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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

Melissa Kier and the Fraternal Order 

of Police, Lodge #10, appellants, v. 

County of Hall, Nebraska, 

et al., appellees.

___ N.W.2d ___

Filed June 22, 2021. No. A-20-550.

1. Administrative Law: Appeal and Error. 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.

2. Administrative Law: Evidence. The evidence is sufficient, as a matter 

of law, if an administrative tribunal could reasonably find the facts as 

it did on the basis of the testimony and exhibits contained in the record 

before it.

3. Administrative Law: Appeal and Error. 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.

4. Administrative Law: Judgments: Words and Phrases. An administrative agency decision must not be arbitrary and capricious. 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.

5. Contracts. In interpreting a contract, a court must first determine, as a 

matter of law, whether the contract is ambiguous.

6. Contracts: Words and Phrases. A contract is ambiguous when a word, 

phrase, or provision in the contract has, or is susceptible of, at least two 

reasonable but conflicting interpretations or meanings.

7. Contracts. When the terms of a contract are clear, a court may not 

resort to rules of construction, and the terms are to be accorded their 

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www.nebraska.gov/apps-courts-epub/

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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

plain and ordinary meaning as an ordinary or reasonable person would 

understand them.

8. ____. The fact that the parties have suggested opposing meanings of a 

disputed instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.

9. Contracts: Evidence. A contract found to be ambiguous presents a 

question of fact and permits the consideration of extrinsic evidence to 

determine the meaning of the contract.

10. Contracts. A contract must receive a reasonable construction and must 

be construed as a whole.

11. ____. If possible, effect must be given to every part of a contract.

12. ____. A court is not free to rewrite a contract or to speculate as to terms 

of the contract which the parties have not seen fit to include.

13. Contracts: Intent. A court should avoid interpreting contract provisions 

in a manner that leads to unreasonable or absurd results that are obviously inconsistent with the parties’ intent.

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Hall County: John H. 

Marsh, Judge. Affirmed.

Thomas P. McCarty and Gary L. Young, of Keating, O’Gara, 

Nedved & Peter, P.C., L.L.O., for appellants.

Ashley H. Connell and Pamela J. Bourne, of Woods Aitken, 

L.L.P., for appellees.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

This case involves an employment relationship between 

the Hall County Sheriff’s Department (the Department) and 

Melissa Kier, a deputy sheriff. Kier and the Fraternal Order 

of Police, Lodge #10 (FOP #10), filed a grievance concerning the application of shift-bidding provisions in each applicable collective bargaining agreement (CBA) that governed 

the employment relationship. This dispute centers on whether 
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30 Nebraska Appellate Reports

KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

the Hall County Sheriff’s Department Merit Commission 

(Merit Commission) properly interpreted and applied provisions of each CBA, as well as the Merit Commission’s own 

regulations. Kier and FOP #10 appeal from the order of the 

district court for Hall County, which affirmed the decision of 

the Merit Commission. We affirm.

BACKGROUND

CBA’s

Kier is employed as a deputy sheriff with the Department. 

FOP #10 is a “[l]abor organization” as defined in Neb. Rev. 

Stat. § 48-801(7) (Cum. Supp. 2020) and is the collective bargaining representative for the Department. Rick Conrad, the 

elected sheriff of Hall County, is the personnel director for 

the Department.

The Department and FOP #10 entered into a CBA, effective from July 1, 2016, to June 20, 2019, which controlled the 

wages and employment conditions of deputy sheriffs employed 

by the Department. Subsequently, the Department and FOP 

#10 entered an amendment to the CBA, which added a “shift 

bidding” provision to the agreement. When the 2016-19 CBA 

expired, the Department and FOP #10 entered into a second 

agreement, with terms that were identical to the prior agreement. The second CBA was to be effective from July 1, 2019, 

to June 30, 2021.

The shift-bidding provision of the CBA’s provided that, 

except for certain excludable positions within the Department, 

“all bargaining unit position work shifts and days off, will 

be open for bid on an annual basis” and “[e]mployees will 

be allowed to select work shifts and days off . . . based on 

seniority.” Under this provision, the Department was required 

to annually create and approve a schedule containing available 

work shifts, and FOP #10 would then conduct a bid for the 

shifts according to seniority. Following the completion of the 

bidding process, FOP #10 was to return the results of the bid to 

the Department for implementation.
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

In addition to the shift-bidding provision, the CBA’s provided that the elected sheriff would retain certain management 

rights over the Department. Article III of each CBA stated 

that “[a]ll management rights, functions, responsibilities, and 

authority not specifically limited by the express terms of this 

Agreement are retained by the Sheriff and remain exclusively 

within the rights of the Sheriff.” The CBA’s enumerated specific rights retained by management, including “[t]he right to 

direct and arrange work forces[,] including the right to hire, 

examine, classify, promote, train, transfer, assign, and retain 

employees[.]” The CBA’s provided that if the sheriff transfers an employee from one shift to another, at least 30 days’ 

advance notice must be provided.

Kier began working for the Department in December 2014 

as a deputy sheriff. The terms and provisions of the CBA’s 

applied to Kier’s employment. At all relevant times, there were 

three potential shifts in the Department: day shift (6 a.m. to 

4 p.m.), swing shift (2 p.m. to 12 a.m.), and night shift (8 p.m. 

to 6 a.m.).

2018 Annual Shift Bid and 

Kier’s Performance Issues

Kier began working the night shift in August 2018, following the annual shift bid. Prior to that date, she had worked 

the day shift. The record shows that after Kier began to work 

the night shift, the Department documented several incidents 

where Kier was counseled for “unacceptable or unsatisfactory 

work performance, which [had] resulted in two letters of reprimand.” These incidents are summarized below.

On August 9, 2018, Kier handled an assault investigation, 

during which she failed to interview all the victims and witnesses, submitted only one report in narrative form, and failed 

to issue any citations or referrals, contrary to the Department’s 

protocol. On August 15, the Department counseled Kier for a 

continued failure to complete and submit “workload tables” 

in a timely manner. Workload tables are the Department’s 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

payroll records and are used to track the number of hours 

worked by each deputy sheriff.

In mid-August, Kier taught a “Basic Life Support CPR” 

class. This class is a prerequisite for deputy sheriffs hoping 

to receive certification from the Nebraska Law Enforcement 

Training Center. However, the class taught by Kier did not 

meet the proper requirements, which caused qualification 

issues for the deputies who had taken the class. On August 27, 

2018, Kier failed to turn in the Department’s monthly police 

quiz on time.

On October 9, 2018, the Department counseled Kier for 

mistakes made on an accident investigation report. Specifically, 

Kier had listed the wrong person as the injured party. On 

October 15, Kier was again counseled for failing to submit 

documentation in a timely manner.

On January 10, 2019, the Department counseled Kier for her 

failure to properly fill out reports on numerous occasions. On 

one occasion, Kier failed to stop a driver suspected of a weapons offense because she failed to properly turn on her police 

vehicle’s emergency lights. On January 19, the Department 

counseled Kier due to an incomplete report that contained several errors.

On February 11, 2019, the Department issued Kier a formal 

letter of reprimand “due to [her] repeated errors in [her] workload table.” On February 14, Kier was again counseled for 

incomplete workload tables.

On February 20, 2019, Kier was counseled after the 

Department found several items in her work mailbox that she 

had left unaddressed for several weeks. These items included 

the following: (1) documents related to an ongoing investigation that Kier had failed to log as evidence, although they had 

been in her possession since December 2018; (2) a citation 

from May 2018 in which Kier had failed to correct errors; (3) 

an out-of-county arrest warrant that had been in Kier’s mailbox for over 3 months that she had failed to serve; and (4) a 

document that Kier had failed to timely return to the Nebraska 

Department of Motor Vehicles.
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

On March 1, 2019, Kier received another letter of reprimand 

for her ongoing performance issues and continued failure to 

complete and submit workload tables in a timely manner. On 

March 9, Kier failed to adequately complete an accident report, 

and she failed to submit a corrected report when asked to do 

so by supervisors.

On April 9, 2019, Conrad and other supervisors within the 

Department met with Kier to discuss her work performance 

issues. Kier acknowledged her deficiencies and explained that 

she was having “issues sleeping” and other “personal issues” 

that were affecting her job performance.

On May 7, 2019, the Department counseled Kier regarding her unsatisfactory performance related to a missing person investigation. The record shows that Kier interviewed all 

potential suspects collectively, rather than individually, and 

that she received pertinent information regarding the location 

of the missing person but failed to act upon it.

On May 14, 2019, Conrad and other supervisors again met 

with Kier. They notified Kier that due to her poor performance 

since starting to work the night shift in August 2018, the 

Department had decided it was necessary to transfer her to the 

day shift. Conrad explained to Kier that she would be able to 

“serve the [D]epartment more effectively,” since “[d]ayshift 

work assignments are more structured and typically have more 

supervision.” Kier did not file a grievance following the May 

2019 decision to transfer her to the day shift.

2019 Annual Shift Bid and Rebid

In June 2019, Kier and other deputy sheriffs working for 

the Department submitted their shift bids in accordance with 

the amended 2016-19 CBA. Kier submitted a bid for the 

swing shift. At the end of June 2019, a deputy sheriff left the 

Department, which required a rebidding of shifts.

On June 7, 2019, Conrad sent Kier a letter regarding the 

annual shift bid, which stated that the Department had transferred Kier to the day shift following the May 14 meeting 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

and that it had been brought to the Department’s attention that 

Kier placed a bid on the swing shift, which “would go against 

the decision made on May 14, 2019.” Conrad then requested 

that in the rebidding process, Kier “limit [her] scope to the 

available day shift positions.”

Conrad instructed FOP #10 that, following the departure of 

the deputy sheriff, a rebid should be conducted according to 

seniority. However, he advised FOP #10 that Kier should be 

placed in a day shift slot, regardless of seniority.

Merit Commission Decision and Appeal

Kier and FOP #10 timely grieved Conrad’s June 7, 2019, 

letter, which limited Kier’s scope in the rebidding process 

to “available day shifts only.” Kier and FOP #10 argued that 

Conrad’s decision violated the shift-bidding provisions of the 

CBA’s because it prevented her from bidding based on her 

seniority for a swing shift or a night shift. Kier and FOP #10 

requested that all deputy sheriffs be immediately permitted to 

resubmit their shift bids based on seniority, and they further 

requested that Conrad’s letter be rescinded and removed from 

Kier’s personnel file.

No satisfactory settlement was reached between the parties during any step of the formal grievance process. Kier and 

FOP #10 then timely filed a grievance appeal with the Merit 

Commission in accordance with the terms of the CBA’s and 

with Neb. Rev. Stat. § 23-1734 (Reissue 2012). The Merit 

Commission held a hearing on the grievance on November 14, 

2019. At the hearing, the Merit Commission received exhibits 

and listened to sworn testimony. Following the hearing, the 

parties submitted written closing arguments.

The Merit Commission issued a written decision on 

December 4, 2019. The decision found that (1) the Merit 

Commission had jurisdiction to hear the grievance appeal pursuant to § 23-1734(2) and pursuant to the grievance procedures 

set forth in the CBA’s; (2) the Department and Conrad did not 

have the authority to restrict Kier from shift bidding based 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

upon seniority; (3) Conrad’s letter to Kier should be removed 

from Kier’s personnel file; and (4) the Department’s employees, including Kier, should be immediately permitted to rebid 

for their shifts.

In addition to these findings, the Merit Commission took 

notice of article IX of the regulations of the Merit Commission, 

which stated:

Paragraph 2 - The Sheriff may, in the Sheriff’s discretion, transfer classified personnel from one division to 

another. A transfer from one division to another shall not 

be considered as a promotion or demotion. The Sheriff 

may, at his discretion, transfer classified personnel from 

one shift to another.

Paragraph 3 - A transfer from one shift to another shift 

shall not be considered a promotion or demotion.

In its written decision, the Merit Commission went on 

to explain:

Accordingly, the Sheriff of Hall County retains the right 

to transfer Deputies from one shift to another according to the Merit Commission regulations. The Sheriff 

and the FOP #10 on their own cannot ignore the Merit 

Commission rules and regulations in the collective bargaining process. If a different result was desired, the 

Sheriff or the FOP #10 could have requested a change in 

the Merit Commission rules and regulations for consideration by the Merit Commission after following the proper 

procedure for amending such rules . . . .

Therefore, although the Merit Commission found that Conrad 

and the Department could not restrict Kier from shift bidding 

based upon seniority, it determined that Conrad’s management 

rights allowed him to transfer Kier from one shift to another 

following the completion of the bidding process.

On December 23, 2019, Kier and FOP #10 filed a petition 

in error in the district court for Hall County, seeking review 

of the Merit Commission’s written decision. The petition in 

error alleged that the Merit Commission erred in finding that 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

Conrad had discretion to transfer deputy sheriffs from one 

shift to another. Kier and FOP #10 alleged that the Merit 

Commission had erred because it (1) had improperly taken 

judicial notice of its own regulations, (2) had improperly interpreted and applied the relevant provisions in the regulations, 

(3) lacked statutory authority to adopt and apply the regulations, (4) had exceeded its statutory authority, and (5) failed to 

properly interpret or apply the provisions of the CBA’s. Kier 

and FOP #10 further alleged that the Merit Commission’s written decision was not supported by sufficient evidence and/or 

was arbitrary and capricious.

The district court held a hearing on the petition in error and 

issued a written order on July 9, 2020, rejecting all of Kier 

and FOP #10’s assignments of error. The district court held 

that the Merit Commission had acted within its jurisdiction 

and statutory authority, that its written decision was supported 

by sufficient evidence, and that the decision was neither arbitrary nor capricious. The district court further found that even 

without consideration of the Merit Commission’s regulations, 

the CBA’s themselves gave the sheriff the right to “direct and 

arrange workforces including the right to transfer employees.” 

For these reasons, the district court affirmed the decision of the 

Merit Commission.

Kier and FOP #10 now appeal the order of the district court.

ASSIGNMENTS OF ERROR

Kier and FOP #10 assign, restated and reordered, that the 

district court erred in (1) holding that the management rights 

provisions in the CBA’s take precedence over the shift-bidding 

provisions and (2) holding that the Merit Commission’s regulations take precedence over the shift-bidding provisions.

STANDARD OF REVIEW

[1-3] 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 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

evidence supports the decision of the agency. Douglas County 

v. Archie, 295 Neb. 674, 891 N.W.2d 93 (2017). The evidence 

is sufficient, as a matter of law, if an administrative tribunal 

could reasonably find the facts as it did on the basis of the 

testimony and exhibits contained in the record before it. 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.

[4] An administrative agency decision must not be arbitrary 

and capricious. Id. 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. Id.

ANALYSIS

Management Rights Provisions

Kier and FOP #10 assign that the district court erred when it 

found that the management rights provisions in article III of the 

CBA’s gave Conrad the discretion to arrange workforces and 

transfer employees, notwithstanding the results of an annual 

shift bid. With respect to this issue, the district court found that 

the terms of the CBA’s “prohibit[ed] the sheriff from restricting or preventing a deputy from shift bidding according to the 

applicable [CBA],” but that the sheriff “retain[ed] the right to 

transfer deputies from one shift to another.” Kier and FOP #10 

argue that in reaching this conclusion, the district court erred 

as a matter of law in failing to apply the plain language of the 

CBA’s to this case.

Kier and FOP #10 argue that the Merit Commission and 

district court erred in overlooking certain portions of the 

CBA’s that they contend limit the sheriff’s management rights, 

including the right to transfer deputy sheriffs from one shift to 

another. They argue that when the CBA’s are properly read as 

a whole, the plain language of the CBA’s prohibited Conrad 

from “disregarding an employee’s chosen shift due to work 

performance issues.” Brief for appellants at 24.
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

[5-9] In interpreting a contract, a court must first determine, 

as a matter of law, whether the contract is ambiguous. Bierman 

v. Benjamin, 305 Neb. 860, 943 N.W.2d 269 (2020). A contract 

is ambiguous when a word, phrase, or provision in the contract 

has, or is susceptible of, at least two reasonable but conflicting 

interpretations or meanings. Id. When the terms of a contract 

are clear, a court may not resort to rules of construction, and 

the terms are to be accorded their plain and ordinary meaning 

as an ordinary or reasonable person would understand them. 

Id. The fact that the parties have suggested opposing meanings 

of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Id. A contract found 

to be ambiguous presents a question of fact and permits the 

consideration of extrinsic evidence to determine the meaning 

of the contract. Id.

[10-13] In addition, a contract must receive a reasonable 

construction and must be construed as a whole. Equestrian 

Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953 

N.W.2d 16 (2021). And, if possible, effect must be given to 

every part of a contract. Id. A court is not free to rewrite a 

contract or to speculate as to terms of the contract which the 

parties have not seen fit to include. Id. A court should avoid 

interpreting contract provisions in a manner that leads to unreasonable or absurd results that are obviously inconsistent with 

the parties’ intent. Id.

In this case, Kier and FOP #10 do not deny that article III 

of each CBA reserved certain management rights to Conrad as 

personnel director of the Department. They acknowledge the 

provision which states that “[a]ll management rights, functions, 

responsibilities, and authority not specifically limited by the 

express terms of this Agreement are retained by the Sheriff and 

remain exclusively within the rights of the Sheriff.”

However, Kier and FOP #10 suggest that Conrad’s management rights, specifically his right to transfer deputy sheriffs 

from one shift to another, were limited by other terms of the 

CBA’s. In support, Kier and FOP #10 point to portions of 
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KIER v. COUNTY OF HALL

Cite as 30 Neb. App. 1

the CBA’s that provide that during “an emergency as declared 

by the Sheriff,” the sheriff shall have discretion to establish 

shifts, hours, and duties; and also to a different provision 

related to temporary reassignment of a deputy sheriff to cover 

for vacation and sick leave. Finally, Kier and FOP #10 reference a provision permitting two employees to trade their work 

schedules. According to Kier and FOP #10’s suggested interpretation, these three circumstances are the only ones in which 

the Department may disregard a deputy sheriff’s chosen shift 

bid and transfer them to a different shift.

Reading the CBA’s as a whole, we do not find Kier and 

FOP #10’s argument to be persuasive. Nothing about the three 

provisions referenced above indicates that they are the sole 

circumstances under which the sheriff may transfer a deputy 

sheriff to a new shift. Nor does the language of the three 

provisions referenced by Kier and FOP #10 specifically eliminate or limit the sheriff’s right to transfer employees from 

shift to shift, which is explicitly enumerated in article III of 

the CBA’s.

To the contrary, the CBA’s demonstrate that the parties 

specifically contemplated the sheriff’s ability to transfer a 

deputy sheriff to a new shift. Not only do the CBA’s grant the 

sheriff the right to transfer employees, the CBA’s additionally prescribe a procedure by which such a transfer must be 

effected. The CBA’s state that “[t]he Department shall not 

change the work schedule, work shift, job or assignment of 

an employee . . . without providing such employees at least 

thirty (30) days advance notice of the change of work schedule, work shift, or job.” We note that in this case, Conrad did 

provide Kier the requisite 30 days’ notice via a written letter, 

which Kier acknowledged with her signature. We further note 

that Kier never instituted grievance proceedings following this 

notice of transfer; rather, proceedings in this case were originally focused on whether Conrad had the right to prevent Kier 

from shift bidding entirely—a question which was resolved in 

Kier and FOP #10’s favor.
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Although Kier and FOP #10 correctly point out that some 

provisions of the CBA’s make reference to particular scenarios 

under which the sheriff may transfer an employee, nothing about those provisions suggests that they are the only 

circumstances under which a transfer may be made. Rather, 

they apply to special circumstances (e.g., emergencies) when 

the typical transfer procedures, including 30 days’ advance 

notice, might not be practical. We do not read the provisions 

related to emergencies, temporary reassignment, or voluntary 

shift trades to be inconsistent with the sheriff’s general right 

to transfer employees from shift to shift. Indeed, under the 

interpretation of the CBA’s advocated by Kier and FOP #10, 

the management rights provisions in article III would be effectively mooted.

To ignore provisions of the CBA’s would be contrary to the 

purpose of the parties and contrary to Nebraska precedent. 

A contract must be construed as a whole, and effect must be 

given to every part of a contract if possible. See Equestrian 

Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953 

N.W.2d 16 (2021). It would be nonsensical for this court to 

ignore a provision which grants the sheriff the right to transfer 

employees from shift to shift and instead hold that the same 

provision is without effect simply because other sections of the 

CBA’s also concern changes to employee work schedules. Both 

the Merit Commission and the district court gave every provision in the CBA’s full effect in determining that Conrad had no 

right to interfere with the annual shift-bidding process, but also 

finding that Conrad retained all management rights that were 

not explicitly limited within the contract.

We conclude that the district court correctly applied the plain 

language of the CBA’s to this case. Under article III of the 

CBA’s, the sheriff retains certain management rights, including 

the right to transfer deputy sheriffs from one shift to another; 

the CBA’s further prescribe a procedure by which the sheriff 

may effect such a transfer. No other provision in the CBA’s 

specifically limits this right. This argument fails.
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Merit Commission Regulations

Kier and FOP #10 assign that the district court erred in 

holding that the Merit Commission acted within its jurisdiction in interpreting and applying its regulations to this case 

and denying the grievance. They argue that this is error for 

three reasons: (1) the shift-bidding provisions do not violate 

a statutory directive and are therefore valid, (2) the Merit 

Commission’s regulations did not bar the Department from 

contracting with respect to the shift-bidding provisions, and (3) 

the Merit Commission’s regulations exceed the Commission’s 

statutory rulemaking authority and are, therefore, invalid.

[14] However, because we have already determined that the 

district court was correct in its conclusion that the terms of the 

CBA’s themselves gave Conrad the right to transfer Kier from 

shift to shift, we need not consider this assignment of error. An 

appellate court is not obligated to engage in an analysis that 

is not necessary to adjudicate the case and controversy before 

it. AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 

N.W.2d 212 (2020).

CONCLUSION

We conclude that the district court did not err in affirming the decision of the Merit Commission which ordered the 

Department to conduct an immediate shift rebid and to permit 

Kier to fully participate in the process, but which concluded 

that Conrad retained the right to transfer deputy sheriffs from 

shift to shift. We conclude that the terms of the CBA’s entered 

into by the parties gave Conrad the power to transfer his 

employees from shift to shift. For that reason, we do not reach 

the issue of whether the regulations of the Merit Commission 

likewise authorized the sheriff to make such transfers. The 

judgment of the district court is affirmed.

Affirmed.