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OAH 2-3100-20495-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In the Matter of Thomas K.
Riddering v. City of |
FINDINGS
OF FACT, CONCLUSIONS,
AND RECOMMENDATIONS |
The
above-entitled matter came on for a hearing before Chief Administrative Law
Judge Raymond R. Krause (ALJ) on July 9, 2009 at the Office of Administrative
Hearings in
Thomas
K. Riddering, Petitioner (“Petitioner”), appeared on his own behalf. Gail Langfield, Assistant Saint Paul City
Attorney, appeared on behalf of the Respondent, the City of
The
parties stipulated to facts 1-15 and stipulated to the sole issue before the
ALJ. The attached list of exhibits were
offered and entered as evidence:
STATEMENT
OF THE ISSUE
Did
the City lay off Thomas K. Riddering in good faith for a legitimate reason?
FINDINGS OF
FACT
1. The Petitioner is an honorably
discharged veteran. He was removed from
his certified title as the City Building Official for the City of
2. The Petitioner was employed by the City
of
3. At the time of his layoff, the
Petitioner was considered a good employee and received a bi-weekly salary of
$4,104.48.
4. The Petitioner was notified of his
layoff in writing by a letter dated April 9, 2009. The letter stated that he was being laid off
of his current position due to the financial situation of the City and it in no
way reflected upon his work performed for the citizens of
5. On April 27, 2009, the Petitioner filed
a petition with the Minnesota Department of Veterans Affairs alleging his
layoff was not for incompetence or misconduct, but was not in good faith.
6. There was a long standing conflict
between the Building Inspection, Fire Inspection, and Code Enforcement
Divisions regarding the retroactive application of code requirements to
existing buildings.
7. The Petitioner does not believe that
the City was motivated to remove him based on his veteran status.
8. On April 30, 2009, the Commissioner of
Veterans Affairs issued a Notice and Order for Hearing, scheduling a hearing to
take place on July 9, 2009.
9. At all relevant times, Robert (Bob)
Kessler was the Director of the Department to which the Petitioner was assigned
and was also his supervisor.
10. The City’s certified title of City
Building Official remains vacant.
11. The Petitioner was the Division of
Manager of the Building Inspections/Construction Service in the Department of
Safety and Inspections for the City of
12. Each of the division managers within the
Department of Safety and Inspection is a single incumbent within their respective
certified title.
13. Throughout 2008 and 2009 there was a
significant reduction in building permit revenue.
14. In April 2009, trade employees within the
former DSI Building Inspections/Construction Service Division were required to
reduce their full-time hours from 40 to 32 hours per week to avoid lay off of
an additional 7.4 employees.
15. The City continues to enforce Chapter 34
of the City of
II. Factual
Findings Arising from Hearing
16. The City of
Performs responsible managerial work
in planning and directing the operation and administration of the Construction
Division of the office of License, Inspections, and Environmental Protection
(LIEP) acts as the Building Official for the City with responsibilities as
described in State law; performs other duties exercised… [The Building
Official] [e]xercises general and/or technical supervision through lower-level
supervisors, professional, technical, and administrative support employees.[1]
17. Under
18. Minn. Stat. § 326B.133, subd. 2 requires
that building officials become certified and possess “experience in design,
construction, and supervision which the [C]ommissioner [of Labor and Industry]
deems necessary” and that no one “may be designated as a building official for
a municipality unless the commissioner determines that the official is
qualified as provided in subdivision 3.”[3]
19. The City hired the Petitioner and he
first reported for duty as the City Building Official on May 18, 1999.[4]
20. The Petitioner’s work as City Building
Official fell under the purview of the Department of Safety and Inspection
(“DSI”). The Mayor and City Council
created DSI in 2007 by consolidating LIEP and the Fire Inspection offices to
foster efficiency, improve service to citizens, streamline regulations, and to
achieve some cost-savings.[5] DSI is responsible for more than 150 out of
the over 320 chapters of the City’s Legislative Codes, having duties in the
areas of Animal Control, Construction, Inspection, Code Enforcement,
Environmental Health, Fire Inspection, Heritage Preservation, Licensing,
Project Facilitation, Zoning, Support Services, TISH programs, Demolitions,
Vacant Buildings, Construction Plan Review, Site Plan Review, and responding to
complaints as well as providing information.[6] The Petitioner supervised and was in charge of
construction inspection, Construction Plan Review, Site Plan Review, and
zoning.[7]
21. In
January, 2009, DSI had 170.4 Full-Time Equivalent job positions (FTEs).[8]
The two main funding sources for DSI are the General Fund and the Special Fund.[9] The former derives its approximately $6
million in funding from tax revenues, license fees, Local Government Aid (LGA)
from the State of Minnesota, whereas the latter generates most of its funding
from permit and license fees that channel into License and Permit Fund Number
320.[10] Fund 320 made up 66% of DSI’s 2009 budget at
approximately $11 million.[11] The Special Fund also funded the Petitioner’s
position.[12]
22. Although DSI generated its “highest
levels of permit revenue ever” in 2006 and 2007, there were 1,600 vacant
buildings in the City.[13] Vacant buildings are an indicator of a
potential downturn in permit revenue. The
economic recession and housing finance crisis and the downturn in new
construction in 2008 severely decreased the Special Fund 320 revenues and thus
the Special Fund as a whole.[14] At the beginning of 2008, the Special Fund had
just under $13 million and DSI’s reserve funds totaled $2.6 million.[15] The Special Fund currently contains
approximately $10.5 million and the reserve funds are now “in the negative”
because of the extent of the City budgetary crisis.[16] The General Fund also incurred significant
revenue loss due to cuts and unallotments in LGA funds from the State in
December 2008, June 2009, and for 2010 in order to remedy the State budget
deficit.[17]
DSI was therefore unable to draw on the
LGA funds to supplement its own reserves to solve its own shortfall.[18]
23. In light of the present and anticipated
future budget crises and a General Fund decrease of 20%, the Mayor’s Office
directed City departments and DSI to propose staff reductions and other
structural changes.[19] DSI’s first proposed reduction plan featured
cuts throughout the Department.[20] Deputy Mayor Ann Mulholland emphasized the
disadvantages of having too many administrators in a department and instructed
DSI to decrease the number of management positions. She specifically told Director Kessler to
“reduce the number of boxes”, a reference to the organization chart boxes that
contained units within DSI and their corresponding managers.[21] Director Kessler presented DSI’s proposed
reductions to the Mayor and other city officials during a meeting on February
17, 2009.[22]
The plan proposed to cut a number of positions
but did not identify any managerial positions for layoffs.[23] The plan did not target the Petitioner’s job.[24]
The Mayor’s Office indicated that the layoffs should be more fair and “equally
spread across the board, including management.” This was partially in response to the priority
set by the union representing city employees.[25] The Mayor’s Office also charged Kessler with
consolidating the management functions in DSI.[26] The Mayor’s Office did not specifically target
the Petitioner for a layoff.[27]
24. Director Kessler re-assessed his proposal
to align with the Mayor’s new request. He
consulted with DSI managers and with the AFSCME Labor Management Committee as
he contemplated layoffs, and consolidation of the Department.[28] During the process, Director Kessler assessed
the duties performed by each department, whether managerial responsibilities
could be shifted to other managers, and the indispensability of managers.[29] Director Kessler proposed consolidating the
Construction Services and Code Enforcement units, for instance, because it was
a “better way to meld three different cultures and a way to have a more unified
approach” to carrying out DSI tasks and since both involve inspections of
buildings and property.[30]
25. Director Kessler determined that he could
not run DSI without Housing & Code Enforcement Manager Richard Lippert and
Deputy Director of LIEP for Licenses, Permits, and Customer Service Christine
Rozek because the duo are key managers. Neither
Mr. Lippert nor Ms. Rozek has “bump back” rights. [31]
26. Phillip Owens, Assistant Fire Marshal,
William Gunther, Environmental Health Manager, and the Petitioner also lacked
any “bump back” rights since they hold positions as “single incumbents.”[32] Mr. Gunther is also a veteran.[33] Director Kessler could have laid off any one
of these three managers.[34] The layoff of any of these three managers
would have induced DSI restructuring and devolution of job duties to the
remaining managers.[35]
27. Director Kessler based his layoff
criteria on seniority, which he measured as the employee’s length of service
with the City. Director Kessler had the
latitude to use different criteria, but he felt that seniority was the least
subjective.[36]
Mr. Gunther began his service with the
City on September 7, 1971.[37] Mr. Owens started his employment with the City
on November 28, 1988. Mr. Lippert began his service with the City on November
1, 1971. Ms. Rozek began her employment
on December 27, 1985.[38] The Petitioner began his service as City
Building Official on May 18, 1999.[39] Since the Petitioner was the least senior of
the managers, Director Kessler selected the Petitioner for layoff, devolved
some of his duties to other managers, and merged the Code Enforcement and
Construction Services divisions into one.[40] Director Kessler explained to the Petitioner
that his layoff was due to the City’s fiscal challenges and not because of any
deficiencies in his job performance, noting that the Petitioner was a “good,
ethical, and skilled manager.”[41]
28. As a result of the restructuring and
reduction effort, six DSI employees, including the Petitioner were laid off,
one employee took an early retirement, two employees were shifted to the
Department of Planning and Economic Development (PED), and forty inspectors had
their hours reduced, which is the equivalent of 7.4 FTEs.[42] The Petitioner was the only DSI employee to
actually lose his job.[43]
29. The Mayor’s Office and other senior
officials received DSI’s “Second Proposal for Reductions in 2009” on February
23, 2009.[44]
The City Council adopted the plan on
April 8, 2009.[45]
Director Kessler informed the Petitioner
the next day about his layoff effective April 24, 2009. Director Kessler called Petitioner at home to
explain that “it all came down to seniority.”[46] The plan achieved a $500,000 net reduction in
the DSI budget.[47]
30. Section 22 of the Civil Service Rules for
the City establishes the procedure by which the City determines the seniority
of an employee in the event of a layoff.[48] If the City hired the employee before July 1,
1995, the employee’s seniority is determined by the date the employee was
certified and appointed to that class.[49] If the City hired the employee after July 1,
1995, the employee’s seniority is determined by the date that the employee
first reported for duty for the employment in such class.[50] If the layoff occurred because of a lack of
work, funds, or other reasons, the appointing officer designates the “class
from which [the] layoff shall take place.”[51] Employees in that class are laid off in the
“inverse order” of their seniority. Since Petitioner was the only person in his
job class, the provisions of Section 22 did not apply.[52]
31. Since the City has not abolished the
Petitioner’s class, the “class abolishment” rule within Section 22 does not
apply.[53] The class for the City Building Official still
exists but the position is vacant.[54]
32. Article 6 of the collective bargaining
agreement between the City and the Saint Paul Supervisors’ Organization
(“SPSO), 2008-2010 defines seniority as “[t]he length of continuous, regular
and probationary service with the Employer from the date an employee was first
certified and appointed to a class title covered by this Agreement, it being
further understood that seniority is confined to the current class assignment
held by an employee.”[55] If the City must reduce the work force,
“employees will be laid off by class title within each department based on
inverse length of seniority” with the Office of Human Resources identifying the
least senior employee in the title.[56]
33. Following the Petitioner’s layoff, the
City enacted an interim arrangement in which the City devolved some of the
Petitioner’s different duties and responsibilities to other managers. This process was modeled after the way job
duties were apportioned for the two years prior to the hire of Petitioner.[57]
The City also acted to comply with Minn. Stat. 326B.133, subd. 7 (2008), which
requires that “in the event that a designated building official position is
vacant within a municipality, that municipality shall designate a certified
building official to fill the vacancy as soon as possible”.[58] The City designated James T. Bloom, Senior
Plan Examiner, who is a certified building official, as the Building Official
for the City.[59]
The Minnesota Department of Labor and
Industry subsequently approved Mr. Bloom’s designation. The City devolved the Petitioner’s
responsibilities for providing technical assistance for trade inspectors to
Mr. Bloom.[60]
The City civil service title “City
Building Official” remains vacant, however.[61]
34. Housing & Code Enforcement Manager
Lippert became Deputy Director and Manager of half of DSI after its initial
creation.[62]
After the Petitioner’s layoff, Mr. Lippert
acquired the personnel management portions of the Petitioner’s former job, which
was about half of the Petitioner’s duties.[63] Mr. Lippert does not supervise the more
technical aspects of the Petitioner’s former job.[64]
35. The supervisory and management
responsibilities the Petitioner exercised over the Zoning, Licensing, and Heritage
Preservation components in his division were not significant functions of his
job and did not have an adverse impact on DSI operations when those
responsibilities were devolved to other managers in the Department.[65]
36. The City job class of “City Building
Official” continues to exist but is vacant. The duties of that position have
been given to other managers. The
Department of Labor and Industry designation of “City Building Official” has
been filled by Mr. Bloom and its duties have not changed.[66]
37. Despite a letter written on behalf of the
Petitioner questioning the layoff decision, the SPSO has not filed a grievance
with the City regarding the layoff due to the bargaining unit’s respect for
management’s right to re-tool organizational structure. The SPSO, however, is awaiting the results of
the job studies Mr. Bloom and Mr. Lippert submitted before taking any further
action.[67] The SPSO has no reason to believe the
Petitioner’s layoff violates the collective bargaining agreement and the
seniority rules.[68]
38. DSI managers and employees disagreed on
the proper relationship between State and City building codes and regulations.[69] Much of the disagreement arose over the
enforceability of a proposed egress window policy following the Minnesota
Supreme Court decision in City of Morris
v. Sax Investments, Inc. That
decision held, in part, that a city rental licensing ordinance regulating a
residential structure also governed under the State Building Code is invalid
when the city ordinance has different requirements than the State Building
Code.[70] The Petitioner and others had a differing view
on the matter than other managers and employees in the office on the proper
course of action.[71] The Petitioner disagreed with the City
Attorney’s Office and DSI leadership’s interpretation of and approach toward
reconciling the conflict between State and City codes in light of Morris v. Sax. The disagreements were strong but, by and
large, conducted professionally.[72]
39. Director Kessler did not invite the
Petitioner to a March 16, 2009 meeting regarding the developing egress window
policy because the layoff plans for the Petitioner were already in motion and,
as a result, the Petitioner’s presence at the meeting would have been difficult
for both of them.[73] The Petitioner was, however, involved in
earlier discussions and meetings regarding the egress window policy.[74]
40. DSI issued a “Uniform Egress Window
Policy” on April 29, 2009 to clarify egress window code provisions “so that
property owners will know what the requirements are when we inspect their
properties.”[75]
Director Kessler issued the memorandum
on the new policy four days after the Petitioner’s layoff and twenty days after
the Petitioner received notification of his layoff.[76] Director Kessler indicated that Fire Marshal
Steve Zaccard, Assistant Fire Chief Owens, Mr. Bloom, Mr. Lippert, Mr. Ehrlich,
and Assistant City Attorney Rachel Tierney were involved in the development of
the policy.[77]
CONCLUSIONS
1. Pursuant
to Minn. Stat. §14.50 and §197.481, the Administrative Law Judge and the
Commissioner of Veterans Affairs have the authority to determine if the
Petitioner was denied a hearing under the Veterans Preference Act (“Act”).
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. This matter is therefore properly
before the Commissioner and the Administrative Law Judge.
3. The
Petitioner is an honorably discharged “veteran” within the meaning of Minn.
Stat. §§ 197.447 and 197.46 and is therefore entitled to all of the protections
and benefits afforded by the Act.
4. The
City of
5. Minn.
Stat. § 197.46 (2008) provides, in part, that:
No
person holding a position by appointment or employment in the several counties,
cities, towns, school districts and all other political subdivisions in the
state, who is a veteran separated from the military service under honorable
conditions, shall be removed from such position or employment except for
incompetency or misconduct shown after a hearing, upon due notice, upon stated
charges, in writing.”
This provision generally does not
apply to a situation when a public employer eliminates a position in good faith
for a legitimate purpose such as a good faith reorganization.[78] Whether the public employer eliminated the
veteran’s job in good faith for a legitimate purpose is an affirmative defense
for which the employer carries the burden of proof.[79]
6. Under
7. The
City fulfilled its obligation to notify the Petitioner of his rights under the
Act and the Petitioner requested a hearing within the time required.
8. The
City laid off the Petitioner from his position as the City Building Official on
April 24, 2009 as part of a good faith reduction and reorganization of the DSI
workforce which was caused by a severe budget shortfall.
9. Although
the DSI re-structuring and layoff plans occurred as discussions surrounding the
egress window policy and code enforcement in the aftermath of the Morris v. Sax decision were also
on-going, the Petitioner’s dissent on the latter was not a cause for his
layoff.
10. DSI
Director Kessler laid off the Petitioner because he was the least senior of the
managers and not because of the opinions he held toward the City’s
interpretation of and approach toward conflicting sections of the State and
City building codes.
11. The
Petitioner is therefore not entitled to the relief sought since the City did
not violate his rights under the Act.
12. The
Chief Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions.
RECOMMENDATION
Based on the foregoing Findings of
Fact and Conclusions of Law, the Chief Administrative Law Judge recommends that
the Commissioner of Veterans Affairs DENY the Petition for Relief.
Dated: July 28, 2009
s/Raymond
R. Krause
|
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 a final decision after
a review of the record. The Commissioner may adopt, reject, or modify these
Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties 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 Clark Dyrud, Commissioner of Veterans Affairs,
Under Minn. Stat. § 14.62, subd. 1,
the Commissioner must serve his final decisions upon each party and the
Administrative Law Judge by first class mail or as otherwise provided by law.
MEMORANDUM
I. Issue
and Authorities
The parties in this matter dispute
whether the City laid off the Petitioner in good faith for a legitimate reason.
Minn. Stat. § 197.46 (2008) provides
that an honorably-discharged veteran employed by a public employer cannot be
“removed from such position or employment except for incompetency or misconduct
shown after a hearing, upon due notice, upon stated charges, in writing.” However, Minnesota precedent has established
that the Veterans Preference Act (“Act”) does not “take away the power given
such officials [of public employers] over the administrative and business
affairs of the municipality, and does not prevent them from terminating the
employment of an appointee by abolishing the office or position which he held,
if the action abolishing it be taken in good
faith for some legitimate purpose, and is not mere subterfuge to oust him from his position.”[80] A good faith reduction in the workforce is a
“legitimate purpose” for removing a veteran’s position.[81] The public employer has the burden of proof as
an affirmative defense to establish that it eliminated a veteran’s position as
the result of a good faith reorganization.[82] Whether the public employer eliminated the
position in good faith or whether the reasons provided were a pretext to remove
the veteran is a question of fact for the trier of fact by a preponderance of
the evidence.[83]
However, if the veteran alleges that the
reorganization efforts were “merely a pretext for personnel actions that were
actually directed toward him personally and not toward the functions of his
position, the veteran is obliged to produce evidence of pretext.”[84] The ALJ must then assess whether the evidence
establishes a good faith reorganization or pretext.[85]
II. Application
to the Present Matter
The evidence in this case showed the
severity of the City’s budgetary challenges. DSI’s Special Fund contains approximately
$10.5 million and the reserve funds are now “in the negative” because of the
extent of the City budgetary crisis. These
totals are a substantial decrease from the beginning of 2008 when DSI’s Special
Fund boasted just under $13 million and its reserve funds totaled $2.6
million. Likewise, DSI’s General Fund
could not solve the Department’s shortfall because the State cut the City’s
2008 LGA appropriation by $5.7 million, its 2009 allocation by $5 million and
its 2010 amount by $11.6 million. As a
result of the fiscal difficulties, the Mayor’s Office directed DSI to
reorganize the Department and cut the workforce and enact other cost-saving
measures to help solve the City’s budgetary crisis. Eventually, the proposed cuts included a DSI
management position. The evidence
established that the layoff of any of the DSI managers would have induced a
re-structuring of Department units and the “devolution” of that manager’s
duties and responsibilities to the remaining managers and officials. As such, DSI had a compelling reason to
exercise it authority over its own operational structures.
DSI Director Kessler selected the
Petitioner for a layoff because he was the manager with the least amount of
seniority, which Director Kessler measured by the years of service with the
City of
Furthermore, the Petitioner did not
rebut the City’s evidence of budgetary duress and of the subsequent necessity
to reduce and streamline City operations in order to remedy the budget
shortfall. The Petitioner also failed to
provide any evidence of pretext by the City. Petitioner admitted that there was
no “smoking gun” to show that his layoff was not in good faith. The Petitioner did not establish that the
City’s budgetary evidence and justifications for staffing changes were merely a
pretext for his layoff.
He did attempt to admit a great deal of evidence to
support his views on what DSI’s enforcement policies should be. He also attempted to show that his
interpretation of Morris v. Sax was
correct and that he is more qualified for the job than Mr. Bloom. These points are not relevant to the issue
before the ALJ. The conflict over
policy, once stipulated to, is only relevant if Petitioner can show a
connection between the conflict and his layoff. The preponderance of the evidence fails to
demonstrate such a connection and establishes that the City laid off the Petitioner
in good faith for the legitimate purpose of reducing the management workforce
in DSI.
III. Conclusion
The evidence establishes that the
City laid off the Petitioner because of City budgetary problems and the
resulting need to restructure DSI to help balance the City’s budget. The Petitioner did not rebut any of the City
budgetary evidence and failed to offer any evidence supporting a pretextual
rationale for his layoff. DSI based the
Petitioner’s layoff on his length of service with and to the City of
The present matter personifies the real-life
consequences of economic downturns and municipal fiscal crises. Although the Petitioner was a skilled manager
devoted to serving and protecting the citizenry, his layoff derives from
circumstances beyond his control, that being the City’s good faith effort to
reduce costs in order to preserve the continued functioning of City government
services in light of the recent economic downturn and decreases in State aid to
cities.
R. R. K.
[1] Respondent’s Ex. D.8.4, p. 1.
[2] Respondent’s Ex. E.4; Respondent’s Ex. E.5, Minn. R.
1300.0110 (2008), further establishes the duties and powers of the Building
Official.
[3] Respondent’s Ex. E.4.
[4] Respondent’s Ex. D.8.2.
[5] Respondent’s Ex. C.6, p.3, Respondent’s Ex. C.2,
C.3, and C.4; Robert Kessler Testimony. See Respondent’s Ex. C.1 for the
organization of LIEP prior to the DSI consolidation.
[6] Respondent’s Ex. C-6, p. 5, 7-8.
[7] Kessler Testimony.
[8] Respondent’s C.2; Kessler Testimony.
[9] Kessler Testimony; Respondent’s Ex. A.2, A.3.
[10]
[11] Respondent’s Ex. A.7, Attachment B, p. 1.
[12] Kessler Testimony.
[13] Kessler Testimony.
[14] Kessler Testimony; Cordes Testimony.
[15] Cordes Testimony.
[16] Cordes Testimony.
[17] Kessler Testimony; Cordes Testimony; Respondent’s
Ex. B.2-B.7. The State cut the City’s 2008 LGA appropriation by $5.7 million,
its 2009 allocation by $5 million and its 2010 amount by $11.6 million. Cordes
Testimony; Respondent’s Ex. B.2-B.7.
[18] Kessler Testimony.
[19] Respondent’s Ex. A.2, p.1; Kessler Testimony; Cordes
Testimony.
[20] Cordes Testimony; Respondent’s Ex. A2-A3.
[21] Lippert Testimony.
[22] Kessler Testimony; Respondent’s Ex. A.2-A-3.
[23]
[24]
[25] Respondent’s Ex. A..4, p.1; Kessler Testimony.
Respondent’s Ex. A..4, p. 1.
[26] Kessler Testimony.
[27] Cordes Testimony; Kessler Testimony.
[28] Kessler Testimony.
[29]
[30] Id;
Respondent’s Ex. A.6, p.2.
[31]
[32] Kessler Testimony; Respondent’s Ex. D.7.1;
Respondent’s Ex. D.2.1; Respondent’s Ex. D.8.1. All three are also veterans.
Respondent’s Ex. D.1.
[33] Kessler Testimony, Respondent’s Ex. D.2.1.
[34] Kessler Testimony.
[35]
[36]
[37] Respondent’s Ex. D.2.2, p.1; Kessler Testimony.
[38] Respondent’s Ex. D.7.2., p.1; Kessler Testimony. ,
1971. Respondent’s Ex. D.4.2, p. 1; Respondent’s Ex. D.6.2, p.1;
[39] Respondent’s Ex. D.8.2; Kessler Testimony.
[40] Kessler Testimony; Respondent’s Ex. A.6, p. 9; compare to Respondent’s Ex. C-2. Under
the restructuring, the Manager of Code Enforcement manages the Construction
Services Division. Respondent’s Ex. A.6, p. 2.
[41] Respondent’s Ex. D.8.3; Kessler Testimony.
[42] Respondent’s Ex. A.7, “Attachment D;” Kessler
Testimony.
[43] Kessler Testimony.
[44] Respondent’s Ex. A.5; A.6; Kessler Testimony.
[45] Respondent’s Ex. A.7; Kessler Testimony.
[46] Respondent’s Ex. D.8.3.
[47] Cordes Testimony.
[48] Respondent’s Ex. G.
[49]
[50]
[51]
[52]
[53]
[54] Kessler Testimony.
[55] Respondent’s Ex. H, Article 6.1, p. 4.
[56]
[57] Kessler Testimony.
[58] Minn. Stat. § 326B.133, subd. 7 (2008) indicates
that “[i]n the event that a designated building official position is vacant
within a municipality, that municipality shall designate a certified building
official to fill the vacancy as soon as possible. The commissioner [of labor
and industry] must be notified of any vacancy or designation in writing within
15 days.”
[59]
[60] Bloom Testimony.
[61] Kessler Testimony.
[62] Lippert Testimony; Respondent’s Ex. D.4.1.
[63] Lippert Testimony.
[64]
[65] Kessler Testimony.
[66] Kessler Testimony.
[67] Wagner Testimony.
[68]
[69] Petitioner’s Testimony; Kessler Testimony; Zaccard
Testimony; Ehrlich Testimony.
[70] 749 N.W.2d 1, 7-13 (
[71] Petitioner’s Testimony; Kessler Testimony.
[72] Id.;
Petitioner’s Ex. BB; Ex. EE; Ex. GG; Ex. MM; Ex. ZZ. See also
Petitioner’s Ex. AAA; Ex. CCC for instances of other code policy or process
disagreements between the Petitioner and other DSI employees and managers and
City employees.
[73] Kessler Testimony; Petitioner’s Ex. HH. Director
Kessler did not recall whether meeting occurred. Kessler Testimony.
[74] Kessler Testimony.
[75] Petitioner’s Ex. YY-2, p. 1.
[76]
[77] Petitioner’s Ex. YY-2, p.3.
[78]
[79]
[80] State ex rel.
Boyd v. Matson, 155
[81] Myers v. City
of
[82] State ex rel.
Caffrey v.
[83] Caffrey,
at 641; State ex rel. Niemi v. Thomas,
27 N.W.2d 155, 157 (
[84] Lasley v. City
of
[85]