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STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF VETERANS AFFAIRS
Wade W. Piccolo,
Petitioner, FINDINGS OF FACT.
CONCLUSIONS OF LAW
V. AND RECOMMENDATIQN
Benton County,
Respondent.
This matter came on for hearing before Administrative Law Judge Steve M.
Mihalchick on April 27, 1994, at 9:30 a.m. at the City Council Chambers, City
Hall, 251 Fourth Avenue, Foley, Minnesota.
Petitioner, Wade W. Piccolo, 909 Ninth Avenue, Foley, Minnesota 56329
appeared on his own behalf. Daniel A. Eller, Attorney at Law, 925 South First
Street, P.O. Box 638, St. Cloud, Minnesota 56302 appeared on behalf of
Respondent, Benton County. The record closed on this matter on April 27,
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 Benton County
constitutes a waiver of his rights under Minn. Stat. 197.46 (the Veterans
Preference Act).
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Wade W. Piccolo served on active duty in the U.S. Army from October
27, 1987, to September 12, 1990. Piccolo was separated from the service with
an honorable discharge.
2. In August, 1992, Piccolo was hired by Benton County as a Deputy
Sheriff. This position was probationary for a period of one year. Piccolo
earned $2,124 per month after six months with Benton County.
3. Frank F. Wippler is the Benton County Sheriff and was Piccolo's
supervisor. Wippler expressed no complaints about Piccolo's performance
until July, 1993.
4. On July 27, 1993, Piccolo met with Wippler and Michael Jesse,
Benton County Attorney. Piccolo was informed that certain job functions had
not been property performed. Two incidents were specifically described at
this meeting as being improper. Wippler told Piccolo that he could resign or
a discharge proceeding would be brought against him. Jesse presented Piccolo
with a resignation letter which read as follows:
Dear Sheriff Wippler:
I hereby resign my probationary appointment as Deputy Sheriff
of the Benton County Sheriff's Department effective immediately.
I have discussed the basis for this resignation with you and
the County Attorney. I understand that any and all reasons for
this resignation shall remain non-public in my confidential
file within the Benton County Sheriff's Department. It is my
decision that my file remain confidential. In exchange for
your agreement not to make those reasons public, I expressly
waive my right to a hearing within 60 days as provided by the
Minnesota Veteran's Preference Act. I further understand as a
part of our agreement that you will not oppose my request for
unemployment compensation. In addition, I also expressly waive
all other legal remedies for reinstatement.
While I did not personally prepare this letter of resignation,
I have carefully reviewed it, agree with its content and wish
to abide by it completely. I have voluntarily signed this
letter of resignation on my own accord and of my own free
will. No promises or threats have been made or threatened in
any way, to compel me to sign this letter.
I will voluntarily comply with all requirements of my
resignation such as equipment issue return, etc., as directed
by the union contract and the applicable provisions of the
Benton County Personnel Policies.
Sincerely
Wade William Piccolo
Exhibit 1.
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5. At this meeting, Jesse told Piccolo that, as Benton County
Attorney, Jesse did not represent him. Jesse informed Piccolo that he had a
right to a veterans preference hearing. Jesse stated that Piccolo could
fight the discharge but that doing so could make obtaining other employment
more difficult. Wippler told Piccolo that a voluntary resignation, without
disclosure of the reasons for ending employment, would make Piccolo's chances
of obtaining reemployment better.
6. Piccolo signed the resignation letter knowing he had a right to a
hearing prior to being discharged. He was not coerced into signing the
revocation letter. He felt somewhat rushed by Wippler and Jesse, but
believed that the "deal" offered by Wippler was in the best interest of
himself and his family, offered the best opportunity for securing subsequent
employment, and was the best deal he could get from Wippler. Therefore, he
decided to sign the letter immediately rather than consider it for a while or
consult an attorney.
7. After the termination of his employment with Benton County, Piccolo
applied for unemployment compensation benefits. As had been agreed, the
County did not dispute Piccolo's claim and he received benefits from
mid-August, 1993, to January, 1994. Piccolo received $305 per week in
unemployment benefits. Piccolo began employment with Sherburne County as a
temporary, full-time jailer on February 8, 1994. He changed his position to
that of regular, full-time dispatcher on April 10, 1994. In both positions,
Piccolo earned $10.70 per hour with no overtime and no benefits.
S. on February 4, 1994, Piccolo filed a Petition with the Commissioner
of Veterans Affairs asserting that his rights under the Veterans Preference
Act had been denied by Benton County. The Commissioner issued a Notice of
Petition and Order for Hearing on March 4, 1994.
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 notified of his right to a hearing as required by
Minn. Stat. 197.46 prior to being removed from his position as a Assistant
County Sheriff. The letter of resignation presented to him by the County
Attorney expressly referred to Petitioner's Veterans Preference rights.
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5. Benton County did not violate Minn. Stat. 197.46 by offering
Petitioner the option to resign his position or have discharge proceedings
initiated against him.
6. Petitioner waived his rights under Minn. Stat. 197.46 by signing
and delivering his resignation to Benton County after being informed of his
rights in writing by the County.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATIQN
That the Commissioner DISMISS the Petition of Wade Piccolo for relief
under the Veterans Preference Act.
Dated this 23 day of May, 1994.
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Taped (one tape).
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, 1 93 N. W. 30, 32 (Minn.
1923). To ensure that removals are done in accordance with the Veterans
Preference Act, the veteran has a right to a hearing. Under Minn. Stat.
197.46, the employer must give the veteran notice of the right to request a
hearing within 60 days.
Piccolo was given notice of his right to a hearing orally at the July 27,
1994 meeting and in writing in the resignation letter he was presented. He
knew that by signing that letter he was surrendering his veterans preference
rights.
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." Benton County gave Piccolo a clear choice at the
meeting on July 27, 1993. Piccolo could resign, with any negative remarks
about his employment with Benton County remaining confidential. Piccolo would
also be allowed to file for unemployment compensation without objection by
Benton County. In return, Piccolo would expressly waive any rights to proceed
against Benton County, including any hearing right provided under the Veterans
Preference Act. The alternative Piccolo faced was the initiation of discharge
proceedings, including a veterans preference hearing, if he requested one.
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A veteran's hearing right can survive a resignation, but only where the
resignation was obtained improperly. In Chase v. Indepppppendent 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, Wippler had decided that he would seek to remove
Piccolo from his position. Wippler offered Piccolo the choice of resigning or
have removal proceedings instituted and expressly informed Piccolo of his
right to a hearing. Neither Wippler nor Jesse suggested that Piccolo would
fail to receive a fair hearing. The resignation letter goes into great detail
about piccolo's rights and he understood he was waiving those rights.
piccolo's testimony at the hearing suggests that he has reconsidered the
wisdom of resigning from the Deputy Sheriff position he held with Benton
County. It may be that insufficient grounds existed to support removal of
Piccolo from that position. This does not change the fact that he made a
knowing, intelligent, and voluntary choice to resign that position in exchange
for certain actions by Benton County. That these actions were valuable to
Piccolo was demonstrated when he asserted the confidentiality provision in the
resignation letter at the hearing to preclude introduction of evidence
concerning his job performance.
From a policy point of view, it appears that the Sheriff and the County
Attorney went about this matter in an entirely appropriate, fair and
reasonable manner. Having decided to discharge Piccolo, they informed him of
the reasons and his rights and gave him reasonable options. They did what
Minn. Stat. 197.46 requires.
There is no evidence that Piccolo's hearing right was denied or would have
been prejudiced by Benton County. Piccolo was notified of the rights entitled
to him under the Veterans Preference Act and he voluntarily chose to waive
those rights. Piccolo's Petition should be DISMISSED.
S.M.M.
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