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3-3100-18039-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF VETERANS AFFAIRS
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Stephen J. Smith,
Petitioner, vs.
City of Princeton,
Respondent.
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RECOMMENDED ORDER ON MOTION FOR SUMMARY DISPOSITION |
This matter is before Administrative Law Judge Kathleen Sheehy on the Petitioner’s motion for summary disposition. The motion record closed on July 13, 2007.
Teresa L. Joppa, Staff Attorney, American Federation of State, County & Municipal Employees, Minnesota Council No. 65, 3911 7th Street South, Moorhead, MN 56560, appeared for Stephen J. Smith (Petitioner).
Richard J. Schieffer, Esq., and Daniel D. Schulz, Esq., Dove Fretland & Van Valkenburg, PLLP, 5881 Cedar Lake Road, Minneapolis, MN 55416, appeared for the City of Princeton (Respondent).
Based upon all of the files, records, and proceedings herein, the arguments of the parties, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED:
1. That the Petitioner’s Motion for Summary Disposition be DENIED;
2. That the City of Princeton be ordered to convene a panel to conduct a hearing under the Veterans Preference Act, Minn. Stat. § 197.46, to determine whether the City has sufficient grounds to discharge the Petitioner for misconduct; and
3. That this contested case proceeding be dismissed because the appropriate forum for deciding the merits of the misconduct issue is a three-person panel appointed pursuant to Minn. Stat. 197.46.
Dated: July 31, 2007.
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
MEMORANDUM
The Petitioner is a veteran who was honorably discharged from the U.S. Navy after approximately four years of active duty. In June 2002, the City hired the Petitioner as a maintenance worker in the Public Works Department. On October 3, 2005, a City police officer issued the Petitioner a criminal citation for theft, alleging violation of Minn. Stat. § 609.52, subd. 2(1) (2006).[1] The Petitioner had allegedly taken a five-gallon container of unleaded gasoline from the City’s maintenance shop and used it to fill his personal vehicle. On October 14, 2005, the City discharged the Petitioner on the basis of the alleged theft. Thereafter, the Petitioner filed a timely request for a hearing to contest his discharge under the Veterans Preference Act.
On June 5, 2006, the Veterans Preference hearing was conducted by a panel appointed pursuant to Minn. Stat. § 197.46. On July 8, 2006, the panel issued a written decision concluding the City had failed to prove the allegation of theft by a preponderance of the evidence. The panel ordered that the City unconditionally reinstate the Petitioner, make him whole for any loss of benefits, and expunge the termination letter and any reference to the termination in his personnel file.[2] The City did not appeal the panel decision, and the Petitioner returned to work on July 31, 2006.[3]
On September 19, 2006, the Petitioner was convicted of the misdemeanor theft charge. After a bench trial, the district court judge entered an order finding the Petitioner guilty of theft of the gasoline, in violation of Minn. Stat. § 609.52, subd. 2(1). He was given a fine and a suspended sentence. A term of his probation requires that upon termination by the City of Princeton, the Petitioner will surrender his keys and not be within one block of the public works building in Princeton.[4]
On March 23, 2007, the City placed the Petitioner on a paid leave of absence while the City Council considered action on the City Administrator’s recommendation to terminate his employment. On April 5, 2007, the City adopted a resolution terminating the Petitioner’s employment effective 60 days from that date, subject to the Petitioner’s right to a hearing under the Veterans Preference Act.[5] On May 9, 2007, the Petitioner filed a Petition for Relief under the Veterans Preference Act, alleging that the issue of his misconduct had already been resolved and that the City should be required to comply with the decision of the original hearing panel.[6] On May 17, 2007, the Commissioner of Veterans Affairs issued a Notice and Order for Hearing initiating this contested case proceeding.[7]
Procedural Posture
Summary disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law.[8] The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested case matters.[9] A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case.[10]
The moving party, in this case the Petitioner, has the initial burden of showing the absence of a genuine issue concerning any material fact. To successfully resist a motion for summary judgment, the non-moving party must show that there are specific facts in dispute which have a bearing on the outcome of the case.[11] The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P. 56.05.[12] The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[13]
When considering a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party.[14] All doubts and factual inferences must be resolved against the moving party.[15] If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[16]
Analysis
The relevant facts are not disputed. Petitioner contends that the City should be precluded from re-litigating the issue of his misconduct. He maintains this issue was previously decided in his favor; that the panel issued a final and binding decision, which the City could have appealed, but did not; and that, despite his subsequent criminal conviction for theft, the City cannot discharge him for the same basic conduct it failed to prove to the satisfaction of the panel in the previous hearing.
Although the Petitioner does not articulate it this way, the Petitioner is effectively arguing that the City is precluded on the basis of res judicata or collateral estoppel from re-litigating the propriety of his discharge for misconduct. Res judicata (claim preclusion) focuses on previous judgments between the parties and prevents them from re-litigating their causes of action, or any other issues that could have been raised, but were not. Collateral estoppel (issue preclusion) prevents identical parties from re-litigating identical issues in a subsequent, distinct proceeding.[17] The same general criteria are used to determine whether these principles may be applied to the judicial or quasi-judicial decisions of an agency:
(1) the issue to be precluded must be identical to the issue raised in the prior agency adjudication;
(2) the issue must have been necessary to the agency adjudication and properly before the agency;
(3) the agency determination must be a final adjudication subject to judicial review;
(4) the estopped party must be a party or in privity with a party to the prior agency determination; and,
(5) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.[18]
The City contends it accepted the previous panel’s decision, reinstated the Petitioner, and attempted to move on, but that his subsequent conviction on the criminal charge has created new problems that are sufficient to justify his discharge for misconduct. The City argues that its case will focus, not on whether the Petitioner stole gas in October 2005, but rather on what has happened since the time of his reinstatement and subsequent criminal conviction in September 2006. The City maintains that the Petitioner’s criminal conviction is well known in the community and that it has adversely affected public trust of all employees in the Public Works Department, who are often required to enter people’s homes, lawns, and driveways to perform their jobs. The City also contends that morale and productivity among employees in the Public Works Department has been diminished because employees feel the Petitioner’s theft conviction reflects poorly on them, and they avoid working with the Petitioner if possible. In addition, the superintendent of the Public Works Department has indicated that he is looking for other employment because he believes he cannot maintain or restore public trust in the department while the Petitioner continues to be employed there.[19]
Although the other elements of collateral estoppel are present here, the Administrative Law Judge agrees that the factual issues are different enough that the City should not be precluded from attempting to discharge the Petitioner, subject to his right to dispute that the facts are as alleged and that those facts constitute misconduct under the Veterans Preference Act. These factual issues were not previously determined, and the previous panel decision is not entitled to preclusive effect. Accordingly, the Administrative Law Judge recommends that the Petitioner’s motion for summary disposition be denied.
The parties now apparently agree with the Administrative Law Judge that, if this matter is to be heard on the merits, the proper forum for that hearing is before another Veterans Preference panel under Minn. Stat. § 197.46.[20] The City argues, however, that the Petitioner failed to request a panel hearing within 60 days, instead opting to petition for relief from the Commissioner, and that he thereby waived his right to have a hearing before a Veterans Preference panel. This argument is unfounded. The Petitioner sought timely relief from the Commissioner under Minn. Stat. § 197.481, subd. 1, based on the good-faith argument that a second hearing was unnecessary. By raising the legal issue of the preclusive effect of the first panel decision, the Petitioner did not waive his right to a hearing on the merits before a properly constituted Veterans Preference panel.
K.D.S.
[1] Unless otherwise noted, all statutory citations are to the 2006 edition.
[2] In the Matter of the Arbitration Between the City of Princeton and AFSCME Union Council 65, Decision and Award (July 8, 2006).
[3] City’s Memorandum Opposing Motion for Summary Disposition, Ex. B.
[4] Id., Ex. G (2).
[5] Id. Exs. A-E. The City Council declined to approve the recommendation to keep the Petitioner on an administrative leave; consequently, the Petitioner continues to work pending resolution of his Veterans Preference Act claims.
[6] Petition for Relief under the Veterans Preference Act (May 9, 2007). The Petitioner also filed a grievance challenging the proposed discharge under the union contract with the City.
[7] Notice and Order for Hearing (May 17, 2007).
[8] Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Minn. R. 1400.5500K; Minn. R. Civ. P. 56.03.
[9] See Minn. R. 1400.6600.
[10] Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W.2d 804, 808 (Minn. App. 1984).
[11] Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Hunt v. IBM Mid-America Employees Federal, 384 N.W.2d 853, 855 (Minn. 1986).
[12] Id.; Murphy v. Country House, Inc., 307 Minn. 344, 351-52, 240 N.W.2d 507, 512 (Minn. 1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 75 (Minn. App. 1988).
[13] Carlisle, 437 N.W.2d at 715 (citing, Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
[14] Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn. App. 1984).
[15] See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971); Thompson v. Campbell, 845 F. Supp. 665, 672 (D. Minn. 1994).
[16] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).
[17] Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978).
[18] Falgren v. Minnesota Board of Teaching, 545 N.W.2d 901, 905 (Minn. 1996), citing Graham v. Special School Dist. No. 1, 472 N.W.2d 114, 116 (Minn. 1991).
[19] City’s Memorandum of Law Opposing Motion for Summary Disposition, Ex. B.
[20] See First Prehearing Order (June 20, 2007).