Swicord v. Police Standards Advisory Council

309 Neb. 43

958 N.W.2d 388

Blake SWICORD, appellant,

v.POLICE STANDARDS ADVISORY COUNCIL and Nebraska Commission on Law Enforcement and Criminal Justice, also known as Nebraska Crime Commission, appellees.

No. S-20-411.

Supreme Court of Nebraska.

Filed April 23, 2021

Megan E. Shupe, Bellevue, and Steven M. Delaney, Lincoln, of Reagan, Melton & Delaney, L.L.P., for appellant.

Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

After serving as a law enforcement officer in Georgia, Blake Swicord moved to Nebraska hoping to do the same here. As part of an application to obtain certification to work in law enforcement in Nebraska, Swicord submitted a form in which he answered questions regarding his personal background. The director of the Nebraska Law Enforcement Training Center (NLETC) denied the application, concluding that Swicord provided answers that were untrue and failed to disclose requested information. Swicord unsuccessfully challenged the denial of his application first in administrative proceedings and then in a judicial review proceeding in district court. He now appeals the district court's order to us. We find no error in the decision of the district court and thus affirm.

BACKGROUND

Swicord's Application for Reciprocity Certification.

From 1995 until 2017, Swicord served as a law enforcement officer in the State of Georgia. He began his law enforcement career as a lieutenant in a county sheriff's department and later became a sergeant in the Georgia State Patrol. The Georgia State Patrol terminated his employment in December 2017.

After his employment in Georgia was terminated, the Seward County sheriff's office hired Swicord, and he moved to Nebraska. The Seward County sheriff's office filed an application on Swicord's behalf with NLETC, seeking reciprocity certification. Reciprocity certification allows law enforcement officers who are certified in other jurisdictions and who meet other criteria to obtain Nebraska certification without participating in basic officer training. See 79 Neb. Admin. Code, ch. 3 (2016).

Among the materials that must be included in an application for reciprocity training is a "Personal Character Affidavit."

See 79 Neb. Admin. Code, ch. 8, § 008.01A(3) (2005). The Personal Character Affidavit that Swicord submitted is a form document, which instructs applicants to answer various questions regarding their personal background. The first page of the form document instructs applicants to "answer all questions and sections truthfully" and states that "[f]alsification or omission of information is grounds for denial to admission to an academy and denial of or revocation of your law enforcement certification in Nebraska." The first page of the document also states, "IF YOU HAVE ANY DOUBTS WHETHER SOMETHING OR SOME TYPE OF VIOLATION SHOULD BE INCLUDED, LIST IT ON THE AFFIDAVIT. FAILURE TO LIST A VIOLATION MAY RESULT IN TERMINATION OF TRAINING, DENIAL OF CERTIFICATION, AND POSSIBLE CRIMINAL PENALTIES." (Emphasis in original.)

One of the questions on the form relevant to this appeal directed the applicant to answer if he or she had "ever , either as an adult or juvenile, been cited , arrested , charged , or convicted for a violation of any law (except moving traffic violations to be reported under the next question, and except for minor parking violations." (Emphasis in original.) If answered affirmatively, the Personal Character Affidavit form directed the applicant to provide information regarding the charge, the arresting agency, the date of the incident, whether the applicant was booked into jail, convictions stemming from any arrest, and the disposition of the case; the form also contained a space for the applicant to include a "[n]arrative" regarding the incident. Swicord checked the box indicating "No."

Swicord also answered "No" to a number of questions regarding professional licenses or certifications. These questions asked, "Have you ever had a professional license that you hold be under investigation?"; "Is a professional license that you currently hold under investigation?"; and "Have you had a law enforcement certification or any other professional license/certificate revoked or suspended in this state or any other state?"

The conclusion of the Personal Character Affidavit form directed the applicant to certify that "there are no willful misrepresentations, omissions, or falsifications in the for[e]going statements and answers to questions and that all statements and answers are true and correct to the best of my knowledge and belief." Swicord signed the certification.

In addition to the Personal Character Affidavit, Swicord also signed and submitted a notarized document entitled "Authority to Release Information." In it, Swicord authorized "a review and full disclosure of any and all records or files (or any part thereof) pertaining to me, including but not limited to ... records, files or documents regarding any arrests, convictions or other criminal investigations or charges involving me." He also authorized the release of information to NLETC "concerning all of the above mentioned areas, or any other information which has a bearing on my fitness or ability to become trained and certified as a law enforcement officer."

Denial of Swicord's Application for Reciprocity Certification.

Brenda Urbanek, the director of NLETC, denied Swicord's application for reciprocity certification. She issued a letter in which she listed several reasons for her decision. In the letter, Urbanek stated that she had performed a background check on Swicord and learned that he had been arrested for alleged battery in January 2018 and that the "Georgia Peace Officer Standards and Training Council" (Georgia POST) had voted to revoke his law enforcement certification in December 2018. She noted that Swicord had failed to disclose these facts in the Personal Character Affidavit.

Regulations permit individuals or agencies aggrieved by decisions of the director of NLETC "related to admission to training, certification status, and discipline" to "appeal" by, among other things, presenting specific reasons in writing for the director to review and reconsider the decision. 79 Neb. Admin. Code, ch. 13, § 004.02A (2005). Swicord pursued such an appeal. In a letter to Urbanek, Swicord addressed each of the reasons Urbanek identified for her decision denying Swicord reciprocity certification. As to his negative response to the question in the Personal Character Affidavit regarding prior arrests, Swicord stated, "I must apologize as I understood the question to be about convictions." As to his negative response to the questions regarding investigations regarding a professional license, he stated, "I have never considered my peace officer certification to be a ‘license’ and so that is why I marked those boxes as such."

Urbanek denied Swicord's appeal. In a letter, she stated that she had reviewed the documents submitted by Swicord but did not find that any new or mitigating information was provided.

Police Standards Advisory Council.

Pursuant to regulations, Swicord appealed Urbanek's decision to the Police Standards Advisory Council (the Council). See 79 Neb. Admin. Code, ch. 13, § 004.02E. The Council held an administrative hearing.

At the hearing, the Council received evidence that the Georgia POST investigated Swicord's fitness to serve as a law enforcement officer. The investigation was opened shortly after Swicord's employment with the Georgia State Patrol was terminated in December 2017. After the investigation, the Georgia POST voted to revoke Swicord's Georgia law enforcement certification. Swicord appealed the decision, and the appeal remained pending at the time of the hearing.

Swicord testified that at the time he submitted the Personal Character Affidavit, he knew about the Georgia POST's investigation. He explained that he did not believe the questions in the Personal Character Affidavit regarding past or present investigations into a professional license covered the Georgia POST investigation. He testified that the eligibility to serve as a law enforcement officer in Georgia is referred to as a "certification" and never as a "license." He claimed that he thought the questions "were referring to like my driver's license, had it ever been suspended or revoked" or "[m]aybe you were certified to have a license [as] a chiropractor, ... that you practiced in the medical field or something of that nature."

The Council also received evidence that Swicord was arrested in Georgia in January 2018 for suspected battery after a physical altercation with his girlfriend. Swicord admitted that he had been arrested for suspected battery, but testified that the prosecutors did not pursue the charges. He testified that he denied previously being arrested in the Personal Character Affidavit based on the advice of an attorney who "practices in Georgia and Alabama."

Swicord called law enforcement officers from Georgia and Nebraska to testify on his behalf. Each testified positively regarding Swicord's professionalism, work ethic, and character.

At the end of the hearing, the Council voted to uphold Urbanek's decision denying reciprocity certification on the grounds that Swicord failed to disclose his arrest and that his professional license was under investigation. The Council later issued a unanimous written decision. In the written decision, the Council found that Swicord "knowingly made a false statement when he indicated that he had never been arrested." The order expressly stated that the Council found Swicord's explanations for not disclosing the arrest not credible. The Council also determined that Swicord's failure to disclose the Georgia POST's investigation constituted a knowing falsification. It concluded that Swicord's "actions in the application process demonstrate to this...