Swicord v. Police Stds. Adv. Council
309 Neb. 43
| Neb. | 2021Background
- Blake Swicord, a former Georgia law enforcement officer, was terminated by the Georgia State Patrol in Dec. 2017 and arrested in Jan. 2018 for suspected battery; Georgia POST later voted to revoke his Georgia certification in Dec. 2018 (appeal pending at hearing).
- Seward County submitted a reciprocity certification application to the Nebraska Law Enforcement Training Center (NLETC) on Swicord’s behalf; the application included a Personal Character Affidavit that required disclosure of arrests, charges, convictions, and professional-license investigations.
- Swicord checked "No" to questions about ever being cited/arrested/charged/convicted and about professional-license investigations; he also signed an Authority to Release Information authorizing NLETC to obtain arrest/charge records.
- NLETC Director Brenda Urbanek denied reciprocity certification after a background check revealed the Georgia arrest and the Georgia POST investigation; Urbanek upheld denial on reconsideration.
- The Police Standards Advisory Council held a hearing, found Swicord knowingly made false statements/omissions (including the undisclosed arrest and POST investigation), and unanimously upheld denial as reflecting lack of honesty and trustworthiness.
- The Hall County district court affirmed the Council; Swicord appealed to the Nebraska Supreme Court, which reviewed for plain error and affirmed the district court.
Issues
| Issue | Plaintiff's Argument (Swicord) | Defendant's Argument (NLETC/Council) | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 29-3523 permitted Swicord to deny his Georgia arrest | § 29-3523(3) and (8) entitled him to treat the arrest as if it never occurred (no charges filed/sealed record) | § 29-3523 does not control out-of-state records here; no evidence record was sealed; Swicord executed a notarized release authorizing disclosure | Held: No plain error; statute did not entitle him to deny the arrest under these facts |
| Whether his application responses were mere mistakes or knowing falsifications | Responses were honest mistakes (advice of counsel; belief questions did not refer to POST investigation or certification) | Evidence showed inconsistent explanations and that he knew of the investigation and arrest; application warned to disclose doubts | Held: Competent evidence supports finding of knowing omissions/misrepresentations; no plain error in denial |
| Whether the Council exceeded authority by commenting on honesty/trustworthiness or issuing a written decision | Council lacked authority to make character judgments in its written order | Agency decisions in contested cases must include findings/conclusions; honesty/trustworthiness are relevant regulatory qualifications for reciprocity | Held: No plain error; Council properly issued findings including honesty/trustworthiness determinations |
| Whether appellate briefing defects require reversal or plain-error review | Swicord acknowledged briefing deficiency but urged review on merits | Court may treat noncompliant brief as no brief or review for plain error | Held: Court applied plain-error standard and found no plain error |
Key Cases Cited
- Tran v. State, 303 Neb. 1, 926 N.W.2d 641 (2019) (standard of review for district-court review under Administrative Procedure Act)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d 427 (2018) (appellate consequences for briefs failing to comply with rule and plain-error framework)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916 (2021) (headings do not substitute for properly designated assignments of error)
- U.S. v. Johnson, 874 F.3d 990 (7th Cir. 2017) (plain-error review is more deferential to the trial court than clear-error review)