                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                WHEELER V. COUNTY OF SARPY


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 RICK WHEELER, APPELLANT,
                                              V.

                     COUNTY OF SARPY AND THE SARPY COUNTY SHERIFF’S
                          OFFICE MERIT COMMISSION, APPELLEES.


                             Filed March 7, 2017.   No. A-16-038.


       Appeal from the District Court for Sarpy County: J RUSSELL DERR, Judge. Affirmed.
       Steven M. Delaney and A. Bree Robbins, of Reagan, Melton & Delaney, L.L.P., for
appellant.
       Vincent Valentino and Brandy Johnson for appellees.



       PIRTLE, RIEDMANN, and BISHOP, Judges.
       RIEDMANN, Judge.
                                      INTRODUCTION
        Rick Wheeler appeals from the order of the district court for Sarpy County affirming the
decision of the Sarpy County Sheriff’s Office Merit Commission (the Commission) to uphold the
termination of Wheeler’s employment with the Sarpy County Sheriff’s Office. Finding that
sufficient, relevant evidence supports the Commission’s decision, we affirm.
                                       BACKGROUND
        Wheeler was a 25 year employee of the sheriff’s office and employed as a deputy sheriff
at the relevant time. On the evening of September 8, 2014, Wheeler, who was off duty, was at a
sports bar drinking beer and watching football. He sat with an acquaintance at the bar. A woman,



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G.I., later came into the bar and sat next to Wheeler’s acquaintance. At one point in the evening,
Wheeler got up, stood behind G.I.’s chair, and placed his hands on her shoulders. G.I. alleged that
Wheeler then moved his hand down, reached around her side, and grabbed her breast. According
to G.I., Wheeler then moved his hand down, slid it underneath her, and grabbed her buttocks with
his finger near her vaginal area. The exact placement of Wheeler’s hands on G.I. is unclear from
surveillance video; however, the video supports some of G.I.’s claims and does not refute her other
allegations. Wheeler claimed he had no independent recollection of G.I. that evening.
         After G.I. reported the incident, the sheriff’s office conducted an internal investigation and
recommended termination of Wheeler’s employment based on the inappropriate physical contact
he made with G.I. The Sarpy County Sheriff issued a letter of termination on December 23, 2014,
terminating Wheeler’s employment as a result of his making inappropriate physical contact with
G.I. in violation of the sheriff’s office’s standards of conduct, namely, “conduct unbecoming.”
         Wheeler filed a grievance of his termination, which the sheriff’s office denied. He appealed
the denial of his grievance and his termination to the Commission, and a hearing was held before
the Commission. According to the evidence presented at the hearing, the Sheriff filed a formal
complaint on September 15, 2014, which indicated that he was contacted by the county attorney
who advised that a woman, G.I., reported to him that she had been sexually assaulted by a sheriff’s
deputy at a bar. The Sheriff therefore requested that an internal affairs investigation be conducted
into the incident, and the Papillion Police Department investigated.
         Kevin Griger of the sheriff’s office observed an interview the Papillion Police Department
conducted of G.I., and he also personally interviewed her. Griger testified that G.I. said she went
into the bar around 11:30 p.m. to watch football and sat at the bar near Wheeler and his
acquaintance. They generally made small talk with each other about football and food. According
to G.I., at some point, Wheeler came up behind her, put his hands on her shoulders, and then moved
his hand down to her side, reached around, grabbed her breast, then reached underneath her and
grabbed her buttocks with his finger very near her vagina. G.I. indicated that she was upset and
afraid that evening and later was afraid to report the incident to police. Based on G.I.’s statement
and his observation of the video recording of the incident, Griger believed that Wheeler touched
G.I.’s breast and thighs.
         Several witness statements were received into evidence at the Commission hearing,
including the statement from a friend of G.I. who indicated that the day following the incident he
spoke to G.I. and she told him that an off duty sheriff’s deputy had grabbed her breast, put his hand
on her buttocks, and put his finger on her vagina. The friend indicated that G.I. was very upset and
afraid to report the incident because she was afraid of retaliation from other officers. Another
friend provided a statement reporting that the day following the incident, G.I. called her and told
her about it, stating that the deputy had “approached her from behind, he then proceeded to rub her
shoulders, sliding his hand around to caress her right breast, proceeding down to her buttock
around to caress her vagina.”
         Lieutenant Chris Culler reviewed the reports, interviews, and witness statements and issued
a findings report. He testified at the hearing that the video did not give a clear picture as to whether
Wheeler actually grabbed G.I.’s breast, but based on her statements, he believed that Wheeler did
so. Based on his review of the evidence and due to the seriousness of Wheeler’s actions, he
recommended termination of Wheeler’s employment. Captain Greg London reviewed Culler’s


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report and agreed with his recommendation of termination. At the hearing, London testified that
the video provides no clear evidence proving that Wheeler touched G.I’s breast, but he believed
her claims that it happened.
        Wheeler testified on his own behalf at the hearing and stated that he did not have an
independent recollection of portions of the evening in question. He did not recall seeing G.I. at the
bar that evening. He also called an expert witness to testify on his behalf. The expert was a
professor of construction engineering and management, occupational and environmental health
science, and occupational health and safety. He described himself as an “ergonomist and human
factors engineer” who often uses videotapes to record such things as human movements and
postures. He offered his opinions as to the body language and angles of Wheeler and G.I. which
can be seen in the video in order to attempt to establish whether Wheeler touched G.I. in the manner
she claimed he did.
        At the conclusion of the hearing, the Commission members voted unanimously to affirm
the decision of the sheriff’s office. A written order memorializing the decision was subsequently
filed.
        Wheeler filed a petition in error in the district court. The court received a transcript of the
testimony and the 47 exhibits that had been offered at the Commission hearing. Following its
review of written arguments, the court issued its order. In its order, the court found that based on
the evidence presented, the Commission could reasonably find as it did, and thus, termination was
not an arbitrary and capricious decision. It therefore affirmed the termination of Wheeler’s
employment. Wheeler appeals.
                                   ASSIGNMENTS OF ERROR
        Wheeler assigns, consolidated and renumbered, that the district court erred in (1) upholding
his termination because the evidence is insufficient to prove that his conduct was “conduct
unbecoming” and the violation was so grave that his continued employment would affect the
operational effectiveness of the sheriff’s office, (2) upholding the decision of the Commission as
the decision was arbitrary, capricious, not supported by the evidence, and contrary to agency rules,
and (3) upholding his termination as he was terminated without just cause.
                                    STANDARD OF REVIEW
        In reviewing an administrative agency decision on a petition in error, both the district court
and the appellate court review the decision to determine whether the agency acted within its
jurisdiction and whether sufficient, relevant evidence supports the decision of the agency. Pierce
v. Douglas Cty. Civil Serv. Comm., 275 Neb. 722, 748 N.W.2d 660 (2008). The evidence is
sufficient, as a matter of law, if an administrative tribunal could reasonably find the facts as it did
based on the testimony and exhibits contained in the record before it. Id. In addition, the
administrative action must not be arbitrary or capricious. Id. The reviewing court in an error
proceeding is restricted to the record before the administrative agency and does not reweigh
evidence or make independent findings of fact. Id.




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                                            ANALYSIS
        Wheeler first argues that termination was inappropriate because the evidence is insufficient
to support a conclusion that his actions meet the definition of “conduct unbecoming.” We find no
merit to this argument.
        Pursuant to the sheriff’s office’s standard operating procedures (SOPs),
        Employees shall conduct themselves at all times, both on and off duty, in such a manner
        as to reflect most favorably on the Sheriff’s Office. Conduct unbecoming of an employee
        shall include that which discredits or disgraces the Sheriff’s Office or employee, or impairs
        the morale, efficiency, or operation of the Sheriff’s Office.

        Wheeler claims that in order for his behavior to satisfy the definition of conduct
unbecoming, there must be some nexus between his conduct and his fitness to perform his duties
as a law enforcement officer. He argues that without such evidence, his actions do not meet the
definition of conduct unbecoming.
        Although Wheeler repeatedly asserts that evidence was lacking to connect his actions with
any purported impact on the sheriff’s office, the SOPs’ definition of conduct unbecoming also
includes conduct which discredits or disgraces the employee. Wheeler’s inappropriate touching of
the breasts and/or buttocks of G.I., actions which were unwelcome by her, constitutes conduct
which discredits or disgraces Wheeler himself. Thus, considering the Commission’s finding that
Wheeler did, in fact, make inappropriate physical contact with G.I., Wheeler’s behavior satisfies
the definition of conduct unbecoming, and we reject his argument to the contrary.
        Wheeler also contends that his behavior did not meet the standard for termination as
outlined in the SOPs. SOP G-2200 allows for discipline in the form of termination of employment
when the violation was so grave that continued employment would affect the operational
effectiveness of the sheriff’s office. Wheeler argues that this SOP requires direct evidence that the
operational effectiveness of the sheriff’s office would be affected by the employee’s continued
employment. We disagree that direct evidence is required; rather, even if this SOP creates an
additional burden of proof, the nature of Wheeler’s actions were sufficient to conclude that his
continued employment would affect the operational effectiveness of the sheriff’s office.
        In Ostwald v. City of Omaha, 224 Neb. 530, 399 N.W.2d 783 (1987), a 911 operator was
discharged as a result of a telephone conversation held between him and his wife (also a 911
operator) concerning the purchase and use of marijuana for their personal consumption. Although
the call was initiated by his wife using a telephone that was part of the 911 system, the Supreme
Court focused on the criminal act and not the fact that city equipment was being used. The court
reasoned
        We believe that it is clear that when an employee of the city, whose duties in part are to
        help apprehend persons using marijuana, himself engages in such activity, such action does
        constitute an act unbecoming an incumbent of the particular position, does affect the
        efficient conduct of the business of the city, and is not in the best interest of the city
        government.

Id. at 532, 399 N.W.2d at 784.



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         Given Wheeler’s duties as a law enforcement officer, his unwelcomed touching of G.I.
does affect the efficient conduct of the sheriff’s office. But we do not interpret SOP G-2200 as
creating an additional burden of proof. Rather, when read in its entirety, SOP G-2200 sets a
guideline for situations where termination is appropriate.
         SOP G-2200 recognizes that every effort will be made to impose progressive discipline,
but this effort “must be balanced with the need to not diminish the seriousness of the violation.” It
further provides that termination shall be used when the gravity of the violation dictates more
severe discipline. According to G-2200, disciplinary action may be recommended by any
supervisor, but such action shall be taken only by the Sheriff, and the Sheriff shall have final
disciplinary authority. In Culler’s report, he recommended that Wheeler’s employment be
terminated, because any less discipline would diminish the seriousness of the events surrounding
Wheeler’s actions. Although we agree with Wheeler’s contention that no direct evidence was
presented that the violation was so grave that his continued employment would affect the
operational effectiveness of the sheriff’s office, we find that such specific evidence was not
necessary because there was evidence in the record to support a finding that the nature of the
violation required severe discipline in the form of termination.
         Wheeler also asserts that there was no connection between his actions and the operations
of the sheriff’s office because the incident occurred while he was off duty and his actions had no
effect on the sheriff’s office or the manner in which it conducts business. We do not agree.
         The Nebraska Supreme Court has previously upheld termination of law enforcement
officers based upon off-duty incidents, concluding that such inappropriate conduct had an impact
on their governmental employment. In addition to Ostwald v. City of Omaha, supra, which
involved off-duty conduct, the Nebraska Supreme Court has also upheld termination for off-duty
conduct in Lewis v. City of Omaha, 153 Neb. 11, 43 N.W.2d 419 (1950). In Lewis, a firefighter
challenged his discharge from employment which occurred after he initiated a physical altercation
with police officers at his home while he was not on duty. On appeal, he argued that his conduct
while off duty was of no concern to the city and that authority was lacking to suspend or discharge
a firefighter for off duty conduct. The Supreme Court disagreed, finding that under the statutory
authority for removing a firefighter, a city was authorized to inquire into the private character of
its fire department to determine whether they meet the standards required by the city at any and all
times. The court further held that a city is not required to keep persons in its employ whose conduct
is embarrassing or inimical to the interests of the city.
         More recently, in Hauser v. Nebraska Police Standards Advisory Council, 269 Neb. 541,
694 N.W.2d 171 (2005), the Supreme Court upheld the revocation of the law enforcement
certificate of a state trooper. The revocation was the result of repeated incidents of domestic
violence against the trooper’s former wife. The Supreme Court observed that the State Patrol’s
code of ethics prescribed that employees were to conduct themselves at all times, both on and off
duty, in such a manner as to reflect most favorably upon the Nebraska State Patrol, and conduct
unbecoming included that which brings the State Patrol into disrepute or reflects discredit upon
the employee as a member of the Nebraska State Patrol. The Supreme Court concluded that the
officer’s abuse of his former spouse showed clearly and convincingly that he neglected his duties
such that revocation of his law enforcement certificate was justified.



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        Here, the Sarpy County Sheriff’s Office SOPs provide that standards of conduct for its
officers are essential to maintaining a functioning and properly disciplined organization and to
maintaining the public trust. This is true because officers are highly visible representatives of Sarpy
County and are entrusted with the responsibility of ensuring the safety and well-being of the
community. Thus, the SOPs require that employees conduct themselves with the highest level of
moral character both on and off duty and in a manner that does not bring discredit upon themselves,
the sheriff’s office, or the county. Accordingly, the SOPs also govern Wheeler’s off-duty conduct
and require that he act with integrity and high moral character.
        Ostwald and Lewis dictate that law enforcement officers may be disciplined up to and
including termination from their positions for singular, off duty incidents. As discussed in the cases
above and provided for in the Sarpy County Sheriff’s Office SOPs, officers are held to certain
standards of conduct and their actions, whether on or off duty, reflect the authoritative positions in
which they have been entrusted and reflect on the officer’s governmental employer. Thus,
inappropriate conduct by an officer also affects the employer and is not in the best interest of the
government. And as the Supreme Court held, the government is not required to retain the
employment of an officer whose conduct is embarrassing or unfavorable to the interests of the
employer. See Lewis v. City of Omaha, supra.
        Based on the foregoing, and the fact that the Commission found the evidence credible to
support a finding that Wheeler made inappropriate physical contact with G.I., we find that the
standard for termination is satisfied. The inappropriate touching of a citizen by an off-duty officer
not only discredits and disgraces the officer himself, but it does not comport with the standards of
conduct set forth by the sheriff’s office and runs contrary to the officer’s duty of ensuring the safety
and well-being of the community. We recognize Wheeler’s long, positive employment history with
the Sarpy County Sheriff’s Office. But Wheeler’s actions affect the public’s perception of and trust
in the sheriff’s office, sentiments that will impact the sheriff’s office’s ability to do its job.
Additionally, under our standard of review, our duty is not to determine the level of discipline we
would have imposed, but rather, to examine whether there is sufficient, relevant evidence to
support the decision to terminate Wheeler’s employment. Finding the evidence sufficient, we
conclude this assignment of error lacks merit.
        Wheeler next argues that the district court erred in upholding the decision of the
Commission because the decision was arbitrary, capricious, not supported by the evidence, and
contrary to agency rules. Agency action is arbitrary and capricious if it is taken in disregard of the
facts or circumstances of the case, without some basis which would lead a reasonable and honest
person to the same conclusion. See Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014,
792 N.W.2d 871 (2011). As to the occurrence of the underlying incident, the evidence presented
to the Commission as further detailed below included the narrative incident report from the
Papillion Police Department which initially investigated the incident, G.I.’s statements and
statements from other witnesses, various reports from the sheriff’s office, and a copy of the video.
The video does not refute G.I.’s accusations and Wheeler had no independent recollection of G.I.’s
presence at the bar. We therefore conclude that the Commission could reasonably find the facts as
it did. Having determined that the evidence presented to the Commission supports the
Commission’s decision, we cannot find that the decision was arbitrary, capricious, or not supported
by the evidence. Wheeler argues that the evidence shows he did not touch G.I.’s breast and there


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was no evidence he touched her vagina. However, the Commission found the evidence sufficient
to conclude that Wheeler engaged in inappropriate physical contact with G.I., and on appeal, we
are restricted to the record before the Commission and do not reweigh evidence or make
independent findings of fact. Thus, we accept the Commission’s factual finding as true.
        In this context, Wheeler also contends that the sheriff’s office should have implemented
progressive discipline and argues there was no evidence proving that termination was the
appropriate level of discipline. The SOPs provide for increasing levels of disciplinary action but
state that the lowest level of discipline is not required upon the first violation involving an
employee. Rather, discipline recommendations are to be based on the nature of the violation and
seriousness of the offense. Thus, Wheeler’s termination was not inconsistent with the principles
of progressive discipline because there is no requirement that the punishment begin at a lower level
when the nature of the offense alone justifies termination.
        The initial report authored by Lieutenant Chris Culler outlined G.I.’s complaints that
Wheeler grabbed her breast and buttocks while she was seated at the bar, and Culler described the
actions that can be seen on the video. Although the video is unclear in several respects, Culler
concluded, “Based on what I observed in the video, I have no reason to doubt [G.I.’s] statement.”
In other words, although the video because of its clarity and positioning of the cameras does not
show all of Wheeler’s actions in order to substantiate G.I.’s claims, the video does not contradict
her allegations.
        Culler also opined that Wheeler’s actions had a serious and negative reflection on himself
and those he represents as a sworn deputy of the sheriff’s office. Culler recognized Wheeler’s long
outstanding service to the sheriff’s office but concluded that Wheeler’s actions must be dealt with
in keeping the integrity of the office, and with regret, he recommended that Wheeler’s employment
be terminated because any less discipline would diminish the seriousness of Wheeler’s actions.
Captain Greg London reviewed Culler’s report and concluded that there was no clear video
evidence that Wheeler touched the victim’s breast, but it appeared that Wheeler touched the
victim’s buttocks without consent. London opined that there were grounds for termination based
on Wheeler’s conduct that evening, because he clearly disgraced himself and the sheriff’s office.
        At the Commission hearing, the chief deputy of the sheriff’s office at the time testified that
he agreed with the recommendation of termination because Wheeler’s actions were very
detrimental to the public image of the sheriff’s office and there were no other feasible alternatives.
In addition, the record indicates that this level of discipline has been applied consistently to other
officers. Since 1984, eight officers who were involved in improper sexual misconduct were
terminated or resigned in lieu of termination.
        Again, since the evidence was sufficient as a matter of law because the Commission could
reasonably find the facts as it did based upon the testimony and exhibits, we consider instead
whether termination was the appropriate form of discipline based on the Commission’s factual
finding that Wheeler subjected G.I. to inappropriate touching. We conclude that termination is
supported by sufficient relevant evidence.
        Finally, Wheeler asserts that there was no “just cause” for his termination. We disagree.
        The agreement between the County of Sarpy, Sarpy County Sheriff, and the Fraternal Order
of Police, Sarpy Lodge No. 3 provides that disciplinary action by the Sheriff shall be imposed for
just cause only. The agreement does not define “just cause;” however, the SOPs mandate that


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employees who violate any policy, procedure, or order, including the sheriff’s office’s core values,
shall be subject to disciplinary action. The definition of conduct unbecoming recited above is
included in the sheriff’s office’s core values. Thus, because employees are to be disciplined for
violations of the core values, it stands to reason that a violation of the core values would constitute
“just cause” for disciplinary action. And because we found the evidence sufficient to prove that
Wheeler’s actions meet the standard of conduct unbecoming, we conclude that just cause existed
to terminate his employment.
                                          CONCLUSION
       We conclude that there was sufficient relevant evidence to support the district court’s
decision to affirm the termination of Wheeler’s employment. We therefore affirm.
                                                                                           AFFIRMED.




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