Fleming v. Civil Serv. Comm. of Douglas Cty.

E ric F lEming and F ratErnal O rdEr OF POlicE
lOdgE nO. 8, aPPEllants , v. civil sErvicE
cOmmissiOn OF dOuglas cOunty, nEbraska ,
and dOuglas cOunty, nEbraska , aPPEllEEs.
792 N.W.2d 871
Filed January 14, 2011. 	No. S-10-166.
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 to determine whether the agency acted within its jurisdiction
and whether sufficient, relevant evidence supports the decision of the agency.
2. 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.
3. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
4. Administrative Law: Evidence. The evidence is sufficient, as a matter of law, if
an administrative tribunal could reasonably find the facts as it did on the basis of
the testimony and exhibits contained in the record before it.
5. 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.
6. Administrative Law: Words and Phrases. Agency action is arbitrary and
capricious if it is taken in disregard of the facts or circumstances of the case,
without some basis which would lead a reasonable and honest person to the
same conclusion.
7. Contracts: Intent. Parties are generally bound by the terms of their contract, even
though their intent might be different from what is expressed in the agreement.
8. Administrative Law: Due Process. Procedural due process requires a neutral, or
unbiased, adjudicating decisionmaker.
9. Administrative Law: Presumptions. Administrative adjudicators serve with a
presumption of honesty and integrity.
10. Administrative Law: Recusal: Presumptions: Proof. The party seeking to dis-
qualify an adjudicator on the basis of bias or prejudice bears the heavy burden of
overcoming the presumption of impartiality.
11. Administrative Law: Presumptions. Factors that may indicate partiality or
bias on the part of an adjudicator are a pecuniary interest in the outcome of the
proceedings, a familial or adversarial relationship with one of the parties, and a
failure by the adjudicator to disclose the suspect relationship.
12. Administrative Law: Recusal: Presumptions. An adjudicator should recuse
himself or herself when a litigant demonstrates that a reasonable person who
knew the circumstances of the case would question the adjudicator’s impartiality
under an objective standard of reasonableness, even though no actual bias or
prejudice is shown.
1014 	280 NebrASkA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

Appeal from the District Court for Douglas County: JamEs
t. glEasOn, Judge. Affirmed.
Steven e. Achelpohl for appellants.
Timothy k. Dolan, Deputy Douglas County Attorney, for
appellees.
HEavican, 	c.J., 	WrigHt, 	cOnnOlly, 	gErrard, 	stEPHan,
mccOrmack, and millEr-lErman, JJ.
WrigHt, J.
NATUre OF CASe
eric Fleming, a Douglas County corrections officer, was ter-
minated from his employment by the Director of Corrections.
The Douglas County Civil Service Commission (Commission)
upheld the termination. Fleming and the Fraternal Order of
Police Lodge No. 8 (Union) filed a petition in error in the dis-
trict court for Douglas County. The court denied the petition
and affirmed the termination of Fleming’s employment.
SCOPe OF reVIeW
[1] 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 evi-
dence supports the decision of the agency. Scott v. County of
Richardson, ante p. 694, 789 N.W.2d 44 (2010).
[2,3] The determination of whether the procedures afforded
an individual comport with constitutional requirements for
procedural due process presents a question of law. Barnett v.
City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553 (2004).
On a question of law, an appellate court is obligated to reach
a conclusion independent of the determination reached by the
court below. Id.
FACTS
Fleming was employed as a corrections officer by the Douglas
County Department of Corrections (Department). On June 11,
2008, while on duty, Fleming had a physical altercation with a
pretrial detainee. The detainee was seated in a waiting area and
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1015
Cite as 280 Neb. 1014

was making noise. A corrections employee became annoyed
and asked the detainee to stop. When the detainee did not stop,
corrections officers were called to deal with the detainee. The
officers, including Fleming, attempted to remove the detainee
to a holding cell.
The detainee claimed that in the holding cell, one officer
held him down while another punched and kneed him in the
face and on the head. The corrections officers testified that the
detainee had grabbed Fleming’s collar and was repeatedly asked
to let go. Fleming testified that he hit the detainee’s arms in an
attempt to get him to release Fleming’s collar. In any case, after
the incident, the detainee required medical treatment.
The sheriff’s report stated that the detainee had numerous
lumps on his forehead and a large knot on the left side of his
head just behind his ear. He had a gash in his right eyebrow,
and his right eye was bloodshot and swollen. The detainee’s
nose was swollen and had dried blood in and around it. He also
had an abrasion on his chin.
Fleming and the other officers involved failed to file a report
about the incident. The Director of Corrections deemed the
altercation a violation of the Department’s excessive force
policy. As a result of this violation, he fired Fleming on July
11, 2008.
Criminal charges were filed against Fleming as a result of
the incident. On November 17, 2008, Fleming entered a plea
of no contest in the county court for Douglas County. As a
result of that plea, the court convicted Fleming of the Class I
misdemeanor of assault and battery. Sentencing was scheduled
for march 26, 2009.
On December 4, 2008, Fleming appealed his July 11 termi-
nation to the Commission. There were two issues presented: (1)
whether Fleming violated the Department’s use of force policy
and (2) whether Fleming violated Department policy in fail-
ing to file a report about the incident. The Commission found
insufficient evidence to establish that Fleming had used exces-
sive force and ordered Fleming reinstated. However, because
Fleming failed to follow procedure by not filing a report about
the incident, Fleming was not awarded backpay and an accrual
of benefits.
1016 	280 NebrASkA rePOrTS

On march 26, 2009, Fleming was sentenced by the county
court to 3 days in jail, 24 hours of community service, and 6
months of probation as a result of his conviction of assault and
battery. After this sentence, the Director of Corrections again
terminated Fleming’s employment and Fleming appealed to the
Commission. There were two issues before the Commission:
(1) whether Fleming had been convicted of a felony or crime
that rendered him unfit to perform the duties of his position
and (2) whether Fleming had violated Department regulations.
The Department’s “employee Code of Conduct” provides
that employees “shall conduct themselves, both on or off
duty, in a manner that will not discredit the Department or
the County.”
Preliminary motions before the Commission included a
request by Fleming that Commissioner Timothy Dunning be
disqualified from participating in the appeal because he was the
Douglas County sheriff. The incident involving Fleming and the
detainee resulted in a criminal investigation and citation by a
deputy of the Douglas County sheriff’s office. The Department
objected to the motion. Dunning stated that he was not directly
involved with Fleming’s investigation and that he could be fair
in hearing the appeal. He declined to recuse himself.
Fleming also alleged that the Commission had heard the
same case in December 2008 in which Fleming’s employment
was terminated for use of excessive force and that, therefore,
this case should be dismissed because it constituted double
jeopardy. The Commission disagreed, and following the presen-
tation of exhibits and witnesses, it voted to uphold Fleming’s
termination of employment.
Fleming and the Union filed a petition in error in the district
court for Douglas County. They alleged that the Commission’s
decision was arbitrary and capricious, that it violated agreed-
upon procedural due process, that it violated contractual dou-
ble jeopardy, and that the participation of Dunning violated
Fleming’s right to have an impartial and unbiased tribunal.
The district court denied the petition in error and affirmed
the Commission’s decision that upheld the termination of
employment. The court found the Commission had sufficient
evidence to support its decision and, therefore, did not act
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1017
Cite as 280 Neb. 1014

arbitrarily and capriciously. The disciplinary procedure was
satisfied because the Department disciplined Fleming for his
conviction of assault and battery within 30 days of the dis-
position of the criminal matter. The court also concluded that
Fleming’s contractual double jeopardy claim failed because it
was not a recognized doctrine in Nebraska. The court found
that Fleming was not able to overcome the presumption that
Dunning acted in an impartial manner while sitting on the
Commission and that, therefore, Fleming was not denied his
due process rights.
ASSIgNmeNTS OF errOr
Fleming and the Union assert, summarized and restated,
the following as error: (1) The district court erred as a mat-
ter of law in finding that the decision to terminate Fleming’s
employment was supported by competent evidence and was
not arbitrary and capricious, (2) the court erred when it found
that evidence that other employees were not fired for convic-
tion of crimes was irrelevant, (3) the court erred in not finding
that termination of Fleming’s employment twice for the same
misconduct was contractual double jeopardy, and (4) the court
erred in not finding that participation by the Douglas County
sheriff as a member of the Commission violated Fleming’s due
process rights to a fair and unbiased tribunal.
ANALySIS
tErminatiOn OF E mPlOymEnt Was suPPOrtEd by EvidEncE
and Was nOt arbitrary and caPriciOus
[4-6] The following procedural standards govern our review:
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. Scott v. County of Richardson, ante
p. 694, 789 N.W.2d 44 (2010). See 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 on the basis
of the testimony and exhibits contained in the record before it.
1018 	280 NebrASkA rePOrTS

Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553
(2004). 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. Cox v.
Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d
273 (2000). Finally, agency action is “arbitrary and capricious”
if it is “taken in disregard of the facts or circumstances of the
case, without some basis which would lead a reasonable and
honest person to the same conclusion.” Hickey, 274 Neb. at
565, 741 N.W.2d at 657. Accord Wagner v. City of Omaha, 236
Neb. 843, 464 N.W.2d 175 (1991).
Fleming and the Union first claim the Commission’s deci-
sion was arbitrary and capricious and not supported by com-
petent evidence. They advance two subarguments with respect
to this point. First, they claim that Fleming engaged in no
additional misconduct after he was reinstated and, thus, there
was no evidence of wrongdoing. Second, they argue that the
Department did not comply with the time restraints imposed by
the disciplinary procedure required by the collective bargaining
agreement (CbA) and incorporated documents.
The first argument of Fleming and the Union fails. Fleming’s
employment was terminated the second time for violating two
provisions of article 22 of the Commission’s personnel policy
manual. Under article 22, section 5, the following are grounds
for discipline: “1. The employee has been convicted of a felony
or crime which renders him unfit to perform the duties of his/
her position,” and “4. The employee has violated any depart-
ment, division, or institution regulation or order, or failed to
obey any proper direction made and given by a supervisor.”
The department regulation that Fleming violated stated: “Staff
shall conduct themselves, both on or off duty, in a manner that
will not discredit the Department or the County.”
The record includes the bill of exceptions from Fleming’s
criminal proceedings. It shows that Fleming was convicted of
assault and battery, a Class I misdemeanor. There is clearly suf-
ficient evidence showing that Fleming was convicted of a crime
which renders him unfit to be a corrections officer.
Fleming and the Union argue it is undisputed that Fleming
committed no additional 	act 	of 	misconduct after he was
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1019
Cite as 280 Neb. 1014

reinstated 	following 	the 	first 	attempted 	termination. 	The
first attempted termination of employment was based upon
Fleming’s alleged violation of the Department’s excessive force
policy as well as his failure to file a report regarding the inci-
dent with the detainee. The Commission found that there was
insufficient evidence to support the termination of employment
based on excessive force. Although the Commission knew that
Fleming had been charged with assault at the time it heard his
first appeal, the issue of whether Fleming had violated the rule
against being convicted of crimes that render a person unfit for
duty was not before the Commission. When that issue was later
presented to the Commission, there was sufficient evidence to
conclude that Fleming had violated the workplace rule against
being convicted of certain crimes.
To the extent Fleming argues that he is impermissibly being
punished twice for the same acts, this argument overlaps with
his argument based on contractual double jeopardy, which is an
argument we address later in our opinion.
The second argument by Fleming and the Union, that the
Department did not comply with the time requirements, is
similarly without merit. Article 27, section 2, of the CbA
states that the “County must take action on a criminal com-
plaint within thirty days of the disposition of the criminal
matter.” Fleming argues that this 30-day period commenced on
November 17, 2008, the date he pleaded no contest and was
convicted. Fleming was not sentenced until march 26, 2009.
He received his termination letter on April 23. If Fleming and
the Union are correct that the period commenced in November
2008, Fleming’s termination of employment was untimely.
However, if the “disposition of the criminal matter” did not
occur until sentencing, then the termination of employment
was timely.
A “disposition” is defined as “[a] final settlement or deter-
mination.” black’s Law Dictionary 539 (9th ed. 2009). Our
court has previously held that a conviction does not become
final until a sentence is pronounced. See, e.g., State v. Vela,
272 Neb. 287, 721 N.W.2d 631 (2006); Kennedy v. State, 170
Neb. 193, 101 N.W.2d 853 (1960). Accordingly, the disposition
1020 	280 NebrASkA rePOrTS

of a criminal case cannot come before sentencing. Therefore,
Fleming’s termination of employment was timely.
Our review is whether the Commission acted within its
jurisdiction and whether sufficient relevant evidence supports
the decision appealed from. The evidence is sufficient to sup-
port the decision of the Commission. And the decision is not
arbitrary or capricious. Fleming’s conviction for assault and
battery, which became final upon his sentence, supports the
decision to terminate his employment.
O tHEr E mPlOyEEs’ criminal cOnvictiOns
Fleming and the Union next argue that the district court
erred in finding that other employees’ criminal convictions
and the discipline imposed as a result of the convictions were
irrelevant. They argue that to ignore the criminal convic-
tions of others renders the Commission’s decision arbitrary
and capricious.
Fleming’s employment with the Department was governed
by a CbA. The CbA, by its terms, incorporated the “Douglas
County 	Civil 	Service 	regulations 	and 	the 	[Department’s]
Standard Operating Procedures.” See CbA article 6, section
2. Included within article 13 of the Commission’s personnel
policy manual is a section which requires that like penalties be
imposed for like offenses. And article 22 of the same personnel
policy manual establishes a rule against being “convicted of a
felony or crime which renders him unfit to perform the duties
of his/her position.”
Fleming was convicted of assault and battery, which was
charged as a Class I misdemeanor. This crime involved bodily
injury. The other corrections officers to whom Fleming asks
that his discipline be compared were all convicted of driving
under the influence offenses in Iowa.
We conclude it was not error for the Commission to dis-
regard the convictions of the other employees. Article 22
establishes a rule against being convicted of a crime that ren-
ders a person unfit to be a corrections officer. It is not a rule
prohibiting people from just being convicted of a crime. It was
not arbitrary to refuse to compare a conviction that involved
violence and bodily injury imposed by a corrections officer
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1021
Cite as 280 Neb. 1014

upon a detainee to the driving under the influence conviction
of another employee. Corrections officers operate in a unique
work environment in which there is always a potential for vio-
lent altercation. Selecting personnel who refrain from excessive
or unnecessary violence is a reasonable practice for a correc-
tions department. Imposing discipline on those who commit
violent offenses without regard to what discipline was imposed
on those who do not was not arbitrary. It was not error to
refuse to consider the other employees’ discipline.
The cases Fleming and the Union cite are of little use to
Fleming’s position. In Schulz v. Board of Education, 210 Neb.
513, 519, 315 N.W.2d 633, 637 (1982), we mentioned the per-
formance records of other teachers only because we were at a
loss as to how a teacher who routinely received “above aver-
age” ratings could be found to be incompetent. Schulz, by no
means, stands for the proposition that employee discipline must
always be compared to that imposed on other employees.
Lynn v. Deaconess Medical Center-West Campus, 160 F.3d
484 (8th Cir. 1998), is similarly inapposite. Lynn is a Title VII
discrimination case. Under the body of case law regarding
Title VII, when an employee does not put forward direct evi-
dence of discrimination, the case is analyzed under a tripartite,
burden-shifting framework. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. ed. 2d 668 (1973).
The last part of the analysis allows an employee to demonstrate
that a legitimate reason for the employment action offered by
the employer is merely a pretext for the discrimination. Under
the case law, “[i]nstances of disparate treatment can support a
claim of pretext, but [the plaintiff] has the burden of proving
that he and the disparately treated [employees] were ‘simi-
larly situated in all relevant respects.’” Lynn, 160 F.3d at 487,
quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968 (8th Cir.
1994). In this case, Fleming has not brought a claim under any
employment discrimination statute, so this route of analysis is
inapplicable. See Nebraska Dept. of Health & Human Servs.
v. Williams, 16 Neb. App. 777, 752 N.W.2d 163 (2008). And
further, Fleming and his fellow officers are not similarly situ-
ated; their acts were not of “‘comparable seriousness.’” Lynn,
160 F.3d at 488. They were convicted of very different criminal
1022 	280 NebrASkA rePOrTS

offenses. In sum, we find the arguments by Fleming and the
Union to be meritless.
cOntractual dOublE JEOPardy
Fleming and the Union argue that termination of Fleming’s
employment violated the concept of contractual double jeop-
ardy. While our courts have never recognized this doctrine,
other courts have. See, e.g., Zayas v. Bacardi Corp., 524 F.3d
65 (1st Cir. 2008); Rochon v. Rodriguez, 293 Ill. App. 3d 952,
689 N.e.2d 288, 228 Ill. Dec. 416 (1997); Lundy v. University
of New Orleans, 728 So. 2d 927 (La. App. 1999).
The doctrine of contractual double jeopardy “enshrines the
idea that an employee should not be penalized twice for the
same infraction.” 51A C.J.S. Labor Relations § 382 at 68
(2010). See, also, 48A Am. Jur. 2d Labor and Labor Relations
§ 2389 (2005 & Cum. Supp. 2010). Its protections are gener-
ally imported into a contract because they are “intrinsic to the
notion of just cause or otherwise implicit in the labor contract.”
Zayas, 524 F.3d at 68.
[7] As we mentioned, the relationship of the parties in this
case is governed by the CbA and incorporated documents. In
pressing his double jeopardy argument, Fleming, in essence,
is asking us to read or “import” into the CbA a term that he,
or the Union, could have negotiated for but did not. This we
refuse to do. Parties are generally bound by the terms of their
contract, even though their intent might be different from what
is expressed in the agreement. See Professional Serv. Indus.
v. J. P. Construction, 241 Neb. 862, 491 N.W.2d 351 (1992).
Only in a few limited circumstances may a court properly
imply contractual terms not expressly provided for by the par-
ties. See id. One of these rare implied terms is the covenant
of good faith and fair dealing, which exists in every contract.
See, Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390
(2003); Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16,
645 N.W.2d 519 (2002); Strategic Staff Mgmt. v. Roseland, 260
Neb. 682, 619 N.W.2d 230 (2000); Cimino v. FirsTier Bank,
247 Neb. 797, 530 N.W.2d 606 (1995). However, the scope of
protection offered by the covenant is curtailed by the purposes
and express terms of the contract. See Spanish Oaks, supra.
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1023
Cite as 280 Neb. 1014

In other words, the nature and extent of the covenant’s protec-
tions are measured by the justifiable expectations of the parties.
See id.
The terms of the CbA seem to allow for two forms of disci-
pline that could be applied to the same underlying facts. Article
27, section 2, of the CbA provides different timeframes in
which discipline must be brought for noncriminal complaints
and criminal complaints. Nothing in the CbA convinces us
that the same underlying facts could not serve as a basis for
criminal and noncriminal complaints and, thus, two different
occasions for discipline.
In sum, the district court was correct in refusing to apply the
doctrine of contractual double jeopardy.
P rOcEdural duE P rOcEss
The final argument by Fleming and the Union is that
Fleming’s right to procedural due process was violated when
Dunning, the Douglas County sheriff, sat on the Commission.
They claim that Dunning’s participation deprived Fleming of
his right to an unbiased adjudicator. As evidence of bias, they
point to two things. First, the accusation that Fleming had com-
mitted an assault was investigated by sheriff’s deputies who
work under Dunning. Second, Fleming and the Union point out
that Dunning excused himself from the first Commission hear-
ing because he said he had a “conflict,” although Dunning later
claimed that this was merely a scheduling conflict.
[8-12] Procedural due process requires a neutral, or unbiased,
adjudicating decisionmaker. See Murray v. Neth, 279 Neb. 947,
783 N.W.2d 424 (2010). Administrative adjudicators serve with
a presumption of honesty and integrity. Id.; Barnett v. City of
Scottsbluff, 268 Neb. 555, 684 N.W.2d 553 (2004). The party
seeking to disqualify an adjudicator on the basis of bias or
prejudice bears the heavy burden of overcoming the presump-
tion of impartiality. Murray, supra; Urwiller v. Neth, 263
Neb. 429, 640 N.W.2d 417 (2002). Factors that may indicate
partiality or bias on the part of an adjudicator are a pecuniary
interest in the outcome of the proceedings, a familial or adver-
sarial relationship with one of the parties, and a failure by the
adjudicator to disclose the suspect relationship. Murray, supra.
1024 	280 NebrASkA rePOrTS

An adjudicator should recuse himself or herself when a litigant
demonstrates that a reasonable person who knew the circum-
stances of the case would question the adjudicator’s impartial-
ity under an objective standard of reasonableness, even though
no actual bias or prejudice is shown. Urwiller, supra.
Courts, including the U.S. Supreme Court, see Withrow v.
Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. ed. 2d 712 (1975),
have generally rejected the idea that the combination of investi-
gatory and adjudicatory functions is a per se denial of due
process. See, Murray, supra; Dieter v. State, 228 Neb. 368,
422 N.W.2d 560 (1988). Without a showing to the contrary,
state administrators are assumed to be persons of conscience,
capable of judging a particular controversy fairly on the basis
of its own circumstances. Murray, supra.
The argument by Fleming and the Union seems to be that
Dunning would be too deferential to the sheriff’s report because
his employees were the officers who wrote it. This argument
fails for at least two reasons. First, the combination of investi-
gatory and adjudicative functions is not a per se violation of
due process. See, id.; Dieter, supra. Fleming and the Union
have failed to show why this rule should not apply. Second,
and more important, after Fleming’s conviction, the details of
the sheriff’s report became irrelevant. Fleming’s employment
was terminated because he was convicted of a crime to which
he pleaded no contest. Any factual issues investigated by the
sheriff’s office were resolved by the conviction and sentence.
Thus, Dunning’s supervision of the investigation would not
have any effect upon the determination of whether Fleming had
been convicted of a crime which rendered him unfit to perform
the duties of his position. Dunning’s role on the Commission
was to determine whether there was sufficient evidence to sup-
port the decision to terminate Fleming’s employment. A simple
examination of court records would indicate that there was
sufficient evidence. There was no need to even consider the
reports of the deputies.
Fleming and the Union also point to the fact that Dunning
had recused himself from the first hearing because of a “con-
flict.” Dunning later claimed that this was just a scheduling
conflict. Fleming and the Union have put forth no evidence to
FLemINg v. CIVIL SerV. COmm. OF DOUgLAS CTy. 	1025
Cite as 280 Neb. 1014

the contrary. Nor have they shown that Dunning would have
been required to recuse himself at the first hearing because
of bias. Under our case law, it is Fleming’s burden to show
partiality. See, Murray v. Neth, 279 Neb. 947, 783 N.W.2d
424 (2010); Urwiller v. Neth, 263 Neb. 429, 640 N.W.2d 417
(2002). He has failed to make this showing. Accordingly, this
assignment of error is without merit.
CONCLUSION
We conclude that none of the assignments of error asserted
by Fleming and the Union have merit. The Commission’s find-
ings were supported by sufficient evidence. Accordingly, we
affirm its termination of Fleming’s employment.
aFFirmEd.
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