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OAH 2-3100-19211-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF VETERANS AFFAIRS
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Lloyd E. Sanders v. Minnesota State Academies |
RECOMMENDATION ON MOTION FOR SUMMARY DISPOSITION |
This matter came before Administrative Law Judge Raymond R. Krause on November 29, 2007, on Respondent’s Motion for Summary Disposition. Petitioner responded to the Department’s Motion on December 11, 2007, and the Respondent’s reply was filed on December 18, 2007. Oral argument was heard on January 2, 2008, and the record on the motion closed on that date.
Kristyn Anderson, Assistant Attorney General, 1100
The Commissioner of Veterans Affairs and the Administrative Law Judge have authority to review this case pursuant to Minn. Stat. §§ 14.50 and 197.481, subd. 4.
Based on the proceedings, memoranda and files herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED THAT: The Respondent’s Motion for Summary Disposition be GRANTED.
Dated: January 7, 2008
s/Raymond
R. Krause
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RAYMOND R. KRAUSE Chief Administrative Law Judge |
Reported: Digitally
recorded
NOTICE
This report is a recommendation, not a final
decision. The Commissioner of Veterans
Affairs will make the final decision after a review of the record and may
adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendation. Under Minn. Stat. §
14.61, the Commissioner shall not make a final decision until this Report has
been made available to the parties for at least ten days. The parties may file exceptions to this
Report and the Commissioner must consider the exceptions in making a final
decision. Parties should contact the Commissioner of Veterans Affairs to
learn the procedure for filing exceptions or presenting argument.
If the Commissioner fails to issue a final
decision within 90 days of the close of the record, this report will constitute
the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of
exceptions to the report and the presentation of argument to the Commissioner,
or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and
the Administrative Law Judge of the date on which the record closes.
Pursuant to Minn. Stat. § 14.62, subd. 1,
the Commissioner is required to serve its final decision upon each party and
the Administrative Law Judge by first class mail.
Respondent’s motion seeks summary disposition of Petitioner’s claim for relief under the Veteran’s Preference Act (“VPA”). Petitioner claims Respondent violated his rights under the VPA when it failed to fairly consider his application or interview him for a director position, which it posted in June 2007. Specifically, Petitioner alleges Respondent failed to use a 100-point evaluation system in the application process, as mandated by Minn. Stat. § 197.455.
Minnesota State Academies (“MSA”) is a State educational institution and is governed by a Board of Directors appointed by the Governor with the advice and consent of the Senate.[1] MSA, as a State agency, is financially dependent on the State, and has no independent existence from the State. MSA’s budget is included as part of the Governor’s budget and submitted to the State legislature.[2]
The Minnesota Department of Employee Relations (DOER), which provides personnel management services to State agencies, including the administration of systems for employee selection, is responsible, by statute, for developing a statement of necessary qualifications and skills for all MSA staff.[3] Before 2004, the State used a hiring process which included a scored civil service-type of examination.[4] Veteran’s preference points were added to a veteran’s examination score. In 2004 the VPA was amended, and language requiring a point system was repealed.[5] Thereafter, the State began using a selection process which involves the electronic matching of skills required for the position and skills listed by the applicant.[6] Individuals are qualified if they meet the minimum qualifications set forth for a position. At the end of the matching process, an applicant roster is generated. Pursuant to Minn. Stat. § 43A.11, a qualified applicant who claims veteran’s status must be listed before all other qualified non-veteran applicants. The State agency uses the roster to hire for the particular position.[7]
In June 2007, MSA posted an opening for Physical Plant Director in the classified State service.[8] The job posting explained that the selection process for the position was a resume-based, skill-matching process, performed by the State’s matching software program.[9] The posting explained that if an applicant’s skills matched the required skills for the position, the applicant might be contacted.[10] The closing date for applications for the position was July 16, 2007.[11]
Petitioner, who identified himself as having non-disabled veteran’s status, applied for the position.[12] DOER’s software matching program identified 61 individuals who met the minimum qualifications for the position, including Petitioner.[13] DOER provided an applicant roster which listed the 61 qualified applicants to MSA. The roster first lists disabled veterans in alphabetical order and identifies them as “Veteran 10.” Next, the roster lists non-disabled veterans in alphabetical order and identifies them as “Veteran 5.” Finally, the roster lists non-veterans, identified as “Veteran N/A,” in alphabetical order.[14] Sixteen of the sixty-one applicants claimed veteran’s status.[15] MSA reviewed all resumes and interviewed five applicants, one of whom had veteran’s status.[16] MSA did not interview Petitioner. The person MSA hired for the position did not claim veteran’s status.[17]
In August 2001, Petitioner received a “Notice of Examination Results,” which read in part, “Your final score for Physical Plant Dir is 100.00.”[18] On August 20, 2007, Petitioner sent correspondence requesting an interview to Martina Hagen, MSA’s Human Resources Director.[19] On August 22, 2007, MSA sent written notice to Petitioner, informing him that it had “selected another qualified individual to fill [the] position.”
On September 7, 2007, Petitioner filed a Petition for Relief with the Department of Veteran’s Affairs.[20] On September 24, 2007, the Department of Veteran’s Affairs issued a Notice of Petition and Order for Hearing.[21]
Summary disposition is the administrative law 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.[22] The Office of Administrative Hearings has generally followed the summary judgment standards developed in the courts in considering motions for summary disposition of contested case matters.[23]
The moving party has the initial burden of showing the absence of a genuine issue concerning any material fact. A genuine issue is one that is not sham or frivolous. To successfully resist a motion for summary judgment, the nonmoving party must show that there are specific facts in dispute that have a bearing on the outcome of the case.[24] If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[25]
For claims made under the VPA, the petitioner has the burden of proving a violation.[26]
Here, there are no material facts in dispute and Petitioner fails to demonstrate a violation of the VPA. Respondent presents only two questions of law: 1) whether Minn. Stat. § 197.455 applies to MSA; and whether MSA complied with the provisions of Minn. Stat. § 43A.11. There are no specific facts in dispute which would prevent the grant of judgment as a matter of law.
Applicability of
Petitioner brings claims under Minn. Stat. §§ 43A.11 and 197.455. Regarding section 197.455, Petitioner claims MSA violated the provisions which direct the hiring agency to apply a 100-point evaluation system to all applicants.[27] MSA correctly asserts that section 197.455 is not applicable because MSA is a State agency.
Section 197.455 governs veteran’s preference under the laws, rules and regulations of “a county, city, town, school district, or other municipality or political subdivision of this state.”[28] Petitioner agrees that MSA is a State agency.[29] Petitioner argues, however, that as a State agency, MSA should be considered a political subdivision of the State, and therefore subject to the provisions of section 197.455.
Whether MSA is a political subdivision is a question of law.[30] MSA is a State agency, governed by a Board appointed by the Governor with the advice and consent of the senate.[31] Minn. Stat. § 125A.62, subd. 2 provides that the terms, compensation, removal and filling of vacancies on the Board shall be governed by Minn. Stat. § 15.0575. Minn. Stat. ch. 15 is entitled “State Agencies in General,” and section 15.0575 pertains specifically to State boards. MSA’s budget is included as part of the Governor’s budget and submitted to the State legislature.[32] MSA is financially dependent on the State, and has no independent existence therefrom. As a State agency, MSA may enlist the Minnesota Department of Education for assistance, and DOER is required to develop a statement of qualifications and skills for all MSA staff.[33]
In Winberg v. University of Minnesota, the Minnesota Supreme Court determined the University was not a political subdivision for purposes of the VPA.[34] There, the Court stated that the term “political subdivision” is “commonly understood to mean an entity with a prescribed area and authority for subordinate local government,” and “as used in the [VPA]…refers to such traditional units of the state as counties and cities.”[35] Here, MSA has neither a prescribed area nor authority for subordinate local government. Like the University in Winberg, it is a statewide public school with no identity or authority independent of the State. MSA is not a political subdivision and is therefore not subject to the provisions of section 197.455.
The rules of statutory interpretation also lead the ALJ to conclude section 197.455 does not apply to MSA. Minn. Stat. § 645.27 provides: “The state is not bound by the passage of a law unless named therein, or unless the words of the act are so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.” The legislature’s omission of the State from the list of entities governed by section 197.455 is fatal to any claim that the provision applies to a State agency. MSA is not a political subdivision and is therefore not subject to the provisions of section 197.455. Instead, MSA is subject to the VPA as set forth in Minn. Stat. § 43A.11, which pertains to State civil service.
Minnesota Statutes section 43A.11, subdivision 7, provides:
Applicants who meet the minimum qualifications for a vacant position and claim disabled veteran’s preference shall be listed in the applicant pool ahead of all other applicants. Applicants who meet the minimum qualifications for a vacant position and claim nondisabled veteran’s preference shall be listed in the applicant pool after those claiming disabled veteran’s preference and ahead of nonveterans.
By its terms, section 43A.11 does not require a veteran’s preference point system, and it does not require all veteran applicants to receive an interview.[36] Instead, section 43A.11 requires that applicants who claim veteran status and meet the minimum qualifications for the position be listed before qualified non-veteran applicants on the applicant roster.
Here, MSA complied with section 43A.11. On the application roster for the physical plant director position, disabled veterans are listed first, non-disabled veterans are listed second and non-veterans are listed last.
Petitioner, citing McAfee v. Department of Revenue,[37] argues that veterans preference points must be applied to permanent classified positions, such as the position for which Petitioner applied. In 1994, the court in McAfee interpreted Minn. Stat. § 43A.11 to require the application of preference points to classified positions. Section 43A.11, however, was amended in 2004 and the language requiring a point system was repealed. Therefore, McAfee is no longer relevant and does not mandate the application of preference points here.
Alternatively, Petitioner argues MSA did not comply with section 43A.11 because “he was not fairly considered for the position.” Petitioner argues other veterans, including a carpenter and a maintenance supervisor were listed ahead of him on the applicant roster.[38] The applicants, however, were listed in alphabetical order within the appropriate category, i.e., disabled veteran, non-disabled veteran, and non-veteran. Petitioner was correctly categorized as a non-disabled veteran, and was listed alphabetically in that category. The fact that others were listed ahead of him on the roster is inconsequential.
Petitioner also argues MSA violated section 43A.11 because it never notified him of what qualities he did not possess or why he did not receive an interview. Section 43A.11, subdivision 9, entitled “Rejection; explanation,” provides: “If the appointing authority rejects a member of the finalist pool who has claimed veteran’s preference, the appointing authority shall notify the finalist in writing of the reasons for the rejection.” “Finalist pool” is defined as “those members of the applicant pool who have been determined to best meet all the qualifications for a vacant position and who may be legally appointed to the position.”[39] Here, the “finalist pool” consists of the five applicants MSA selected to interview. Petitioner was not one of the five and therefore MSA need not notify him of the reasons he was not hired.
Conclusion
As a State agency, MSA is not subject to the provisions of Minn. Stat. § 197.455. Instead, the VPA as set forth in Minn. Stat. § 43A.11 applies to MSA’s hiring procedures, and MSA complied with the provisions set forth therein. The Administrative Law Judge recommends Respondent’s motion for summary disposition be granted and that the Petition be dismissed.
R.R.K.
[1]
[2] See e.g., MSA 2008-2009 Biennial Budget, attached to Reply Memorandum.
[3]
[4] Aff. Mary Jo Erickson, ¶ 2.
[5] Aff. Mary Jo Erickson, ¶ 3; see also http://ros.leg.mn/bin/getpub.php?pubtype=SLAW_CHAP&year=2004&chapter=207 (last accessed on January 3, 2008).
[6] Aff. Mary Jo Erickson, ¶ 2.
[7] Aff. Mary Jo Erickson, ¶ 2.
[8] Aff. Martina Hagen, ¶ 2; see also Petitioner’s Ex. E, attached to Memorandum in Opposition.
[9] Aff. Marina Hagen, ¶ 2; Ex. A.
[10] Aff. Marina Hagen, ¶ 2; Ex. A.
[11] See Petitioner’s Ex. E, attached to Memorandum in Opposition.
[12] See Petitioner’s Ex. F, attached to Memorandum in Opposition.
[13] Aff. Marina Hagen, Ex. B.
[14] Aff. Marina Hagen, Ex. B.
[15] See Petitioner’s Ex. L, attached to Memorandum in Opposition.
[16] Aff. Marina Hagen, ¶ 4.
[17] Aff. Marina Hagen, ¶ 4.
[18] See Petitioner’s Ex. D, attached to Memorandum in Opposition. MSA responds that the score to which Petitioner refers was from 2001, and not for a job with MSA. MSA asserts that no tests were given and no points were awarded based on qualifications for the Physical Plant Director position. See Reply Memorandum, p. 3, n. 3. At the hearing, Petitioner argued the job for which he received the 100-point score was similar to the Physical Plant Director position, so it should be assumed he would score similarly if a test were given for the Physical Plant Director position.
[19] See Petitioner’s Ex. G, attached to Memorandum in Opposition.
[20] See Petitioner’s Ex. A, attached to Memorandum in Opposition.
[21] See Petitioner’s Ex. B, attached to Memorandum in Opposition.
[22] Sauter v. Sauter, 70 N.W.2d 351, 353 (
[23] See
[24] Thiele v. Stich, 425 N.W.2d 580, 583 (
[25]
[26] See
[27] See Hall v. City of Champlin, 463 N.W.2d
502, 506 (
[28]
[29] See Petitioner’s Memo in Opposition, p.
1 (“Respondent is a State of
[30] See Schleck v. State, 442 N.W.2d at 359,
361 (
[31]
[32] See MSA 2008-2009 Biennial Budget, attached to Reply Memorandum.
[33] See
[34]
499 N.W.2d 799, 802 (
[35]
[36] See also Utsch v. Big Stone County, 1997
WL 527234 (
[37]
514 N.W.2d 301, 303-04 (
[38] Petitioner’s Memorandum in Opposition, p. 7.
[39]