Swicord v. Police Stds. Adv. Council
309 Neb. 43
| Neb. | 2021Background
- Blake Swicord, formerly a Georgia law‑enforcement officer, was terminated in Georgia and later hired in Nebraska; Seward County sought reciprocity certification for him from the Nebraska Law Enforcement Training Center (NLETC).
- Swicord submitted a Personal Character Affidavit answering “No” to questions about prior arrests and whether any professional license/certification was under investigation; he also signed a notarized release authorizing disclosure of arrest and certification records.
- NLETC director Brenda Urbanek learned Swicord had been arrested in Georgia (Jan. 2018) and that the Georgia POST had voted to revoke his certification; Urbanek denied reciprocity for falsification/omission and denied his administrative reconsideration.
- Swicord appealed to the Police Standards Advisory Council; after a hearing the Council found he knowingly falsified answers, was not credible, and denied reciprocity; the Council issued a written decision commenting on his honesty and trustworthiness.
- Swicord sought judicial review in Hall County district court, which affirmed the Council; he appealed to the Nebraska Supreme Court asserting plain error, relying in part on Neb. Rev. Stat. § 29‑3523 (sealed records) and arguing the Council exceeded authority.
- The Nebraska Supreme Court reviewed for plain error and affirmed the district court: it held § 29‑3523 did not entitle Swicord to deny the arrest, competent evidence supported the finding of knowing misrepresentations, and the Council acted within authority in issuing findings about honesty.
Issues
| Issue | Plaintiff's Argument (Swicord) | Defendant's Argument (State/NLETC/Council) | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 29‑3523 allowed Swicord to deny a prior arrest | § 29‑3523(3)(a) and (8) mean arrest without charges or sealed records may be treated as never occurred, so he could truthfully answer “No” | § 29‑3523 does not apply to Georgia records here; even if it did, Swicord authorized release of records and did not show records were sealed | Court held § 29‑3523 did not entitle him to deny the arrest and district court did not plainly err |
| Whether § 29‑3523(8)’s sealed‑record protection applied | If the record is sealed, inquiries are forbidden and a person may respond as if offense never occurred | No evidence the Georgia records were sealed; statute thus inapplicable | Court found no plain error in concluding the statute did not apply |
| Whether denial of reciprocity was warranted given his affidavit answers | His incorrect answers were honest mistakes or lawful denials (advice of counsel); not deliberate falsifications | Regulations require disclosure; competent evidence showed he knowingly omitted/falsified answers | Competent evidence supported finding of knowing misrepresentations; denial affirmed |
| Whether the Council exceeded authority by commenting that Swicord was not honest/trustworthy | Council lacked authority to impugn character or to issue such commentary in its written order | Administrative Procedure Act requires findings; regulations make honesty/trustworthiness relevant to reciprocity | Court held Council had authority to issue findings and comment on honesty; no plain error |
Key Cases Cited
- Tran v. State, 303 Neb. 1, 926 N.W.2d 641 (standard of review for judicial review under the Administrative Procedure Act)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d 427 (appellate treatment when a brief fails to comply with procedural rules; plain‑error framework)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916 (headings cannot substitute for a properly designated assignments‑of‑error section)
- U.S. v. Johnson, 874 F.3d 990 (plain‑error standard is more deferential to trial court factual findings)