§ 19-1833 — Civil service; employees; discharge; demotion; procedure; investigation; appeal

Nebraska § 19-1833

• Jurisdiction: Nebraska
• Ch. 19: Cities and Villages; Laws Applicable to More Than One and Less Than All Classes

Text

(1) No person in the civil service who shall have been permanently appointed or inducted into civil service under the Civil Service Act shall be removed, suspended, demoted, or discharged except for cause and then only upon the written accusation of the police chief or fire chief, the appointing authority, or any citizen or taxpayer.
(2) The governing body of the municipality shall establish by ordinance procedures for acting upon such written accusations and the manner by which suspensions, demotions, removals, discharges, or other disciplinary actions may be imposed by the appointing authority. At least one copy of the rules and regulations, and any amendments to such rules and regulations, shall be made available for examination and reproduction by members of the public. One copy of the rules and regulations and any such amendments shall be given to each full-time firefighter and full-time police officer.
(3) Any person so removed, suspended, demoted, or discharged may, within ten days after being notified by the appointing authority of such removal, suspension, demotion, or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. The governing body of the municipality shall establish procedures by ordinance consistent with this section by which the commission shall conduct such investigation. At least one copy of the rules and regulations, and any amendments to such rules and regulations, shall be made available for examination and reproduction by members of the public. One copy of the rules and regulations and any such amendments shall be given to each full-time firefighter and full-time police officer. Such procedures shall comply with minimum due process requirements. The commission may be represented in such investigation and hearing by the city attorney or village attorney if authorized by the appointing authority. If the city attorney or village attorney does not represent the commission, the commission may be represented by special counsel appointed by the commission for any such investigation and hearing. The investigation shall be confined to the determination of the question of whether or not such removal, suspension, demotion, or discharge was made in good faith for cause which shall mean that the action was not arbitrary or capricious and was not made for political or religious reasons.
(4) After such investigation, the commission shall hold a public hearing after giving reasonable notice to the accused of the time and place of such hearing. Such hearing shall be held not less than ten or more than twenty days after filing of the written demand for an investigation and a decision shall be rendered no later than ten days after the hearing. At such hearing the accused shall be permitted to appear in person and by counsel and to present his or her defense. The commission may affirm the action taken if such action of the appointing authority is supported by a preponderance of the evidence. If it shall find that the removal, suspension, demotion, or discharge was made for political or religious reasons or was not made in good faith for cause, it shall order the immediate reinstatement or reemployment of such person in the position or employment from which such person was removed, suspended, demoted, or discharged, which reinstatement shall, if the commission in its discretion so provides, be retroactive and entitle such person to compensation and restoration of benefits and privileges from the time of such removal, suspension, demotion, or discharge. The commission upon such hearing, in lieu of affirming the removal, suspension, demotion, or discharge, may modify the order of removal, suspension, demotion, or discharge by directing a suspension, with or without pay, for a given period and the subsequent restoration to duty or demotion in position or pay. The findings of the commission shall be certified in writing to and enforced by the appointing authority.
(5) If such judgment or order be concurred in by the commission or a majority thereof, the accused or governing body may appeal to the district court. Such appeal shall be taken within forty-five days after the entry of such judgment or order by serving the commission with a written notice of appeal stating the grounds and demanding that a certified transcript of the record and all papers, on file in the office of the commission affecting or relating to such judgment or order, be filed by the commission with such court. The commission shall, within ten days after the filing of such notice, make, certify, and file such transcript with and deliver such papers to the district court. The district court shall proceed to hear and determine such appeal in a summary manner. The hearing shall be confined to the determination of whether or not the judgment or order of removal, discharge, demotion, or suspension made by the commission was made in good faith for cause which shall mean that the action of the commission was based upon a preponderance of the evidence, was not arbitrary or capricious, and was not made for political or religious reasons. No appeal to such court shall be taken except upon such ground or grounds.
If such appeal is taken by the governing body and the district court affirms the decision of the commission, the municipality shall pay to the employee court costs and reasonable attorney's fees incurred as a result of such appeal and as approved by the district court. If such appeal is taken by the governing body and the district court does not affirm the decision of the commission, the court may award court costs and reasonable attorney's fees to the employee as approved by the district court.

Legislative History

Source: Laws 1943, c. 29, § 8, p. 132; R.S.1943, § 19-1808; Laws 1957, c. 48, § 6, p. 234; Laws 1959, c. 65, § 2, p. 289; Laws 1969, c. 116, § 4, p. 531; R.S.1943, (1983), § 19-1808; Laws 1985, LB 372, § 12; Laws 2019, LB193, § 125. Annotations: 1. Appeal 2. Miscellaneous 1. Appeal Only issue on appeal from the civil service commission to district court is whether commission's order was made in good faith for cause. Fredrickson v. Albertsen, 183 Neb. 494, 161 N.W.2d 712 (1968). Discharged employee may appeal to district court from action of civil service commission. Dlouhy v. City of Fremont, 175 Neb. 115, 120 N.W.2d 590 (1963). Subsection (5) of this section provides that in an appeal from the civil service commission, the district court shall proceed to hear and determine such appeal in a summary manner, and the hearing shall be confined to the determination of whether or not the judgment or order of removal, discharge, demotion, or suspension made by the commission was made in good faith for cause which shall mean that the action of the commission was based upon a preponderance of the evidence, was not arbitrary or capricious, and was not made for political or religious reasons. Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324 (2014). Subsection (5) of this section provides that the accused or governing body may appeal from the judgment of the civil service commission to the district court. Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324 (2014). 2. Miscellaneous For the purposes of this section, the phrase in good faith for cause shall mean a commission's action which is based on competent evidence, neither arbitrary or capricious nor the result of political or religious reasons, and reasonably necessary for effectual and beneficial public service. In re Appeal of Levos, 214 Neb. 507, 335 N.W.2d 262 (1983). Conclusive, as used in this section, does not refer to burden of proof nor the weight of the evidence but is synonymous with decisive, determinative, or definitive. Adkins & Webster v. North Platte Civil Service Comm., 206 Neb. 500, 293 N.W.2d 411 (1980). The final determination of discharge, under this act, rests with the civil service commission. Adkins & Webster v. North Platte Civil Service Comm., 206 Neb. 500, 293 N.W.2d 411 (1980). Upon written accusation before the commission either the appointing power may temporarily suspend or the commission may direct such suspension. Sailors v. City of Falls City, 190 Neb. 103, 206 N.W.2d 566 (1973). Power to discharge city employee in classified civil service is lodged solely in Civil Service Commission. Wachtel v. Fremont Civil Service Commission, 190 Neb. 49, 206 N.W.2d 56 (1973). An employee who is discharged may file with the civil service commission a written demand for an investigation. Ackerman v. Civil Service Commission, 177 Neb. 232, 128 N.W.2d 588 (1964). Where fireman voluntarily abandoned his position, he lost all benefits under Civil Service Act. State ex rel. Schaub v. City of Scottsbluff, 169 Neb. 525, 100 N.W.2d 202 (1960). Employee in classified civil service could not be discharged by city council. Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117 (1958). Subsection (2) of this section requires that the governing body of a municipality shall establish by ordinance procedures for acting upon written accusations. Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324 (2014). Under subsection (1) of this section, no person in the civil service shall be discharged except for cause and then only upon a written accusation. Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324 (2014). Under subsection (3) of this section, after discharge, a civil service employee may, within 10 days after being notified of the discharge, file with the commission a written demand for an investigation, followed by a hearing. Busch v. Civil Service Commission, 21 Neb. App. 789, 844 N.W.2d 324 (2014).