Hauser v. Nebraska Police Standards Advisory Council, 269 Neb. 541

Summary

The Nebraska Supreme Court affirmed the district court’s decision upholding the revocation of Steven J. Hauser’s law enforcement certificate. The court held that the State Patrol’s internal codes of conduct and ethics and Hauser’s oath of office could guide the determination of whether he neglected his duties, even though they were not promulgated under the Administrative Procedure Act. The court also concluded that clear and convincing evidence supported revocation based on Hauser’s repeated domestic violence and declined to consider his due process and retroactivity arguments because they had not been presented to the administrative agencies or adequately addressed by the district court.

Holdings

1. An agency and reviewing court may consider an agency's internal codes of conduct and ethics and an officer's oath of office as guides for determining whether statutory grounds such as neglect of duty have been violated, even when those materials were not promulgated under the Administrative Procedure Act, so long as they are not used themselves to prescribe the penalty.
2. The evidence established statutory grounds to revoke Hauser's law enforcement certificate because his repeated assaultive conduct toward his wife constituted neglect of duty under § 81-1403(5), and the conduct could be considered even though most of it occurred while he was off duty.
3. The district court's decision affirming the certificate revocation was properly affirmed because it conformed to the law, was supported by competent evidence, and was not arbitrary, capricious, or unreasonable.
4. The court declined to consider Hauser's due process and retroactivity arguments because they were not presented to or passed upon by the agency and district court.

Questions Presented

1. Whether the State Patrol's internal codes of conduct and ethics and Hauser's oath of office could be considered in determining whether he neglected his duties under Neb. Rev. Stat. § 81-1403(5), even though those materials were not promulgated under the Administrative Procedure Act.
2. Whether competent and clear and convincing evidence established statutory grounds for revocation of Hauser's law enforcement certificate.
3. Whether Hauser's off-duty domestic violence could constitute neglect of duty under § 81-1403(5).
4. Whether Hauser's due process and retroactivity arguments concerning the Attorney General's participation and 2000 Neb. Laws, L.B. 994, were preserved for appellate review.

Disposition

affirmed