*1 Dеpartment S. appellant, of Francis v. appellee. Institutions, Public 317N.W.2d 783 April 1982. Filed No. 43927. Sullivan, & E. Sullivan of Helmann
Michael appellant. Peterson, E. for Alan Attorney Douglas, General, L.
Paul and John appellee. Boehm, for
Heard before Krivosha, C.J., Boslaugh, McCown, JJ. Clinton, White, Hаstings, Caporale, J. Boslaugh, appeals judgment S. from the Francis Devine affirming District Court an order of the State affirming imposition Board Personnel admin- probation upon appellant. istrative psychologist еmployed is a staff Devine at Drug Hastings and Alcohol Treatment Center of the part Regional duties, Center. As a of his Devine de- patients par- a series seven lectures livered ticipating 21-day program. in the In рhilosophy Devine was critical of the lectures these program Center that alcohol- opinion expressed a disease and his ism satisfactory Anonymous program for Alcoholics patients. only As a result a small number statements, the statements which contradicted these many patients staff, members of of other *2 consequence of the As a further came confused. members were re- other staff statemеnts of quired prepared and their schedules to abandon and refutation of their efforts to a discussion devote Devine’s statements. psychology Touchstone, of at
Frank the director supervisor Regionаl Center, the immediate the Devine. proved of conferences to be After a series placed effect, Devine on adminis- Touchstone of no days, probationary for 90 a form of status trative grievance disciplinary then filed a action. Devine successively by complaint the di- which was denied superintendent psychology and the of the rector of Department Regional Center, the director Institutions, аnd the Director of State Per- Public sonnel. Board appealed then to the State Personnel
Devine comply had failed to which found that Devine policies procedures and of the the stated with Rеgional concerning philoso- by the treatment Center approach phy which, toward alcoholism stat- and Anonymous part ute, based in on an Alcoholics negative derogatory model, and that his aсtions and had resulted in confusion and statements From the order staff relations. of the affirming imposition administrative board appealed probation, Devine to the District Court. Court of an order the District of the The review Personnel Board is on the record of the State (Reissue 1976). §84-917(5) agency. Neb. Rev. Stat. questions are whether be determined the find- The ings supported substantial board are evi- ju- dence; within whether the action taken was board; and whether action was risdiction arbitrary capricious. principal whether Devine’s issue here is con- The protected duct and statements were under the first amendment to the Constitution of the United States. Regional Devine contends that the situation at the comparable Center was to that of an academic insti- enjoy tution and that Devine should a form of “aca- professor demic freedom” similar to that of a in a college university. analogy appropri- is not ate. patients spoke to whom Devine were not stu- persons
dents at an educational institution but were problem Regional with а serious who were at problem. Center to receive treatment for their treatment theory Center was based on the disease, that alcoholism is a statute required the center was to include an Alcoholics Anonymous program part ap- as a of its treatment (Reissue proach. See Neb. § Rev. Stat. 83-307.01 1976). apparent It is if the treatment was to any hope success, it was essential cooperation be obtained. *3 effects and confusion that resulted patients from Devine’s statements to are described testimony psychology, in the of the director of Drug project Unit, director coordinator the Alcоhol and Drug Unit, Alcohol and a senior professional drug counselor, and an alcohol coun- following excerpt at the center. selor from the testimony drug of one of the alcohol counselors il- problems disruption lustrates and in appellant: going “Q- caused You were to dis- Okay, the first lecture. A- I cuss would enter the give my lecture, hall to lecture which was on an steps, go to the AA orientation and would in and I introduсing my my name and the title of was lec- responded patients ture, and some of the that —let long responded person see, me me, how that the before — was Dr. who had said that counselors do anything pro- alсoholism, not know about gram Anonymous work, does not Alcoholics
116 always an- not the total abstinence answer — they al- that, said I believe swer, correct I better what contradict ways didn’t this answer —and my my in say going or hаd said lectures in was lectures. up brought to me at times this was And just but there could in the audience one not be eight many in this out of involved or ten as as you people. able to con- approximately Q- Were 40 planned? No,A- your been as had lecture with tinue giving way. lectures to said in Q- ... In addition no you on, you them deal with also counseling, yes. group group? individual In and A- you did of these situations in either And Q- you expressing concern аbout patients come to receiving they conflicting from information situations, Yes, both indi- A- in both Devine? study group group. counseling In the and vidual try explain explain the dis- they me to ask would this one of the because оf alcoholism idea ease disagreed they things had Dr. Devine claim with.” Pickering Education, 563, U.S. 391 In v. Board of (1968), upon 2d 811 a case L. Ed. S. Ct. Supreme appellant relies, the U.S. Court which recognized employ- an has interests as that the state regulating speech of its that dif- er possesses significantly those that con- fer speech citizenry regulation of its with nection recognized general. also there was The court harmony among discipline and co- to maintain need workers proper impeded which conduct curtail competent performance of the duties employees. appellant noted, and the con-
As the trial court right speech cedes, absolute. of free *4 any problem at a in arrive balance is to case employee, citizen, as a the interests of the tween commenting upon public concern and the matters employer, promoting state, of the interest as an performs public efficiency services the the through Pickering employees. v. Board Edu application proper suprа. cation, a We believe supports balancing the conclusion this test the appellant pa to the that the statements case protected by not Center were tients amendment. first attempted appellant Court, District In the by records and information certain obtain attempts objections discovery. The to these at dis- properly covery sustained. review agency. limited to the record Court is District judgment Court is of the District affirmed. Affirmed. J., concurs in the result. Clinton, dissenting. C.J., Krivosha, respectfully I must dissent I find that majority I do not take in this case. While issue with by general propositions of advanced law application the ma- the jority, that their believe the instant contrary requires a us to reach decision. case questions majority correctly has noted that the to be findings are whether determined board supported substantial evidencе. take this are mean justly preponderance more than a of the evi- dence. reading
My of the record leads me to believe that best, is not At we are evidence substantial. testimony admittedly opрosed who position Dr. taken and who ad- to mittedly present particular position. desire to a testimony, one examines their which admit- When tedly my hearsay, cannot, view, one reach a is substantial so evidеnce as to conclusion support position. the state’s state
While maintains Devine’s be- having on effect staff havior rela- patients, testimony does bear tions out presented only contention. The еvidence *5 general reported in a that of staff who they perceived fashion what saying. some of the No patient support position. testified in of the state’s It appear that the staff was more wоuld what There is confused saying patients. Dr. Devine than were the simply no substantial evidence in the rec- patients’ that condition of “confusion” ord attributable to Dr. Devine’s comments on alcoholism. supports bеst, pa- a At evidence view that some inquiry made as to which of tients the two views accepted. should be parties all concede that Dr. Devine’s state-
ments were not false that there is an honest dif- oрinion ference as whether alcoholism is a dis- opinion ease, and an honest difference of as to the program every patient. sug- AA of an on effect gest To saying that he did believe that alcohol- ism was a disease or that it was effective on all people thereby adversely he created confusion which patients’ simply unsup- affected is ported by any in the record substantial evidence. no There is evidence that Dr. Devine’s statements adversely any patient affected the treatment of prevented obtaining his desired level recovery, any nor is there indication that any patient regress statements made caused treatment. his position department
If, indeed, was as important department as the was, now maintains investigation concerning one would think that an hiring Devine’s views would have been madе before him. wholeheartedly agree majority with the that
problem in this case is to at a arrive balance employee tween interests as a citizen in commenting upon public matters of concern and the employer promoting interest state as an efficiency public performs through services it employees. My disagreement majority with tips believe the balance is favor of the em- suggest, majority рloyee. now, To as the does every facility health care all of the “party any line,” follow the must evidence absent substantial party required, line is correct or impose upon employees in thе health care field re- quirements permit. which I believe the law does not I would balanced the test in favor of Dr. De- vine. *6 Raynor,
Kenneth appellant, E. v. Northwestern City, Iowa, National Bank of Sioux appellee. corporation, 317N.W.2d 786 April
Filed 1982. No. 43966. appellant. Office, Learner Law for Ellwanger Rawlings Michael W. and William S. Kindig, Rawlings, Beebe, Killinger, Nieland & for appellee.