(A) Tenure of employment. The tenure of a person holding a position of employment subject to this article shall be only during good behavior.
(B) Causes for disciplinary action. Any such person may be removed or discharged, suspended with or without pay, demoted, reduced in rank, or deprived of vacation, benefits, compensation, or other privileges, except pension benefits, for any of the following reasons:
(1) Incompetency, inefficiency, or inattention to or dereliction of duty;
(2) Dishonesty, prejudicial conduct, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee, any act of omission or commission tending to injure the public service, any willful failure on the part of the employee to properly conduct himself or herself, or any willful violation of the Civil Service Act or the rules and regulations adopted pursuant to such act;
(3) Mental or physical unfitness for the position which the employee holds;
(4) Drunkenness or the use of intoxicating liquors, narcotics, or any other habit-forming drug, liquid or preparation to such an extent that the use interferes with the efficiency or mental or physical fitness of the employee or precludes the employee from properly performing the functions and duties of his or her position;
(5) Conviction of a felony or misdemeanor tending to injure the employee’s ability to effectively perform the duties of his or her position; and
(6) Any other act or failure to act which, in judgment of the civil service commission, is sufficient to justify the offender to be an unsuitable and unfit person to be employed in the public service.
(C) Disciplinary action procedure.
(1) No employee in the civil service who shall have been permanently appointed or inducted into civil service shall be removed, suspended, demoted or discharged except for cause and, then, only upon the written accusation of the chief of police, chief of the fire department, a city administrator or the city council, or any citizen or taxpayer.
(2) Allegations and disciplinary process.
(a) Upon receipt of a written accusation of employee misconduct, or where the chief of police or chief of the fire department has information that an employee has been or is involved in conduct which, if true, may warrant discipline under the Nebraska Civil Service Act, the chief of police or chief of the fire department shall cause an investigation to be immediately conducted to determine the validity of the accusation or information. If, as part of the investigation, the employee whose conduct is being investigated is questioned, any applicable contract provisions concerning such questioning shall be observed except as prohibited by law.
(b) Following the conclusions of his/her investigation, the chief of police or chief of the fire department shall make a written recommendation to the city administrator concerning appropriate disciplinary action, if any, to be taken against the employee. The recommendation shall include a summary of:
1. The written accusation; provided that if the investigation is initiated by the chief of police or chief of fire department upon information concerning the employee’s alleged misconduct, the recommendation shall include the chiefs accusation of misconduct;
2. The extent of the investigation;
3. The conclusions of the investigation;
4. The basis for the recommendation, including the facts upon which the discipline is proposed; and
5. Any other information the chief may consider relevant to the recommendation.
(c) Unless the recommended disciplinary action shall be for the removal, suspension, demotion or discharge of the employee, the recommendation of the chief or police or chief of the fire department shall be final. In those instances where the recommendation of the chief of police or chief of the fire department is final hereunder, the employee shall, commensurate with notification to the city administrator, be personally served with a copy of the recommendation and final action.
(d) Nothing in this section shall preclude the chief of police or chief of the fire department from suspending any employee with pay at any time during the investigation or following its conclusion, pending a final determination by the city administrator.
(3) (a) Upon receipt of any recommendation from the chief of police or chief of the fire department that disciplinary action be taken against an employee for his/her removal, suspension without pay, demotion or discharge, the city administrator shall, within three working days, notify the employee in writing of the following:
1. The recommendation of the chief of police or chief of the fire department;
2. The basis of the recommendation, including a summary of the facts upon which the discipline is proposed;
3. The date of a hearing to be conducted by the city administrator which shall not be less than three days nor more than five days from the date of service of notice on the employee;
4. That the purpose of such hearing shall be to allow the city administrator to make a determination as to whether reasonable grounds exist to support the proposed disciplinary action;
5. That the employee shall be given an opportunity at said hearing to respond orally or in writing and to present his/her version of the facts relevant to the incident giving rise to the proposed disciplinary action. That the employee shall be entitled to representation by legal counsel or any one person of his choice;
6. That his/her failure to appear or respond in writing by the time set for the hearing shall be considered a waiver of that opportunity and may result in the implementation of the proposed discipline. Notification shall be in writing and be made by certified mail, return receipt requested, to the residence of the employee as last shown on the personnel records of the city, or by personally delivering same to the employee.
(c) Nothing in this section shall be construed to preclude the city administrator upon the recommendation of the chief of police or chief of the fire department from suspending any employee with pay pending the hearing or the city administrator’s determination thereafter.
(4) Within five calendar days following the conclusion of the hearing conducted by the city administrator, or the scheduled date of the hearing in the event the employee fails to appear or present information in accordance with the time frame provided, the city administrator shall make a determination as to the disciplinary action, if any, to be taken against the employee. Said determination shall consider all information presented to him/her in connection with the hearing. No disciplinary action shall be taken except for cause as defined by the law of the Nebraska Civil Services Act.
(a) The determination of the city administrator shall be in writing and, if so determined, provide for the effective date of the implementation of the disciplinary action. A copy of his/her determination shall be provided to the employee and the chief of police or chief of the fire department. Notification to the employee shall be made by certified mail, return receipt requested, to the residence of the employee as last shown on the personnel records of the city, or by personally delivering the same to the employee.
(b) The determination by the city administrator shall be final; provided, however, that any employee so removed, suspended, demoted or discharged may, within ten days following receipt of notification of such disciplinary action, file with the secretary of the civil service commission a written demand for an investigation and public hearing by the civil service commission (the “commission”). The demand shall substantially be in the form required by paragraph (D)(1) of this section, but shall not delay or otherwise affect the effective date of the determination by the city administrator unless mutually agreed between the employee and the city administrator.
(c) The failure of the employee to timely file a written demand required by paragraph (C)(4)(b) of this section shall be construed as a waiver of all further proceedings or rights under this section or the Nebraska Civil Service Act. The failure of the city administrator or chief of police or chief of the fire department to meet the time constraints imposed under this paragraph (C) of this section shall not be construed to rescind or prohibit any disciplinary recommendation or action.
(d) In the event the chief of police or chief of the fire department is the subject of any disciplinary investigation based upon written accusation, the city shall not impose any disciplinary action upon him/her resulting in removal, demotion, suspension without pay or discharge without the opportunity for a predetermination hearing following notice. Provided that the chief of police or chief of the fire department shall be entitled to invoke the rights accorded to any other employee under paragraph (D) of this section; provided, further, however, that he/she has made a demand as required by subparagraph (2) of this paragraph (C) of this section.
(D) Investigation; public hearing by civil service commission.
(1) Upon receipt of a timely written demand for investigation and public hearing, the secretary of the civil service commission shall notify the city administrator by providing him/her with a copy of the demand within three days following its receipt. The demand shall identify the purpose of the investigation, which shall be limited to whether the disciplinary action:
(a) Was arbitrary or capricious; or
(b) Taken for political or religious reasons and, if so, the basis of the employee’s belief concerning the same.
(2) Following such notification from the secretary of the civil service commission, the city administrator shall, within seven days, furnish the secretary with copies of:
(a) The recommendation of the chief of police or chief of the fire department;
(b) Any written materials or information supplied to the city administrator by the employee in conjunction with the predetermination hearing;
(c) The city administrator’s own determination;
(d) Any other material or information the city administrator may consider as appropriate to those matters raised by the employee’s demand for investigation and hearing;
(e) A copy of all materials furnished to the secretary shall also be forwarded by the city administrator to the employee.
(3) Following receipt of the materials or information from the city administrator, the secretary of the civil service commission shall schedule a meeting of the commission at a time not less than ten days nor more than 20 days following receipt of the employee’s demand for investigation and hearing. At the meeting, the commission shall first make an investigation by reviewing all materials or information submitted by the city administrator in order to determine whether there was any basis for determining that cause existed for imposing disciplinary action against the employee; provided that nothing herein shall be construed to preclude the commission from supplementing that information to include whatever other information or material the commission might deem appropriate to its investigation.
(4) Unless the commission concludes upon such investigation there existed no basis for a determination of cause for disciplinary action against the employee, the commission shall immediately thereafter convene a public hearing to determine whether by a preponderance of the evidence the disciplinary action taken against the employee should be affirmed. In the event the commission concludes in its investigation that there existed no basis for a determination of cause for disciplinary action, the commission shall order the employee to be reinstated or reemployed retroactive to the effective date of the disciplinary action.
(5) The public hearing shall be conducted in accordance with the Nebraska Civil Service Act and shall be duly recorded or reported. It shall continue from day to day until closed; provided, further:
(a) The chair shall be the presiding officer at the hearing; provided, however, that he/she may seek the assistance of counsel in making ruling on evidentiary matters.
(b) Counsel for the commission shall be entitled to participate on behalf of the commission during the hearing to facilitate its understanding or determination of the issues.
(c) The employee shall be permitted to appear in person and by counsel to present his/her case.
(d) The city shall be permitted to appear through the office of the city administrator or counsel, or both.
(e) Both parties may present evidence by oral testimony or documents and shall have the right of cross-examination.
(6) In conducting its hearing, the commission, through each of its members, shall have the power to administer oaths, subpoena witnesses and compel the production of books and papers pertinent to its investigation or hearing. Any person who shall fail to appear in response to a subpoena, or to answer any question or produce any books or papers pertinent to any such investigation or hearing, or who shall knowingly give false testimony therein shall be guilty of a misdemeanor and be subject to such penalties as may be fixed by ordinance.
(7) Following the conclusion of the public hearing, the commission shall, within ten days thereof and based upon a preponderance of the evidence, make a determination affirming the disciplinary action; modifying the same to a suspension with or without pay or demotion in position or pay; or ordering the employee’s reinstatement or reemployment in accordance with such conditions or terms as it may determine appropriate. The findings and judgment of the commission shall be certified in writing to the city, by serving the city administrator and the employee, by serving the employee or his/her counsel of record, by the secretary by certified mail, return receipt requested, or by personal serve and so enforced.
(8) Any appeal from the order or judgment of the commission shall be conducted pursuant to the Nebraska Civil Service Act.
(9) The time constraints imposed by paragraph (D) of this section shall be directory and not jurisdictional. The failure of the commission to meet those constraints shall not be construed to prohibit it from conducting any investigation or public hearing nor imposing any disciplinary action, including the affirmation of the action taken by the city administrator.
(Ord. 2394, § 1(art. III, § 5), passed 12-16-1985; Ord. 2442, §§ 1, 2, passed 11-24-1986; Ord. 2495, § 1, passed 2-8-1988; Ord. 3601, § 7, passed 4-25-2011)
Statutory reference:
Similar provisions, see Neb. RS 1943, § 19-1832