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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 competent 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 proceedings 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.

Nebraska Supreme Court Online Library

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

06/25/2021 12:09 AM CDT
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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 provided 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 application 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 participating in basic officer training. See 79 Neb. Admin. Code, 

ch. 3 (2016).

Among the materials that must be included in an application 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 questions regarding their personal background. The first page of 

the form document instructs applicants to “answer all questions 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 enforcement certification in Nebraska.” The first page of the document 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 convicted for a violation of any law (except moving traffic violations 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 incident. Swicord checked the box indicating “No.”

Swicord also answered “No” to a number of questions 

regarding professional licenses or certifications. These questions 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 309 Neb. 43

The conclusion of the Personal Character Affidavit form 

directed the applicant to certify that “there are no willful misrepresentations, 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 “concerning 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 understood 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 decision 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 terminated 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 investigation. 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 “certification” 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 practiced 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 testified 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 statement when he indicated that he had never been arrested.” The 

order expressly stated that the Council found Swicord’s explanations 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 . . . characterized 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 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. 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 unreasonable. 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, alternatively, 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 arguments below, but, as we will explain, find no plain error.

§ 29-3523.

There is no dispute that Swicord’s answer to the arrest question in the Personal Character Affidavit was factually inaccurate. 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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309 Nebraska Reports

SWICORD v. POLICE STDS. ADV. COUNCIL

Cite as 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 district 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 committed 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 concluding 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

Cite as 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 application or through the application process, including the background 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, honest mistakes.

In support of his argument that he did not make any deliberate 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 pointing 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 misrepresentations 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 district 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 professional 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 authority 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 comment 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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SWICORD v. POLICE STDS. ADV. COUNCIL

Cite as 309 Neb. 43

conclusions of law. The Administrative Procedure Act requires 

that decisions by an agency in a contested case be accompanied 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 decision 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.