OAH Docket No. 6-3100-15240-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF VETERANS AFFAIRS

 

 

Susan LeGare-Gulden,                         Petitioner,   vs.   City of Rochester,                         Respondent.

RECOMMENDED ORDER GRANTING CITY’S MOTION FOR SUMMARY DISPOSITION

 

 

          The above-entitled matter came before Administrative Law Judge Allan W. Klein on a motion by the City of Rochester for summary disposition.  The parties agreed to stipulated facts and agreed that the only issues were questions of law.  No hearing was held.

 

          Mark G. Stephenson, Stephenson and Sutcliffe, P.A., 1635 Greenview Drive S.W., Rochester, Minnesota 55902, appeared on behalf of the Petitioner, Susan LeGare-Gulden (hereinafter “the Petitioner” or “the Veteran”).  Patricia Y. Beety, Attorney at Law, 145 University Avenue W., Saint Paul, MN 55103-2044, appeared on behalf of the Respondent, City of Rochester (hereinafter “the City”).  The final briefs of the parties were received on March 31, 2003 and they constituted the final filings in this matter.

 

 

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 (2002), 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 L. Olson, Commissioner, Minnesota Department of Veterans Affairs, Veterans Service Building – Second Floor, St. Paul, Minnesota 55155-2079, to ascertain the procedure for filing exceptions or presenting argument.

         

 

STATEMENT OF ISSUES

 

          The issues to be determined in this proceeding are: (1) whether the hiring process used by the City to fill a full-time Manager of Inspection Services position failed to properly apply veterans preference points as required by the Veterans Preference Act and, (2) whether Petitioner received proper notification under that statute.

 

         

          For purposes of this Motion, the Administrative Law Judge assumes the truth of the following:

 

 

FINDINGS OF FACT

 

1.               Ms. LeGare-Gulden served in the United States Navy on active duty from 1974 to June 13, 1978.[1]  She received an honorable discharge from the Marine Corps.

2.               The City currently employs Ms. LeGare-Gulden as a housing inspector.  She began working for the City in the Building Safety Department in 1991. [2]

3.               The City is a political subdivision of the State of Minnesota, governed by an elected City Council that has the exclusive power to hire, fire, and lay off employees.  The City has a Human Resources Department (hereinafter “HR”) that is responsible for announcing open positions.  HR also conducts the testing, interviewing, and assessment of candidates for these positions.

4.               On July 20, 2002, HR announced the opening of the full-time position of Manager of Housing Inspection Services.[3]  Ms. LeGare-Gulden submitted an application for this position, indicating that she was a disabled veteran and requesting the application of veterans preference points to her examination scores.

5.               HR received twenty applications for the position.[4]  These applications were assessed using an Education and Experience Rating Form to assign a score to each applicant.[5]  The scoring was done to a 100-point scale.  A passing score was 70 points.  HR added veterans preference points to the scores obtained in this assessment.[6]  Ms. LeGare-Gulden scored 97 using the Education and Experience Rating Form, with the application of 10 points due to her status as a disabled veteran.[7]

6.               From the sixteen eligible candidates, HR offered interviews to the six highest scoring applicants.  Ms. LeGare-Gulden was one of the applicants interviewed.  The examination scores of the applicants interviewed ranged from 87 to 97. 

7.               A four-member panel conducted the interviews of the six applicants who scored the highest in the examination.  Each of the interviewers used an Interview Rating Form to structure the assessment of each applicant.  The Interview Rating Form identified twelve criteria to be assessed.  These criteria are Educational Qualifications, Experience Qualifications, Commitment, Past Work History, Interest, Adaptability, Dependability, Conscientiousness, Expression, Interpersonal Relations, Skills, and Job Knowledge.[8]  The first two criteria could be scored either zero (does not meet) or one (meets).   The remaining ten criteria could be scored one (inadequate or low level), two (adequate), or three (high level or exceeds).

8.               The maximum score (per interviewer) that could be obtained by an interviewee using the Interview Rating Form is 32.  The minimum score that could be obtained is 10.  The Form described the cumulative score as a “guideline” with the following benchmarks:

10 = Applicant does not meet the job requirements

22 = Applicant does meet the job requirements

32 = Applicant exceeds the job requirements[9]

 

9.               Following the list of criteria, the Interview Rating Form provided an area for interviewer comments and noted three recommendations, “Consider for hire,” “Do not consider for hire,” and “Maintain on file for future available positions.”[10]

10.           The six interviewees received scores on the Interview Rating Form.  As converted by HR, these scores ranged from the lowest score, 59.5, to the highest score, 86.[11]  Ms. LeGare-Gulden scored 68.5 on this scale, which is fourth of the six applicants.  No veterans preference points were awarded to the interview scores.  HR offered a second interview to the top two scoring applicants.[12]  No “scoring scale” was used in conducting the second interviews.[13]

11.           On September 25, 2002, an email message was sent to all the City’s Building safety staff (including Ms. LeGare-Gulden) that Gary Dutton had been selected to fill the Manager of Housing Inspection Services.  The email stated that “We had several well-qualified applicants but Gary presented the best combination of skills and experience for the position.[14] 

12.           Ms. LeGare-Gulden asked HR for a further explanation of the hiring decision.  Ron Boose, Director of Building Safety, responded that Ms. LeGare-Gulden “had not scored as well as the others on the 32 point scoring system.”[15]

13.           On December 6, 2002, Ms. LeGare-Gulden filed a Petition with the Department of Veterans Affairs alleging that the City’s hiring process violated the Veterans Preference Act.  A Notice of Hearing was served on the City on December 19, 2002, setting this matter on for contested case hearing.

14.           In a telephone conference on February 26, 2003, counsel for the parties agreed that the matter could be decided on stipulated facts and exhibits.

          Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

 

CONCLUSIONS

 

1.               Under Minn. Stat. § 14.50 and § 197.481, the Commissioner of Veterans Affairs and the Administrative Law Judge have authority to consider the issues raised under the Veterans Preference Act, Minn. Stat. § 197.46, in this proceeding.

2.               The Notice of Petition and Order for Hearing was proper in all respects, and the Department of Veterans Affairs has complied with all relevant, substantive and procedural requirements of statute and rule.

3.               The City and Respondent received timely and proper notice of the hearing herein.

4.               Ms. LeGare-Gulden is an honorably discharged veteran within the meaning of Minn. Stat. § 197.447 and § 197.46 and is entitled to all of the protections and benefits afforded by the Veterans Preference Act, Minn. Stat. §§ 197.46, et seq.

5.               The District is a political subdivision of the state within the meaning of Minn. Stat. § 197.46, and its personnel practices are therefore subject to the provisions of the Minnesota Veterans Preference Act, Minn. Stat. §§ 197.46, et seq.

6.               The hiring process followed by the City complies with the requirement under Minn. Stat. §§ 43A.11 and 197.455 that veterans be afforded five points and disabled veterans be afforded ten points in competitive hiring examinations.

7.               Ms. LeGare-Gulden was properly informed of the reasons for not being selected for the position by the City.

8.               These Conclusions are made for the reasons set out in the Memorandum that is attached to and incorporated by reference in these Conclusions.

9.               Any Conclusion more properly termed a Finding is hereby adopted as such.

 

          Based upon the foregoing Conclusions, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:

 

 

RECOMMENDATION

 

          IT IS THE RECOMMENDATION of the Administrative Law Judge that the City’s Motion for Summary Disposition be GRANTED, and that the Petition of Susan LeGare-Gulden be DISMISSED.

 

 

Dated this

8th

day of

April

2003.

 

 

 

                                                                

S/ Allan W. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

 

Reported:     Stipulated Facts; No Transcript Prepared.

 

 

 

NOTICE

 

          Pursuant to Minn. Stat. § 14.62, subd. 1 (1996), the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

 

MEMORANDUM

 

Under the Veterans Preference Act, a municipality must provide a five-point preference to a veteran (ten points for a disabled veteran) in open, competitive examinations for a position.  But the Act does not detail how the points should be allocated between various parts of the hiring process.  The City awarded the full ten points in the initial scoring process.  The Veteran maintains that she should have been offered the option of having the points awarded to the interview scoring performed by the City when the first round of interviews was conducted.  The City maintains that its hiring process fully afforded the Veteran all the points that she was entitled to receive.

The leading case on the issue of veterans preference in hiring is Hall v. City of Champlin, 463 N.W.2d 502 (Minn. 1990).  Under Hall, public employers must adjust their hiring to a 100-point system and add five points to the veteran's score (ten, if the veteran is disabled).  This obligation applies to the "open, competitive examination" portion of the hiring process.

In cases decided after Hall, the application of points to the hiring process was further detailed to ensure that qualified veterans are not excluded from the step in the process where the full application of veterans preference points is made.  As described in a Veterans Preference contested case where there was a failure to properly award points:

The County did not use a 100-point preference scale in the hiring process for either the Lucan Position or the Redwood Falls Position and this violates the Veterans Preference Act.  However, to fashion a remedy, Petitioner must have been harmed.  For both positions actually filled, Petitioner was included amongst the finalists.  In the hiring method approved by the Minnesota Supreme Court in Hall, applicants are ranked by score, with any preference points added, and the highest scoring candidates are interviewed (or otherwise assessed) to determine who will fill the open position.  The preference is granted in the initial scoring, not in the final interview.  Thus, if a veteran is included amongst the finalists granted interviews, there is no more preference to be granted.  McAfee v. Department of Revenue, 514 N.W.2d 301, 305 (Minn. App. 1994).  In this matter, Petitioner was interviewed for the Lucan Position and that interview was applied to the Redwood Falls Position.  There is no injury to Petitioner and, therefore, no remedy.[16]

 

In the case of Ms. LeGare, veterans preference points were awarded to the applicants in the scoring used to determine ranking on the list of eligibles.  The higher the applicant’s score on that list, the better the applicant’s chance of obtaining an interview.[17]  Only the top six scorers on the eligible list were interviewed.  Awarding preference points to determine ranking on the list of eligibles complies with the requirements of the Veterans Preference Act.[18] 

The interview stage consisted of two parts.  An initial interview of the six chosen eligibles was conducted first and then the top two candidates were interviewed a second time.  The Veteran maintains that veterans preference points must be awarded at the interview stage to meet the requirements of the Veterans Preference Act.  The City maintains that the interview process constitutes the selection of the successful candidate from amongst finalists, and therefore not a step where preference points are appropriate.

There is no particular hiring process required of local units of government under the Veterans Preference Act.  Whatever process is chosen, a 100-point scale must be applied and a veteran must meet the minimum eligibility standard before preference points are applied.[19]  Some hiring systems use a combined examination and interview score to determine the list of eligibles.  In such cases, the combined score must be adjusted to a 100-point scale and preference points applied that that combined score.[20]

The hiring process used by the City does not combine the examination and interview scores for any purpose.  The City developed a list of eligibles and selected the top six candidates for interviews.  The interviewees were then scored on a scale that afforded a minimum score and did not expressly state a passing score.  The scoring methodology was described as a “guideline.”[21]  Under this method, the City does not compile a second list of eligibles from the six interviewees.  Rather, the eligible candidates are scored relative to each other, to determine which candidate will be offered the position.  None of the interviewees could receive a failing score, as that term is used in open, competitive examinations.

Petitioner maintains that the scoring of interviewees changes the open, competitive examination to a two-part exam.  Under this theory, veterans preference points must be added to the Petitioner’s interview score to comply with the Veterans Preference Act.  The language to the contrary, expressed in McAfee, is distinguished as dicta and Petitioner maintains that the case is not precedent on this issue.

 The Petitioner is correct that the interview language in McAfee is not required for the holding in that case, since veterans preference points were not required for the position sought in that case.  But the Court of Appeals itself has decided whether McAfee is good law on this issue (as shown in the quoted language from Saxton, above).  As the Court of Appeals stated in a another subsequent case:

The real issue presented is whether appellants were denied their veteran's preference points. The ALJ and commissioner both concluded that they were not. The Minnesota Veterans Preference Act does not create an absolute preference for veterans, rather the veteran's preference credit simply increases the chance that a veteran will receive an interview. McAfee v. Department of Revenue, 514 N.W.2d 301, 305 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). Although appellants were honorably discharged veterans, the county was not required to hire them. "[T]he [hiring] authority may hire any certified applicant." Id.  Here, once appellants were given their veteran's preference points, they were "afforded all of the preference entitled to [them] by law." Grehl, 484 N.W.2d at 817. The record shows that appellants were awarded their veteran's preference points and received interviews based on their application scores. With the veteran preference points in place, the county was free to hire any of the six certified finalists as it saw fit.[22] 

The scoring performed by the City at the interview was an effort to make inherently subjective qualifications more objective in arriving at the final choice from amongst the candidates.   The City then held a second round of interviews between the top two scorers in the first interview round.  The addition of a second interview does not transform the hiring process to impose an additional obligation for adding veterans preference points.  The examination and interview processes as used by the City meet the standards set out in Utsch, McAfee, and Saxton.[23] 

Minn. Stat. § 43A.11 requires that examination scores and reasons for not being selected for the position be given to a veteran applicant.  The Veteran asserted that she was denied these notices.  The examination score assertion relies upon the interview scoring.  As discussed above, the interview is not the open, competitive examination for which the score must be disclosed.  The reason for not being hired was provided (albeit in a brief email) to the veteran.  There is no obligation on the City to be more specific.   

 

The City conducted an open, competitive examination and afforded veterans preference points to the passing score of Ms. LeGare-Gulden.  The City did not violate the Veterans Preference Act by failing to add additional points to the Veteran’s interview score.  The City met the requirements for disclosure of scores and reasons for the hiring decision.  Therefore, the Administrative Law Judge recommends that the Veteran's petition be DISMISSED.

 

 

 

A.W.K.