McKee v. City of Hemingford

DaviD M c K ee , appellant , v . city of H eMingforD
village B oarD of trustees , appellee .
753 N.W.2d 854
Filed July 8, 2008. 	No. A-07-862.
1. 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 of the administrative agency to determine whether the agency acted
within its jurisdiction and whether the decision of the agency is supported by suf-
ficient relevant evidence.
2. Administrative Law: Evidence. The evidence is sufficient, as a matter of law,
if an administrative tribunal could reasonably find the facts as it did based on the
testimony and exhibits contained in the record before it.
3. Administrative Law. Administrative action must not be arbitrary or capricious.
4. Administrative Law: Appeal and Error. The reviewing court in an error proceed-
ing is restricted to the record before the administrative agency and does not reweigh
evidence or make independent findings of fact.
5. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural due
process presents a question of law.
6. Judgments: Appeal and Error. On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the court below.
7. Due Process. Property interests are not created by the U.S. Constitution, they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law.
8. Administrative Law: Appeal and Error. Orders made in the exercise of judicial
functions by a board or tribunal inferior to the district court are reviewable by
proceedings in error.
9. Public Officers and Employees: Termination of Employment: Due Process:
Notice. Prior to termination of employment, a tenured public employee is entitled
to oral or written notice of the charges against him or her, an explanation of the
employer’s evidence, and an opportunity to present his or her side of the story.
10. Municipal Corporations: Police Officers and Sheriffs: Termination of
Employment: Appeal and Error. Neb. Rev. Stat. § 17-208(1) (Reissue 1997)
authorizes a police officer who has been removed from office to request a review
by the village board of his or her removal.
11. Municipal Corporations: Ordinances: Police Officers and Sheriffs: Termi
nation of Employment: Appeal and Error. Neb. Rev. Stat. § 17-208(2) (Reissue
1997) requires villages to by ordinance adopt rules and regulations governing
the removal or discipline of any police officer, which rules and regulations must
include a procedure for making application for an appeal and provisions on the
manner in which the appeals hearing shall be conducted.
12. Termination of Employment: Due Process. All process that is due is provided by
a pretermination opportunity to respond, coupled with posttermination procedures.
13. Termination of Employment: Due Process: Notice. The constitutionally
mandated pretermination notice may be oral or written.
mckee v. CITy OF hemINgFORd 	837
Cite as 16 Neb. App. 837
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

14. Employer and Employee: Words and Phrases. Insubordination is an employee’s
willful or intentional disregard of, or refusal to obey, an employer’s reasonable
order, rule, or regulation, which is expressed or implied and is given or promul-
gated under lawful authority related to the employment.
15. Municipal Corporations: Police Officers and Sheriffs: Termination of
Employment: Due Process: Appeal and Error. Neb. Rev. Stat. § 17-208(2)
(Reissue 1997) directs a village board considering an appeal by a police officer
from a removal to determine whether the challenged removal was necessary for
the proper management and the effective operation of the police department in the
performance of its duties under the statutes of the State of Nebraska.
Appeal from the district Court for Box Butte County: B rian
c. silverMan, Judge. Affirmed.
david B. eubanks, of Pahlke, Smith, Snyder, Petitt & eubanks,
g.P., for appellant.
Steven W. Olsen, of Simmons Olsen Law Firm, P.C., for
appellee.
sievers , M oore, and cassel, Judges.
cassel, Judge.
INTROdUCTION
By petition in error, david mckee challenged his termina-
tion for insubordination as chief of police for the Village of
hemingford. From an adverse judgment, mckee appeals. Because
we conclude that mckee received adequate pretermination pro-
cedural due process and that sufficient evidence was presented
to support the original decision, we affirm the judgment.
BACkgROUNd
Although the caption of mckee’s petition in error seems to
identify the municipality as a “city,” both parties cite Neb. Rev.
Stat. § 17-208 (Reissue 1997), which is applicable only to vil-
lages, as a controlling statute. As the remainder of the record
refers to hemingford as a “village,” we treat the municipality
as such.
At the relevant times in 2006, the police department in
hemingford consisted of only three officers, including mckee.
In early July, mckee properly requested vacation time for an
extensive period from late September to mid-October. margaret
838 	16 NeBRASkA APPeLLATe RePORTS

A. Sheldon, the village administrator, approved mckee’s request.
mckee made significant arrangements based on the approval.
however, later in July, circumstances began to change.
On July 31, 2006, one of the two other officers resigned.
On August 15, the remaining officer resigned, in part due to
mckee’s denial of the full extent of her request for vacation
time to see a sick relative. On August 29, the village’s board
of trustees held a meeting, discussing at length the vacation
requests and actions. Sheldon later testified that the board spent
41⁄2 hours in executive session “split between talking about . . .
mckee’s job performance and . . . asking how we could solve
this problem because then we would be down to no officers if
[mckee] took his vacation.” According to the minutes, the board
voted to
deny 	. 	. 	. 	mckee’s 	three 	weeks[’] 	vacation 	starting
September 27 due to the lack of personnel in the Police
department to cover the vacation time, and [mckee] must
show up for duty on September 27, if not he is terminated,
a resignation would be accepted up to 10 working days
prior to September 27.
however, the board’s involvement did not end with the August
29 meeting.
On the evening of September 5, 2006, the board held a regu-
lar meeting. The third item on the agenda was “Police,” with
a further description of “[f]ollow-up on action taken at August
29th meeting.” According to Sheldon’s subsequent testimony,
on the afternoon of September 5, she talked to mckee at the
request of the chairman of the board. Sheldon told mckee that
during the meeting, he would be asked by the board whether he
still intended to take his vacation starting on September 27. At
the meeting, mckee received the question. he answered in the
affirmative. A board member then moved to terminate mckee’s
employment effective immediately for insubordination. during
approximately 20 minutes of discussion between mckee and the
board, mckee stated on at least three occasions that he had not
decided whether he would take the vacation as planned and that
he had been trying to find officers to cover the time period that
he hoped to be gone. The motion to terminate was then repeated,
seconded, and approved by a vote of four to one.
mckee v. CITy OF hemINgFORd 	839
Cite as 16 Neb. App. 837

A 	written 	notice 	of 	termination—bearing 	the 	signature
of the board’s chairperson—was prepared on September 6,
2006, and personally delivered to mckee on September 7. The
notice stated:
may this serve as official notice of termination of your
position as Chief of Police for the Village of hemingford.
The reason for termination being insubordination. The date
of termination being September 5, 2006. Please be further
advised that pursuant to Village Ordinance you are entitiled
[sic] to a hearing before the Village Board of Trustees.
mckee requested the appeal contemplated by § 17-208(2).
On October 25, 2006, mckee received a hearing before the
village board. An independent attorney employed by the vil-
lage served as a hearing officer to conduct the proceeding. The
chairperson of the village board, who had signed the notice of
termination, did not participate as a board member in the hear-
ing or decision on appeal. To the extent necessary, any further
evidence from the hearing will be discussed in the analysis sec-
tion below.
Although the action of the board in response to the hearing
does not otherwise appear in the record, paragraph 7 of mckee’s
later petition in error alleged, and the village’s answer admitted,
that the board failed to take action on the appeal within 30 days
after the adjournment of the hearing. Under § 17-208(2), such
failure to act is “construed as a vote to uphold the removal or
disciplinary action.”
mckee filed a timely petition in error to the district court
for Box Butte County, Nebraska. On July 26, 2007, the court
found that the village board had jurisdiction to dismiss mckee
and that the evidence supported the dismissal. The court stated,
“The [v]illage [b]oard had a responsibility to provide police pro-
tection for the [v]illage, and when [mckee] refused to provide
the same, the board took the only action available to them.” The
court dismissed mckee’s petition in error.
mckee timely appeals to this court.
ASSIgNmeNTS OF eRROR
mckee first assigns that the district court erred in finding that
he was afforded pretermination due process. he also asserts that
840 	16 NeBRASkA APPeLLATe RePORTS

the court erred in finding that he received sufficient notice of the
formal charges and that there was sufficient evidence to support
the termination.
STANdARd OF ReVIeW
[1-4] In reviewing an administrative agency decision on a
petition in error, both the district court and the appellate court
review the decision of the administrative agency to determine
whether the agency acted within its jurisdiction and whether
the decision of the agency is supported by sufficient relevant
evidence. Hickey v. Civil Serv. Comm. of Douglas Cty., 274
Neb. 554, 741 N.W.2d 649 (2007). The evidence is sufficient,
as a matter of law, if an administrative tribunal could reasonably
find the facts as it did based on the testimony and exhibits con-
tained in the record before it. Pierce v. Douglas Cty. Civil Serv.
Comm., 275 Neb. 722, 748 N.W.2d 660 (2008). In addition, the
administrative action must not be arbitrary or capricious. Id. The
reviewing court in an error proceeding is restricted to the record
before the administrative agency and does not reweigh evidence
or make independent findings of fact. Id.
[5,6] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro-
cedural due process presents a question of law. Hickey v. Civil
Serv. Comm. of Douglas Cty., supra. On a question of law, an
appellate court is obligated to reach a conclusion independent of
the court below. Id.
ANALySIS
Pretermination Due Process.
[7] Because mckee enjoyed a property right in continued
employment, he was entitled to pretermination due process.
As the U.S. Supreme Court observed in Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84
L. ed. 2d 494 (1985), property interests are not created by
the Constitution, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law. In the village’s brief, it
concedes that § 17-208 and the hemingford personnel manual
created this property right.
mckee v. CITy OF hemINgFORd 	841
Cite as 16 Neb. App. 837

[8] In the subsequent appeal to the village board, mckee
received a full administrative hearing. Clearly, this administra-
tive hearing was a postdeprivation hearing. See Pierce v. Douglas
Cty. Civil Serv. Comm., supra. Orders made in the exercise of
judicial functions by a board or tribunal inferior to the district
court are reviewable by proceedings in error. Hawkins v. City
of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001). Thus, under
Nebraska law, after the full administrative hearing mckee was
entitled to judicial review—a right which he exercised.
[9] Prior to the termination, however, mckee was entitled
only to a more limited process. The tenured public employee is
entitled to oral or written notice of the charges against him or
her, an explanation of the employer’s evidence, and an opportu-
nity to present his or her side of the story. Cleveland Board of
Education v. Loudermill, supra. We address each requirement
in turn.
First, mckee received oral notice of the charge against him.
Prior to the September 5, 2006, board meeting, the board noti-
fied mckee of its complaint against him—his stated intention to
take vacation time as originally scheduled in spite of the resigna-
tions of the village’s only other police officers. mckee received
such notice in the August 29 meeting, in which he actively
participated. At this meeting, he certainly became aware of the
board’s concern regarding the effect upon public safety. The
board’s August 29 action—expressly denying the vacation time,
requiring him to “show up” for duty, and authorizing a resigna-
tion up to 10 days before the scheduled date—communicated
the board’s resoluteness that he not respond in violation of the
board’s decision. Taken alone, the board’s action of August 29
notified mckee that his job was in jeopardy of termination.
mckee received additional notice from Sheldon. On September
5, but prior to the meeting, Sheldon orally notified mckee of
the board’s further objective to obtain a more definitive response
from mckee regarding his intention to comply with or violate
the board’s requirement that he forgo the scheduled vacation.
She notified him that the specific question would be raised at the
September 5 meeting. Thus, mckee received sufficient pretermi-
nation notice of the complaint against him.
842 	16 NeBRASkA APPeLLATe RePORTS

Second, it was clear that the village’s evidence against him
stemmed from his own statements. The subject was thoroughly
discussed at the August 29, 2006, meeting. Sheldon’s verbal
notice on September 5 confirmed that the evidence against him
consisted essentially of his own statements and communications
to village officials. mckee’s statements were examined at length
in the September 5 meeting.
Finally, the September 5, 2006, meeting afforded mckee the
opportunity to tell his side of the story. The evidence shows that
he did so at length, primarily by attempting to explain that he
had not made up his mind whether to accede to the board’s ear-
lier determination. much of this discussion and explanation by
mckee occurred during a 20-minute period after a motion had
been made but not yet adopted to terminate his employment for
insubordination. Clearly, the motion communicated in unmistak-
able fashion the board’s determination to obtain compliance with
its earlier action dispensing with mckee’s scheduled vacation.
The evidence shows that the village afforded mckee the pre-
termination process required by Cleveland Board of Education
v. Loudermill.
[10,11] In arguing that the village failed to provide prior to
the September 5, 2006, meeting the written notice required by
§ 3-703 of the hemingford municipal Code, mckee confuses
the statutory method for effecting a termination with the con-
stitutional due process requirement of pretermination notice.
Section 17-208(1) authorizes a police officer who has been
removed from office to “request a review by the village board
of his or her removal.” It also contemplates action by the village
board “[a]fter a hearing.” Section 17-208(2) requires villages to
“by ordinance adopt rules and regulations governing the removal
or discipline of any police officer,” which rules and regulations
must include “a procedure for making application for an appeal”
and “provisions on the manner in which the appeals hearing
shall be conducted.” It also mandates that “[b]oth the police
officer and the individual imposing the disciplinary action shall
have the right at the hearing to be heard and to present evidence
to the village board for its consideration.” Section 3-703 imple-
ments the statutory requirements, providing:
mckee v. CITy OF hemINgFORd 	843
Cite as 16 Neb. App. 837

(1) No police officer, including the Village marshal,
shall be . . . removed[] or discharged except upon written
notice stating the reasons for such . . . removal[] or dis-
charge. Such notice shall also contain a statement inform-
ing the police officer of his or her right to a hearing before
the Board of Trustees.
(2) Any police officer so . . . removed[] or discharged
may . . . file . . . a written demand for a hearing before the
Board of Trustees. . . . The Board of Trustees shall give the
police officer written notice of the hearing . . . .
(3) At the hearing, the police officer shall have the right
to: (a) respond in person to the charges and to present
witnesses and documentary evidence; (b) confront and
cross-examine available adverse witnesses; and [(c)] be
represented by counsel.
. . . .
(5) Nothing in this section shall be construed to prevent
the . . . immediate removal from duty of an officer, pend-
ing the hearing authorized by this section, in cases of gross
misconduct, neglect of duty, or disobedience of orders.
[12,13] The notice contemplated by § 3-703(1) is not a preter-
mination notice; rather, it constitutes the very act of termination.
The hearing provided by § 3-703 implements postdeprivation
procedural due process, providing a full evidentiary hearing with
the hallmarks of due process. State law provides the opportunity
for subsequent judicial review. All process that is due is pro-
vided by a pretermination opportunity to respond, coupled with
posttermination procedures. Unland v. City of Lincoln, 247 Neb.
837, 530 N.W.2d 624 (1995). The constitutionally mandated
pretermination notice may be oral or written. See Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct.
1487, 84 L. ed. 2d 494 (1985). Because the village provided
all required pretermination due process, we reject mckee’s first
assignment of error.
Sufficiency of Formal Notice of Termination.
mckee’s second assignment of error includes two separate
concepts, which we address in turn. We first examine whether
the written notice of termination, quoted in the background
844 	16 NeBRASkA APPeLLATe RePORTS

section above, complied with the requirements of § 17-208 and
the ordinance, § 3-703.
We have already explained that the pretermination notice
required by due process may be given orally and that the notice
given was sufficient. In reviewing the notice required by § 3-703,
we are not addressing a pretermination notice; rather, this sec-
tion prescribes the content of the formal act of termination.
Section 17-208 does not itself specify any requirements for
the formal act of termination. Section 17-208(2) requires the
municipality to adopt by ordinance appropriate rules and regula-
tions governing the removal or discipline of any police officer.
It also prescribes mandatory features for these rules and regula-
tions, which features we have already noted. The ordinance, in
turn, implements these statutory mandates.
The ordinance, § 3-703, requires that the notice of formal dis-
charge (1) be in writing, (2) state the reasons for the action, and
(3) contain a statement informing the officer of his or her right
to a posttermination hearing. The notice provided in the instant
case complied with all three requirements.
Although it is not entirely clear, mckee seems to argue that
the notice failed in two respects. First, he claims that it was
not in writing. Obviously, the notice served upon him was in
writing. In this argument, he seems to be claiming that the writ-
ten notice had to be given at the very instant the motion was
adopted on September 5, 2006. We disagree. Section 3-702(J)
of the hemingford municipal Code contemplates that the vil-
lage marshal will hold office for 1 year, “unless sooner removed
by the Chairman of the Village Board, with the advice and
consent of the Trustees.” The action taken by the board on
September 5 constituted the required “advice and consent.” The
actual removal was accomplished by the written action of the
chairperson, signed on September 6. Thus, removal requires the
accomplishment of two actions: the chairperson’s “remov[al]”
and the board’s “advice and consent.” Neither the state statute
nor the village ordinances imposes the requirement of simultane-
ity urged by mckee. We find the formal notice of termination
complied with the timing contemplated by the ordinances.
Second, mckee seems to argue that the notice failed to specify
the reasons for termination. Once again, he confuses the due
mckee v. CITy OF hemINgFORd 	845
Cite as 16 Neb. App. 837

process requirement of pretermination notice with the ordinance’s
requirement of specified reasons for the termination. The notice
of termination specified the reason as insubordination. Section
3-703(1) requires no more. We reject this argument and turn to the
remaining component of mckee’s second assignment of error.
Sufficiency of Evidence.
mckee also argues that there was insufficient evidence to
support the board’s action upholding the termination. The evi-
dence is sufficient, as a matter of law, if an administrative
tribunal could reasonably find the facts as it did based on the
testimony and exhibits contained in the record before it. Pierce
v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d
660 (2008).
[14] Both parties rely upon the following definition of insub-
ordination articulated in Wadman v. City of Omaha, 231 Neb.
819, 828, 438 N.W.2d 749, 755 (1989): “[I]nsubordination is
an employee’s willful or intentional disregard of, or refusal to
obey, an employer’s reasonable order, rule, or regulation, which
is expressed or implied and is given or promulgated under lawful
authority related to the employment.”
[15] Section 17-208(2) directs a village board considering an
appeal by a police officer from a removal to determine whether
the “challenged removal . . . was necessary for the proper man-
agement and the effective operation of the police department
in the performance of its duties under the statutes of the State
of Nebraska.”
mckee does not dispute that the chairperson of the village
board or the board of trustees are empowered to exercise law-
ful authority over the chief of police. Rather, he argues that
the board’s August 29, 2006, action stating that a “resignation
would be accepted up to 10 working days prior to September 27”
somehow precluded the board from earlier demanding an assur-
ance from mckee that he would comply with the August 29 action
rescinding his scheduled vacation. We disagree.
On August 29, 2006, the board took formal action denying
mckee the previously scheduled vacation. It also took action
requiring that he “show up,” i.e., perform his duties, for the
required service. On September 5, the board ordered mckee to
846 	16 NeBRASkA APPeLLATe RePORTS

answer whether he would obey the board’s earlier decision requir-
ing him to “show up.” We reject mckee’s argument that he was
“ambushed” by the question. Brief for appellant at 8. Certainly,
the meeting’s agenda, amplified by Sheldon’s specific verbal
notice, gave mckee reason to anticipate the board’s order.
An employee’s intention to perform his or her duties lies at
the heart of the employer-employee relationship. On September
5, 2006, the village board simply ordered mckee to assure the
board that he would obey the board’s decisions. he did not.
This constituted insubordination. mckee does not dispute that
the August 29 actions were lawful. Clearly, the board had a
responsibility to make suitable arrangements to protect public
safety. Section 17-208(1) authorizes the village board to appoint
a marshal. Under Neb. Rev. Stat. § 17-213 (Reissue 1997), the
marshal is the chief of police and is responsible to make arrests
for violations of state law or village ordinance. If the board was
to timely make such arrangements, it needed a decision from
mckee. his equivocation placed the board in the same position
as would have an outright refusal. We find sufficient evidence
to support the board’s action upholding mckee’s termination
for insubordination.
CONCLUSION
The board provided mckee with pretermination due process
consisting of oral notice of the charge against him, an explana-
tion of the employer’s evidence, and an opportunity to present
his side of the story. Section 17-208 mandated review by the
village board of mckee’s removal and required the village to
adopt rules and regulations governing the appeal. The ordinance,
§ 3-703, implemented the statutory requirements and governed
the formal act of termination and the posttermination appeal
proceeding. The formal notice of termination complied with
§ 3-703. The record contains sufficient evidence to support the
board’s decision to terminate mckee’s employment for insub-
ordination, which took the form of mckee’s refusal to assure
the board that he would obey the board’s actions denying his
vacation and requiring him to perform the duties of his office.
We affirm the judgment of the district court.
affirMeD.
mckee v. CITy OF hemINgFORd 	847
Cite as 16 Neb. App. 837