Swicord v. Police Stds. Adv. Council
309 Neb. 43
| Neb. | 2021Background
- Blake Swicord, formerly a Georgia law‑enforcement officer terminated in 2017, sought Nebraska reciprocity certification after being hired by the Seward County sheriff.
- He submitted a Personal Character Affidavit answering “No” to questions about prior arrests and investigations and signed a notarized Authority to Release Information.
- NLETC director Brenda Urbanek denied the application after a background check revealed a January 2018 Georgia arrest for suspected battery and that the Georgia POST voted to revoke his certification; Swicord did not disclose these matters.
- Swicord appealed to the Police Standards Advisory Council, testified he misunderstood the form and relied on counsel, but the Council found his explanations not credible and that he knowingly falsified the affidavit; it upheld the denial.
- The Hall County district court affirmed the Council’s decision; on further appeal Swicord argued plain error, invoking Neb. Rev. Stat. §29‑3523, claiming his answers were honest mistakes, and contending the Council exceeded its authority by commenting on his honesty.
- The Nebraska Supreme Court affirmed: it found no plain error, concluded the statute did not entitle Swicord to deny the arrest, competence of evidence supported knowing misrepresentations, and the Council permissibly assessed honesty/trustworthiness.
Issues
| Issue | Swicord's Argument | Appellees' Argument | Held |
|---|---|---|---|
| Procedural compliance / standard of review | Headings in brief suffice as assignments of error; request plain‑error review | Rule noncompliance permits treating brief as not filed or applying plain‑error review | Court refused to treat headings as assignments; proceeded under plain‑error review and found no plain error |
| Whether §29‑3523 allowed denying prior arrest | §29‑3523(3) & (8) meant he could truthfully deny the arrest because no charges were filed / statute protects sealed records | §29‑3523 covers Nebraska sealed records; no evidence Georgia record was sealed; Swicord executed a notarized release allowing disclosure | No plain error: statute did not entitle him to deny; district court correctly concluded §29‑3523 did not apply here |
| Whether his affidavit answers justified denial of reciprocity | Answers were honest mistakes or reasonable misunderstandings (including reliance on counsel) | Regulations bar deliberate omissions/falsifications; record shows knowing misrepresentations and nondisclosure | No plain error: competent evidence supported finding of knowing misrepresentations and denial was permitted under regulations |
| Whether Council exceeded authority by commenting on honesty | Council lacked authority to assess/comment on honesty/trustworthiness in written decision | APA requires findings/conclusions; reciprocity rules make honesty/trustworthiness relevant to good character | No plain error: Council properly issued findings and could lawfully evaluate honesty/trustworthiness |
Key Cases Cited
- Tran v. State, 303 Neb. 1 (2019) (standard for judicial review of agency action under the Administrative Procedure Act)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582 (2018) (plain‑error review may be applied where briefing rule noncompliance occurs)
- 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 standard is more deferential than clear‑error review)