Blakely v. Lancaster County

BLAKELY v. LANCASTER COUNTY 	659
Cite as 284 Neb. 659
time of the shooting “undermines its finding that [Smith] could
have retreated rather than fire the weapon.”77
We disagree. Even if Smith was provoked by a sudden quar-
rel to fire the shot which hit Marcus, it does not necessarily
follow that he was justified in using deadly force by a belief
that it was necessary to protect himself against death or seri-
ous bodily harm. We agree with the Court of Appeals that on
this record, there is no evidence that Smith had a reasonable
and good faith belief that he needed to protect himself against
death or serious bodily harm at the moment that he fired the
shots. Whether he was provoked by a sudden quarrel to fire the
shots is a separate and distinct inquiry which is not dependent
upon a reasonable and good faith belief in the necessity of
using deadly force for self-protection.
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals which affirmed in part and in part
reversed the judgment of the district court and remanded the
cause for a new trial.
A ffirmed.
CAssel, J., not participating.
77 Id. at 9.
mike BlAkely, AppellAnt, v. lAnCAster C ounty,
neBrAskA, And the lAnCAster C ounty
personnel poliCy BoArd, Appellees.
825 N.W.2d 149
Filed November 16, 2012. 	No. S-11-686.
1. Administrative Law: Words and Phrases. An administrative agency is a gov-
ernmental authority, other than a court and other than a legislative body, which
affects the rights of private parties through either adjudication or rulemaking.
2. Civil Service: Administrative Law: Words and Phrases. Under the County
Civil Service Act, Neb. Rev. Stat. §§ 23-2517 to 23-2533 (Reissue 2012), a “per-
sonnel policy board” is an administrative agency performing quasi-judicial func-
tions when it reviews a grievance of, or disciplinary action against, a classified
service employee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

660 	284 NEBRASKA REPORTS
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. Administrative Law: Evidence: 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. 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.
5. Administrative Law. An administrative agency decision must not be arbitrary
or capricious.
6. ____. 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 reason-
able and honest person to the same conclusion.
7. ____. Agency action taken in disregard of the agency’s own substantive rules is
also arbitrary and capricious.
8. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
9. Statutes. The interpretation of statutes and regulations presents questions of law.
10. Contracts. Contract interpretation presents a question of law.
11. 	Administrative Law: Judgments. Whether an agency decision conforms to the
law is by definition a question of law.
12. Judgments: Justiciable Issues. Justiciability issues that do not involve a factual
dispute present a question of law.
13. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
14. Moot Question. Mootness refers to events occurring after the filing of a suit
which eradicate the requisite personal interest in the resolution of the dispute that
existed at the beginning of the litigation.
15. Moot Question: Words and Phrases. A moot case is one which seeks to deter-
mine a question that no longer rests upon existing facts or rights—i.e., a case in
which the issues presented are no longer alive.
16. Moot Question. The central question in a mootness analysis is whether changes
in circumstances that prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief.
17. ____. A case is not moot if a court can fashion some meaningful form of relief,
even if that relief only partially redresses the prevailing party’s grievances.
18. Civil Service: Administrative Law: Statutes. Statutory requirements under
a civil service act regarding appointments and promotions are mandatory.
Appointing authorities must comply with them for an appointment or promotion
to be valid.
19. Civil Service: Words and Phrases. An “appointment” under the County Civil
Service Act, Neb. Rev. Stat. §§ 23-2517 to 23-2533 (Reissue 2012), refers to an
appointing authority’s designation of a person to fill a vacant classified serv-
ice position.

BLAKELY v. LANCASTER COUNTY 	661
Cite as 284 Neb. 659
20. Civil Service. Properly conducted examinations provide the cornerstone of a
merit-based civil service system.
21. Civil Service: Administrative Law. Neb. Rev. Stat. § 23-2525(13) (Reissue
2012) does not preclude a county from defining a transfer to include transfers
within the same department.
22. Administrative Law: Statutes. A county is not free to promulgate rules that
directly violate statutory requirements.
23. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served. A court must then reasonably or liberally construe the
statute to achieve the statute’s purpose, rather than construing it in a manner that
defeats the statutory purpose.
24. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
25. Civil Service: Administrative Law: Legislature: Intent. Under Neb. Rev. Stat.
§ 23-2525(3) (Reissue 2012), the Legislature intended a county to conduct com-
petitive examinations to fill all open positions in the classified service, unless an
exception applies.
26. Civil Service: Administrative Law: Labor and Labor Relations: Contracts.
Under the County Civil Service Act, Neb. Rev. Stat. §§ 23-2517 to 23-2533
(Reissue 2012), a county cannot implement any provision of the county employ-
ees’ collective bargaining agreement that would violate a provision of the act.
27. Civil Service: Administrative Law: Legislature: Intent. Under Neb. Rev.
Stat. § 23-2525(4) (Reissue 2012), the Legislature intended a county to conduct
promotional examinations. And appointing authorities must consider records of
performance, seniority, and conduct when making promotions.
28. Civil Service: Administrative Law. When a vacancy in the classified serv-
ice is not filled by a transfer or under a statutory exception, Neb. Rev. Stat.
§ 23-2525(3) and (4) (Reissue 2012) required the county to fill it through
one of two types of examinations: open competitive examinations or promo-
tional examinations.
29. ____: ____. When a civil service statute requires an appointing authority to con-
sider seniority in making a promotion, that requirement must be respected.
30. ____: ____. Under Neb. Rev. Stat. § 23-2525(4) (Reissue 2012), a county is not
conducting promotional examinations when it posts a position as available to all
county employees and fails to consider seniority.
31. Civil Service: Administrative Law: Legislature: Intent. Under Neb. Rev. Stat.
§ 23-2525(3) (Reissue 2012), the Legislature intended to limit an appointing
authority’s selection of an applicant to one of the applicants who scored highest
on the final score of the examination process.
32. Civil Service. Under Neb. Rev. Stat. § 23-2525(3) (Reissue 2012), when oral
interviews are part of the examination process for an appointment to the civil
service, an applicant’s score on an oral interview must be included in the
final score.
33. Civil Service: Administrative Law. Under Neb. Rev. Stat. § 23-2525(3) (Reissue
2012), a county must devise objective standards to test the fitness of applicants as
far as possible. When oral examinations are used to test an applicant’s subjective

662 	284 NEBRASKA REPORTS
traits, the scoring must be guided by measurable standards. That is, the examina-
tions must provide some reasonable means of judicial review.
Appeal from the District Court for Lancaster County: roBert
r. otte, Judge. Reversed and remanded with directions.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Joe Kelly, Lancaster County Attorney, and Thomas W. Fox
for appellees.
heAviCAn, C.J., Wright, C onnolly, stephAn, mCC ormACk,
and miller-lermAn, JJ.
C onnolly, J.
I. SUMMARY
The appellant, Mike Blakely, appeals from a district court
order that affirmed the Lancaster County Personnel Policy
Board’s1 decision that denied Blakely’s grievance. Blakely’s
grievance alleged that the county denied him an opportunity to
fairly compete for job vacancies because county officials did
not follow the county’s personnel rules or the employees’ col-
lective bargaining agreement (CBA).
There are two vacancies at issue. The first was a vacancy at
the county’s mental health center. For that vacancy, the county
reassigned one of its employees to that position without con-
ducting competitive examinations. The second vacancy was a
grounds maintenance position left open after the county reas-
signed the first employee to the mental health center.
Regarding the first vacancy at the mental health center,
the crux of the issue is the county’s claim, and the court’s
implicit ruling, that a department head’s decision to place a
current department employee in a newly created vacancy is
a “reassignment”—not an appointment subject to competi-
tive examinations. Regarding the second vacancy, the court
affirmed the county’s promotion of a department employee
to the vacancy although the department did not consider the
applicants’ seniority. Finally, the court ruled Blakely’s claim
1 See Neb. Rev. Stat. § 23-2520 (Reissue 2012).

BLAKELY v. LANCASTER COUNTY 	663
Cite as 284 Neb. 659
moot because he no longer worked for the county after being
laid off in December 2009.
We reverse. We will explain our holding with specificity in
the following pages, but briefly stated, it is this:
• Blakely’s claim is not moot. Blakely worked for the county
when the new positions became available and when he filed
his grievance. Because we conclude that his procedural chal-
lenges have merit, the county must consider him in new com-
petitive examinations for the vacancies that comply with the
county’s statutory and contractual duties.
• The court erred in affirming the personnel policy board’s
denial of Blakely’s grievance. The County Civil Service Act2
required county officials to comply with its provisions. In
filling the first vacancy, the county failed to post notice of,
and conduct, competitive examinations. In filling the second
vacancy, it failed to properly conduct competitive examina-
tions. Thus, its hiring and promotion decisions were arbitrary
and capricious, and therefore void.
II. BACKGROUND
In 2009, when Blakely filed his grievance, he worked for the
county at Lancaster Manor. He had worked for the county for
17 years, and his position was classified as a maintenance repair
worker II (MRW-II). The county had long treated Lancaster
Manor as a separate department. All other maintenance repair
workers were employed by the county’s department of property
management (the department). At Lancaster Manor, Blakely
maintained the heating and cooling systems and the kitchen
equipment and performed general maintenance duties. He had
extensive experience working with boilers, water systems, laun-
dry equipment, and other types of equipment. He had obtained
a certificate of completion for a 14-month masonry program
and had always received good evaluations. In November 2008,
Blakely was Lancaster Manor’s employee of the month, and
in March 2009, he received the “Commissioner’s Award of
Excellence” for his speedy handling of a water pipe break that
caused emergency flooding at Lancaster Manor.
2 See Neb. Rev. Stat. §§ 23-2517 to 23-2533 (Reissue 2012).

664 	284 NEBRASKA REPORTS
This dispute arises out of the county’s actions in April and
May 2009. On April 2, the county’s board of commissioners
approved a request from the department for an additional main-
tenance employee at the mental health center. Don Killeen, the
department’s director, stated in a letter to Blakely’s attorney
that when he asked for the new position, he intended to fill it
through “assignment” of a current employee.
On April 13, 2009, Fred Little, the department’s facilities
manager, posted the vacancy. The posting stated the position
was open only to county employees. It stated that the position
required an applicant to perform grounds maintenance; operate,
maintain, and repair heating, ventilating, and air conditioning
systems; install, maintain, and repair plumbing fixtures and
equipment; perform general carpentry work; and perform inte-
rior and exterior painting of buildings.
After 	posting 	the 	position, 	and 	at 	Killeen’s 	direction,
Little asked the people in the department whether anyone
was interested in the vacancy. One department employee, Jim
Kohmetsher, expressed interest but said that he needed time to
think about it. Before the county hired him, Kohmetsher had
experience working with heating, air conditioning, and plumb-
ing systems. But as a county employee, Kohmetsher worked
with a grounds maintenance crew, and he had worked only 11⁄2
years for the county. The county assigned an MRW-II classifi-
cation to his grounds maintenance position. Later, Kohmetsher
told Little that he wanted the job at the mental health center,
and Little “reassigned” him to that vacancy. Kohmetsher did
not formally apply for the position, nor did Little conduct com-
petitive examinations before filling the vacancy.
After Little reassigned Kohmetsher to the new position, the
department determined that it would fill Kohmetsher’s for-
mer grounds maintenance position through the same previous
posting. In other words, because the posting did not specify a
worksite for the MRW-II position, the department concluded
that it could change the new vacancy without issuing a new
posting. Little said that when he posted the position, he was
not sure where the successful applicant would work because he
did not know whether a department employee would take the
position at the mental health center.

BLAKELY v. LANCASTER COUNTY 	665
Cite as 284 Neb. 659
Blakely had learned about the MRW-II position and applied
for it the same week that the county posted it. The county
was considering selling Lancaster Manor, and Blakely was
concerned that if it were sold, he might lose his job. Blakely’s
supervisor supported his decision to apply for the new posi-
tion. Blakely also spoke to Little at Lancaster Manor about
the position during the week of April 13, 2009. Little told
Blakely that the MRW-II position was for a vacancy at
the mental health center. But Little also told Blakely that
another employee was interested in the vacancy and that
Blakely should wait and apply for the other employee’s posi-
tion. Blakely, however, had already applied for the posted
vacancy at the mental health center. Although the county
later changed the vacancy to be filled, Blakely believed, from
speaking to Little, that the MRW-II vacancy was for the men-
tal health center.
Before Little “reassigned” Kohmetsher to the mental health
center vacancy, he had received a list of five county employees
who had applied for the position and met the minimum eligibil-
ity requirements. The list included Blakely. As Kohmetsher had
not applied, Blakely was the only applicant who held a position
with an MRW-II classification. But Little did not interview
these applicants for the mental health center vacancy because
he had already assigned Kohmetsher to the vacancy; the county
had determined that it was not required to fill the vacancy
through competitive examinations because Kohmetsher’s reas-
signment was not an “original appointment” open to the public
under its personnel rules.
Instead, at the interview, Little informed each applicant that
the vacancy was for a grounds maintenance and snow removal
position—the position that became available when Little reas-
signed Kohmetsher. He stated that Blakely was the only appli-
cant who knew that the vacancy was originally for the mental
health center.
In 	selecting 	an 	applicant 	for 	the 	grounds 	maintenance
vacancy, Little did not consider the seniority of any applicant.
He also said that an MRW-II classification did not denote a
higher qualified employee than a maintenance repair worker I
(MRW-I) classification. Little did not ask the applicants about

666 	284 NEBRASKA REPORTS
their duties or performance appraisals in their current posi-
tions or attempt to obtain this information from the appli-
cants’ managers.
At his interview, Blakely was surprised when he learned
that the interview was not for the position at the mental health
center. He expressed, however, that he was interested in any
position that would allow him to keep his employment with the
county. Little stated that Blakely performed well in the inter-
view, but he promoted another applicant, Mark Bartusek, an
MRW-I employee in the department.
Bartusek had worked for the county for 3 years, and Little
said he believed that Bartusek was more qualified than Blakely.
Little said that he had worked with Bartusek for 4 to 5 months
during a remodeling project and that he knew from his obser-
vations that Bartusek had a good work ethic and worked well
with others. Little said that he had not worked with Blakely,
yet he admitted that he did not inquire about Blakely’s conduct
or performance appraisals: “[N]othing against [Blakely], but I
don’t know how he works with the other people at the manor.
I just know him in casual conversation.”
1. the C ounty’s hiring And
promotion proCedures
Pat Kant, the manager of the county’s employment office,
said that although the rules permit department heads to agree
on a current employee’s transfer without posting the position,
it rarely happens and only when it is in the county’s best
interests to move a person. She cited disciplinary concerns
as a typical example of when such a transfer would occur.
She said that county employees usually must compete for
the position.
But Kant denied that the county’s personnel rules required
the county to conduct, or post notice of, competitive examina-
tions for the vacancy at the mental health center. She said that
the CBA, instead of the personnel rules, governed the filling
of the new vacancy because it was a bargaining unit position.
Kant claimed that the CBA did not require the county to inform
the public or any classified service employees of the new posi-
tion at the mental health center.

BLAKELY v. LANCASTER COUNTY 	667
Cite as 284 Neb. 659
Additionally, Kant explained the county’s examination and
scoring of applicants. She said that applicants had to com-
plete an electronic application and a supplemental question-
naire, which permitted an employment technician to eval-
uate the applicants’ training and experience. The employment
technician verifies that the applicants’ computer scores based
on their answers is accurate. The ones who scored the high-
est points were the most desirable applicants. Kant said that
the employment office does not review the performance
appraisals of current employees or check references about
their conduct. She said that a department head could check
those items.
Kant admitted that the technician would normally factor in
the applicant’s seniority: An applicant would normally receive
one point for each year that he or she had worked for the
county. But Kant testified that here, the technician failed to
consider seniority. She claimed that the mistake was irrelevant,
however, because the county would have selected the same five
applicants for interviews.
Kant explained that the employment office tries to select
at least five people for interviews. She said that if there had
been a large pool of applicants, Blakely’s seniority points
might have made a difference in whether he was a top appli-
cant whom the county selected for an interview. But because
there were only five applicants remaining after the employ-
ment office determined that some were ineligible, Kant said
that producing a point score was unnecessary. That is, the
county would have selected the same five applicants for
oral interviews even if the employment office had consid-
ered seniority. Kant said that the employment office does
not rank the applicants by their scores or provide the man-
ager who interviews the applicants with their scores. The
manager knows only that the applicants were the top five
applicants in the pool, but he or she can see their question-
naire responses.
Little testified that he received each applicant’s supplemen-
tal questionnaire and asked each applicant a list of questions
that he had developed for an MRW-II vacancy. He said that
he used the same questions regardless of the position’s duties.

668 	284 NEBRASKA REPORTS
Yet, he did not keep notes of the applicants’ answers or rank
the applicants based on their seniority, previous job perform-
ance, or answers in the oral interviews. In May 2009, the
county informed Blakely by letter that he was not selected for
the MRW-II position.
2. proCedurAl history
In May 2009, Blakely filed his grievance, alleging that
the county had violated its personnel rules and the CBA. In
September, the county’s personnel policy board voted unani-
mously to deny Blakely’s grievance. In October, Blakely filed
a petition for review in district court. He alleged that the
county had violated the County Civil Service Act. He specifi-
cally alleged that the county had not complied with the follow-
ing personnel rules: 5.1(a) and (b), 5.2, 5.5, 5.6, 5.7, 5.9, and
9.1. In addition, he alleged that the county had not complied
with the following provisions of the CBA: article 16, § 9, and
article 17, §§ 1 and 2.
The county moved to dismiss the petition for lack of juris-
diction and failure to state a claim for which relief could be
granted. The court treated the petition as a petition in error.
But it concluded that Blakely had not timely filed a transcript
of the county proceedings—a jurisdictional requirement. The
Nebraska Court of Appeals, in case No. A-10-125, on February
11, 2011, remanded the cause with directions.
After remand, the county filed an answer. It affirmatively
alleged that Blakely’s grievance was moot. It alleged that
because the county had terminated Blakely’s employment in
December 2009, he no longer had any rights under the CBA
or under the County Civil Service Act. In its brief, the county
states that all county employees who worked at Lancaster
Manor were laid off on December 31, 2009, when the county
sold the facility to a private party. In Blakely’s reply, he denied
that his grievance was moot, but he did not deny that the
county had terminated his employment.
After an evidentiary hearing, the district court affirmed the
personnel policy board’s decision. It further concluded that
Blakely’s grievance was moot because the county no longer
employed him, and it dismissed his petition.

BLAKELY v. LANCASTER COUNTY 	669
Cite as 284 Neb. 659
III. ASSIGNMENTS OF ERROR
Blakely assigns that the court erred in affirming the person-
nel policy board’s denial of his grievance because the decision
violated the county’s personnel policies and the CBA. In addi-
tion, he assigns that the court erred in concluding that the issue
was moot.
IV. STANDARD OF REVIEW
[1,2] An administrative agency is a governmental author-
ity, other than a court and other than a legislative body, which
affects the rights of private parties through either adjudication
or rulemaking.3 Under the County Civil Service Act, a “per-
sonnel policy board” is an administrative agency performing
quasi-judicial functions when it reviews a grievance of, or dis-
ciplinary action against, a classified service employee.4
[3,4] In reviewing an administrative agency decision on a
petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted
within its jurisdiction and whether sufficient, relevant evidence
supports the decision of the agency.5 The reviewing court in an
error proceeding is restricted to the record before the admin-
istrative agency and does not reweigh evidence or make inde-
pendent findings of fact.6 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.7
[5-7] In addition, an administrative agency decision must
not be arbitrary or capricious.8 Agency action is arbitrary
and capricious if it is taken in disregard of the facts or cir-
cumstances of the case, without some basis that would lead a
3 Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (2004)
(superseded by statute as stated in In re Application of Olmer, 275 Neb.
852, 752 N.W.2d 124 (2008)).
4 See, § 23-2522(5); Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb.
722, 748 N.W.2d 660 (2008); 15A Am. Jur. 2d Civil Service § 8 (2011).
5 Pierce, supra note 4.
6 Id.
7 Id.
8 See id.

670 	284 NEBRASKA REPORTS
reasonable and honest person to the same conclusion.9 Agency
action taken in disregard of the agency’s own substantive rules
is also arbitrary and capricious.10
[8-12] We independently review questions of law decided
by a lower court.11 The interpretation of statutes and regula-
tions presents questions of law.12 Contract interpretation also
presents a question of law.13 Whether an agency decision
conforms to the law is by definition a question of law.14 And
justiciability issues that do not involve a factual dispute present
a question of law.15
V. ANALYSIS
1. mootness
[13] We first address the county’s mootness claim. Although
mootness does not prevent appellate jurisdiction, it is a justicia-
bility doctrine that can prevent courts from exercising jurisdic-
tion.16 The county contends that the court properly determined
that the issues in Blakely’s grievance are moot. It contends that
because Blakely no longer has any rights to enforce under the
county’s personnel rules or the CBA, this court cannot provide
any meaningful relief.
Blakely contends that the court erred in determining that the
case is moot, because he is entitled to a judgment placing him
in one of the positions for which he applied and those positions
still exist. He argues that by analogy, a plaintiff’s wrongful
9 Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb. 634,
799 N.W.2d 305 (2011).
10 Id.
11 See Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792
N.W.2d 871 (2011).
12 See Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467
(2012).
13 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
14 See Robbins v. Neth, 273 Neb. 115, 728 N.W.2d 109 (2007).
15 See In re Interest of Shaleia M., 283 Neb. 609, 812 N.W.2d 277 (2012).
16 In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011);
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).

BLAKELY v. LANCASTER COUNTY 	671
Cite as 284 Neb. 659
termination claim is not moot because the plaintiff no longer
works for the defendant.
[14,15] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the
resolution of the dispute that existed at the beginning of the
litigation.17 A moot case is one which seeks to determine a
question that no longer rests upon existing facts or rights—i.e.,
a case in which the issues presented are no longer alive.18
[16,17] The central question in a mootness analysis is
whether changes in circumstances that prevailed at the begin-
ning of litigation have forestalled any occasion for meaningful
relief.19 A case is not moot if a court can fashion some mean-
ingful form of relief, even if that relief only partially redresses
the prevailing party’s grievances.20
We disagree with the county’s argument and the court’s
reasoning that because the county laid Blakely off, the case is
moot. We agree with Blakely that under this reasoning, wrong-
ful termination claims would be moot if an employee claimed
procedural violations. But that is not correct.21 Similarly, the
county cannot evade review of unlawful hiring or promotion
decisions by discharging affected employees and claiming that
they no longer have any rights to enforce.
Blakely filed his grievance when he still worked for the
county and had statutory and contractual rights to enforce. The
personnel policy board issued its decision while the county still
employed him. And the county does not argue that the disputed
positions have been eliminated or that Blakely voluntarily left
his employment.22
17 Professional Firefighters Assn. v. City of Omaha, 282 Neb. 200, 803
N.W.2d 17 (2011).
18 Id.
19 In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137, 768
N.W.2d 420 (2009).
20 Id.
21 See Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117
(1958).
22 See State ex rel. Schaub v. City of Scottsbluff, 169 Neb. 525, 100 N.W.2d
202 (1960).

672 	284 NEBRASKA REPORTS
[18] So a judgment in Blakely’s favor would provide mean-
ingful relief. This appeal is about the county’s hiring and pro-
motion procedures for classified service positions. Statutory
requirements under a civil service act regarding appointments
and promotions are mandatory. Other courts have held that
appointing authorities must comply with them for an appoint-
ment or promotion to be valid. In other words, appointments
and promotions that do not comply with the statutory require-
ments are void.23 We agree. As discussed below, this court
has also held that the county must comply with the County
Civil Service Act.24 If, as Blakely alleged, the county’s proce-
dures for making an appointment and promotion were invalid,
then the decisions rendered under those procedures were also
invalid. This conclusion would obviously provide relief to
Blakely: The county would have to allow him to compete in
new competitive examinations for these vacancies because he
properly contested the invalid procedures.25 We conclude that
the issues raised by Blakely’s grievance are not moot.
2. the C ounty’s A ppointment proCedures for the
vACAnCy At the mentAl heAlth C enter
Were unlAWful And void
Blakely contends that the county’s appointments violated the
County Civil Service Act’s provisions under §§ 23-2517 and
23-2525(3) and (4). Section 23-2517 sets out the act’s purpose,
and § 23-2525 sets out mandatory requirements for the coun-
ty’s classified service rules, which are stated in the county’s
personnel rules. Blakely argues that the county’s appointments
23 See, e.g., City of Tuscaloosa v. Marcum, 283 Ala. 440, 218 So. 2d 254
(1969); State ex rel. Gaski v. Basile, 174 Conn. 36, 381 A.2d 547 (1977);
Stovall v. City of Scottsville, 605 S.W.2d 767 (Ky. App. 1980); State, ex
rel., v. Hainen, 150 Ohio St. 371, 82 N.E.2d 734 (1948); State ex rel.
Mulkey v. Auburn, 60 Wash. 2d 728, 375 P.2d 499 (1962); Martin v. Pugh,
175 W. Va. 495, 334 S.E.2d 633 (1985). Compare Simpson, supra note 21.
24 See American Fed. S., C. & M. Emp. v. County of Lancaster, 200 Neb.
301, 263 N.W.2d 471 (1978).
25 See, Ziomek v. Bartimole, 156 Conn. 604, 244 A.2d 380 (1968); Jensen v.
State Dept. of Labor and Industry, 213 Mont. 84, 689 P.2d 1231 (1984);
Matter of Oliver v. Levitt, 158 A.D.2d 429, 551 N.Y.S.2d 528 (1990).

BLAKELY v. LANCASTER COUNTY 	673
Cite as 284 Neb. 659
failed to comply with these rules. He contends that in failing to
post the vacancy at the mental health center and conduct open
examinations for the vacancy, the county violated multiple per-
sonnel rules and CBA provisions.
The county contends that neither the personnel policy board
nor this court has the authority “to sit as a super person-
nel department reviewing the business judgments made by
Lancaster County managers when hiring personnel.”26 But by
passing the County Civil Service Act, the Legislature has lim-
ited those “business judgments.” And it is a court’s duty to
enforce those statutory requirements.
(a) Statutory Requirements
[19] Under § 23-2517, “[a]ll appointments and promotions
under the County Civil Service Act shall be made based on
merit and fitness.” Although the act does not define the term
“appointment,” an appointment under a civil service act refers
to an appointing authority’s designation of a person to fill a
vacant classified service position.27 And rule 1 of the county’s
personnel rules specifically defines “[a]ppointment” to mean
“the designation to a position in the classified service of a
person who has qualified for the appointment through appro-
priate examination or determination of fitness.” The parties
do not dispute that the positions at issue were classified serv-
ice positions.28
Generally, civil service acts promote effective public serv-
ice. They do this by establishing a personnel administration
system that provides equal opportunity for public employ-
ment and advancement based on merit and fitness principles.29
26 Brief for appellees at 12.
27 See, Neb. Rev. Stat. § 19-1826(3) (Reissue 2012); Snygg v. City of
Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978). See, also,
Black’s Law Dictionary 116 (9th ed. 2009).
28 See § 23-2519.
29 See, Neb. Rev. Stat. § 23-2501 (Reissue 2012) and § 23-2525; Ziomek,
supra note 25; City of Cambridge v. Civil Service Com’n, 43 Mass. App.
300, 682 N.E.2d 923 (1997); 3 Eugene McQuillin, The Law of Municipal
Corporations § 12.124 (rev. 3d ed. 2012); 15A Am. Jur. 2d, supra note 4,
§§ 1 and 6.

674 	284 NEBRASKA REPORTS
By requiring the county to incorporate these principles, the
Legislature intended to prohibit the county, as much as practi-
cal, from making these decisions based on political control,
partisanship, and personal favoritism.30
[20] Section 23-2525 of the act accomplishes this purpose
by requiring appointing authorities to conduct open competi-
tive examinations to fill vacancies or promotional examina-
tions to fill vacancies by promotion of current employees.
Properly conducted examinations provide the cornerstone of
a merit-based civil service system.31 And § 23-2525 sets forth
the duties of the county personnel officer and personnel policy
board to develop specific classified service rules for approval
by the board of commissioners. Regarding appointments to
vacancies, § 23-2525(3) provides that those rules must include
the following requirements:
[O]pen competitive examinations to test the relative
fitness of applicants for the respective positions. . . .
The rules and regulations shall provide for the public
announcement of the holding of examinations and shall
authorize the personnel officer to prescribe examina-
tion procedures and to place the names of successful
candidates on eligible lists in accordance with their
respective ratings. . . . Certification of eligibility for
appointment to vacancies shall be in accordance with a
formula which limits selection by the hiring department
from among the highest ranking available and eligible
candidates, but which also permits selective certification
under appropriate conditions as prescribed in the rules
and regulations.
(Emphasis supplied.)
As stated, this court has held that the county’s board of
commissioners must comply with the act’s fitness and merit
requirements.32 We held that the county can bargain with
county employees over rules for employees’ compensation and
30 See, e.g., City of Cambridge, supra note 29.
31 See, § 23-2517; Kelly v. City of New Haven, 275 Conn. 580, 881 A.2d 978
(2005).
32 See American Fed. S., C. & M. Emp., supra note 24.

BLAKELY v. LANCASTER COUNTY 	675
Cite as 284 Neb. 659
working conditions to the extent that the terms of the county
employees’ CBA do not violate a direct statutory directive.33
But the “county board has no power or authority to bargain or
agree that any appointment or promotion shall be based upon
anything other than merit and fitness except as provided in
the act.”34
(b) The County’s Personnel Rules
The county’s personnel rules 5.1 and 5.2 fulfill § 23-2525(3)’s
requirement to conduct open competitive examinations for
vacancies and to give notice of those examinations. Rule 5.1
provides the following notice and competitive examination
requirements:
(a) Original appointment to the classified service shall
be conducted on an open-competitive basis. The Personnel
Officer shall give public notice of all original appoint-
ment examinations . . . . Notice of examination shall be
posted and shall be distributed . . . . The public notice
examination shall specify: the title and salary of the class
of position; typical duties to be performed; the minimum
qualifications required; and all other pertinent informa-
tion and requirements. . . .
(b) Examinations may be limited to probationary and
status employees [those who have successfully completed
a probationary period] in the classified service or within
a single department where the Personnel Officer, after
consultation with the Department Head concerned, deter-
mines that there are a sufficient number of qualified can-
didates within the classified service to provide competi-
tion. The Personnel Officer shall make distribution and
post notice of such examination. This notice shall specify
that information set forth in Rule 5.1(a).
(Emphasis supplied.)
Rule 5.2 provides that “[o]pen-competitive examinations
shall be open to all applicants . . . .” It requires the personnel
33 Id., citing Pennsylvania Lab. Rel. Bd. v. State Col. A. Sch. Dist., 461 Pa.
494, 337 A.2d 262 (1975).
34 Id. at 305, 263 N.W.2d at 474.

676 	284 NEBRASKA REPORTS
officer to set forth the standards and requirements of the posi-
tion for examinations. Rule 7.1 sets out the types of assign-
ments, or the means of filling a vacancy, that the county is
permitted to make. As relevant here, rule 7.1 requires “all
vacancies in the classified service which are not filled by
transfer, promotion or demotion” to “be filled by probationary,
emergency, temporary, seasonal or on-call appointment.”
(c) The County Did Not Comply With Its
Rules for Filling the Vacancy at the
Mental Health Center
Obviously, the county did not appoint Kohmetsher to the
vacancy on a temporary, seasonal, or on-call basis, or because
of a government emergency. Moreover, the county had pre-
viously assigned an MRW-II classification to Kohmetsher’s
grounds maintenance position, which was the same as the
classification for the new position at the mental health center.
So Little’s assignment of Kohmetsher to the new position
was not a demotion or a promotion. The CBA and person-
nel rules define those actions, respectively, as an employee’s
move to a lesser or higher pay grade. So under rule 7.1, the
assignment could have only been a transfer or a probation-
ary appointment.
(i) Assignment Was Not
a Valid Transfer
[21] Section 23-2525(13) provides that the county’s classi-
fied service rules must provide “[f]or transfer from a position
in one department to a similar position in another department
involving similar qualifications, duties, responsibilities, and
salary ranges.” It does not preclude the county from defining
a transfer to include transfers within the same department. So
such a definition does not violate a statutory directive.
The personnel rules and the CBA permit department heads,
under specified circumstances, to transfer an employee to a
different position of the same class in the same department
or to a position of the same class in a different department.
As mentioned, the county had assigned an MRW-II classifi-
cation to both Kohmetsher’s previous grounds maintenance

BLAKELY v. LANCASTER COUNTY 	677
Cite as 284 Neb. 659
position and his new position at the mental health center,
and both positions were in the same department. But the
county did not treat Little’s assignment of Kohmetsher as an
interdepartment transfer because it did not comply with its
transfer rules.
Specifically, rule 9.2(c) of the personnel rules and article 17,
§ 2, of the CBA permit a transfer only if “the classes involved
are so related that the experience in, and entrance qualification
requirements of one class, are such as to qualify the employee
in a reasonable manner for the other class.” (Emphasis sup-
plied.) By requiring the employee’s current experience to qual-
ify the employee for the new position, the personnel rules
ensure that appointing authorities make transfers based on
merit and fitness considerations even though they are not con-
ducting open competitive examinations.
Here, the county arbitrarily ignored its own unwritten pro-
tocol for not permitting employees to transfer to a position
after it has posted notice of competitive examinations for
the position. One of Blakely’s coworkers at Lancaster Manor
testified that after he learned about an MRW-I vacancy at the
city-county building, he called the personnel office to ask if he
could transfer. The coworker was told that he could apply for
the job but could not transfer into the position because once a
job is posted, an employee cannot transfer into it. Kant con-
firmed that if a vacancy has already been posted, the county
does not allow transfers outside of the application process: “It
wouldn’t be good faith to take applications and then transfer
someone that didn’t apply.” But the “good faith” rule was not
followed here.
Even though the county’s posting of the MRW-II position
did not specify a worksite, the stated work requirements for
the position could not reasonably be described as giving notice
of examinations for a grounds maintenance position. Most of
the specified requirements for the vacancy called for different
skills that are needed for maintaining facilities—such as expe-
rience working with plumbing fixtures and equipment; general
carpentry; and operating and maintaining heating, ventilating,
and air conditioning systems. And although the department
purported to change the position to be filled by its posting, the

678 	284 NEBRASKA REPORTS
mental health center vacancy was clearly posted before Little
assigned Kohmetsher to the position. Under the county’s per-
sonnel rules and unwritten protocol, the county did not validly
transfer Kohmetsher. Under rule 7.1, that leaves only a pro-
bationary appointment as a permissible means of transferring
Kohmetsher to the vacancy.
(ii) Assignment Was Not a Valid
Probationary Appointment
The county denies that Little’s assignment of Kohmetsher to
the vacancy was a probationary appointment. Rule 7.1 defines
a probationary appointment as an appointment to the classified
service through certification from an open competitive list.
Stated otherwise, a probationary appointment is an appoint-
ment to a civil service position, on a probationary basis, made
from an eligibility list, which is compiled after competitive
examinations; the position will ripen into a permanent position
after a period of testing.35 Because Little assigned Kohmetsher
to a newly created vacancy, the assignment was an appoint-
ment under § 23-2525(3). But the county did not comply with
rule 5.1(a).
As stated, rule 5.1(a) required the county to conduct open
competitive examinations of applicants for original appoint-
ments to the classified service and to give notice of the exami-
nations. Rule 5.1(b) arguably permitted the county to limit
notice and competitive examinations to only county employees
or only county employees in a single department. The county,
however, purported to withdraw its notice of the vacancy at the
mental health center, and it did not fill the vacancy on a com-
petitive basis as required by rule 5.1.
Nonetheless, the county claims that it did not violate the
requirement in rule 5.1(a) that “[o]riginal appointment to the
classified service shall be conducted on an open-competitive
basis.” It argues that this rule did not apply because it did not
choose to make the vacancy open to the general public for
an “[o]riginal appointment” to a classified service position.
We disagree.
35 See 3 McQuillin, supra note 29, § 12.134.

BLAKELY v. LANCASTER COUNTY 	679
Cite as 284 Neb. 659
The term “original appointment” usually refers to an indi-
vidual’s first appointment to public service.36 But depending
on the governing rules, the term can also refer to any regular
appointment to a classified service position.37
[22] Here, the term “[o]riginal appointment” in the county’s
personnel rules must be construed in a manner that is consist-
ent with § 23-2525(3). That section requires the county to
conduct open competitive examinations for vacancies in the
classified service. A county is not free to promulgate rules that
directly violate statutory requirements.38
[23] In construing a statute, we look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be
remedied, and the purpose to be served. A court must then rea-
sonably or liberally construe the statute to achieve the statute’s
purpose, rather than construing it in a manner that defeats the
statutory purpose.39
Under the county’s interpretation of rule 5.1, it will fill
vacancies by competitive examinations only when and if it
decides to give notice of a vacancy to the general public. But
its interpretation of the term “original appointment” is contrary
to the Legislature’s intent that the county fill vacancies by
competitive examinations.
[24] We will not read into a statute a meaning that is not
there.40 Nor will we interpret § 23-2525 in a manner that
defeats the Legislature’s intent to promote fair opportunities
for public employment and effective public service. Neither
§ 23-2525 nor the personnel rules permitted a department head
to assign a current department employee to fill a new position
outside of its transfer rules or the competitive examination
process. And neither § 23-2525 nor the personnel rules mention
36 See Somerville v. Somerville Mun. Employees, 80 Mass. App. 686, 955
N.E.2d 924 (2011).
37 See Cleveland Civil Service Employees v. City of Cleveland, No. 79593,
2002 WL 226863 (Ohio App. Feb. 14, 2002) (unpublished opinion).
38 See Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
39 See Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
40 Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d
724 (2012).

680 	284 NEBRASKA REPORTS
a “reassignment” or distinguish between a reassignment and an
appointment to a vacancy.
[25] Instead, by using a broad term like “vacancies” in
§ 23-2525(3), the Legislature intended the county to con-
duct competitive examinations to fill all open positions in
the classified service, unless an exception applies. And if the
Legislature had intended to give appointing authorities the
prerogative to fill new positions with current employees in
their department without complying with rules for transfers,
promotions, or competitive examinations, it would have cre-
ated this exception.
The county admitted that the vacancy at the mental health
center was a new position approved by the county board of
commissioners. And it admitted that when the department ini-
tially posted the position to only classified service employees,
the vacancy was for the mental health center position. We need
not consider whether notice to only county employees is a
“public announcement” of examinations under § 23-2525(3).
By withdrawing its notice of the position, the county obviously
did not even comply with its lesser requirement to give notice
to current employees. Nor did it conduct any competitive
examinations to fill the vacancy.
This case illustrates the soundness of requiring competitive
examinations. By “reassigning” a department employee to the
new position without complying with its transfer rules or com-
petitive examination rules, the department shielded Kohmetsher
from (1) the merit and fitness requirements within the transfer
rules and (2) competition from potential applicants like Blakely
who had extensive qualifications for the position. The depart-
ment’s wink-and-a-nod “reassignment” obviously defeated the
merit and fitness requirements that the Legislature intended to
promote. We conclude that the county’s attempt to characterize
its appointment of Kohmetsher as a “reassignment” is contrary
to both the act and its personnel rules.
(d) The CBA Did Not Authorize
Noncompetitive “Reassignments”
Because the county did not comply with its personnel
rules, it claimed that the CBA authorized the reassignment. As

BLAKELY v. LANCASTER COUNTY 	681
Cite as 284 Neb. 659
stated, the county assignment of Kohmetsher was not a valid
appointment because the county did not conduct competitive
examinations. So the county denied that Little’s assignment
of Kohmetsher was an appointment. Similarly, the assignment
was not a valid transfer because the county failed to follow
its “good faith” rule for transfers. So Kant claimed that the
good faith rule only applied to an employee seeking a trans-
fer from a different department. She distinguished transfers
or promotions for employees from another department from
“reassignments” of employees in the same department. She
stated that although reassignments within a department were
loosely called transfers, reassignments were not treated the
same as an employee’s lateral transfer or promotion to a dif-
ferent department.
But the county’s claim that Little’s assignment of Kohmetsher
was not a transfer and not a probationary appointment most
obviously means that under rule 7.1, Little did not fill the
vacancy through any permissible assignment. In an attempt
to avoid these clear violations of the governing statutes and
personnel rules, the county advanced a creative contract inter-
pretation. It argued that under the CBA, it could fill the
vacancy without complying with competitive examination rules
or transfer rules.
Kant claimed that because the vacancy was a bargaining
unit position under the CBA, the CBA superseded the coun-
ty’s personnel rules. The CBA, however, required the county
to post any bargaining unit vacancy to all county employ-
ees before the general public unless it was filled through
a transfer or demotion. But Kant relied on a management
rights provision in article 6, § 2(E), of the CBA that gave
management the right to “hire, examine, classify, promote,
train, transfer, assign, and retain employees.” Kant charac-
terized Little’s assignment of Kohmetsher to the vacancy as
a “reassignment.”
Kant said that when the department reassigns an employee
within the department to a new worksite, the department
head is not required to file anything with her office or to
post the vacancy. Kant and Killeen both claimed that under
the CBA, the county could fill the vacancy by reassigning a

682 	284 NEBRASKA REPORTS
department employee without conducting competitive exami-
nations. We disagree.
[26] The county’s argument is not a reasonable construc-
tion of the CBA when read consistently. More important, even
if the county’s interpretation of the CBA were plausible, we
would reject it. Under the County Civil Service Act, a county
cannot implement any provision of the county employees’
CBA that would violate § 23-2525(3) or any other provision
of the act.41 We have already concluded that the county’s
attempt to characterize its appointment of Kohmetsher as a
“reassignment” is contrary to both the act and its person-
nel rules.
Summed up, we agree that management had the right to
transfer a current employee to the vacancy or to appoint an
applicant—if it complied with its own rules and its con-
tractual duties. But it did not. Section § 23-2525 and the
county’s personnel rules required the county to comply with
its transfer rules or announce examinations and solicit appli-
cants for the vacancy at the mental health center. In the latter
case, § 23-2525 and rule 5.1 required the county to conduct
competitive examinations before appointing a person to fill
that vacancy. The county followed none of these procedures.
Therefore, Little’s appointment of Kohmetsher to the vacancy
was unlawful and void.
3. the C ounty’s promotion proCedures for
the grounds mAintenAnCe vACAnCy
Were unlAWful And void
Blakely contends that the county failed to consider senior-
ity in conducting examinations for the grounds maintenance
position and failed to base its hiring decision on merit and
fitness. He argues that the county filled the position with an
employee who was less qualified, had less experience, and had
less seniority. He contends that the business judgment rule does
not permit county officials to determine that an applicant is
the most qualified for a classified service position without any
record of the relevant merit and fitness criteria.
41 See American Fed. S., C. & M. Emp., supra note 24.

BLAKELY v. LANCASTER COUNTY 	683
Cite as 284 Neb. 659
To recap, after Little reassigned Kohmetsher to the vacancy
at the mental health center, the department determined that
notice of examinations would be for a different vacancy:
Kohmetsher’s former grounds maintenance position. Little
then filled the position by promoting Bartusek, an employee
in the department. Compared to Blakely, Bartusek had less
experience in facilities maintenance and less seniority with
the county.
Section 23-2525(4) requires vacancies to be filled by pro-
motion whenever practical and sets out specific elements that
must be considered in a promotion decision: “[P]romotions
which shall give appropriate consideration to examinations and
to record of performance, seniority, and conduct. Vacancies
shall be filled by promotion whenever practicable and in
the best interest of the service, and preference may be given
to employees within the department in which the vacancy
occurs.” (Emphasis supplied.)
[27] By requiring appointing authorities to consider exami-
nations, the Legislature clearly contemplated that the county
would conduct promotional examinations. And § 23-2525(4)
specifically requires appointing authorities to consider records
of “performance, seniority, and conduct” when making pro-
motions. But the county argues that Little “had the authority
to determine whether examinations, record of performance,
seniority and conduct of the candidates he interviewed were
relevant and what level of consideration was appropriate to
be given to each of said items.”42 The county also argues that
because Bartusek was a department employee, Little had the
authority to determine that “it was in the best interest of the
[department] to promote . . . Bartusek and to give preference to
[him] when making the promotional decision.”43
We 	disagree 	that 	Little 	had 	authority 	to 	disregard 	the
statutory criteria for promoting an employee. Furthermore,
the county’s posting and procedures for filling the grounds
maintenance position showed that it did not conduct promo-
tional examinations.
42 Brief for appellees at 24-25.
43 Id. at 25.

684 	284 NEBRASKA REPORTS
Much of the confusion here stems from the county’s treat-
ment of internal vacancies. Kant stated that the employment
office treats all internal vacancies in a different department as
promotional internal positions, even though for the successful
applicant, the position could be a promotion, lateral transfer,
or demotion. This treatment of all internal vacancies as promo-
tions is contrary to the act’s requirements.
[28] When a vacancy in the classified service is not filled
by a transfer or under a statutory exception, § 23-2525(3) and
(4) required the county to fill it through one of two types of
examinations. Under subsection (3), the county could con-
duct open competitive examinations. Under subsection (4),
it could fill the vacancy through promotional examinations.
Section 23-2525 states these procedures in the alternative.
And under a similar civil service act, we have held that absent
statutory restrictions, an appointing authority has discretion to
choose between examinations for promotion and open competi-
tive examinations.44 It is true that in conducting promotional
examinations, § 23-2525(4) permits an appointing authority
to give preference to an employee in the same department.
But we conclude that the county did not conduct promo-
tional examinations.
[29] First, § 23-2525(4) requires the county to fill a vacancy
by promotion when practical, and the record fails to show that
the county made this determination. Second, because the post-
ing of this vacancy permitted any county employee to apply,
obtaining the position would not have been a promotion
for many applicants like Blakely. Although the county has
referred to “promotional applicants,”45 nothing in the county’s
posting alerted county employees that the department would
fill the position through promotion, with its attendant prefer-
ence for department employees. Third, not only did the post-
ing fail to give applicants like Blakely notice that the county
would fill the position by promotion—if the county had actu-
ally intended to do this—Blakely should have been disquali-
fied because he would not have been promoted by obtaining
44 Short v. Kissinger, 184 Neb. 491, 168 N.W.2d 917 (1969).
45 See brief for appellees at 21.

BLAKELY v. LANCASTER COUNTY 	685
Cite as 284 Neb. 659
the position. Fourth, and most important, Little admitted that
in promoting Bartusek, he did not consider the seniority of
any applicant, and he did not inquire about their performance
appraisals or their conduct in their current position with the
county. When a civil service statute requires an appointing
authority to consider seniority in making a promotion, that
requirement must be respected.46 So if we were to treat the
county’s procedures as promotional examinations, the promo-
tion would be invalid.
[30] But we conclude that under § 23-2525(4), a county
is not conducting promotional examinations when it posts
a position as available to all county employees and fails to
consider seniority. And when we analyze the county’s proce-
dures under the rules for open competitive examinations, the
county obviously violated many of those rules in both letter
and spirit.
First, rule 5.1 required the county’s notice of open competi-
tive examinations to specify the position’s minimum qualifi-
cations and the typical duties to be performed. But because
the county’s notice was originally intended to fill the MRW-II
position at the mental health center, the position’s require-
ments, when applied to the grounds maintenance position,
were incorrectly stated. Nothing in the posting alerted county
employees that the position was only for grounds mainte-
nance and snow removal. This incorrect statement of the
requirements likely resulted in many county employees con-
cluding that they were not qualified to apply. The county’s
equivalent classifications for grounds maintenance positions
and facilities maintenance positions may be justified for
determining pay schedules,47 but the duties for these positions
are considerably different for giving notice of a position’s
work requirements.
Second, many of the standards under which the county
evaluated the applicants were not related to the position.
Rule 5.2 of the personnel rules required the personnel officer
to set forth the standards and requirements of the position that
46 See Hainen, supra note 23.
47 See § 23-2525(1).

686 	284 NEBRASKA REPORTS
an appointing authority will apply to the examinations. The
county’s supplemental questionnaire was intended to broadly
discern whether the applicants had training or experience in a
wide range of work related to facilities maintenance, carpen-
try, and maintaining facilities equipment and grounds mainte-
nance equipment. Little also asked the applicants about their
experience in these areas, and his questions were designed
to more clearly determine the depth of their knowledge
and skills.
But leaving aside whether oral interviews were the best way
to objectively evaluate the applicants’ knowledge of grounds
maintenance, snow removal, and equipment maintenance,48
many of these questions were related to facilities maintenance
instead of grounds maintenance and snow removal operations.
In short, many of Little’s interview questions were geared
toward the wrong position.
[31,32] Third, the county did not treat the oral interviews as
part of the examination process. Section 23-2525(3) specifi-
cally provides that examinations may include oral interviews
as an examining technique. But it also provides that “[e]xami-
nations shall be scored objectively and employment registers
shall be established in the order of final score.”49 In addition,
the formula for certification to the eligibility list must limit
the department head’s selection to the highest ranking of the
available and eligible candidates.50 The Legislature intended
the requirements in § 23-2525(3) to limit an appointing author-
ity’s selection of an applicant to one of the applicants who
scored highest on the final score of the examination process.
So when oral interviews are part of the examination process
for an appointment to the civil service, an applicant’s score
on an oral interview must be included in the final score.51 But
that is not what happened here.
48 See 5 Sandra M. Stevenson, Antieau on Local Government Law
§ 76A.08[5] (2010).
49 § 23-2525(3) (emphasis supplied).
50 See id.
51 See, e.g., Bennett v. Blytheville Civil Service Com’n, 293 Ark. 136, 733
S.W.2d 414 (1987).

BLAKELY v. LANCASTER COUNTY 	687
Cite as 284 Neb. 659
Little asked the applicants about their knowledge and
skills; he also asked them about their physical abilities and
their ability to work with others and to take instructions.
But he did not take notes of their answers or rate their per-
formance. Instead, after the county evaluated the applicants
based on their applications and answers to the supplemental
questions, it treated this initial score as the only relevant
score for determining the top applicants for the position.
The county specifically argues that Little was free to choose
whichever one of these employees he preferred. But because
oral interviews were part of the examination process, the
county could not determine an applicant’s final score until the
entire examination was complete.
[33] In addition, neither the employment office nor Little
considered the applicants’ past performance or conduct in
their current positions or in any previous positions that they
had held. As stated, § 23-2525(3) requires objective scoring
of examinations. This requirement means that the county must
devise objective standards to test the fitness of applicants
as far as possible.52 Section 23-2525(3) does not prohibit
examiners from evaluating subjective traits if those traits are
relevant to an applicant’s fitness for a position. But when oral
examinations are used to test an applicant’s subjective traits,
the scoring must be guided by measurable standards. That
is, the examinations must provide some reasonable means of
judicial review.53 Otherwise, oral interviews could be used
to render hiring and promotion decisions unchallengeable
and unreviewable.
Here, Little’s testimony showed that he gave preference to
Bartusek because he knew him and had worked with him. But
that standard meant that the examinations were a farce because
Little’s selection of Bartusek was based on nothing more than
his personal preference for his own employee.
52 See 5 Stevenson, supra note 48, § 76A.08[4] and [5].
53 See, e.g., Bennett, supra note 51; Almassy v. L. A. County Civil Service
Com., 34 Cal. 2d 387, 210 P.2d 503 (1949); Ziomek, supra note 25, citing
Matter of Fink v. Finegan, 270 N.Y. 356, 1 N.E.2d 462 (1936).

688 	284 NEBRASKA REPORTS
Because the county was conducting open competitive exam-
inations and not promotional examinations, Little’s preference
for an employee in his own department was an invalid basis
for the hiring decision. By purporting to conduct open com-
petitive examinations for the grounds maintenance position,
but giving preference to a junior department employee, the
department created arbitrary and capricious appointing proce-
dures that were not based on the applicants’ merits and fitness.
Accordingly, Little’s appointment of Bartusek to the grounds
maintenance position was unlawful and void.
The dissent asserts that Kohmetsher and Bartusek arguably
have a property interest in their current positions and that our
decision could penalize innocent employees. This assertion is
incorrect. Kohmetsher and Bartusek have no right to continued
employment in these positions because the county did not com-
ply with the statutory and contractual requirements that would
have created that right. An unlawful and void appointment
cannot create rights to a civil service position.54 Courts have
specifically held:
Employees may be removed without compliance with the
legal requirements for the filing of charges and the hold-
ing of a hearing where their certification or appointment
is void ab initio, e.g., where they are guilty of fraud in
procuring the appointment, where they have made false
representations in their employment application, or where
their employment is not in compliance with civil service
or veterans’ preference laws.55
Furthermore, we cannot know how the county will respond
to our decision. We are not requiring the county to discharge
or demote Kohmetsher and Bartusek because of its unlawful
conduct. Instead, we hold that the appointments were void and
that Blakely is entitled to compete in lawful examinations. If
54 See, e.g., People ex rel. Betts v. Village of Maywood, 298 Ill. App. 160, 18
N.E.2d 459 (1938); Wiltshire v. Callis, Mayor, 289 Ky. 753, 160 S.W.2d
173 (1942); Snizaski v. Zaleski, 410 Pa. 548, 189 A.2d 284 (1963).
55 See 4 Eugene McQuillin, The Law of Municipal Corporations § 12.351 at
733-34 (rev. 3d ed. 2011) (citing cases) (emphasis supplied). See, also, id.,
§ 12:376.

BLAKELY v. LANCASTER COUNTY 	689
Cite as 284 Neb. 659
Kohmetsher and Bartusek are not appointed to these positions
after the county conducts lawful examinations, they may be
entitled to their former positions, or the county may create
other positions for them at the same rate of pay. But how the
county resolves the consequences of its actions is not part of
this appeal, which raises only the validity of its actions.
As in any appeal, an appellate court cannot resolve an issue
that could arise as a result of its decision. As the dissent well
knows, absent plain error, the scope of our appellate review
is normally limited by the issues properly raised. New issues
must frequently be resolved after a decision is issued. If, as
the dissent hypothesizes, Blakely no longer wants to compete
for one of these positions, his grievance will obviously be dis-
missed as moot on remand. And how much of Kohmetsher’s
or Bartusek’s experience the county should consider in new
examinations is an issue that the parties can resolve or litigate
later. But those potential issues do not present a valid reason to
withhold a decision in this appeal or to remand the cause to the
district court to “craft an appropriate remedy.”
The lawfulness of the county’s employment actions was
squarely before this court. Whether the county complied with
the civil service statutes and its personnel rules is a question
of law. Whether its appointment and promotion are void for
failing to comply with those rules is also a question of law.
There are no facts that the court could consider on remand
that would render the county’s employment actions lawful.
And the court could not conclude on remand that despite our
holding that these appointments were void, Kohmetsher and
Bartusek are entitled to keep their positions without com-
peting for them in lawful examinations. Finally, whatever
solution or compromise that the county reaches with the
employees affected by this judgment is beyond the scope of
our review.
VI. CONCLUSION
The county failed to comply with statutory requirements
and its own personnel rules in assigning department employ-
ees to the mental health center and the grounds mainte-
nance vacancies. The assignments were therefore invalid.

690 	284 NEBRASKA REPORTS
We remand the cause to the district court with directions
to reverse the personnel policy board’s denial of Blakely’s
grievance and to order new competitive examinations for the
disputed positions.
reversed And remAnded With direCtions.
heAviCAn, C.J., concurring in part, and in part dissenting.
I concur with the majority insofar as it concludes that the
county failed to comply with the statutory requirements and
its own personnel rules. But I dissent from the remedy fash-
ioned by the majority. Instead, I would remand this cause to
the district court for further proceedings not inconsistent with
our opinion.
This court’s disposition ordering new competitive examina-
tions does not take into account certain considerations which
are relevant when crafting a remedy in this case. To begin,
under Lancaster County’s personnel rules, an employee can be
dismissed only for cause1 and, as such, has a likely property
interest in his or her employment.2 Where an employee has a
property interest in his or her employment, that employee has
a right to due process.3
While Blakely’s rights under the County Civil Service Act
and the county’s personnel rules were violated, his are not
the only rights that are at issue under the majority’s remedy.
Kohmetsher and Bartusek, both innocent parties who had been
hired instead of Blakely, now arguably have a property interest
in their respective employment. Such an interest entitles each
to due process in connection with the employment.
Nor does the remedy take into account the current circum-
stances of these individuals or provide guidance for the county
in conducting these examinations. For example, we do not
know whether Blakely needs or wants county employment.
1 See County of Lancaster, Personnel Rules 1 and 11.2(b) through (h) (rev.
2001).
2 See, Scott v. County of Richardson, 280 Neb. 694, 789 N.W.2d 44 (2010);
Unland v. City of Lincoln, 247 Neb. 837, 530 N.W.2d 624 (1995). See,
also, Abraham v. Pekarski, 728 F.2d 167 (3d Cir. 1984). Cf. Johnston v.
Panhandle Co‑op Assn., 225 Neb. 732, 408 N.W.2d 261 (1987).
3 Id.

AMEN v. ASTRUE 	691
Cite as 284 Neb. 691
And assuming that Kohmetsher and Bartusek reapply for their
positions during these new competitive examinations, should
the county consider these individuals’ qualifications based
upon their original date of hire or can it consider the additional
years of experience each presumably has gained?
It may be that the new examinations ordered by this court
provide a proper resolution to this case. But the remedy as
ordered could result in penalizing innocent employees, and it
is not dictated by law. As such, I would leave it to the district
court to craft an appropriate remedy upon a consideration of all
the facts and circumstances.
stephAn, J., joins in this concurrence and dissent.
melissA A men, individuAlly And on BehAlf of her
minor Child, k.l.A., plAintiff, v. miChAel
J. A strue, C ommissioner of the soCiAl
seCurity A dministrAtion, defendAnt.
822 N.W.2d 419
Filed November 16, 2012. 	No. S-11-1094.
1. Statutes: Appeal and Error. The rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute, and to rec-
oncile different provisions of the statutes so they are consistent, harmonious,
and sensible.
2. ____: ____. Statutory language is to be given its plain and ordinary meaning,
and an appellate court will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
3. ____: ____. In construing statutory language, an appellate court attempts to give
effect to all parts of a statute and avoid rejecting as superfluous or meaningless
any word, clause, or sentence.
4. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.
5. Decedents’ Estates. In order for a lineal descendant to inherit from an intestate
estate, a descendant must survive the decedent.
6. Decedents’ Estates: Minors. A child, conceived after his or her biological
father’s death through intrauterine insemination using his sperm and born within
9 months of his death cannot inherit from his or her father as his surviving issue
under current Nebraska intestacy law.
7. Courts: Legislature: Public Policy. A court cannot contradict the Legislature on
matters of public policy.