Lang v. Howard Cnty.

287 Neb. 66

840 N.W.2d 876

Catherine D. Lang, Commissioner of Labor, appellant,

v.Howard County, Nebraska, and Robert J. Sivick, appellees.

No. S–13–010

Supreme Court of Nebraska.

Filed December 20, 2013

Appeal from the District Court for Howard County: Mark D. Kozisek, Judge. Reversed.

John H. Albin, Thomas A. Ukinski, and Caleb Dutson, Senior Certified Law Student, for appellant.

Robert J. Sivick, pro se.

Heavican, C.J.,Wright, Connolly,Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

1. Counties: Public Officers and Employees: Time. Generally, a county attorney is elected in each county at the statewide general election held every 4 years and serves a term of 4 years or until his or her successor is elected and qualified.

2. Counties: Public Officers and Employees. If no county attorney is elected at the statewide general election or if a vacancy occurs for any other reason, a county board may appoint a qualified attorney to the office of county attorney.

3. Counties: Public Officers and Employees: Contracts. If a county board appoints an attorney to the office of county attorney, it must negotiate a contract with the attorney which specifies the terms and conditions of the appointment.

4. Employment Security: Judgments: Appeal and Error. In an appeal from the Nebraska Appeal Tribunal to the district court regarding unemployment benefits, the district court conducts the review de novo on the record, but on review by the Nebraska Court of Appeals or the Nebraska Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

5. Judgments: Statutes: Appeal and Error. Concerning questions of law and statutory interpretation, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

6. Political Subdivisions: Employment Security: Words and Phrases. Services performed for a political subdivision in a position which, under or pursuant to the state law, is designated “a major nontenured policymaking or advisory position” are excluded from the definition of “employment” under the Employment Security Law.

7. Statutes. Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

8. Public Officers and Employees. Under Nebraska statutes, an important function of a county attorney is to provide advice.

9. Public Officers and Employees: Employment Security: Words and Phrases. “Magic words” are not necessary for a position to be designated “a major nontenured policymaking or advisory position” under the Employment Security Law.

10. Public Officers and Employees. In determining whether a position is a major nontenured policymaking or advisory position, it is enough that a statute, regulation, executive order, or the like communicate the concept that the position is policymaking or advisory.

11. Statutes. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning.

12. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Cassel, J.

INTRODUCTION

An appointed county attorney who lost his position when another attorney was elected to the office sought unemployment insurance benefits, but the Nebraska Department of Labor (Department) determined that he was ineligible because his wages were not for covered “employment.” ¹ The Nebraska Appeal Tribunal reversed the Department's determinations, and the district court affirmed. Because we conclude that the position of county attorney is one that has been designated “a major nontenured policymaking or advisory position” ² under or pursuant to Nebraska law, we reverse the judgment of the district court.

BACKGROUND

Generally, a county attorney is elected in each county at the statewide general election held every 4 years and serves a term of 4 years or until his or her successor is elected and qualified.³ However, if no county attorney is elected at the statewide general election or if a vacancy occurs for any other reason, a county board may appoint a qualified attorney to the office of county attorney.⁴ If the county board appoints an attorney to the office of county attorney, it must negotiate a contract with the attorney which specifies the terms and conditions of the appointment. ⁵

Due to a vacancy, Howard County, Nebraska, hired Robert J. Sivick as its interim county attorney under a written contract that ran from December 1, 2007, through November 30, 2008. Sivick continued as the county attorney under successive contracts running from December 1, 2008, through January 1, 2010, and from January 1 through December 31, 2010.

Under the employment contracts, Sivick agreed to perform all of the duties of a county attorney as dictated by the statutes.⁶ The contracts specified that such duties included providing advice and legal services to the Howard County Board of Commissioners (Board) and all departments of Howard County government. Sivick estimated that he spent 20 to 30 percent of his time providing advice and legal services to the Board.

Sivick was unsuccessful in his bid to be elected the county attorney for the term of office running from January 2011 to January 2015. His last date of work as the Howard County Attorney was January 6, 2011. He subsequently filed a claim for unemployment insurance benefits with the State of Nebraska.

Nebraska law sets forth numerous exceptions to the term “employment.” ⁷ The term does not include service performed while employed by a political subdivision

if such services are performed by an individual in the exercise of his or her duties: (i) As an elected official; (ii) as a member of the legislative body or a member of the judiciary of a state or political subdivision thereof; (iii) as a member of the Army National Guard or Air National Guard; (iv) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; (v) in a position which, under or pursuant to the state law, is designated a major nontenured policymaking or advisory position, or a policymaking or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week; or (vi) as an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than one thousand dollars. ⁸

The Department determined that Sivick's wages from Howard County were not covered wages for the purpose of unemployment insurance and, thus, could not be used to establish an unemployment insurance claim. The Department also determined that Sivick was not monetarily eligible for unemployment benefits. Sivick appealed these determinations, and the appeal tribunal held a hearing on each matter.

The appeal tribunal reversed the determinations of the Department. In one matter, the appeal tribunal held that Sivick's earnings were covered wages for the purposes of unemployment insurance benefits because Sivick was not an elected official, the majority of his duties were not spent in policymaking or advisory capacities, and there was no statutory designation of his position being a major advisory position. The appeal tribunal determined that Sivick earned sufficient wages to meet the base period qualification requirements. In the other matter, the appeal tribunal stated that because it found Sivick's wages to be covered wages, his wages should be considered in determining whether he was monetarily eligible to receive benefits. The appeal tribunal stated that Sivick's wages would be approximately $13,000 in each quarter of the base period and that because Sivick's wages were covered wages, the Department's monetary determination was erroneous. The Commissioner of Labor (Commissioner) sought review of the two interrelated decisions of the appeal tribunal.

The district court affirmed the decisions of the appeal tribunal in both matters. The court reasoned that § 48–604(6)(f)(i) exempted an elected official, but that it did not exempt a person appointed to fill an elective position. The court stated that Sivick's position was clearly untenured and that no one argued to the contrary. In considering whether Sivick held a position which was designated a “major advisory position,” the court stated that “the duties Sivick actually performed are of little import” and that it would “look only to whether Sivick's position was a major nontenured policymaking or advisory position pursuant to, or under, the laws of Nebraska.” The court found no law or other designation that Sivick's position was designated a “major nontenured policymaking or advisory position.” Thus, the court stated that upon its de novo review, it found by the greater weight of the evidence that Sivick was not an elected official and did not hold a position which, under or pursuant to the state law, was designated a “major nontenured policymaking or advisory position.” The court stated that its determination of the appeal regarding employment effectively disposed of the appeal concerning monetary eligibility. Accordingly, the court affirmed the decisions of the appeal tribunal in both matters.

The Commissioner timely appealed, and we moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.⁹

ASSIGNMENTS OF ERROR

The Commissioner assigns, consolidated, restated, and reordered, that the district court erred by (1) failing to find that the position of county attorney is a major nontenured advisory position; (2) failing to find Sivick to be an...