Wetovick v. County of Nance

Rodney M. Wetovick , nance county attoRney, appellee
and cRoss -appellant, v. the county of nance ,
a body politic and coRpoRate , et al .,
appellants and cRoss -appellees.
782 N.W.2d 298
Filed April 29, 2010. 	No. S-08-1302.
1. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
2. Actions: Governmental Subdivisions: Equity. An action for a declaration that a
governmental entity has violated a law is equitable in nature.
3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity
action for a declaratory judgment, an appellate court decides factual issues de
novo on the record and reaches conclusions independent of the trial court.
4. Evidence: Appeal and Error. When credible evidence is in conflict on mate-
rial issues of fact, an appellate court may consider and give weight to the fact
that the trial court observed the witnesses and accepted one version of the facts
over another.
5. Justiciable Issues. Justiciability issues that do not involve a factual dispute pre-
sent a question of law.
6. Statutes. Statutory interpretation is a question of law.
7. Appeal and Error. An appellate court resolves questions of law independently of
the determination reached by the court below.
8. Declaratory Judgments: Proof. To obtain declaratory relief, a plaintiff must
prove the existence of a justiciable controversy and an interest in the subject mat-
ter of the action.
9. Justiciable Issues. A justiciable issue requires a present, substantial controversy
between parties having adverse legal interests susceptible to immediate resolution
and capable of present judicial enforcement.
10. Declaratory Judgments: Justiciable Issues: Standing: Moot Question. Both
standing and mootness are key functions in determining whether a justiciable
controversy exists, or whether a litigant has a sufficient interest in a case to war-
rant declaratory relief.
11. 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.
12. ____. Unless an exception applies, a court or tribunal must dismiss a moot case
when changed circumstances have precluded it from providing any meaningful
relief because the litigants no longer have a legally cognizable interest in the
dispute’s resolution.
13. Declaratory Judgments: Pleadings. When a plaintiff’s pleadings in a declaratory
judgment action put the defendant on notice of the remedy sought, a trial court
may order relief which is clearly within the scope of its declaratory judgment.
WeTovIck v. coUNTy oF NANce 	773
cite as 279 Neb. 773
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

14. Declaratory Judgments. When a party’s requested relief is not clearly within the
scope of a court’s declaratory judgment, the court should grant such relief only
for a plaintiff’s concurrent or subsequent cause of action or the plaintiff’s appli-
cation for supplemental relief under Neb. Rev. Stat. § 25-21,156 (Reissue 2008).
15. Counties: Statutes. A county in this state is a creature of statute and has no
inherent authority. It can exercise only those powers expressly granted to it by
statute or necessarily implied to carry out its expressed powers.
16. Counties. A grant of power to a county is strictly construed, and reasonable
doubts regarding the existence of its power are resolved against it.
17. Counties: Public Officers and Employees. Absent a legislative grant of author-
ity, a county board has no power to perform the official duties of other officials
or boards.
18. Evidence. Unless an exception applies, only a preponderance of evidence is
required in civil cases. Monetary disputes are not an exception.
19. Counties: Public Officers and Employees: Evidence. Under Neb. Rev. Stat.
§ 23-1111 (Reissue 2007), unless a county board shows by a preponderance
of the evidence that an elected officer’s employment determination is arbitrary,
capricious, or unreasonable, it lacks authority to disapprove it.
20. Counties: Statutes. Neb. Rev. Stat. § 23-908 (Reissue 2007) does not control a
budget dispute when a more specific statute applies.
21. Counties: Statutes: Public Officers and Employees. In budget disputes between
a county board and an elected officer over the officer’s employment determina-
tions, Neb. Rev. Stat. § 23-1111 (Reissue 2007) controls, not Neb. Rev. Stat.
§ 23-908 (Reissue 2007), unless a more specific statute applies to a particular
officer’s personnel requests.
22. Statutes: Judicial Construction: Legislature: Presumptions: Intent. ordinarily,
when an appellate court judicially construes a statute and that construction fails
to evoke an amendment, it is presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent.
23. Counties: Public Officers and Employees. Whether a county officer has rea-
sonably fixed the terms and conditions of employment for an assistant or clerk
presents a question of fact.
24. Public Officers and Employees: Wages: Evidence. evidence that an elected
officer could hire part-time assistants, or even a full-time assistant, for a some-
what lower salary or without benefits does not alone show that the officer’s
choice is unreasonable.
25. Counties: Public Officers and Employees: Wages: Child Support. Under Neb.
Rev. Stat. § 43-512.05 (Reissue 2008), to the extent that a county board has
already appropriated sufficient funding to pay the necessary salaries and expenses
for performing child support enforcement duties, the board is entitled to deposit
federal reimbursement funds into its general fund. But any reimbursement funds
that the county is not entitled to keep must be carried over from year to year in
the county attorney’s budget when his or her office is performing all of the child
support enforcement duties.
26. Attorney Fees: Appeal and Error. A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the
774 	279 NeBRASkA RepoRTS

Nebraska Supreme court has recognized and accepted a uniform course of pro-
cedure for allowing attorney fees.
27. Costs: Attorney Fees: Words and Phrases. The term “costs” in a statute is not
generally understood to include “attorney fees.”
28. Declaratory Judgments: Costs: Attorney Fees. Under Neb. Rev. Stat.
§ 25-21,158 (Reissue 2008), the Nebraska Supreme court has not interpreted
“costs” to include attorney fees or recognized a uniform course of procedure
generally permitting attorney fees to be taxed as costs. Without another source of
statutory authority that permits attorney fees to be taxed as costs, the prevailing
party cannot recover attorney fees in a declaratory judgment action.
29. Attorney Fees: Contempt. Attorney fees in contempt cases fall under a court’s
inherent power to do all things necessary to enforce its judgment.
30. Attorney Fees. outside of enforcing orders and judgments, the Nebraska Supreme
court has extended a court’s inherent power to award attorney fees only in a nar-
row circumstance: when a party’s conduct during the course of litigation is so
vexatious, unfounded, and dilatory that it amounts to bad faith.
Appeal from the District court for Nance county: M ichael
J. oWens, Judge. Affirmed.
George e. Martin III and Aimee c. Bataillon, of Spencer,
Fane, Britt & Browne, L.L.p., for appellants.
Mark M. Sipple, of Sipple, Hansen, emerson & Schumacher,
for appellee.
Rodney M. Wetovick, Nance county Attorney, pro se.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
MccoRMack, and M illeR-leRMan, JJ.
connolly, J.
SUMMARy
The appellee, Rodney M. Wetovick, the Nance county
Attorney, submitted a budget with a salary request for a
full-time secretary. The appellant Nance county Board of
Supervisors (Board) refused to approve Wetovick’s budget
and instead voted to require Wetovick to employ part-time
secretaries. Wetovick sued Nance county, the Board, and its
members, seeking a declaratory judgment that his salary deter-
mination was reasonable and that the Board’s disapproval of
his decision was unreasonable. For simplicity, we will refer
only to the Board.
WeTovIck v. coUNTy oF NANce 	775
cite as 279 Neb. 773

After a bench trial, the court found that Wetovick’s request
was reasonable and that the Board had unreasonably required
him to have part-time secretaries. It ordered the Board to
approve Wetovick’s budget request for a full-time secretary.
The issue is not whether a county board can cut an office-
holder’s budget. It can. The issue is whether a county board
can dictate the terms of employment for an officer’s employee
absent proof that the officer’s terms are unreasonable. It can’t.
We conclude that under Neb. Rev. Stat. § 23-1111 (Reissue
2007), the Board lacked authority to disapprove Wetovick’s
reasonable salary request absent a finding that the request was
arbitrary, capricious, or unreasonable.
BAckGRoUND
Wetovick was elected Nance county Attorney in November
2006. Before taking office in January 2007, he informally sur-
veyed other county attorneys in the area to determine the staff-
ing requirements and the reasonable compensation for legal
secretaries. He concluded that he would need a full-time legal
secretary and that reasonable compensation was $24,000.
on January 4, 2007, after conducting interviews for secretar-
ies, Wetovick hired cyndy pilakowski. pilakowski’s salary was
$24,000 on an annualized basis, or $12,000 through June 30,
2007, which was the end of the county’s 2006-07 fiscal year.
pilakowski was already a county employee and was covered
under the county’s health insurance policy.
Wetovick believed that under § 23-1111 and the Board’s
personnel policy manual, he had authority to hire a secretary
and set the position’s salary and working conditions. The
manual provided that each county official had hiring authority
and the duty to inform new employees of their salary, benefits,
and working conditions. He also determined that the remain-
ing funds in the county budget for his office were inadequate
to pay a secretary. So he spoke to the Board about adjusting
his budget for the remainder of the fiscal year. The Board
agreed and paid pilakowski’s salary from January to June
2007. The board did not complain about his hiring choice or
pilakowski’s performance.
earlier, in 2003, the county had stopped offering new employ-
ees secondary health insurance for family members because of
776 	279 NeBRASkA RepoRTS

rising health insurance costs. After the change, new employees
could obtain only single coverage for themselves. But because
pilakowski was a county employee before the change, she car-
ried family coverage when she started working for Wetovick in
January 2007.
In April 2007, the Board asked pilakowski to accept a
monthly incentive payment to drop her health insurance cover-
age because her husband carried insurance. To save money, the
county paid employees a $200 monthly incentive if they dropped
their single coverage insurance and a $400 monthly incentive if
they dropped their family coverage. pilakowski agreed to drop
her family coverage. The county, however, treated her as a new
employee and paid her only a $200 monthly incentive for drop-
ping her coverage. But pilakowski filed a successful grievance,
and the county paid her the $400 monthly incentive for drop-
ping family coverage. This dispute occurred before Wetovick
submitted his 2007-08 budget in June 2007.
Also in the spring of 2007, the Board paid for a compara-
bility study of other county attorneys’ budgets and services.
The study concluded that Nance county had twice the average
number of felony cases as the other counties surveyed and sig-
nificantly more open child support cases. But it also concluded
that the budget for the Nance county Attorney’s office was
much lower than in other counties. This study was presented to
the Board in May 2007.
The 2007-08 fiscal year began on July 1, 2007. In his June
budget, Wetovick estimated $24,720 for his secretary’s annual
salary, which presented a 3-percent cost-of-living raise. In
response, the Board proposed to budget him $6,120 for a full-
time secretary during the first 3 months of the fiscal year—July,
August, and September. This amount represented 3 months’
salary at the agreed-upon annual salary of $24,720. For the
remaining 9 months of the fiscal year, the Board proposed to
budget Wetovick $15,000 for part-time secretaries.
The Board’s proposed budget of $15,000 for 9 months rep-
resented an annual budget of $20,000 for part-time secretaries,
or a reduction of $4,720 from Wetovick’s submitted estimate
for his full-time secretary’s annual salary. The Board’s chair-
person testified that for the last 9 months of the fiscal year,
WeTovIck v. coUNTy oF NANce 	777
cite as 279 Neb. 773

pilakowski would have earned $18,600, instead of the $15,000
the Board budgeted Wetovick’s office. Also, the Board con-
cluded that pilakowski would no longer be eligible for insur-
ance after September 2007. So under its requirement of part-
time secretaries, the Board would avoid paying pilakowski
monthly incentives for dropping her insurance. Avoiding these
payments would reduce the county’s costs by $3,600 for the
last 9 months of the 2007-08 fiscal year. But the Board’s
chairperson agreed that Wetovick’s estimated budget with a
full-time secretary and the Board’s proposed budget with part-
time secretaries were about $7,700 to $8,900 apart. The range
apparently represented the cost savings for 9 months compared
with a full year.
In September 2007, Wetovick appeared at the Board’s budget
hearing. The Board reiterated its position that he should employ
only part-time secretaries to avoid paying benefits. Wetovick
told the Board that his office was already short of the hours
required under the county’s contract with the State to perform
child support enforcement. He stated that he did not believe
he could meet his obligation with part-time employees. He
explained to the Board that he needed to avoid turnover in his
office because the State’s computerized child support system
had an extensive learning curve. The Board formally adopted
its proposed revision of Wetovick’s budget to reduce his budget
for clerical staff from full-time to part-time.
After october 1, 2007, at Wetovick’s request, his secre-
tary continued working for him full time at a reduced salary
and without her monthly incentive payments. In November,
Wetovick sued the Board.
Wetovick’s coMplaint
In his operative complaint, as relevant here, Wetovick sought
a declaratory judgment for the following: (1) The Board’s dis-
approval of his budget was unauthorized because the Board
had not found that his budget was arbitrary and unreasonable;
(2) his office needed a full-time assistant, and his secretary’s
salary and benefits were reasonable; (3) the Board’s disap-
proval and revision of his budget was arbitrary, unreasonable,
and unlawful; and (4) the Board was required to keep the child
778 	279 NeBRASkA RepoRTS

support incentive payments received during the 2006-07 fis-
cal year in a segregated account for enhancing child support
enforcement efforts. At the end of trial, however, the court
permitted Wetovick to amend his complaint so that the fourth
allegation would include keeping “incentive and reimburse-
ment” payments in a segregated account. Wetovick also sought
a writ of mandamus ordering the Board to approve his budget
as submitted without alteration. Finally, he sought costs and
attorney fees.
evidence at tRial
Wetovick testified that he needed a full-time secretary for
two reasons. First, Wetovick believed it was important to have
an experienced person available to conduct business with the
public in his absence. Second, he believed he needed a full-
time, experienced assistant to fulfill his office’s child support
enforcement duties.
The State’s child support computer system is called cHARTS
(children Have a Right to Support). It keeps track of all child
support cases in the state, including receipts, allocation, dis-
tribution, and disbursement. The administrator for finance and
central operations of the Department of Health and Human
Services (the Department) testified that cHARTS was a complex
system and required considerable training to use. Wetovick also
testified that cHARTS was complex and that the training was
extensive and expensive. Wetovick had been told that becom-
ing very proficient would require 2 to 3 years’ experience. He
could not operate the system and stated that pilakowski had
already attended numerous workshops and received other train-
ing from the Department. Another county attorney testified
that his secretary was still learning the cHARTS system after
a year because it was so complex and that he could not run his
office without a full-time secretary.
The Department’s reimbursement funds for child support
enforcement depended upon Wetovick’s office completing the
necessary hours for the county’s open cases. The Department
had estimated that his office needed to put in 13 to 15
hours per week. Wetovick explained that through cHARTS,
his office would find individuals who start employment and
WeTovIck v. coUNTy oF NANce 	779
cite as 279 Neb. 773

owe child support or find individuals whose child support
obligation should be modified. He stated that pilakowski was
the caseworker for his office who was required to put in 15
hours per week working on cases that needed attention. He
also stated that she had not been able to complete the required
hours because of prosecutorial matters. And Wetovick did not
believe his office could provide 15 hours per week of child
support enforcement duties with part-time assistants. It was
because his office was already short of its required hours that
he had asked his secretary to continue working full time after
october 1, 2007.
Wetovick also stated that his office’s efforts had more than
doubled the amount of reimbursement funds that the county
received. He believed that the increased funds easily covered
the difference between his budget and the county’s budget. The
county did not dispute this increase in reimbursement funds or
that they would make up the difference in the budgets.
Because the position required extensive training and experi-
ence, Wetovick testified that he wanted to avoid turnover. He
stated that he did not want to hire someone who would later look
for another job because his office paid low part-time wages and
lacked benefits. Because he believed the job required full-time
effort, he had not been as interested in applicants who mainly
wanted part-time work. For the same reasons, he rejected the
Board’s suggestion that he employ two part-time secretaries
instead of one full-time secretary.
county attorneys from nearby counties with smaller popu-
lations and fewer felony cases also testified. one stated that
he employed both a full-time secretary and a full-time child
support enforcement officer to assist him. The other employed
a full-time secretary. Both testified that it was important to
have an experienced, full-time secretary because of a county
attorney’s multiple duties and the necessity of having someone
who could draft legal documents and deal with problems and
requests for help in the county attorney’s absence.
In justifying the Board’s position, the Board’s chairperson
testified that Wetovick could have more hours of clerical assist-
ance at a lower cost if he employed two part-time secretar-
ies. As an example, he stated that under the Board’s $15,000
780 	279 NeBRASkA RepoRTS

budget for 9 months, two part-time secretaries could work 1.37
more hours per week than a full-time secretary, if Wetovick
were able to hire them at $9.50 per hour, which represented the
county’s average part-time wage. But he conceded that the pri-
mary reason for the Board’s disapproval of a full-time secretary
for Wetovick was to avoid paying insurance benefits.
The chairperson also admitted that the county had not
required all county positions to be filled by part-time employ-
ees—not even road crew and janitor positions. He admitted
that the only county office the Board believed should not be
staffed with a full-time person was the county attorney’s office.
Moreover, Board members, who rarely worked full-time hours,
were eligible to receive health insurance benefits or monthly
incentive payments. And the record lacks any evidence that
anyone competent to draft legal documents and assist with
child support enforcement duties would do so for the county’s
average part-time salary and no benefits.
distRict couRt’s oRdeR
In its order, the court stated that any aspect of Wetovick’s
complaint that it had not addressed was denied. It concluded
that under § 23-1111, the issue was whether Wetovick’s insist-
ence upon a full-time secretary was unreasonable, arbitrary, or
capricious. It concluded that Wetovick had acted reasonably
and that the Board’s decision to require him to use part-time
assistants was unreasonable. It directed the Board to approve
Wetovick’s budget for the 2007-08 fiscal year to the extent that
it related to full-time employment of clerical staff. It denied
Wetovick’s request for a writ of mandamus, because its rem-
edy under his declaratory judgment claim showed that he was
not without any other means of relief. Later, the court denied
Wetovick’s request for attorney fees and costs, because neither
a statute nor uniform course of action allowed attorney fees.
And while the county’s conduct had been unreasonable, the
court concluded that it did not amount to bad faith.
ASSIGNMeNTS oF eRRoR
The Board assigns, restated and condensed, that the court
erred in (1) failing to determine that after the 2007-08 budget
WeTovIck v. coUNTy oF NANce 	781
cite as 279 Neb. 773

year ended, it lacked jurisdiction under the Uniform Declaratory
Judgments Act1 to consider Wetovick’s budget request; (2)
finding that Wetovick’s request for a full-time assistant was
reasonable; (3) finding that the Board’s disapproval of his
request and altering of his budget were unreasonable; and (4)
failing to determine that the Board had authority under Neb.
Rev. Stat. § 23-908 (Reissue 2007) to alter Wetovick’s pro-
posed budget.
on cross-appeal, Wetovick assigns that the court erred in (1)
failing to award pilakowski backpay and benefits; (2) failing
to order the Board to set aside reimbursement funds received
from the state and federal government, for costs incurred in
child support enforcement, in a separate account to enhance
child support enforcement; and (3) failing to award him attor-
ney fees.
STANDARD oF RevIeW
[1-4] An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.2 An
action for a declaration that a governmental entity has violated
a law is equitable in nature.3 In reviewing an equity action for a
declaratory judgment, an appellate court decides factual issues
de novo on the record and reaches conclusions independent of
the trial court.4 But when credible evidence is in conflict on
material issues of fact, the court may consider and give weight
to the fact that the trial court observed the witnesses and
accepted one version of the facts over another.5
[5-7] Justiciability issues that do not involve a factual dis-
pute present a question of law.6 And statutory interpretation is
1 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008).
2 Homestead Estates Homeowners Assn. v. Jones, 278 Neb. 149, 768 N.W.2d
436 (2009).
3 See City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792
(2007).
4 Homestead Estates Homeowners Assn., supra note 2.
5 Id.
6 Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
782 	279 NeBRASkA RepoRTS

a question of law.7 We resolve questions of law independently
of the determination reached by the court below.8
ANALySIS oF BoARD’S AppeAL
the case Was not Moot
The county’s fiscal year for 2007-08 ended on June 30, 2008,
and the court entered its order in August 2008. The Board con-
tends that Wetovick’s declaratory judgment action was moot
because the court could not make a present determination about
the reasonableness of his budget proposal after the fiscal year
had ended. So it argues that the court lacked jurisdiction to
grant any relief. We disagree.
[8-10] To obtain declaratory relief, a plaintiff must prove the
existence of a justiciable controversy and an interest in the sub-
ject matter of the action.9 A justiciable issue requires a present,
substantial controversy between parties having adverse legal
interests susceptible to immediate resolution and capable of
present judicial enforcement.10 Both standing and mootness are
key functions in determining whether a justiciable controversy
exists, or whether a litigant has a sufficient interest in a case to
warrant declaratory relief.11
[11,12] 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.12 Unless an exception applies, a court or tribunal
must dismiss a moot case when changed circumstances have
precluded it from providing any meaningful relief because the
7 Id.
8 Id.
9 Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
10 Id.
11 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006).
12 In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137, 768
N.W.2d 420 (2009).
WeTovIck v. coUNTy oF NANce 	783
cite as 279 Neb. 773

litigants no longer have a legally cognizable interest in the
dispute’s resolution.13
Wetovick sought a declaration that he reasonably required
a full-time secretary to run his office and that the Board
lacked authority to disapprove his budget. The court found that
the Board had acted unreasonably in refusing to approve his
budget. As we will explain, the court’s finding meant that the
Board lacked authority to disapprove Wetovick’s budget and
that the Board’s action was void.14 Moreover, when the judg-
ment was issued, Wetovick had other claims pending: (1) a
claim for a declaration that his office was entitled to all federal
reimbursement funds and (2) a petition for a writ of mandamus.
Both parties obviously maintained an interest in the resolution
of these issues. So the case was not mooted by the ending of
the county’s fiscal year.
the couRt had authoRity to oRdeR the boaRd
to appRove Wetovick’s budget R equest
foR a full-tiMe assistant
[13,14] Alternatively, the Board contends that even if the case
was not moot, the court lacked authority in a declaratory judg-
ment action to order the Board to approve Wetovick’s budget.
However, when the plaintiff’s pleadings in a declaratory judg-
ment action put the defendant on notice of the remedy sought, a
trial court may order relief which is clearly within the scope of
its declaratory judgment.15 conversely, when a party’s requested
relief is not clearly within the scope of a court’s declaratory
judgment, the court should grant such relief only for a plain-
tiff’s concurrent or subsequent cause of action or the plaintiff’s
application for supplemental relief under § 25-21,156.16
13 See id.
14 See, Eriksen v. Ray, 212 Neb. 8, 321 N.W.2d 59 (1982); State, ex rel.
Allen, v. Miller, 138 Neb. 747, 295 N.W. 279 (1940).
15 See, e.g., Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223
(1994); Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 369 N.W.2d
620 (1985); Dixon v. O’Connor, 180 Neb. 427, 143 N.W.2d 364 (1966).
16 See, Standard Fed. Sav. Bank v. State Farm, 248 Neb. 552, 537 N.W.2d
333 (1995); S.N. Mart, Ltd. v. Maurices Inc., 234 Neb. 343, 451 N.W.2d
259 (1990).
784 	279 NeBRASkA RepoRTS

We conclude that the court’s order effectively determined
that the Board was without authority to disapprove Wetovick’s
budget request for a full-time assistant. Because the court had
authority to order relief within the scope of its declaratory judg-
ment, it could order the Board to approve Wetovick’s budget.
the standaRd foR disappRoving an officeR’s eMployMent
deteRMination is pRoof by a pRepondeRance that
the officeR’s decision Was unReasonable ,
aRbitRaRy, oR capRicious
The Board contends that under § 23-1111, it may disapprove
the terms and conditions of employment set by an elected offi-
cer if it “has any evidence”17 that the terms and conditions are
unreasonable. For its “any evidence” standard, it relies on our
decision in Bass v. County of Saline,18 in which we interpreted
and applied § 23-1111.
Section 23-1111 provides, “The county officers in all coun-
ties shall have the necessary clerks and assistants for such
periods and at such salaries as they may determine with the
approval of the county board, whose salaries shall be paid out
of the general fund of the county.” (emphasis supplied.) In
Bass19 and Sarpy Co. Pub. Emp. Assn. v. County of Sarpy,20
we specifically held under § 23-1111, it is the duty of county
officers to determine the employment terms and conditions for
their necessary employees.
In Bass, the county board reduced a county court clerk’s
salary, set by the county judge, by $35 per month under the
board’s established salary schedule. The board relied on the
approval requirement in § 23-1111 to argue that it could reduce
the salary, even though the board did not dispute that the judge
had set a reasonable and fair salary.
We rejected that argument. We stated that a county board can-
not arbitrarily ignore the officer’s employment determination:
17 Brief for appellants at 19 (emphasis in original).
18 Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960).
19 See id.
20 Sarpy Co. Pub. Emp. Assn. v. County of Sarpy, 220 Neb. 431, 370 N.W.2d
495 (1985).
WeTovIck v. coUNTy oF NANce 	785
cite as 279 Neb. 773

“To so hold would have the effect of investing the county board
with full power to fix salaries of employees in county offices
contrary to the expressed intent of the Legislature, and render
nugatory the provision of section 23-1111 . . . granting such
authority to county officers.”21
In determining the effect of the Legislature’s requirement of
a county board’s approval, we relied on an earlier case dealing
with a similar issue. That case involved the Attorney General’s
statutory authority to expend highway cash funds “‘subject to
the approval of the state engineer.’”22 There, we stated:
“‘The amount of work involved in rendering the services
and the proportionate charge that should be made therefor
is a matter peculiarly within the knowledge and the discre-
tion of the attorney general. In the absence of a showing
that such charges are unreasonable or unconscionable,
[the attorney general’s] decision as to the allocation of
expenditures must be controlling.’”23
We also quoted with approval an Arizona Supreme court case.
That court applied the same reasoning to reverse a county
board’s reduction of a court reporter’s salary set by local judges
under their statutory authority to fix such salaries subject to the
board’s approval.24
We concluded from these cases that a county officer may
not arbitrarily, capriciously, or unreasonably fix a salary. But
we put the burden of proof on the county board to show that
the officer’s salary determination was arbitrary, capricious, or
unreasonable before it could reduce or disapprove a salary set
by the officer: “In the absence of evidence that the salary fixed
by the county [officer] is unreasonable, capricious, or arbitrary,
the county board is without authority to disapprove it.”25
21 Bass, supra note 18, 171 Neb. at 541, 106 N.W.2d at 863.
22 Id. at 542, 106 N.W.2d at 863, quoting State, ex rel. Johnson, v. Tilley, 137
Neb. 173, 288 N.W. 521 (1939).
23 Id., quoting State, ex rel. Johnson, supra note 22 (emphasis supplied).
24 Bass, supra note 18, citing Powers v. Isley, 66 Ariz. 94, 183 p.2d 880
(1947).
25 Id. at 543, 106 N.W.2d at 864 (emphasis supplied).
786 	279 NeBRASkA RepoRTS

But the Board contends that under Bass, the only question
for the district court was whether the Board acted without any
evidence that Wetovick’s salary determination was unreason-
able. It argues that in Bass, we required only some evidence for
a board to disapprove an officer’s employment determination.
We disagree.
[15-17] our limitation in Bass of a county board’s power to
disapprove an officer’s employment determination balanced the
requirement of a board’s approval under § 23-1111 with the
broader rule that a board cannot exercise duties the Legislature
has granted to county officers. A county in this state is a crea-
ture of statute and has no inherent authority. It can exercise
only those powers expressly granted to it by statute or neces-
sarily implied to carry out its expressed powers.26 A grant of
power to a county is strictly construed, and reasonable doubts
regarding the existence of its power are resolved against it.27
Accordingly, we have held that absent a legislative grant of
authority, a county board has no power to perform the official
duties of other officials or boards.28
[18,19] Under these principles, we reject the Board’s argu-
ment that a county board can disapprove an elected officer’s
employment determination if there is any evidence that the
determination is unreasonable. Doing so would eviscerate the
Legislature’s intent in § 23-1111 that county officers have
the duty to make these decisions and would shift employ-
ment decisions to county boards. In Bass, we clearly required
county boards to adduce evidence that an officer’s employment
determination was unreasonable before disapproving it. This
holding simply clarified which party had the burden of proof
26 State ex rel. Johnson v. County of Gage, 154 Neb. 822, 49 N.W.2d 672
(1951) (citing cases). See, also, L. J. Vontz Constr. Co. v. City of Alliance,
243 Neb. 334, 500 N.W.2d 173 (1993); Thiles v. County Board of Sarpy
County, 189 Neb. 1, 200 N.W.2d 13 (1972); Bass, supra note 18.
27 Guenzel-Handlos v. County of Lancaster, 265 Neb. 125, 655 N.W.2d 384
(2003); DLH, Inc. v. Lancaster Cty. Bd. of Comrs., 264 Neb. 358, 648
N.W.2d 277 (2002); State ex rel. Johnson, supra note 26.
28 See, e.g., Sarpy Co. Pub. Emp. Assn., supra note 20; Speer v. Kratzenstein,
143 Neb. 310, 12 N.W.2d 360 (1943).
WeTovIck v. coUNTy oF NANce 	787
cite as 279 Neb. 773

in these disputes. Although we did not specify a standard of
proof, unless an exception applies, only a preponderance of
evidence is required in civil cases.29 Monetary disputes are not
an exception.30 Thus, the obvious meaning of our holding in
Bass is that under § 23-1111, unless a county board shows by a
preponderance of the evidence that an elected officer’s employ-
ment determination is arbitrary, capricious, or unreasonable, it
lacks authority to disapprove it.
the boaRd’s geneRal budgeting authoRity undeR
§ 23-908 does not contRol a county officeR’s
eMployMent decisions
The Board also contends that the court failed to recognize
its authority under § 23-908 to alter Wetovick’s budget. That
statute, in relevant part, provides:
The county board shall consider the budget document,
as submitted to it by the budget-making authority, of the
county, and may, in its discretion, revise, alter, increase
or decrease the items contained in the budget, but not
without first having a hearing with the office or depart-
ment affected.
Relying on our decision in Meyer v. Colin,31 the Board argues
that it acted within its authority to alter Wetovick’s budget as
long as it did not budget his office out of existence or unduly
hinder him in the performance of his duties.
[20] Under § 23-908, an officer is not the “budget-making
authority.” Neb. Rev. Stat. § 23-906 (Reissue 2007) speci-
fies that the county’s budget-making authority is the county’s
finance committee unless the county board has instead desig-
nated one of its own members or the county comptroller. It
is true that § 23-908 gives a county board authority to revise,
alter, increase, or decrease the overall county budget document.
29 See, e.g., Pallas v. Dailey, 169 Neb. 533, 100 N.W.2d 197 (1960);
Keiserman v. Lydon, 153 Neb. 279, 44 N.W.2d 513 (1950).
30 See Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720
N.W.2d 372 (2006), citing Addington v. Texas, 441 U.S. 418, 99 S. ct.
1804, 60 L. ed. 2d 323 (1979).
31 Meyer v. Colin, 204 Neb. 96, 281 N.W.2d 737 (1979).
788 	279 NeBRASkA RepoRTS

But a county board may not use its authority under § 23-908 to
budget an office out of existence or to unduly hinder the officer
in the conduct of his or her duties.32 And, citing Bass, we have
held that § 23-908 does not control a budget dispute when a
more specific statute applies.33 The more specific statute for
this budget dispute—who sets salary and working conditions—
is obviously § 23-1111. That conclusion is consistent with our
decision in Meyer.
In Meyer, the county board had instructed officeholders and
department heads to exclude expected salary raises for employ-
ees from their budget requests. If an office was short of funds
needed for raises, the board required officeholders to request
supplemental appropriations from a contingent account the
board had established and funded. When the county assessor
ignored this instruction and included the estimated cost-of-
living raises for his employees in his budget, the county board
deleted the raises from his budget. The assessor challenged the
board’s budgetary practice generally. one of his arguments on
appeal was that the board’s deletion of his employees’ raises
constituted an unwarranted interference by the board with the
operation of his office. But we did not decide this issue under
§ 23-908, because the board’s action directly implicated the
assessor’s independence and discretion under § 23-1111:
The question presented is actually distinct from mere
budgeting procedures and relates, instead, to the inde-
pendence and discretion which are to be afforded an
elected officer. It is clear that section 23-1111, . . .
requiring the approval of salaries by the county Board,
does not allow the Board to arbitrarily reduce the salaries
recommended by the elected officer. See Bass v. county
of Saline, 171 Neb. 538, 106 N. W. 2d 860. Similarly,
the power of the Board to reduce requests submitted by
the various offices, provided in section 23-908, . . . does
not give the Board the authority to budget a particular
32 State ex rel. Garvey v. County Bd. of Comm., 253 Neb. 694, 573 N.W.2d
747 (1998); Meyer, supra note 31.
33 See State ex rel. Agricultural Extension Service v. Miller, 182 Neb. 285,
154 N.W.2d 469 (1967).
WeTovIck v. coUNTy oF NANce 	789
cite as 279 Neb. 773

office out of existence or to unduly hinder the officer
in the conduct of his duties. [The assessor] testified he
was running his office shorthanded because of the cut
in his requested budget. This condition was, however,
essentially self-imposed. At no time did he request a
supplemental appropriation. Without regard to the appro-
priateness of its doing so, it fully appears that the Board
stood ready to make such appropriations. There is no
evidence of any intent of the Board to interfere or of any
actual interference by the Board in the operation of [the
assessor’s] office.34
obviously, an issue decided on an officer’s failure to prove
a county board’s interference with his salary determination did
not pronounce any new standard of proof for a board’s disap-
proval of an officer’s salary determination. So Meyer did not
disturb the central holding in Bass that a board must show the
officer’s determination was unreasonable, arbitrary, or capri-
cious before it can reduce or disapprove that salary.
[21] Moreover, the Board’s contention that Meyer somehow
changed this standard is refuted by our later decision in State
ex rel. Garvey v. County Bd. of Comm.35 There, we concluded
that § 23-1111 did not apply to a public defender’s person-
nel requests, because a more specific statute applied. But we
repeated our holding in Bass that when § 23-1111 governs, the
county board lacks authority to disapprove an officer’s salary
determination absent evidence that the officer acted unreason-
ably, capriciously, or arbitrarily. We conclude that in budget
disputes between a county board and an elected officer over the
officer’s employment determinations, § 23-1111 controls, not
§ 23-908, unless a more specific statute applies to a particular
officer’s personnel requests.
[22] Finally, Bass was decided in 1960. And the Legislature
has not amended § 23-1111. ordinarily, when an appellate
court 	judicially 	construes 	a 	statute 	and 	that 	construction
34 Meyer, supra note 31, 204 Neb. at 102, 281 N.W.2d at 741-42 (emphasis
supplied).
35 State ex rel. Garvey, supra note 32.
790 	279 NeBRASkA RepoRTS

fails 	to 	evoke 	an 	amendment, 	it 	is 	presumed 	that 	the
Legislature has acquiesced in the court’s determination of the
Legislature’s intent.36
Having disposed of the Board’s arguments that the court
applied 	the 	wrong 	standards 	in 	deciding 	this 	issue, 	we
come to the main issue—whether the court erred in find-
ing that Wetovick’s budget request for a full-time secretary
was reasonable.
the distRict couRt coRRectly found that Wetovick
R easonably deteRMined that he needed
a full-tiMe secRetaRy
The Board contends that Wetovick’s request for a full-time
secretary was unreasonable because he “complained to the
Board that his office did not have enough hours of clerical
support to perform its child support enforcement duties, yet
he demanded that the Board approve a budget for his office
that would not have remedied that shortfall.”37 Alternatively,
the Board contends that Wetovick’s testimony that he wanted
to avoid turnover in his office did not support the court’s find-
ing that his request was reasonable. It argues that the evidence
failed to show that the county had a higher turnover rate with
part-time employees than with full-time employees. And it
argues that Wetovick admitted to interviewing two qualified
applicants who wanted to work only part time. Finally, the
Board argues that its part-time requirement could have resulted
in Wetovick’s having more hours of clerical staff per week at
less cost to the county. These arguments miss the mark.
[23] Whether a county officer has reasonably fixed the terms
and conditions of employment for an assistant or clerk presents
a question of fact.38
36 Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51
(2009).
37 Brief for appellants at 22.
38 See, Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908
(2009); Stueve v. Valmont Indus., 277 Neb. 292, 761 N.W.2d 544 (2009); In
re Guardianship & Conservatorship of Cordel, 274 Neb. 545, 741 N.W.2d
675 (2007); Plath v. Brunken, 102 Neb. 467, 167 N.W. 567 (1918); 18B
Am. Jur. 2d Corporations § 1661 (2004).
WeTovIck v. coUNTy oF NANce 	791
cite as 279 Neb. 773

The Board does not contend that Wetovick’s salary determi-
nation for a full-time assistant was unreasonable. And Wetovick
presented ample evidence to show that he needed a full-time
secretary to assist him with child support enforcement duties,
to draft legal documents, and to deal with the public while he
was away.
He further presented evidence that the cHARTS computer
system was complicated and that using the system required
extensive training, which was expensive. His secretary was
required to devote 15 hours per week just to the cHARTS sys-
tem and child support enforcement duties. Wetovick’s admis-
sion that even with his full-time secretary, he still needed to
have more hours devoted to these duties did not mean that his
request for a full-time secretary was unreasonable. even if he
could have obtained slightly more hours of clerical assistance
by paying two part-time employees a lower hourly salary, he
could reasonably conclude that a well-trained, full-time assist-
ant would perform the child support enforcement duties more
effectively and efficiently. His secretary had already received
extensive training. And part-time employees would not develop
the same expertise using the system as a secretary working
full time. He could also reasonably conclude that because the
position required extensive training and expertise, it justified
a full-time salary with benefits so that an employee would be
less likely to leave his employment.
The Board’s contention that Wetovick could possibly get
more hours of clerical assistance per week with two part-time
employees fails to consider these factors. “[T]he amount of
work involved in the rendering of services and the value of
compensation for those services are matters particularly within
the knowledge of the county official.”39 So Wetovick’s decision
to continue with one full-time, experienced secretary instead
of two part-time, inexperienced secretaries was within his dis-
cretion unless the Board showed that his salary determination
was unreasonable.
But Wetovick also presented evidence that his salary deter-
mination was within the range of salaries paid other full-time
39 State ex rel. Garvey, supra note 32, 253 Neb. at 699, 573 N.W.2d at 750.
792 	279 NeBRASkA RepoRTS

legal secretaries. As noted, the Board’s chairperson conceded
that the primary reason for the Board’s disapproval of a salary
for a full-time secretary and insistence upon part-time secretar-
ies was to avoid paying benefits. This claim was essentially
the same as its argument on appeal: i.e., that it can reduce an
officer’s employment determination under its general budget-
ary authority whenever it determines an officer could have
hired someone for a lower salary or without benefits. We reject
that argument.
[24] permitting county boards to disapprove any employment
determination because the officer could have hired someone
with less experience for a lower salary would shift the duty to
hire assistants to the boards. The Legislature did not intend for
county boards to micromanage an officer’s employment deci-
sions. Nor did it intend for county boards to dictate that an offi-
cer cannot set reasonable working conditions if the employee
would be eligible for benefits. evidence that an elected officer
could hire part-time assistants, or even a full-time assistant, for
a somewhat lower salary or without benefits does not alone
show that the officer’s choice is unreasonable.
In addition, the Board originally approved pilakowski’s sal-
ary and only disapproved it after she filed a successful griev-
ance over the amount of her incentive buyout. Despite the
Board’s claim that it only initially approved pilakowski’s salary
to help Wetovick get started in his office, the same cost sav-
ings existed both before and after its dispute with her. It seems
odd and counterproductive that the Board would have permit-
ted Wetovick to train pilakowski on the cHARTS system if it
had intended to disapprove her salary in the next fiscal year.
Finally, the Board singled Wetovick’s office out for its part-
time, “no benefits” requirements. It did this despite evidence
that his office’s child support efforts had significantly increased
reimbursement revenues for the county that would have cov-
ered the cost of a full-time secretary.
While we are aware of the effect that rising health care costs
have on local governments, the Board is not handcuffed in
budget disputes. Under Meyer,40 the Board can use its general
40 See Meyer, supra note 31.
WeTovIck v. coUNTy oF NANce 	793
cite as 279 Neb. 773

budgetary authority to reasonably reduce an officer’s overall
budget as long as it does not budget the office out of existence
or unduly hinder the officer in performing his or her duties. But
that is not what the Board did here.
In sum, our de novo review of the evidence supports the
district court’s finding that Wetovick was reasonable in want-
ing to hire a full-time secretary over two part-time assist-
ants. It also supports the court’s finding that the Board had
unreasonably disapproved his budget. But because the county
failed to prove that Wetovick’s employment determination was
unreasonable, it lacked authority to disapprove it. The Board’s
disapproval was therefore void. We turn next to Wetovick’s
cross-appeal.
ANALySIS oF WeTovIck’S cRoSS-AppeAL
Wetovick lacked standing to obtain
declaRatoRy R elief foR pilakoWski
Wetovick argues that the court erred in failing to declare that
pilakowski was entitled to backpay and benefits as requested in
his prayer for relief. We disagree.
Wetovick had an obvious interest in knowing whether he
could set a reasonable salary and terms of employment despite
the Board’s “no benefits” requirement. To the extent that
Wetovick sought to clarify his relationship with the Board,
pilakowski was not a necessary party to his obtaining declara-
tory relief, because the court could decide the controversy
without prejudicing her interests.41 But Wetovick lacked stand-
ing to seek declaratory relief for pilakowski, and she was not
joined as a party.
the R ecoRd fails to shoW that the boaRd had
excess R eiMbuRseMent funds to appRopRiate
to Wetovick’s budget
Wetovick contends that the court erred in failing to deter-
mine that the plain language of Neb. Rev. Stat. § 43-512.05(3)
(Reissue 	2008) 	requires 	the 	Board 	to 	segregate 	federal
41 See, Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009); Dunn v. Daub,
259 Neb. 559, 611 N.W.2d 97 (2000).
794 	279 NeBRASkA RepoRTS

reimbursement funds to be used only for enhancing child sup-
port enforcement efforts. Section 43-512.05(3) provides:
The department shall adopt and promulgate rules and regu-
lations regarding the rate and manner of reimbursement
for costs incurred in carrying out [§§ 43-512 to 43-512.10
and 43-512.12 to 43-512.18], taking into account relevant
federal law, available federal funds, and any appropria-
tions made by the Legislature. Any reimbursement funds
shall be added to the budgets of those county officials
who have performed the services as called for in the
cooperative agreements and carried over from year to year
as required by law.
The federal child Support enforcement Act42 provides par-
ticipating states with reimbursement funds for a percentage of
their expenditures in operating a federally approved plan to
improve the establishment and enforcement of support obliga-
tions.43 Nebraska’s § 43-512.05 is one of the state statutes that
implement the federal requirements for receiving these funds.
Section 43-512.05(2) provides:
The department and the governing board of the county,
county attorney, or authorized attorney may enter into a
written agreement regarding the determination of pater-
nity and child, spousal, and medical support enforcement
for the purpose of implementing [§§ 43-512 to 43-512.10
and 43-512.12 to 43-512.18]. paternity shall be estab-
lished when it can be determined that the collection of
child support is feasible.
Many of the statutes to which subsection (2) refers impose
mandatory duties on a county attorney or an authorized attor-
ney. These duties are also required under the Department’s
“cooperative reimbursement agreement” with the county board
and county attorney. The cooperation agreement also includes
other duties that are required by other Nebraska statutes or
federal regulations. But whether the Department’s cooperation
is with a county attorney or an authorized attorney, many of
42 See 42 U.S.c. §§ 651 to 669b. (2006).
43 See 42 U.S.c. §§ 651 and 655.
WeTovIck v. coUNTy oF NANce 	795
cite as 279 Neb. 773

the duties required under § 43-512.05(2) and the cooperation
agreement must be performed by a law enforcement official
authorized to prosecute claims on behalf of the State. And
the Board did not show that a county employee outside of
Wetovick’s office performed any of the contract’s duties.
As noted, § 43-512.05(3) provides that “[a]ny reimburse-
ment funds shall be added to the budgets of those county
officials who have performed the services as called for in the
cooperative agreements and carried over from year to year as
required by law.” (emphasis supplied.) The Board concedes
that subsection (3) “may appear to direct counties to add
reimbursement funds to their county attorneys’ budgets.”44 But
it contends that the statute actually directs that only county
boards be reimbursed because county board members are the
only county officials who appropriate funds for child support
enforcement activities.
The cooperation agreement provides that the Department
will reimburse the county for a percentage of its expenditures
under the agreement, including employees’ salaries and bene-
fits, to the extent that those employees were performing child
support enforcement duties. To receive reimbursement funds,
the Department required documentation for the time employees
spent performing the agreement’s duties. For that prorated por-
tion of their salaries and benefits, the Department reimbursed
the county at the rate allowed under federal statutes.45
obviously, if the county board has already appropriated suf-
ficient funding to the county attorney’s office to pay the neces-
sary salaries for performing the duties under the cooperation
agreement, then additionally requiring the board to appropri-
ate all federal reimbursement funds to the county attorney’s
budget would result in a double reimbursement. Thus, read-
ing § 43-512.05(3) literally could lead to an absurd result in
some circumstances.
[25] But when subsections (2) and (3) are read together, we
believe the Legislature intended to avoid this result by permit-
ting the Department to also contract with the county board.
44 Reply brief for appellants at 19.
45 See 42 U.S.c. § 655(a)(2).
796 	279 NeBRASkA RepoRTS

So under § 43-512.05, to the extent that the county board has
already appropriated sufficient funding to pay the necessary
salaries and expenses for performing child support enforce-
ment duties, we conclude that the Board is entitled to deposit
federal reimbursement funds into its general fund. But for any
reimbursement funds that the county is not entitled to keep,
§ 43-512.05(3) plainly requires such funds to be carried over
from year to year in the county attorney’s budget when his
or her office is performing all of the child support enforce-
ment duties.
clearly, the county would not have received the reimburse-
ment funds if Wetovick’s office had not documented the time
he and pilakowski spent on child support enforcement duties.
But we do not have those documents in the record. Nor do we
have the Department’s reimbursement records. We conclude
that the record is insufficient for us to determine whether
Wetovick was entitled to have any of the reimbursement funds
set aside for his office.
attoRney fees
Finally, Wetovick contends that the court erred in failing to
award him attorney fees. He argues that § 25-21,158 permits an
award of costs in declaratory judgment actions and that costs
include attorney fees. We disagree.
[26] A party may recover attorney fees and expenses in a
civil action only when a statute permits recovery or when the
Nebraska Supreme court has recognized and accepted a uni-
form course of procedure for allowing attorney fees.46
[27,28] It is true that § 25-21,158 gives a court discretion to
award costs in a declaratory judgment action. But in the only
case in which we have applied this statute, we awarded only
costs, not attorney fees.47 The term “costs” in a statute is not
generally understood to include “attorney fees.”48 In declara-
tory judgment cases in which attorney fees were allowed,
46 Evertson, supra note 6.
47 Phillips v. Phillips, 163 Neb. 282, 79 N.W.2d 420 (1956).
48 See, Oliver v. Lansing, 57 Neb. 352, 77 N.W. 802 (1899); 1 Robert L.
Rossi, Attorneys’ Fees § 7:2 (2d ed. 1995) (citing cases).
WeTovIck v. coUNTy oF NANce 	797
cite as 279 Neb. 773

the parties’ dispute involved other statutes that permitted the
recovery of attorney fees.49 But in declaratory judgment cases
in which we concluded that other statutes authorizing attor-
ney fees did not apply, we determined that the party was not
entitled to attorney fees.50 We have reached the same conclu-
sion after determining that a contract provision providing for
attorney fees was void as against public policy.51 clearly, under
§ 25-21,158, we have not interpreted “costs” to include attor-
ney fees or recognized a uniform course of procedure gener-
ally permitting attorney fees to be taxed as costs. So without
another source of statutory authority permitting attorney fees to
be taxed as costs, the prevailing party cannot recover attorney
fees in a declaratory judgment action. This also is the general
rule in other jurisdictions.52
[29,30] Wetovick relies on our decision in Smeal Fire
Apparatus Co. v. Kreikemeier.53 His reliance is misplaced.
There, we stated that “[c]osts, including reasonable attorney
fees, can be awarded in a contempt proceeding.”54 Attorney
fees in contempt cases fall under a court’s inherent power to
do all things necessary to enforce its judgment.55 But outside
49 See, e.g., National Am. Ins. Co. v. Continental Western Ins. Co., 243 Neb.
766, 502 N.W.2d 817 (1993); Bituminous Casualty Corp. v. Deyle, 234
Neb. 537, 451 N.W.2d 910 (1990); Coleman v. Kahler, 17 Neb. App. 518,
766 N.W.2d 142 (2009); Alderman v. County of Antelope, 11 Neb. App.
412, 653 N.W.2d 1 (2002).
50 See, e.g., State Farm Mut. Auto. Ins. Co. v. Royal Ins. Co., 222 Neb. 13,
382 N.W.2d 2 (1986); Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327
N.W.2d 618 (1982); Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585
(1954); State ex rel. Ebke v. Board of Educational Lands & Funds, 159
Neb. 79, 65 N.W.2d 392 (1954).
51 Quinn v. Godfather’s Investments, 217 Neb. 441, 348 N.W.2d 893 (1984).
52 See 1 Allan D. Windt, Insurance claims & Disputes: Representation of
Insurance companies and Insureds § 8:14 (5th ed. 2007) (citing cases).
53 Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134
(2006).
54 Id. at 625, 715 N.W.2d at 142.
55 See Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963), overruled on
other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, ante p. 661, 782
N.W.2d 848 (2010).
798 	279 NeBRASkA RepoRTS

of enforcing orders and judgments, we have extended a court’s
inherent power to award attorney fees only in a narrow circum-
stance: when a party’s conduct during the course of litigation
is so vexatious, unfounded, and dilatory that it amounts to bad
faith.56 And we have specifically declined to extend that excep-
tion further.57 obviously, the court correctly found that the
exception does not apply here, and the court was not enforcing
its judgment in a contempt proceeding. Because no statute or
uniform course of action permitted attorney fees to be taxed as
costs in this action, this assignment is without merit.
coNcLUSIoN
We conclude that the case was not moot at the time of
judgment. We conclude that disputes over a county officer’s
employment decisions are controlled by § 23-1111, not a
county board’s general budgeting authority under § 23-908. In
disputes under § 23-1111, a county board cannot disapprove
an officer’s employment determination unless it proves by a
preponderance of the evidence that the officer’s decision was
arbitrary, capricious, or unreasonable.
We conclude that the court properly found that Wetovick
reasonably needed a full-time secretary. Because the Board
failed to prove that his decision was unreasonable, it lacked
authority to disapprove Wetovick’s budget request for his
secretary. And because the court had authority to order relief
within the scope of its declaratory judgment, it could order the
Board to approve Wetovick’s budget.
Regarding Wetovick’s cross-appeal, we conclude that he
lacked standing to seek declaratory relief on behalf of his
secretary, who was not joined as a party. We conclude that
the record is insufficient to determine whether Wetovick
was entitled to have the Board set aside federal reimburse-
ment funds for his office’s child support enforcement duties.
Finally, we conclude that § 25-21,158 is not statutory author-
ity for taxing attorney fees as costs and that no uniform
56 See Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762, 336 N.W.2d
312 (1983).
57 See Quinn, supra note 51.
WeTovIck v. coUNTy oF NANce 	799
cite as 279 Neb. 773

course of procedure generally permitted the court to tax
attorney fees as costs in this declaratory judgment action.
Accordingly, the court correctly denied the claims raised by
Wetovick’s cross-appeal.
affiRMed.
heavican, c.J., dissenting.
I join in the majority’s conclusion that this appeal is not
moot, as well as its decision with respect to Wetovick’s
cross-appeal. But I dissent from the majority’s conclusion
that the Board lacked the authority to disapprove Wetovick’s
budget request.
The majority’s opinion relies heavily on this court’s decision
in Bass v. County of Saline,1 as well as subsequent cases dis-
cussing and interpreting Bass. In the present case, the majority
interprets Bass and subsequent cases, as well as Neb. Rev. Stat.
§ 23-1111 (Reissue 2007), to hold that “a county officer may
not arbitrarily, capriciously, or unreasonably fix a salary. But
we put the burden of proof on the county board to show that
the officer’s salary determination was arbitrary, capricious, or
unreasonable before it could reduce or disapprove a salary set
by the officer.”
But § 23-1111 states no such standard. That section provides
that “[t]he county officers in all counties shall have the neces-
sary clerks and assistants for such periods and at such salaries
as they may determine with the approval of the county board,
whose salaries shall be paid out of the general fund of the
county.” This language plainly states only that county officers
should have necessary clerks and assistants as the officer deter-
mines with the approval of the county board.
In this case, the Board is the budget-making authority for
the county. Not only does § 23-1111 give the Board some
authority over the salaries of employees of county officers, but
Neb. Rev. Stat. § 23-908 (Reissue 2007) gives the Board the
discretionary authority to “revise, alter, increase or decrease
the items contained in the budget,” subject to a hearing for
those affected offices. When considered together, it is clear
1 Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960).
800 	279 NeBRASkA RepoRTS

to me that the Board retains authority over the budgets of its
county officials.
The statutes in this case are not conflicting; rather, the prob-
lem is Bass. The standard set forth in that case, which is not
supported by the plain meaning of the statute it purports to
interpret, creates a conflict where there is otherwise none—
namely, that a board cannot arbitrarily reduce a salary under
§ 23-1111, but nevertheless retains discretionary authority to
revise budgets under § 23-908. This conflict makes it difficult
at best for budget-making authorities in counties such as Nance
county to adequately budget. In my view, Bass wrongly inter-
prets § 23-1111 and should be overruled.
Instead, I would adopt the standard set forth in Meyer v.
Colin.2 In Meyer, we noted the authority of the officer to set
salaries and further explained that under § 23-908, “the Board
[does not have] the authority to budget a particular office out
of existence or to unduly hinder the officer in the conduct
of his duties.”3 The trial court in this case should be focused
on whether the Board “unduly hindered” the officer, here the
county attorney, from running his office. The burden should be
on the county attorney, as the petitioner, to show that the Board
has overstepped its bounds.4
Finally, I note that I agree with the majority insofar as its
holding provides that a county board cannot infringe upon the
power of a county official to run his or her office. For exam-
ple, only the elected officer can decide whether to employ
part-time or full-time employees. While I would conclude
that a county board ultimately sets the budgetary policy of a
county, in my view, this authority must be exercised carefully
because it exists in harmony with the power of the county
officer to set the salaries for his or her office (subject to board
2 Meyer v. Colin, 204 Neb. 96, 281 N.W.2d 737 (1979).
3 Id. at 102, 281 N.W.2d at 741.
4 See, e.g., Tipp-It, Inc. v. Conboy, 257 Neb. 219, 596 N.W.2d 304 (1999);
Jensen v. Universal Underwriters Ins. Co., 208 Neb. 487, 304 N.W.2d 51
(1981); County of Banner v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969).
See, also, 22A Am. Jur. 2d Declaratory Judgments § 239 (2003).
WeTovIck v. coUNTy oF NANce 	801
cite as 279 Neb. 773

approval). I would affirm that power of the county officer to
run his or her office as he or she sees fit, with that power
subject to legitimate budgetary constraints encountered by the
county board.
in Re inteRest of dakota M.,
a child undeR 18 yeaRs of age .
state of nebRaska , appellee ,
v. dakota M., appellant.
781 N.W.2d 612
Filed April 29, 2010. 	No. S-09-989.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
4. Juvenile Courts: Probation and Parole. Absent specific authority under the
juvenile code, the juvenile courts do not have the authority to order the confine-
ment of a juvenile as a condition of probation in the dispositional portion of
a proceeding.
Appeal from the county court for Madison county: donna
f. tayloR, Judge. Reversed and vacated.
Melissa A. Wentling, Madison county public Defender, for
appellant.
Gail e. collins, Deputy Madison county Attorney, for
appellee.
WRight, connolly, geRRaRd, stephan, MccoRMack, and
M illeR-leRMan, JJ.
stephan, J.
In this appeal, Dakota M. contends that the juvenile court
did not have the statutory authority to impose detention as
802 	279 NeBRASkA RepoRTS