11-3100-13113-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR MINNESOTA DEPARTMENT OF VETERANS AFFAIRS

 

James L. Cornick, Jr., Petitioner, v. City of Orono, Respondent.

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

 

The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on November 30, December 1, December 5, December 6, and December 11, 2000, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The City filed its post-hearing brief and proposed Findings of Fact on February 2, 2001.  The Petitioner filed his post-hearing brief and proposed Findings of Fact on February 16, 2001.  The City filed a reply brief on March 1, 2001, the Petitioner filed a reply brief on March 5, 2001, and the City filed a further reply on March 8, 2001, at which time the record closed. 

Thomas J. Barrett and Craig W. Trepanier, Attorneys at Law, Hinshaw & Culbertson, 222 South Ninth Street, Suite 3100, Minneapolis, MN 55402, appeared on behalf of the City of Orono.  Gregg M. Corwin and Paige M. Fitzgerald, Attorneys at Law, Gregg M. Corwin & Associates, 1660 South Highway 100, 508 East Parkdale Plaza Building, St. Louis Park, MN 55416-1534, appeared on behalf of the Petitioner, James Cornick, Jr., 4305 Chippewa Lane, Orono, Minnesota  55359, during the first four days of the hearing.  By letter dated December 8, 2000, Gregg M. Corwin and Associates Law Office notified the Administrative Law Judge that it was withdrawing from representation of the Petitioner and that the Petitioner would be continuing this matter on his own.  Mr. Cornick appeared on his own behalf on the fifth and final day of the hearing and in the post-hearing submissions.

NOTICE

This Report is a recommendation and not a final decision.  After a review of the record, the Commissioner of the Minnesota Department of Veterans Affairs will make the final decision, in which he may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations contained herein.  Pursuant to Minn. Stat. § 14.61 (2000), the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact Jeffrey Olson, Commissioner, Minnesota Department of Veterans Affairs, Veterans Service Building, 20 West 12^th Street, St. Paul, Minnesota 55155-2079, telephone (651) 297-5828 to ascertain the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUES

1.      Whether Petitioner was removed or demoted from a position of employment within the meaning of the Veterans Preference Act, Minn. Stat. § 197.46, when the City abolished the Corporal job within the Orono Police Department?

2.      If the Petitioner was removed or demoted from a position of employment within the meaning of the Veterans Preference Act, was the removal or demotion the result of a good-faith abolition of the Corporal position for a legitimate purpose or did it constitute a violation of the Act?

Based upon all the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.                  The Petitioner is an honorably discharged veteran within the meaning of the Veteran’s Preference Act.[1]

2.                  On January 1, 1986, Petitioner was hired as a patrol officer for the City of Orono’s Police Department.[2]

3.                  The City of Orono is a political subdivision of the State of Minnesota.

4.                  In 1994, the Orono Police Department was comprised of the Chief of Police, one Lieutenant, and fourteen patrol officers.[3]

5.                  In a June 3, 1994, memo to City Administrator Ronald Moorse, Orono Police Chief Steve Sullivan analyzed various staffing level options for the Police Department.  Chief Sullivan suggested creating three Corporal positions on a temporary basis (18 months) to create first-line supervisors in the Department and to give two or three officers “the experience, training, and exposure to some administrative duties prior to promoting them to a sergeant position.”  Chief Sullivan envisioned that after 18 months the Department would conduct a more formal testing process to appoint two Sergeants.  According to Chief Sullivan, the Sergeant positions would be permanent positions after a probationary time period and, once the Sergeant positions were created and filled, the Corporal positions would be abolished.[4]

6.                  A July 1994 “Task Statement” detailed the job responsibilities for the proposed Corporal job.  The major responsibilities were listed as follows: (1)  supervise and coordinate patrol officers’ activities on a designated shift in a police field setting; (2)  perform patrol officers’ duties as required; (3)  provide on-the-job training and assistance as necessary; (4)  interpret and apply City ordinances and departmental policies and regulations; (5)  prepare reports that identify facts, analyze the situation and make recommendations for action; and (6)  perform any other duties as directed or apparent.[5]

7.                  An undated draft copy of the Corporal “Position Responsibility Description” states:  “This position provides supervision for patrol officers and community service officers assigned to a specific shift in the absence of a police lieutenant, and performs patrol officer duties at all times.  The position has direct accountability to the Lieutenant.  This position is not a statutory supervisor.”[6]

8.                  In a September 15, 1994, memo to City Administrator Moorse, Chief Sullivan discussed the need to restructure the police department to create additional “first line” supervisory positions.  Chief Sullivan analyzed the advantages and disadvantages of maintaining the current structure, creating an “interim structure” of three Corporal jobs, or creating a “long term structure” of two Sergeant positions.  In discussing the advantages of hiring three Corporals on an interim basis, Chief Sullivan stated that such a proposal would give some officers supervisory experience while keeping the organizational chart flat, “since most [Corporal] duties are the same as patrol officers.”[7]  Although Chief Sullivan saw the resulting anxiety among the officers as to who would eventually be appointed Sergeant to be a disadvantage of this interim structure, Chief Sullivan did not believe that any of the officers were ready at that time to be appointed to the permanent position of Sergeant.  Consequently, Chief Sullivan recommended that the City approve the creation of three Corporal assignments on an interim basis (18-24 months).[8]

9.                  In Chief Sullivan’s hand-drawn flow chart reflecting the chain of command in the Police Department under the proposed interim structure, the three Corporal positions were contained within the larger “patrol” classification.[9]  The hand-drawn flow chart reflecting the chain of command under the proposed structure with two Sergeant positions showed the Sergeant positions as separate from and above the patrol officers.[10]  Chief Sullivan envisioned the Corporals as being part of patrol, and the Sergeants as being separate from the patrol officers with a different level of responsibility.[11] 

10.             On September 26, 1994, City Administrator Moorse recommended to the City Council that the supervisory structure of the Police Department include the Chief of Police as the top departmental manager, a Lieutenant as the second in command, and three Corporals as “working supervisors.”[12]  According to the Council meeting minutes, Mr. Moorse explained that it was the Police Department’s intention to establish a Sergeant position in the future “in order to perform supervisory duties not appropriate to the Corporal position.”[13]  Mr. Moorse understood the Corporal assignments to be an interim solution to the lack of supervisory support within the Police Department.[14]

11.             On September 26, 1994, the City Council voted unanimously to approve the Police Department’s proposed restructuring, including the creation of the Corporal assignments.[15] 

12.             In a November 16, 1994, letter to the union representing the patrol officers, City Administrator Moorse addressed several changes to the 1995-1996 Police Officer contract proposed by the union.  Among a number of issues raised, Mr. Moorse addressed the “Corporal assignment” as follows: “The corporal is assigned by and serves at the pleasure of the Police Chief.  The corporal assignment is not a promotion and has no tenure.  The corporal position will receive a pay differential equal to the 2% of the top patrol rate.”[16]

13.             The Petitioner, Bruce Anderson, and Jay Dembouski were the three officers who eventually were assigned to the Corporal positions.  They were selected after submitting letters of interest and interviewing with the Police Chief and City Administrator Moorse.  The Police Department had a party with a cake to honor the three officers assigned the Corporal duties.  The Officers pictures were taken and stripes were added to their uniforms.[17]

14.             The City Council was not asked to approve the selection of the Petitioner or Officers Dembouski and Anderson to the Corporal jobs.  Instead, the Chief of Police and the city Administrator selected them and merely notified the City Council in December, 1994, that they had been selected.[18]

15.             In a memorandum dated December 20, 1994, City Administrator Moorse congratulated Petitioner on his “Corporal assignment.”  There was no mention in the memorandum that this assignment was a promotion or a permanent position.  Nor did the memorandum mention that the assignment had a probationary period.[19]

16.             On January 5, 1995, City Administrator Moorse requested that, effective January 16, 1995, the City Council approve a two percent pay differential for the patrol officers assigned Corporal duties.[20] 

17.             The agenda for the January 9, 1995, City Council meeting lists “pay level for Corporal Assignment” (emphasis added) as a routine item to be enacted upon by motion of the City Council.  The pay differential was unanimously approved.[21]

18.             Although the Corporals received a pay differential, they were not recognized under a separate job classification in the applicable collective bargaining agreement.  The Corporals remained in the same bargaining unit as the patrol officers.[22]

19.             Petitioner assumed his Corporal duties on January 16, 1995.[23]

20.             The Corporals reviewed schedules, made shift assignments, checked police reports, approved vacation and overtime requests, answered policy questions, and participated in performance evaluations.  The Corporals did not have “direct line authority,” i.e., none of the other patrol officers actually reported to the Corporals.  They reported to the Lieutenant or Sergeant above them, and lacked the authority to promote, discipline, transfer or discharge patrol officers.[24]  The Corporals were, however, part of the chain of command and were vested with some authority greater than that held by ordinary patrol officers.[25] 

21.             In the 1995-1996 labor agreement between the City and Law Enforcement Labor Services, Inc. (LELS), the union representing the patrol officers, the pay differential for “corporal assignment” is listed under the section governing wages.  The section states that “[e]mployees assigned to corporal duties will receive a pay differential of 2.75% in 1995 and 3.0% in 1996.”  This is the only reference to the Corporal assignment in the labor agreement between the City and the patrol officers.[26]

22.             In the summer of 1995, Chief Sullivan left his position as Police Chief for the Orono Police Department.[27]

23.             In 1996, Lieutenant Gary Cheswick was promoted to Chief of Police.  As a result of this promotion, there was no longer a Lieutenant position within the Police Department.  Instead, the Police Department was comprised of the Chief, three Corporals and fourteen patrol officers.[28]

24.             Police Chief Cheswick and Petitioner did not get along well, and their relationship became more strained with the passage of time.[29]

25.             In a May 5, 1997, memorandum to City Administrator Moorse, Chief Cheswick proposed creating a Sergeant position within the Police Department.  The Chief noted that, at that time, there were only three shift supervisors titled as Corporals. Because the Corporals provided only limited supervision related primarily to shift work, the Chief requested that a Sergeant position be created to provide assistance in reviewing job performances and handling personnel related problems.[30]

26.             On June 4, 1997, City Administrator Moorse submitted a “Request for Council Action” to the City Council recommending that the Council approve the creation of a Sergeant classification within the Police Department.  Mr. Moorse noted that, given the Corporals’ primary patrol responsibilities, there were no “true supervisory positions” below the Chief in a department of 18 full-time and 3 part-time staff.  Mr. Moorse explained that the Sergeant position would have “substantial supervisory and managerial responsibilities.”[31]

27.             The City Council approved the request to create the Sergeant position and established a separate pay rate for the position.[32]

28.             The Police Department conducted an internal promotion process to select the new Sergeant.  Six candidates, including the Petitioner, expressed an interest in the new Sergeant position.[33]

29.             The testing process for the Sergeant position consisted of an “in-basket” written exercise, an oral interview, and a final interview with Chief Cheswick and City Administrator Moorse.[34]

30.             The Petitioner ranked fifth among the six candidates who applied for the Sergeant position.[35]  The top two candidates for the Sergeant position were Officers Bruce Anderson and James Morowczynski.[36]

31.             The City Administrator and the Police Chief interviewed the top two candidates and selected James Morowczynski for the new Sergeant position.[37] 

32.             On October 21, 1997, City Administrator Moorse submitted a “Request for Council Action” to the City Council recommending that the Council appoint Officer Morowczynski to the Sergeant position.[38]  The City Council voted unanimously to approve the appointment.[39]

33.             Once he was promoted, Sergeant Morowczynski was no longer in the same bargaining unit as the patrol officers and Corporals.[40]

34.             Sergeant Morowczynski had the authority to assign patrol officers, take disciplinary action, adjust grievances and conduct performance evaluations.[41] 

35.             As part of the performance evaluation process, Chief Cheswick and Sergeant Morowczynski would meet and discuss each patrol officer’s job performance. In his 1997-1999 performance evaluations, Petitioner received mostly “fully competent” ratings and some “needs improvement.”  Officers Farniok and Dembouski received mostly “superior” ratings in their 1997-1999 performance evaluations.[42]

36.             Sometime in 1998, Police Chief Cheswick instructed Records Clerk Carol Hansing to review Petitioner’s police reports for errors, and to give Chief Cheswick a copy of any reports containing errors.  Ms. Hansing was never told to look over any other police officer’s reports, but was only instructed to check Petitioner’s reports.[43]

37.             In a December 30, 1998, memo to City Administrator Moorse, Chief Cheswick outlined his goals and objectives for 1999 relating to Police Department staffing.  Under the heading “Corporals,” Chief Cheswick suggested evaluating the current structure of the police department and considering whether changes were needed.  The Chief had already had a number of discussions with Sergeant Morowczynski regarding Department staffing and the problems associated with the Corporals belonging to the patrol officers’ bargaining unit.  Both Chief Cheswick and Sergeant Morowczynski wanted to replace the Corporal assignments with Sergeant positions.[44]

38.             During the last few years, Petitioner has filed at least two grievances on his own behalf regarding unpaid compensatory time and the lack of a bicycle patrol uniform.  In addition, LELS filed a grievance on behalf of the Corporals regarding Chief Cheswick’s decision to take away the Corporals’ bidding rights on shift assignments.[45]

39.             In the 1999-2000 labor agreement between the City and the patrol officers’ union (LELS), the pay differential for the “corporal assignment” is listed under the section governing wages.  The section states that “[e]mployees assigned to corporal duties will receive a pay differential of 3.0%.”  This is the only reference to the Corporal assignment within the labor agreement between the City and the patrol officers.[46]

40.             On February 11, 1999, Chief Cheswick sent a memo to all personnel outlining the chain of command within the Police Department.  According to this memo, Corporals were above investigators and patrol officers and below the Police Chief and Sergeant in the chain of command.  The memo explained that the chain of command reflected the line of authority for handling concerns within the Police Department.[47]

41.             In a September 23, 1999 memo, Sergeant Morowczynski directed Petitioner to meet with him and Chief Cheswick on September 29, 1999, regarding Petitioner’s property room assignment.  In response to the memo, Petitioner wrote Sergeant Morowczynski a note asking if this meeting could result in discipline or suspension.  Sergeant Morowczynski did not respond to Petitioner’s question.[48]

42.             In a September 27, 1999 memo to Petitioner, Chief Cheswick informed Petitioner that they would discuss Petitioner’s property room assignment and questions the Chief had regarding property storage and a recent DWI report at the September 29^th meeting.  In response to this memo, Petitioner wrote a note to the Chief asking whether this meeting could result in discipline or suspension.  Chief Cheswick did not respond to Petitioner’s question.[49]

43.             Petitioner arrived at the September 29, 1999 meeting with his union steward, Kurt Erickson.  Chief Cheswick ordered Mr. Erickson to leave and assured Petitioner that no discipline would be involved.  After Mr. Erickson left, however, Chief Cheswick yelled at the Petitioner for not being a “team player” and stated that he was placing the Petitioner on probation.[50] 

44.             Sergeant Morowczynski summarized the September 29^th meeting in a memo to the Petitioner dated September 30, 1999.  In this memo, Sergeant Morowczynski stated that Petitioner was being placed on probation for poor performance effective September 29, 1999, until December 1, 1999.  Sergeant Morowczynski further stated that, during the probationary period, Petitioner was expected to complete all tasks included in the Corporal job description and to pay special attention to preparing and reviewing police reports, monitoring morale, and promoting open communication between officers and administration.  In addition, Petitioner was reassigned from property room duty to other duties “yet to be determined” effective September 29, 1999.[51] 

45.             Petitioner faxed the memo he received from Sergeant Morowczynski to Dennis Kiesow, the “business agent” for the patrol officers’ union (LELS).  After reviewing the memo, Mr. Kiesow called Police Chief Cheswick and explained to him that the labor agreement between the City and the patrol officers did not provide for employees to be placed on probation unless they were newly hired or recently promoted.  Chief Cheswick told Mr. Kiesow that Petitioner was not a “team player.”  Chief Cheswick told Mr. Kiesow that, if he could not put Petitioner on probation, he would have to handle the situation in a different way.  Thereafter, Petitioner was informed that his probation was lifted.[52] 

46.             According to an October 1, 1999, “Task Statement,” the major responsibilities of a Corporal are to: (1)  perform all patrol officer’s duties as required; (2)  supervise and coordinate patrol officers’ activities on a designated shift; (3)  provide on-the-job training; (4)  interpret and apply City ordinances and department policies and regulations; (5)  prepare reports and make recommendations for action; and (6)  perform any other duty as directed.  The Task Statement indicated that Corporal supervisory responsibilities included:  reviewing assignments and special problem areas of patrol; directing patrol officers to handle calls and write reports; reading and approving patrol officers’ reports; authorizing requests for leave received during the shift; arranging for relief and authorizing overtime; assisting officers on the scene of calls as needed; receiving citizen complaints; and monitoring morale.[53]

47.             According to the “Position Responsibility Description” attached to the October 1, 1999, Task Statement, the Corporal position “provides supervision for patrol officers and community service officers assigned to a specific shift in the absence of a police sergeant, and performs patrol officer duties at all times.  This position has direct accountability to the Sergeant.  This position is not a statutory supervisor.”[54] 

48.             In a April 21, 2000, memorandum to City Administrator Moorse, Chief Cheswick requested approval to eliminate the Corporal positions effective May 15, 2000, and to hire two officers to serve as acting Sergeants until a promotion testing process could be undertaken.  The Chief explained that he found the current Police Department structure to be problematic.  According to the Chief, the Corporals could not be given duties that might involve a conflict between management and the union because the Corporals belonged to the same bargaining unit as the patrol officers.  As a result, Corporals were unable to assist with grievances or performance evaluations.[55]   

49.             In an April 26, 2000, memorandum to the Mayor and City Council, City Administrator Moorse discussed the need to reorganize the Police Department.  Mr. Moorse expressed his support for Chief Cheswick’s recommendation that the three Corporal assignments be eliminated in favor of two Sergeant positions.[56]

50.             At a City Council “work session” on April 27, 2000, Chief Cheswick and Sergeant Morowczynski discussed the proposed reorganization of the Police Department.  Chief Cheswick and Sergeant Morowczynski explained that the Police Department lacked true “first line supervisors” because the Corporals did not have authority to carry out discipline or to conduct performance evaluations.  In addition, Chief Cheswick and Sergeant Morowczynski pointed out that it was difficult for Corporals to handle performance issues involving patrol officers because Corporals belonged to the same bargaining unit as the patrol officers.  The City Council unanimously supported the proposed reorganization.[57]

51.             It was the intent of former Police Chief Sullivan and City Administrator Moorse that the Corporal assignments be an interim solution to a lack of supervisory support within the Police Department.  Police Chief Sullivan envisioned the Corporal assignment would last 18 to 24 months before permanent Sergeant positions could be created and filled.  In fact, the Corporal assignments remained in effect for about 5½ years.  Part of the reason for the delay in setting up the Sergeant selection process was the disordered state of the Police Department after Chief Sullivan’s departure in 1995.[58]

52.             On May 1, 2000, Chief Cheswick and Sergeant Morowczynski met with Corporals Anderson, Dembouski and the Petitioner and informed them that the Corporal positions were being eliminated effective May 15, 2000.  The Chief told the Corporals that their 3% pay differential would be discontinued at that time.  The Chief further explained that two Sergeant positions were being created and that a Sergeant promotional exam would be forthcoming.[59] 

53.             In a “Request for Council Action” memorandum dated May 5, 2000, City Administrator Moorse recommended that the Corporal assignments be abolished and two additional Sergeant positions be created.[60]

54.             On May 8, 2000, the City Council considered the proposed Police Department restructuring.  Council member Robert Sansevere expressed reluctance to create new positions prior to the hiring of a new Police Chief.  In the end, however, the Council voted unanimously to approve the elimination of the Corporal positions effective May 15, 2000, and to approve the creation of two additional Sergeant positions.[61] 

55.             The City enlisted the assistance of Personnel Decisions Inc. (“PDI”), an outside consulting firm, to develop a formal testing process for filling the Sergeant positions.  The selection process was made up of four components: (1)  a writing instrument to determine the candidate’s background and experience; (2)  a “promotability index” in which Chief Cheswick and Sergeant Morowczynski rated the candidate’s judgment, problem solving and decision making, interpersonal skills and leadership, and personal maturity and motivation; (3)  an “in-basket” exercise to measure the candidate’s problem-solving skills; and (4)  an oral interview with a panel of outside police chiefs.  At the conclusion of the process, Chief Cheswick and City Administrator Moorse expected to conduct a final interview with the top c1andidates.[62]

56.             On May 18, 2000, Chief Cheswick issued a memo to all police officers explaining the anticipated Sergeant promotional process. The memorandum indicated that, following the scoring of the first four exercises described above, the top candidates would be scheduled to have a management interview with Martin McAllister and Associates (a psychological firm), and a final interview of three to five candidates would be conducted by the City Administrator and the Chief of Police.  The City ultimately decided that the interview with McAllister was unnecessary due to the involvement of PDI and the small candidate pool.[63]

57.             On June 2, 2000, Chief Cheswick issued a memo to all police officers announcing that the Sergeant positions’ pay rate would be between $25.16 and $26.49 per hour.[64] 

58.             Only four police officers applied for the Sergeant position:  Petitioner, Bruce Anderson, Correy Farniok, and Jay Dembouski.[65]

59.             The rankings for each officer in each component of the promotional process were as follows:

a.           In the background, experience and inventory component, the rankings were: Anderson – first; Petitioner – second; Farniok – third; and Dembouski – fourth.

b.           In the “promotability index” component, the rankings were: Dembouski – first; Farniok – second; Petitioner – third; and Anderson – fourth.

c.           In the “in-basket” exercise, the rankings were: Petitioner – first; Farniok – second; Dembouski – third; and Anderson – fourth.

d.           In the interview with the outside police chiefs, the rankings were: Farniok – first; Anderson – second; Dembouski – third; and Petitioner – fourth.[66]

60.             The “promotability index” portion of the Sergeant promotional process was performed by Chief Cheswick and Sergeant Morowczynski.  There was a significant disparity between the scores Chief Cheswick and Sergeant Morowczynski gave to the top two candidates (Officers Dembouski and Farniok) and the scores they gave to the bottom two candidates (Petitioner and Officer Anderson).  Specifically, the top two candidates received scores of 97.13 and 92.75, while the bottom two candidates received scores of 65.75 and 62.75.  Petitioner’s “promotability index” score was 65.75.[67]

61.             Prior to the final interview with Chief Cheswick and Administrator Moorse, the candidates’ total scores were as follows: Officer Dembouski - 76.29; Officer Farniok – 73.08; Petitioner – 72.14; and Officer Anderson – 63.53.  These scores reflect additional Veterans Preference points given to the Petitioner and Officer Dembouski, who were the only veterans among the candidates.[68]

62.             Because only a limited number of candidates applied for the Sergeant position, the Chief of Police and the City Administrator decided to conduct a final interview of all of the candidates regardless of the scores they attained during the PDI process.[69]

63.             The final interview was conducted on June 30, 2000.  During the interview, a set of standardized questions was asked of each candidate by the Chief of Police and the City Administrator.  Upon completion of the interviews, the Chief and the City Administrator independently evaluated the candidates.  Although their assigned scores were not identical, both the Chief and the City Administrator ranked the candidates in the same order:  Dembouski (first), Farniok (second), Anderson (third), and Petitioner (fourth).[70]

64.             On July 5, 2000, Chief Cheswick and City Administrator Moorse submitted a written Request for Council Action to the City Council recommending that the Council appoint Officers Dembouski and Farniok to the positions of Sergeant.[71] 

65.             Approval of the appointments by the City Council was necessary because the City is the ultimate hiring authority.  Such approval was not needed for the Corporal assignments because the assignments were not permanent positions.[72]

66.             On July 10, 2000, the City Council considered the recommendation of City Administrator Moorse that Officers Dembouski and Farniok be appointed to the newly-created Sergeant positions.  City Council members Barbara Peterson and Robert Sansevere voted against appointing Officers Dembouski and Farniok to the Sergeant positions.  Council members Peterson and Sansevere both expressed concern over the disparity in the PDI scores between the top two and bottom two candidates.  And Council member Sansevere maintained that the new Chief of Police should make the Sergeant appointments.  The City Council voted 3 to 2 to approve the appointment of Officers Dembouski and Farniok to the Sergeant positions.[73] 

67.             Following the City Council’s approval, Chief Cheswick announced in a memorandum to all police officers that Officers Dembouski and Farniok were appointed Sergeants effective July 11, 2000.[74]

68.             Officer Farniok is not a veteran.  At the time of his appointment to the Sergeant position, Officer Farniok had been with the Orono Police Department approximately four years, with one year part-time.[75]  Officer Dembouski is a veteran and at the time of his appointment to the Sergeant position he had been with the Orono Police Department approximately 10 years.[76]

69.             Once Officers Dembouski and Farniok were promoted to the Sergeant positions, they were no longer members of the patrol officers’ bargaining unit.[77]

70.             The duties of the newly created Sergeant positions are similar to those of the Corporal, except the Sergeants have the authority to take disciplinary action, conduct performance evaluations, and adjust grievances.[78]  In addition, Sergeants may supervise anyone in the Department whether they are on or off duty, while Corporals could only supervise while they were working on their shifts (unless a special assignment were made to them).[79]

71.             According to the Sergeant position description that was posted at the beginning of the selection process, the Sergeants’ major duties are to:  (1)  delegate and assign work assignments; (2)  provide guidance and encourage patrol officers’ development; (3)  patrol assigned shifts to make sure assignments are carried out; (4)  evaluate patrol officers’ performances; (5)  check log sheets and reports prepared by patrol officers; (6)  prepare summary reports on investigations; (7)  conduct breathalyzer tests; (8)  oversee the booking of arrested persons; (9)  oversee the interrogation of suspects and witnesses; (10)  follow through on special assignments; (11)  update the Chief on any developments; and (12)  perform other duties and responsibilities as assigned.[80]

72.             After the Sergeant selection process was completed, Cy Smythe, a labor relations consultant for the City, faxed to Chief Cheswick a draft of a paragraph to be added to the Sergeant job description detailing the specific authority of the position.  The proposed paragraph listed the Sergeants’ authority to “assign and direct the work of subordinates, discipline and suspend subordinates for just cause, reward and transfer subordinates, and adjust grievances of subordinates.”[81]

73.             After Officers Dembouski and Farniok were selected for the Sergeant positions, and in response to Mr. Smythe’s recommendation, the following authority was added to the Sergeant position description:  “Possesses the authority to assign and direct the work of subordinates; discipline and suspend subordinates for just cause; reward and transfer subordinates; and adjust grievances of subordinates.”[82]

74.             LELS has filed grievances against the Police Department over the elimination of the Corporal positions and the Corporals’ reduction in pay.  These grievances are pending.[83]

75.             On July 27, 2000, Petitioner filed a petition for relief under the Veterans Preference Act with the Department of Veterans Affairs.[84]

76.             Petitioner remains a patrol police officer with the Orono Police Department, but receives lower compensation than he previously received as Corporal.

77.             Throughout his tenure as a patrol officer and Corporal with the Orono Police Department, Petitioner has received several letters of commendation for timely, professional, and courageous work.[85]

CONCLUSIONS

1.        The Administrative Law Judge and the Commissioner of Veterans Affairs have jurisdiction in this matter pursuant to Minnesota Statutes §§ 14.50 and 197.481 (2000). 

2.        The City has complied with all relevant substantive and procedural requirements of law and rule including providing proper notice of the hearing in this matter.

3.        The Petitioner is a veteran within the meaning of Minn. Stat. § 197.46 and 197.447 (2000).

4.        The City of Orono is a political subdivision of the State of Minnesota within the meaning of Minn. Stat. § 197.46 (2000).

5.        Minn. Stat. § 197.46 prohibits the removal of a veteran from public employment except for incompetency or misconduct shown after a hearing, upon due notice and upon stated charges in writing. 

6.        The Petitioner has the burden of proof to establish by a preponderance of the evidence that he is a veteran within the meaning of the Veteran’s Preference Act who was removed from his position of employment without a hearing in violation of Minn. Stat. § 197.46.  However, the City’s claim that the Petitioner’s Corporal job was abolished in good faith is an affirmative defense on which the City has the burden of proof.[86]

7.         The Corporal assignment was merely a temporary assignment and was not an appointed “position” within the meaning of Minn. Stat. § 197.46.

8.        The Petitioner has failed to establish by a preponderance of the evidence that he was removed or demoted from a position of employment in violation of Minn. Stat. § 197.46.[87]

9.         Even if the Corporal assignment was a “position” within the meaning of the Veterans Preference Act, the requirement of providing a veteran with a hearing to establish incompetency or misconduct before removing or demoting him does not apply if the position was eliminated in good faith for some legitimate purpose, such as when it is part of a good faith reorganization or restructuring.[88]

10.      The City has established by a preponderance of the evidence that its decision to restructure the Orono Police Department by eliminating the Corporal assignments and instituting Sergeant positions was made in good faith and for a legitimate purpose.

11.     The City did not violate the Veterans Preference Act by virtue of its design of the selection process for the Sergeant positions or its decision to select a less senior non-veteran rather than the Petitioner for the new Sergeant positions.

12.   These Conclusions are made for the reasons set out in the attached Memorandum, which is incorporated by reference in these Conclusions.

Based on the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED:

That the Commissioner of Veterans Affairs dismiss the petition of James L. Cornick, Jr.

 

Dated:  April 9, 2001.                                        

BARBARA L. NEILSON

Administrative Law Judge

Reported: Transcript Prepared by Kirby A. Kennedy & Associates, Court Reporters

(5 volumes).

 

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

MEMORANDUM

The Petitioner is a police officer with the Orono Police Department and an honorably discharged veteran.  On July 27, 2000, Petitioner filed a petition with the Department of Veterans Affairs alleging that his Corporal position was eliminated in a departmental reorganization; he was demoted to patrol officer; and his pay was reduced without being advised of his veterans preference rights.  The Petitioner further alleged that a new position of Sergeant was created that had all of the same duties as the Corporal position; he was not offered the new position; but the position instead was given to a non-veteran patrol officer with less seniority.  The Petitioner contends that the Corporal position was not abolished in good faith.  Rather, Petitioner maintains that the Chief of Police abolished the Corporal position in retaliation for union grievances filed by Petitioner. 

The Veterans Preference Act provides in pertinent part:

No person holding a position by appointment or employment in the several counties, cities, towns, school districts and all other political subdivisions in the state, who is a veteran separated from the military service under honorable conditions, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.[89]

There is no dispute that Petitioner was not given notice of a right to a hearing on the elimination of his Corporal assignment.  The issues presented in this contested case proceeding are whether the job of Corporal that was formerly held by Petitioner was in fact a “position” within the meaning of the Veterans Preference Act and, if so, whether that position was abolished by the City in good faith.

The Petitioner has the burden of proof to establish by a preponderance of the evidence that he is a veteran within the meaning of the Veteran’s Preference Act who was removed from his position of employment without a hearing in violation of Minn. Stat. § 197.46.  However, the City’s claim that the Petitioner’s Corporal job was abolished in good faith is an affirmative defense on which the City has the burden of proof.  In support of his claim that the Corporal assignment was a position within the meaning of the VPA, Petitioner points out that: (1)  an interview process was used to select the Corporals; (2)  the Police Department threw a party for the three candidates selected and added stripes to their uniforms; (3)  Petitioner and the other two officers selected received a pay increase; (4)  the three Corporals were referred to as “first-line supervisors”, (5)  the Corporals supervised patrol officers on designated shifts; (6)  Corporals were listed above patrol officers in the Department’s “chain of command” ranking; and (7)  the Corporal positions remained in place for 5 ½ years. 

Based on all the evidence presented, however, the Administrative Law Judge concludes that the record supports the City’s contention that the Corporal duties were an assignment given to Petitioner and two other patrol officers and not a position within the meaning of the Veterans Preference Act.  The evidence presented at the hearing demonstrated that, from its inception in 1994, the assignment of Corporal duties was intended to be a temporary solution to the lack of supervisory support within the Orono Police Department.  It was originally anticipated that the assignments would last only 18 to 24 months until patrol officers gained more experience, a Sergeant selection process could be set up, and two permanent Sergeant positions filled.  Police Chief Sullivan, who originally proposed creating the Corporal assignments, explained in a memo to City Administrator Moorse that, once the Sergeant positions were created and filled, the Corporal assignments would be eliminated.  And the City Administrator notified the patrol officers’ bargaining representative in November 1994 that “the corporal is assigned by and serves at the pleasure of the Police Chief.  The corporal assignment is not a promotion and has no tenure.”[90]

The Veterans Preference Act does not apply to employment that is occasional or temporary in nature.[91]  The fact that it was not necessary for the City Council to approve the Police Chief’s selection of Corporals is further evidence that the Corporal assignments were not considered permanent positions.  As the ultimate hiring authority for the City, the City Council is required to approve appointments to permanent positions.  Accordingly, and in contrast to the Corporal assignments, the City Council approved both the appointment of Officer Morowczynski to Sergeant in 1997 and the appointments of Officers Dembouski and Farniok to the Sergeant positions in 2000. The evidence presented established that the Corporal assignments were never intended to be permanent positions.  And the fact that the assignments lasted well beyond the anticipated 24 months does not change this outcome.  Petitioner’s contention notwithstanding, the Corporal assignments were not transformed into permanent positions due to the delay in establishing and filling the Sergeant positions. 

The facts of this case are very similar to the facts presented in a prior contested case matter entitled Markuson and Coudron v. City of Minnetonka.[92]  In that case, two patrol officers for the Minnetonka Police Department claimed that their removal from the job of Corporal violated the Veterans Preference Act.  The Corporal job was a non-classified, supervisory assignment that involved additional responsibilities and offered a nominal monthly pay differential.  The Corporal assignment involved in Markuson was initiated in 1977 out of a need for more mid-line supervision on the force.  Corporals had the authority to assign work, provide direction, and recommend commendations.  Corporals could also recommend disciplinary action, but they lacked the authority to hire, fire, promote, take disciplinary action or adjust grievances.  The Corporals’ supervisory functions were subject to the direction of the Sergeant.  In addition, the Corporals remained in the same bargaining unit as non-supervisory police officers, while the Sergeants belonged to a separate supervisory bargaining unit.  In 1989, language was added to the police officer contract providing that “[a]ssignments are not permanent or promotional and may be revoked at the sole discretion of the Chief of Police.”  This language specifically applied to the assignments of Corporal, Investigator, Canine Officer, and a few others.

Judge Erickson found in Markuson that the removal of the officers from the Corporal assignments was not a discharge from an appointed position of employment that was protected by the Veterans Preference Act.  He determined that the Corporal assignment was just one of the assigned functions of a police officer and not a separate job classification.  Judge Erickson emphasized that the Corporal job was always treated as an assignment within the Police Department and that only an interview and not a civil service examination was required to be selected for the job.  Consequently, it was concluded in Markuson that no removal occurred within the meaning of the Act when the petitioners in that case were reassigned to regular Police Officer functions.

The Administrative Law Judge finds the reasoning in Markuson to be persuasive.  Like Markuson, the Corporal job in the Orono Police Department has always been viewed as a temporary assignment.  The Corporals remained in the same job classification and bargaining unit as the patrol officers, and were expected to continue to perform patrol officers duties.  And, while the Corporals did have some supervisory authority, they lacked the authority to promote, transfer, discipline, or conduct performance evaluations.  Finally, the Corporals were not selected based on a formal examination process.  The Administrative Law Judge concludes that Petitioner was not removed from a position or employment within the meaning of the Veterans Preference Act.  Although Petitioner’s Corporal duties were reassigned, the Petitioner retained his permanent position of employment -- that of police officer.

Even if it is assumed for the sake of argument that the Corporal assignment was a position of employment within the meaning of the Veterans Preference Act, the Administrative Law Judge concludes that the City has established by a preponderance of the evidence that it abolished the Corporal positions as part of a good faith and well-substantiated restructuring plan.  The Veterans Preference Act does not preclude a local government’s reasonable exercise of control over its administrative affairs.[93]  The evidence presented amply supports the City’s contention that the Corporal assignments were always intended to be a short-term solution to the lack of supervisory structure in the Police Department.  The record further demonstrated that it was the long-term goal of the Police Department to create and fill two permanent Sergeant positions and that all patrol officers would be free to apply for the Sergeant positions, not just the Corporals.  And even though many of the duties previously performed by the Corporals are now performed by the Sergeants, the Sergeant position is fundamentally different from the Corporal assignment in its level of authority and responsibility.  Finally, the fact that Police Chief Cheswick and the Petitioner had a strained relationship is not enough to establish bad faith on the part of the City in eliminating the Corporal assignments and in not selecting Petitioner for a Sergeant position.  The evidence presented demonstrates that the plan to restructure the Police Department was contemplated for many years and was ultimately reviewed and approved by the City Administrator and the City Council.  The City’s decision to eliminate the Corporal assignments and to create Sergeant positions was a reasonable exercise of its administrative discretion.  Because the City’s planning to eliminate the Corporal assignments preceded Chief Cheswick’s attempt to place the Petitioner on probation and the Petitioner’s filing of grievances, the Administrative Law Judge is not persuaded that Chief Cheswick’s recommendation to eliminate the Corporal positions was motivated by his difficult relationship with the Petitioner. 

Moreover, there has been no showing of bad faith on the part of the City Administrator or the individual members of the City Council in designing and participating in the selection process or making or approving the ultimate selection decisions.  The Administrative Law Judge is not persuaded that Officers Dembouski and Farniok were promised the Sergeant job in advance.  In addition, there was evidence that the decision to drop the McAllister interview from the process was supported by legitimate considerations and did not reflect an attempt to disadvantage the Petitioner in any way.  While the promotability index reflected a significant disparity between the top two candidates and the bottom two candidates, the index was based in part upon Sergeant Morowczynski’s rating, which mirrored that of the Chief.  The Petitioner did not allege that Sergeant Morowczynski was biased against him, and the Sergeant testified that he considers the Petitioner a friend.  Similarly, the City Administrator independently ranked the candidates in the same order as the Chief following the final interview, and there was no evidence that the City Administrator was biased against the Petitioner.  The outside chiefs also ranked the Petitioner fourth of the four candidates.  It is also significant that the successful candidates received mostly superior ratings on their 1997-99 performance evaluations.  Thus, while the Petitioner is a well-qualified officer who has received numerous commendations, the Administrative Law Judge is not able to conclude that the City’s decision to select others for the Sergeant position reflects bad faith.

The City was not obligated under the Veterans Preference Act to promote Petitioner to a Sergeant position.  The Petitioner appropriately was given an opportunity to participate in the selection process and was given veterans preference points in that process due to his status as a veteran.  The Veterans Preference Act does not require that veterans be hired, but merely that they receive appropriate consideration and preference points.  As the Court of Appeals has noted in an analogous situation, “veteran’s preference credit may increase the chance that a veteran will receive an interview, but the appointing authority may hire any certified applicant.”[94]

Based on all of the evidence presented, the Administrative Law Judge concludes that the Petitioner was not removed from a position of employment in violation of the Veterans Preference Act.  The ALJ recommends that the Commissioner of Veterans Affairs dismiss the petition for relief filed by the Petitioner.

B.L.N.