15-3100-14505-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF VETERANS AFFAIRS

 

Raoul E. Schander,

     Petitioner,

v.

 

Washington County,

     Respondent.

 

 

ORDER DENYING

TEMPORARY RELIEF

          This matter is before the administrative law judge on a motion filed by Raoul Schander, the Petitioner, on November 7, 2000, for payment of back pay and continuing salary and benefits.  He requests payment pending the outcome of this contested case.  Ted Dooley, Attorney at Law, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 appeared on behalf of the Petitioner.  On November 28, 2001, a response was filed by Washington County, the Respondent, opposing the motion.  Annette M. Margarit, Attorney at Law, Frank Madden & Associates, Suite 295, 905 North Highway 169, Plymouth, MN 55441-6444, appeared on behalf of Washington County.

 

          IT IS HEREBY ORDERED:

 

          The Petitioner’s motion is denied.

 

Dated this ____day  of December, 2001.

 

                                                                

/s/ Beverly Jones Heydinger

BEVERLY JONES HEYDINGER

Administrative Law Judge

 

 

 

MEMORANDUM

 

          The issue in the underlying contested case is whether the Petitioner was entitled to a hearing under the Veterans Preference Act before the Respondent terminated his employment. The Respondent claims that the Petitioner is a department head, and, as such, was not entitled to a Veterans Preference Hearing. The Petitioner contends that he is not a department head, as interpreted under the Veterans Preference Act, and was entitled to notice of his right to a hearing.  A hearing will be held to determine this issue.  If it is ultimately determined that the Petitioner was not a department head, he will be reinstated and awarded back pay until he receives proper notice.

 

          However, there is no authority for ordering the Respondent to pay the Petitioner until the issue of his right to notice has been resolved.  The situation here is analogous to the leading case, Young v. City of Duluth, 386 N.W.2d 732 (Minn. 1986).  The Supreme Court held that the failure to notify an employee of the right to request a Veterans Preference hearing was to give the veteran a hearing. In that case, the issue was whether the City of Duluth had abolished the veteran’s position in good faith.  The Court found that back pay, like reinstatement, would be appropriate only if the position was not abolished in good faith.  The analogy here is that first, it must be determined whether the Petitioner was entitled to notice and a hearing.  If he was a department head, there was no such right, and no back pay is appropriate.  See also Taylor v. City of New London, 536 N.W.2d 901 (Minn. App. 1995).  It is premature to award relief before the right to receive it has been determined.