AGO 97002.

CourtNebraska
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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