This аction was brought by Benjamin F. Fisher to contest the termination of his employment with the Omaha Housing Authority (OHA).
On March 18, 1981, Fisher was informed by his supervisor, James L. Hanry, that his employment with OHA was terminated, effective April 1, 1981. Fisher appealed his termination by the еxecutive director, Hanry, and hearings on this matter were held before the board of commissioners of OHA on May 1, 26, and 27, and June 10, 1981. At the conclu sion of the June 10 hearing the board found this termination to be within Hanry’s authority and therefore it was pеrmissible.
Fisher again appealed, filing his first petition in the District Court of Douglas County on June 22, 1981. Defendants, OHA and others, filed a demurrer to this
The defendants utilized two bases in support of their demurrer: that the court has no jurisdiction in this matter, and that the amended petition fails to state facts sufficient tо constitute a cause of action. When a demurrer such as this has been raised, we have said: “The court must assume that the facts are as alleged, and cannot assume the existence of any facts not alleged, nor find facts in aid of the pleading, nor consider what evidence may be introduced at the trial.”
Clark & Enersen, Hamersky,
S.,
B. & T., Inc. v. Schimmel Hotels Corp.,
The basic facts underlying this appeal are taken from plaintiff’s petition. Plaintiff worked for OHA from 1969 to 1981 and satisfactorily performed his duties. From 1973 on, plaintiff worked as modernization coordinator. Plaintiff’s emрloyment with OHA was terminated on March 18, 1981, for gross negligence in the handling of the purchase of some 428 refrigerators, 25 to 90 of which turned up missing.
Plaintiff’s petition also stated these additional facts: The defendants are the OHA, its commissioners, and its executive director. The executive director terminated plaintiff, and after a hearing the board affirmed that decision. The board and the executive director were counseled by attorneys from the same firm at that hearing. The OHA has adopted various practice rules that deal with disciplinary actions and appeals taken therefrom. Finally, the defendants issued a press release which implicated plaintiff in these thefts, which release wаs later retracted.
On the basis of these facts plaintiff claims, in that portion of the appeal taken under Neb. Rev. Stat. §84-917 (Reissue 1981), that he was improperly terminated; that he was damaged by the above-cited press releаse; that his rights were somehow prejudiced by the board and executive director having counsel from the same firm; that the board failed to operate under its own adopted procedures; and that the board violated the public meetings law, Neb. Rev. Stat. §§ 84-1408 to 84-1414 (Reissue 1981).
In a separate claim, independent of the appeal from the board’s decision taken under § 84-917, plaintiff alleges he has been denied his constitutional rights under the fifth and fourteenth amendmеnts to the U.S. Constitution and article I, § 3, of the Constitution of Nebraska.
The District Court, in a letter to the parties, stated one reason for sustaining this demurrer was because the appeal from the OHA board was improperly brought under the Administrative Procedures Act of Nebraska, in that the OHA is not a state agency. As stated previously, plaintiff appealed the decision of the OHA board under § 84-917.
We have previously held that this statute only applies to appeals taken from agencies of state government.
Harnett v. City of Omaha,
The establishment of housing authorities in cities, villages, and counties throughout Nebraska is provided for under the Nebraska Housing Authorities Law, Neb. Rev. Stat. §§ 71-1503, 71-1509, and 71-1518 to 71-1554 (Reissue 1981). This is enabling legislation under which the various localities may, at their option, establish a housing authority for their specific area.
The parties have cited a number of cases from other jurisdictions on this point. We find the better reasoned and more analogous cases to Nebraskа law support the proposition that the housing authorities are local entities and not state agencies. In
Riggins v. Housing Authority,
On the basis of these statutory provisions that court held: “These facts indicate that the appellant performs in a wholly local capacity, deals with local problems оn a local basis, and is independent from any statewide system. We conclude, therefore, that the appellant is clearly not the type of agency the legislature intended to be included in RCW 34.04.010(1) and subject to the provisions of WAPA. [Citations omitted.]”
Id.
at 101,
Similar conclusions have been reached by other authorities. See,
Housing Authority of City of
As
bury Park v. Richardson,
We find this reasoning compelling and adopt it as contrоlling in this state. Since OHA is not a state agency, plaintiff’s appeal under § 84-917 was improper.
There is no provision for appeal from the decision of the board of commissioners of a housing authority in the Nebraska Housing Authorities Law. As previously stated, the appeal procedures of the Administrative Procedures Act do not apply in this case. We have previously stated: “This court has consistently held that where no statutory right to review has been provided, proceedings in error afford the only remedy.”
Simpson v. City of Grand Island,
In a proceeding by petition in error the plaintiff must file in the District Court, within 1 calendar
month after rendition of the final order complained of, a petition with an authenticated transcript containing that final order. Neb. Rev. Stat. § 25-1931 (Reissue 1979);
Marcotte v. City of Omaha,
In this case the board of commissioners decided on June 10, 1981, to uphold the firing of the plaintiff. Plaintiff filed his initial petition on June 22, 1981, but a transcript
The question remains, Does plaintiff’s petition state any valid cause of action which is independent of the appeal from the decision of the board of commissioners? Plaintiff’s amended petition, as stated above, raises two causes of action: one with regard to the matter before the board of commissioners, which was properly dismissed, and another which alleged the plaintiff’s constitutional rights under the fifth and fourteenth amendments to the U.S. Constitution and article I, § 3, of the Constitution of Nebraska have been violated, by reason whereof the plaintiff suffered substantial monetary damage.
In stating the facts which underlie this second allegation, the plaintiff simply incorporates the facts stated under his first cause of action by reference. No new or additional facts have been pleaded. Plaintiff is simply trying to raise the same issues in an original аction which he attempted to raise on direct appeal from the board of commissioners. We find plaintiff is improperly trying to collaterally attack the decision of the board of commissioners.
In Richardson v. Board of Education, supra, we were faced with a similar situation. That case involved an order by the State Board of Education which required the school district to pay for the high school education of Richardson’s children at a South Dakota high school. No appeаl was taken from that order. Richardson filed an action in the District Court of Keya Paha County to enforce this order. In its answer and defense the school district attempted to attack the validity of the state board’s decision.
Discussing the merits of such a defense, we stated: “It is clear that the School District took no steps to prosecute an appeal of any nature within 30 days of entry of the State Board’s order, as required by Neb. Rev. Stat. §§ 25-1931 (Reissue 1975) and 84-917(2) (Reissue 1976). Rаther, it attempted to collaterally attack an order of the State Board which had long before become final. ‘A collateral attack upon a judgment will not lie unless the judgment is absolutely void. Where the court has jurisdictiоn of the parties and the subject matter, its judgment is not subject to collateral attack because the judgment is only voidable and not void.’
State ex rel. Casselman v. Macken,
Plaintiff here tries to raise in a collateral action thе same issues decided by the board. The same facts and issues of denial of due process are raised. The judgment of the board cannot be said to be void, as this matter was properly brought before it under article XXI of the pеrsonnel procedures of OHA. No proper direct appeal has been taken from the decision of the board. To allow this second cause of action to stand would be to allow the collateral attaсk of a board’s decision, which, under our decision in Richardson, is impermissible. As a collateral attack, this allegation is not a proper cause of action.
We find the sustaining of defendants’ demurrer to plaintiff’s petition for failure to state a cause of action was proper. The District Court correctly dismissed plaintiff’s petition, and its judgment is affirmed.
Affirmed.