Background
Tobias Gay held licenses to practice both architecture and professional engineering in Nebraska. When his continuing education compliance was selected for a random audit, Gay submitted a log claiming completion of 19 web-based courses along with unsigned certificates of completion. The Board’s investigation revealed that Gay had not attended courses on several of the reported dates and that the total hours he claimed were double the hours he actually completed. When asked to provide signed certificates, Gay submitted 19 certificates bearing a sponsor’s “wet signature” — but the Board confirmed the sponsor never wet-signed any certificates, provided only digital signatures, and had never spoken with Gay as Gay had claimed.
The Board charged Gay with providing false evidence to maintain his licenses under Neb. Rev. Stat. § 81-3444. Compounding matters, Gay was subject to a prior disciplinary settlement agreement arising from competency violations on two projects, which permitted those prior matters to be considered in the event of any future violation within five years. Gay appeared pro se at the hearing, ultimately admitted the Board had a “paper trail” proving the allegations, acknowledged he had “jacked up the hours,” and apologized to the Board. The Board found 19 violations and revoked both licenses, barring Gay from reapplying for five years.
Gay, now represented by counsel, petitioned the Lancaster County District Court for judicial review, arguing only that the five-year revocation was excessive. He subsequently filed a statement of errors raising additional claims — including a procedural due process challenge — that had not appeared in his petition for review. The district court found the due process claim unpreserved but addressed it anyway, ultimately affirming the Board’s order in full. Gay appealed, and the Nebraska Supreme Court moved the case to its own docket.
The Court’s Holding
The Nebraska Supreme Court affirmed, rejecting all four of Gay’s assignments of error. On the procedural preservation issue, the court clarified that Neb. Ct. R. § 6-1518(B)’s statement-of-errors requirement applies only to appeals from county court to district court — not to APA judicial-review proceedings. Under § 84-917(2)(b)(vi), a petitioner must include all grounds for relief in the petition for review itself. Because Gay’s due process claim did not appear in his petition, it was unpreserved; the court nonetheless conducted plain error review because the district court had addressed the claim on the merits.
On the due process challenge, the court found no plain error. Procedural due process in administrative proceedings requires notice, identification of the accuser, the factual basis for the accusation, a reasonable opportunity to present evidence, and a hearing before an impartial tribunal. The Board satisfied each element: Gay received the petition detailing the charges, was notified of the hearing date, was explicitly asked whether he had counsel, exercised his right to testify, and had the opportunity to cross-examine witnesses — a right he declined to use. The court also noted that Gay had previously been represented by counsel in an earlier Board proceeding, undermining any claim that he was unaware representation was available.
On the merits of the disciplinary sanction, the court found the revocation and five-year bar on reapplication neither arbitrary nor excessive. Gay had not merely submitted fraudulent paperwork once; when the initial fraud was uncovered, he submitted additional forged certificates. Combined with the prior settlement agreement for competency violations — which fell within the five-year window — the record reflected a pattern of noncompliance. The court rejected Gay’s argument that dishonesty about continuing education was unrelated to professional fitness, holding that compliance with laws, professional conduct, and good ethical character are statutory prerequisites for licensure under § 81-3434(2).
Key Takeaways
- In Nebraska APA judicial-review proceedings, all grounds for relief must be raised in the petition for review under § 84-917(2)(b)(vi); a subsequently filed statement of errors does not preserve claims omitted from the petition, because Neb. Ct. R. § 6-1518(B) applies only to county-court-to-district-court appeals.
- Procedural due process in administrative disciplinary proceedings does not require an agency to affirmatively advise a respondent of available procedural rights or potential penalties before the hearing; notice of the charges, the hearing date, and an opportunity to be heard satisfies constitutional requirements.
- Dishonesty about continuing education compliance — including fabricating and forging completion certificates — directly implicates professional fitness and subjects a licensee to severe sanctions; the court declined to treat such misconduct as merely administrative rather than character-based.
- A prior disciplinary settlement agreement that preserves future-violation consideration can significantly amplify sanctions when a new violation occurs within the specified window.
Why It Matters
For practitioners and licensees, the decision underscores that Nebraska’s administrative judicial-review statute demands careful pleading at the petition stage — counsel who inherited a case from a pro se administrative hearing must identify and assert all claims in the initial petition for review, not in a later statement of errors. Waiting to raise constitutional or other challenges until after the record is filed will forfeit those claims absent plain error.
The concurrence by Justice Bergevin adds a notable policy dimension: while minimum due process does not require agencies to provide prehearing advisories on rights and procedures, he urged the Legislature and Attorney General to consider requiring more robust prehearing notice as a matter of sound administrative practice. That signal may prompt rulemaking or legislative attention to agency notice requirements statewide, particularly for unrepresented respondents facing potentially career-ending sanctions.