OAH
4-3100-21648-2
OAH
4-3100-21664-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE
|
David B. Bentzen, Petitioner, vs. Respondent. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
Administrative Law Judge Bruce H. Johnson
(ALJ) conducted a hearing in the above entitled consolidated contested proceedings at the Office of Administrative Hearings,
Trevor S. Oliver, Attorney at Law, appeared
on behalf of David B. Bentzen (Petitioner).
Cheri Sudit, Assistant Hennepin County Attorney, appeared on behalf of
STATEMENT OF ISSUES
1. Did the County violate the Petitioner’s rights under the
Veterans Preference Act, Minn. Stat. § 197.46 (VPA)[2]
in connection with his applications for employment as a Sheriff’s Evidence
Specialist on April 11, 2008, or on September 28, 2009.
2. If so, what remedy, if any, is
appropriate.
SUMMARY
The County violated the Petitioner’s
veteran’s preference rights in connection with his application for the position
of Sheriff’s Evidence Specialist in April 2008 but did not violate his
veteran’s preference rights in connection with his application for an identical
position in September 2009. Because the
County gave the Petitioner a guaranteed interview in a second posting for an
identical position in 2009, the County provided him with appropriate relief for
the violation that occurred in April 2008.
The ALJ therefore recommends that the Commissioner grant the Petitioner
no further relief.
Based upon all of the proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
Jurisdictional and Procedural Findings
1.
The Petitioner is an honorably discharged veteran, having
served on active duty in the U. S. Navy from July 25, 1972, until July 24, 1978.[3]
2.
The County is a political subdivision of the State of
3.
On October 25, 2010, the Petitioner submitted a Petition for
Relief Under the Minnesota Veterans Preference Act (Petition for Relief) to the
Commissioner of the Department of Veterans’ Affairs (Commissioner) alleging a
violation of his VPA rights on or about April 11, 2008. On the following day,[4]
he submitted another Petition for Relief alleging another violation of his VPA
on or about September 28, 2009.
4.
On November 1, 2010, the Commissioner issued Notices of
Petition and Orders for Hearing in both matters, and this consolidated
contested case proceeding ensued.
The Petitioner’s Military Service, Education, and County
Employment
5.
During his service with the U. S. Navy, the Petitioner was
trained and served as an electronics technician.[5]
6.
After being discharged from the Navy, the Petitioner
attended the University of Wisconsin-LaCrosse between September 1978 and May
1980, but he did not complete a bachelor’s degree. While enrolled at that institution, he also
worked as a police officer in the Onalaska,
7.
From September 1980 to December 1987, the Petitioner worked
as a Signal Construction Crewman for the Burlington Northern Railroad. From February 1987 to April 1991, he worked
as an automotive service technician, and from February 1991 to December 1992,
he worked as a security officer for American Security Corporation’s Armored Car
Division.[7]
8.
In January 1993, the Petitioner became employed as a patrol
deputy for the Dodge County Sheriff’s Office, a position that he held until he received
a medical retirement in January 2001.[8]
9.
Between September 1990 and May 2008, the Petitioner received
three Associate in Applied Science degrees from
10.
The Petitioner has also attended the University of
Minnesota-Duluth where he pursued courses of study in criminology and biology.[10]
11.
The County’s human resource management systems are governed
by Minn. Stat. §§ 383B.26—383B.42.
Specifically, Minn. Stat. § 383B.39 provides:
In all examinations veteran’s preference shall be granted to
every person who is a veteran as defined in section 197.447.
12.
County personnel rules require that veterans be given
interviews whenever they apply and meet the qualifications for open competitive
positions. As a matter of policy,
current County employees are also be given interviews whenever they apply for
open positions.[11]
13.
In August 2002, the County established job class
specifications for the position of Sheriff’s Evidence Specialist. Those job class specifications contained the
following “Employment Standards”:
Education and
Experience:
Two years of college or vocational-technical course work in
a law enforcement or criminal justice program; OR completion of twenty (20) college quarter credits in anatomy,
biology, chemistry, physiology, or a closely related field; OR current or prior licensure as a
peace officer; OR two years of
experience inventorying or accounting for inmate property or police evidence; OR an approved equivalent combination
of education and experience.
Licenses:
Possession of valid drivers license with no more than two
(2) moving violations in the last three (3) years.
Knowledge,
Skills and Abilities:
Knowledge of: current crime laboratory
methods; Sheriff’s Office and forensic laboratory policies, procedures and
guidelines; best practices for packaging and storing criminal evidence to
maintain evidence integrity and chain of custody; safe handling of biohazardous
materials and weapons; statues (sic) and regulations governing disposition of
evidence.
Skill in: accurately inventorying
and accounting for evidence in computerized data bases; safely performing
safety checks on weapons; communicate orally and in writing.
Ability to: handle and secure
criminal evidence with complete honesty; develop and conduct classroom and
on-the-job training for law enforcement personnel; research evidence handling
issues to identify best practices.
14.
The job class specifications did not specify any, more
rigorous ideal qualifications of applicants.
15.
When an open position was posted for appointment, it was the
practice of the County’s Department of Human Resources (HR Department) to first
screen applications to rule out applicants who did not meet the position’s
minimum qualifications. If there were a
large number of minimally qualified applicants, the HR Department would conduct
a second screening to develop a smaller list of ideally qualified applicants. The HR Department would then submit the list
of ideally qualified applicants to the hiring County department.[12]
The Petitioner’s Initial Employment with the County
16.
In October 2000, the Petitioner applied to the U. S.
Department of Veterans Affairs (VA) for a disability rating based on injuries
or conditions that occurred during his active duty service in the U. S. Navy.[13]
17.
On or about March 26, 2001, the Petitioner applied to the
County for a position as a Detention Specialist at the
18.
In June 2001, the VA gave the Petitioner a disability rating
of 30% or greater.[16] By letter dated June 23, 2003, the Minnesota
Department of Veterans Affairs (DVA) provided him with evidence certifying that
he was receiving disability compensation rated at 30% or greater.[17] On or about February 26, 2010, the VA increased
the percentage of his service connected disability to 50%.[18]
19.
The Petitioner did not provide the County with written
evidence of any service connected disability until April 27, 2010, when he
submitted documentation to the County from the VA regarding an increase of his
disability rating for attachment to his application master record.[19]
Petitioner’s Application for the April 11, 2008, Posting
20.
On or about April 11, 2008, the County published an
invitation (posting) for applications for open competitive appointment to the
position of Sheriff’s Evidence Specialist.
Among other things, that Posting stated that:
The Ideal Candidates must have:
· Bachelor’s degree or higher
in criminal justice, forensic science or a closely related field
· Two or more years of previous
experience with chain of custody and evidence integrity preservation in a law
enforcement setting
· An understanding of
judicial system processes pertaining to evidence in criminal court proceedings
· Ability to manage multiple
evidence storage locations, to organize a wide variety of tasks and adapt to
frequently changing priorities
· Ability to recognize and
respond positively and respectfully to the needs of diverse customers including
law enforcement professionals, other laboratory personnel, Sheriff’s Office
personnel, court personnel, and the general public
· Ability to work
independently with minimal direction
· Ability to make
presentations in a formal court setting regarding evidence integrity
· Ability to bend, climb,
stretch, and lift up to 50 pounds
· Previous experience using
personal computers including a working knowledge of Microsoft Word, Excel,
PowerPoint, and Access
· Previous work experience in
a crime lab
· A willingness to handle
evidence packaging containing drugs, narcotics, weapons, graphic crime scene
photographs as well as biological and other hazardous materials
· An approved driver’s
license and satisfactory driving record including no more than two moving
violations within the last three years
·
No felony convictions.[20]
21.
On or about April 11, 2008, the Petitioner applied for a
County open competitive appointment for the position of Sheriff’s Evidence
Specialist.[21]
22.
There were 138 other applicants for that position. The Petitioner met the minimum qualifications
for the position as set forth in the class specifications, but nine other
candidates did not meet the minimum qualifications.[22]
23.
Of the remaining 130 applicants, the HR Department
determined that 94 applicants, including the Petitioner, did not have the ideal
qualifications described in the April 11, 2008, posting. The HR Department determined that the
Petitioner did not meet the ideal qualifications because he lacked a Bachelor’s
degree or higher in criminal justice, forensic science or a closely related
field.
24.
The County interviewed 22 applicants with ideal
qualifications for the Sheriff’s Evidence Specialist position described in the
April 11, 2008, Posting.[23] Because the County had concluded that the
Petitioner did not meet the ideal qualifications described in the posting, it
did not give him an interview.[24]
25.
On April 11, 2008, the County notified the Petitioner by
email that he had not been selected for the Sheriff’s Evidence Specialist
position posted.[25]
Petitioner’s Application for the September 28, 2009, Posting
26.
On or about September 28, 2009, the County published another
Posting for an open competitive appointment for the position of Sheriff’s
Evidence Specialist. That second posting
described the characteristics of “ideal candidates” somewhat differently from
the characteristics described in the April 11, 2008, Posting:
The Ideal Candidates must have:
· Two or more years of
previous experience in evidence management in a law enforcement setting
· The ability to manage
multiple evidence storage locations and adapt to frequently changing priorities
· The ability to recognize
and respond positively and respectfully to the needs of diverse customers
including law enforcement professionals, other laboratory personnel, court
personnel, and the general public
· The ability to work
independently with minimal direction
· The ability to bend, climb,
stretch, and lift up to 50 pounds
· A willingness to handle
evidence packaging including narcotics, weapons, biological materials, and
other hazardous items
· Previous experience using
personal computers and computer software such as Microsoft Office, a Laboratory
Information Management System (LIMS), a Records Management System (RMS), and
specialized evidence management and inventory programs
· An understanding of
judicial system processes pertaining to evidence in criminal court
· The ability to make
presentations in a formal court setting regarding evidence handling procedures
· An approved driver’s
license and satisfactory driving record including no more than two moving
violations within the last three years
· No felony convictions
·
Ability to demonstrate the employee competencies[26]
27.
On or about September 29, 2009, the Petitioner submitted an
application in response to the County’s second posting for a position of
Sheriff’s Evidence Specialist.[27]
28.
The County received 273 other apoplications for that
position. The Petitioner met both the
minimum qualifications for the position as set forth in the class
specifications and the ideal qualifications set forth in the September 28,
2009, posting.[28]
29.
The County interviewed 25 applicants, including the
Petitioner and three other veterans, for the Sheriff’s Evidence Specialist
position described in the September 28, 2009, posting.[29]
30.
Prior to the interviews, the HR Department ranked the
applicants. All four of the veterans
were given 5 veterans preference points and tied for the Number 1 ranking. The non-veteran applicants tied for the
Number 2 ranking.[30]
31.
The Interviews were conducted by a panel of three members of
the Sheriff’s Office staff—Kristen Tomlinson, Steve Henning, and Shane Magnuson. The interviewers asked the same twelve questions
of each applicant, took notes of the applicants’ responses, and then scored the
applicants’ answers using the following scale:
0
= Unacceptable Answer
1
= Marginal answer or didn’t fully answer the question
2
= Acceptable Answer
3
= Good Answer
4 = Excellent Answer
32.
The three interviewers gave the Petitioner scores of 26, 29,
and 26, for a total score of 81 out of a possible 144.[31] However, the interviewers gave another
applicant, L.E., scores of 38, 40, and 40, for a total score of 118 out of a
possible 144.[32] Based on the scoring of the interviews, L.E.
was selected for the position.
33.
By letter dated
December 15, 2009, the County notified the Petitioner that he had not been
selected for the Sheriff’s Evidence Specialist position posted on September 28,
2009.[33]
Other
Findings
34.
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.
35.
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.
36.
The
Administrative Law Judge adopts as Findings any Conclusions that are more
appropriately described as Findings.
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 to consider this matter.[34]
2.
The Notices of
Petition and Orders for Hearing were proper in all respects, and the Department
of Veterans Affairs (DVA) has complied with all of the law’s substantive and
procedural requirements.
3.
The DVA gave the
Petitioner and the County proper and timely notice of the hearing in this
matter.
4.
The Petitioner
is an honorably discharged, disabled “veteran” within the meaning of the VPA,[35]
and he is entitled to all of the protections and benefits of that Act.
5.
The VPA
provides, in part, that:
The provisions of section 43A.11 granting preference to veterans in the
state civil service shall also govern preference of a veteran under the civil
service laws, charter provisions, ordinances, rules or regulations of a county, city, town, school district, or
other municipality or political subdivision of this state . . . [Emphasis supplied.]
6.
Minn. Sta. §
43A.11, subd. 1, in turn, provides that:
Recognizing that training and experience in the military services of the
government and loyalty and sacrifice for the government are qualifications of
merit which cannot be readily assessed by examination, a veteran's preference
shall be available pursuant to this section to a veteran as defined in section
197.447.[36]
7.
Minn. Sta. §
43A.11, subd. 5, defines “disabled veteran”:
For the
purpose of the preference to be used in securing appointment from an applicant
pool, "disabled veteran" means a person who has a compensable service
connected disability as adjudicated by the United States Veterans
Administration, or by the retirement board of one of the several branches of
the armed forces, which disability is existing at the time preference is
claimed.[37]
8.
Minn. Stat. §
197.455, subds. 4 and 5, provide:
Subd. 4. Nondisabled veteran's credit. There
shall be added to the competitive open examination rating of a nondisabled
veteran, who so elects, a credit of five points provided that the veteran
obtained a passing rating on the examination without the addition of the credit
points.
Subd. 5. Disabled
veteran's credit. There shall be added to the competitive open
examination rating of a disabled veteran, who so elects, a credit of ten points
provided that the veteran obtained a passing rating on the examination without
the addition of the credit points. There shall be added to the competitive
promotional examination rating of a disabled veteran, who so elects, a credit
of five points provided that (1) the veteran obtained a passing rating on the
examination without the addition of the credit points; and (2) the veteran is applying
for a first promotion after securing public employment.
9.
Minn. Stat. § 43A.11, subd. 7, provides:
Subd. 7. Ranking of veterans. Applicants who meet the minimum qualifications for a
vacant position and claim disabled veteran's preference shall be listed in the
applicant pool ahead of all other applicants. Applicants who meet the minimum
qualifications for a vacant position and claim nondisabled veteran's preference
shall be listed in the applicant pool after those claiming disabled veteran's
preference and ahead of nonveterans. Each recently separated veteran who meets
minimum qualifications for a vacant position and has claimed a veterans or
disabled veterans preference must be considered for the position. The top five
recently separated veterans must be granted an interview for the position by
the hiring authority.
10.
The Sheriff’s
Office is a department of the County, and its employees are employees of the
County. By law the County must therefore
credit applicants for positions with any of the VPA’s hiring preferences for
which they may be eligible.[38]
11.
County personnel
rules require that veterans be given interviews whenever they apply and meet
the qualifications for open competitive positions. As a matter of policy, current County
employees are also be given interviews whenever they apply for open positions.[39]
12.
The party
proposing that certain action be taken must prove the facts at issue by a
preponderance of the evidence, unless the substantive law provides a different
burden or standard.[40] Because VPA does not
address burden of proof in contested case proceedings initiated under that Act,
the Petitioner has the burden of proof to establish by a preponderance of the
evidence that the County denied him rights to which he was entitled under the VPA.
13.
The Petitioner failed to establish by a preponderance of the
evidence that he provided the County with evidence documenting his service
connected disability prior to April 27, 2010.[41]
14.
By law
competitive open hiring examinations given by the County may consist of written
examinations or reviewing applicant’s qualifications and informally ranking
applicants after oral interviews.[42]
15.
The tests that
the County administered to applicants in connection with its April 11, 2008,
and September 28, 2009, postings for the position of Sheriff’s Evidence Specialist were
based on evaluation of applicants’ past training and experience through oral
interviews.
16.
When a political subdivision employs an evaluative interview
in a hiring process in which veterans are involved, it must use a 100-point
rating system in determining which applicants will receive an interview.[43]
17.
Receiving a veteran’s preference credit does not provide
absolute preference for veterans; veteran’s preference credit may increase the
chance that a veteran will receive an interview, but the hiring authority may
hire any certified applicant.[44]
18.
The County’s failure to use a 100-point rating system to
determine who would be interviewed and its failure to give the Petitioner an
interview in connection with the April 11, 2008, Posting for the position of
Sheriff’s Evidence Specialist violated both the VPA and County personnel rules.[45]
19.
By giving the Petitioner a Number 1 ranking on the interview
list for the September 28, 2009, posting for the position of Sheriff’s Evidence
Specialist and by giving him an interview, the County gave the Petitioner the
veteran’s preference rights to which he was entitled under Minn. Stat. §
197.455. The County did not violate the
Petitioner’s veteran’s preference rights by failing to hire him for that
position.[46]
20.
The
Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions.
21.
The Memorandum
that follows explains the reasons for these Conclusions, and the Administrative
Law Judge therefore incorporates that Memorandum into these Conclusions.
Based
upon these Conclusions, and for the reasons explained in the accompanying
Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATIONS
The Administrative Law Judge respectfully recommends that the
Commissioner:
(1) DISMISS David B. Bentzen’s Petition for Relief in OAH 4-3100-21664-2; and
(2) GRANT David B. Bentzen’s Petition for Relief in OAH 4-3100-21648-2,
but grant no further relief for the reasons set forth in the Memorandum that
follows.
Dated: February 28, 2011.
|
s/Bruce
H. Johnson |
|
BRUCE
H. JOHNSON |
|
Administrative
Law Judge |
Reported:
Digitally Recorded
NOTICES
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 to the proceeding 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 Larry Shellito, Commissioner of Veterans Affairs,
Under Minn. Stat. § 14.62, subd. 1, the Commissioner is
required to serve his final decision upon each party and the ALJ by first class
mail or as otherwise provided by law.
MEMORANDUM
In October
2000, the Petitioner applied to the VA for a disability rating based on
injuries or conditions that occurred during his active duty service in the U.
S. Navy.[47] The Petitioner applied for his current
position with the County on or about March 26, 2001.[48] In order to receive a preference as a
disabled veteran, applicants were required to attach a letter from the VA
verifying their disabled status to their Claim for Veteran’s Preference form.[49] In response to the question “Do you have a
service connected disability? Percentage
of service connected disability, the Petitioner merely typed “???” He did not provide
the County with any evidence of that disability and its extent at that time.[50] In fact, the VA did not actually give the
Petitioner a disability rating until June 2001, three months after he began his
employment with the County..[51]
The Petitioner
testified that he subsequently gave a copy of that first disability rating to
the County’s HR Department for inclusion in his Application Master Record as an
attachment. The Petitioner’s testimony
was not explicit about when he provided that first VA disability determination
to the County, although he intimates that the document was provided to the
County before his first application for a Sheriff’s Evidence Specialist
position in April 2008.[52] On the other hand, the Petitioner’s Application
Master Record indicates that it is an applicant’s responsibility to create a VA
disability certification as an attachment.[53] The only record of a VA disability
certification being attached to the Petitioner’s Application Master Record is a
April 10, 2010, entry indicating that the Petitioner had uploaded a February
26, 2010, letter from the VA increasing the percentage of his service connected
disability by an unspecified amount.[54] The Petitioner made no assertion nor
introduced any evidence that the information recorded on his Petitioner’s Application
Master Record was erroneous. The
Petitioner’s testimony about when he first provided evidence of a VA disability
determination to the County was vague, at best, and any assertion that he gave
the County such evidence before applying for either of the Sheriff’s Evidence
Specialist positions is contradicted by documentary evidence, the accuracy of
which was not challenged. The ALJ
therefore concludes that the Petitioner failed to establish by a preponderance
of the evidence that he was entitled to the credit available to disable
veterans allowed by Minn. Stat. §
197.455, subd. 5.
II. The
Petitioner was denied his veteran’s preference rights in April 2008, but not in
September 2009.
The parties agree that the VPA in its
current form does not guarantee that a public employer will hire an eligible
veteran in preference over eligible non-veterans.[55] What, then,
is the nature of the advantage or preference that the VPA does give to veterans
who apply for governmental positions?
The Petitioner argues that a public employer must use a 100-point rating
system or other objective rating system to select candidates to certify for
interviews in order to give “tangible meaning” to military service as a factor
to be given “similar weight to other forms of education, experience, or
training.” The evidence established that
the County did not use a 100-point rating system when it filled the two Sheriff’s Evidence Specialist
positions in April 2008 and September 2009.
The question, then, is whether the County violated the Petitioner’s
veteran’s preference rights in connection with either or both postings.
A. The County properly used an evaluative
interview process in lieu of a written competitive in selecting an incumbent for
the Sheriff’s Evidence Specialist position that was posted in September 2009.
Citing Minn.
Stat. §43A.11 and its predecessor statutes, the Minnesota Supreme Court in Hall, observed that the legislature had
not defined the term “examination,” and concluded that interviews were “an
appropriate form of examination.”[56] Citing Hall,
in turn,the Minnesota Court of Appeals confirmed that general proposition in McAfee:
The court in Hall v.
City of Champlin addressed the application of veteran’s preference points
to political subdivisions when a civil service system is not used. As part of that analysis, the court
determined that an examination and an interview could be equated for purposes
of a competitive open examination.
[Citation omitted.] We agree an
interview may serve as the equivalent of an exam …[57]
Accordingly, the County did
not err in this case in substituting an evaluative interview process for a
written examination in its hiring process to fill the Sheriff’s Evidence
Specialist positions. However, that
still leaves open the question of whether an evaluative interview process must
also incorporate a 100-point rating system at some stage of that process.
B. When a political subdivision employs an
evaluative interview in a hiring process in which veterans are involved, it
must use a 100-point rating system in determining which applicants will receive
an interview.
In Hall, the Minnesota Supreme Court
unequivocally stated:
A local appointing authority may administer any type of
evaluation as long as it is based on criteria capable of being reduced to
100-point rating system. The 100-point
rating system will apply to all positions except those specifically exempted
from the veterans preference act by Minn. Stat. § 197.46.[58]
The court has never
reversed or modified that holding in the Hall
decision. Although McAfee involved somewhat similar issues, the Court of Appeals never
addressed the necessity of a 100-point rating system because it concluded that
the position at issue was an unclassified position that was not covered by the
VPA.
What remains to
be considered is when a political
subdivision must administer the 100-point rating system in an evaluative
interview hiring process. The Minnesota
Supreme Court did not directly address that question in Hall. However, the
legislature has addressed that question in Minn. Stat. § 43A.11, subd. 7:
Subd. 7. Ranking of veterans. Applicants who meet the minimum qualifications for a
vacant position and claim disabled veteran's preference shall be listed in the
applicant pool ahead of all other applicants. Applicants who meet the minimum
qualifications for a vacant position and claim nondisabled veteran's preference
shall be listed in the applicant pool after those claiming disabled veteran's
preference and ahead of nonveterans. Each recently separated veteran who meets
minimum qualifications for a vacant position and has claimed a veterans or
disabled veterans preference must be considered for the position. The top five
recently separated veterans must be granted an interview for the position by
the hiring authority.
In short, the legislature
clearly contemplated that veteran’s preference points were to be applied at the
stage of a hiring process when a public employer determines which applicants will
receive an interview. The court of
appeals in McAfee confirmed that
interpretation:
Finally, even if McAfee had received a veteran’s
preference credit, he still would not be entitled to the relief he seeks, that
is, appointment to the Attorney I position.
Section 43A.11 does not provide absolute preference for veterans;
veteran’s preference credit may increase
the chance that the veteran will receive an interview, but the appointing
authority may hire any certified applicant.[59] [Emphasis supplied.]
Nevertheless, the Petitioner argues
that nothing in Minn. Stat. § 43A.11 provides guidance in this case because
that section “governs veterans’ preference for state employees.” However, there is nothing in the language of
that section that restricts its application to state employees, and the fact
that Chapter 43A is coded “State Personnel Management” does not of itself limit
the scope of Minn. Stat. § 43A.11. "The head notes printed in boldface type
before sections and subdivisions in any edition of the Minnesota Statutes are
mere catchwords to indicate the contents of the section or subdivision and are
not part of the statute."[60]
Moreover, in Hall, the
Minnesota Supreme Court explicitly indicated that Minn. Stat. §§ 43A.11 and
197.445 must be read in pari materia:
The plain words of section 197.455 provide that section 43A.11 shall
govern preference of a veteran under charter provisions, ordinances, and rules
or regulations, as well as civil service laws, of the political subdivisions of
this state.[61]
C. The County violated the VPA in connection
with the Petitioner’s April 2008 application for a Sheriff’s Evidence
Specialist position.
The
Petitioner’s primary argument is that the County improperly failed to use a
100-point rating system in evaluating applications for both the April 2008 and
September 2009 Sheriff’s Evidence Specialist postings. However, it is unnecessary to address the
propriety of the County’s rating process in determining whether the
Petitioner’s veterans’ preference rights were violated in April 2008. Although the VPA does not guarantee that a public employer will hire a veteran in
preference over non-veterans, it minimally requires that the veteran receive an
interview when the veteran meets the minimum qualifications for the position
and examination is an experiential examination based on interviews of the
applicants.[62] Here, Mr. Bentzen met the minimum
qualifications for the position of Sheriff’s Evidence Specialist when that position was posted
on April 11, 2008. However, the County denied
him an interview because he did not meet the somewhat more rigorous
qualifications of an “ideal candidate.”
There is nothing in law that allows a public employer to deny an
interview to a veteran who meets the position’s minimum qualification but who
may not be an “ideal candidate” when the examination for the position is a
purely experiential examination. The
County therefore violated the Petitioner’s veterans’ preference rights in connection
with the April 2008 posting by failing to use a 100-point rating system to
select the applicants who would be interviewed.
It also violated its own personnel rules by failing to give him an
interview.
D. The County granted the Petitioner greater
preference rights in determining whether he would be interviewed for the
September 2009 Posting than use of a 100-point rating system would have
afforded him.
A preponderance
of the evidence established that the County also did not use a 100-point rating
system in determining which applicants would be interviewed for the September
2009 Posting for a Sheriff’s Evidence Specialist. The
Petitioner argues that the 100-point rating system must be administered in a
way that gives a veteran a practical advantage over other eligible applicants.[63] Under Minn. Stat. § 43A.11, subd. 7,
that practical advantage is an increased “chance that the veteran will receive an
interview.” During the September 2009
hiring process, the Petitioner actually received greater rights than he would
have received through application of his veteran’s preference in a 100-point
rating system. County personnel rules guaranteed veterans an interview, and
unlike what occurred in April 2008, the County made good on that guarantee by
making him a finalist and giving him an interview in the September 2009 hiring
process. The final result was the same
as the final result in McAfee:
Because
the Department of Revenue granted McAfee an interview, he was accorded the same
rights he would have received had section 43A.11 applied to this position.[64]
In summary, even though the County failed to use a 100-point rating
system in determining which applicants would be interviewed for the September
2009 Posting, it gave the Petitioner greater rights than he would have received
if the County had relied soley on a 100-point rating system to select finalists
for interviews.
III. What
relief is appropriate?
The VPA does not guarantee that a public employer will hire a veteran in
preference over non-veterans; it does not even require that a veteran receive
an interview. Rather, it only requires
that the veteran receive an increased opportunity for an interview when the
veteran meets the minimum qualifications for the position and examination is an
experiential examination based on interviews of the applicants.[65] Here, Mr. Bentzen met the minimum
qualifications for the position of Sheriff’s Evidence Specialist when that position
was posted on April 11, 2008. However, in
that first posting the County neither used a 100-point rating system to determine
who would be interviewed nor gave him an interview in violation of both the VPA
and County personnel rules. One must next
consider what relief may be appropriate. Minn. Stat. § 197.481, subd. 1,
empowers the Commissioner “to grant the veteran such relief the
commissioner finds justified by said statutes.”
In the Petition under consideration in OAH 4-3100-21664-2, the
Petitioner requested the Commissioner to direct the County to promote him “to
the permanent fulltime Sheriff’s Evidence Specialist 00948V/Z job.” However,
If the Petitioner had
filed that Petition near the time when the violation occurred rather than over
two and one-half years later, it may have been appropriate, for example, for
the Commissioner to require the County to re-post the position and give the
Petitioner the interview to which he was entitled. However, doing that now will interfere with
the legal rights of the successful applicant without any assurance that the
Petitioner would become the successful applicant after interviews were
conducted. Moreover, the County has, in
effect, already provided the Petitioner with relief that is comparable to the
relief to which he would have been entitled in 2008. On September 28, 2009, the County posted an
identical position. The Petitioner
applied for that position and was subsequently given an interview. He therefore, in effect, received during the
second hiring process the remedy to which he would have been entitled as a
result of the County’s violation of his VPA right in connection with April 2008
posting.[66]
IV. Conclusion
The VPA requires political subdivisions
to fill positions in the classified service by open competitive
examinations. Those examinations may
consist of written examinations or reviewing applicants’ qualifications and
informally ranking them after oral interviews.
However, when the examination consists of oral interviews, the political
subdivision must use criteria capable of being reduced to a 100-point rating
system in selecting the applicants who will be interviewed. The VPA requires that disabled and
nondisabled veterans be given additional preference points in that 100-point
rating system in order to increase their chances for an interview. The County’s personnel rules give veterans even
a greater preference than the VPA by guaranteeing that veterans will
receive an interview in connection with all open competitive appointments.
The County violated the Petitioner’s
veteran’s preference rights in April 2008 by failing to use a 100-point rating
system to determine which applicants would be interviewed, thereby depriving him
of an increased chance of an interview in connection with that first posting. The County also violated its own personnel
rules by failing to actually give him an interview. On the other hand, the County gave the
Petitioner a guaranteed interview in connection with its September 2009 posting
for an identical position, thereby giving him even greater rights than the VPA
provided to him. The County therefore
did not violate the VPA or its own rules in connection with the second
Posting. The County’s guarantee of an
interview in a second posting for an identical positing, in effect, provided
him with the relief to which he would have been entitled for the County’s
violation in the first posting. The ALJ
therefore recommends that the Commissioner give the Petitioner no further
relief.
B.H.J.
[1] When the hearing began, the parties agreed that the
two contested case proceedings could be consolidated for hearing and
adjudication.
[2] Unless otherwise indicated, all references to
Minnesota Statutes are to the 2010 edition.
[3] Notice of Petition and Order for Hearing (Jan. 29,
2009), Certificate of Release or Discharge from Active Duty (DD Form 214N).
[4] Ex. 6B
[5]
[6] Ex. 5.
[7]
[8] Ex. 5; Ex. 6B.
[9] Ex. 5.
[10] Ex. 8A.
[11] Testimony (Test.) of Kari Boe-Schmidtz.
[12] Test. of K. Boe-Schmidtz.
[13] Test. of David Bentzen.
[14]
[15]
[16]
[17] Ex. D.
[18] Test. of D. Bentzen.
[19] Ex. 10; see
also discussion in Part I of the Memorandum that follows.
[20] Ex. B.
[21] Ex. 10; test. of K. Boe-Schmidtz and D. Bentzen.
[22] test. of K. Boe-Schmidtz
[23] Ex. A; test. of K. Boe-Schmidtz.
[24] Test. of K. Boe-Schmitz.
[25] Ex. 10; test. of K. Boe-Schmidtz.
[26] Ex. 2.
[27] Ex. 10; test. of K. Boe-Schmidtz and D. Bentzen.
[28] test. of K. Boe-Schmidtz
[29] Ex. C; test. of
Kristen Tomlinson.
[30] Ex. C; test. of K. Boe-Schmidtz.
[31] Ex. 6A, 6B, and 6C.
[32] Ex. 6A, 6B, and 6C.
[33] Ex. 10; test. of K. Tomlinson.
[34]
[35]
[36] See also
Minn. Stat. § 197.455, subd. 2.
[37] Prior to 2004, a 50% or greater service connected
disability was required in order for a veteran to be “disabled.” In that year the statute was amended to give
disabled status to veterans with any percentage of service connected
disability. See Act of May 18, 2004, 2004
[38]
[39] Finding 13.
[40] Minn. R. 1400.7300, subp. 5.
[41] See
discussion in Part I of the Memorandum that follows.
[42] Hall v. City
of
[43] See Part
II-B of the Memorandum that follows.
[44] McAfee, supra, 514 N. W. 2d at 304.
[45] See
discussion in Part II-C of the Memorandum that follows
[46] See
discussion in Part II-D of the Memorandum that follows.
[47] Finding 16.
[48] Finding 17.
[49] Ex. 1.
[50]
[51] Finding 18.
[52] See Petitioner’s
Post-Hearing Brief at pp. 2-3.
[53] Ex. 10.
[54] Finding 18.
[55] Petitioner’s Post-Hearing Brief at pp. 7-9; Hennepin
County’s Post-Hearing Brief at p. 3; Hall,
supra, 463 N.W.2d at 504; McAfee, supra, 514 N.W.2d at 305 .
[56] Hall, supra, 463 N.W.2d at 504-05.
[57] 514 N.W.2d at 304.
However, the court went on to note that in the state civil service
system, a written exam may be required when specifically mandated by a statute
or rule
[58] Hall, supra, 463 N.W.2d at 505.
[59] McAfee, supra, 514 N.W.2d at 305.
[60]
[61] Hall, supra, 463 N.W. 2d at 504.
[62] McAfee, supra, 514 N.W.2d at 305.
[63] Petitioner’s Post-Hearing Brief at pp. 7-9.
[64] McAfee, supra, 514 N.W.2d at 305.
[65]
[66] As noted above, Hall does not require a 100-point
rating system; it requires “criteria capable of being reduced to 100-point rating
system.” Even if Hall
were interpreted as requiring use of a 100-point in selecting the successful
applicant, the scoring of the interviews involved in the September 2009 Posting
was done on a 144-point scale, which could be easily scaled to a 100-point
scale. If such a scaling were done, the
Petitioner would have scored well below the successful applicant even if 5, or
even 10, veteran’s preference points were added to his score.