Swicord v. Police Stds. Adv. Council , 309 Neb. 43 ( 2021 )


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    06/25/2021 08:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    Blake Swicord, appellant, v. Police Standards
    Advisory Council and Nebraska Commission
    on Law Enforcement and Criminal
    Justice, also known as Nebraska
    Crime Commission, appellees.
    ___ N.W.2d ___
    Filed April 23, 2021.    No. S-20-411.
    1. Administrative Law: Judgments: Appeal and Error. A judgment or
    final order rendered by a district court in a judicial review pursuant to
    the Administrative Procedure Act may be reversed, vacated, or modified
    by an appellate court for errors appearing on the record.
    2. ____: ____: ____. When reviewing an order of a district court under
    the Administrative Procedure Act for errors appearing on the record, the
    inquiry is whether the decision conforms to the law, is supported by com-
    petent evidence, and is neither arbitrary, capricious, nor unreasonable.
    3. Rules of the Supreme Court: Appeal and Error. Where a brief
    of a party fails to comply with the mandate of Neb. Ct. R. App. P.
    § 2-109(D)(1)(e) (rev. 2014), an appellate court may proceed as though
    the party failed to file a brief or, alternatively, may examine the proceed-
    ings for plain error.
    4. Appeal and Error. Plain error is error plainly evident from the record
    and of such a nature that to leave it uncorrected would result in damage
    to the integrity, reputation, or fairness of the judicial process.
    Appeal from the District Court for Hall County: Ryan C.
    Carson, Judge. Affirmed.
    Megan E. Shupe and Steven M. Delaney, of Reagan, Melton
    & Delaney, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and James A.
    Campbell, Solicitor General, for appellees.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    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 pro-
    vided 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 appli-
    cation 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 par-
    ticipating in basic officer training. See 79 Neb. Admin. Code,
    ch. 3 (2016).
    Among the materials that must be included in an applica-
    tion for reciprocity training is a “Personal Character Affidavit.”
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    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 ques-
    tions regarding their personal background. The first page of
    the form document instructs applicants to “answer all ques-
    tions 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 enforce-
    ment certification in Nebraska.” The first page of the docu-
    ment 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 con-
    victed for a violation of any law (except moving traffic viola-
    tions 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 inci-
    dent. Swicord checked the box indicating “No.”
    Swicord also answered “No” to a number of questions
    regarding professional licenses or certifications. These ques-
    tions 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?”
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    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
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    The conclusion of the Personal Character Affidavit form
    directed the applicant to certify that “there are no willful mis-
    representations, 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 “concern-
    ing 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
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    309 Nebraska Reports
    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    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 under-
    stood 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 deci-
    sion 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 ter-
    minated 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 inves-
    tigation. 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 “certi-
    fication” 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
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    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    certified to have a license [as] a chiropractor, . . . that you prac-
    ticed 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 testi-
    fied 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 state-
    ment when he indicated that he had never been arrested.” The
    order expressly stated that the Council found Swicord’s expla-
    nations 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 body that [Swicord] cannot be . . . charac-
    terized as being truthful, honest or trustworthy.”
    District Court.
    Swicord sought review of the Council’s decision in the
    district court for Hall County by filing a petition for review
    pursuant to the Administrative Procedure Act. See 
    Neb. Rev. Stat. § 84-917
     (Reissue 2014). The district court affirmed the
    Council’s decision. It found that Swicord knowingly made
    false statements in his responses on the Personal Character
    Affidavit and that thus denial of his application for reciprocity
    certification was warranted.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    ASSIGNMENTS OF ERROR
    Our rules of appellate practice require that the appellant’s
    initial brief include a section containing a “separate, concise
    statement of each error a party contends was made by the trial
    court, together with the issues pertaining to the assignments of
    error.” Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014). Swicord’s
    initial brief does not contain a separate section assigning error
    to the district court.
    In his reply brief, Swicord acknowledges the absence of
    an assignments of error section, but points out that his initial
    brief does contain section headings, each of which asserts
    that the district court erred in various respects. He requests
    that we consider those headings as assignments of error, but
    we must decline. We have very recently explained that we
    will not treat headings as a substitute for properly placed and
    properly designated assignments of error. See Great Northern
    Ins. Co. v. Transit Auth. of Omaha, 
    308 Neb. 916
    , ___ N.W.2d
    ___ (2021).
    STANDARD OF REVIEW
    [1-4] Ordinarily, a judgment or final order rendered by a dis-
    trict court in a judicial review pursuant to the Administrative
    Procedure Act may be reversed, vacated, or modified by an
    appellate court for errors appearing on the record. Tran v.
    State, 
    303 Neb. 1
    , 
    926 N.W.2d 641
     (2019). When reviewing an
    order of the district court under the Administrative Procedure
    Act for errors appearing on the record, the inquiry is whether
    the decision conforms to the law, is supported by competent
    evidence, and is neither arbitrary, capricious, nor unreason-
    able. Tran v. State, 
    supra.
     However, where a brief of a party
    fails to comply with the mandate of § 2-109(D)(1)(e), we may
    proceed as though the party failed to file a brief or, alterna-
    tively, may examine the proceedings for plain error. See Estate
    of Schluntz v. Lower Republican NRD, 
    300 Neb. 582
    , 
    915 N.W.2d 427
     (2018). Plain error is error plainly evident from
    the record and of such a nature that to leave it uncorrected
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    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    would result in damage to the integrity, reputation, or fairness
    of the judicial process. 
    Id.
    ANALYSIS
    In his reply brief and again at oral argument, Swicord
    argued that even under a plain error standard of review, we
    should reverse the order of the district court upholding the
    denial of Swicord’s application for reciprocity certification.
    Swicord contends that the district court plainly erred because,
    under 
    Neb. Rev. Stat. § 29-3523
     (Cum. Supp. 2018), he was
    legally entitled to deny that he had been arrested; because his
    responses in the Personal Character Affidavit did not justify
    the denial of reciprocity certification; and because the Council
    exceeded its authority by issuing a written order commenting
    on his honesty and trustworthiness. We take up these argu-
    ments below, but, as we will explain, find no plain error.
    § 29-3523.
    There is no dispute that Swicord’s answer to the arrest ques-
    tion in the Personal Character Affidavit was factually inac-
    curate. Swicord asserted he had not ever been “cited, arrested,
    charged, or convicted for a violation of any law” (emphasis
    omitted), when, as he now acknowledges, he had previously
    been arrested for alleged battery. Swicord contends, however,
    that even if his response was factually inaccurate, § 29-3523
    legally entitled him to respond as he did.
    Swicord points to two subsections of § 29-3523 in support
    of his argument. The first, § 29-3523(3)(a), generally provides
    that when “no charges are filed as a result of the determination
    of the prosecuting attorney,” arrest records are to be removed
    from the public record “after one year from the date of arrest.”
    Swicord claims that because prosecutors in Georgia declined to
    charge him following his arrest, he was entitled to deny that he
    was arrested.
    Swicord claims that § 29-3523(8) also requires that his
    assertion he had never been arrested be treated as truthful.
    It provides:
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    SWICORD v. POLICE STDS. ADV. COUNCIL
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    309 Neb. 43
    In any application for employment, bonding, license,
    education, or other right or privilege, any appearance as
    a witness, or any other public inquiry, a person cannot
    be questioned with respect to any offense for which the
    record is sealed. If any inquiry is made in violation of
    this subsection, the person may respond as if the offense
    never occurred.
    The district court held that § 29-3523 did not give Swicord
    a right to deny he had previously been arrested. It reasoned
    that § 29-3523(3) only addresses Nebraska criminal records. It
    also noted that even if § 29-3523(3) applied to Swicord’s arrest
    records in Georgia, § 29-3523(1)(c) provides an exception.
    That subsection allows the dissemination of criminal history
    record information if “the subject of the record” has made a
    “notarized request for the release of such record.” The dis-
    trict court observed that Swicord executed a notarized release
    authorizing NLETC to obtain, among other things, any records
    regarding arrests. We do not believe the district court commit-
    ted plain error by concluding that § 29-3523(3) did not give
    Swicord a right to deny his prior arrest.
    As for § 29-3523(8), the district court concluded that because
    there was no evidence that the record of Swicord’s Georgia
    arrest was sealed, the statute did not apply. Again, we do not
    believe the district court committed plain error, either by con-
    cluding the statute applies only to sealed records or by finding
    that there had been no showing that the records of Swicord’s
    arrest were sealed.
    Denial of Reciprocity Certification.
    Swicord also contends that the district court plainly erred
    by concluding that his responses on the Personal Character
    Affidavit justified denial of reciprocity certification. We do
    not understand Swicord to contend that it is improper for
    NLETC to deny reciprocity certification when an applicant
    has made deliberate misrepresentations in the application proc­
    ess. Indeed, the relevant regulations appear to foreclose any
    such argument. See 79 Neb. Admin. Code, ch. 8, § 005.04A2
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    SWICORD v. POLICE STDS. ADV. COUNCIL
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    309 Neb. 43
    (2005) (“[a]pplicants are under a duty to disclose any and all
    information that may affect the applicant’s qualifications for
    entrance into certification training. Any deliberate omissions,
    falsification, and/or misrepresentations made on the applica-
    tion or through the application process, including the back-
    ground investigation, are grounds for denial of entrance into
    a Training Academy, suspension from training, or termination
    of training”). Rather, we understand Swicord to contend that
    his responses on the Personal Character Affidavit that are at
    issue here were not deliberate falsifications but, at most, hon-
    est mistakes.
    In support of his argument that he did not make any deliber-
    ate omissions or misrepresentations, Swicord emphasizes his
    testimony that he was advised by counsel he could deny his
    prior arrest. He also points to his testimony that he believed
    that the questions regarding past or present investigations of
    a professional license did not cover the investigation of his
    Georgia law enforcement certificate.
    Swicord cannot show plain error, however, merely by point-
    ing to his own testimony. Even under our ordinary standard
    of review for judicial review actions under the Administrative
    Procedure Act, we will not substitute our factual findings for
    those of the district court where competent evidence supports
    the district court’s findings. See Tran v. State, 
    303 Neb. 1
    ,
    
    926 N.W.2d 641
     (2019). We will not impose a less deferential
    standard for factual findings on plain error review. See, e.g.,
    U.S. v. Johnson, 
    874 F.3d 990
    , 1003 n.3 (7th Cir. 2017) (“plain
    error standard is more deferential to the district court than clear
    error analysis”). Accordingly, in order to find plain error, we
    would have to conclude that, at a minimum, the district court’s
    conclusion that Swicord made knowing omissions and misrep-
    resentations was not supported by competent evidence. We do
    not believe that is the case.
    Although Swicord testified that he believed his responses
    were accurate, the district court pointed to other evidence in
    the record in the course of concluding otherwise. It agreed
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    SWICORD v. POLICE STDS. ADV. COUNCIL
    Cite as 
    309 Neb. 43
    with the Council’s determination that Swicord’s explanations
    for not disclosing his arrest were not credible, noting that
    Swicord offered different reasons for the denial in his letter to
    Urbanek than he offered at the administrative hearing. The dis-
    trict court also relied on evidence in the record when it found
    that Swicord made knowing misrepresentations in response
    to the questions regarding investigations of a professional
    license. It observed that there was evidence in the record that,
    in Georgia, a law enforcement certificate was, at least some
    of the time, referred to as a “license.” It also pointed out that
    a question in the Personal Character Affidavit form referred
    to “‘a law enforcement certification or any other profes-
    sional license/certificate’” (emphasis supplied), and concluded
    that this suggested that the terms were used interchangeably.
    Finally, it emphasized that the Personal Character Affidavit
    specifically instructed that if the applicant had any doubts
    about whether disclosure was required, the applicant should
    err on the side of disclosure.
    Because we find that competent evidence supported the
    district court’s determination that Swicord made knowing
    misrepresentations or omissions in the Personal Character
    Affidavit, we find that the district court did not plainly err by
    upholding the denial of Swicord’s application for reciprocity
    certification.
    Council’s Authority.
    Finally, Swicord argues that the Council exceeded its author-
    ity by commenting on Swicord’s honesty and trustworthiness
    in its written decision. Swicord claims that the district court
    plainly erred by allowing the written decision to stand.
    It is not clear to us whether Swicord contends that the
    Council lacked authority to issue any written decision or
    whether he merely contends that it lacked authority to com-
    ment on Swicord’s honesty and trustworthiness. In either case,
    we discern no plain error. The written decision to which
    Swicord objects contained the Council’s findings of fact and
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    conclusions of law. The Administrative Procedure Act requires
    that decisions by an agency in a contested case be accom-
    panied by findings of fact and conclusions of law. See 
    Neb. Rev. Stat. § 84-915
     (Reissue 2014). Further, the applicable
    regulations list as a qualification for reciprocity certification
    that the applicant “possess good character as determined by
    a thorough background investigation.” 79 Neb. Admin. Code,
    ch. 8, § 005.01G (2005). Those same regulations provide that
    a person of good character “[c]an be characterized as being
    honest, truthful and trustworthy.” Id. at § 005.02A5. Swicord’s
    honesty and trustworthiness were thus relevant to the deci-
    sion to approve reciprocity certification. We see no basis to
    conclude that the district court plainly erred by allowing the
    Council’s written decision to stand.
    CONCLUSION
    Because we find that the district court did not commit plain
    error in affirming the decision of the Council, we affirm.
    Affirmed.