Nebraska Supreme Court Rules on Fill the Boot Case

Today’s Burning Question: Is it illegal for firefighters to collect money for a charity during their on-duty hours?

Answer: In Nebraska it is now illegal for on-duty firefighters to collect money for charities such as the MDA… well… at least that is what some of the headlines say. But is that what the court really said?

The real answer is somewhat complicated – because the case is somewhat complicated – so please bear with me.

The story began in 2009 when the Omaha City Council (playing the role of Scrooge in Scene I) passed an ordinance that prohibited on-duty city employees (namely the firefighters… playing the role of Bob Cratchit) from soliciting money from the public for charitable causes like the Muscular Dystrophy Association (playing the role of Tiny Tim).

The council then sought an advisory opinion from the Nebraska Accountability and Disclosure Commission declaring the practice of firefighters soliciting funds for charities such as the “Fill-The-Boot Drive” for the MDA to be illegal. The Commission (Scrooge in Scene II) obliged, ruling that such fundraising violated Nebraska Revised Statutes § 49-14,101.01, which states

A public official or public employee shall not use or authorize the use of personnel, resources, property or funds under his or her official care and control other than in accordance with prescribed constitutional, statutory and regulatory procedures…

Here is the Commission’s ruling, issued on March 12, 2010

In anticipation of the annual Labor Day Jerry Lewis Telethon for MDA, the Nebraska Professional Firefighters Association filed suit on August 19, 2010 in Lancaster County District Court to challenge the Commission’s advisory opinion, and order it to be withdrawn. The District Court (Scrooge in Scene III) dismissed the case finding it lacked jurisdiction, and the Nebraska Court of Appeals (Scrooge in Scene IV) affirmed on slightly different grounds. The case went to the Nebraska Supreme Court who issued their ruling last Friday.

Here is a copy: Nebraska Fill the Boot Case

The court essentially concluded that while the District Court and Court of Appeals were right that the Firefighters had to lose, they were not entirely right with their reasoning. The real grounds for the Firefighters to lose was that an advisory opinion was not a “final decision”, and only final decisions can be appealed. Said another way – the Firefighters had not exhausted their administrative remedies. They had the opportunity to challenge the advisory opinion before the Commission. Only after the Commission had ruled on their specific challenge would there be a final decision from which the Firefighters could lawfully appeal.

So where does that leave firefighters in Nebraska who want to help Jerry’s Kids? While the headlines indicate that the Nebraska Supreme Court was the biggest Scrooge of all, if you read the case it certainly is not as bad as many make it sound. The Nebraska Supreme Court did not “outlaw” fill-the-boot drives – it just ruled that the advisory opinion needs to be challenged via a different route. The Firefighters can make that challenge directly to the Commission if they so choose. They just cannot contest an advisory opinion in court.

In the meantime, Jerry Lewis has cut back substantially in the telethon. In 2011 for the first time he turned over the reins to others to host and the show was trimmed back from over 20 hours down to 6.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Harold C. Cohen


    So, it appears that the NSC rules that the lower courts erred by providing a ruling on something that did not have the force of law.

    Would this mean that if the union exhausts its administrative remedies, or a final decision is published, that the union could refile the case at the district court level.

    Since there was essentially no case, then rex judicata would not prohibit a refiling (provided other legal requirements were met).

  • Dr. Cohen

    Your conclusion is correct – there is nothing that would prohibit the union from taking the case back to the Commission – and asking for a ruling (as opposed to an advisory opinion).

    Assuming the Commission issues a ruling that is consistent with their advisory opinion (highly likely) the union could appeal to the district court.

    That would give the district court the opportunity to decide the case based on the “merits”… whereas they previously decided it based on whether they had “jurisdiction” to hear the case.

    It no doubt seems like a waste of time – but the principle that underlies “exhaustion of remedies” and the need for a “final decision” in order to appeal are foundational principles in the law.

    Also – I am not sure the district court erred in the NSC’s eyes – they just decided the cases on slightly different grounds. The end result was the same.


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