DVA -88-005-BC
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STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF VETERANS AFFAIRS
Donald N. Gramke,
Petitioner, FINDINGS OF FACT.
CONCLUSIONS AND
CONCLUSIONS
vs. RECOMMENDATlON
Cass County,
Respondent.
The a bove-entitled matter came on for hearing befo re Administ rative Law
Judge Richard DeLong on December 8, 1987, in the Public Meeting Room, Cass
County Courthouse, Walker, Minnesota.
Appearances: Earl Maus, Cass County Attorney, Courthouse, Walker,
Minnesota 56484, appeared on behalf of Cass County (Respondent); and Leo M.
McDonnell, Attorney at Law, 720 Midwest Federal Building, Duluth, Minnesota
55802, appeared on behalf of Donald N. Gramke (Mr. Gramke or Petitioner).
Shortly after the date of the hearing, Administrative Law Judge DeLong was
incapacitated for an indeterminate period. By letter dated January 21, 1988,
the Chief Administrative Law Judge, Duane R. Harves, communicated the fact of
Judge DeLong's incapacity to counsel for both parties. In that letter, he
stated that the case would be assigned to Administrative Law Judge Bruce D.
Campbell for the issuance of Findings of Fact, Conclusions and a
Recommendation to the Commissioner of Veterans Affairs on the basis cf the
existing record unless either counsel requested a rehearing of the case. The
Office of Administrative Hearings also caused a transcript of the hearing to
be prepared. Ely letter dated March 29, 1988, Administrative Law Judge Bruce
D. Campbell took administrative notice of the fact that the population of Cass
County, according to the 1980 census, was substantially less than 100,000 and
requested that counsel comment on the possible application to this proceeding
of Minn. Stat. 387.145 (1986). The opportunity for counsel to contest the
Matter of which the Administrative Law Judge took administrative notice was
provided in accordance with Minn. Stat. 14.60, subd. 4 (1986), and Minn.
Rules pt. 1400.1300, ubp. 4 (1985).
The record herein closed on April 7, 1988, upon receipt by the
Administrative Law Judge of the final written comment of counsel regarding
Minn. Stat. 387.145 (1986).
This Report is a recommendation, pot a final decision. The Commissioner
of the Department of Veterans Affairs will make the final decision after a
review of the record which may adopt, reject or modify the Findings of Fact,
Conclusions, and Recommendations contained herein. Pursuant to Minn. Stat.
sec. 14.61, the final decision of the Commissioner shall not be made until this
Report has been made avai lable to the Parties to the proceeding f or 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 William J. Gregg, Commissioner, Minnesota Department of
Veterans Affairs, 200 Veterans Service Building, 20 West Twelfth Street, St.
Paul, Minnesota 55155, to ascertain the procedure for filng exceptions or
presenting argument.
STATEMENT OF ISSUE
The issue to be determined in this proceeding is whether the employment
rights of the Petitioner, who had taken the position of Chief Deputy of the
Cass County Sheriff's Department, were within the coverage of Minn. Stdt.
197.46 (1986), at the time of his discharge from employment in 1987.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS -OF FACT
1. Donald N. Gramke is an honorably discharged veteran cf the United
States Army. During his Army service, the Petitioner served as an M.P. Upon
discharge from military service, Mr. Gramke completed criminal jus ti c e
training courses at the college level. He then became a patrol officer with
the police department of the City of Cheviot, a suburb of Cincinnati, Ohio.
After serving in that capacity for approximately six years, he was employed as
a deputy sheriff for Hamilton County, Ohio. Hamilton County included some of
the suburbs of Cincinnati, Ohio. That Sheri f f's Department had several
hundred employees. During his Ill years of service with the Hamilton County
Sheri f f's Department, the Petitioner serially held the ranks of patrolman,
sergeant and fiduciary commander.
2. In 1981, Mr. Gramke left his employment with the Hamilton Couty
Sheriff's Department and relocated in International Falls, Minnesota, where he
owned and operated a summer resort. Mr. Gramke also acted as an on-call,
part-time peace officer for the City of South interndtional Falls.
3. In 1986, the Petitioner ran in a primary election for the office of
Sheriff of Cass County. At the time of the primary election, Mr. Gramke was a
resident of Cass County. The Petitioner was eliminated in the primary from
running in the general election for the office of Sheriff of Cass County.
4. Sometime after the date of the primary election, Mr. Gramke indicated
public support for the candidacy of the present sheriff, James Dowson. On at
least one occasion, Mr. Grdmke placed an advertisement in the local newspaper
endorsing Mr. Dowson's candidacy.
5. James Dowson was elected Sheriff of Cass County in the 1986 general
election. He assumed the office of Sheriff on January 2, 1987. Sheri f f
Dowson had been employed by the Cass County Sheri f f's Department for
approximately 21 years prior to his election to the position of sheriff in
1986. Sheriff Dowson had served as deputy sheriff, lieutenant and, finally,
chief deputy. He had served former Sheriff Chalich as his chief deputy for
approximately 12 years prior to the 1986 general election.
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6 . During the 1986 campaign f or the office of sheri f f employees of the
Cass County Sheri f f's Department did not uni versally support the candidacy of
Mr. Dowson. Shortly be f ore assuming office on January 5, 1 987, Sheri f f Dows on
discussed with Mr. Gramke the position of chief deputy with the Cass County
Sheri f f's Department . Sheriff Dowson's prime motive in offering the position
to the Petitioner was to bring in to the Department from the outside an
experienced peace officer who was not identified with the devisiveness that
had occurred during the course of the 1986 sheriff's campaign.
7. When Sheriff Dowson discussed with Mr. Gramke the position of chief
deputy, he clearly indicated to him that the chief deputy would serve at the
pleasure of the sheriff. At the time of those discussions, Sheriff Dowson did
not specify, in any detailed fashion, the particular duties that Mr. Gramke
would perform as chief deputy. He did state to Mr. Gramke that the chief
deputy would act for the sheriff in his absence.
8. The Cass County Sheri f f's Department is governed by a county
sheriff's civil service system. Only the position of sheriff and chief deputy
are exempt from the operation of that system. One other member of the
Department, the sheriff's personal secretary, is also exempt from union
participation as a consequence of the most recent collective bargaining
agreement. She is, however, in all respects, subject to the county civil
service system.
9. During Sheriff Dowson's 12 years of service under the previous
sheriff as chief deputy, he developed a close working relationship with former
Sheri f f Chalich. During portions of the previous sheri f f's last term in
office, ir. Dowson was in operational control of the Department, actively
Managing it on behalf of Sheriff Chalich.
10. Sometime during Mr. Dowson's service as chief deputy under former
Sheri f f Chalich, a law firm engaged to represent the County in labor matters
prepared draft position descriptions for certain County positions, including
that of chief deputy within the Sheriff's Department. Pet. Ex. 4. That draft
position description accurately reflects the degree of managerial control
Sheriff Dowson exercised over the Department as chief deputy under- former
Sheriff Chalich. The draft position description was never adopted by the Cass
County Board of Commissioners.
11. There is no evidence in the record that the draft position
description contained in Pet. Ex. 4 was discussed with Mr. Gramke as
reflecting the duties that Sheriff Dowson intended to assign to him as chief
deputy or that Mr. Gramke was aware of its existence when he accepted the
position of chief deputy.
12. There is no evidence in the record that Sheriff Chalich, Sheri f f
Dowson or the County Board sought an opinion from the County Attorney about
the application of Minn. Stat. 387 .145 ( 1 986) , to the position of chief
deputy within the Cass County Sheri f f' s Department after that statute was
adopted in 1980.
1 3 . During Sheriff Dowson and Mr. Gramke' s discussions in Jaruary of
1987, Sheriff Dowson asked Mr. Gramke if he had satisfied the requirements for
obtaining certification in Minnesota as a full-time peace officer. Mr. Gramke
informed Sheriff Dowson that he had satisfied all requisites for obtaining the
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certification. Sheri f f Dowson relied upon Mr. Gramke's s t atemen t in choos ing
the Petitioner as his chief deputy.
14. On January 5, 1987, Mr. Gramke accepted the position offered by
Sheriff Dowson. Sheriff Dowson executed an Appointment of Deputy Sheriff
covering the Petitioner. Pet. Ex. 3. The appointment as a deputy sheriff was
signed by Mr. Gramke and filed with the County Clerk.
15. On January 6, 1987, Sheriff Dowson appeared before the Cass County
Board of Commissioners at their regular meeting. The minutes of that County
Board meeting state that the Sheriff introduced Mr. Gramke as his chief deputy
and asked that they ratify his selection. The action by the County Board was
to fix the salary of Mr. Gramke at $30,000 per year, which reflected "Step 9
of the Chief Deputy Classification of the Arthur Young Plan". Resp. Ex. A.
16. Mr. Gramke also executed all of the documents required of an employee
of the Cass County Sheriff's Department in January of 1987, including
applications for County subsidized life and health insurance and enrollment in
the Pub I i c Employee's Retirement Association. Resp. En F. On id 1 such
forms, the position title indicated for Mr. Gramke is "Chief Deputy". On
February 18, 1987, Mr. Gramke mailed to the Minnesota State Sheriff's
Association his annual membership dues. On that statement to the Association,
he 1 i sts his pos i t ion as "Chief Deputy Sheriff Cass County Sheriff's Dept."
and states: "I am a full-time officer, registered with POST and working
full-time in the position of Chief Deputy for Cass County Sheriff's Dept."
Resp. Ex. D.
17. Shortly after Mr. Gramke assumed his position with the Cass County
Sheriff's Department, Sheriff Dowson discovered that the Petitioner had not
completed all required classroom instruction to be certified in Minnesota as a
full-time peace officer. Sheriff Dowson allowed Mr. Gramke to obtain the
requisite instruction at County expense. As a consequence of Mr. Gramke's
misstatement about his qualifications in Minnesota, the trust and confidence
that Sheriff Dowson had initially placed in Mr. Gramke began to deteriorate.
18. Because Mr. Gramke had oly resided in Cass County for a short period
of time prior to 1987, Sheriff Dowson wanted him to become familiar with the
geography of the County, its road system and the facilities available to the
Sheri f f's Department. Cass County, one of the larger counties of the State,
includes more than 100 miles of territory. Sheriff Dowson anticipated that
Mr. Gramke would spend a significant amount of time in a patrol car with his
immediate subordinate, Lieutenant Stein, acquainting himself with the County.
Although Mr. Gramke did attempt to acquaint himself with the geography of the
County, Sheriff Dowson concluded that the Petitioner spent most of his time in
the northern part of the County and did not tour the remaining parts.
19. On one occasion, a deputy assigned to the regular patrol shift did
not report for work, as scheduled. Sheriff Dowson suggested to Mr. Grdmke
that he perform that deputy's patrol duties. Mr. Gramke responded that,
because of his age and experience, he would prefer not to patrol in place of
the absent deputy. Sheriff Dowson was disturbed with that response because he
expected that a chief deputy should be available to perform the duties of an
absent deputy, as needed. Sheriff Dowson and Mr. Gramke were the only two
employees of the Cass County Sheriff's Department who were paid an annual
salary. All other employees were paid an hourly rate, with additional
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compensation for overtime work.
20. In 1987, the Sheri f f's Department included approximately 5
employees, many of whom worked only on a part-time basis. In addition to the
sheriff and chief deputy, the Cass County Sheriff's Department included two
lieutenants, too sergeants, five additional deputies available for general
duties, several full-time jailers, two investigators, four dispatchers and two
full-time clerical employees. At the time of Mr. Gramke's appointment
approximately six of the Department's employees served only on a part-time
basis. The Hamilton County Sheri f f's Department in which Mr. Gramnke had
previously served had in excess of 300 full-time employees and was subject to
a strictly enforced chain of command.
21. With the exception of the sheriff and the chief deputy, all employees
of the Cass County Sheriff Is Department who have successfully completed a
probationary period are subject to the jurisdiction of a Sheriff Is Civil
Service Commission, established by Minn. Stat. 387.33 (1986). All
prospective employees other than the chief deputy are selected by the sheriff
from a civil service list prepared by the County Sheri f f's Civi I Service
Commission. All major disciplinary actions, including discharge, of employees
other than the chief deputy are subject to review by the same Commission, upon
the request of the disciplined employee.
2 2 . The sheriff and his staff occupy space in the Cass County Courthouse
in Walker, Minnesota. Mr. Gramke was given a key to the public entrance to
the sheriff's quarters in the courthouse. He also was given a key to the
outer courthouse door and a key to his own office. He was not given a key to
the sheriff's personal office where the Department's employment records were
kept and he was not given a key to the property room where evidence WaS
maintained in a locked area. Although Mr. Gramke assumed that the reason for
his not receiving keys to the sheriff's private office and the property room
was that Sheriff Dowson did not desire that he have access to those areas, the
chief deputy never requested such keys and never discussed the matter with the
sherif f .
2 3 . Mr. Dowson's regular duties did not include the routine scheduling of
work assignments for Department personnel. The actual scheduling was
performed by division supervisors who had experience with the personnel and
the requirements of each division. Work schedules were given to Mr. Gramke
who, on occasion, made scheduling recommendations to the sheriff. Mr. Gramke
made such recommendations on an unspecified number of occasions during the six
months that he occupied the position and, occasionally, his suggestions were
accepted by the sheriff. The final approval of all duty assignments and work
schedules for all Department personnel was reserved to the sheriff.
24. Mr. Gramke's duties did not incclude supervision over budgetary or
financial matters relating to the Department. On one occasion when Mr. Grdmke
raised a budgetary matter affecting the Department with the sheriff's personal
secretary, she advised him that he had no reason to review the budget. The
sheriff's personal secretary, Deputy Cathy Miller, assisted the sheriff in the
preparation of and management of the Department's budget. On at least two
occasions, however, Mr. Gramke and the sheriff discussed concerns that Sheriff
Dowson had about the fiscal operation of the Department.
2 5 . Mr. Gramke had no fixed role in disciplining employees. On at least
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two occ asions, however, recommendations from superior officers were made that
deputies receive disciplinary treatment. On those two occasions, Mr. Gramke
reviewed the recommendations of the field commanders and made a disciplinary
recommendation. Sheriff Dowson reviewed Mr. Gramke's disciplinary
recommendations and informed him that he, the sheriff, would "handle that.".
There is no evidence in the record as to whether Mr. Gramke's disciplinary
recommendations regarding the two deputy sheriffs were followed by Sheriff
Dowson.
26. Mr. Gramke had access to all correspondence received by the sheriff's
office. Routinely, however, it was received by Sheriff Dowson. Mr. Gramke
was in the habit of allowing Sheriff Dowson to review all office
correspondence that he, as chief deputy, sent to members of the public. This
was not required by Sheriff Dowson. Mr. Gramke assumed that the practice he
adopted was appropriate because the sheriff had final responsibility for the
Department. On several occasions Mr. Gramke signed and sent letters as chief
deputy on the stationery of the Sheriff's Department to persons dealing with
the office. Resp. Ex. B; Resp. Ex . E. On both occasions, the response was
prepared and sent at the request of Sheriff Dowson.
2 7 . When Mr. Gramke accepted the position offered, Sherriff Dowson told
him, generally, that the chief deputy could act for the Department in the
absence of the sherif f . Mr Gramke's specific authority in the sheri f f's
absence was undefined and had never been specifically discussed. Sheri f f
Dowson would usually call the office periodically and leave a telephone number
where he could be reached in the event of a serious emergency. The usual
practice was for Mr. Gramke to provide the sheriff with a detailed briefing of
events when Sheriff Dowson telephoned the office. In the absence of the
sheriff, his personal secretary reviewed the sheriff's incoming correspondence
and general Departmental correspondence. There is no evidence in the record
that any situation arose during the absence of Sheriff Dowson that required
immediate action by the chief deputy.
28. In addition to familiarizing himself with the geography of Cass
County and completing the requirements for POST certification, Mr. Gramke
performed some routine patrol duty, transported mental patients between Walker
and the hospital facility in Brainerd, Minnesota and, on occasion, transported
prisoners for the Department.
29. Only Sheriff Dowson and Mr. Gramke signed and issued handgun permits
to the public who applied for such authorization.
30. Upon assuming his duties in Janudry of 1987, Mr. Grdmke was placed in
charge of revising the operational policy manual of the Department. The
manual had been initially formulated some years earlier and Sheriff' Dowson
considered it important that the document be updated for current use by his
employees. Mr. Gramke did submit a draft of a revised organizational chart
f or the Department to Sheri f f Dows on f or comment and approva 1 . Resp. Ex. 1.
Sheri f f Dows on had f ina I authority to accept or reject the suggestions made by
Mr. Gramke regarding the organizational structure of the Department and the
contents of the revised policy manual.
31. On ?larch 9, 1987, a patrol directive was issued to all Department
employees regarding the policy on prisoners and the respective
responsibilities of the jailors and deputy sheriffs. That directive was
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s igned by the chief j a i I or and Mr. Gramke , as chief deputy. Resp. Ex. C. The
directive resulted from a meeting between the chief jailor, Mr. Gramke and the
sheri f f . The policy statement was signed by Mr. Gramke and the chief jailor
at the direction of Sheriff Dowson.
3 2 . Mr. Gramke's prior service with the Hamilton County Sheri f f' s
Department had included public relations work. On one occasion, at the
direction of Sheriff Dowson, Mr. Gramke met with i local property owners'
association and made a crime prevention presentation on behalf of the
Department. On another occasion, Mr. Gramke was assigned by Sheriff Dowson to
determine the traf fic control requirements of a local charity event and
arrange for the necessary services . That assignment, however, really only
required Mr. Gramke to direct traffic at the event.
3 3 . On several unspecified occasions, Sheriff Dowson and Mr. Gramke had
conversations about the approach the Sheriff's Department should take to
particular law enforcement situations. On those occasions, Mr. Gramke
understood that the conversations were not to be repeated even to other
employees of the Sheriff's Department. Each morning, Sheriff Dowson and Mr.
Gramke would review all initial complaint reports that were generated in the
previous 24-hour period. They discussed any such reports that required
immediate action by the Department.
34. Because of the SMdll size of the Cass County Sheriff's Department and
Sheriff Dowson's prior long experience as chief deputy, he maintained an "open
door" policy toward Department employees. Although some employees did
initially contact Mr. Gramke with questions and concerns, direct access to
Sheriff Dowson Was not only possible but encouraged.
3 5 . There is no evidence in the record that any serious crime or law
enforcement situations arose in Cass County during Mr. Gramke's service which
required his independent action as ch ie f deputy in the absence of Sheriff
Dowson. Mr. Gramke believed that he had the authority to act for the
Department in the sheri f f' s absence but was never requi red to do so in a
specific situation. Mr. Gramke made few, if any, independent decisions on
important matters affecting the Department. He routinely cleared all matters
with Sheriff Dowson. This was not at the specific direction of the sheriff.
Sheriff Dowson did not, however, clearly define with Mr. Gramke the authority
of the ch ie f deputy or communicate to other employees the scope of the
authority delegated. Other employees of the Department observed that Mr.
Gramke's regular duties more closely approximated those of a deputy sheriff as
time passed instead of the duties that Sheriff Dowson had exercised as chief
deputy under former Sheriff Chalich.
36. On July 16, 1987, Mr. Gramke was orally dismissed from his position
as chief deputy by Sheriff Dowson. The reason for his discharge was never
provided to Mr. Gramke in writing, nor was he advised of any rights he might
have under the Minnesota Veterans Preference Act.
3 7 . By letter dated July 21 , 1 987, Mr. Gramke requested a I 1 of the rights
he might have as a veteran of military service under the Minnesota Veterans
Preference Act, as respects his dismissal from his position as "Chief Deputy
Cass County Sheriff's Department". Pet. Ex. 6.
38. On July 27, 1987, private legal counsel for the County advised Mr.
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Gramke that he had been a f forded a I 1 rights that pertained to his unclassified
position. Pet. Ex. 7. In the course of that letter, Mr. (Gramke was advised
that his employment was not within the coverage of the Veterans Preference
Act. A copy of that letter was sent to the Veterans Service Office.
Pet. Ex. 7.
39. Despite written requests for a statement of the reasons for
termination and a request for a hearing, Mr. Gramke never received from the
County or the Sheriff's Department any additional written statement about the
circumstances of his termination or any right to a hearing under the Minnesota
Veterans Preference Act.
40. By letter dated August 25, 1987, received by the Department of
Veterans Affairs on August 31, 1987, Mr. Gramke requested relief from the
Commissioner of Veterans Affairs, including the scheduling of a hearing
regarding his veteran's preference rights under Minn. Stat. 197.46 (1986).
41. On November 13, 1987, the Commissioner of the Department of Veterans
Affairs issued a Notice of Petition and Order for Hearing regarding Mr.
Gramke's rights under the Minnesota Veteran's Preference Act.
42. The population of Cass County at the time of Mr. Grdmke's termination
from service with the Sheriff's Department was significantly less than 100,000
inhabitants.
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Commissioner of Veterans Affairs and the Administrative Law Judge
have jurisdiction herein and the authority to take the action proposed
pursuant to Minn. Stat. 14.50 and 197.481 (1986).
2. The Notice of and Order for Hearing issued by the Commissioner on
November 13, 1987, was proper and all relevant substantive and procedural
requirements of law or rule have been fulfilled by the Department of Veterans
Affairs.
3. The Petitioner is an honorably discharged veteran of the United
States military service within the meaning of Minn. Stat. 197.46 (1986).
4. Minn. Stat. 197.46 (1986), excludes from the protections afforded
by the Minnesota Veterans Preference Act the position of private secretary,
teacher, superintendent of schools, or one chief deputy of any elected
official or head of a department, and any person holding a strictly
confidential relation to the appointing officer.
5. The burden of establishing the existence of any exemption stated in
Conclusion 4 , supra, is upon Cass County in this proceeding. Minn. Stat.
197.46 (1986); State v. Mangni, 43 N.W.2d 775, 780 (Minn. 1950).
6. At the time of Mr. Gramke's appointment to the Cass County Sheriff's
Department in 1987, Minn. Stat. 387.145 (1986), did not authorize the
appointment of a chief deputy sheriff for the County.
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7 . Employees of a sherif f' s department are entitled to the protecti on of
M inn . Stdt . 197.46 ( 1 986) , unle s s the appointing officer establishes the
existence Of d statutorily recognized exception. See Conclusions 4 and 5,
supra General Drivers Local 346 v. Aitkin County Board. 320 N.W.2d 695
(Minn. 1 982) O'Bert v. Anderson 320 N. W. 2d 71 2 (Minn . 1 982
8. As a consequence of Conclusion 6, supra, at the time of his
separation from service with the Cass County Sheriff's Department, the
Petitioner was not the chief deputy of an elected official within the meaning
of Minn. Stat. 197.46 (1986). His position was that of a deputy sheriff
with the Cass County Sheriff's Department.
9. At the time of his separation from service with the Cass County
Sheriff's Department, Mr. Gramke did not occupy i position which involved a
"strictly confidential relation to the appointing officer" within the meaning
of Minn. Stat. 197.46 (1986).
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED that the Commissioner of Veterans Affairs
issue an Order directing the County of Cass to:
(1) Afford the Petitioner, Donald N. Gramke, a Veterans Preference
hearing provided for by Minn. Stat. sec. 197.46 (1986), at which the
County must establish cause for his discharge; and
(2) Pay to the Petitioner, Donald N. Gramke, the wages he would have
earned as an employee of the Cass County Sheriff's Department from
the date of his termination, July 16, 1987, to the date the issue of
the existence of cause for discharge is determined, less severance
payments previously made. During that time, the County of (:ass may
treat Mr. Gramke as being suspended with pay.
Dated this day of May, 1988.
BRUCE D. CAMPBELL
Administrative Law Judge
NOTICE
Pursuant to Minn . Slat . 14 62, subd . 1 , the agency i s requi red to serve
its final deci sion upon each party and the Administrative Law Judge by f irst
class mail.
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Reported: Taped. Transcript Prepared by
Karen Toughill
2019 Laurel Avenue West
Minneapolis, MN 55405
MEMORANDUM
The primary issue for- determination in this proceeding A whether Mr.
Gramke's position was that of the chief deputy of an elected official within
the meaning of Minn. Stat. 197.46 (1986). If Mr. Gramke's position was that
of chief deputy, his employment would have been exempt from the application of
Minn. Stat. 197.455, 197A6 (1986) . The County argues that Mr. Gramke
voluntarily accepted an appointment to an unclassified position within the
Cass County Sheriff's Department, not subject to the Sheriff's Civil Service
System adopted in Cass Count.y, pursuant to Minn. Stat. 387.31 - 387.45
(1986). The title of the position he accepted was stated to Mr. Gramke to be
that of chief deputy of the Cass County Sheriff's Department by Sheriff Dowson
and the County Board in fixing his salary made a similar reference. See
Findings 7 and 15,supra. The County argues that the sheriff, as an elected
official, has complete discretion as to the appointment of a chief deputy and
the duties that are to be performed by any person so appointed. On the basis
of that argument, the County concludes that the Petitioner is not protected by
the Veterans Preference Act.
Mr. Gramke argues that, although he had the title of chief deputy, Sheriff
Dowson did not delegate to him the degree of control over the operations of
the Department that would have been consonant with the title given. Mr.
Gramke contends that the presence of a title alone does not establish an
exception to the Veterans Preference Act. The Petitioner relies primarily on
the application of the criteria stated in Holmes v. County_of__Wabasha, 402
N.W.2d 642 (Minn.App. 1987), to demonstrate that he was not, in fact, the
chief deputy of an elected official within the statutory exception.
The only Minnesota decision specifically considering the chief deputy
exception to the Veterans Preference Act is State v. Mangni, 43 N.W.2d 775
(Minn. 1950). In that case, the Court determined that the position of first
assistant city attorney for the City of Minneapolis was not exempt from the
Minnesota Veterans Preference Act. Under the charter of the City of
Minneapolis, applicable at the time of the decision, the duties of the first
assistant city attorney were to be as specified by -the city attorney. The
f irst assistant c i ty attorney was authorized to act of f Aially as city
attorney in the absence or inability o f the City attorney to act. In
discussing the application of Minn. Stat. 197.46, the Court stated:
Section 197.46 provides that the act does not apply
to "one chief denty of any elected off i c i a I or head of a
department, or to any person holding a s tr i c tly
confidential relation to the appointing officer, "and the
appointing of ficer has the burden of establishing s u ch
relationship.
The f irst assistant city attorney i s not a deputy. A
deputy can execute all the ministerial duties to be
performed by the incumbent of the office. (Citations
omitted). Pk deputy may act in behalf of his principal in
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"a 1 1 matters in which the principa I may act." 43 AM.Jur.,
Public Officers, 460. A princ ipa I i s 1 iab I e f or the acts
of his deputy. City of Duluth v. Ross, 140 Minn. 161 , l67
N.W. 485. Under Chapter 111, 5, the first assistant acts
as city attorney only in the "absence or inability" of the
city attorney. Otherwise, the first assistant works as the
city attorney "may direct and indicate." it is evident
f rom the above that the f irst ass istant i s not a deputy of
the city attorney. On the basis of not being a deputy, the
Veterans' Preference Act applies.
43 N.W.2d 775, 7 7 9 (Minn. 1950). Hence, to be included within the stated
exception to Minn. Stat 197.46 (1986), the chief deputy of an elected
official must at least possess authority which satisfies the definition of a
deputy, as previously stated.
As respects the elective office of sheriff, any person duly appointed as a
deputy sheriff has the authority to execute the ministerial duties of the
o f f i c e of sheriff and bind the sheriff by that individual's actions. Minn.
Stat. 387.14 (1986); Albrecht v. Long 25 Minn. 163 (1878); Kroll v. Moritz
112 Minn. 270, 127 N.W. 1120 (1910); City___of__Duluth v. _Ross, 140 Minn. 161,
167 N.W. 485 (1918). No special delegation of authority by the sheriff is
required. It was precisely that legal identification of all deputy sheriffs
with the appointing sheriff that led the Attorney General to opine that all
deputy sheriffs were exempt from the application -of the Veterans Preference
Act under the confidential relationship exception contained in Minn. Stat.
197.46. Op. Atty.Gen. - 85-C, July 1, 1965.
In General Drivers,_Local 346 v. Aitkin County _Board, 320 N.W.2d 695, 700
(Minn. 1982), the Court held that "a deputy sheriff is entitled to protection
under the Veterans Preference Act unless the deputy is a chief deputy". The
Court specifically rejected the Attorney General's conclusion that all
deputies hold, necessarily, a confidential relationship with the appointing
sheriff so as to exclude them from the coverage of the Veterans Preference
Act. lee, O'Bert v. Anderson, 320 N.W.2d 712 (Minn. 1982).
Minn. Stat. 387.145 (1986) provides:
Notwithstanding the provision of any law to the contrary
the sheriff of any county which has 100,000 or more
inhabitants according to the 1980 federal census or the
latest federal census thereafter may appoint a chief deputy
or first assistant with the approval of the county board.
Minn. Stat. 387.145 (1986) was added to the general law governing the office
of sheriff by Laws of 1980, C. 519, 4. The bill that became Chapter 519 was
initially introduced as S.F. 1759. The Bill as introduced did not include a
provision relating to the appointment of chief deputies. A House Committee
acting on S.F. 1759 struck all portions of the Senate File except the enacting
clause and substituted the text ultimately contained in Chapter 519. The 1980
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House and Senate Journals demonstrate I;hat the bi ll , as amended, was passed
without floor discussi on in both Houses of the Legislatu re. No published
report of the House Committee deliberations exists.1
Hence, no legislative history is available, to assist in the interpretation of
Minn. Stat. 387.145 (1986), or its application to this proceeding.
Moreover, Minn. Stat. 147.46 (1986) has never been judicially construed. At
the time of the adoption of Minn. Stat. 387.145 (1986), no general or
special statute specifically prohibited the creation of the position of chief
deputy sheriff in counties with a population of 100,000 or more.
As previously noted, the Administrative Law Judge took administrative
notice of -the fact that the population of Cass County in 1980 and 1987 was
significantly less than 100,000 inhabitants. Although both counsel provided
written submissions concerning the possible application of Minn. Stat.
387.145 (1986) to this proceeding, neither disputed that fact.
In the absence of contemporaneous legislative history or judicial
construction, the Administrative Law Judge must interpret Minn. Stat.
387.145 (1986) in accordance with the ordinary meaning of the language used ,
unless such a construction would lead to an unreasonable result. Minn. Stat.
645.16, 645.17 (1986). For the reasons hereinafter discussed, the
Administrative Law Judge concludes that, for purposes of Minn. Stat.
387.14, 387.145 (1986), a sheriff may only appoint a chief deputy or first
assistant when the population of the county is at least 100,000 inhabitants
and the county board specifically approves the appointment.
Although the statute does not literally state that a chief deputy or first
assistant Pay not be appointed when a county has a population cf less than
100,000 inhabitants, that result follows from the natural import of the
language used. No reason is apparent why legislative authorization would be
required for the appointment of a chief deputy or first assistant in counties
with a population of at least 100,000 inhabitants if the general authority of
the sheriff to appoint deputies contained in Minn. Stat. 387.14 (1986) is
sufficient to create the position of chief deputy or first assistant in
counties At-h a smaller population. The population of the county determines
the size of the sheriff's department and the resulting need for an employee
- ------- --- -- - ---
The provision that was ultimately codified as Minn. Stat. 387 .145
(1986) was inserted by a motion made during a hearing of the Government
Administration and Structures Subcommittee of the House Local and Urban
Affairs Committee held on March 11 , 1980. The full Committee adopted the
Subcommittee report in a hearing held on March 17, 1980. The written records
of the Committee and Subcommittee record only the official actions taken on
the Bi I 1 . Although audio -magnetic recordings of both hearings were prepared
and retained, they are currently unuseable because of age and condition.
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serving a t the wi I I of the sheriff whose function is to provide regular
managerial assistance.
The County argues that the position of chief deputy has no associated
necessary position responsibilities but is to be defined entirely by the
incumbent sheriff. Since any deputy has legal authority to perform the duties
of sheriff, the position must include particular responsibilities in addition
to acting in the sheriff's absence. In General Drivers Local 346 v. Aitkin
County__Board, 320 N.W.2d 695, 700 (Minn. 1982), the Court indicates that a
chief deputy's responsibilities within a sheriff's department would
necessarily involve a confidential reporting relationship to the sheriff. The
word "chief" implies an executive or directing head. Stout v. Stinnett, 197
S.W.2d 564, 565 (Ark. 1946). As applied to the position of chief deputy
within a sheriff's department, the position must incclude the concept of a
unified control or supervision of other employees subject only to the ultimate
authority of the sheriff.
The Administrative Law Judge does not accept the argument of Mr. Gramke
that the tests used by the courts to define the term "head of a department"
are controlling. see e.g. Holmes v. County of Wabasha 402 N.W.2d 642
(Minn.App. 1987). In the context of Minn. Stat. C. 387 (I ), the sheriff is
the "head of a department." He does, however, conclude that the position of
chief deputy within a sheri f f' s department does necessarily include the
concept of a unified intermediate supervision and control over the of f ice,
subject only to final review by the sheriff.
Given t. ha t de f in i t i on of -the term, limi t ing the pos i t i on of ch ief deputy
to counties with a large population would be appropriate. As evidenced in
this proceeding, with an active sherif f little reason exists to create the
separate position of chief deputy in smaller counties. Moreover, to the
extent that -the position is unclassified, it avoids the jurisdiction of the
Sheriff's Civil Service System in those counties in which the system has been
established. Minn. Stat. 387.31 - 387.45 (1986). The jurisdiction of a
Sheriff's Civil Service Board is to extend to all deputies and employees in
the sheri f f ' s department, except special deputies serving without salary.
Minn. Stat. 387.35 (1986). In Cass County, a Sheriff's Civil Service System
has been adopted, but the position of chief (deputy is unclassified. The
Administrative Law judge recognizes that the creation of a Sheriff's Civil
Service System within a county is voluntary. When adopted, however, its
jurisdiction is statutorily prescribed and the system may only be terminated
by a unanimous vote of the county board or by a public referendum. Minn.
Stat. 387.43 (1986).
In interpreting Minn. Stat. 387.145 (1986), the Administrative Law Judge
may also look to the effect of a particular construction. Minn. Stat.
645.17 (1986). If Minn. Stat. 387.145 (1986) does not limit the counties
which may create the position of chief deputy, in every county the sheriff may
appoint a person with no specified duties or employment tenure rights under
the Veterans Preference Act, Sheriff's Civil Service System, if extant, or
even the collective bargaining agreement with the approval of the county
board. This would be accomplished under the general statute authorizing the
appointment of deputies, Minn. Stat. 387.14 (1986), which does not recognize
classes or gradations of deputies, and the position thereby created would be
exempted from statutory protections afforded all deputies. This is what has
occurred in Cass County. Finally, if Minn. Stat. 387.145 (1986) has no
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applic ation, the approva I of the county board is not specifically required by
statute. Pursuant to Minn. Stat. 387.14 (1986), the county board fixes the
number of deput i es and the budget f or the of f ice. The sheriff selects the
appointees. He also determines their duties, subject only to the collective
bargaining agreement and Sheriff's Civil Service System, if adopted. Cass
County provides no reason why that result is justified or even authorized
under Minn. Stat. C. 387 (1986).
In addition to the apparent lack of need for the existence of such a
separate position in counties with a population smaller than that specified in
Minn. Stat. 387.145 (1986), events contemporaneous with the adoption of the
statute are also illustrative. In 1979 and 1980, separate lawsuits were
commenced in Minnesota to determine the legal relationships between sheriffs'
employees, the county boards and the incumbent sheriffs. The sheriffs
asserted that their deputies had no Veterans Preference Act rights, that they
had authority under Minn. Stat. 387.14 to dismiss deputies at will,
irrespective of Minn. Stat. 387.31 - 387 45, and that they, rather than the
county boards, were the employer for purposes of collective bargaining. The
distrct courts reached varying results on the issues presented. In General
Drivers Local 346 v. Aitkin _County Board supra , the disputed issues were
resolved in favor of the deputies and county boards.
The construction of Minn. Stat. 387.145 (1986), adopted by the
Administrative Law Judge is in accordance with the previous statutory
treatment of the position of chief deputy within a county sheriff's
department. Prior to the adoption of Minn. Stat. 387.145 (1986), the
statutes applicable to the of f ice of sh er i f f had, for over 100 years,
contained no reference to a chief deputy or first assistant. Pursuant to
Minn. Stat. 387.14, the county board fixed the number of permanent full-time
deputies and other employees and, pursuant to Minn. Stat. 387.20, the budget
for the office of sheriff, subject to a judicial appeal by the incumbent. The
sheriff had sole authority to appoint deputies up to the number specified by
the county board and to determine the duties of his employees. Minn. Stat.
387.14. As previously noted, any deputy by virtue of his appointment had
authority to perform the legal duties of sheriff. Minn. Stdt. 387.14. At
least the Counties of St. Louis and Ramsey did, however, have special
authorizing statutory provisions relating to the position of chief deputy
sheri f f . The placement of the statutorily recognized position of chief deputy
sh er i f f of Ramsey County with the County's unclassified service was also
accomplished by specific legislation. Minn. Stat. 383 A.286, subd. 2
(1986).
Although the Administrative Law Judge solicited the comments of counsel on
the application of Minn. Stat. 387.145 (1986), no explanation of the
existence of the position in Cass County was offered other than historical
f a c t . Nor did the County bring to the attention of the Administrative Law
Judge any statute applicable to Cass County that would vary Minn. Stat.
387.145 (1986).
If Minn. Stat. 387.145 (1986) did not authorize the creation of the
position of chief deputy within the Cass County Sheriff's Department, it must
be determined whether the chief deputy exception in Minn. Stat. 197.46
(1986) could still apply to the position occupied by Mr. Gramke.
Although, again, there is no specified relationship between Minn. Stat.
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387.145 (1986) and Minn. Stat. 197.46 (1986), no reason to distinguish
between the same -terms used in both statutes is apparent. Moreover, the
limitation contained in Minn. Stat. 387.145 (1986) is more specific than the
exception stated in Minn. Stat. 197.46 (1986) and was adopted at a later
date. The Administrative Law Judge also notes that those porticms of Minn.
Stat. C. 387 (1986) adopted after the Veterans Preference Act which were not
intended to affect the provisions of that Act specifically so state. See,
Minn. Stat. 387.45 (1986). hence, the Administrative Last Judge concludes
that the position field by Mr. Gramke in 1987 was not within the exception
contained in Minn. Stat. 197.46 (1986) for the chief deputy of an elected
official. For purposes of both Minn. Stat. C. 387 (1986) and Minn. Stat.
197.46 (1986), Mr. Gramke's position was that of a deputy sheriff for Cass
County.
It could be suggested that a further exception contained in Minn. Stat.
197.46 (1986) exempted Mr Gramke from the application of the Minnesota
Veterans Preference Act. As previously noted, the Act- does not apply to an
employee "holding a strictly confidential relation to the appointing
officer". Minn. Stat. 197.46 1986). In General Drivers Local 346 v.
Aitkin County_Board, 320 N.W.2d 695, 700 (Minn. 1982), the Court holds that a
deputy sheriff is entitled to the protection of the Veterans Preference Act
unless the deputy is a chief deputy. That language would, apparently,
preclude a determination that a deputy sheriff who was not an authorized chief
deputy could have a sufficiently confidential relationship to the sheriff to
preclude Veterans Preference Act rights. That position, in a more general
form, had been adopted by the Attorney General in the 1965 Opinion previously
noted. That Opinion of the Attorney General was specifically rejected by the
Court in General Drivers. supra.
Even if a deputy sheriff who is not a chief deputy authorized by Minn.
Stat. 387.145 (1986), could have a confidential relationship with the
sheriff so as to avoid Veterans Preference Act rights, the existence of that
relationship in this proceeding has not been demonstrated. Initially, it
should be noted that the duty of establishing the existence of an exemption is
upon the appointing authority. Minn. Stat. 197.46 (1986). The Minnesota
decisions that consider whether such a confidential relationship exists look
to the duties of the position as established and its relationship to the
appointing authority. Blaski v Fisher, 259 N.W. 694 (Minn. 1935); State v.
Mangni, 43 N.W.2d 775 (Minn. 1950). As indicated in the Findings, the duties
that II" Gramke were to assume in the position he accepted were not clearly
specified prior to his appointment. Although a draft position description had
been prepared for the position, it was never adopted by the County Board and
was not specifically discussed with Mr. Gramke as reflecting his duties.
Moreover, the County has argued to the Administrative Law Judge that the draft
position description reflected only the duties that Sheriff Dowson had
performed as Chief Deputy under former Sheriff Chalich and was in no sense
applicable to Mr. Gramke's position.
The record reflects a conclusion that Mr. Gramke was told he was to act in
the Sheriff's absence and to perform such duties as were delegated to him by
Sheriff Dowson. That is precisely the responsibility that the Court, in State
y,__Mangni, 43 N.W.2d 77 5 (Minn . 1 9 50) , determined did not establish the
existence of the necessary confidential relationship to the appointing
authority. It may be that Sheriff Dowson had unspecified expectations about
the degree of confidence that he might develop in Mr. Grdmke after some period
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of time and duties that he might then delegate. As admitted by the County in
its Memorandum, the duties that Mr Gramke would perform were at all times
entirely within the discretion of Sheriff Dowson. Under those circumstances,
the County has not established that the position Mr. Gramke accepted
necessarily involved a "strictly confidential relation to the appointing
officer". Minn. Stat. 197.46 (1986).
Despite the lack of record evidence concerning what was communicated to
Mr. Gramke about h i s duties as "chief deputy" the functions that he did
perform within the Sheriff's Department do not substantiate that his position
would necessarily involve a "strictly confidential relation to the appointing
of ficer" . Minn . Stat. 197.46 (1986) . The only evidence of any type of
confidential relationship to the sheriff not shared by other deputies or
superior officers is a general reference to unspecified conversations that the
sheriff had with M4rn Dowson about matters affecting the operation of the
sheriff's office. There is no indication, however, that similar conversations
did not take place with other members of the Department. see , Blaski v.
Fisher, 259 N.W. 694, 695-96 (Minn. 1935). The Administrative Law Judge look?
to the practical relationship between Mr. Gramke and Sheriff Dowson only to
clarify, in the absence of a clear- statement (of the Petitioner's expected
duties, whether his job responsibilities included i "strictly confidential
relation to the appointing of ficer" , within the meaning of Minn. Stat.
197.46 (1986). The Administrative Law Judge determines that the County has
not e stab I i s hed the ex istenc e of the c on f ident i a I re I at i on except i on to Minn.
Stat . 1 9 7. 4 6 ( 1 986) , even i f a deputy s heri f f not an authori zed c h ief deputy
could be exempt from the Veterans Preference Act.
Since the Administrative Law Judge has determined that the County has not
established that Minn. Stat. 197.46 (1986), did not apply to Mr. Gramke's
position, he is entitled to the veterans hearing provided for in that
statute. The hearing herein was limited to the issue of the application of
the Veterans Preference Act. Since Mr. Gramke is entitled to the hearing
provided f or by Minn. Stat. 197.46 (1986), he must receive salary and
appropriate benefits until the date that cause for discharge is determined.
Leininger v,_ City_of Bloominqton, 299 N.W.2d 723, 731 (Minn. 1980); Kurtz v.
City_of _Apple_Valley, 290 N.W.2d 171 , 173 (Minn. 1980) . Amounts so paid to
Mr. Gramke should be reduced by separation payments previously received from
the County at the time of his purported termination.
B.D.C.
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