OAH
12-3100-20981-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE
|
Blayne K. Brisson, Petitioner, vs. City of Respondent. |
FINDINGS OF FACT, CONCLUSIONS AND ORDER |
The above entitled matter came on for hearing before
Administrative Law Judge Steve M. Mihalchick on January 28, 2010, at the Todd
County Board Room,
Blayne Brisson (Petitioner) appeared on his own behalf
without counsel.
Jana O’Leary
Sullivan and Daniel T. Carlisle, Attorneys at Law, appeared on behalf of the
City of
STATEMENT OF ISSUE
Whether the Petitioner was a department head and therefore
exempt from the protections of the Veterans Preference Act.
Based upon all of the proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
Jurisdictional and Procedural Findings
1.
Petitioner is an honorably discharged veteran. He served on active duty in the U. S. Air
Force from May 1974 until April 1977.[1]
2.
The City of
3.
On October 7, 2009, the City terminated the Petitioner’s
employment as a full-time maintenance supervisor. The City did not provide the Petitioner with notice
of his right under the VPA to request a hearing within 60 days of his
termination.
4.
On November 9, 2009, the Petitioner submitted a Petition for
Relief Under the Veterans Preference Act to the Commissioner.
5.
On December 4, 2009, the Commissioner issued a Notice of
Petition and Order for Hearing in this matter, and this contested case
proceeding ensued.
The Petitioner’s Employment with the City
6.
The City is governed by a City Council made up of the Mayor
and four Council members. The City Council
meets regularly on the second Tuesday of every month. The Mayor receives a payment of $40 per
meeting, and the Council members receive a payment of $35 per meeting.[2]
7.
The City hired the Petitioner as a full-time “maintenance/utility
worker” in May 2002. His starting pay
was $10.50 per hour.[3] At the time he was hired, the Petitioner had
a Class D water supply system operator license and Class D wastewater treatment
facility operator license. Shortly
thereafter, the Petitioner obtained his Class C wastewater treatment operator
license.[4]
8.
In 2002, the City had three employees: a clerk/treasurer,
the Petitioner, and Lyle Booens who worked part-time for the City mowing grass
and plowing snow. Mr. Booens worked
approximately 20 hours per week.[5]
9.
The Petitioner’s duties as the full-time maintenance/utility
worker included performing routine and skilled maintenance work relating to the
City’s streets, grounds, parks, equipment, water system, wastewater system, and
buildings.[6] Specifically, the Petitioner was responsible
for mowing grass, trimming trees and shrubs, plowing snow, repairing fences, patching
potholes, laying gravel, replacing sod, responding to calls involving sewer
backups or water main breaks, and arranging for underground utility location
services. In addition, the Petitioner was
responsible for overseeing the operation of the City’s water and wastewater
systems, which involved regularly checking, calibrating, and replacing if
necessary the systems’ gauges, hoses and pumps, reading the meters, and adding
chemicals to ensure the systems’ proper functioning. The Petitioner was also responsible for
collecting samples, recording information, and preparing monthly reports to be
signed by the Mayor and submitted to the Minnesota Department of Health (for
the water system) and the Minnesota Pollution Control Agency (MPCA) (for the
wastewater system). The Petitioner also
recommended equipment purchases, repairs and other maintenance related
improvements to the City Council and provided the Council with cost estimates. Finally, the Petitioner supervised and assigned
work to Mr. Booens, and performed “any additional duties at the request of the
City Council.”[7]
10.
The Petitioner reported to and was supervised by the City
Council.[8] The Mayor and Council members prepared
written evaluations of the Petitioner’s performance in 2004, 2008 and 2009.[9] By 2009, the Mayor and three Council members
expressed dissatisfaction with the Petitioner’s performance in several areas,
including routine maintenance of equipment and responsiveness to requests or
assignments from Council members.[10]
11.
The Petitioner attended the regular monthly City Council
meetings. At these meetings, the
Petitioner presented a monthly maintenance report he prepared detailing the maintenance
tasks that had been accomplished during the month and identifying the projects
or purchases that needed to be undertaken in the future.[11] The Petitioner also prepared for the City
Council an annual Operations and Maintenance Report that summarized the City’s
maintenance accomplishments and needs.[12]
12.
Any purchase over $25 required a purchase order and had to
be approved by the Mayor. While the
Petitioner could make recommendations regarding purchasing equipment for
maintenance purposes, the ultimate authority to purchase that equipment rested
with the Mayor and City Council.[13] Likewise, requests by the Petitioner to
attend training sessions or continuing education courses had to be approved by
the City Council.[14]
13.
On at least two occasions in 2004, the Petitioner requested
that the City Council change his job title to Public Works Director. The Petitioner believed that the title
“maintenance/utility worker” did not accurately reflect his duties, and in
particular his work involving the operation of the water and wastewater
treatment plants. The Council declined
the Petitioner’s requests.[15]
14.
In early March 2006, the City Council hired Aaron Fore as a part-time
maintenance/utility worker after interviewing four applicants during its regular
meeting on February 27, 2006.[16] The City Clerk and the Petitioner were present
at the Council meeting and participated in the interviews.[17] Like Mr. Boones, Mr. Fore worked
approximately 20 hours per week. Neither
Mr. Fore nor Mr. Boones had the same licenses and certificates that the
Petitioner possessed, such as a Class C driver’s license and Class D water and
wastewater operator licenses.[18]
15.
With the hire of Mr. Fore, the City changed the Petitioner’s
title to “maintenance supervisor.” The
Petitioner’s job description and duties for “maintenance supervisor” were nearly
identical to that of the “”maintenance/utility worker” except for the added
duty of supervising two part-time employees instead of one.[19]
16.
The Petitioner’s supervisory duties included assigning and
prioritizing daily work tasks for Mr. Boones, Mr. Fore and himself, and
generally overseeing the maintenance operations for the City. The Petitioner supervised Mr. Boones and Mr.
Fore and directed their work. In
addition, the Petitioner prepared annual performance reviews for Mr. Boones and
Mr. Fore, which were approved by the City Council, and had the authority to
discipline both Mr. Boones and Mr. Fore if necessary. On one occasion, at the direction of the
Mayor, the Petitioner reprimanded Mr. Fore for failing to shovel the walkway at
the City office building.[20]
17.
By April 2006, Mr. Fore was performing the operational
monitoring and recording duties for the water system plant on his own and
without supervision on weekends.[21]
18.
In 2008, Mr. Fore obtained his Class D wastewater treatment
facility operator license.[22]
19.
In 2009, Mr. Boones retired and left his employment with the
City.
20.
After Mr. Boones retired, the Mayor recommended that the
Petitioner’s job title be changed from “Maintenance Supervisor” to “Lead
Maintenance Operator” since he only supervised one part-time employee.[23]
21.
In August of 2009, the League of Minnesota Cities Insurance
Trust conducted an investigation on behalf of the City into allegations of
misconduct by the Petitioner.[24]
22.
On September 16, 2009, the City conducted a Loudermill hearing to consider
discipline and possible termination of the Petitioner. Those attending the hearing included the
City’s Attorney, Dan Carlisle, the Mayor, City Council member James Opelia and
the Petitioner.[25]
23.
On October 7, 2009, the City adopted a Resolution
terminating Petitioner’s employment for undisclosed misconduct. The Resolution was effective immediately and
was signed by the Mayor and Council member James Opelia.[26]
24.
At the time of his termination, the Petitioner was earning
$17 per hour and had both a Class C water system operator license and a Class C
wastewater treatment facility operator license.[27]
25.
On October 13, 2009, the Petitioner requested a Veterans
Preference hearing.[28]
26.
By letter dated October 15, 2009, the Mayor informed the
Petitioner that it was the City’s position that he fell within the department
head exception to the Veterans Preference hearing requirement and that as a
result, the City was not required to provide him with a hearing.[29]
Other
Findings
27.
These Findings are based on all of the evidence in
the record. Citations to portions of the
record are not intended to be exclusive references.
28.
To the extent that the Memorandum that follows
explains the reasons for these Findings of Fact and contains additional
findings of fact, including findings on credibility, the Administrative Law
Judge incorporates them into these Findings.
29.
The Administrative Law Judge adopts as Findings
any Conclusions that are more appropriately described as Findings.
Based upon the foregoing
Findings of Facts, the Administrative Law Judge makes the following:
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 (VPA).
2.
Petitioner is an honorably discharged veteran for purposes
of Minn. Stat. §§ 197.447 and 197.46.
3.
When issuing the Notice of Petition and Order for Hearing,
the Department complied with all substantive and procedural requirements of
statute and rule.
4.
The City of
5. The Veterans Preference Act prohibits the removal of a veteran from public employment except for incompetence or misconduct shown after a hearing, upon due notice and upon stated charges in writing.[30]
6 The legislature has exempted from the
Veteran’s Preference Act the following positions: private secretary, superintendent of schools,
or one chief deputy of any elected official or head of a department,
or any person holding a strictly confidential relation to the appointing
officer.[31]
7 Typically, a veteran has the burden of
proving a violation of the Veterans Preference Act.[32] The burden of establishing the
department-head exemption, however, is on the appointing authority.[33]
9.
The City has failed to establish that the Petitioner’s
“Maintenance Supervisor” position is a department-head position that is exempt
from the Veterans Preference Act.
10.
The Veterans Preference Act provides that the public
employer must notify the veteran in writing of its intent to discharge the
veteran, any charges against the veteran, and the veteran’s right to a
veteran’s preference hearing within 60 days of receiving the notice.[34]
11.
The Petitioner was not given written notice of the City’s intent
to terminate for cause and his right to a hearing within sixty (60) days of October
7, 2009, pursuant to Minn. Stat. § 197.46.
12.
The Petitioner is entitled to a hearing to determine whether
he was incompetent of committed misconduct within the meaning of Minn. Stat. §
197.46 justifying his removal from his position with the City.
13.
The Administrative Law Judge adopts as Conclusions any
Findings that are more appropriately described as Conclusions.
Based
upon the foregoing Conclusions and for the reasons described in the Memorandum
that follows, the Administrative Law Judge makes the following order:
ORDER
IT
IS HEREBY ORDERED THAT:
This
contested case hearing will be reconvened on a date and at a location in
1. Whether the
Petitioner was incompetent or committed misconduct within the meaning of Minn.
Stat. § 197.46 justifying removal from his position with the City.
2. Whether the
Petitioner is entitled to reinstatement, back pay, and benefits before or after
the discharge hearing, and any offsets to which the City may be entitled.[35]
3. The foregoing
Findings and Conclusions shall be incorporated into the Final Report of the
Administrative Law Judge issued after the reconvened hearing.
Dated: April 7, 2010
/s/
Steve M. Mihalchick
|
STEVE M. MIHALCHICK Administrative Law Judge |
Reported: Digitally Recorded
MEMORANDUM
The Veterans
Preference Act prohibits public employers from discharging a veteran “except
for incompetency or misconduct shown after a hearing, upon due notice, upon
stated charges, in writing.”[36] However, that Act does not apply to persons
employed as “one chief deputy of any elected official or head of a department,
or to any person holding a strictly confidential relation to the appointing
officer.”[37] While this section does not expressly exempt
department heads, the Minnesota Supreme Court has determined that department
heads are excluded by implication because of the statute’s explicit exclusion
of chief deputies of department heads.[38]
The exemption
is a narrow one and is limited to persons in positions with authority
comparable to that of an elected official, who are vested with discretion in
the performance of their duties, “not subject to direction from superior authority
but on the contrary possessing the necessary authority to appoint clerks and
subordinates.”[39] The “head of a department” ordinarily means
the head of some government division that is important enough to have a
deputy. The Minnesota Supreme Court has
held that, while cases may arise in which a department has only one employee,
who thereupon would be the head of the department, “we believe that ordinarily,
before anyone could be classified as a head of a department, the department
must be sufficiently important as to include more than one employee.”[40]
The Minnesota
Supreme Court has identified several other factors to consider in determining
whether the position at issue is a department head, including:
1. Does the
alleged department head have charge of the work done by his department?
2. Does his work
require technical, professional training?
3. Is he the
highest authority at that level of government as to his official duties?
4. Does he
supervise all of the work in his department?
5. Does the
success of his department depend on his technique?
6. Are the
employees in the department under his direction?
7. Are his duties
more than merely different from other employees?
8. Does he have
power to hire and fire subordinates?[41]
Many of the
factors identified for determining whether someone is a department head have
little relevance when, as in this case, there is only one full-time person in
the “department” with one or two part-time employees. The full-time person will necessarily “have
charge of the work done” in the department and be responsible for the success
of the department’s work. Here, the City
established that the Petitioner supervised Mr. Fore and Mr. Boones and assigned
and directed their daily (part-time) work.
However, the evidence presented also established that the Petitioner did
not have the authority to hire and fire subordinates, nor was he the highest
level of authority with respect to his own official duties. Instead, the record is clear that the
Petitioner reported to and was supervised by the City Council whose members
could assign him additional duties and had the ultimate authority to reject or
approve his recommended purchases, suggested improvements, or training requests. In addition, many of the duties that
Petitioner carried out were similar to those performed by Mr. Fore and Mr.
Boones. For example, all three took care
of the grounds and snow plowing on occasion, and Mr. Fore would often assist
the Petitioner with tasks such as repairing fences, setting up holiday
decorations, and replacing water meters.[42] And while it is true that the Petitioner was
the main person in charge of monitoring and overseeing the operation of the
City’s water and wastewater treatment plants, Mr. Fore took over those duties early
on in his employment on the weekends he worked.
Based on the
record, the Administrative Law Judge concludes that the Petitioner’s Maintenance
Supervisor position was not one that had authority comparable to that of an
elected official, with discretion to set policy, or even the ability to hire or
fire anyone else. In State ex rel.
Sprague v. Heise, the
Supreme Court determined that a building inspector was not a department head
because he was the sole employee doing that type of work; he had no power to
hire or fire subordinates; he had no discretion in fixing fees; he was
answerable to the village council; and while he had a part-time clerk who kept
the records, he could neither hire nor fire her nor otherwise control her work.[43] The situation is similar in this case. The City Council has reserved for itself the
power to hire and fire employees, as well as the authority to direct the
Petitioner’s work and purchasing decisions.
The Petitioner’s budget, purchases, staff, and duties were subject to
the direct control of the City Council. Moreover,
the Council rejected Petitioner’s request early on to be named “Public Works
Director,” and later recommended changing his title from Maintenance Supervisor
to “Lead Maintenance Operator” when Mr. Boones retired. These decisions suggest that the City did not
perceive the Petitioner to be a department head but rather simply the City’s lead
and only full-time maintenance employee.
On balance, based upon a consideration of all the factors identified in Sprague
and McGinnis, the Administrative Law Judge concludes that this position
is not a department-head position that is exempt from the Veterans Preference
Act. The position simply did not have
the requisite level of authority, responsibility, and independence of action
necessary to be a department head.
Therefore,
this matter will be set on for a further contested case hearing on a date to be
determined, to address whether the Petitioner was incompetent or committed
misconduct within the meaning of the Veterans Preference Act justifying his
removal from his position with the City.
S.M.M.
[1] Report of Separation from Active Duty attached to
Petition for Relief under the Veterans Preference Act.
[2] Testimony of
J. Mitchell.
[3] Testimony of J. Mitchell and Petitioner.
[4] Ex. 7.
[5] Testimony of
J. Mitchell.
[6] Testimony of J. Mitchell; Ex. 1.
[7] Testimony of J. Mitchell and Petitioner; Ex. 1.
[8] Exs. 28, 29, 33-36.
[9] Exs. 28, 29, 33-36.
[10] Exs. 33-36.
[11] Testimony of
J. Mitchell.
[12] Testimony of Petitioner; Exs. 8-27.
[13] Testimony of
Petitioner.
[14] Exs. 9 and
13.
[15] Testimony of
Petitioner; Exs. 4-6 (City Council meeting minutes.)
[16] Ex. 39.
[17] Testimony of
J. Mitchell; Ex. 39.
[18] Testimony of J. Mitchell and Petitioner.
[19] Testimony of J. Mitchell; Compare, Ex. 1 with Ex. 2.
[20] Testimony of J. Mitchell and Petitioner; Exs. 1, 2, 42-48.
[21] Testimony of Petitioner; Ex. 42.
[22] Testimony of Petitioner; Ex. 47.
[23] Testimony of J. Mitchell; Exs. 3 and 33.
[24] Ex. 51.
[25] Ex. 52.
[26] Ex. 53.
[27] Testimony of
J. Mitchell and Petitioner; Ex. 7a.
[28] Ex. 55.
[29] Ex. 56.
[30]
[31] Minn. Stat. §
197.46 (emphasis added).
[32] Minn. R.
1400.7300, subp. 5.
[33]
[34]
[35] A veteran who
is involuntarily removed from his position by a public employer without first
receiving the written notice and hearing is entitled to reinstatement and back
pay from the date of his removal until properly discharged in accordance with
the Veterans Preference Act. Mitlyng v. Wolff, 342 N.W.2d 120, 123 (
[36]
[37]
[38] State ex
rel. Sprague v. Heise, 243
[39] Sprague,
67 N.W.2d at 911, citing McOsker, 208 N.W. at 1006.
[40] Sprague,
67 N.W.2d at 912.
[41] State ex.
rel. McGinnis v. Police Civil Service Commission, 253
[42] See, Exs. 13, 14, 19 and 20.
[43] 67 N.W.2d at
912; see also State ex rel. Caffrey v. Metropolitan Airports Commission,
310 Minn. 480, 486-87, 246 N.W.2d 637, 641 (1976) (director of public affairs
was not a department head where he did not report directly to the Commission
but was subject to the authority and supervision of others; he and his
secretary were the only employees in the department; and he did not have
authority to hire or fire others); Holmes v. Board of Commissioners, 402
N.W.2d 642 (Minn. App. 1987) (individual serving as zoning administrator,
agricultural inspector, and civil defense director for county who was assisted
in each area only by a secretary was not a department head where his duties
were largely ministerial, he was subject to board directives in matters
requiring the exercise of discretion, and he lacked authority to hire or fire
his secretary or other subordinates).