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ROBINSON v. MORRILL CTY. SCH. DIST. #63

Cite as 299 Neb. 740

Patrick Robinson, appellant, v. Morril

School District #63 and Morrill

Board of Education, appell

___ N.W.2d ___

Filed April 26, 2018. No. S-17-216.

1. Schools and School Districts: Termination of Employment: Teacher 

Contracts: Evidence: Appeal and Error. The standard of review in 

an error proceeding from an order of a school board terminating the 

contract of employment of a certificated employee is whether the school 

board acted within its jurisdiction and whether there is sufficient evidence as a matter of law to support its decision. In this context, evidence 

is sufficient as a matter of law if a judge could not, were the trial to a 

jury, direct a verdict.

2. Statutes: Judgments: Appeal and Error. To the extent the assignments 

of error on appeal present issues of statutory interpretation or issues of 

law, an appellate court reaches an independent conclusion irrespective of 

the decision made by the court below.

3. Schools and School Districts: Attorneys at Law. Neb. Rev. Stat. 

§ 79-513 (Reissue 2014) expressly authorizes school boards to hire legal 

counsel when it deems it necessary or advisable.

4. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition.

5. Constitutional Law: Due Process. When a person has a right to be 

heard, procedural due process includes notice to the person whose right 

is affected by a proceeding, that is, timely notice reasonably calculated 

to inform the person concerning the subject and issues involved in 

the proceeding; a reasonable opportunity to refute or defend against a 

charge or accusation; a reasonable opportunity to confront and crossexamine adverse witnesses and present evidence on the charge or 

accusation; representation by counsel, when such representation is 

required by constitution or statute; and a hearing before an impartial 

decisionmaker.

Nebraska Supreme Court Online Library

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

05/18/2018 01:07 AM CDT
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6. Judges: Juries: Administrative Law: Presumptions: Proof. As a 

general rule, decisionmakers are presumed to be impartial and unbiased; the burden of showing otherwise rests on the party making 

the assertion.

7. Schools and School Districts: Teacher Contracts: Evidence. A school 

board can consider all relevant conduct when determining whether to 

cancel a contract.

8. Teacher Contracts: Termination of Employment: Words and 

Phrases. For purposes of cancellation of an employment contract under 

Neb. Rev. Stat. § 79-827 (Reissue 2014), “incompetency,” as defined by 

Neb. Rev. Stat. § 79-824(4)(a) (Reissue 2014), includes “demonstrated 

deficiencies or shortcomings in knowledge of subject matter or teaching 

or administrative skills.”

9. Teacher Contracts: Words and Phrases. Teacher incompetency is not 

measured in a vacuum or against a standard of perfection but, instead, 

must be measured against the standard required of others performing 

the same or similar duties.

10. Teacher Contracts: Termination of Employment: Words and 

Phrases. For purposes of cancellation of an employment contract under 

Neb. Rev. Stat. § 79-827 (Reissue 2014), “neglect of duty” generally 

requires evidence of something more than occasional neglect. Evidence 

that a particular duty was not competently performed on certain occasions, or evidence of an occasional neglect of some duty of performance, in itself, does not ordinarily establish incompetency or neglect of 

duty sufficient to constitute just cause for termination.

11. ____: ____: ____. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), “unprofessional 

conduct” must be conduct directly related to the fitness of the employee 

to act in his or her professional capacity.

12. ____: ____: ____. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), “insubordination” 

is the absence of subordination or submission, resistance to or defiance 

of authority, refusal to obey orders, refractoriness, or disobedience.

13. Courts: Appeal and Error. In an error proceeding, issues not presented 

to the district court are not preserved for appellate review.

Appeal from the District Court for Morrill County: Leo P

Dobrovolny, Judge. Affirme

Robert M. Brenner, of Robert M. Brenner Law Office, for 

appellant.
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Steven W. Olsen and John L. Selzer, of Simmons Olsen Law 

Firm, P.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Sta

Funke, J

Per Curiam

A school board canceled the contract of a certificated 

employee after holding a formal hearing. The employee filed 

a petition in error in the district court, which affirmed the cancellation.1

 The employee now appeals, raising various issues 

regarding notice and due process in addition to challenging the 

merits of the cancellation. We affirm.

I. FACTS

In the fall of 2013, Patrick Robinson was hired as the 

curriculum and assessment coordinator at Bridgeport Public 

Schools pursuant to a contract with the Bridgeport Public 

Schools Board of Education (school board).2 In February 2015, 

Robinson was notified his contract was being canceled. He 

requested and received a hearing before the school board, and 

the following evidence was adduced.

1. Veterans Day I

In November 2013, the community of Bridgeport, Nebraska, 

held a Veterans Day celebration at the school on a nonschool 

day. A portion of the parking lot was reserved for veterans 

attending the celebration. Robinson, who served in Iraq with 

the U.S. Army, came to the school that day to work and 

parked in the veteran’s parking area. A teacher, and later an 

administrator, approached him and asked him to move his 

car, explaining the intent was to reserve the parking spaces 

for older or disabled veterans who would have difficulty with 

mobility. Robinson became angry and refused to move his 

1 See Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 2016).

2 See Neb. Rev. Stat. §§ 79-101 and 79-818 (Reissue 2014).
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car. Robinson generally felt he was treated unfairly during 

the incident.

2. December 2013 In

With Stude

In December 2013, two teachers at Bridgeport observed an 

eighth grade student standing at her locker, laughing. When 

they asked what she was laughing about, the student told 

them Robinson had left a funny note in her locker. She told 

the teachers she thought Robinson was very funny and said 

“we game or do something together.” The teachers thought it 

was odd that Robinson had accessed the student’s locker. They 

understood the student’s comment to relate to some sort of 

online gaming activity and were concerned that Robinson and 

the student may be involved in an inappropriate relationship. 

The teachers informed a school administrator of the incident 

and their concerns, which was a reporting procedure that conformed with school policy.

An administrator investigated the incident by questioning 

the student, her parents, and Robinson, and determined there 

was no inappropriate conduct. Robinson received a letter from 

the administration on January 16, 2014, stating the incident 

had been investigated and no wrongdoing was found.

3. Fellow Teacher 

of Confidentiali

Before Robinson received the January 16, 2014, letter 

reporting no wrongdoing had been found, one of the reporting 

teachers told the athletic director about the locker incident. 

The athletic director then told Robinson that two teachers 

had reported him, and Robinson understood the teachers had 

accused him of grooming a student for a sexual relationship. 

Robinson informed administrators about the reporting teacher’s breach of confidentiality. The administration conducted 

an investigation and reprimanded the teacher for telling the 

athletic director about the report. The written report of this 

investigation was dated March 6, 2014, and reiterated that 
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Robinson had not engaged in an inappropriate relationship 

with a student. The report also stated the superintendent had 

investigated and had found there was no harassment directed 

toward Robinson after the December 2013 incident.

4. Robinson’s General C

Beginning in January 2014, Robinson started refusing to 

come out of his office at school to meet or interact with 

other staff members. Robinson was upset about the allegations 

and the administration’s response. Robinson believed school 

employees continued to talk about the incident and perpetrate 

the rumor that he was a sexual predator. He felt his reputation 

had been tarnished and did not think the administration had 

acted to stop the rumors or protect his reputation.

Robinson complained to both the teachers’ union and the 

Department of Education about the administration’s failure to 

protect him from what he perceived as continued accusations 

after the December 2013 incident. He informed others that 

the principal had harassed and disparaged him and should be 

fired. He told a school board member that the superintendent 

should “back off” from evaluating him. In early January 2014, 

Robinson received emails from other school employees asking 

general questions about the school’s curriculum and interpreted 

the emails as attacks on his decisionmaking ability and competence. In February 2014, Robinson was told by administrators as part of his employee evaluation that he needed to start 

interacting with fellow staff members.

At Robinson’s request, he met with the school board in 

February 2014 to discuss the concerns he had with the school 

administration. After the meeting, Robinson gave a written 

summary of his complaints to an attorney the school board 

hired to investigate the matter. Robinson subsequently refused 

to meet with this attorney.

Chuck Lambert took over as superintendent at Bridgeport 

in June 2014, while the situation with Robinson was ongoing. 

Lambert met with Robinson in June and told him he would 

look into his complaints, but asked Robinson to view the new 
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administration as a clean slate and an opportunity to work to 

move forward. An attorney representing the school board sent 

a letter to Robinson’s attorney in July addressing Robinson’s 

continuing concerns about the December investigation and stating the school district found no wrongdoing and considered the 

matter closed.

When classes started in the fall of 2014, Robinson continued to seclude himself in his office. He avoided interacting 

with school staff except through email. At least once in August 

2014, Robinson perceived a communication relating generally to school business as a personal attack on him. Robinson 

testified at the hearing that he considered his work environment hostile, because he never received an apology after the 

December 2013 incident and did not think he had been told 

he was cleared of any wrongdoing over the incident with 

the student.

5. August 28, 2014

Union M

On August 28, 2014, after the school term had started, the 

teachers’ union held a meeting at the community center in 

Bridgeport. The meeting was called by legal representatives 

of the union, and its general purpose was to inform members 

of the union that Robinson had filed a complaint against the 

union, alleging failure to provide representation. At this meeting, the union explained how Robinson’s complaint would 

be addressed and warned the members not to engage in any 

type of retaliatory action toward Robinson. Robinson was not 

invited to the meeting, but was aware it had been scheduled. 

He asked another Bridgeport teacher to attend the meeting, 

hide a tape recorder in her backpack, and record the meeting 

for him. She did so.

Robinson listened to the recording the next day and was 

upset by what he heard. Generally, the recording demonstrated 

that although the meeting was intended as an informational 

session and an opportunity for counsel to give general legal 

advice to union members, various attendees made unflattering 
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comments about Robinson. Several noted they were afraid of 

him, and one expressed fear that Robinson might bring a gun to 

school. One referred to Robinson as a “creep.” Another said he 

was not a “normal, stable-minded person.” When the attendees 

were advised to let the administration know if Robinson made 

a threatening comment, one stated, “But I think that’s how this 

all got started.” Another attendee warned everyone to avoid the 

athletic director, explaining that the athletic director was “on 

[Robinson’s] side.”

The day after the union meeting, the Bridgeport principal 

sent Robinson an email asking if Robinson could meet with 

him and several teachers to review some new curriculum. 

Robinson perceived the email as a threat, apparently because 

he thought the curriculum meeting would be attended by 

some of the same teachers who made unflattering comments 

about him at the union meeting. Robinson forwarded the 

principal’s email to Lambert, the superintendent. Robinson 

informed Lambert that he perceived the proposed meeting 

as an attempt to make him uncomfortable by forcing him to 

face his accusers, and he declined to attend unless Lambert 

ordered him to do so. Robinson also forwarded Lambert an 

email he received from an administrator requesting some staff 

training and informed Lambert he did not wish to meet with 

a certain staff member because she was the leader of a “lynch 

mob” against him. Additionally, Robinson emailed Lambert 

to inform him that, because of what had been said about him 

at the union meeting, he would not attend any athletic events 

involving the school.

On Monday, September 1, 2014, Robinson emailed Lambert 

and requested that Lambert have a school district representative contact Robinson’s attorney. The next day, Robinson sent 

Lambert a reply to an email that was 6 months old and related 

to the school safety plan. Robinson’s reply pointed out that the 

plan contained various spelling errors. Lambert responded by 

thanking Robinson for the input but asking why Robinson was 

responding to such an old email. After sending Lambert two 
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additional emails generally indicating that he thought Lambert 

was attacking him, Robinson went home sick.

6. Meeting With Superin

Lambert did not know about the August 28, 2014, union 

meeting until after it occurred. Once he received the emails 

from Robinson on August 29 and September 1 and 2, Lambert 

was concerned about Robinson’s behavior, so he went to 

Robinson’s office to talk with him. Robinson tape recorded 

the conversation without Lambert’s knowledge. During this 

conversation, Lambert asked Robinson, “Do you see that your 

struggle with the past is affecting you now?” And, “Do you 

understand that the feelings that you have . . . will make it 

really tough for us to function and get to where we need to 

be?” Robinson responded, “Yes, I get that completely.” The 

record shows that during 2013 and 2014, Robinson also tape 

recorded other meetings with school employees without their 

knowledge or consent.

On September 4, 2014, Lambert gave Robinson a letter 

informing him he was being suspended with pay. The letter 

referenced Robinson’s inability to work collaboratively with 

other school personnel.

In February 2015, Lambert notified Robinson that the school 

was canceling his contract. Robinson requested and received a 

hearing before the school board.3 After the hearing, the school 

board voted unanimously to cancel his contract. Robinson 

filed a petition in error in the Morrill County District Court,4

which affirmed. He filed this timely appeal, which we moved 

to our docket on our own motion.

II. ASSIGNMENTS OF ERROR

Robinson assigns, restated and consolidated, that the district 

court erred in finding (1) notice of the school board hearing 

3 See Neb. Rev. Stat. § 79-827(2) (Reissue 2014).

4 See Neb. Rev. Stat. § 79-833 (Reissue 2014).
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was proper, (2) Robinson’s due process rights were not violated prior to his suspension, (3) the school board’s use of a 

hearing officer was proper, (4) evidence of Robinson’s conduct 

during a previous contract period was properly received to support terminating the present contract, (5) the school board did 

not improperly rely on documents not received in evidence, 

and (6) there was sufficient evidence to establish a lack of professionalism and insubordination.

III. STANDARD OF REVIEW

[1] The standard of review in an error proceeding from an 

order of a school board terminating the contract of employment 

of a certificated employee is whether the school board acted 

within its jurisdiction and whether there is sufficient evidence 

as a matter of law to support its decision.5 In this context, evidence is sufficient as a matter of law if a judge could not, were 

the trial to a jury, direct a verdict.6

[2] To the extent the assignments of error on appeal present 

issues of statutory interpretation or issues of law, we reach an 

independent conclusion irrespective of the decision made by 

the court below.7

IV. ANALYSIS

1. Notice of March 6, 201

Meeting Was Pr

Robinson received advance written notification of a March 

6, 2015, hearing on whether to cancel his employment 

contract,8 and he was present and represented by counsel at the 

hearing. Robinson does not dispute that he had actual notice 

5 See McQuinn v. Douglas Cty. Sch. Dist. No. 66, 259 Neb. 720, 612 

N.W.2d 198 (2000).

6 Id.

7 See J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

8 See Neb. Rev. Stat. § 79-832(1) (Reissue 2014).
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of the hearing, but he argues the school board failed to give 

“[d]ue and proper notice of the hearing” “in accordance with 

the Open Meetings Act” as required by § 79-832(2).

The Open Meetings Act requires “reasonable advance publicized notice of the time and place of each meeting by a method 

designated by each public body and recorded in its minutes.”9

The record shows that on February 24, 2015, the school board 

posted notice of the March 6 meeting at three local Bridgeport 

establishments: “Sonny’s Super Foods,” “Jack & Jill,” and 

“Prairie Winds Community Center.” This method of notice 

was used by the board and recorded in its minutes at least 21 

times between January 14, 2013, and February 9, 2015. Board 

minutes also show that on other occasions, the board published 

notice of meetings in the local newspaper. As between these 

two methods of notice, the record shows the board published 

notice in the newspaper approximately 60 percent of the time 

and posted notice at local establishments approximately 40 

percent of the time.

The district court found notice was given in accordance 

with law. Robinson argues the meeting notice was improper 

because (1) the customary practice of the board was notice by 

publication and (2) the minutes of the March 6, 2015, meeting did not reflect how notice was given. We reject each of 

these arguments.

The record shows the board gave notice of the March 6, 

2015, meeting using a method it had used regularly over the 

2 preceding years. We conclude this was “reasonable advance 

publicized notice . . . by a method designated by [the board].”10

As for Robinson’s argument that the method of notice was not 

properly recorded in the minutes of the March 6, 2015, meeting, we find any such omission to be irrelevant. The intent of 

the notice requirement is to adequately notify the public, in 

advance of the meeting, when and where the meeting will take 

9 Neb. Rev. Stat. § 84-1411(1) (Reissue 2014).

10 § 84-1411(1).
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place,11 and the record shows this was accomplished. This court 

has never held that the failure to record the particular method 

of notice used nullifies actual notice properly given, and we 

decline to do so here. To the contrary, in a related context, 

we held in Schauer v. Grooms12 that even though a designated 

method of service was not formally set forth in the minutes as 

such, § 84-1411(1) is satisfied by evidence from which one 

could “discern, through the minutes of past meetings, a customary and consistent method of notifying the public.”13

Here, the record shows the method used to provide public notice of the March 6, 2015, meeting was used by the 

board and recorded in its minutes at least 21 times between 

January 14, 2013, and February 9, 2015. It further shows both 

Robinson and members of the public were given reasonable 

advanced notice of and attended the meeting. The district 

court did not err in finding that notice was given in accordance with the law.

2. Use of Hearing O

Not Imprope

The school board hired an attorney—referred to by the parties as a “hearing officer”—to preside over Robinson’s hearing.14 Robinson objected to this procedure, arguing the use of a 

hearing officer was not statutorily authorized.

Nebraska statutes allow a Class IV or Class V school district to use a hearing officer when the issue of termination of 

a certificated employee is determined.15 These statutes require 

the parties to select the hearing officer and authorize the hearing officer to actually conduct the hearing and serve as the 

fact finder who makes recommendations to the board for its 

11 See Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909 (2010).

12 Id.

13 Id. at 443, 786 N.W.2d at 924.

14 See, generally, Neb. Rev. Stat. § 79-513 (Reissue 2014).

15 Neb. Rev. Stat. §§ 79-840 to 79-842 (Reissue 2014).
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final decision.16 Bridgeport is not a Class IV or Class V school 

district, and thus, Robinson is correct that the use of a hearing officer was not authorized by these statutes. We conclude, 

however, that the attorney hired by the school board was not 

the sort of hearing officer referenced in these statutes and that 

the procedure used was not improper.

After Robinson objected to the use of a hearing officer, the 

attorney representing the school administrators in the hearing 

explained that the attorney hired by the school board was not 

acting in the capacity of a “hearing officer” statutorily authorized for Class IV and Class V school districts, but instead 

was presiding over the proceedings, a role that was “extremely 

helpful” to the school board, which lacked “legal training.” 

The hearing officer himself explained on the record that it was 

“customary” for school boards to seek outside counsel to help 

conduct hearings in similar situations. He noted that his role 

was to “see that this hearing is conducted fairly and efficiently 

and in a manner consistent with Nebraska law” and emphasized that it was the board’s duty “to determine what the facts 

are.” Indeed, the hearing officer expressly stated, “I have no 

involvement in the ultimate determination made by the [b]oard. 

My role is to conduct the hearing and then assist the [b]oard 

through the process.”

Whether characterized generally as a “hearing officer” or 

more precisely as counsel hired by the school board, we find 

no error in the school board’s retention and use of counsel to 

conduct and oversee the hearing on behalf of the board. The 

board hired an attorney to preside over the hearing, rule on 

objections, and receive the evidence to be considered by the 

board. This attorney did not function as the fact finder and thus 

was not the type of hearing officer statutorily authorized for 

Class IV and Class V school districts.

[3] Both Robinson and the administration were represented at the hearing by counsel, and the school board hired 

16 Id.
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an attorney to preside over the proceedings. Section 79-513 

expressly authorizes the board to hire legal counsel when it 

deems it “necessary or advisable,” and no party directs us to a 

statute, regulation, or practice that prohibits the procedure followed here. We reject Robinson’s invitation to adopt a blanket 

rule that precludes school boards from employing counsel to 

help the board conduct hearings of this nature.

3. Decisionmaker Was Impar

[4-6] Robinson also argues his procedural due process 

rights were violated because the school board was not impartial. The concept of due process embodies the notion of fundamental fairness and defies precise definition.17 But “‘“the 

central meaning of procedural due process [is] clear: ‘Parties 

whose rights are to be affected are entitled to be heard 

. . . .’”’”18 Thus, we have said:

“When a person has a right to be heard, procedural 

due process includes notice to the person whose right 

is affected by a proceeding, that is, timely notice reasonably calculated to inform the person concerning the 

subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge 

or accusation; a reasonable opportunity to confront 

and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by 

counsel, when such representation is required by constitution or statute; and a hearing before an impartial 

decisionmaker.”19

Robinson argues the board was not an impartial decisionmaker for several reasons, which we discuss in turn. 

Prior to doing so, we note that as a general rule, decisionmakers are presumed to be impartial and unbiased; the 

17 In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

18 Id. at 165, 887 N.W.2d at 512.

19 Id. at 165, 887 N.W.2d at 513.
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burden of showing otherwise rests on the party making 

the assertion.20

(a) Prior Knowledge

Robinson asserts the board was not impartial, because it 

knew of the issues related to Robinson’s contract prior to the 

hearing. The record does indicate that board members had 

some prior knowledge of the December 2013 incident with the 

student and Robinson’s resulting allegations that his reputation 

was not being protected by the administration. However, this 

is only because Robinson himself requested a meeting with 

the board in the early part of 2014 to present his complaints. 

The record shows that beyond this communication, the board 

had no other information about Robinson’s work performance, 

because the administration followed protocol and did not discuss confidential employee matters with the board. Moreover, 

when questioned on the record by the hearing officer and 

Robinson’s counsel prior to the receipt of the evidence, each 

board member affirmatively stated he or she would base a 

decision “solely on the evidence received as a part of this 

hearing and exclude anything [he or she] may have heard or 

read about this matter prior to the hearing.” On this record, 

Robinson failed to show the board’s impartiality was affected 

by prior knowledge.

(b) Hearing Officer’s Participation

Robinson also claims the board was not impartial because, he 

asserts, the hearing officer “participat[ed] in the deliberations.”21

Robinson suggests there is circumstantial support for his assertion because (1) when referencing the board’s decision to 

go into closed session to deliberate, the hearing officer used 

the collective term “we” when referring to the board, and 

20 Schweiker v. McClure, 456 U.S. 188, 102 S. Ct. 1665, 72 L. Ed. 2d 1 

(1982).

21 Brief for appellant at 26.
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(2) the hearing officer was present with the board during the 

closed session.

As noted, at the commencement of the hearing, Robinson 

questioned the hearing officer’s role and the hearing officer 

explained that his role was limited to conducting the hearing 

and advising the board throughout the process, and he would 

have “no involvement in the ultimate determination made by 

the [b]oard.” Moreover, before receiving evidence, the hearing 

officer instructed the board on its role as the fact finder and 

told the board what it could and could not consider in making its decision. As part of that instruction, the hearing officer 

admonished the board, “Do not take anything I say or do as 

expressing my opinion as to how this case should come out or 

how you should resolve any issue of fact.”

On this record, the hearing officer’s reference to “we” and 

his presence with the board during closed session are insufficient to show the board was not an impartial decisionmaker.

(c) Consideration of Documents 

Not Received

Robinson also argues the board was not impartial because it 

considered matters outside the record during its deliberation. 

Before addressing this argument, we provide some additional 

background.

Prior to the hearing, counsel for the administration prepared 

binders containing each proposed exhibit. The binders were 

distributed to each board member immediately before the hearing commenced. The board was instructed not to look at any 

exhibit until it was offered and received, and this procedure 

was followed by both counsel during the hearing. The record 

shows that before deliberations, in the presence of counsel and 

Robinson, any exhibit in the binders that had not been received 

into evidence was removed at the direction of the hearing 

officer and left on a table in the hearing room to be recycled. 

It appears the hearing officer kept an original binder with all 

exhibits in order to preserve them for the record.
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The record shows that approximately 50 exhibits were 

included in the binders but not received at the hearing. 

However, the only exhibit Robinson specifically contends the 

board improperly considered is exhibit 108. That exhibit is 

a February 26, 2015, letter sent to Robinson and his counsel 

by the administration’s attorney. The letter recited the allegations against Robinson and provided a detailed summary of the 

exhibits and testimony the administration expected to adduce 

at the hearing. Exhibit 108 was admitted at the hearing, but 

only for the limited purpose of showing the administration had 

complied with statutory notice requirements.22 And at the conclusion of the evidence, the hearing officer directed each board 

member to remove exhibit 108 from his or her binder, along 

with the other exhibits that had not been received.

Robinson argues the board’s ultimate factual findings supporting the decision to cancel his contract were similar to the 

information contained in exhibit 108, and he speculates this 

could only have happened if the board members kept a copy of 

exhibit 108 in their binders or the hearing officer’s copy was 

used in deliberations.

While there is similarity between the substantive content of 

exhibit 108 and the board’s ultimate factual findings, that is 

not surprising. Exhibit 108 was the administration’s prehearing 

disclosure of the alleged grounds for cancellation, the reasons 

supporting cancellation, and a summary of the anticipated 

exhibits and testimony of each witness. In other words, exhibit 

108 laid out in detail what the administration intended to prove 

at the hearing. The boards’ findings after the hearing tracked 

with the issues and evidence presented, and reflected what it 

determined the administration had proved. Rather than suggesting reliance on materials outside the record, the board’s 

findings merely reflect that the administration carried its burden of proof.

22 See § 79-832.
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On the record before us, Robinson has not shown the 

board’s impartiality was affected by exhibit 108. Robinson 

does not argue why inclusion of any of the other 50 exhibits in 

the binders during the hearing was prejudicial to him, and we 

therefore do not address any of the other exhibits.23

(d) Motion for Closed Session

After all parties had presented their evidence to the school 

board, the hearing officer informed the board that it could 

move to conduct its deliberations in closed session. A board 

member so moved, the motion was seconded, and on a roll 

call vote, all members of the board affirmatively voted to 

deliberate in closed session. The hearing officer then stated 

on the record that the board was going into closed session at 

7:44 p.m. in a nearby conference room for its deliberations. 

Robinson did not object to the closed session or the process 

followed by the board, but did ask that the court reporter 

remain in the hearing room in case “the board members 

. . . end up having a question that needs to have discussion.” 

At 10:36 p.m., the board reconvened in open session and 

announced on the record its proposed findings of fact and 

proposed decision.

On appeal, Robinson argues the motion to go into closed 

session did not comply with the Open Meetings Act.24 The 

school board relies on this court’s decision in McQuinn v. 

Douglas Cty. Sch. Dist. No. 6625 to argue that § 84-1410, which 

sets out the procedure for public bodies to hold closed sessions, 

has no application here, because the school board was acting in 

a judicial function and not as a public body.

We do not address either argument, because Robinson’s 

failure to object to the closed session or to challenge the 

23 See, In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 

(2015); Obad v. State, 277 Neb. 866, 766 N.W.2d 89 (2009).

24 See Neb. Rev. Stat. § 84-1410 (Reissue 2014).

25 McQuinn, supra note 5.
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procedure followed in connection therewith, effectively 

waived the argument he seeks to present on appeal. This 

assignment of error is without merit.

4. Evidence of Conduct i

Contract Period Admiss

During the hearing, Robinson repeatedly objected to the 

admission of any evidence related to his conduct outside the 

time period from August 13 through September 4, 2014. He 

argued this was the only relevant time period, because the issue 

was whether his current contract, effective August 13, should 

be canceled, and he was suspended on September 4. The hearing officer overruled each of these objections, reasoning the 

board was not prohibited from considering conduct from a 

prior contract period in determining whether the current contract should be canceled.

[7] Our prior case law demonstrates that a school board can 

consider all relevant conduct when determining whether to 

cancel a contract. In Hollingsworth v. Board of Education,

26

we reversed the district court’s judgment affirming a school 

board’s termination of a tenured teacher’s contract. In doing so, 

we referenced evidence related to the teacher’s entire 21⁄2-year 

teaching career at the school and did not limit our analysis to 

only the year prior to the termination. We applied a similar 

analysis in Schulz v. Board of Education.

27

Here, evidence related to the incidents that occurred during the prior contract period—particularly the December 

2013 incident involving the student—was intertwined with 

Robinson’s conduct thereafter and his deteriorating job performance. As such, the evidence was necessary to understanding and evaluating the reason for Robinson’s continued inability to work collaboratively with his fellow school 

26 Hollingsworth v. Board of Education, 208 Neb. 350, 303 N.W.2d 506 

(1981).

27 Schulz v. Board of Education, 210 Neb. 513, 315 N.W.2d 633 (1982).
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employees and thus was relevant to determining whether 

his current contract should be canceled. We agree with the 

district court that there is no merit to Robinson’s argument that this evidence was irrelevant and should have 

been excluded.

5. Sufficient Evidence to 

Canceling Co

Pursuant to § 79-827, the contract of any certificated 

employee may be canceled by a majority of the members of the 

school board during the school year for, among other things, 

incompetency,28 neglect of duty,29 unprofessional conduct,30 or 

insubordination.31 The board canceled Robinson’s contract after 

finding he had acted in an unprofessional manner, neglected 

his duties, been insubordinate, and not acted in a competent manner.

Robinson argues there was insufficient evidence in the 

record to support the cancellation of his contract. The district 

court found there was sufficient evidence as a matter of law 

to support the board’s decision. We agree with the district 

court.

(a) Incompetency and 

Neglect of Duty

[8,9] “Incompetency,” in the context of this case, includes 

“demonstrated deficiencies or shortcomings in knowledge 

of subject matter or teaching or administrative skills.”32 We 

have held that teacher incompetency is not measured in a 

vacuum or against a standard of perfection but, instead, must 

28 § 79-827(1)(d).

29 § 79-827(1)(e).

30 § 79-827(1)(f).

31 § 79-827(1)(g).

32 Neb. Rev. Stat. § 79-824(4)(a) (Reissue 2014). Accord Boss v. Fillmore 

Cty. Sch. Dist. No. 19, 251 Neb. 669, 559 N.W.2d 448 (1997).
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be measured against the standard required of others performing the same or similar duties.33

Robinson was the curriculum coordinator. There was considerable evidence demonstrating his shortcomings in administering his coordinator duties. For example, he refused to attend 

meetings with staff and administration. He refused to leave 

his office, even after being directed to stop secluding himself. 

And he refused to work collaboratively with staff and administration on curriculum and testing issues.

[10] “Neglect of duty” is not defined in the applicable 

statute, but our cases have recognized that, generally, there 

must be evidence of something more than occasional neglect. 

“‘Evidence that a particular duty was not competently performed on certain occasions, or evidence of an occasional 

neglect of some duty of performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to 

constitute just cause for termination.’”34

The record contains sufficient relevant evidence showing 

more than just occasional incompetence or neglect of a particular duty. Lambert testified that after Robinson was suspended, 

Lambert discovered significant discrepancies related to curriculum orders made by Robinson that had to be rectified. 

Specifically, Robinson had lied about certain purchases for 

the curriculum and had exchanged inappropriate and unprofessional emails with a district curriculum vendor. On this record, 

the evidence of incompetency and neglect of duty was sufficient to support the board’s decision.

(b) Lack of Professionalism 

and Insubordination

[11,12] “Unprofessional conduct” is not defined in the 

applicable statute, but we have explained that it must be 

33 Eshom v. Board of Ed. of Sch. Dist. No. 54, 219 Neb. 467, 364 N.W.2d 7 

(1985).

34 Boss, supra note 32, 251 Neb. at 676, 559 N.W.2d at 453, quoting Sanders 

v. Board of Education, 200 Neb. 282, 263 N.W.2d 461 (1978).
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conduct directly related to the fitness of the employee to 

act in his or her professional capacity.35 “[I]nsubordination” 

is defined as the “absence of subordination or submission; 

resistance to or defiance of authority; refusal to obey orders; 

refractoriness, [or] disobedience.”36

The evidence demonstrating Robinson’s lack of professionalism and insubordination in the workplace was substantial. 

Summarized, the evidence showed that as the result of real 

or perceived slights, Robinson grew increasingly antagonistic 

toward other teachers and the administration. Despite encouragement from the administration to start fresh, Robinson perpetuated past conflicts, refused to come out of his office, 

refused to attend meetings to discuss curriculum, and refused 

to interact or collaborate with other teachers. He secretly tape 

recorded conversations with school staff, including Lambert, 

and responded with hostility to discussions regarding his job 

performance or curriculum. Robinson commented that he may 

“go nuclear” and that other employees should not “pick a 

fight” with him.

All of this conduct resulted in a dysfunctional working 

environment. Robinson admitted he lacked a functional relationship with at least eight members of the Bridgeport staff, 

which he also admitted was unprofessional. In addition, 

Lambert testified that professional conduct required an ability 

to respond to criticism in a healthy way and to develop working relationships with colleagues; the record shows Robinson 

did neither. Robinson’s refusal to come out of his office and 

attend meetings to discuss curriculum can fairly be characterized as insubordinate behavior.

We conclude there was sufficient evidence as a matter of 

law to support the board’s finding that Robinson’s conduct 

was unprofessional and insubordinate.

35 See, Daily v. Board of Ed. of Morrill Cty., 256 Neb. 73, 588 N.W.2d 813 

(1999); Boss, supra note 32.

36 “Insubordination,” Oxford English Dictionary Online, http://www.oed.

com/view/Entry/97185 (last visited April 12, 2018).
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6. Presuspension E

Not Preserve

[13] Robinson contends the school violated his due process 

rights when it suspended him with pay in September 2014. His 

petition in error enumerated 32 assignments of error, but there 

was no error assigned to suspending him with pay. As such, 

the issue was not before the district court in the error proceeding and has not been preserved for appellate review.37

V. CONCLUSION

For the foregoing reasons, we affirm the decision of the 

district court affirming the board’s cancellation of Robinson’s 

contract.

Affirmed

Wright and Kelch, JJ., not participati

37 See McQuinn, supra note 5 (error not asserted in petition in error not 

preserved for appellate review).