HOWARD L. MAXON, APPELLANT, V. CITY OF GRAND ISLAND, NEBRASKA, APPELLEE.
No. S-05-1204.
Supreme Court of Nebraska
May 25, 2007
731 N.W.2d 882
647
William A. Harding and Adam J. Prochaska, of Harding, Shultz & Downs, and Douglas R. Walker, Grand Island City Attorney, for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
NATURE OF CASE
Howard L. Maxon, a former officer of the City of Grand Island, Nebraska, appeals from the order of the district court affirming the termination of his employment by the city. Pursuant to
STATEMENT OF FACTS
Maxon served as the emergency management director of the City of Grand Island and Hall County for approximately 25 years. As the emergency management director, Maxon was considered an appointive officer of the City of Grand Island.1
On February 15, 2005, Gary Greer, the Grand Island city administrator, asked Maxon to come to Greer‘s office, where Greer took Maxon‘s keys, asked him to sign a letter of resignation, and then asked him to leave. Maxon refused to sign the letter and ultimately left the building. Greer issued a letter to Maxon, dated February 15, 2005, informing him that he was being suspended with pay, effective immediately. The letter indicated that a copy of the letter would be sent to the mayor and that Greer was requesting that Maxon be discharged at the earliest possible time. The letter set forth specific instances in which Greer considеred Maxon‘s conduct to have been unacceptable for a director of the City of Grand Island.
The following day, February 16, 2005, Maxon wrote a letter to the mayor requesting a hearing to appeal the notice of discharge and asking that he be permitted to continue working pending the outcome of the hearing. Maxon‘s request to continue working was denied.
On February 25, 2005, in compliance with
The hearing before the city council was held on March 29, 2005. At the time of the hearing, the city chose to prosecute only three of the four charges of misconduct, removing the third category, “Demeaning, Disruptive and Uncoopеrative Conduct in the Work Place.” During the course of the hearing, both the city and Maxon were allowed to submit evidence and examine witnesses.
UNSATISFACTORY PERFORMANCE
In support of its contention that Maxon‘s job performance was unsatisfactory, the city offered into evidence two of Maxon‘s performance evaluations that Greer had conducted. The first evaluation occurred on April 27, 2004, and Greer concluded that Maxon had met or exceeded expectations in some аreas but needed improvement in other areas, including dependability, productivity, initiative, attitude, self-improvement, leadership, and training.
Greer performed a second performance evaluation of Maxon on February 9, 2005. The results of this evaluation indicated that Maxon‘s job performance had not improved. The evaluation provided that Maxon still needed improvement in all of the same areas as in his April 2004 evaluation and also needed improvement in the аreas of quality, versatility, communication skills, and delegation.
Maxon presented evidence that all his performance evaluations prior to the time Greer became the city administrator were satisfactory. On cross-examination, Greer admitted that his performance evaluations of Maxon were vastly different when compared to the evaluations of prior supervisors. Maxon testified that he was “shocked” when Greer informed him that his performance was unsatisfаctory.
INCOMPETENCE
With regard to the city‘s allegation that Maxon was incompetent, the city presented evidence that while Maxon was the
Maxon testified that he did everything he could to facilitate the 911 surcharge implementation process and that any delay was not his fault, but was the result of the county board‘s failure to act in a timely manner. Maxon presented evidence that at a July 11, 2000, county board meeting, he and a committee of the Hall County Board of Supervisors recommended increasing the 911 surcharge. The board, however, voted to table the recommendation. The record shows that the next time the county board discussed the increase concerning the 911 surcharge was on November 13, 2001.
The Hall County clerk testified that at this meeting, it was Maxon who brought to the board‘s attention the notice requirements tо be complied with before implementing the surcharge increase. The county board met on December 18, 2001, and again discussed the 911 surcharge increase. The county clerk testified, however, that the board “took no action at that time with respect to the 911 surcharge.” The resolution to increase the 911 surcharge was eventually adopted by the county board on July 16, 2002.
With respect to this 1-year delay, Maxon testified that “we thought everything was fine and then at the last minute we found out thаt the telephone companies . . . had to be notified.” When asked about a September 2000 letter generically addressed from Qwest Communications, Inc., to “QWEST Enhanced 911 Customer,” which provided information that such notice was required, Maxon testified that he did not recall receiving the letter, and his customary initials acknowledging receipt were not contained on the letter.
INSUBORDINATION
The city‘s remaining charge against Maxon involved allegations of insubordination. The city presented evidence that Greer interviewed every employee in Maxon‘s department and then created an interoffice memorandum, addressed to Maxon, that summarized the content of the interviews and made suggestions for correcting certain problems. Greer concluded the memorandum by stating, “I would encourage you to share this memo (post it on the wall) and discuss its contents with department team members.” Greer testified that he expressly told Maxon to post this memorandum on the wall, but Maxon failed to do so.
Maxon testified that although he did not post the memorandum on the wall, he did share the memorandum with the department team leaders. In response to why he did not post the memorandum on the wall, Maxon explained that he and another official in his department felt that it “would not further the betterment of the department at that time.” Maxon further testified that although the memorandum was not posted on the wall, it was eventually distributed to all of the employees.
The city council voted to affirm the charges of misconduct and the termination of Maxon‘s employment. Maxon filed a petition in error with the district court seeking review of the city council‘s determination. The district court affirmed the city council‘s decision. Maxon appealed.
ASSIGNMENTS OF ERROR
Maxon assigns, restated and renumbered, that the district court erred in (1) finding that
STANDARD OF REVIEW
The constitutionality of an ordinance presents a question of law, in which an appellate court is obligated to reach a conclusion independent of the decision reached by the trial court.2
In reviewing the decision of an administrative tribunal on a petition in error, both the district court and the appellate court review the decision of the tribunal to determine whether it acted within its jurisdiction and whether the decision of the tribunal is supported by sufficient relevant evidence.3
ANALYSIS
UNCONSTITUTIONALITY OF § 2-22
We first consider Maxon‘s assertion that
Section 2-22 provides in relevant part that the mayor may remove an officer of the city “for misconduct” and establishes the procedure by which an officer may be terminated, including written charges and a hearing before the city council. Maxon argues that because the ordinance neither defines misconduct nor explains the type of behavior that would qualify as misconduct, it is unconstitutionally vague and violates the due process provisions of the U.S. Constitution and the Nebraska Constitution. Accordingly, we must determine whether thе term “misconduct” as used in
In the context of an employment case involving an employee‘s request for unemployment benefits, although the term “misconduct” was not defined in the applicable statute, we concluded that the definition of “misconduct” was well established. We explained:
“While the term ‘misconduct’ is not specifically defined in the statute, it has generally been defined to include behavior which evidences (1) wanton and willful disregard of the employer‘s interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer‘s interests or of the employee‘s duties and obligations.”6
While the facts of the present case involve an ordinance dealing with the removal of an employee, as opposed to an employee‘s ability to receive unemployment benefits, we do not
For an ordinance to meet constitutional standards, it is not necessary that it define or describe every conceivable situation under which misconduct may be found. As we have noted in previous cases, when evaluating an ordinance for vagueness, we do not seek mathematical сertainty, but, rather, flexibility and reasonable breadth.7 Moreover, a statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.8
We conclude that the term “misconduct,” as used in the context of an employment relationship such as that found in
ALLEGATIONS OF MISCONDUCT
Maxon next argues that the allegations of misconduct with which he has been charged, specifically, unsatisfactory performance, incompetence, and insubordination, do not constitute misconduct as required by
Pursuant to the generally accepted definition of “misconduct” prеviously discussed, in order for the city to remove Maxon, his alleged behavior must include conduct that would evidence wanton and willful disregard of the employer‘s interests, deliberate
The city‘s allegatiоns of unsatisfactory performance, incompetence, and insubordination are not categories of job performance that are commonly understood to be “misconduct” in an official capacity. While we question whether conduct characterized as unsatisfactory performance or incompetence could ever qualify as misconduct, as that term is commonly understood, on the specific facts presented in this case, they certainly do not. We also recognize that under certain circumstances, insubordination may rise to the level of misconduct. Again, however, the fact that Maxon chose not to post Greer‘s memorandum on the wall does not satisfy that threshold.
In concluding that Maxon‘s conduct rises to the level of “misconduct” as required by
This is consistent with the well-established principle that culpable negligence, as contemplated by
acts which are . . . unreasonable and taken in disregard of a known or obvious risk .... Thoughtless, heedless, or inadvertent acts do not constitute culpable negligence, nor do mere errors in judgment or simple inattention. Mistakes in judgment resulting from inexperience, excitement, confusion, or inattention likewise do not constitute culpable negligence.14
Thus, in order for the city to establish that Maxon‘s conduct constitutes “negligence which manifests culpability,” the city must prove more than ordinary negligence in the performance of duty. Even viewing the evidence in a light most favorable to the city, which we must, the circumstances with regard to the 911 surcharge issue present, at most, a disputed case of ordinary negligence in the performance of duty which, as already discussed, is an insufficient ground for terminating Maxon for misconduct under
We note that Maxon is not an elective officer within the scope of
We conclude that the allegations raised against Maxon do not rise to the level of misconduct as required by
CONCLUSION
For these reasons, we reverse the judgment of the district court with directions to reverse the decision of the city council and provide relief in a manner that is not inconsistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
CONNOLLY, J., dissenting.
I join the part of the majority opinion that holds that the term “misconduct” is not unconstitutionally vague. But I dissent because I believe Maxon‘s carelessness in handling the surcharge amounted to misconduct. The majority opinion concludes that the term “misconduct” in the context of an employment relationship includes “‘negligence which manifests culpability‘.” This definition is well established within our unemployment benefits jurisprudence.
Negligence is commonly understood as the “failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation,”1 and culpability means “[b]lameworthiness.”2 Thus, I interpret “negligence which
In construing a statute, words are to be given their ordinary and common meaning, unless they have acquired a technical or special legal meaning, or a different meaning is apparent from the context of the words.3 I believe the same principle applies when considering language, as developed by case law. It seems to me one would not understand the term “negligence which manifests culpability” (or blameworthiness) to require “‘more than negligence‘” or conduct which is “‘more than ‘blameworthy,‘‘” as the majority opinion holds. And the context of this phrase does not suggest that such a meaning is more appropriate than its common meaning. Because we have not used the term “culpable negligence” in defining misconduct, I believe that its technical and legal definition is inapplicable here.
In reviewing the decision of an administrative tribunal on a petition in error, both the district court and the appellate court review the decision of the tribunal to determine whether it acted within its jurisdiction and whether the decision of the tribunal is supported by sufficient relevant evidence.4 The evidence is sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did from the testimony and exhibits contained in the record before it.5 Stated another way, the evidence is “sufficient as a matter of law” if a judge could not, were the trial to a jury, direct a verdict.6 It is something less
The record shows that Maxon, the emergency management director for the City of Grand Island and Hall County, and a committee of the Hall County Board of Supervisors (County Board) recommended increasing the 911 surcharge from $.50 to $1 per access line per month at a County Board meeting on July 11, 2000. The County Board voted to table the recommendation because it needed more information. The County Board did not address the 911 surcharge again until November 13, 2001.
Maxon testified that he worked on the recommendation during 2001. Springer, the treasurer and finance director of the City of Grand Island, testified that he asked Maxon several times that year if everything was “on track” for the surcharge to be incrеased starting on January 1, 2002. Maxon assured him that it was and also assured him that he would notify Qwest Communications, Inc., the main service supplier, of the change. But Maxon testified he discovered, “at the last minute,” in 2001 that state law required notice to the telephone companies before a surcharge could be changed. The record, however, contains a letter from Qwest Communications, Inc., dated September 2000 that provided information that such notice was required.
Because the telephone companies did not receive proper notice, the 911 surcharge could not be put into effect for 2002 and was delayed until 2003. City officials estimated that Maxon‘s department lost $100,000 to $180,000 in revenue because of the delay. Maxon claims that he was not responsible for the failure to implement the 911 surcharge increase by 2002 because he “did everything [he] could to facilitate that process.” Instead, he places the blame on the County Board fоr tabling the recommendation. But the testimony from city officials shows that Maxon was in charge of implementing the 911 surcharge. When asked why Maxon would be responsible for the delay and revenue loss, Springer testified, “[H]e was the director of the department . . . and he has the responsibility for that department for the revenues. He budgeted the revenue and he should
Under our standard of review, I believe that sufficient evidence supports the city council‘s decision to terminate Maxon‘s employment because of his mishandling of the 911 surcharge implementation. Maxon was in charge of the 911 surcharge, and he repeatedly assured city officials that he would have it done in time to be implemented in 2002. Nearly 1 1/2 years passed between the first time the surcharge was presented to the County Board and the next time it appeared on the County Board‘s agenda. Yet, in all that time, Mаxon neglected the notice requirements for the public hearing. And while he argues he was not at fault for the County Board‘s delay, the evidence suggests otherwise.
Despite Maxon‘s excuses, there was sufficient evidence to support that Maxon was negligent in implementing the 911 surcharge and that his negligence caused the city to lose significant revenue. I believe these facts fit the definition of misconduct as “negligence which manifests culpability.” Thus, I would affirm.
WRIGHT, J., joins in this dissent.