Parent v. City of Bellevue Civil Serv. Comm.

C hristopher D. parent, appellee anD Cross -appellant, v.
C ity of Bellevue C ivil serviCe C ommission, appellee ,
anD the C ity of Bellevue , neBraska , a muniCipal
Corporation, appellant anD Cross -appellee .
763 N.W.2d 739
Filed March 17, 2009. 	No. A-08-630.
1. Administrative Law: Appeal and Error. In reviewing an administrative
agency decision on a petition in error, both the district court and the appel-
late court review the decision to determine whether the agency acted within its
jurisdiction and whether sufficient, relevant evidence supports the decision of
the agency.
2. Administrative Law: Evidence. The evidence is sufficient, as a matter of law, if
an administrative tribunal could reasonably find the facts as it did based on the
testimony and exhibits contained in the record before it.
3. Administrative Law: Appeal and Error. The reviewing court in an error pro-
ceeding is restricted to the record before the administrative agency and does not
reweigh evidence or make independent findings of fact.
4. Judgments: Jurisdiction: Appeal and Error. An appellate court determines
jurisdictional issues that do not involve factual disputes as a matter of law.
5. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
6. Constitutional Law: Due Process: Public Officers and Employees: Termination
of Employment: Notice. When a public employer deprives an employee of a
property interest in continued employment, constitutional due process requires
that the deprivation be preceded by (1) oral or written notice of the charges,
(2) an explanation of the employer’s evidence, and (3) an opportunity for the
employee to present his or her side of the story.
7. Statutes: Appeal and Error. Appellate courts give statutory language its plain
and ordinary meaning and will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unambiguous.
8. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
9. Statutes: Presumptions: Intent: Appeal and Error. In construing a statute,
appellate courts presume that the lawmaker intended a sensible result instead of
an absurd one.
Appeal from the District Court for Sarpy County: William
B. Z astera, Judge. Reversed and remanded with directions.
Patrick J. Sullivan and Michael F. Polk, of Adams & Sullivan,
P.C., for appellant
458 	17 NebRASkA APPellATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

John C. Hewitt, Steven M. Delaney, and Pamela epp Olsen,
of Cline, Williams, Wright, Johnson & Oldfather, l.l.P., for
appellee Christopher D. Parent.
Carlson, moore, and Cassel, Judges.
Cassel, Judge.
INTRODUCTION
This 	appeal, 	which 	has 	a 	complex 	procedural 	history,
described below, follows the district court’s review of an
administrative proceeding addressing the firing of a police offi-
cer for alleged violation of a policy concerning physical abil-
ity. The court characterized as jurisdictional a time limitation
specified by a collective bargaining agreement, and remanded
the matter for further findings. because case law demonstrates
that such time limitations are not jurisdictional, we reverse.
Reaching the merits, we conclude that under the specific policy
utilized to justify the officer’s firing, he satisfied the only
objective standard imposed by the policy. Therefore, the deci-
sion of the administrative agency upholding the termination of
employment must also be reversed.
bACkGROUND
The 	City 	of 	bellevue, 	Nebraska 	(the 	City), 	employed
Christopher D. Parent as a police officer. On August 31, 2007,
police lt. Mark elbert filed an administrative report alleging
that Parent had engaged in misconduct. The report alleged that
Parent had violated specified portions of two separate employ-
ment policies of the bellevue Police Department (Department):
one concerning firearms proficiency and the other addressing
physical, mental, and emotional health.
because the City ultimately fired Parent for violating only
the latter policy and because the wording of the policy is criti-
cal to the decision, we set forth the full content of the pertinent
policy as follows:
Police Officers are called upon to perform a variety
of tasks that require physical endurance and agility. This
dictates that officers maintain a high level of physical,
mental and emotional conditioning, which can only be
PAReNT v. CITy OF bellevUe CIvIl SeRv. COMM. 	459
Cite as 17 Neb. App. 458

acquired through regular exercise, proper diet and utiliz-
ing time.
All officers are required to maintain at least a “fair” level
of physical wellness pursuant to the standards contained
within the . . . Department’s Wellness Program Manual.
elbert’s report stated that during firearm training which had
occurred on August 28, 2007, Parent had “significant problems
getting up from one knee throughout the course of fire.” The
report indicated that Parent subsequently performed better in
firearm training on August 31, but still had problems getting
up from the ground without using his gun hand. According to
the record, Parent’s excessive weight caused the difficulty with
the firearms training.
On August 31, 2007, Parent was notified of the alleged viola-
tions of policies and placed on administrative leave pending the
outcome of an investigation. later, elbert investigated this mat-
ter. elbert concluded his investigation on or about September
18. However, a police captain who was charged with reviewing
the investigation instructed elbert to obtain medical evaluations
of Parent.
The applicable collective bargaining agreement required that
the investigation be concluded and that disciplinary action be
taken within 30 days of the notification Parent received on
August 31, 2007. The provision contains certain exceptions
related to delays in obtaining necessary evidence. elbert then
requested and received an extension of the deadline to acquire
medical reports. The record contains a memorandum recording
the extension, which memorandum appears to be initialed by
Parent and indicates that a copy of the memorandum was pro-
vided to an officer of the police union.
On November 9, 2007, after elbert had concluded his inves-
tigation, the police captain who reviewed the investigation rec-
ommended that Parent’s employment be terminated, in part due
to the results of four medical evaluations. On November 13,
the bellevue chief of police also recommended that Parent’s
employment be terminated. The city administrator reviewed
the police chief’s recommendations and, after a pretermination
hearing, adopted them and terminated Parent’s employment as
of November 28. Parent’s employment was terminated on the
460 	17 NebRASkA APPellATe RePORTS

ground that he had violated the physical, mental, and emotional
health policy.
Parent then requested a hearing before the City of bellevue
Civil Service Commission (the Commission). After a hearing,
the Commission concluded that Parent had violated the first
paragraph of the Department’s physical, mental, and emotional
health policy and stated that Parent “does not have a level of
physical conditioning to safely perform the duties of a police
officer.” The Commission also found that Parent’s termina-
tion of employment was “undertaken in good faith for cause.”
The Commission affirmed the City’s decision and additionally
stated that Parent’s termination of employment was justified
pursuant to Neb. Rev. Stat. § 19-1832(3) and (6) (Reissue
2007). With respect to these sections, the Commission found
Parent to be respectively “physically unfit for the position he
holds” and “unfit for his position.”
Parent appealed the Commission’s decision to the district
court. The court did not consider the merits of the appeal but
instead “remanded [the case] to the . . . Commission to deter-
mine whether the City complied with the requirements of the
[applicable] collective bargaining agreement, so as to vest the
Commission with proper jurisdiction over the termination hear-
ing.” The court relied upon a provision in the City’s collective
bargaining agreement with the police union, which agreement
stated in pertinent part:
The City shall begin investigation of any cause that
might lead to disciplinary action upon notification of such
cause. Disciplinary action shall be taken within thirty (30)
days of such notification. This thirty (30) day period may
be extended if the City finds it necessary to interview
any person that is not a member of the Department, or
if a Department member is not available due to leave,
sickness, or training. If the Department finds it necessary
to extend the investigation beyond the thirty (30) day
period, the employee under investigation will be notified
in writing of the extension. The [bellevue Police Officers]
Association President will also be notified in writing if
the extension involves circumstances beyond the control
of the Department.
PAReNT v. CITy OF bellevUe CIvIl SeRv. COMM. 	461
Cite as 17 Neb. App. 458

The court reasoned that “disciplinary action was not taken
against Parent within thirty (30) days of his notification,” that
the “unilateral” extension of the time “was not pursuant to one
of the delineated reasons,” and that no written notice of an
extension of time was provided to Parent or the “Association
President.”
The City timely appeals from the decision of the district
court. Parent timely cross-appeals.
ASSIGNMeNTS OF eRROR
On appeal, the City made three assignments of error, which
we consolidate and restate into two issues. First, the City
alleges that the district court erred in reversing the decision of
the Commission and remanding the matter to the Commission
for a factual determination. Second, the City asserts the court
erred in failing to find that the preponderance of the evidence
supported the termination and that the termination was made in
good faith for cause.
On cross-appeal, Parent makes four assignments of error
regarding substantive matters which the district court did not
reach because it decided the case on jurisdictional grounds.
Parent assigns that the district court erred in (1) failing to find
that the Commission’s decision was not supported by sufficient
relevant evidence; (2) failing to find that the Commission’s
decision was arbitrary, capricious, and not made in good faith
for cause; (3) failing to find that the Commission violated due
process in receiving a number of exhibits into evidence; and
(4) failing to find that the Commission violated due process
by relying on § 19-1832 as grounds for termination, where the
notice Parent received alleged violations of the firearms policy
and physical, mental, and emotional health policy.
STANDARD OF RevIeW
[1-3] In reviewing an administrative agency decision on a
petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted
within its jurisdiction and whether sufficient, relevant evidence
supports the decision of the agency. Pierce v. Douglas Cty.
Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d 660 (2008). The
462 	17 NebRASkA APPellATe RePORTS

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. Id.
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.
[4,5] We determine jurisdictional issues that do not involve
factual disputes as a matter of law. Id. On a question of law, we
reach a conclusion independent of the court below. Id.
ANAlySIS
Jurisdiction.
We find no support for the district court’s disposition of the
case on jurisdictional grounds. In the court’s order, it provided
no authority to support its conclusion that a failure to comply
with the time limitation of the collective bargaining agreement
creates a jurisdictional defect. The parties have not cited any
authority which suggests that the identified defect is jurisdic-
tional. Further, we can find no authority in Nebraska law which
indicates that this or any other circumstance apparent in the
instant case creates a jurisdictional defect. because the record
demonstrates that Parent exhausted the available administrative
remedies before appealing to the district court, the doctrine of
exhaustion of remedies, see Vaccaro v. City of Omaha, 6 Neb.
App. 410, 573 N.W.2d 798 (1998), did not prevent the district
court from obtaining jurisdiction.
The City’s alleged breach of the collective bargaining
agreement did not create a jurisdictional defect. Other juris-
dictions have held that a delay in disciplinary proceedings
beyond the time period appointed in an employment contract
does not, in itself, invalidate the disciplinary proceeding. See,
Atlantic Coast Line R. Co. v. Brotherhood of Ry., Etc., 210
F.2d 812 (4th Cir. 1954); Brotherhood of Sleeping Car Porters
v. Pullman Co., 200 F.2d 160 (7th Cir. 1952). In Atlantic
Coast Line R. Co., supra, the applicable contract provision
required that an “investigation” be held within 10 days of the
employee’s discharge and that a decision be rendered within
PAReNT v. CITy OF bellevUe CIvIl SeRv. COMM. 	463
Cite as 17 Neb. App. 458

10 days of the completion of the investigation. The contract
provided no recourse for the employer’s failure to comply.
even though the employer rendered a decision approximately
2 weeks late, the court found that noncompliance with the
provision did not render the proceeding null and void. The
court reasoned:
The purpose of the ten day provision is to expedite the
proceedings for which the rule provides, not to serve as
a limitation upon their being held; and the remedy for
violation of that provision is damages for any delay that
may have occurred, not reinstatement with an unassail-
able record or damages for an indeterminate period on the
theory that the proceedings otherwise regularly held were
a nullity.
Id. at 815. Thus, the results of a disciplinary proceeding are
valid and appealable even if an employer does not strictly
follow the timeline for discipline contained in the appli-
cable contract.
The facts in the instant case are very similar to the facts
of Atlantic Coast Line R. Co. In both the instant case and
Atlantic Coast Line R. Co., the employment contract provided
a timeline for an investigation but no explicit recourse for the
employee in the case of a delay. In both, there was a temporary
delay. We conclude that the City’s failure to strictly adhere to
the timing requirement set forth in the collective bargaining
agreement did not constitute a jurisdictional defect. The district
court erred in so holding.
Parent’s Assignments of Error.
We next consider Parent’s assignments of error. In the instant
case, the same standard of review applies to both the district
court and this court. both courts review the Commission’s
decision to determine whether the Commission acted within its
jurisdiction and whether sufficient, relevant evidence supports
the decision of the Commission. An analogous relationship
exists between this court and the Nebraska Supreme Court,
which has held that when it reverses a Court of Appeals deci-
sion, it “may consider, as [the Supreme Court] deem[s] appro-
priate, some or all of the assignments of error the Court of
464 	17 NebRASkA APPellATe RePORTS

Appeals did not reach.” Wagner v. Wagner, 275 Neb. 693, 701,
749 N.W.2d 137, 143-44 (2008). because the same standard of
review applies, we deem it appropriate to consider the issues
which the district court did not reach.
Parent first argues that his employment could be terminated
only if he was found to be in violation of the Department’s
physical, mental, and emotional health policy, because that was
the only charge of which he was notified. In response, the City
has argued that § 19-1832(3) and (6), which the Commission
cited 	in 	its 	opinion, 	contained 	adequate 	and 	independent
grounds justifying the termination of Parent’s employment and
that Parent was provided with adequate notice of these grounds
prior to the pretermination hearing.
We address the issue of notice and conclude that the only
grounds for termination of which Parent received adequate
notice were the grounds contained in the Department’s physi-
cal, mental, and emotional health policy.
On August 31, 2007, at the inception of the investigation,
Parent was notified in writing that the Department would
investigate him for alleged violations of Department pol-
icy. Specifically, he received a document entitled “Alleged
violation Notification,” in which he was notified that the
alleged violations were “firearms proficiency” and “physi-
cal, mental, emotional health.” The alleged violations corre-
sponded directly to provisions with the same names contained
in the Department’s policy manual. After the Department had
concluded its investigation and prior to the pretermination
hearing, Parent received notice of the grounds for his recom-
mended termination. At that time, Parent received a document
entitled “Advisement of Adjudication,” in which Parent was
informed that the alleged “physical, mental, & emotional
health 7/701/4” violation had been sustained pursuant to
the investigation. Prior to the hearing, the Department also
presented Parent with the evidence it intended to use in the
pretermination hearing, which included evidence regarding
Parent’s level of physical fitness.
[6] The Nebraska Supreme Court has held that pursuant to
Cleveland Board of Education v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 l. ed. 2d 494 (1985),
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Cite as 17 Neb. App. 458

when a public employer deprives an employee of a prop-
erty interest in continued employment, constitutional due
process requires that the deprivation be preceded by (1)
oral or written notice of the charges, (2) an explanation
of the employer’s evidence, and (3) an opportunity for the
employee to present his or her side of the story.
Hickey v. Civil Serv. Comm. of Douglas Cty., 274 Neb. 554,
563, 741 N.W.2d 649, 655 (2007). The parties do not dispute
the fact that Parent had a protected property interest in his con-
tinued employment.
because Parent was notified that he was investigated and
that termination was recommended pursuant only to the alleged
violation of the employment policy, we may not uphold the
Commission’s decision to affirm Parent’s termination on any
other grounds.
The City contends that Parent was notified of the grounds
for termination contained in § 19-1832(3) (mental or physical
unfitness) and (6) (other sufficient grounds). The City first
argues that Parent was directly notified of these grounds but
cannot point us to any document which supports this allega-
tion. We find no such document in the record. Second, the
City argues that the notice requirement was fulfilled when
Parent received the Department’s evidence that was used at
the pretermination hearing. The City asserts that this provided
notice because the evidence suggested that Parent was not
physically fit to be a police officer pursuant to § 19-1832(3).
However, under Hickey, supra, “evidence” does not constitute
“notice of the charges.” both “notice of the charges” and
“an explanation of the employer’s evidence” are separate
and distinct requirements. The plain meaning of the notice
requirement in Hickey is that the employer must specify to
the employee the grounds on which the employer seeks to
terminate employment. To conclude otherwise would mean
that the Commission could uphold the termination of Parent’s
employment on any ground suggested by the evidence pro-
vided to Parent before the pretermination hearing. This would
place Parent in the awkward and unfair position of not
being informed which grounds were at issue until after the
Commission had decided his case.
466 	17 NebRASkA APPellATe RePORTS

because Parent was notified that the ground for the termina-
tion of his employment was the physical, mental, and emotional
health policy, we consider only whether the termination of his
employment was appropriate on this ground and conclude that
it was not.
Parent argues that he could not be fired for a violation of
Department policy, because he fulfilled the only mandatory
requirement, which was contained in the second paragraph of
the policy. Parent further asserted that he could not be fired
pursuant to the first paragraph of the policy, because it con-
tained no mandatory provisions.
[7,8] We conclude that the policy contained only one man-
datory requirement, which is enumerated in its second para-
graph. In interpreting the policy adopted by the City, we apply
the familiar rules of construction applicable to statutes and
regulations. See McKenzie v. City of Omaha, 14 Neb. App.
398, 708 N.W.2d 286 (2006). Appellate courts give statutory
language its plain and ordinary meaning and will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. Rohde v. City of
Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007). A court
must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected
as superfluous or meaningless. Niemoller v. City of Papillion,
276 Neb. 40, 752 N.W.2d 132 (2008). Therefore, we construe
both paragraphs of the physical, mental, and emotional health
policy together.
[9] both paragraphs pertain to the same subject—well-
ness—but only the second paragraph requires specific action.
The plain language of the second paragraph states that offi-
cers are “required” to maintain the specified level of fitness.
In contrast, the first paragraph contains no such mandatory
language. The first paragraph of the policy is merely direc-
tory because it does not require that the officer take any
actions. Further, if we construed the first paragraph to contain
a mandatory standard, it would require us to conclude that the
policy contained two distinct mandatory standards regulating
the exact same subject matter, one of which is more difficult
to fulfill than the other. This makes no sense. In construing a
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Cite as 17 Neb. App. 458

statute, appellate courts presume that the lawmaker intended
a sensible result instead of an absurd one. See Foster v.
BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839
(2007). We therefore conclude that Parent was required to
comply only with the mandatory provision contained in the
second paragraph.
Parent adduced evidence that the Department had developed
a detailed wellness standard pursuant to the second paragraph
and that he had fulfilled the requirements of this standard.
This standard required each officer to accumulate a number
of points which were earned by completing physical activi-
ties. The record contains the official log of Parent’s activi-
ties and makes it clear that Parent had complied with these
requirements. Therefore, the City had no grounds to terminate
Parent’s employment pursuant to the physical, mental, and
emotional health policy, because he fulfilled its only manda-
tory requirement.
If the City wished to terminate Parent’s employment based
upon the provisions of § 19-1832(3) or (6), due process required
that he be notified of that charge. Having elected to base the
City’s employment action solely upon the physical, mental,
and emotional health policy, the City cannot use the statutory
provisions as an alternative ground for termination. While the
City’s physical, mental, and emotional health policy may have
“set the bar too low,” the City alone is responsible for the
policy it adopted.
We decline to address the remainder of Parent’s assigned
errors, because their resolution is not necessary to our disposi-
tion of this case.
CONClUSION
The district court erred in determining that the Department’s
failure to comply with disciplinary procedure deadlines in a
collective bargaining agreement created a jurisdictional defect.
On the merits of the appeal, we find that Parent fulfilled
the only objective standard contained in the employment
policy that he was alleged to have violated. We therefore
remand the cause to the district court with directions to
468 	17 NebRASkA APPellATe RePORTS

reverse the Commission’s decision upholding the termination
of Parent’s employment.
reverseD anD remanDeD With DireCtions.
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Cite as 17 Neb. App. 458