AGO 97002.
Court | Nebraska |
Nebraska Attorney General Opinions
1997.
AGO 97002.
DATE: January 7, 1997SUBJECT: Buy-Outs for State EmployeesREQUESTED BY: Lawrence S. Primeau, Director
Department of Administrative ServicesWRITTEN BY:Don Stenberg, Attorney General Dale A. Comer,
Assistant Attorney General
You state that you are contemplating certain proposed legislation
to be introduced in the 1997 legislative session, and therefore, you have
requested our opinion on a number of legal issues involving state employee
buy-outs. We will respond to each of the questions you presented separately
below.
1. Is there a legal right to continued employment?
The general rule in Nebraska with respect to the right of
employment is the "at will" rule. That is, when the employment is not for a
definite term, and there are no contractual or statutory restrictions upon the
right of discharge, an employer may lawfully discharge an employee whenever and
for whatever cause he chooses, without incurring any liability. Smith v. City
of Omaha, 220 Neb. 217, 369 N.W.2d 67 (1985); Mau v. Omaha National Bank, 207
Neb. 308, 299 N.W.2d 147 (1980). As a result, government employment, in the
absence of legislation, can be revoked at the will of the appointing officer,
so long as the public employee is not dismissed or terminated for
constitutionally impermissible reasons such as race, religion, or the assertion
of rights guaranteed by law or under the Constitution. Nevels v. State, 205
Neb. 642, 289 N.W.2d 511 (1980).
While the "at will" rule applies generally to state employment, a
public employee cannot be deprived of a property interest in continued
employment without a due process hearing and appropriate notice. Benton v.
Board of Education of School District No. 17, 219 Neb. 134, 361 N.W.2d 515
(1985); Weeks v. State Board of Education, 204 Neb. 659, 284 N.W.2d 843 (1979).
The existence of such a property interest must be determined by state law.
Packett v. Stenberg, 969 F.2d 721 (8th Cir. 1992). Typically, such a property
interest arises from statutory or contractual limitations on the employer's
ability to terminate an employee, and a court must look to the contract of
employment and to state law to determine if there are any rules or
understandings that secure certain benefits and support claims of entitlement
to those benefits. Packett v. Stenberg, supra; Tautfest v. City of Lincoln, 742
F.2d 477 (8th Cir. 1984).
The statutes creating the Nebraska State Personnel Service are
found generally at Neb. Rev. Stat. §§ 81-1301 through 81-1354.05
(1994, Cum. Supp. 1996). In addition, the State Personnel Division of the
Department of Administrative Services has promulgated the Classified System
Personnel Rules & Regulations ("Personnel Rules"), 273 NAC 1-16, and those
regulations were duly adopted in accordance with the provisions of the Nebraska
Administrative Procedure Act. As a result, the Personnel Rules are as binding
as statutes enacted by the Legislature. Douglas County Welfare Administration
v. Parks, 204 Neb. 570, 284 N.W.2d 10 (1979). The Personnel Rules apply to
certain classified or "code" agencies, while other agencies and departments of
state government are specifically exempted from coverage under those rules. See
Neb. Rev...
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