Vokal v. Nebraska Acct. & Disclosure Comm.

excess of its powers, (2) if the order was procured by fraud
or is contrary to law, (3) if the facts found by the CIR do not
support the order, and (4) if the order is not supported by a pre-
ponderance of the competent evidence on the record considered
as a whole. See id.
Had this court conducted its own review of Housh’s conduct,
the result might have been different. Housh’s article appeared
in a newsletter circulated outside the Union. Housh stated that
city officials were “acting like petty criminals trying to conceal
some kind of crime.”
We have defined flagrant misconduct as “statements or
actions that (1) are of an outrageous and insubordinate nature,
(2) compromise the public employer’s ability to accomplish its
mission, or (3) disrupt discipline.” Omaha Police Union Local
101, 274 Neb. at 86, 736 N.W.2d at 388. Although reasonable
minds could differ as to whether Housh’s statements were out-
rageous and insubordinate, given our standard of review, we
conclude that the CIR’s order is supported by the facts, and it
is affirmed.
CoNCLUSIoN
The decision of the CIR is affirmed.
A ffirmed.
H eAvicAn, C.J., not participating.
JAmeS d. vokAl , Appellee , v. nebrASkA AccountAbility
And diScloSure commiSSion, AppellAnt.
759 N.W.2d 75
Filed January 2, 2009. 	No. S-07-1314.
1. Public Officers and Employees: Property: Public Purpose. The Nebraska
Political Accountability and Disclosure Act, Neb. Rev. Stat. §§ 49-1401 to
49-14,141 (Reissue 2004), bars a government official from the use of property
under his or her official care and control for the purpose of campaigning.
2. Statutes: Appeal and Error. The interpretation of statutes presents questions of
law, in connection with which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court below.
3. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court
must determine and give effect to the purpose and intent of the Legislature as
988 	276N eBRASkAR ePoRTS
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www.nebraska.gov/apps-courts-epub/
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ascertained from the entire language of the statute considered in its plain,
ordinary, and popular sense, it being a court’s duty to discover, if possible, the
Legislature’s intent from the language of the statute itself.
4. ____: ____: ____. Under principles of statutory construction, the components
of a series or collection of statutes pertaining to a certain subject matter may be
conjunctively considered and construed to determine the intent of the Legislature
so that different provisions of an act are consistent, harmonious, and sensible.
5. Criminal Law: Statutes. Penal statutes are considered in the context of the
object sought to be accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served.
6. ____: ____. A penal statute will not be applied to situations or parties not fairly
or clearly within its provisions.
7. Statutes: Public Officers and Employees: Intent. The Nebraska Political
Accountability and Disclosure Act was designed to establish requirements for the
financing, disclosure, and reporting of political campaigns and lobbying activi-
ties and provide conflict of interest provisions for ensuring the independence and
impartiality of public officials.
8. Rules of the Supreme Court: Appeal and Error. A party filing a cross-appeal
must set forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.
9. Appeal and Error. errors argued but not assigned will not be considered
on appeal.
Appeal from the District Court for Lancaster County: kAren
b. floWerS, Judge. Affirmed.
Jon Bruning, Attorney General, and Lynn A. Melson for
appellant.
L. Steven Grasz and Henry L. Wiedrich, of Husch, Blackwell
& Sanders, L.L.P., for appellee.
H eAvicAn, c.J., connolly, G errArd, StepHAn, mccormAck ,
and miller-lermAn, JJ.
mccormAck , J.
NATUReo F CASe
[1] The Nebraska Political Accountability and Disclosure
Act (NPADA)1 bars a government official from the use of prop-
erty under his or her official care and control for the purpose of
campaigning.2 The issue in this case is whether a city official
1 Neb. Rev. Stat. §§ 49-1401 to 49-14,141 (Reissue 2004).
2 See § 49-14,101.02.
VokAL v.N eBRASkAACCT . &DISCL oSUReC oMM. 	989
Cite as 276 Neb. 988

violates that prohibition by being filmed in his city office for
the purpose of creating a video advertisement for his reelec-
tion campaign.
FACTS
James D. Vokal was a member of theo maha City Council
running for reelection in 2005. As part of his campaign,
Vokal approved the creation and distribution of a 30-second
video advertisement wherein he was shown at various loca-
tions. Approximately 7 seconds of that video were recorded
in Vokal’s office in the city-county building ino maha. That
portion of the video shows Vokal sitting at his desk typing at a
computer keyboard.
A complaint was filed with the Nebraska Accountability
and Disclosure Commission (the Commission) by the director
of the opposing political party, alleging that by videotaping
part of his campaign advertisement in his government office,
Vokal had violated the provision of the NPADA that prohibits
a public official’s “use of personnel, property, resources, or
funds under his or her official care and control for the purpose
of campaigning for or against the nomination or election of a
candidate.”3 Vokal’s office, desk, and the keyboard are public
property. There was no allegation that Vokal expended public
funds or used public employees or video equipment in making
the video.
At a hearing before the Commission, Vokal alleged that
he did not violate the plain meaning of § 49-14,101.02(1),
because his actions were not “use” under that section. Vokal
also alleged that because there was no lock on the door and
the office was open to the public, the office was not under his
“official care and control” and that his actions fell under an
exception allowing that government facilities be made avail-
able for campaign purposes if the identity of the candidate is
not a factor in granting such access. Finally, Vokal asserted
that to the extent he could be found to have violated the
3 See § 49-14,101.02(1) (now found at § 49-14,101.02(2) (Cum. Supp.
2006)).
990 	276N eBRASkAR ePoRTS

NPADA, the statute was unconstitutionally vague and subject
to arbitrary enforcement.
Vokal presented evidence to the Commission that at the time
he filmed his advertisement, the Legislature’s rules allowed
its members to have photo or video sessions in the legislative
chambers for political races in which the individual legisla-
tor was a candidate for public office. While Vokal’s case was
pending before the Commission, the Legislature amended its
rules to prohibit the use of the legislative chambers for any
campaign-related activities.
The 	Commission 	concluded 	that 	Vokal 	had 	violated
§ 49-14,101.02(1) and fined him $100. The Commission rea-
soned simply that Vokal did “use,” for campaign purposes,
an office, desk, and computer located on public property and
which fell under his official care and control.
Vokal appealed to the district court, which reversed the
Commission’s decision. The district court found that the term
“use” was an ordinary term properly understood by its com-
mon usage and understanding. However, that term had to be
understood in the context of the NPADA. Viewed in this light,
the district court concluded that § 49-14,101.02(1) contained
the implicit requirement that, in order to be a violation, the
conduct must result in a cost to the taxpayers or a financial
gain to the public official. Since neither occurred in this case,
the district court found no violation. The court refused to find
the statute unconstitutional.
The Commission filed an appeal, and Vokal filed a purported
cross-appeal.
ASSIGNMeNTSo Fe RRoR
In summary, the Commission asserts that the district court
erred in determining that Vokal’s use of city property did not
violate § 49-14,101.02. Vokal, on cross-appeal, asserts that the
district court erred in failing to declare § 49-14,101.02 uncon-
stitutionally vague.
STANDARDo F ReVIeW
[2] The interpretation of statutes presents questions of law,
in connection with which an appellate court has an obligation
VokAL v.N eBRASkAACCT . &DISCL oSUReC oMM. 	991
Cite as 276 Neb. 988

to reach an independent conclusion irrespective of the decision
made by the court below.4
ANALYSIS
on appeal, the parties do not dispute that Vokal’s office and
its contents were “property” under his “official care and con-
trol,” as defined by the NPADA, or that Vokal was “campaign-
ing for or against the nomination or election of a candidate”
when he filmed 7 seconds of his campaign advertisement in his
office. The question is whether sitting at his desk touching the
keyboard inside that office was “use” of these resources under
§ 49-14,101.02 and, thus, a violation of the NPADA.
[3,4] In answering that question, we are guided by several
familiar principles of statutory construction. In discerning
the meaning of a statute, we must determine and give effect
to the purpose and intent of the Legislature as ascertained
from the entire language of the statute considered in its plain,
ordinary, and popular sense, it being our duty to discover, if
possible, the Legislature’s intent from the language of the
statute itself.5 Under principles of statutory construction, the
components of a series or collection of statutes pertaining
to a certain subject matter may be conjunctively considered
and construed to determine the intent of the Legislature so
that different provisions of an act are consistent, harmonious,
and sensible.6
[5,6] Moreover, because § 49-14,101.02 is penal in nature,7
it must be strictly construed.8 Penal statutes are considered in
the context of the object sought to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose sought
4 Neb. Account. & Disc. v. Citizens for Resp. Judges, 256 Neb. 95, 588
N.W.2d 807 (1999).
5 Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d
36 (1995).
6 State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273 (2001).
7 See § 49-14,126(1)(c). See, also, Shamberg v. City of Lincoln, 174 Neb.
146, 116 N.W.2d 18 (1962).
8 See Johnson Fruit Co. v. Story, 171 Neb. 310, 106 N.W.2d 182 (1960).
992 	276N eBRASkAR ePoRTS

to be served.9 A penal statute will not be applied to situations
or parties not fairly or clearly within its provisions.10 So, with
those principles in mind, we turn to the specific provisions of
the NPADA.
[7] The NPADA was promulgated in 1976 to set up dis-
closure and accountability procedures concerning campaign
finance.11 Specifically, it was designed to establish require-
ments for the financing, disclosure, and reporting of political
campaigns and lobbying activities and provide conflict of inter-
est provisions for ensuring the independence and impartiality
of public officials.12 Section 49-1402 states in full:
The Legislature finds:
(1) That the public interest in the manner in which
election campaigns are conducted has increased greatly
in recent years, creating a need for additional disclosure
and accountability;
(2) That there is a compelling state interest in ensuring
that the state and local elections are free of corruption
and the appearance of corruption and that this can only
be achieved if (a) the sources of funding of campaigns are
fully disclosed and (b) the use of money in campaigns is
fully disclosed;
(3) That it is essential to the proper operation of demo-
cratic government that public officials and employees be
independent and impartial, that governmental decisions
and policy be made in the proper channels of govern-
mental structure, and that public office or employment
not be used for private gain other than the compensation
provided by law; and
(4) That the attainment of one or more of these ends
is impaired when there exists, or appears to exist, a
9 See State v. Hochstein and Anderson, supra note 6.
10 See, Shamberg v. City of Lincoln, supra note 7; Johnson Fruit Co. v. Story,
supra note 8.
11 Statement of Purpose, L.B. 987, Committee on Miscellaneous Subjects,
84th Leg., 2d Sess. (Feb. 26, 1976); Neb. Account. & Disc. v. Citizens for
Resp. Judges, supra note 4.
12 Id.
VokAL v.N eBRASkAACCT . &DISCL oSUReC oMM. 	993
Cite as 276 Neb. 988

substantial conflict between the private interests of a
public official and his or her duties as such official; and
that although the vast majority of public officials and
employees are dedicated and serve with high integrity,
the public interest requires that the law provide greater
accountability, disclosure, and guidance with respect to
the conduct of public officials and employees.
Section 49-14,101.02, enacted in 2001, falls under the conflicts
of interest section of the act.
The broad term “use,” found in § 49-14,101.02, is not spe-
cifically defined in the NPADA. The Conciseo xford American
Dictionary defines “use” as to “take, hold, or deploy (some-
thing)” and to “take or consume.”13 The Commission acknowl-
edged at oral argument that the office, desk, and computer in
this case were only “props” for the video. There is no allega-
tion that Vokal created or distributed campaign material using
his office or the computer in that office. There is likewise no
evidence that he used the office telephone to solicit votes or
contributions. We question, even under the strict dictionary
definition of “use,” whether the mere fact that items under offi-
cial control that are present in the background as “props” in an
advertisement can be considered as a deployment or consump-
tion of these items.
But, regardless, we do not view the term “use” in a vacuum.
Instead, we must understand it in the context of the statute
where it is found. And we consider the express goal of the
NPADA’s conflict of interest provisions, which is the indepen-
dence and impartiality of public officials. We find the case of
Saefke v. Vande Walle14 illustrative of the meaning of “use” in
this context.
In Saefke, the Supreme Court of North Dakota held that a
judge running for reelection did not violate a corrupt practices
act forbidding the “use” of state property for political purposes
when he was filmed for a campaign advertisement wearing
his judicial robe while seated at the bench in the courtroom.
13 Conciseo xford American Dictionary 1001 (2006).
14 Saefke v. Vande Walle, 279 N.W.2d 415 (N.D. 1979).
994 	276N eBRASkAR ePoRTS

Althoughthe act specified that “state property” included “build -
ings,” the court found the broad construction asserted by the
contestant elector was simply unreasonable.
The court noted that because the statute was penal in
nature, it must be strictly construed and given a reasonable
construction. The court then explained that the primary intent
of the legislature in passing the corrupt practices act was to
prevent the misuse of public funds or a financial misuse of
public property for political purposes. The court found no
evidence of such misuse. Instead, by being filmed wearing
his robe while seated at the bench in the courtroom, the court
found that the judge was simply trying to express to voters
that he already occupied the office to which he sought reelec-
tion. The court observed that it was common practice for
state officials to be shown sitting at their desks in campaign
literature. And it reasoned that given such common practice,
“surely if the legislature intended such ‘use’ of state property
to be a violation . . . , it would have so provided in specific
and clear terms.”15
We find the North Dakota court’s reasoning to be persua-
sive. We simply find nothing in the statute indicating that we
should stretch the meaning of “use” to its broadest possible
application—to a case where nothing was “consumed” and the
actions do not create any impression of a conflict of interest.
A commonsense approach to the term, in the context in which
it is presented, does not warrant such a broad understand-
ing. In fact, the Commission has been unable to persuasively
explain how Vokal’s actions represented any of the problems
the NPADA sought to address. The Commission admits that
a much clearer violation would be present had Vokal, for
instance, actually used a photocopier or other equipment to
produce campaign flyers. While the Commission suggests that
Vokal was utilizing an “unfair advantage” of his incumbency,
as in Saefke, we find that Vokal was merely conveying some-
thing that most of the public already knew and that Vokal had
a right to convey to those who did not. As the Commission
15 Id. at 417.
VokAL v.N eBRASkAACCT . &DISCL oSUReC oMM. 	995
Cite as 276 Neb. 988

concedes, Vokal would not have been sanctioned had he simply
rebroadcast news footage showing him working in his office.
We see no meaningful distinction between such a scenario and
what happened in this case.
We agree with the district court that Vokal’s actions did not
violate § 49-14,101.02. Therefore, we affirm the district court’s
decision reversing the Commission’s judgment.
[8,9] We do not explicitly reach Vokal’s contention that the
district court erred in failing to find § 49-14,101.02 unconsti-
tutional. Not only would it be unnecessary to our disposition
of this appeal, but Vokal also failed to properly set forth any
assignment of error in his cross-appeal. A party filing a cross-
appeal must set forth a separate division of the brief prepared
in the same manner and under the same rules as the brief of
appellant.16 Thus, the cross-appeal section must set forth a
separate title page, a table of contents, a statement of the case,
assigned errors, propositions of law, and a statement of facts.17
In this case, Vokal’s separate section entitled “Brief on Cross-
Appeal” contains nothing more than an argument section. We
have repeatedly said that errors argued but not assigned will not
be considered on appeal.18 Parties wishing to secure appellate
review of their claims for relief must be aware of, and abide
by, the rules of this court and the Nebraska Court of Appeals in
presenting such claims.19
CoNCLUSIoN
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
WriGHt, J., participating on briefs.
16 See Neb. Ct. R. App. P. § 2-109(D)(4). See, also, In re Interest of Natasha
H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999).
17 See § 2-109(D)(1). See, also, Schindler v. Walker, 256 Neb. 767, 592
N.W.2d 912 (1999).
18 See, e.g., Sturzenegger v. Father Flanagan’s Boys’ Home, ante p. 327,
754 N.W.2d 406 (2008); Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28
(2008). See, also, Schindler v. Walker, supra note 17.
19 In re Interest of Natasha H. & Sierra H., supra note 16.
996 	276N eBRASkAR ePoRTS