Douglas County v. Archie , 295 Neb. 674 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/03/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
Douglas County, Nebraska, a political subdivision
of the State of Nebraska, appellant, v.
Daniel A rchie and the Douglas County
Civil Service Commission, appellees.
___ N.W.2d ___
Filed February 3, 2017. No. S-15-322.
1. Administrative Law: Appeal and Error. In reviewing an administra-
tive 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.
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 proceeding is restricted to the record before the administrative
agency and does not reweigh evidence or make independent findings
of fact.
4. Administrative Law: Judgments: Words and Phrases. An adminis-
trative agency decision must not be arbitrary and capricious. 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. Judgments: Appeal and Error. Appellate courts independently review
questions of law decided by a lower court.
6. Administrative Law. The interpretation of regulations presents ques-
tions of law.
7. Administrative Law: Judgments. Whether an agency decision con-
forms to the law is by definition a question of law.
8. Civil Service: Administrative Law: Appeal and Error. A civil service
commission acts in a judicial manner when deciding employee appeals.
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
9. Judgments: Records: Appeal and Error. The purpose of a proceeding
in error is to remove the record from an inferior to a superior tribunal so
that the latter tribunal may determine if the judgment or final order of
the inferior tribunal is in accordance with law.
10. Administrative Law: Appeal and Error. 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.
11. Administrative Law: Words and Phrases. Agency action taken in dis-
regard of the agency’s own substantive rules is arbitrary and capricious.
12. Administrative Law: Appeal and Error: Words and Phrases. A
review using the “arbitrary and capricious” standard requires consider-
able deference to the judgment and expertise of the agency.
13. Administrative Law: Judgments: Words and Phrases. A decision
is arbitrary and capricious if the agency has relied on factors that the
Legislature has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.
14. Administrative Law: Evidence: Appeal and Error. The proper inquiry
for an appellate court when reviewing the decision of an administrative
agency on a petition in error is whether there was sufficient, relevant
evidence to support the conclusion that the agency did make and not
whether the evidence would support a contrary conclusion.
15. ____: ____: ____. When reviewing a decision of an administrative
agency, as in reviewing a jury verdict, if there is sufficient evidence
to support the decision, the reviewing court must affirm even if it may
be of the opinion that had it been the trier of the case, it would have
reached a different conclusion.
16. Courts: Appeal and Error. On a petition in error, the district court acts
in an appellate capacity and employs the same deferential standard of
review that an appellate court uses.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Irwin and Bishop, Judges, on appeal
thereto from the District Court for Douglas County, M arlon A.
Polk, Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
Donald W. Kleine, Douglas County Attorney, Meghan M.
Bothe, and Timothy K. Dolan for appellant.
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295 Nebraska R eports
DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
Rick G. Wade, of Norby & Wade, L.L.P., for appellee
Daniel Archie.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
Douglas County Youth Center (DCYC) terminated Daniel
Archie’s employment. Archie brought an administrative
appeal to the Douglas County Civil Service Commission
(the Commission). Following an evidentiary hearing, the
Commission reversed the termination and ordered that Archie
be reinstated. Douglas County filed a petition in error with the
district court. The district court affirmed the Commission’s
order. Douglas County then appealed to the Nebraska Court
of Appeals. In a split decision, the Court of Appeals reversed
the district court’s affirmance of the Commission’s order. We
granted Archie’s petition for further review.
In the case at bar, our decision is controlled by our stan-
dard of review. We examine the decision of the Commission
to determine whether there was sufficient, relevant evidence
to support its decision that Archie should be reinstated and
whether the decision was arbitrary and capricious. In light of
the deference that our standard of review requires us to give
the Commission’s decision, we now reverse the order of the
Court of Appeals and remand the cause with directions to
affirm the judgment of the district court which affirmed the
order of the Commission.
II. BACKGROUND
In February 2003, Archie was hired by DCYC as a juvenile
detention specialist. Just over a year later in May 2004, he was
hired as a physical education teacher at DCYC. Archie worked
for over 11 years at DCYC, and by all accounts in the record,
he was an exemplary employee at DCYC. According to DCYC
superintendent Brad Alexander, Archie was a good employee
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
with an excellent work history. Former DCYC detention man-
ager Robert Bryant, who knew Archie in his roles as a juve-
nile detention specialist and a physical education teacher,
described him as a “model employee” who was “very pro-
fessional” and had an “excellent work relationship with not
only the kids but the staff [and] supervisor[s].” Bryant stated
that Archie’s direct supervisor told Bryant that “Archie was
above and beyond” and that “he wished all his teachers [were]
like Archie.”
1. Termination of
A rchie’s Employment
In August 2014, Alexander received a telephone call from
a woman claiming to have information about Archie. She said
that her daughter had been a student at Omaha South High
School (Omaha South) when Archie was a teacher there prior
to his employment at DCYC. She stated that Archie and her
daughter had engaged in a sexual relationship and that she had
an audio clip to substantiate her claims. Alexander asked for
and received a copy of the clip.
The audio clip was a 4-minute segment of a telephone
conversation that took place in August 2014 between the for-
mer student and Archie, apparently recorded without Archie’s
knowledge. In the clip, Archie did not dispute that there had
been a sexual relationship between him and the former stu-
dent, but he did dispute whether the relationship began before
she graduated from high school. The policy of Omaha Public
Schools (OPS), Archie’s employer at the time, prohibited sex-
ual relationships between a teacher and former student within
2 years of that student’s enrollment.
After Alexander listened to the audio clip, he placed Archie
on paid administrative leave and issued him a predisciplinary
hearing notice. The notice alleged that Archie violated the
Commission’s personnel policy manual (the Manual), article
22, § 5(13) and (19). A predisciplinary hearing was held, which
Archie attended with his attorney. After the hearing, DCYC
terminated Archie’s employment.
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
The two reasons given were that Archie had violated the
Manual, article 22, § 5(19), “Has engaged in criminal, dis-
honest, immoral, or notoriously disgraceful conduct, which
is prejudicial to the county or to [the] County’s reputation,”
and § 5(13), “Falsification, fraud or intentional omission of
required information on the employment application/resume.”
The subsection (19) violation was based on Archie’s relation-
ship with the former student. The subsection (13) violation
was based on Archie’s failure to include the full reason behind
leaving OPS on his job applications with DCYC. The reasons
given by Archie for leaving OPS were “spend time w/ kids”
and “Family.”
The notice of termination stated that Archie had engaged
in a sexual relationship with a former student while she was
a senior in high school. It also stated that Archie was under
administrative leave and under investigation by OPS when he
first applied at DCYC and that his two DCYC applications
contained “willful misrepresentation.”
2. A rchie’s A ppeal to
the Commission
Archie appealed the termination of his employment to the
Commission. Douglas County called the former student, her
mother, Archie, and Alexander to testify. Archie called for-
mer DCYC detention manager Bryant. Documentary evidence
was also admitted, including Archie’s DCYC applications, a
letter from OPS to Archie, the audio clip, a reprimand from
the Nebraska Board of Education, the predisciplinary hearing
notice, and the notice of termination.
The Commission admitted a letter addressed to Archie,
dated shortly before his resignation, from OPS’ assistant super-
intendent for human resources. The letter, dated January 3,
2003, states:
Dear Mr. Archie:
On November 15, 2002, subsequent to investigation of
allegations of misconduct made against you that you had
engaged in a sexual relationship with a former student
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
within two years of that student’s enrollment in [OPS], I
recommended that your contract with [OPS] be cancelled
for engaging in such a relationship and for lying to me as
to your whereabouts on October 10, 2002, the date it was
alleged you were found with the student in a potentially
compromising sexual situation.
Based upon advice from legal counsel, after their
review of [OPS] files and witness interviews, that there
is insufficient evidence upon which the Board could rely
that you were in a compromising sexual situation on
October 10, 2002, I am withdrawing my recommendation
that your contract be cancelled for said action.
However, the fact remains that there is clearly admis-
sible and persuasive evidence that you did lie about
your whereabouts during the time period in question.
Accordingly, the administration will proceed with the
hearing you requested before the Board of Education as
previously scheduled on January 9, 2003, unless a let-
ter of resignation has been received from you prior to
such date.
Archie testified that when he received this letter, he believed
the investigation into his relationship with the former student
had been completed and believed the only ongoing investi-
gation at the time of his resignation was of whether he had
lied about his whereabouts on October 10, 2002. On January
6, 2003, he submitted his resignation, which was accepted
by OPS on January 9. He explained that at the time he first
applied at DCYC, there was no investigation ongoing and
he was not on administrative leave, because he had previ-
ously resigned.
Archie testified that he resigned rather than going through
with the hearing in order to spare his children from the nega-
tive rumors and attention that the situation would bring. He
testified he resigned because he did not feel like OPS was
listening to his side of the story and because of the “whole
situation.” He did not think that he would lose his job for lying
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
about his whereabouts, but resigned because of the rumors
and because “it was the easiest thing to do.” He believed he
was being accurate and honest when he wrote on his applica-
tion that he left OPS to “spend time w/ kids.” Since he had
been the head basketball coach, Archie assumed that people
at DCYC knew about the situation surrounding his leaving
Omaha South.
Archie testified that he had received a public reprimand
from the Nebraska Department of Education in November
2003 and was no longer under investigation when he applied
for the physical education teacher position at DCYC in May
2004. The reprimand was issued for lying about his where-
abouts during the OPS investigation. He explained that the
DCYC physical education teacher application did not ask
about prior investigations or reprimands and that therefore,
he did not describe his reprimand. He testified that when he
had applied for other positions as a public school teacher and
the applications did inquire about reprimands, he did set forth
that he had received a reprimand and described the surround-
ing circumstances.
The Commission admitted the audio clip of the telephone
conversation between Archie and the former student. Archie
testified that the 4-minute clip, from August 2014, was part of
a 30-minute conversation and that hearing the conversation in
its entirety “would help out tremendously.” In the clip, Archie
did not deny that the two engaged in a sexual relationship or
that it occurred when she was 17, but he did dispute that it
occurred before her graduation.
Testifying before the Commission, Archie was asked,
“Okay. So are you denying that you had a relationship with
her at all?” Archie replied, “Absolutely.” This denial occurred
shortly after a series of questions and answers about whether
the relationship occurred during the school year. Archie denied
that the relationship occurred while the former student had
been a student at Omaha South. Archie admitted that a sexual
relationship occurred between him and the former student
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295 Nebraska R eports
DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
sometime after her graduation: Asked “Did you engage in
sexual activity with [the former student] when she was in high
school,” Archie replied, “No I did not.” Asked “At some time
after she graduated you did engage in sexual activity with her,”
Archie replied, “Yes I did.”
Archie testified that the former student would call him
when she needed someone to talk to. The frequency of the
contact had increased in the past 5 years because “she was
determined that . . . she was going to do whatever it took to
be with me.” In July 2014, he tried to cut off contact with her.
Archie testified that after the conversation in August 2014
(from which the audio clip was recorded), he did not know if
she was going to try to harm him, because “she was saying so
many different things.” He said, “She threatened . . . to take
me to court and . . . [t]hat she would do whatever it takes to
take me down so that she could get rid of her love that she had
for me because that’s what she had to do.” Archie testified that
she told him, “You’re going to be with me,” and that “she was
determined that that was going to happen . . . at all costs. No
matter what.”
The former student, now 31 years old, testified that she was
a student at Omaha South from 1998 to 2001. She knew Archie
because he was her physical education teacher. She could not
recall what age she was when the relationship began, either
16 or 17, or what grade in school she was, either a junior or
a senior, but she was sure that she was a student at the time.
She said that she did not cooperate with OPS’ investigation
into the allegations about her relationship with Archie. She
said that the reason she did not cooperate was because she
“was manipulated and mentally . . . wasn’t able to make good
sound decisions.”
The former student testified that she had gone to great
efforts to keep in contact with Archie in the years after the
relationship. She testified that in the prior year, she had gone
to Archie’s workplace and waited for him in the parking lot
and had done so on multiple occasions. She said that Archie
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
had moved and would not tell her where he lived. He changed
his telephone number and would not give her his number. She
testified that in August 2014, she called him late at night even
though she was involved romantically with someone else, and
that she still wanted Archie to be with her.
Her mother testified that she first became aware of the
relationship when an OPS human resources manager asked
whether she had heard anything about a relationship between
her daughter and Archie. She confronted Archie about the
rumor, and he denied it. She testified that in October (she could
not remember the year), she went to her daughter’s father’s
house and found Archie there with her daughter. She reported
this to OPS. She later said that this occurred in 1999 and that
her daughter was a junior at the time. The letter from OPS to
Archie indicates that this event actually occurred in October
2002, more than a year after the former student had gradu-
ated in 2001. The mother also explained the 11-year delay in
contacting DCYC by saying that she needed her daughter “to
be the driving force behind holding him accountable for his
actions” and that her daughter “finally woke up.”
Alexander testified that he supervised the hiring decisions
at DCYC, but did not sit in on every job interview. He admit-
ted that, contrary to the notice of termination, Archie was
not actually under investigation by OPS at the time he first
applied to DCYC on February 4, 2003. He testified that at the
time of Archie’s hiring, he was not aware of the rumors about
Archie. He said that he would not have hired Archie if he had
known about the whole situation at Omaha South. He testi-
fied that during the predisciplinary hearing, Archie said that
his reason for resigning from Omaha South was to spare his
children from the embarrassment of the rumors about Archie.
Alexander agreed that protecting his children from rumors was
part of Archie’s reason for resigning from OPS.
Alexander explained that applicants would sometimes list
“personal” as their reason for leaving prior employment on
a job application. He said that if a person lists spending time
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DOUGLAS COUNTY v. ARCHIE
Cite as 295 Neb. 674
with kids or family as the reason, it is “fairly clear” that means
the reason is personal. This type of reason on an application
prompts a followup question in the interview to gain a better
understanding of the reason.
Alexander could not remember whether Bryant had told him
about the situation leading to Archie’s resignation at Omaha
South, nor could he remember any conversations between the
two about Archie’s hiring at DCYC. He was certain, however,
that Bryant would have been involved in Archie’s hiring as the
detention manager.
Bryant oversaw the day-to-day operations of DCYC, includ-
ing making hiring decisions; oversaw the supervisors; and
reported to Alexander. He testified that he made the decision to
hire Archie as a juvenile detention specialist at DCYC. Bryant
knew Archie for 3 or 4 years before Archie applied at DCYC,
from when Bryant was a basketball official and Archie was a
basketball coach at Omaha South. While officiating a game at
Omaha South, he was told that Archie had resigned “due to
something that happened with a former student.” Bryant later
encouraged Archie to apply for the open juvenile detention
specialist position at DCYC.
Before hiring Archie, Bryant let Alexander know that
“Archie resigned from [Omaha] South . . . due to something
with a former student.” He recalled Alexander’s saying some-
thing like, “Give him a shot.” Bryant also agreed that listing
“spend time w/ kids” as the reason for leaving a prior job on
an application could mean that the reason is personal or that
applicants wanted to avoid exposure for their kids. He said,
“[W]hen you see things like spending time with kids [on an
application], you know there’s some issues there.”
Near the end of the hearing, the Commission asked whether
DCYC was subject to the Prison Rape Elimination Act (PREA)
guidelines; Alexander replied that it was. After the final wit-
ness testified, the Commission delayed making a decision
“until [the] issue of whether . . . Archie would be able to be
employed at [DCYC] pending a review of PREA and any other
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DOUGLAS COUNTY v. ARCHIE
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similar applicable rules and regulations.” The Commission
resumed on November 25, 2014, and noted that its members
had reviewed the PREA juvenile facility standards and a PREA
frequently-asked-questions document.
The Commission voted 3 to 0 to reverse the decision of
DCYC to terminate Archie’s employment and “for him to be
made whole as of August 29, 2014.”
After the Commission made its decision, Douglas County
requested that the Commission include specific findings of
fact and conclusions of law in its order, which request the
Commission denied.
3. Douglas County’s A ppeal
to District Court and
Court of A ppeals
Douglas County filed a petition in error with the district
court for Douglas County. The district court affirmed the
Commission’s order. Douglas County appealed from the dis-
trict court to the Court of Appeals. The Court of Appeals
reversed the decisions of the district court and the Commission
and ordered that the termination of Archie’s employment be
reimposed.1 Judge Bishop dissented. The majority concluded
that “the district court’s order was arbitrary, capricious, and
unsupported by sufficient, relevant evidence.”2
The majority found that Archie’s testimony, which it char-
acterized as “contradictory,” could not be accepted in light
of the rest of the evidence.3 It concluded that “no reasonable
and honest person could reach the conclusion of the district
court that Archie’s behavior was not a violation of [a]rticle 22,
§ 5(19)” of the Manual.4
1
Douglas County v. Archie, No. A-15-322, 2016 WL 3964767 (Neb. App.
July 19, 2016) (selected for posting to court website).
2
Id. at *1.
 3
Id. at *5.
 4
Id. at *6.
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DOUGLAS COUNTY v. ARCHIE
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It concluded that “the evidence was legally insufficient to
support the district court’s conclusion that Archie’s conduct
was not a violation” of article 22, § 5(13), of the Manual, and
it found that “Archie’s reason for leaving OPS was broader
than”5 the reasons provided on his applications.
The majority also dismissed the fact that DCYC mistakenly
believed—as it stated in its notice of termination—that Archie
was under active investigation by OPS and on administrative
leave when he first applied at DCYC. It concluded that “the
exact dates of the investigation are immaterial to the larger
question of whether Archie’s statements constitute ‘[f]alsifica-
tion, fraud or intentional omission.’”6 It found that regardless
of the timing, Archie’s “failure to mention the situation with
the student as a reason for leaving his OPS job was neverthe-
less an ‘intentional omission of required information.’”7 The
majority found that the evidence was legally insufficient to
support the conclusion that Archie had not violated subsection
(13). It concluded that “no reasonable person could determine
that Archie’s termination was not warranted under both [a]rti-
cle 22, § 5(13) and (19).”8
Finally, the Court of Appeals did not consider Douglas
County’s assignment of error that the Commission had
exceeded its statutory authority by considering matters outside
the record, specifically the materials on the applicability of the
PREA. The Court of Appeals did not reach this issue because
of its disposition in Douglas County’s favor on its first assign-
ment of error.
In her dissent, Judge Bishop reasoned:
[T]he district court’s and this court’s standard of review
requires giving the Commission considerable defer-
ence by limiting our review to whether or not there is
5
Id.
6
Id.
7
Id.
8
Id. at *7.
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sufficient, relevant evidence to support the Commission’s
decision, and to ensure its decision is not arbitrary or
capricious. Contrary to that limited standard of review,
the majority instead seems to rely on its own interpreta-
tion of some of the evidence which the majority suggests
supports DCYC’s decision to terminate Archie’s employ-
ment. However, our standard of review does not permit
us to reverse the Commission’s decision simply because
there is evidence that may support a different outcome.
Rather, like the district court, our role is only to deter-
mine whether there is sufficient evidence to support the
Commission’s decision.9
The dissent pointed out that the job applications contained
a notice warning applicants that the applications may be con-
sidered public records and be publicly available. And this
“would certainly give an applicant pause about providing
personal details on the application.”10 Alexander testified that
there had been other instances in which applicants had stated
“personal” as their reason for leaving a prior job. Alexander
indicated that providing the reason “spend time w/ kids” or
“Family” would mean the reason is personal. The dissent
reasoned that “[s]ince writing ‘personal’ as an explanation
for leaving a former job is not an intentional omission of
required information, it seems incongruous that writing ‘spend
time w/kids’ is somehow so substantially different from writ-
ing ‘personal’ that it constitutes an intentional omission of
required information . . . .”11
The dissent also noted that DCYC’s termination of Archie’s
employment appeared to be based on erroneous informa-
tion. In its notice of termination, DCYC stated it believed
that Archie had conceded the relationship occurred while
9
Id. at *8 (Bishop, Judge, dissenting).
10
Id. at *12.
11
Id.
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the former student was at Omaha South and that Archie was
under investigation and on administrative leave when he first
applied to DCYC. In fact, Archie never made that concession.
He was not under investigation for the relationship when he
resigned. He was not on administrative leave when he applied
to DCYC.
The dissent concluded that because “there is sufficient,
relevant evidence in the record to support that Archie did not
intentionally omit required information on his 2003 and 2004
applications,”12 the Commission’s decision should stand.
We granted Archie’s petition for further review.
III. ASSIGNMENTS OF ERROR
In his petition for further review, Archie asserts that the
Court of Appeals erred by finding there was insufficient evi-
dence for the Commission to conclude that Archie did not vio-
late article 22, § 5(13) and (19), of the Manual.
IV. STANDARD OF REVIEW
[1-3] 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 evidence
supports the decision of the agency.13 The evidence is suf-
ficient, 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.14 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.15
12
Id. at *13.
13
Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792 N.W.2d
871 (2011).
14
Id.
15
Id.
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[4] An administrative agency decision must not be arbitrary
and capricious.16 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.17
[5-7] Appellate courts independently review questions of
law decided by a lower court.18 The interpretation of regula-
tions presents questions of law.19 Whether an agency decision
conforms to the law is by definition a question of law.20
V. ANALYSIS
1. R eview of Civil Service
Commission A ppeals by
Petition in Error
[8] The Commission is governed by Neb. Rev. Stat.
§§ 23-2501 to 23-2516 (Reissue 2012). These statutes pro-
vide the Commission with various powers and responsi-
bilities, including rulemaking and adjudicatory powers.21
The Commission acts in a judicial manner when deciding
employee appeals.22
When a county employee is terminated, suspended, or
demoted, the department head must provide the employee
with a written order explaining the reason for the discipline.23
The employee then has the opportunity to appeal that deci-
sion to the Commission.24 The Commission, acting in an
16
See Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
17
Fleming v. Civil Serv. Comm. of Douglas Cty., supra note 13.
18
See id.
19
See id.
20
See id.
21
§§ 23-2507 and 23-2511.
22
See Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d
660 (2008).
23
§ 23-2510.
24
Id.
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adjudicatory f­ashion akin to a trial court, holds an appeal
hearing “at which the employee shall be entitled to appear
personally, be represented by counsel, cross-examine witnesses
and produce evidence.”25 The Commission has the authority
“to affirm, modify or revoke the order appealed from.”26 The
Commission’s decisions are final and binding on all parties.27
A party adversely affected by a decision of the Commission is
entitled to appeal to the district court through the petition in
error statutes.28
[9] The purpose of a proceeding in error is to remove the
record from an inferior to a superior tribunal so that the latter
tribunal may determine if the judgment or final order of the
inferior tribunal is in accordance with law.29
[10] An agency’s decision must be supported by sufficient,
relevant evidence.30 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.31 The reviewing court in an error proceed-
ing is restricted to the record before the administrative agency
and does not reweigh evidence or make independent findings
of fact.32
In Eshom v. Board of Ed. of Sch. Dist. No. 54,33 we explained
that the “sufficient evidence” standard used to review an
administrative body’s decision in a proceeding in error is the
25
§ 23-2511.
26
Id.
27
Id.
28
Id.; § 23-2515.
29
Eshom v. Board of Ed. of Sch. Dist. No. 54, 219 Neb. 467, 364 N.W.2d 7
(1985).
30
Fleming v. Civil Serv. Comm. of Douglas Cty., supra note 13.
31
Id.
32
Id.
33
See Eshom v. Board of Ed. of Sch. Dist. No. 54, supra note 29, 219 Neb.
at 471, 364 N.W.2d at 11.
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same standard as the “substantial evidence” and “competent
evidence” standards used in administrative law. We explained
that this inquiry is akin to the inquiry as to the sufficiency of
the evidence to sustain a jury verdict: “[T]he evidence is ‘sub-
stantial’ or ‘sufficient as a matter of law,’ or constitutes ‘some
competent evidence,’ if a judge could not, were the trial to a
jury, direct a verdict.”34 The standard “is something less than
the weight of the evidence and can be such as to permit the
drawing of two inconsistent conclusions.”35
Similarly, the U.S. Supreme Court has stated:
We have defined “substantial evidence” as “such rel-
evant evidence as a reasonable mind might accept as
adequate to support a conclusion.” . . . “[I]t must be
enough to justify, if the trial were to a jury, a refusal to
direct a verdict when the conclusion sought to be drawn
from it is one of fact for the jury.”36
Another authority has explained the substantial evidence stan-
dard of review:
The reviewing court’s task on appeal is to determine if
there is substantial evidence to support the agency’s deci-
sion, not to determine if there is substantial evidence that
contradicts the agency’s decision. Accordingly, in deter-
mining whether an administrative decision is supported
by substantial evidence, the question for the appellate
court is not whether the testimony would have supported
a contrary finding but whether it supports the finding
that was made. In other words, even if there is evidence
in the record which tends to contradict an agency’s fac-
tual determinations, so long as there is some substantial
evidence in the record which supports the agency’s deter-
mination, the court will affirm. . . . The mere possibil-
ity that the administrative record might support another
34
Id.
35
Id.
36
Consolo v. Federal Maritime Comm’n., 383 U.S. 607, 619-20, 86 S. Ct.
1018, 16 L. Ed. 2d 131 (1966) (citations omitted).
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conclusion does not permit the reviewing court to make
a finding inconsistent with the agency finding so long as
there is substantial evidence to support it.37
[11-13] An agency’s decision must not be arbitrary and
capricious.38 Agency action is arbitrary and capricious if it is
taken in disregard of the facts or circumstances of the case,
without some basis that would lead a reasonable and honest
person to the same conclusion.39 Agency action taken in dis-
regard of the agency’s own substantive rules is also arbitrary
and capricious.40 A review using the “arbitrary and capricious”
standard requires considerable deference to the judgment and
expertise of the agency.41 A decision is arbitrary and capricious
if the agency has relied on factors that the Legislature has not
intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise.42
2. The Commission’s
R einstatement of A rchie
The record shows sufficient, relevant evidence for the
Commission’s decision to reinstate Archie and that this deci-
sion was not arbitrary and capricious.
The majority concluded that “in light of all the evidence,
Archie’s conduct violated [a]rticle 22, § 5(13) and (19)[,] of the
. . . Manual, thereby constituting a basis for his termination.”43
37
73A C.J.S. Public Administrative Law and Procedure § 531 at 383 (2014)
(emphasis supplied).
38
Blakely v. Lancaster County, supra note 16.
39
Id.
40
Id.
41
Central Platte NRD v. City of Fremont, 250 Neb. 252, 549 N.W.2d 112
(1996) (White, C.J., concurring).
42
Id.
43
Douglas County v. Archie, supra note 1 at *5.
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It found that the district court’s decision affirming the
Commission’s reinstatement of Archie was arbitrary, capri-
cious, and unsupported by sufficient, relevant evidence.
[14] Whether Archie’s conduct violated the two relevant
provisions of the Manual is not the relevant inquiry. The proper
inquiry for an appellate court when reviewing the decision of
an administrative agency on a petition in error is whether there
was sufficient, relevant evidence to support the conclusion that
the agency did make and not whether the evidence would sup-
port a contrary conclusion.44
[15] In the case at bar, there was conflicting evidence. But
as the U.S. Supreme Court has explained, “the possibility of
drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s finding from being sup-
ported by substantial evidence.”45 As in reviewing a jury ver-
dict, if there is sufficient evidence to support the decision, the
reviewing court must affirm even if it “may be of the opinion
that had it been the trier of the case, it would have reached a
different conclusion.”46
[16] The majority on the Court of Appeals panel concluded
that “[t]he district court’s decision affirming the Commission’s
reinstatement of Archie [was] arbitrary, capricious, and unsup-
ported by sufficient, relevant evidence.”47 On a petition in error,
the district court acts in an appellate capacity and employs the
same deferential standard of review that an appellate court
uses.48 Thus, the question for the Court of Appeals was whether
the district court erred in finding that the Commission’s
44
See, Eshom v. Board of Ed. of Sch. Dist. No. 54, supra note 29; 73A
C.J.S., supra note 37.
45
Consolo v. Federal Maritime Comm’n., supra note 36, 383 U.S. at 620.
46
Myers v. Platte Val. Pub. Power & Irr. Dist., 159 Neb. 493, 507, 67
N.W.2d 739, 746 (1954). See, also, Prescott v. Jones, 13 Neb. 534, 14
N.W. 536 (1882).
47
Douglas County v. Archie, supra note 1 at *5 (emphasis supplied).
48
See Fleming v. Civil Serv. Comm. of Douglas Cty., supra note 13.
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d­ecision was supported by sufficient, relevant evidence and
was not arbitrary and capricious.
The Commission issued a brief written order reversing
Archie’s termination, but it did not articulate the precise rea-
sons behind its decision. Thus, in our review, we will consider
whether there was sufficient evidence to conclude that Archie
did not violate the two relevant provisions of the Manual.
(a) Subsection (19): Dishonest, Immoral,
or Notoriously Disgraceful Conduct
That Is Prejudicial to County
We conclude that there was sufficient, relevant evidence and
that it was not arbitrary and capricious for the Commission
to determine Archie did not violate article 22, § 5(19), by
“engag[ing] in criminal, dishonest, immoral, or notoriously
disgraceful conduct, which is prejudicial to the County or to
[the] County’s reputation.”
To fall within the ambit of subsection (19), an employee’s
conduct must not only be “criminal, dishonest, immoral, or
notoriously disgraceful,” but must also be “prejudicial to the
County or to [the] County’s reputation.” As an initial matter,
no one suggests that Archie’s conduct was criminal. Assuming,
for the sake of argument, that Archie’s conduct was “immoral”
or “notoriously disgraceful,” we conclude that the Commission
could have reasonably determined that Archie’s conduct was
not prejudicial to the county or its reputation. Archie had been
an exemplary employee with DCYC for 11 years.
It is not clear whether subsection (19) even applies to
preemployment conduct. Subsection (19) can reasonably be
understood to govern only the conduct of employees dur-
ing their employment. The grounds for discipline listed in
the Manual—with the exception of subsection (19) relating
to information on an application or resume—“all relate to
conduct while employed by the County.”49 The Manual states
49
Douglas County v. Archie, supra note 1 at *14 (Bishop, Judge, dissenting)
(emphasis supplied).
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that “[t]he purpose of a disciplinary policy is to acquaint all
employees with the rules that serve to guide their conduct
in order that they can be contributing team members help-
ing to achieve the objectives of better and more efficient
service to the citizens of Douglas County.” This stated pur-
pose implies that the goal of the disciplinary provisions is to
guide employee conduct in the employees’ positions as county
employees, and not to punish the employees for past bad
behavior that occurred before they were hired by the county.
To the extent that preemployment conduct is harmful to the
county or its reputation, the county could have addressed this
issue prior to employing Archie.
Conduct of an employee occurring during the course of
employment is categorically distinct from conduct occurring
prior to employment with regard to the prejudice to the county.
While the county has no ability to prevent the prejudicial effect
of a current employee’s conduct prior to its occurrence, it does
have the ability to inquire about past conduct prior to hiring
an applicant.
Even assuming that article 22, § 5(19), of the Manual
could apply to preemployment conduct, the Commission could
have reasonably concluded that Douglas County was not prej-
udiced by Archie’s conduct. Bryant’s testimony before the
Commission showed that DCYC had knowledge that Archie
had resigned due to something involving a former student. It
also was aware that Archie listed “spend time w/ kids” as his
reason for leaving a teaching job in the middle of the school
year. The Commission could have reasonably determined that
the county did not suffer any prejudice when, knowing these
facts, it apparently failed to conduct any further inquiry into
his reason for leaving OPS and decided to “[g]ive him a shot.”
When, after over 11 years of exemplary service at DCYC,
Archie’s preemployment conduct was discovered, it was not
unreasonable for the Commission to determine that the county
was not unfairly prejudiced.
To the extent that the Commission’s decision to reinstate
Archie was premised upon the conclusion that Archie did
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not violate subsection (19), that conclusion was supported
by sufficient, relevant evidence and was not arbitrary and
capricious.
(b) Subsection (13): Intentional Omission of
Required Information on Employment
Application/Resume
We conclude that there was sufficient, relevant evidence and
that it was not arbitrary and capricious for the Commission to
determine Archie did not violate article 22, § 5(13), by engag-
ing in “[f]alsification, fraud or intentional omission of required
information on the employment application/resume.”
The primary question was whether Archie engaged in an
“intentional omission of required information” on his two
DCYC applications. The evidence strongly supports the conclu-
sion that Archie did not engage in “[f]alsification” or “fraud”
because of his statement that he left OPS to spend more time
with his family.
We give deference to the Commission’s determination of
what level of detail was “required” of Archie when explain-
ing his reason for leaving a previous position. Given the fact
that all information was a matter of public record, a generic
reason such as “personal” was not considered an intentional
omission. The reasons could then be explained to DCYC in a
private interview.
The facts surrounding Archie’s resignation were complex.
The investigation into his relationship with the former student
was part of the background of his resignation, but that inves-
tigation had ended before his resignation. The only ongoing
investigation was whether he had lied about his whereabouts
to OPS investigators. His desire to protect his children from
rumors and negative attention was a part of his reason for
leaving. It was not clear how much of this “whole situation”
leading to Archie’s resignation he was required to explain on
the applications.
Alexander’s testimony supports the fact that it was not
considered an omission of required information to provide a
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generic, but incomplete, reason for leaving a prior job, such
as “personal,” rather than providing a detailed explanation.
He also stated that providing a reason such as “spend time
w/ kids” or “Family” was the equivalent of writing “personal.”
Archie’s reasons for leaving his job at OPS should have
prompted further questions by DCYC in his interview. The
record contains evidence that DCYC was aware he resigned
due to “something with a former student” and that it decided
to “[g]ive him a shot.” The Commission could have reasonably
concluded that Archie was not “required” to give a detailed
answer as to his reason for leaving OPS and that his answers
“spend time w/ kids” and “Family” were the same as stating
the reasons were “personal.”
Not only must the information omitted be required infor-
mation to violate article 22, § 5(13), but the applicant must
intentionally omit required information. Archie testified that
he believed the reasons provided were accurate and honest.
The Commission could have reasonably concluded that Archie
did not believe he was omitting any required information on
his applications, but that he instead believed he was giving all
that was required. We will give deference to the Commission’s
determinations of credibility of the witnesses it observed.
To the extent that the Commission’s decision to reinstate
Archie was premised upon the conclusion that Archie did
not violate subsection (13), that conclusion was supported
by sufficient, relevant evidence and was not arbitrary and
capricious.
3. Douglas County’s R emaining
Assignments of Error
In its appeal to the Court of Appeals, Douglas County
also asserted that the district court erred by upholding the
Commission’s refusal to make factual findings in its order
as requested and by exceeding its statutory authority by con-
sidering information outside the record and not presented by
either party (the material on the applicability of the PREA).
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Douglas County did not seek review of the Court of Appeals’
conclusion that it had failed to preserve its claim that the
Commission erred by denying Douglas County’s request to
make specific findings of fact. Because this issue was not pre-
served, we do not address it further.
The Court of Appeals did not address Douglas County’s
remaining assignment of error—that the Commission erred
by considering the material related to the applicability of the
PREA. We conclude it is clear from the record that the mate-
rial did not form the basis of the Commission’s decision to
reinstate Archie. Thus, Douglas County suffered no prejudice
from the Commission’s consideration of this material.
After hearing the evidence, the Commission delayed its
decision “until [the] issue of whether . . . Archie would be able
to be employed at [DCYC] pending a review of PREA and any
other similar applicable rules and regulations.” The fact that
the Commission reinstated Archie, after its review, demon-
strates that it concluded the PREA would not prohibit Archie’s
continued employment at DCYC. Therefore, the Commission’s
decision to reinstate Archie shows that it did not make its deci-
sion based on the PREA materials, but on the merits of the
evidence presented by the parties.
Because the PREA materials were not part of the
Commission’s decision to reinstate Archie, Douglas County
suffered no resulting prejudice.
VI. CONCLUSION
Based upon our standard of review, we conclude that the
Commission’s decision was supported by sufficient, relevant
evidence and was not arbitrary and capricious. We reverse the
opinion of the Court of Appeals and remand the cause with
directions to reinstate the judgment of the district court which
affirmed the order of the Commission.
R eversed and remanded with directions.