(A) The Mayor, by and with the consent of the Council, shall appoint such a number of regular police officers as may be necessary. All police officers appointed by the Mayor and Council may be removed, demoted, or suspended at any time by the Mayor as provided in division (B) of this section. A police officer, including the Chief of Police, may appeal to the City Council such removal, demotion, or suspension with or without pay. After hearing, the City Council may uphold, reverse, or modify the action.
(B) The following procedures shall apply to accusations made against any police officer, other than the Chief of Police, by the Mayor, or a citizen or a taxpayer.
(1) Complaints and accusations relating to the performance of any such officer, if not made to the Chief of Police, shall ordinarily be referred to him or her for investigation.
(2) The Police Chief shall make such an initial investigation and interview such witnesses as he or she judges to be appropriate.
(3) If the Chief of Police determines that the accusations made against the police officer are not of a nature which could result in the removal, demotion, or suspension with or without pay of the affected officer, the procedures set forth below in division (B)(4) through (8) shall not apply. In such case, the Chief of Police may interview the affected officer and impose such disciplinary consequences other than removal, demotion, or suspension with or without pay, as the Chief of Police judges to be appropriate.
(4) If the Chief of Police determines that the accusations made against the police officer are of a nature which could result in the removal, demotion, or suspension with or without pay of the affected officer, then the affected officer shall have the following rights in connection with the investigation.
(a) Before being interviewed, he or she shall be given a copy of the written accusation. If the charges have not theretofore been put in writing, the Chief of Police shall put the charges in writing and deliver the same to the affected officer.
(b)
The affected officer shall be apprised of his or her right to have an attorney or representative retained by the officer present with him or her at all proceedings regarding the accusation which is under investigation. The Chief of Police or his or her designee shall not, however, be required to significantly postpone his or her questioning of the affected police officer. If the affected police officer has failed to retain an attorney or other representative within 24 hours of being apprised of his or her right to do so, or if the representative or attorney is unable to be present at the time designated by the Chief of Police, the Chief of Police may proceed to interview the affected police officer without that officer’s attorney or representative being present. The Chief of Police may insist that the attorney or other representative withhold any comments until the affected officer has spoken. The attorney or other representative may not interpose “objections” to any questions asked by the Chief of Police. After the affected police officer has responded to all questions posed by the Chief of Police, his or her attorney or representative may clarify the affected officer’s statements concerning the facts and may suggest witnesses who may be aware of relevant facts.
(c) The affected police officer, the Chief of Police, and their respective attorneys shall have the right to record all hearings or proceedings regarding the written accusation.
(d)
The actions of the Chief of Police in interviewing the affected police officer shall constitute “a hearing or proceeding” for purposes of this section. Accordingly, the police officer shall, subject to the limitations set forth in division (B)(4)(b) above have the right to have an attorney present during questioning and shall have the right to record the interview.
(e)
The Chief of Police may interview other witnesses and examine evidence outside the presence of the affected officer and his or her attorney. The interviewing of such witnesses and the examination of such evidence shall not constitute a “hearing or proceeding” for purposes of this section.
(f) The affected officer shall have the right to make a statement regarding the accusations made against him or her.
(g) After interviewing the affected officer, the Chief of Police shall conduct such additional investigation as he or she judges to be necessary. The Chief of Police may interview witnesses suggested by the affected officer, but shall not be required to do so.
(h) The affected officer may present evidence in connection with the accusations made against him or her. However, the Chief of Police may require in his or her discretion that any such evidence be presented in a written form. Further, the Chief of Police shall not be required to significantly postpone taking disciplinary action in order to permit the affected officer to present evidence. If the affected officer or his or her attorney has failed to provide evidence within 24 hours after being told of the need to do so, the Chief of Police may proceed to make a recommendation to the Mayor regarding disciplinary action.
(5) If the Chief of Police determines after conducting the investigation referred to in division (B)(4) above that the misconduct of the affected officer, if any, is not of a nature which should be disciplined by removal, demotion, or suspension with or without pay, the Chief of Police may either elect to impose no discipline, or may elect to impose a disciplinary consequence other than removal, demotion, or suspension with or without pay of the affected officer.
(6) If the Chief of Police determines after conducting the investigation referred to in division (B)(4) above that the affected officer has engaged in misconduct of a nature which warrants removal, demotion, or suspension with or without pay, the Chief of Police shall make a recommendation to the Mayor for the imposition of such discipline.
(7) The Mayor may accept the recommendation of the Police Chief or may increase or decrease the disciplinary consequences recommended by the Chief of Police. The Mayor shall give written notice of the disciplinary action to be taken to the affected officer.
(8) If the Mayor elects to remove, demote, or to suspend the affected officer with or without pay, the discipline imposed by the Mayor shall not take effect until the affected officer has been given the opportunity for a hearing as specified herein. If the Mayor reduces the disciplinary consequences recommended by the Chief of Police to something less than removal, demotion, or suspension with or without pay, then the disciplinary consequences shall take effect immediately.
(C) If an officer has been notified by the Mayor that he or she will be removed, demoted, or suspended with or without pay, the affected officer shall have the right to appeal the decision of the Mayor to the City Council. The following procedures shall apply to such an appeal.
(1) The affected officer may, within seven days following receipt of a written notice from the Mayor of the discipline to be imposed against him or her, deliver a written request for a hearing to the Chairperson of the City Council. If the affected officer fails to request a hearing within the time set forth herein, he or she shall be deemed to have waived his or her right to a hearing and the disciplinary action taken by the Mayor shall take effect immediately following expiration of the seven-day period.
(2) Upon receiving a request for a hearing, the Chairperson of the City Council shall notify the affected officer and the Mayor of the time, date, and place of the hearing. Thereafter, the time and date of the hearing may be modified by the Council Chairperson, or may be modified upon the written agreement of the Mayor and the affected officer or their respective attorneys.
(3) The affected officer shall the following rights in connection with the hearing:
(a) To be provided with written notice at least five days prior to the hearing of the grounds for the disciplinary action taken by the Mayor;
(b) To be provided with the names of any witnesses who will be called to testify and given an opportunity to examine any documents that will be presented at the hearing at least five days prior to the hearing;
(c) To be represented by counsel;
(d) To cross-examine all witnesses and to examine all documents and to present evidence material to the issues.
(4) The Mayor shall have the following rights in connection with the hearing:
(a) To be provided by the affected officer with the names of any witnesses who will be called to testify and given an opportunity to examine any documents that will be presented by the officer at the hearing at least five days prior to the hearing;
(b) To be represented by counsel at the hearing;
(c) To cross-examine all witnesses and to examine all documents and to present evidence material to the issues.
(5) Neither the Mayor nor the affected officer shall have the right to call witnesses, or to offer evidence at the hearing unless such evidence and witnesses have been disclosed to the opposing party at least five days prior to the hearing, except that the Council may permit such evidence to be received in evidence upon a finding of good cause and that receipt of the evidence or testimony of such witnesses will not significantly prejudice the rights of the party against whom such evidence is offered.
(6) Not later than 30 days following the adjournment of the meeting at which the hearing was held, the City Council shall vote to uphold, reverse, or modify the action. The failure of the City Council to act within 30 days or the failure of a majority of the elected Council Members to vote to reverse or modify the action shall be construed as a vote to reverse the action taken by the Mayor.
(7) The decision of the City Council shall be based upon its determination that, under the facts and evidence presented at the hearing, the action was necessary for the proper management and the effective operation of the Police Department in the performance of its duties under the statutes of the State of Nebraska.
(D) Nothing in this section shall be construed to prevent the preemptory suspension with pay by the Mayor, pending the hearing provided for in division (C), in cases of gross misconduct, neglect of duty, or disobedience of orders.
(E) The City Council may retain an attorney to serve as hearing officer and advisor to the Council in connection with any hearing conducted under the provisions of this section. Any such hearing officer shall have the authority on behalf of the City Council to conduct a prehearing conference according to such reasonable procedures as may be established by the hearing officer; to rule on pre-hearing motions; to make reasonable orders relating to discovery; when authorized by law to do so, to issue subpoenas to compel the attendance of witnesses at the hearing or at pre-hearing depositions; to rule on motions and evidentiary objections at the hearing; to advise the Council on issues of law; and to undertake such other related responsibilities as directed by the Chairperson of the City Council. Either the City Attorney, or another attorney appointed by the Council Chairperson may serve as the bearing officer and advisor to the City Council.
(F) The Chief of Police may delegate the duties which he or she has in connection with the investigation of any complaint against a Police Officer provided that the person or agency to whom such duties are delegated shall insure that the affected officer is provided with all the rights set forth in division (B)(1) through (8).
(G) If a complaint is made to the Mayor regarding any officer other than the Chief of Police, the Mayor may choose to delegate the investigation thereof to a person or agency other than the Chief of Police. In such cases, the Chief of Police shall be involved in the investigation only as directed by the Mayor. Also, in such cases, the person or agency conducting the investigation shall ensure that the affected officer is provided with all of the rights set forth in division (B)(1) through (8).
(H) If a complaint is made regarding the Chief of Police, the complaint shall be investigated by the Mayor, or by a person or agency delegated by the Mayor to conduct the investigation. In such cases, the Chief of Police shall have all the rights of a police officer as set forth in division (B)(1) through (8). If the Mayor takes action to remove, demote, or suspend the Chief of Police, he or she shall have the right to appeal such action in the manner set forth in division (C)(1) through (7).
(I) This section does not apply to a police officer during his or her probationary period.
Statutory reference:
Related provisions, see Neb. RS 17-107, 17-541, 81-1438