that
completion of a MVAR takes approximately 20 minutes. There is no evidence in the record that
Graham requested or was granted permission to submit the MVAR late.
The next day, January 27, 2013, Graham became involved in two lengthy investigations
and worked five hours past her normal end time without completing the MVAR for Wambold’s
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accident. Graham worked another officer-involved accident on the 27th and completed the MVAR
and two additional case reports for that accident.
On January 28, 2013, Sergeant Santacroce approached Fehringer requesting the January
26 MVAR so that he could check for seatbelt usage in Wambold’s cruiser as required by
department policy. Fehringer then sent an e-mail to Graham, who was off work at the time,
requesting the MVAR. Graham arrived early to work on the 28th, completed the MVAR, turned it
in to Reitan, sent a copy to Santacroce, and put a copy in Fehringer’s box. Due to differing
schedules, Fehringer did not see the report until January 29.
There are two specific boxes on the MVAR Graham completed that are at issue in this case.
On the second page of the MVAR, the form requires the investigating officer to report if a driver’s
alcohol level was tested, and if it was, the form requires the investigating officer to record the BAC
level. In this alcohol testing box, Graham marked “n” for no alcohol testing for both drivers
involved in the accident and did not record the BAC level for Betten from the PBT. Also on the
second page of the MVAR, the form requires the investigating officer to report if alcohol or drugs
were suspected. In this box, Graham marked “l” for “neither drugs nor alcohol suspected” for both
Wambold and Betten.
On February 1, 2013, after reviewing Graham’s completed MVAR, Wambold contacted
Fehringer to discuss Wambold’s concerns with the information contained on the MVAR,
specifically that Graham did not mention the alcohol odor on Betten or the PBT result. Fehringer
had noticed these omissions as well, and following this discussion with Wambold, Fehringer sent
an e-mail to Lincoln Chief of Police James Peschong and Assistant Chief Brian Jackson outlining
his concerns with the information contained in the MVAR.
At the direction of Peschong and Jackson, Fehringer met with Graham on February 4, 2013
to discuss the MVAR and address his concerns with the information contained in the report. During
this meeting, Graham explained she had not performed all of the field sobriety tests and did not
feel an affirmative response to the question regarding alcohol testing was appropriate. When
Fehringer asked her why she indicated that alcohol was not suspected of either driver, Graham
said “she didn’t have any excuse on why it was marked that way.” Graham later testified that she
told Fehringer she filled out the MVAR “based on [her] perception at the time of what [she]
thought. The officer caused the accident.” Fehringer then explained to Graham how she should
have filled out the MVAR; specifically, that she should have marked “yes” to both questions
relating to alcohol and listed the BAC level since the PBT had been given.
Fehringer prepared a memorandum to Peschong explaining the events of the accident and
Fehringer’s conversations with Wambold and Graham. At the end of the memorandum, Fehringer
advised Peschong that he felt there were critical errors made in allowing Betten to walk away from
the accident without a DUI investigation and in the “inaccurate, false information” which was
documented in the MVAR.
Shortly after receiving the memorandum from Fehringer, Peschong ordered a Chief’s
Investigation into the events of January 26 and Graham’s completion of the MVAR. The written
notification of the Chief’s Investigation informed Graham that Domangue would be conducting
the investigation which would be “centered on your involvement in processing a potential
intoxicated driver and whether there [was] a departure from the truth in the official police report.”
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During the course of his investigation, Domangue interviewed Betten, Wambold, Graham, and
Reitan and researched dispatch records and other reports authored by Graham regarding events on
January 26 and 27. Based upon those interviews and other information gathered through the course
of his investigation, Domangue concluded that Graham was not truthful with regard to her
responses to him and her explanation concerning the inaccuracies on the MVAR, and that Graham
violated various LPD general orders and Lincoln municipal code sections. On March 26, 2013,
Graham was placed on investigative suspension pending a predisciplinary hearing. On April 11,
Peschong notified Graham in writing that the Chief’s Investigation had been completed and
advised her of the allegations brought against her.
PROCEDURAL BACKGROUND
On April 18, 2013, Peschong conducted a predisciplinary hearing for Graham’s alleged
violations of LPD General Orders 1930, 1420, and 1425 and Lincoln Municipal Code §2.76,445.
The relevant text of these sections is as follows:
General Order 1930(II)(A)
3. Officers shall submit reports that are adequate to document incidents and
investigations . . . .
4. All reports will be submitted prior to the end of the officer’s tour of duty, unless
a supervisor has approved delaying the report.
General Order 1420
6. Employees shall not depart from the truth in making reports, affidavits, court
documents, in giving testimony, or in connection with any official duties . . . .
7. When required to do so, employees will make full, accurate, and truthful reports,
both written and verbal.
....
17. Employees shall conduct themselves at all times, both on and off-duty, in such
a manner as to reflect most favorably on the Department. Conduct unbecoming a police
officer shall include that which brings the department into disrepute or reflects discredit
upon the employee as a member of the department, or that which impairs the operation or
efficiency of the department employee.
....
25. Members shall refrain from engaging in conduct in violation of Section
2.76.445 of the Lincoln Municipal Code, which provides any action which reflects discredit
upon the city service or is a direct hindrance to the effective performance of the municipal
government functions shall be considered good cause for disciplinary action against any
officer or employee of the City of Lincoln, though charges may be based upon causes and
complaints other than those listed.
Lincoln Municipal Code 2.76.445 Cause for Disciplinary Action
Any action which reflects discredit upon the city service or is a direct hindrance to
the effective performance of the municipal government functions shall be considered good
cause for disciplinary action against any officer or employee of the City of Lincoln, though
charges may be based upon causes and complaints other than those listed.
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....
(g) Incompetence to perform the duties of the position.
....
(j) Commission of acts or omissions unbecoming an incumbent of the particular
office or position held, which render a reprimand, suspension, demotion, or dismissal
necessary or desirable for the economical or efficient conduct of the business of the city or
for the best interest of the municipal government.
Regarding General Order 1425, which sets forth the Lincoln Police Code of Ethics, Peschong
testified that Graham’s actions constituted a general violation of this section without citing to any
specific line or section of text.
The predisciplinary hearing was attended by Peschong, Graham and her attorney,
Domangue, Lincoln Police Union President Chris Milisits, and Police Legal Advisor Tonya Peters.
At the conclusion of the hearing, Peschong found that there was cause for disciplinary action as a
result of Graham’s late and purposeful completion of a false MVAR in order to cover up her
mistakes during the accident investigation. Peschong concluded that Graham violated LPD
General Orders 1420, 1425, and 1930 along with Lincoln Municipal Code § 2.76.445(g) and (j).
Peschong further determined that Graham’s actions harmed her credibility as an officer and
potential witness in future cases. Peschong suspended Graham for 15 days pending her
termination. On April 18, 2013, the same day as the predisciplinary hearing, Graham was notified
in writing of her 15-day suspension pending termination.
On May 1, 2013 Graham appealed the termination of her employment to the Board. The
Board hearing occurred on July 18, 2013, during which Fehringer, Domangue, and Peschong
testified for the City, and Graham and coworkers Gregory Cody, David Munn, Kenneth Koziol,
and Teresa Hruza testified on Graham’s behalf. The evidence adduced at the hearing is set forth,
in part, in the factual background above. At the hearing’s conclusion, a member of the Board
requested that either a motion to vote or a motion to deliberate be made. A motion was made to
“deny the grievance,” and the Board subsequently voted unanimously to “deny [Graham’s]
grievance and uphold the City’s side,” thus affirming the City’s termination of Graham’s
employment. The Board issued a written decision on August 6, 2013, in which it referred to the
motion as a motion “to deny the grievance [appeal]” and declared that the “termination of
Graham’s employment with the City is the appropriate level of discipline to be imposed in this
matter.”
On August 15, 2013, Graham appealed the decision of the Board to the district court for
Lancaster County. A hearing before the district court occurred on May 15, 2014. On October 1,
2014, the district court entered a 19-page order affirming the decision of the Board to uphold the
termination of Graham’s employment.
Further evidence with regard to the accident, predisciplinary hearing, and Board hearing is
discussed in more detail below. Graham has timely appealed.
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ASSIGNMENTS OF ERROR
Graham assigns, restated, that the district court erred in (1) finding that the Board applied
the correct standard of review; (2) determining that the Board considered and weighed the evidence
presented at the hearing; (3) finding that Peschong acted reasonably and that termination of
Graham’s employment was not arbitrary or capricious; and (4) failing to conclude that termination
of Graham’s employment was excessive.
STANDARD OF REVIEW
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. Kaapa
Ethanol v. Board of Supervisors, 285 Neb. 112, 825 N.W.2d 761 (2013).
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.
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012). The evidence is sufficient,
as a matter of law, if an administrative board could reasonably find the facts as it did from the
testimony and exhibits contained in the record before it. Id. The credibility of witnesses and the
weight to be given to the evidence presented are determinations to be made by the administrative
agency as the trier of fact; it is not the province of the Supreme Court to resolve conflicts in the
evidence. Olson v. City of Omaha, 232 Neb. 428, 441 N.W.2d 149 (1989). See, also, Mathes v.
City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998).
The determination of whether the procedures afforded an individual comport with
constitutional requirements for procedural due process presents a question of law upon which an
appellate court is obligated to reach a conclusion independent of the court below. Fleming v. Civil
Serv. Comm. Of Douglas Cty., 280 Neb. 1014, 792 N.W.2d 871 (2011); Hickey v. Civil Serv.
Comm. of Douglas Cty., 274 Neb. 554, 741 N.W.2d 649 (2007).
ANALYSIS
GENERAL PROPOSITIONS
Before addressing each of Graham’s assignments of error, we set forth the general legal
propositions that control in this case. First, with regard to the issues implicating Graham’s due
process rights, we recognize the following: 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. Hickey,
supra. See, also, Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487(1985). After Loudermill, courts have concluded that procedural due process claims are divided
into three stages: pretermination process, actual termination, and posttermination process. Scott v.
County of Richardson, 280 Neb. 694, 789 N.W.2d 44 (2010); Shear v. City of Wayne Civil Services
Commission, 21 Neb. App. 644, 842 N.W.2d 603 (2014).
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Second, there is no dispute that Graham had a property right in her continued employment
with the City of Lincoln Police Department and could not have been discharged without good
cause. See, Collective Bargaining Agreement, Art. 3, Sec. 2(e); Lincoln Municipal Code
§ 2.76.445. “Just cause” for dismissal is that which a reasonable employer, acting in good faith,
would regard as good and sufficient reason for terminating the services of an employee, as
distinguished from an arbitrary whim or caprice. Ahmann v. Neb. Dep’t of Corr. Servs., 278 Neb.
29, 767 N.W.2d 104 (2009). See, also, Stejskal v. Dept. of Admin. Servs., 266 Neb. 346, 655
N.W.2d 576 (2003); Petersen v. Neb. HHS, 19 Neb. App. 314, 805 N.W.2d 667 (2011). The
Nebraska Supreme Court, in the context of police officer discipline, noted that the word “cause”
has been defined as “some substantial shortcoming which renders the employee’s continuance in
office in some way detrimental to the discipline and efficiency of the service and which the law
and sound public opinion recognize as good cause for his no longer holding the position.” Appeal
of Levos, 214 Neb. 507, 516, 335 N.W.2d 262, 268 (1983) (quoting Coursey v. Board of Fire and
Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1st Dist. 3rd Div.1967)).
BURDEN OF PROOF
Graham asserts that the Board applied an improper “standard of review” in deciding
whether the evidence supported the termination of her employment, and that as a result, she was
denied due process. Before analyzing this assigned error further, it is apparent that Graham’s
complaint is not with the “standard of review” applied by the Board, but rather, with its alleged
allocation of the burden of proof. The district court concluded that there was no evidence that the
Board placed the burden of proof on Graham to demonstrate that her termination was not justified.
The court determined that the issue before the Board was whether the City had just cause to
terminate Graham’s employment.
Graham bases this assignment of error primarily on the Board’s use of the term “grievance”
when referring to her appeal. Graham argues that because a grievance is initiated by an employee,
the employee has the burden of proof in a Board’s review of the grievance determination. On the
other hand, in an appeal from a decision to terminate an employee’s employment, Graham asserts
that the employer bears the burden. Graham argues that the Board, by mischaracterizing the nature
of the proceeding, failed to consider whether the City reasonably proved Peschong’s claims
supporting the termination of Graham’s employment. Graham further argues that because the
“appropriate level of inquiry was abandoned by the Board,” there was a due process violation. The
district court determined that the reference to the term “grievance” did not cause the Board to apply
an improper review or deny Graham due process.
Upon our examination of the record, we find that the procedure actually utilized by the
Board, rather than an overly narrow focus on terminology, shows that the Board treated the
proceeding as an appeal, the proper burden of proof was utilized, and due process was afforded to
Graham. The Nebraska Supreme Court has warned of the risk of over reliance on terminology,
finding that an incorrect statement of the burden of proof is not reversible error per se, if a district
court’s decision in an Administrative Procedure Act appeal otherwise conforms to the law, is
supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Sunrise
Country Manor v. Neb. Dept. of Soc. Servs., 246 Neb. 726, 523 N.W.2d 499 (1994). While the
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context of this case differs from that in the Sunrise Country Manor case, we apply a similar focus
on the actual procedure used by the Board in our case.
First, with regard to Graham’s due process rights, we note that she is only asserting a due
process violation in connection with the Board hearing; the posttermination process. Upon our
review of the record, it is nevertheless clear that Graham was afforded adequate due process during
the entire process. Graham was given written notice of the charges brought against her along with
various notices, both oral and written, throughout the investigative process; she was provided an
explanation of the employer’s evidence; and she was given an opportunity to present her side of
the story.
Second, with regard to Graham’s argument that the Board applied an incorrect burden of
proof, we find that the record clearly refutes this claim. We agree with Graham that the burden of
proof was upon the City at the Board hearing to present evidence supporting Graham’s termination
of employment. See Waste Connections of Neb. v. City of Lincoln, 269 Neb. 855, 697 N.W.2d 256(2005). The record shows that the hearing was in fact conducted in such a manner. The City
presented its evidence first, offering numerous exhibits and witness testimony to support its
assertion that the termination of Graham’s employment was appropriate. The City requested that
the Board “uphold” the termination decision. In response, Graham offered exhibits and called
witnesses to testify on her behalf, along with testifying herself, in an effort to rebut the evidence
presented by the City, show that Graham did not intentionally falsify the MVAR, and support her
argument that the termination of her employment was improper.
Finally, the record shows that both the parties and the Board in its administration of the
hearing treated the proceeding as an appeal. Counsel for both parties referred to the Board hearing
as an appeal. More importantly, the Board administered the hearing as an appeal, placing the
burden of proof on the City, and receiving extensive evidence from both parties concerning the
termination of Graham’s employment.
At the conclusion of the hearing, a member of the Board moved to “deny the grievance.”
However, another member asked for clarification on the motion, leading the moving member to
confirm that the motion was to “deny the grievance and uphold the City’s side.” (Emphasis
supplied). Such language is consistent with denying an appeal. This was followed by the
unanimous decision of the Board to uphold the termination. This was the only time the term
“grievance” was used during the hearing, and it clear from the record that the Board treated the
proceeding as an appeal.
In its subsequent written decision, the Board captioned the action as “In the Matter of the
Appeal of the Termination of Tracy Graham;” indicated that the matter came before the Board “on
the request for an appeal hearing” by Graham; stated that a motion was made “to deny the
grievance [appeal]” and “to uphold the City’s termination of Graham;” and concluded by ordering
that “the Appeal of the termination” is denied.
Lastly, it is worth noting that Graham requested an appeal hearing before the Board
pursuant to Article 9, Section 5 of the Lincoln Police Union Collective Bargaining Agreement.
This Article is entitled “Grievance Procedure,” and Section 5 states that “in the case of a demotion,
suspension or dismissal, Steps 1-2 of the grievance procedure shall be eliminated and the employee
shall present notice of appeal to the Personnel Director or his designated representative within
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fifteen (15) calendar days from the date of notification of the discipline for scheduling on the
Personnel Board agenda.” (Emphasis supplied). This supports the notion that the use of the term
“grievance” versus “appeal” in the context of this case is a distinction without a difference.
Therefore, in addition to the Board having properly treated the action as an appeal, Graham’s
utilization of the grievance procedure section to appeal the termination decision removes any doubt
that the reference to a grievance at the hearing did not in any way affect the process used by the
Board to determine the appeal or violate due process requirements.
The district court did not err in finding that the Board applied the proper burden of proof
at the hearing and that Graham was afforded appropriate due process. This assignment of error is
without merit.
PROPER WEIGHING OF EVIDENCE
Graham next asserts that the district court erred by failing to find that the Board did not
properly weigh the evidence presented at the hearing. Graham argues that because the Board failed
to properly weigh the evidence, she has been deprived of her due process right to such a review.
An examination of the record from the Board hearing demonstrates that the Board had a sufficient
opportunity to weigh the evidence before it and did in fact weigh such evidence in reaching its
decision.
We agree that the Board had a duty to weigh the evidence presented at the hearing before
determining whether to uphold the termination of Graham’s employment. Indeed, the Nebraska
Supreme Court has held that an agency’s judgment must be based on a factual foundation and must
give due consideration to all the essential elements involved. In re Application of Jantzen, 245
Neb. 81, 511 N.W.2d 504 (1994). Unless there is affirmative evidence to the contrary, a reviewing
court will presume that an agency has duly considered all the evidence before it. Benitez v.
Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001).
In her brief, Graham claims that because the Board “simply voted to deny Graham’s
‘grievance,’ without discussing or deliberating the [sic] evidence,” the Board “ignored due process
and failed to examine whether the City proved Graham was fired for just cause by weighing the
evidence.” Graham places her emphasis on the arguably abrupt manner in which the Board hearing
concluded. As set forth above, immediately upon the conclusion of the hearing, a motion and vote
to uphold the termination was made. However, this resolution occurred following a hearing that
lasted nearly 8 hours and which generated 339 pages of testimony and receipt of 36 exhibits. The
Board members asked questions of the witnesses and were otherwise engaged during the hearing.
At the conclusion of this lengthy hearing, the Board members were given the option to either move
to vote or move to deliberate. A motion for a vote was made and seconded, and all four members
voted to uphold the termination. Although given the opportunity, no member of the Board
requested deliberation. Given the unanimous vote, it can be implied that none of the members felt
that formal deliberation was necessary. There is nothing in the record to support a conclusion that
such lack of formal deliberation prior to the vote indicates that the Board failed to consider the
evidence. During the course of the extensive and detailed hearing, the members arguably had
sufficient time to individually consider and weigh the evidence prior to determining how to vote.
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Graham has not cited to any authority requiring the Board to formally deliberate prior to its
decision, and we are not aware of any such authority.
There is no affirmative evidence that the Board failed to consider all the evidence in
reaching its decision, or as would otherwise allow this court to go against the deference granted to
the Board under our standard of review. This conclusion is supported by the comprehensive written
decision of the Board, within which the Board details the evidence it considered in making its
decision. The district court did not err in failing to find that the Board did not properly weigh the
evidence before making its decision.
Further, Graham’s argument that she was denied due process in the failure of the Board to
weigh the evidence is also without merit. Graham was afforded due process through a lengthy
posttermination hearing, where she was provided a reasonable opportunity to present her side of
the story and defend against the accusations brought against her. The Board, as an impartial
decision maker, considered the extensive evidence presented by both sides in making its decision.
The district court did not err in finding that Graham was afforded appropriate due process by the
Board.
Graham’s second assignment of error is without merit.
REASONABLENESS OF TERMINATION
Graham asserts that the district court erred in its determination that Peschong acted
reasonably and that termination of Graham’s employment was not arbitrary or capricious. She
bases this assertion in part on Peschong’s, and the LPD’s, alleged gender bias and Domangue’s
alleged personal bias against Graham, which in turn purportedly impacted the investigation and
her subsequent termination.
In concluding that there was sufficient relevant evidence to support the Board’s decision
to affirm the termination, the district court thoroughly reviewed and discussed the evidence which
supported the findings that Graham intentionally falsified the MVAR, and that Graham’s
termination was not unlawfully motivated. The court further found that Graham’s termination was
not arbitrary or capricious, holding that the Board could reasonably conclude that Peschong had
just cause “which a reasonable employer, acting in good faith, would regard as good and sufficient
reason for terminating Graham’s employment.” The court further found that the record from the
full evidentiary hearing demonstrates that the decision to affirm and uphold the termination “was
not guided by fancy or made with disregard of the facts and circumstances.” Upon our examination
of the record, we agree that the Board’s decision was reinforced by sufficient evidence supporting
Peschong’s termination of Graham’s employment as reasonable and done in good faith for just
cause, as opposed to being arbitrary and capricious.
In reviewing an administrative agency decision on a petition in error, an appellate court
reviews the decision to determine whether the agency acted within its jurisdiction and whether
sufficient, relevant evidence supports the decision of the agency. Kaapa Ethanol v. Board of
Supervisors, 285 Neb. 112, 825 N.W.2d 761 (2013). 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. Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d
149 (2012). See, also, Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324- 10 -
(2014) (court applied this sufficiency of evidence standard in its decision to uphold a civil service
commission’s affirmation of the termination of a police sergeant). The term “unreasonable” can
be applied to an administrative decision only if the evidence presented leaves no room for
differences of opinion among reasonable minds. In re Water Appropriation A-4924, 267 Neb. 430,
674 N.W.2d 788 (2004).
An administrative agency decision must not be arbitrary or capricious. Blakely v. Lancaster
County, 284 Neb. 659, 825 N.W.2d 149 (2012). 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 person to the same conclusion. Marion’s v. Nebraska Dept. of Health & Human
Servs., 289 Neb. 982, 858 N.W.2d 178 (2015).
Following the investigation conducted by Domangue, Peschong reasonably determined
that Graham submitted an intentionally falsified MVAR in an effort to hide the mistakes she made
while investigating Wambold’s accident. The record shows that the information in the MVAR
conflicted with statements Graham made to her supervisors immediately following the Wambold
accident. Graham was trained on how to correctly fill out a MVAR and she had access to
instructions, suggesting that the incorrect MVAR entries she made were more than mere mistakes.
There was also evidence that Graham’s explanation regarding her failure to note a “suspicion of
alcohol” on the MVAR changed during the Chief’s Investigation and that Graham may have timed
her completion of the MVAR, a form that takes around 20 minutes to complete, in order to avoid
the criticism of those who were aware that alcohol was involved in the incident.
Additionally, Graham’s intentional falsification of the report raised serious concerns for
Peschong regarding her future credibility. Peschong testified regarding the importance of
trustworthiness among police officers, stating that “it’s a mandatory requirement that police
officers must be honest in the performance of their duties,” and that the actions of Graham were
such that “her credibility . . . could not withstand that.” Peschong’s testimony supported the notion
that just cause existed for the termination in that Graham’s continued employment would be
detrimental to the discipline and efficiency of the LPD or would otherwise be harmful to the
department and the citizens of Lincoln. The evidence as a whole supported Peschong’s conclusion
that Graham violated numerous LPD General Orders, along with the Lincoln Municipal Code.
Graham seeks to discredit the testimony and evidence brought against her. While various
evidentiary conflicts existed in this case, along with accusations by Graham that her termination
was the result of bias, the conclusion reached by the Board was sufficiently supported by the
record. In determining whether the Board could reasonably reach the conclusions it did based on
the evidence presented, we do not reweigh the evidence or make independent findings of fact. See
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
We agree with the district court that there existed sufficient relevant evidence for the Board
to find that Graham’s termination was based on just cause and done in good faith, and was not
arbitrary and capricious. The Board’s unanimous decision to uphold the termination was not taken
in disregard of the evidence presented at the hearing and was a reasonable result.
Therefore, Graham’s third assignment of error is without merit.
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LEVEL OF DISCIPLINE
Graham asserts that the district court erred in its failure to find that the termination of
Graham’s employment was excessive. Graham supports her assertion by arguing that termination
was inappropriate based on her lack of past misconduct, that the manner in which she filled out
the report was “only a minor mistake,” and that her termination was inconsistent with principles
of progressive discipline and punishments imposed on officers in comparable situations by the
LPD. The district court held that “sufficient, relevant evidence supported the Board’s finding that
termination was the appropriate level of discipline.”
As articulated in LPD General Order 1440, Subsection II(E), the appropriate level of officer
discipline is determined on the basis of several factors. These factors include not only “the
employee’s general past performance and work history,” but also the “severity of the violation
itself” and “action taken in similar circumstances for the same violation.” Furthermore, LPD
General Order 1440, Subsection II(D) defines termination as the appropriate level of discipline
“when the violation was so grave that continued employment would affect the operational
effectiveness of the department.”
As previously established, there existed sufficient, relevant evidence to find that Graham’s
actions concerning the MVAR amounted to a serious violation; primarily due to her intentional
falsification of the report. While Graham attempts to minimize her completion of the report as
involving “minor mistakes,” she ignores the impact her actions, and the intent behind them, have
on her continued fitness to be a police officer. The evidence was sufficient to demonstrate that
Graham’s credibility was damaged through the intentional falsification of the MVAR to the extent
that her continued employment would negatively affect the LPD. This was true despite Graham’s
claimed lack of prior discipline. Therefore, her positive past conduct was outweighed by the
severity of her actions and its negative impact on her ability to effectively serve the department.
Graham’s termination was not inconsistent with the principles of progressive discipline
utilized by the LPD. As mentioned above, LPD General Order 1440, Subsection II(D) specifies
that termination is the proper level of discipline when the officer’s violation was “so grave that
continued employment would affect the operational effectiveness of the department.” There is no
requirement that the punishment begin at a lower level, such as discipline through “education” or
a “warning,” when the nature of the offense alone justifies termination.
The record indicates that this level of discipline has been applied consistently to other
officers who intentionally falsified police reports or provided false statements during internal
investigations. Specifically, Teresa Hruza testified on cross-examination regarding two officers
who falsified official police reports (including a MVAR) and two officers who provided false
information during an internal investigation. All four of these officers were terminated or resigned
in lieu of discipline. When asked by a Board member whether any LPD employees had falsified
reports in a manner similar to Graham and avoided termination, Peschong responded by stating
that anyone he knew that had falsified official reports had been terminated. Other officers provided
similar testimony, giving various examples of officers being terminated or resigning prior to a
pretermination hearing as the result of false reporting, lying during internal investigations, or lying
during accident investigations. Therefore, it is clear from the record that Graham’s termination
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properly corresponded with the nature of her infractions. The district court did not err in finding
that termination was the appropriate level of discipline.
Graham’s final assignment of error is without merit.
CONCLUSION
The district court did not err in affirming the Board’s decision to uphold the termination of
Graham’s employment.
AFFIRMED.
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