Shear v. City of Wayne Civil Serv. Comm. ( 2014 )

Decisions of the Nebraska Court of Appeals
644 21 NEBRASKA APPELLATE REPORTS
As stated above, delay, alone, is an insufficient reason to
deny a motion for leave to amend a pleading. Since defendants
failed to show they would be unduly prejudiced if the amend-
ment were granted, the trial court abused its discretion in disal-
lowing it.
Having found that the district court should have allowed the
amendment in 2010, we need not address plaintiffs’ remaining
assignments of error.
CONCLUSION
We find that the district court abused its discretion in deny-
ing plaintiffs’ motion to amend the first amended complaint in
2010. Accordingly, we reverse, and remand for a new trial.
R eversed and remanded for a new trial.
Irwin, Judge, participating on briefs.
Philip Shear, appellant, v. City of Wayne Civil Service
Commission and the City of Wayne, Nebraska,
a municipal corporation, appellees.
___ N.W.2d ___
Filed January 14, 2014. No. A-12-830.
1. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Administrative Law: Appeal and Error. In reviewing an administrative agency
decision on a petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted within its jurisdiction
and whether sufficient, relevant evidence supports the decision of the agency.
4. ____: ____. The reviewing court in an error proceeding is restricted to the record
before the administrative agency and does not reweigh evidence or make inde-
pendent findings of fact.
5. Administrative Law: Evidence. The evidence is sufficient, as a matter of law,
if an administrative tribunal could reasonably find the facts as it did from the
testimony and exhibits contained in the record before it.
6. Public Officers and Employees: Termination of Employment: Due Process.
Under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct.
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 645
Cite as 21 Neb. App. 6441487, 84 L. Ed. 2d 494 (1985), a public employee possesses certain due process
rights when state law grants a property right to continued employment.
7. ____: ____: ____. When a state deprives a public employee of the right to contin-
ued employment, the deprivation must be preceded by notice and an opportunity
for hearing appropriate to the nature of the case.
8. Termination of Employment: Due Process. Deficiencies in due process during
pretermination proceedings may be cured if the employee is provided adequate
posttermination due process.
9. ____: ____. An impartial decisionmaker is not required at the pretermination
stage so long as the employee has access to posttermination proceedings before
an impartial adjudicator.
Appeal from the District Court for Wayne County: Robert
B. Ensz, Judge. Affirmed.
Steven M. Delaney and Richard Whitworth, of Reagan,
Melton & Delaney, L.L.P., for appellant.
Jerry L. Pigsley and Karen A. Haase, of Harding & Schultz,
P.C., L.L.O., for appellees.
Moore and Bishop, Judges.
Moore, Judge.
Following termination from his position as a lieutenant for
the Wayne Police Department, Philip Shear filed a written
demand for an investigation and public hearing with the City of
Wayne Civil Service Commission (the Commission). After the
Commission upheld the termination, Shear filed a petition in
error in the district court for Wayne County. The district court
also affirmed the Commission’s decision to terminate Shear’s
employment. Shear now appeals to this court, asserting that his
due process rights were violated in his pretermination hearing,
that the Commission’s decision was arbitrary and capricious,
and that the Commission erred in allowing undisclosed testi-
mony at the hearing. Finding no merit to these assignments of
error, we affirm.
FACTUAL BACKGROUND
The City of Wayne, Nebraska (the City), employed Shear
as a lieutenant in the Wayne Police Department. As lieutenant,
Shear acted in a supervisory capacity within the department.
In a letter dated February 17, 2011, Lowell Johnson, in his
Decisions of the Nebraska Court of Appeals
646 21 NEBRASKA APPELLATE REPORTS
position as city administrator for the City, filed written accu-
sations with the Commission, alleging Shear had engaged in
misconduct. Specifically, Johnson alleged that Shear had com-
mitted the following acts:
1. Created and tolerated an environment within the
Wayne Police Department in which employees were hos-
tile to other staff members, to other members of law
enforcement and to the community; he further failed
to demand the unquestionable integrity, reliability, and
honesty from Wayne Police Department employees that
would be consistent with public expectations, undermin-
ing the efficiency, morale and good order of the Wayne
Police Department.
2. Engaged in an extramarital affair with an employee
he supervised in the Wayne Police Department.
3. Made sexual advances to employees in the Wayne
Police Department he supervised.
4. Used his City-issued cell phone for excessive
personal calls and texts, and failed to supervise the
use of City-issued cell phones and computers for per-
sonal use by Wayne Police Department employees and
non-employees.
5. Advised Wayne Police Department employees to not
go to the Wayne Police Chief with any problems, con-
cerns or questions.
6. Advised Wayne Police Department employees to not
go to [Johnson] because [Johnson] is not [their] friend or
friend of the Wayne Police Department and to be careful
what [they] tell him.
In these allegations, Johnson claimed that Shear’s conduct
was cause for disciplinary action under two provisions of the
Wayne city code:
1. Incompetency, inefficiency, or inattention to or der-
eliction of duty;
2. Dishonesty, prejudicial conduct, immoral conduct,
insubordination, discourteous treatment of the public or
a fellow employee, any act of omission or commission
tending to injure the public service, any willful failure on
the part of the employee to properly conduct himself, or
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 647
Cite as 21 Neb. App. 644any willful violation of this chapter or the rules and regu-
lations adopted pursuant to this chapter.
See Code of Ordinances for the City of Wayne, Nebraska,
art. II, § 26-45(b) (2010). Johnson also stated in the letter that
he was immediately suspending Shear with pay.
On March 7, 2011, Johnson sent Shear a 12-page let-
ter explaining Johnson’s decision to suspend Shear. Johnson
included a number of exhibits to support this explanation. At
the end of the letter, Johnson informed Shear of his right to
schedule a meeting with Johnson, during which Shear could
present his side of the story. Shear immediately objected to
Johnson’s decision to preside over this meeting, noting that
he believed Johnson’s participation violated his right to due
process. Shear demanded that an independent administrator be
appointed to review the allegations.
Despite receiving Shear’s objections, Johnson presided over
the meeting with Shear and his attorney on April 22, 2011.
At the outset of this meeting, Shear objected on the record
to Johnson’s participation. Johnson again refused to recuse
himself. Having noted his objection, Shear’s attorney then pro-
ceeded to refute Johnson’s allegations through oral argument,
during which he denied each of the accusations. Other than
Shear’s offering of Johnson’s March 7 letter, no other evidence
was produced at this meeting.
In a letter dated April 28, 2011, Johnson terminated Shear
from his position with the police department. In this letter,
Johnson informed Shear of his right to demand an investigation
and public hearing before the Commission. Shear exercised
this right on May 6 by filing a written demand for investigation
and hearing.
The Commission held a public hearing from October
31 through November 4, 2011. By stipulation of all par-
ties involved, Shear’s hearing was consolidated with that of
the police chief, whose employment was also terminated by
Johnson. After the City presented its consolidated case, both
Shear and the police chief presented their own evidence. The
resulting record in this case is extensive and includes a bill of
exceptions of nearly 1,500 pages and 141 received exhibits.
This court has conducted an extensive review of the record
Decisions of the Nebraska Court of Appeals
648 21 NEBRASKA APPELLATE REPORTS
and will summarize the evidence that relates to Shear’s termi-
nation. In our summary, we discuss only the evidence relating
to the allegations which the Commission ultimately found sup-
ported Shear’s termination.
The majority of the evidence the City presented to the
Commission involved Shear’s interactions with Rena Alonso, a
former dispatcher with the Wayne Police Department. Alonso’s
testimony was presented through a deposition of over 6 hours
in length which was received in evidence. Alonso claimed that
while she was employed with the police department, Shear
attempted to initiate a sexual relationship with her. Alonso
testified that although the relationship was never consummated
by any sexual act, Shear kissed her twice, hugged her, and put
his hands on her thighs in an intimate fashion. Alonso also
testified that she exchanged numerous personal text messages
and had many personal telephone calls with Shear. The City
introduced usage records from Shear’s cell phone issued by the
City, which records showed numerous calls and text messages
between Shear and Alonso. Several of these calls were nearly
an hour in length.
Alonso highlighted one particular event during which Shear
attempted to use his desire for a sexual relationship with
Alonso to affect her employment with the department. While
on duty as a dispatcher, Alonso was instructed to contact the
Norfolk, Nebraska, police to dispatch an officer to obtain a
blood sample from the driver of a vehicle after an injury acci-
dent. Ultimately, Alonso did not have the officer dispatched,
but instead contacted a hospital to have the blood draw com-
pleted. This error negatively affected the outcome of the case
against the driver.
After the department discovered this error, Shear informed
Alonso that she would be reprimanded, which included a 2-day
unpaid suspension. Alonso claimed that when she became
upset about the 2-day suspension, Shear offered to recommend
to the police chief that the suspension be reduced to 1 day
without pay. However, she claimed that Shear then told her that
she would personally “owe” him a day. Alonso also testified
that Shear told her he would kiss her if she began to cry and
that Shear did in fact hug her when she began to cry.
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 649
Cite as 21 Neb. App. 644The City also adduced evidence relating to a division
among the employees within the police department. During
her testimony, Alonso testified that she was aware of an “in
group” and an “out group” within the police department.
Alonso claimed that Shear told her that she did not want to be
in the “out group.” Alonso stated that if there was something
that did not meet police department approval, it would go
“bye-bye.” A Wayne police officer confirmed the existence of
this division. He testified that he became a part of this outer
group after he and a Wayne police sergeant decided not to
sign a “lack of confidence” letter directed against Johnson in
his position as city administrator. The City presented evidence
to suggest that Shear did not intervene in this division, but,
rather, participated in it.
In addition to division within the department, the City
focused on the department practice to refer to white persons as
“number ones” and to black persons as “number twos.” During
his testimony, a former Wayne police officer admitted that this
system existed, but stated that it was taken out of context. He
maintained that this was a communication system to ensure
officer safety and was not a discriminatory practice. The City
claimed that as a supervisor, Shear should have corrected this
practice, but did not.
Shear presented extensive evidence to attempt to contradict
the City’s case. As the City did during its case, Shear also
focused on Alonso. He introduced the severance and settlement
agreement Alonso signed with the City in an attempt to show
her bias. Additionally, a number of police department employ-
ees and former employees testified on his behalf that Alonso
was often the person making sexual comments and further
testified that they did not witness any inappropriate conduct
by Shear directed toward Alonso. Shear also introduced mes-
sages that he sent to Alonso which he claimed demonstrated
his rejection of her sexual advances. During his testimony,
Shear was adamant that he had a “personal relationship” with
all employees in the police department and that his relationship
with Alonso was no different than his interaction with anyone
else in the department.
Decisions of the Nebraska Court of Appeals
650 21 NEBRASKA APPELLATE REPORTS
Besides focusing on Alonso, Shear also highlighted his
achievements as a lieutenant with the police department.
Various department employees and former employees testified
that Shear was a good police officer and made the depart-
ment feel as though it were a family. These same witnesses
claimed that morale in the department had declined after Shear
was terminated.
After reviewing the evidence, the Commission issued its
decision on December 16, 2011, affirming Shear’s termina-
tion. The Commission first found that Shear had attempted
to maintain a sexual relationship with Alonso, that Shear
failed to correct Alonso’s inappropriate behavior, that Shear
had intimate physical contact with Alonso, that Shear offered
to influence a reduction of her suspension in exchange for
a sexual relationship, and that Shear excessively communi-
cated with Alonso, using his cell phone issued by the City.
The Commission determined this to be prejudicial conduct,
immoral conduct, insubordination, discourteous treatment of a
fellow employee, an act of omission or commission tending to
injure the public service, a willful failure to properly conduct
himself, inattention to or dereliction of duty, and in violation
of policy and procedure.
The Commission then addressed the “‘inner circle’” dynamic
within the department, finding that Shear did nothing to inter-
vene regarding the practice, but, rather, reinforced it. The
Commission found that this practice tended to undermine the
overall efficiency and effectiveness of the department and that
Shear’s failure to intervene to address this dynamic and his
reinforcement of it constituted incompetency, inefficiency or
inattention to or dereliction of duty, prejudicial conduct, dis-
courteous treatment of fellow employees, an act of omission
or commission tending to injure the public service, a willful
failure on the part of Shear to properly conduct himself, and in
violation of policy and procedure.
Finally, the Commission found that Shear created and
tolerated, and failed to address or correct, an environment
within the department in which officers referred to “‘black
guys as #2’” and “‘white guys as #1.’” The Commission
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 651
Cite as 21 Neb. App. 644found that Shear’s failure to address or correct the practice
undermined the overall efficiency and effectiveness of the
department and constituted prejudicial conduct, discourteous
treatment of the public, an act of omission or commission
tending to injure the public service, incompetency, ineffi-
ciency or inattention to or dereliction of duty, and in violation
of policy and procedure.
The Commission thereafter stated that to the extent that
Shear’s testimony and evidence were not consistent with its
findings, the Commission found Shear’s testimony and evi-
dence not credible. After so finding, the Commission noted that
its findings and conclusions, whether considered independently
or in the aggregate, constituted cause for Shear’s termination.
The Commission concluded that Johnson’s action in terminat-
ing Shear’s employment was supported by a preponderance of
the evidence and was made in good faith for cause, that termi-
nation was based on competent evidence and was neither arbi-
trary nor capricious, and that Shear’s claim that he was denied
due process of law was without merit.
Shear perfected an appeal to the district court on January 13,
2012. Although Shear’s notice of appeal was lengthy, the dis-
trict court determined that he had essentially raised two assign-
ments of error: (1) His due process rights were violated in his
pretermination hearing, and (2) the Commission’s decision was
arbitrary and capricious and, therefore, not made in good faith
for cause. The district court found each of the assigned errors
to be without merit and affirmed the Commission’s decision.
Shear timely appeals.
ASSIGNMENTS OF ERROR
Shear assigns, consolidated and restated, three errors in his
brief. He contends that (1) he was denied his pretermination
due process rights, because there was not an impartial deci-
sionmaker at his pretermination hearing; (2) the Commission’s
order affirming his termination was not made in good faith
for cause, but was arbitrary and capricious; and (3) the
Commission should not have allowed undisclosed testimony
at the hearing.
Decisions of the Nebraska Court of Appeals
652 21 NEBRASKA APPELLATE REPORTS
STANDARD OF REVIEW
[1,2] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro-
cedural due process presents a question of law. Fleming v. Civil
Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792 N.W.2d 871(2011). On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached
by the court below. Id.[3] 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 evi-
dence supports the decision of the agency. Blakely v. Lancaster
County, 284 Neb. 659, 825 N.W.2d 149 (2012).
[4,5] 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. The
evidence is sufficient, as a matter of law, if an administrative
tribunal could reasonably find the facts as it did from the testi-
mony and exhibits contained in the record before it. Id.ANALYSIS
Pretermination Procedures.
[6,7] 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 a public employee possesses
certain due process rights when state law grants a property
right to continued employment. When a state deprives a
public employee of this right to continued employment, the
deprivation must “‘“be preceded by notice and opportunity
for hearing appropriate to the nature of the case.”’” Scott v.
County of Richardson, 280 Neb. 694, 700, 789 N.W.2d 44, 50
(2010), quoting Cleveland Board of Education v. Loudermill,
supra. After Loudermill, courts have concluded that proce-
dural due process claims are divided into three stages: pre-
termination process, actual termination, and posttermination
process. See, Scott v. County of Richardson, supra; Parent v.
City of Bellevue Civil Serv. Comm., 17 Neb. App. 458, 763
N.W.2d 739 (2009).
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 653
Cite as 21 Neb. App. 644In the present case, there is no dispute that Shear had a
property right in his continued employment with the Wayne
Police Department and could not have been discharged without
due process. See Code of Ordinances for the City of Wayne,
Nebraska, § 26-1 et seq. (2010). However, the parties disagree
as to the necessary extent of the pretermination process. Shear
argues that the pretermination procedures were insufficient
because there was a biased decisionmaker. He claims that
because city administrator Johnson was both the complain-
ing party and the adjudicator in the pretermination hearing,
Johnson effectively served as “the accuser, the judge, and the
executioner,” rendering the pretermination process a nullity.
Brief for appellant at 12.
In interpreting Cleveland Board of Education v. Loudermill,
supra, the Nebraska Supreme Court has adopted the view that
only limited pretermination process is required, especially if
posttermination proceedings are available and extensive. Scott
v. County of Richardson, supra, citing Krentz v. Robertson,
228 F.3d 897 (8th Cir. 2000). In adopting this view, the court
noted that the purpose of a pretermination proceeding is not to
resolve the propriety of the discharge, but, rather, to serve as
an initial check against mistaken decisions. Scott v. County of
Richardson, supra. Thus, pretermination proceedings need not
be elaborate. Id. Informal meetings with supervisors are suf-
ficient pretermination proceedings. Id.
[8] Despite the foregoing, Shear claims that his case is dis-
tinct because Johnson brought the charges and also functioned
as the decisionmaker in the pretermination process. This argu-
ment fails. The Nebraska Supreme Court in Scott held that
“deficiencies in due process during pretermination proceedings
may be cured if the employee is provided adequate posttermi-
nation due process.” 280 Neb. at 703, 789 N.W.2d at 52 (over-
ruling Martin v. Nebraska Dept. of Public Institutions, 7 Neb.
App. 585, 584 N.W.2d 485 (1998)).
[9] Although no Nebraska appellate court appears to have
confronted this specific scenario, we find the Eighth Circuit’s
holding in a similar case to be convincing and in line with
the Nebraska Supreme Court’s decision in Scott. The Eighth
Circuit, in adopting the prevailing view in the federal circuits
Decisions of the Nebraska Court of Appeals
654 21 NEBRASKA APPELLATE REPORTS
on this issue, specifically rejected the argument that biased
decisionmakers in the pretermination process violate due
proc­ss. The court held that “[a]n impartial decisionmaker
e
is not required at the pre-termination stage so long as the
employee has access to post-termination proceedings before
an impartial adjudicator.” Sutton v. Bailey, 702 F.3d 444, 449
(8th Cir. 2012).
In the present case, there is no question that Johnson was
not an impartial decisionmaker at the pretermination stage.
Johnson not only investigated Shear and brought the charges
against him, but he also conducted the pretermination hearing.
However, the record reveals extensive posttermination pro-
ceedings occurred. After Shear was terminated, he exercised
his right to a hearing before the Commission, an impartial
adjudicator. At this hearing, which extended approximately 5
days, Shear was represented by an attorney and had the oppor-
tunity not only to contradict the City’s evidence, but also to
present extensive evidence of his own. Following this hearing,
the Commission reviewed the evidence and made its decision
to uphold the termination. These posttermination procedures
provided the required measure of due process. This assigned
error is without merit.
Was Commission’s Decision Made
in Good Faith for Cause?
For the majority of his brief, Shear attacks the Commission’s
decision, claiming that it was not supported by a “preponder-
ance of the relevant and competent evidence contained in
the record.” Brief for appellant at 14. Shear argues that the
evidence in the record is decidedly in his favor and that the
Commission disregarded the facts and circumstances of the
case when it made its decision.
The record in this case contains significantly conflicting evi-
dence. In his hearing before the Commission, Shear responded
to every allegation the City raised with his own evidence that
supported his cause. The Commission reviewed both par-
ties’ evidence and determined that Shear’s evidence was not
credible. Shear now asks this court to essentially reweigh the
evidence and the Commission’s findings of fact, substituting
Decisions of the Nebraska Court of Appeals
SHEAR v. CITY OF WAYNE CIVIL SERV. COMM. 655
Cite as 21 Neb. App. 644our own judgment. However, as explained above, we do not
reweigh evidence or make independent findings of fact when
reviewing an administrative agency’s decision. See, Blakely
v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012);
Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553(2004). The record of the hearing demonstrates that the City
produced sufficient, relevant evidence to support its deci-
sion to terminate Shear’s employment and from which the
Commission could reasonably find the facts as it did. In our
review, we have focused on only those allegations upon which
the Commission based its findings to support the termina-
tion of Shear’s employment. In sum, there was sufficient rel-
evant evidence to support the Commission’s findings regarding
Shear’s inappropriate conduct with Alonso, Shear’s involve-
ment in the department practices regarding the “‘inner circle,’”
and Shear’s failure to correct the “number one” and “number
two” references.
We agree with the district court that the Commission’s deci-
sion to affirm Shear’s termination was made in good faith for
cause. This assigned error is without merit.
Did Commission Improperly Allow
Testimony at Hearing?
In his final assignment of error, Shear argues that the
Commission improperly allowed the City to expand the basis
of his employer’s evidence at the hearing without giving
him notice. Citing both the Wayne city code and Nebraska’s
Civil Service Act, Shear argues that he was not properly
informed that Amy Miller would testify to additional reasons
that would support the City’s decision to terminate his employ-
ment. See, Neb. Rev. Stat. § 19-1833(1) (Reissue 2012);
Code of Ordinances for the City of Wayne, Nebraska, art. II,
§ 26-46(a). He claims that because the City relied on this tes-
timony in reaching its decision, the result is flawed and must
be reversed.
Miller is a deputy county attorney for Wayne and Pierce
Counties. At the hearing before the Commission, the City
called Miller as a witness to testify regarding her experi-
ences as a county attorney interacting with the Wayne Police
Decisions of the Nebraska Court of Appeals
656 21 NEBRASKA APPELLATE REPORTS
Department. Miller testified that there was a general lack of
cooperation between the county attorney’s office and the police
department, that officers and dispatchers were uncooperative in
providing reports, that reports were not timely provided, and
that instructions were ignored.
At the hearing, both Shear and the police chief objected to
Miller’s testimony, arguing that it was not disclosed prior to
the hearing. The special counsel overruled these objections,
finding that the City disclosed Miller as a witness and that both
parties had an adequate opportunity to depose her during the
lengthy discovery period prior to the hearing.
We find Shear’s argument to be without merit. Although
Miller was not mentioned in the City’s statement of charges
against Shear, she was included as a potential witness in the
charges related to the police chief’s termination. Further, both
Shear and the police chief agreed to have one consolidated
hearing related to these two terminations. Therefore, during
the hearing, there were a number of times when testimony
was given that related to the charges against only one of the
individuals. Finally, despite Shear’s contention to the con-
trary, the Commission did not rely upon Miller’s testimony
in its decision to uphold Shear’s termination. In fact, the
Commission’s findings of fact do not contain any reference
to Shear’s involvement with the county attorney’s office as a
ground for his termination. We agree with the district court’s
conclusion that the Commission did not err when allowing
Miller’s testimony.
CONCLUSION
The district court determined that Shear was afforded due
process and that the Commission’s decision was made in good
faith for cause. This was not made in error, and we affirm.
Affirmed.
Irwin, Judge, participating on briefs.