69-3100-8501-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF VETERANS AFFAIRS

Lucius Johnson,

Petitioner, FINDINGS OF FACT,

CONCLUSIONS OF

LAW,

AND RECOMMENDATION

County of Anoka,

Respondent.

This matter came on for hearing before Administrative Law Judge

Steve M. Mihalchick on April 5, 1994, at 9:30 a.m. at the Office

of Administrative Hearings, Suite 1700, 100 Washington Square,

Minneapolis, Minnesota.

Jesse Gant, III, Attorney at Law, 400 South Fourth Street,

Suite 915, Minneapolis, Minnesota 55415 appeared on behalf of

Petitioner, Lucius Johnson. Marcy S. Crain, Assistant Anoka

County Attorney, 2100 Third Avenue, Anoka, Minnesota 55303-2265

appeared on behalf of Respondent, Anoka County. The record

closed on this matter on April 5, 1994, upon the close of the

hearing.

Notice is hereby given that, pursuant to Minn. Stat. 14.61

the final decision of the Commissioner of Veterans Affairs shall

not be made until this Report has been made available to the

parties to the proceeding for at least ten days, and an

opportunity has been afforded to each party adversely affected to

file exceptions and present argument to the Commissioner.

Exceptions to this Report, if any, shall be filed with Bernie

Melter, Commissioner, Department of Veterans Affairs, Veterans

Service Building, 20 West Twelfth Street, St. Paul, Minnesota

55155-2079, telephone number (612) 297-5828.

STATEMENT OF ISSUE

Whether Petitioner's resignation from his position with Anoka

County in lieu of being fired, without notice of his rights under

Minn. Stat. 197.46 (the Veterans Preference Act), constitutes a

waiver of those rights.

Based upon all of the proceedings herein, the Administrative

Law Judge makes the following:

FINDINGS OF FACT

1. Lucius Johnson served on active duty in the U.S. Army from

October 3, 1946, to February 19, 1948. Johnson was separated

from the service with an honorable discharge.

2. In December, 1974, Johnson was hired by Anoka County as a

property tax appraiser. Appraisers conduct the valuation and

classification of property in the county. The job duties of that

position required visiting properties to view them and take notes

on their condition. These notes were then used by the appraiser

to set a value on the property and calculate the appropriate tax.

3. Edward L. Thurston was a senior appraiser in the Anoka

County Assessor's Office in 1984. Thurston worked with Johnson

and assisted him in improving his performance. Thurston had

limited supervisory duties over Johnson. Gordon Starkey, Deputy

County Assessor, was Johnson's immediate supervisor in Anoka

County. Starkey conducted performance evaluations for Johnson.

Starkey did not have the authority to hire or fire employees.

Gayle Leone was the Anoka County Assessor in 1984. Leone had the

authority to hire and fire employees within the County Assessor's

Office.

4. Before 1981, the tax appraisal system in Anoka County used

field cards which the assessors filled out after visiting the

properties being assessed. The data on the field cards were

combined with tables and codes used by the appraisers to

establish the proper value and tax rate on property. Johnson's

performance before 1981 had been criticized by Starkey as too

detailed and, due to the excess of detail, too slow. Johnson

developed a backlog of properties not appraised.

5. In 1981, Anoka County changed the system used to register

property assessments. The tables and codes, formerly used

manually, were installed into a computer system which performed

the calculations which had been done by the appraisers.

Johnson's backlog increased after the computer system was

adopted.

6. Johnson was informed by Gayle Leone, Anoka County

Assessor, that Johnson's performance in timely completion of

field cards was not meeting the County's expectations. Johnson

was suspended for five days without pay for failing to meet these

expectations. The suspension ran from November 3, 1983, to

November 9, 1983. The suspension notice, dated November 2, 1983,

listed three areas requiring improvement.

a. The first area was the need to master the basic concepts

of the Anoka County Appraisal Manual and the TACS Computer

Appraisal Program. The notice indicated the quality of

appraisal work performed by Johnson was inadequate and

several problems with his work had been pointed out and

not corrected.

b. The second area identified in the suspension notice was

Johnson's failure to complete his annual report and

twenty-five percent of his appraisals. As of the date of

the notice, Johnson completed less than twenty percent of

his appraisals. c.The third area listed in the suspension notice was

Johnson's failure to notify his supervisor when leaving

work for personal reasons.

7. After listing the three areas for improvement, the

suspension notice stated:

Improvement Needed:

In a period of thirty days after your suspension, you must

demonstrate an ability to fully understand the Anoka

County Appraisal System. Further, you must demonstrate

your ability to complete appraisals in a timely and

accurate manner. Specifically, you must complete your 25%

and annual appraisals within 30 days after your

suspension. Finally, you must notify your supervisor

before taking any time off for personal reasons. If the

improvement in your work habits and ability is not

demonstrated within the thirty calendar day time period, I

will have no recourse other than to terminate your

employment with Anoka County. Further, if at any time you

fail to notify your supervisor before taking time off from

employment for personal reasons, your employment with

Anoka County will be terminated.

Exhibit 4, at 2.

8. After 30 days, Johnson's performance had not improved, but

Leone did not immediately proceed to discharge Johnson. He

delayed taking the action hoping that Johnson would improve his

performance.

9. By March 4, 1984, Leone concluded that action needed to be

taken to improve office productivity to meet deadlines faced by

the County Assessor's Office. Leone needed time to hire and

train an assessor to replace Johnson. Leone believed that he

would require four to five months to gather the documentation and

go through the procedures necessary to fire Johnson.

10. On March 4, 1984, a meeting was held between Johnson,

Leone, Thurston, and Starkey. At that meeting, Leone informed

Johnson that his work performance had not improved and that

Johnson had the choice of resigning or being terminated. Johnson

was given one day to decide whether to resign. No one informed

Johnson that, as a veteran, he had the right to a hearing and

that the burden would be on the County to demonstrate that

Johnson was incompetent or had committed misconduct before he

could be removed from his position. Leone told Johnson that a

letter of recommendation would be written for Johnson if he

resigned.

11. On March 5, 1984, Johnson submitted a one-sentence letter

of resignation to Leone. His last day of employment with the

County was March 9, 1984. An exit interview was conducted by

Bonnie Craig with Johnson and he received severance pay in the

amount of $2,717.42. The form prepared in the exit interview

does not reflect the actual reasons for Johnson's resignation.

Johnson chose to resign to avoid having a termination on his

record. A neutral letter of recommendation was written for

Johnson by Leone.

12. After the termination of his employment with the County,

Johnson applied for unemployment compensation benefits. The

County argued before the Minnesota Department of Economic

Security that Johnson had voluntarily terminated his employment

and was, therefore, ineligible for benefits. The Department of

Economic Security ruled that Johnson was involuntarily terminated

and that Johnson was eligible for benefits. Johnson received

$1,146.00 in unemployment benefits.

13. Johnson was unaware of any veterans preference rights in

public employment until he read an advertisement in the

Minneapolis Star-Tribune. Within a few days after seeing the

advertisment, Johnson engaged an attorney and initiated this

veterans preference claim.

14. On December 22, 1993, Johnson filed a Petition with the

Commissioner of Veterans Affairs asserting that Johnson's rights

under the Veterans Preference Act had been denied by Anoka

County. The Commissioner issued a Notice of Petition and Order

for Hearing on January 4, 1994.

15. The parties stipulated that the issuing of damages be

bifurcated for determination at a later date.

Based on the foregoing Findings of Fact, the Administrative

Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge and the Commissioner of

Veterans Affairs have jurisdiction over the subject matter of

this hearing, pursuant to Minn. Stat. 14.57 and 197.481.

2. Proper notice of the hearing was timely given, and all

relevant substantive and procedural requirements of law or rule

have been fulfilled and, therefore, the matter is properly before

the Administrative Law Judge.

3. Petitioner is an honorably discharged veteran and entitled

to the protections of Minn. Stat. 197.46.

4. Petitioner was removed from his position as a Property Tax

Appraiser without being notified of his right to a hearing as

required by Minn. Stat. 197.46.

5. Anoka County's failure to notify Petitioner of his right

to a hearing violates Minn. Stat. 197.46.

Based upon the foregoing Conclusions, the Administrative Law

Judge makes the following:

RECOMMENDATION

That Anoka County's termination of Petitioner be held a

violation of the Veterans Preference Act and this matter be

remanded to the Administrative Law Judge for further proceedings

to determine what remedy is appropriate.

Dated this 28th day of April, 1994.

STEVE M. MIHALCHICK

Administrative Law Judge

Reported: Taped (three tapes).

MEMORANDUM

The Veterans Preference Act conditions removal of a veteran on

either incompetence or misconduct. Minn. Stat. 197.46. A

veteran may also be removed, without violating the Act, where the

employer abolishes the veteran's postion in good faith. State ex

rel. Boyd v. Mattson, 193 N.W. 30, 32 (Minn. 1923). In this

case, the County Assessor, the official with the power to fire,

concluded that Johnson would be terminated for incompetence. It

seems fairly clear that the County could have demonstrated

Johnson's incompetence. When Johnson was informed that the

County had reached that conclusion, he was offered the option of

resigning his position. The County did not inform Johnson that,

as a veteran, he was entitled to a hearing and a written

statement of charges.

The former Anoka County Assessor, Gayle Leone, testified that

the March meeting with Johnson was for the purpose of "snapping

him [Johnson] out of it;" meaning for Johnson's performance to

improve. This is inconsistent with Leone's acknowledged

statement that he thought it would be best if Johnson resigned.

The testimony is also inconsistent with Leone's impression that

the meeting was called because they could not wait any longer for

Johnson to improve. Calling a meeting to motivate Johnson out of

his nonperformance would necessarily require waiting longer.

Johnson had already been suspended for nonperformance and the

next logical step was termination. The decision to discharge

Johnson had been made by the time of the March meeting and

Johnson's testimony, that he was given one day to decide to

either resign or be fired, is credible. It is possible that

Leone did not actually utter the words, "or be fired." But that

is what he intended, what he implied, and what Johnson

understood.

As stated in Myers v. City of Oakdale, 409 N.W.2d 848, 850

(Minn. 1987), "whether an employer has by its action removed a

veteran is a matter of substance and not of form." Anoka County

removed Johnson when the decision was made to terminate him.

That decision was made on or before March 4, 1984. Johnson's

right to be notified of the right to a hearing attached at that

time. Anoka County's failure to notify Johnson of his right to

hearing violated the Veterans Preference Act.

Anoka County argues that Johnson's resignation eliminated the

employment relationship before he could be removed. In Chase v.

Independent School District No. 31, 1993 WL 459883 (Minn.App.

1993), a veteran resigned after committing acts of misconduct.

An advisory group and a supervisor suggested that it would be in

everyone's best interest if the veteran resigned. In its

decision, the Court of Appeals stated:

In any event, there is no evidence that Chase left his job

because of good cause attributable to the District. Good

cause will not be attributed to an employer if the

employee's reason for quitting is unreasonable. Shanahan

v. District Memorial Hosp., 495 N.W.2d 894, 897 (Minn.App.

1993). Chase testified that he believed that he would be

terminated if he did not resign. This was arguably a

reasonable belief, although Chase resigned before District

officials took any steps toward firing him. More

importantly, Chase testified that he resigned because he

did not believe that he would receive the procedural rights

to which he was entitled if he chose to contest the

potential termination. Nothing in the record shows

reasonable grounds for this belief.

Chase, 1993 WL 459883.

In Chase, the veteran resigned before a decision to discharge

was made by the employer. In this case, the decision had been

made. Johnson was not given any alternative to removal from his

position. His choice was to resign or be fired. Anoka County

made that decision before Johnson resigned and there is no

indication that Anoka County's decision was in any way

conditional. Johnson reasonably believed that the decision was

final and would not be altered. He was unaware of any hearing

right and the fact that Anoka County would bear the burden of

proof to demonstrate incompetence or misconduct. Having deciding

to terminate him, Anoka County was obliged to inform Johnson of

his rights when offering him the option of resigning. Anything

less vitiates the effectiveness of the Veterans Preference Act

and could, as here, deny the veteran any opportunity to make a

knowing decision on whether to demand a hearing or resign and

waive his rights.

The record in this matter was developed on the issue of

liability under the Veterans Preference Act. The parties have

agreed to bifurcate this matter and address the issue of damages

in a separate hearing. Should the Commissioner of Veterans

Affairs adopt the Administrative Law Judge's Recommendation, this

matter should be remanded on the issue of what remedy is

appropriate.

S.M.M.