*1 153 prescribed duty during performed which the is to be principal.” Suretyship § 74 Am. Jur. 2d 29 at (1974). 31 Rawleigh 529, Smith, 531,
In Co. v. discussing liability N.W.2d of a surety, surety beyond ‘‘A we said: cannot be held precise part Any the the tinued terms of his contract. intention on surety to assume a further and con-
liability must be found in the words of the inference, contract made. It is not a matter of but express liability surety, statement. of a by, therefore, beyond, is measured and will not be extended the strict terms of his cоntract.” Putting questions aside obvious of the statute of guaranteed limitations, Peerless the structure for 3 years; pur- it does not make difference for the poses opinion of this whether from the date of the comрletion. contract as recited or from the date of 3-year pe- There was no structural riod failure within the guaranteed by Co-op Peerless. must seek relief only, guarantee under, and we must enforce actually promised. which was No structural defect having period, arisen within the contract the trial court was correct in its dismissal of the action against Peerless. Affirmed. J., concurs in the result.
Boslaugh, Lloyd Beasley, E. et Omahа appellees. al., N.W.2d July
Filed 1982. No. 44248. *2 Young, appellant. Thomas J. for City Attorney, Fitle, Herbert M. and Kent N. Whinnery, appellees. C.J., Boslaugh, Heard before Krivosha, McCown, and JJ.
Clinton, White, Hastings, Caporale, J. Caporale, by This arises from a determination Nebraska, District, District Court of in and for Fourth Judicial Douglas County, affirming a decision of (Board) upheld the Omaha Personnel Board the termination of which plaintiff-appellant Lloyd E. Beas- ley’s emplоyment manager housing as a in Omaha’s community development department. and the District asserts Court erred in find- ing, appellant’s separation Board, as did the that employment compliance appli- was in with thе city Further, cable ordinance. that the District Court erred in that the evidence adduced be- fore the Board was sufficient to constitute a basis for specifically, termination; finding appellant in there was a “lаck of funds” and was the employee. assign- “least We find ments of error to be without merit and affirm the or- der of the District Court. scope judicial
We first examine the of review in an appeal by proceeding questiоns in error which body, decision of an administrative sonnel board of a such as the municipality. in law this re- gard body is well settled. Where an administrative jurisdiction there is some its has acted within findings support competent and or its evidence City (1978); Stradley der, v. order will be affirmed. 378, Omaha, 267 N.W.2d Shepherd City Omaha, 194 235 N.W.2d v. Neb. (1975). the Board did not No claim is made that jurisdiction. The nature of evidence within its act deemed competent of administrative the context hearings been established. It is that which has also relevant, admissible, and tends to establish the is investigation issue; however, conducted facts by body an administrative is not intended to be car adopted out in observance оf the technical rules ried Shepherd courts law. supra; Frink, 81 Munk v. Neb. N.W. (1908). mind,
With those rules in we find that the record before the Board reveals terminated, funds,
was on was of a because lack letter *3 January 31, 1979, effective that same date. He
provided days’ separation pay. ap- with 30 The pellant and another were selected for separation employment they from because were qualified.” Although appellant found to be “least supervisory job per- classification, had a he title and supervisory pеrformed duties; formed no he fewer responsibility duties and had than em- less another ployee position; with an identical title and and over period employees of time had assumed other vari- parts subject jоb. ous of his He had been the of of period performance numerous evaluations over a consistently time which in low scores. He resulted supervisors, consistently had, under three different assigned employeеs projects been other fewer than performance Nonetheless, of his con- rank. his output, qualitatively tinued to show a both and low quantitatively. by peers perceived was being unmotivated, and others he did nоt in- as and spire confidence. adequate lack funds maintain
position originated $25,000 with a reduction of in the housing budget personnel community development department September of 1978. An evaluation of the
in the division in which the reduction had begun, following occurred was individuals to be which the choice of
separated was made. Municipal Section 7.04.835 of the Omaha Code (1959) provides department as follows: “A head may separate any employee prejudice without be- work, cause of lack of funds or curtailment of after giving working days notice of at least ten to such employee. regular employee Howеver, no shall be separated department pro- from while there are probationary temporary visional, employees or serving positions depart- in the same class of in that position ment. Whenеver a classified is abolished or necessary, lay a reduction in force becomes offs shall be in reverse order of total service with the qualifications employees when the substantially equal; form the аvailable work are employees perform otherwise the best departures the work shall be retained. Such regular procedures reduction force and the reported reasons therefor shall bе to the Personnel Any employee adversely Director. affected such may appeal an action to the Personnel Board.” Appellant argues separation first did not comply 10-day require- with the ordinance’s notice money so, ment and that had it done would have 10-day period been available at the end of that continue his as result of other argument vacancies which occurred. That is not persuаsive. requirement provides The notice an *4 receiving pay some time while still full employment. within which to seek other In in- this appellant paid days being stance was for 30 without required to work at all after he had reсeived the separation. notice of Nor is there in merit the sepa- place the notice of took after that events claim termination. the for the obviated basis ration which good department lоng in faith head acts a So as budget upon at the time he of his the realities based light required in acts, his decision not to review he is subsequent See Sibert v. events. (1978), Sibert wherein N.W.2d partly discharged his based was likely physician’s not thаt statement that it was on a he could continue perform the strenuous work required sustaining position addi- without which tional to his physician subsequent thereafter, injuries. Plaintiff discharge, from the obtained another letter “probably” capable said he was
which body provided support. returning work, he wear a attempt rejected to remove that “after the fact” We the cause discharge. Moreover, it is not clear personnel vacancies oc- record that from the appellant’s curring termination would continue after testimony although unfilled, there was remain vacancy by resignation respect one to a existed tо created with that plan fill it at this time. no prejudiced argues inas- he was further reported separation was not as his much required applicable ordi- director as sonnel appellant moot; had too is has nance. This to the Board. benefit of an argument is an- The remainder quantum the fact evidence swered competent the “some evi- exists satisfies which requirement support that he fell dence” category. the “least into in rationale is not unlike Ackerman 232, 234-35, Commission, 177 Neb. Service Civil discussing wherein, in N.W.2d powers commission, said: of the civil service we a wide discretion the civil service “The act vests does not vest a similar discretion commission but contemplate does not court. The statute the district *5 appeal that the to the district court shall be a trial de appeal to the on novo similar review of an action in equity. purpose to the district permit court is to the to obtain a deter- only mination mission was made as to whether the order of the com- good faith for cause. If the evidence in the district court is sufficient to show good thаt the order the commission was made in cause, faith for must be affirmed. then the order of the commission only “In this case the evidence which was intro- in the duced district court was the record of the tes- timony and exhibits which wеre received at the hearing Thus, before the civil service commission. inquiry the was sufficient here is limited to whether this evidence
to sustain a of cause for dis- charge.” scope judicial
Given the review of administra- determinations, tive the Court District was com- pelled compelled Board, to affirm the and we are affirm the District Court. Affirmed. J., concurs in the result.
White, dissenting. Krivosha, C.J., respectfully I find that I must dissent from the majority disagree in this I so case. do not because I majority’s but, with the declaration as to the law application rather, as to its of the facts in this case. amply majority, As noted the the record in this appellant case establishes the fact that was in- perform “least deed the tasks which he wаs hired. The record further discloses necessary courage did not have the appropriate discharge take action and the em- ployee upon rather, but, for cause relied a makeshift argumеnt concerning a reduction in funds. It dif- is impossible, imagine ficult, if not that one who supervisor seniority to the rose rank and had near very top among employees the list was not “bumped job entitled to be down” to the lowest department. everyone If, indeed, depart- in the ment was more appear than the it would long ago that he should have been dis- charged My objecting for cause. reason for majority action taken is I do not believe type that an ordinance of the involved herein should relieving city management be used as a means of *6 responsibility manage, permitting city its management or of responsibility proving
to avoid the by сreating cause, a “reduction in funds” or a “re- City duction work.” I believe that has a di- responsibility manage rect its affairs and to dis- charge employees for cause when such cause exists. right of an to be laid off in reverse or- pursuant service, provisions der total Municipal § 7.04.835 of the Omaha Code is to- tally completely made ineffective when we municipality discharge supervisor mit a on the basis of “reduction in funds” or “reduсtion in work” city supervisor because the has been maintains who employed years for a number of is less person employed than other in the de- partment. Rawson,
Sharon appellee. Nebraska, 322N.W.2d 381 July Filed 1982. No. 44274.