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The following is an outline of a presentation that I gave to the Hennepin County Bar Association, Labor and Employment Law Section, on November 13, 2018.

I.               Purposes and Background

a.     Hiring preference − Minn. Stat. § 197.455: “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 to a veteran as defined in section 197.447”;

b.    Employment protections – Minn. Stat. § 197.46:  “. . . to protect honorably discharged veterans from the ravages of the political spoils system.”  Johnson v. Village of Cohasset, 263 Minn. 425, 116 N.W.2d 692 (1962);

c.     Remedial statutes, to be broadly interpreted.  Winberg v. University of Minnesota, 499 N.W.2d 799 (Minn. 1993).  But strict adherence to technical requirements is required. Nieszner v. St. Paul School Dist. No. 625, 643 N.W.2d 645 (Minn. App. 2002) (affirming dismissal of appeal based on improper service of notice of appeal by certified mail rather than personal service, despite employer’s actual notice of appeal and no argument of prejudice; court rejected remedial purposes argument);

d.    Continuing need for Minnesota veterans

i.     3.9% unemployment rate in 2017, vs. 3.5% statewide (National Center for Veterans Analysis and Statistics);

ii.     79.6% labor force participation rate in 2017, vs. 83.5% statewide (National Center for Veterans Analysis and Statistics);

iii.     11.1% unemployment rate for post-9/11 veterans in 2015 (Joint Economic Committee of the U.S. Congress);

iv.     An estimated 3.18% lacked health insurance in 2014 (http://america.aljazeera.com/articles/2014/11/25/study-over-1-2-millionveteranslackhealthinsurance.html);

v.     5.9% live in poverty, 4.2% on nutritional assistance (http://veteransdata.info/);

vi.     317 Minnesota veterans homeless in 2014 (down 47% from 2010) (https://mn.gov/mdva/resources/homelessnessandprevention/).

e.    Abbreviated history

i.     Original 1907 version –  Sec. 1:  Preference in appointments for any veteran “of good moral character;” nondiscrimination based on disability or age for veterans “not incompetent to perform” the job’s duties; private suit for damages and right of mandamus; absolute preference in hiring;  Sec. 2:  No removal “except for incompetency or misconduct shown after a hearing,” with burden of proof “upon the party alleging the same;”

Enacted to benefit Civil War veterans in state, county, city or town employment; in subsequent years extended to veterans of other conflicts and to current members of U.S. Army and Navy reserves.

ii.     1937 – new five year residency requirement;

iii.     1943 – establishes hearing process (civil service commission vs. three-person ad hoc panel) with appeal to District Court; adds school districts, political subdivisions and agencies; extends to widows and spouses of disabled vets unable to work; violation made a misdemeanor offense; excludes school teachers and certain others;

iv.     1967 – preference in hiring quantified through “veterans preference credits” added to 100 point examination scores (originally five for non-disabled, 10 for disabled);

v.     1974 – adds 60 day notice of right to request hearing;

vi.     2008 – extended to cover teachers (special rules);

vii.     2016 –probationary employees now exempted; 30 day notice (formerly 60); expansion of right to attorney’s fee for veterans; three-person panel replaced with single arbitrator.

f.      Veterans Preference Act (“VPA”) in the singular is a misnomer – it’s actually a collection of statutes.  Hence, this presentation is entitled “An Introduction to the Minnesota Veterans Preference Acts.”

II.              Key Employment Statutes

a.    Disabled/Nondisabled Credit (Minn. Stat. § 197.455, subd. 4, 5);

b.    Right to Notice and Hearing Before Removal (Minn. Stat. § 197.46);

c.     Direct Appointment to State Jobs (Minn. Stat. § 43A.111);

d.    Preference in Hiring to State Jobs (Minn. Stat. § 43A.11);

e.    Recruitment to State Jobs (Minn. Stat. § 43A.09);

f.      Preference in Private Sector Jobs (Minn. Stat. § 197.4551);

g.    Preference in State/County Contracts (Minn. Stat. § 161.321).

III.            Who qualifies

a.    Honorably discharged veteran, as determined by U.S. Secretary of Defense.  Minn. Stat. § 197.447;

b.    Citizen or resident alien;

c.     Active duty service for 181 consecutive days or disabled while in service;

d.    Public employee (state, county, city, town, home rule charter, school district “or any other political subdivision in the state”; includes quasi-governmental entities such as the Met Council)

i.     “Political subdivision” denotes an entity with authority to cause taxes to be levied, including watershed districts.  Dahle v. Red Lake Watershed Dist., 354 N.W.2d 604 (Minn. App. 1984).  Under that definition, not the University of Minnesota.  Winberg.

ii.     State employees included for employment security provision; different rules governing preference in hiring.

e.    Nature of Appointment

i.     Full-time / part-time – YES.  Statute makes no distinction; preference presumed to apply fully to part-time employees.

ii.     Probationary – NO

1.    Classified state employees have right to a pre-removal hearing only upon completing probationary period.  Minn. Stat. § 197.455, subd. 1(b);

2.    Right to pre-removal hearing vests “After any initial hiring probationary period expires”  Minn. Stat. § 197.46(a).

iii.     Temporary – NO (not considered employment under the VPA, per court decision)

1.    Defined as employment for a fixed term, or where job ends upon completion of defined task; a question of fact. Crnkovich v. Independent Sch. Dist. No. 701, 273 Minn. 518, 142 N.W.2d 284 (1966);

2.    Employer met burden of proving seasonal park maintenance workers were “temporary,” where new application was required every season, even though significant numbers of employees rehired from year to year and some were given job without the need to fill out new application.  Christopherson v. City of Albert Lea, OAH No. 12-3100-14431-2 (Sept. 2001).

f.      Surviving spouse or spouse of disabled veteran unable to work.

i.     Disability must be service related for inability to work purposes;

ii.     Death need not be service related for “surviving spouse” purposes;

iii.     PRACTICE POINT FOR EMPLOYERS: Ask on all applications for jobs subject to VPA whether applicant qualifies and wishes to claim veteran’s preference; define “veteran” (i.e. includes the surviving spouse of an honorably discharged veteran and spouse of disabled veteran); or cite to statute or other source where applicant can determine VPA qualification.

g.    Excluded employees

i.     “. . . private secretary, superintendent of schools, or 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” (Minn. Stat. § 197.46);

ii.     Chief Deputy exclusion can apply to counties with fewer than 100,000 inhabitants.  Gramke v. Cass County, 453 N.W.2d 22 (Minn. 1990).

h.    Partially Excluded – Teachers.  Minn. Stat. § 197.455, subd. 5a and Minn. Stat. § 197.46.

i.     Only applies if hiring authority utilizes 100-point system – not mandatory;

ii.     If not used, must still give qualifying veteran an interview;

iii.     Only applies to teachers, not other school district EEs;

iv.     NOTE – teacher removal not covered (Minn. Stat. § 197.46).  Significance diminished by fact that many teachers are covered by collective bargaining agreements and courts have ruled that the “incompetence or misconduct” standard is equivalent to “just cause shown.”

i.      Private sector?

i.     Voluntary / not prohibited.  Minn. Stat. § 197.4551

1.    But Veteran status is not protected class under Minnesota Human Rights Act (different in some other states);

ii.     Permissible preference by “private, nonpublic employer”;

iii.     Preference for spouse of disabled or deceased veteran;

iv.     Savings clause

1.    Granting preference under [this section] does not violate any local or state equal employment opportunity law, including, but not limited to, chapter 363A [(MHRA)].”  Minn. Stat. § 197.4551, subd. 3;

2.    No protection against suit under Title VII, ADA or ADEA.

IV.           Hiring – covered employers OTHER THAN State of Minnesota

a.    Identifying Veterans – DD-214 (Certificate of Release or Discharge from Active Duty)

i.     No statutory obligation on part of employers to enquire;

ii.     PRACTICE POINT FOR EMPLOYERS:  ask anyway; failure to do so may result in huge back pay awards because there’s a six year limitations period on improper removal claims where employer provides no notice of right to hearing; plus it’s the right thing to do;

iii.     NOTE – employer prohibited from asking about veteran status in private sector, if intent is to discriminate (Minn. Stat. § 181.535).

b.    100-point system

i.     No format specified

1.    Appointing authority has discretion to determine criteria to be considered in awarding the 100 points;

2.    May be based entirely on a written test, an oral examination, skills test or a combination of factors;

3.    Public employer may administer any type of evaluation if based on criteria capable of being reduced to a 100 point rating scale;

4.    Should be based on objective criteria.

5.     PRACTICE POINT FOR EMPLOYERS: be sure to have an up-to-date position description to aid in this process.

c.     Credits

i.     Veteran

1.    10 points added to “competitive open examination.” Minn. Stat. § 197.455, subd. 4 (as distinguished from promotional exam);

ii.     Disabled Veteran

1.    “[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.”  Minn. Stat. § 197.455, subd. 6;

2.    15 points added to competitive open examination. Id., subd. 5;

3.    5 points added to competitive promotional examination.  Id.,

a.    Usable just once after having secured position.

b.    Must be entitled to disability compensation for a permanent service related disability rated at 50% or more.  (Special rule for promotional exam; no minimum disability rating for open exam preference);

iii.     Spouse of deceased / disabled veteran

1.    Statute doesn’t say, but assume 15 points (deceased = disabled).

iv.     Veteran may disclaim credit. Minn. Stat. § 197.455, subd. 9.

d.    When “scoring” starts

i.     Application / Supplemental Questions – No;

ii.     “Competitive open examination rating”

1.    What is a “competitive open examination”

a.    Open to the public;

b.    Competition in a selection process and appointment from a finalist pool;

c.     Selection criteria and methods for filling positions shall be job related and designed to fairly assess ability to perform the duties of the vacant position;

d.    Balfanz case, October 2014

i.     Applicant for parks supervisor position in St. Paul raised VPA challenge after city changed position from “open” to “internal” after soliciting candidates;

ii.     If “open”, Balfanz would have had highest score with his VPA credit;

iii.     Balfanz did not get the job; ALJ and VA Comr’r. sided with Balfanz, saying city should have afforded Balfanz his VPA credit.  City must start over with hiring process.

iii.     When preference points not to be awarded / considered.

1.    If veteran did not pass the examination without benefit of VPA points ;

2.    Interview.

iv.     Interview v. Examination

1.    Fitness for the job v. ability to perform the job (generally);

2.    “We agree an interview may serve as the equivalent of an exam, but think that for the purposes of employment within the state civil service system, an ‘open competitive examination rating’ contemplates the formal exam application and listing procedures set forth in Minn. Stat. § 43A.10, .12–.13 and Minn. R. 3900.4100–4700 (1991).”  McAfee v. Dep’t of Revenue, 514 N.W.2d 301, 304 (Minn. App. 1994);

v.     Veteran receives preference when “ties” in scoring with non-veteran.

vi.     BUT a preference is not a guarantee of employment.  Bentzen v. Hennepin County, OAH 4-3100-21648-2, 4-3100- 21444-2 (Feb. 2011).

1.    Employer free to select any “certified” applicant. Hall v. City of Champlin, 463 N.W.2d 502 (Minn. 1990);

2.    100 point test may be used simply to determine who gets interviewed.

3.     PRACTICE POINT FOR EMPLOYERS: criteria for interviews should be put in writing.

4.    Any number of points may be awarded to other categories of employees (based on residency, protected class status), even if doing so effectively wipes out veteran’s preference.

Case study – Jacob Bonniwell v. City of St. Paul, OAH No. 67-3100-23003 (Dec. 2013) (“expanded certification;” set number of applicants selected after credits are added to passing scores based on numerical cut off; then separately a number of “protected class” members is selected for interview, based on their scores, effectively removing from consideration white able-bodied veteran applicants; practical effect is to create two lists; argument was not addressed by ALJ in published opinion; real harm – lower scoring minorities after Bonniwell’s points were awared were afforded interviews).

e.    Rejection; explanation for reasons in writing.

i.     Minn. Stat. § 197.455, subd. 10;

ii.     Minn. Stat. § 43A.11 (state employees).

f.      VPA Preemption – “Any law contrary is void.”

i.     Affirmative action plans / Expanded certification – Bonniwell debate.

V.             Hiring – State of Minnesota

a.    Applicants who meet “the minimum qualifications” must be listed in the applicant pool ahead of others as follows: (1) disabled veterans; (2) nondisabled veterans; (3) nonveterans;

b.    Recently Separated Veterans / State Personnel Management.  Minn. Stat. § 43A.11

i.     Applicable for State employment – but not municipal

1.    The term “recently separated veteran” means a veteran, as defined in section 197.447, who has served in active military service, at any time on or after September 11, 2001, and who has been honorably discharged from active service, as shown by the person’s form DD-214;

2.    Each recently separated veteran who meets minimum qualifications for a vacant position and has claimed 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.

c.     Spouses of deceased/disabled veterans likewise covered.

VI.           Removals

a.    No covered veteran “shall be removed from such position or employment except for incompetence or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.”  Minn. Stat. § 197.46;

b.    What is a removal?

i.     Discharge;

ii.     Suspension, where terms of reinstatement are impossible to satisfy.  Harr v. City of Edina, 541 N.W.2d 603 (Minn. App. 1996);

iii.     Demotion. Leininger v. City of Bloomington, 299 N.W.2d 723 (Minn. 1980).  Defined as a change in job duties which lowers a veteran’s rank, grade or position. Ammend v. County of Isanti, 486 N.W.2d 3 (Minn. App. 1992).

c.     What isn’t a removal?

i.     Good faith abolishment of position. State ex rel. Caffrey v. Metropolitan Airports Commission, 310 Minn. 480, 246 N.W.2d 637 (1976)

1.    Abolishment of a village health department position and reassignment of the duties to an independent contractor with resultant substantial cost savings and elimination of rivalries in the department was a good faith abolishment of the veteran’s position. State ex rel. Niemi v. Thomas, 223 Minn. 435, 27 N.W.2d 155 (1947);

2.    Reassigning job duties to less senior nonveteran employees does not constitute good faith abolishment of position.  Young v. City of Duluth, 410 N.W.2d 27 (Minn. App. 1987);

ii.     Disciplinary suspension, with or without pay.  Harr;

iii.     Employees who “voluntarily resign without good cause attributable to the employer”

1.    Tharalson v. Bloomington Indep. Sch. Dist., C1-02-2218 (Minn. App. June 17, 2003) (unpublished) (20 month absence and failure to return multiple calls deemed a quit, not removal, so no right to a hearing);

2.    Brula v. St. Louis County, 587 N.W.2d 859 (Minn. App. 1999) (veteran employee who resigned due to service related PTSD not entitled to hearing);

3.    Little v. Arrowhead Reg’l Corr., A10-61 (Minn. App. Apr. 5, 2011) (unpublished) (failure to supply required medical records in post-FMLA request for disability leave constitutes quit, where CBA deems 3 day or longer absence a quit);

4.    Johnson v. Anoka County, 536 N.W.2d 336 (Minn. App. 1995) (quit or be fired ultimatum renders resignation a “removal” for VPA purposes);

5.    Higbee v. St. Louis County, OAH No. 4-3100-12604-2 (May 2000) (reduction from full-time to part-time status, made in good faith, is not “good cause” to resign requiring employer to provide notice of right to hearing).

iv.     Reversing a decision to promote that violated entity’s personnel administration system procedures.  Ochocki v. Dakota County Sheriff’s Dept., 454 N.W.2d 476 (Minn. App. 1990).  Dissent – employee held position for a YEAR, so was not temporary, and to transfer job duties to a co-worker is not an abolition of the position;

v.     “Voluntary demotion” of employee who goes on indefinite medical leave and is re-employed to lower level position; lost employee status upon taking leave and so was not “removed.”  Anderson v. City of Minneapolis, 503 N.W.2d 780) (Minn. 1983).

d.    Incompetence Defined

i.     “Lack of ability, legal qualification, or fitness to discharge the required duty.” Myers v. Oakdale, 409 N.W.2d 848 (Minn. 1987)) (citing dictionary);

ii.     Includes physical inability to perform job duties due to injury or sickness.  Myers;

iii.     Includes want of “intellectual or moral fitness.” Myers;

iv.     Includes lacking license necessary to perform job. Metropolitan Council v. Fulford, BMS (Jan. 2016) (upholding discharge of veteran/bus driver based on loss of Commercial Drivers License following D.U.I. arrest);

v.       PRACTICE POINT FOR EMPLOYERS: In drafting a notice of intent to discharge based on misconduct, consider an incompetence charge citing lack of moral fitness based on the demonstrated misconduct; “moral fitness” for the job is subjective and the review panel may be more deferential to employer’s determination of moral/ethical qualifications for the job.

e.    Misconduct Defined

i.     Same as “just cause” standard developed in labor law under collective bargaining agreements.  Cass County v. Law Enforcement Labor Services, Inc., 353 N.W.2d 627 (Minn. App. 1984);

ii.     Difficulties from personality and philosophical disagreements with superiors would not warrant dismissal of officer for misconduct.  State ex rel. Jenson v. Civil Service Commission of City of Minneapolis, 268 Minn. 536, 130 N.W.2d 143 (1964);

iii.     Negative impact on public perception is insufficient to show employee failed to discharge duties.  Minneapolis v. Moe, 420 N.W.2d 367 (Minn. App. 1990);

iv.     Suggested “just cause” analytic framework:

1.    Did the Veteran have reasonable notice of the rules and policies allegedly violated?

2.    Are the rules and policies uniformly administered?

3.    Was the Veteran given reasonable notice of the consequences of continued violations?

4.    Was the Veteran given reasonable opportunity to correct the alleged violation?

5.    Is there substantial and convincing evidence in the record to support the charges?

6.    Is the penalty reasonable considering the proven violations?  Robbinsdale Ind. Sch. Dist. No. 281 v. Berg, BMS 09-VP0076 (Jan. 2009);

v.     Alternative formulation:

1.    Did the employee have foreknowledge of possible consequences of misconduct?

2.    Was the rule was reasonably related to proper business goals and reasonable employee expectations?

3.    Were efforts to discover whether the misconduct occurred reasonable?

4.    Was a fair and objective investigation conducted?

5.    Was the discipline was based on a sufficient level of evidence?

6.     Were the rules and penalties were applied in an even-handed manner?

7.    Were the penalties consistent with the offense and the employee’s past work history?

Enterprise Wire Co., 46 Labor Arbitration Awards 359 (Arbitrator Daughtery1966);

vi.     But … no strict requirement to follow progressive discipline:

“It is universally accepted in labor law that progressive discipline is an aspirational, not mandatory, principle. In concept, progressive discipline is intended to be corrective, not punitive. However, employers are allowed to analyze an employee’s violations from a holistic viewpoint. Single policy violations may, indeed, be minor and only warrant a lower level discipline. Nevertheless, when there are, as in this case, serial individual violations, their sum can warrant dismissal.”  Willmar Municipal Utilities v. Folkedahl, BMS 18VP0742 (June 2018).

f.      Notice of Right to Contest

i.     Must provide employee notice of intent to discharge, basis for its action (incompetence versus misconduct) and right to request a hearing within 30 days.

1.    Employee must be paid during 30 day period;

2.    Payment requirement continues up through final adjudication of claim by Panel or ALJ after hearing, and potentially beyond (e.g. if prevails and employer appeals to District Court and higher courts);

3.    Failure to provide notice extends employee’s time in which to request hearing within limitations period (6 years); extends right to pay (and claim for back-pay) as well.

4.    Employee has no right to actually work during the 30 days; can be treated by employer as a paid leave of absence.

5.     PRACTICE POINT FOR EMPLOYEES: right to pay through final adjudication can provide leverage for settlement.

ii.     Content of Request

1.    Employee must request hearing in writing, and deliver via personal service or by mail.  Minn. Stat. § 197.46;

2.    Request must contain veteran’s selection of hearing body (civil service board/commission, merit authority, if applicable, or arbitrator); if veteran fails to make this election, the employer gets to choose.

3.    NOTE: notice provision doesn’t require informing vet that he/she has the right to choose.  Statutory oversight?

g.    Who Conducts Hearing?  Minn. Stat. § 197.46.

i.     Arbitrator

1.    From list of 7 provided by Bureau of Mediation Services;

2.    Employer strikes a name, veteran strikes another (48 hours to decide), back and forth until one name remains;

ii.     Civil Service Commission or Board (e.g. Minneapolis, St. Paul, Bloomington, Duluth, Anoka County) or Merit Authority, if governmental entity has one;[3]

iii.     “Depends” if a hearing is ordered following employer denial and employee petition.

1.    If following petition to Veterans Affairs, the ALJ issuing the ruling typically will conduct the hearing pursuant to Administrative Procedure Act (“APA”);

2.    If following writ of mandamus by trial court, an arbitrator from strike-off list or civil service commission (as is applicable).

h.    Burden of proof

i.     In removal case, court determines if employer “acted reasonably,” with burden of proof on employer.  Matter of Schrader, 394 N.W.2d 796 (Minn. 1986); Myers v. City of Oakdale; State ex rel. Lund v. City of Bemidji, 209 Minn. 91, 295 N.W. 514 (Minn. 1940) (party alleging misconduct or incompetency bears burden of showing the same);

ii.     Employer bears burden of proving affirmative defense that position was eliminated in good faith for a legitimate purpose. State, ex rel. Caffrey v. Metropolitan Airport Commission, 246 N.W.2d 637 (Minn. 1976);

iii.     “[adjudicator] is to be guided by such considerations as veteran’s conduct, the effect upon the work place and work environment, and the effect upon veteran’s competency and fitness for the job.”  Pawlek v. Camden Township, 415 N.W.2d 47 (Minn. App. 1987);

iv.     Standard is preponderance of the evidence.  Employer must show it acted reasonably through “substantial evidence.”  Matter of LaFond, 390 N.W.2d 321 (Minn. App. 1986).

i.      Pre-Hearing Proceedings

i.     Discovery in removal action: no express right under VPA.

1.    Argument against – meant to be expedited proceeding; employee on payroll until it’s concluded.

2.    Argument for – basic fairness, avoid trial by ambush.

3.    Arbitrators and Commissions (per their rules for hearing) typically permit at least basic discovery – exchange of exhibits and identification of witnesses before hearing.

4.    Minnesota Uniform Arbitration Act (“MUAA”)?? – maybe (governs “agreements to arbitrate,” implying contractual basis rather than statutory mandate).  Allows for discovery in arbitrator’s discretion, depositions in lieu of live testimony, subpoenas to compel attendance of non-cooperative witnesses.  Minn. Stat. § 572B.17.

5.     PRACTICE POINT FOR EMPLOYEES: Request Personnel File as per Minn. Stat. § 181.961 and make a request for documents under the Minnesota Data Practices Act, including information concerning similar incidents/infractions involving other employees and discipline imposed as a result; employee remains on pay.

ii.     Discovery permitted in action to enforce rights

1.    Contested case hearing before ALJ, right to discovery permitted per Rules of Civil Procedure in District Court;

2.    Difference: party seeking discovery must affirmatively show that “the discovery is needed for the proper representation of the party’s case.” Minn. R. pt. 1400.6700, subp. 2;

iii.     Summary Disposition – similar to Summary Judgment in District Court litigation; can be based on stipulated facts where pure issue of law exists.

j.      Evidentiary issues

i.     Rules of evidence don’t apply; hearsay generally admitted if germane, but appropriately discounted by panel;

ii.     Objections can be sustained at the hearing or, at the least, signify to the review panel that certain testimony or evidence should be discounted;

iii.     PRACTICE POINT FOR EMPLOYEES: Character witnesses can help in cases where termination based on alleged misconduct;

iv.     Expert witnesses sometimes appropriate, e.g. where medical condition of employee or quality / quantity of work is at issue; increases expense.

k.     Procedural Issues

i.     VPA is silent on procedure

ii.     Whose rules apply?

1.    Rules of Civil Service Commission, if applicable;

2.    No clear answer for VPA arbitrations

a.    Statute silent; by default, whatever rules the arbitrator chooses; or

b.    MUAA??;

c.     APA??; … BUT NOT

d.    BMS rules, MN Rules Chapter 5500; BMS only serves in a limited capacity, providing list of potential arbitrators [this is what a high level BMS staffer told me by phone]

e.    Minimum due process – exchange witness lists and exhibits in advance

iii.     Sequestering of witnesses is recommended; disputes may arise as to presence of Employer “representative” who is also an important fact witness;

iv.     VPA proceedings are generally tape recorded, but nothing in statute to compel the arbitrator to preserve it (he/she may choose to destroy it after decision is rendered); either party may hire a court reporter, and have transcript electronically prepared in real time; expense factor (when done, usually by employer’s legal counsel);

v.     Testimony by telephone where witness is not available;

vi.     Continuances – by negotiation between parties; may be objected to by employer because veteran remains on payroll; as a last resort, veteran may voluntarily agree to waive right to pay if he/she needs additional time before scheduled hearing date;

l.      Subpoenas

i.     Civil Service Commission has authority to issue subpoenas;

ii.     Arbitrator?  Probably, through BMS.  Indep. Sch. Dist. No. 282 v. SEIU, Local 284, BMS No. 12 PA 0137 (June 2012) (decision indicates one witness appeared pursuant to subpoena);

iii.     Commissioner of Veterans Affairs under Minn. Stat. § 197.481, subd. 3 has subpoena powers as well.

iv.     PRACTICE POINT FOR EMPLOYEES: Be mindful of the fact that most employee-side witnesses will be current employees, so a subpoena may be necessary (or desired by a co-worker who wishes not to seem aligned with a maligned employee).  Don’t assume a witness (often forced to use his or her own paid time off) will appear voluntarily.

m.  “Extenuating circumstances” – employee’s second bite at the apple.

i.     Hearing board is REQUIRED to consider whether extenuating circumstances exist to warrant the disciplinary sanction imposed by the employer. Schrader;

ii.     Hearing board may reduce penalty regardless of the reasonableness of the employer’s action. Schrader;

iii.     Burden is on employee to show extenuating circumstances.  Laux v. Gallagher, 527 N.W.2d 158 (Minn. App. 1995);

iv.     Examples of extenuating circumstances may include

1.    Length of service;

2.    Prior work record and absence of discipline;

3.    Nature of disability, PTSD?;

4.    Nature and severity of offense;

5.    Punishment meted out to other employees

a.    Laux (affirming commission’s finding of extenuating circumstances in case involving police officer terminated following sexual assault conviction; other officers guilty of misdemeanor charges not terminated, including ones convicted of domestic abuse or DWI);

b.    Compare with Wagner v. Minneapolis Public Schools, Special School Dist. No. 1, 569 N.W.2d 529 (Minn. 1997) (reversing commission’s finding of extenuating circumstances finding where “alleged similar acts were in fact so dissimilar as to provide no useful comparison”).

6.    Clarity of rule alleged to have been violated;

7.    Existence of progressive discipline scheme, even if not required to be followed;

8.    Candor concerning issues resulting in discipline?  Contrition?;

9.    Corrective action taken, e.g. treatment for substance abuse where addiction gave rise to act of misconduct.  Lanerd v. Dep’t of Corrections, BMS No. 12-VP-0358 (Jan. 2012).

10.    PRACTICE POINT FOR EMPLOYEES: be prepared to argue for lesser penalty, “in the alterntative”

  • Unpaid leave of absence is the most common.  Strickland v. Brooklyn Park, BMS No. 13-VP-153 (March 2013) (penalty reduced from termination to three day suspension without pay for officer who violated moonlighting prohibition)
  • Last chance agreement;
  • Temporary demotion;
  • Find and cite to tribunal any authority from prior reported cases involving similar facts or issues (BMS website; court decisions);
  • Find and cite applicable law, e.g. Minneapolis Civil Service Rules, which discuss appropriate penalties for misconduct versus incompetence.

n.    Closing Arguments

i.     At the close of evidence, summations / closing arguments are typically presented.

ii.     PRACTICE POINT: Enquire in advance whether the panel or judge prefers oral or written closing arguments; don’t assume that closing briefs will be accepted or that you will not be expected to deliver a closing argument;

iii.     Proposed findings commonly requested.

o.    Appeals

i.     To the District Court;

ii.     Either party may appeal

1.    Previously, statute said only employee had right to appeal, applied to employer by court decision; legislature recently modified VPA to make this employer right express;

iii.     Deadline to Appeal

1.    15 days for both Veteran and Employer (following 2012 amendments);

2.    Previously per court decision 60 days for Cities of the First Class (100,000 residents or more) under Civil Service Appeal statute (Minn. Stat. § 484.01, subd. 2), and by implication a variety of other, shorter deadlines for other Cities depending on size. Eldredge v. City of St. Paul  [I argued this case unsuccessfully to the Minnesota Supreme Court; Justice Page in dissent agreed with me].

iv.     Standard of review

1.    “Substantial evidence” standard – Court determines whether whether any party met a specific burden of proof, only whether board’s decision was supported by substantial evidence.  It may not re-weigh the evidence.  Maire v. Indep. Sch. Dist. No. 191, A12-0995 (Minn. App. Apr. 22, 2013) (unpublished);

2.    Whether extenuating circumstances requires modification from termination to a lesser punishment reviewed under same standard: whether “the board’s decision not to modify was an abuse of discretion or without substantial support in the record.”  Myers;

3.    “Evolving community standards” – cases should be evaluated based on the standards of the day, so prior precedents don’t necessarily dictate outcomes.  Laux (affirming commission’s modification of discipline from termination to 90-day suspension, for police officer fired after sexual assault conviction).

p.    Costs of Hearing

i.     Employer responsible for all costs except veteran’s attorney’s fees;

ii.     Veteran’s attorney fees awarded if the panel/arbitrator “reverses the level of the alleged incompetency or misconduct requiring discharge;”

iii.     Awkwardly worded, but appears to apply to situations in which the panel/arbitrator either reverses dismissal or imposes a lesser punishment than dismissal.

VII.          Interplay with Collective Bargaining Rights

a.      Employee may elect either a hearing or grievance, but not both.  Minn. Stat. § 197.455, subd. 1(b), (c);

b.      Strategic decision, but statute now allows for recovery of attorney fees whereas CBA may not.

VIII.        Remedy for Employer Violation in Failing to Provide Notice or Hearing

a.    File Writ of Mandamus in district court (Minn. Stat. § 197.46); or

b.    Petition the Commissioner of Veterans Affairs (Minn. Stat. § 197.481).

NOTE: This section also pertains to denials of other rights in the hiring phase (e.g., not properly awarding credits);

c.     Applies to lay-offs, where vet believes it is done in bad faith to avoid VPA provisions.

d.     PRACTICE POINT FOR EMPLOYERS: layoff notice should state the employee has 60 days to petition the district court for a writ of mandamus compelling reinstatement and back pay if he/she believes the layoff is in bad faith; notice should also state that the vet has the alternative right to petition the Commissioner of Veterans Affairs for a hearing on the matter;

e.    Six-year limitations period in which employee may file, where no notice given to employee, regardless of whether employee is aware of his/her rights under VPA.  Johnson v. County of Anoka, 536 N.W.2d 336, 339 (Minn. App. 1995);

f.    Burden of proof on employee to show violation. Anderson v. City of Dayton, OAH No. 3-3100-15361-2 (July 2003) (citing Minn. R. 1400.7300, subp. 5).

Exception for department head and other exemptions; treated as affirmative defenses with BOF on proponent (employer).

g.      Who hears the underlying case

i.     ALJ if case arises from employee petition to VA;

ii.     Panel or Civil Service Commission if case arises from employee-filed petition for Writ of Mandamus (on “remand”).

IX.           Remedies if Successful

a.     Reinstatement;

b.     Backpay, if employer failed to continue payment pending adjudication; if removal is a demotion and not termination, pay during pendency of proceedings must be at pre-notice of intent to remove rate.  Princeton v. Donner, BMS No. 09-PA-0820 (Jan. 2010);

c.     Duty to mitigate – backpay award reduced by unemployment compensation or wages earned from alternate employment.  Kurtz v. City of Apple Valley, 290 N.W.2d 171 (1980);

d.     Laches – backpay award may be reduced where it is determined vet unreasonably delayed bringing an action to enforce VPA rights.  Harr;

e.     Value of fringe benefits employee would have earned but for violation. Young v. City of Duluth, 410 N.W.2d 27 (Minn. App. 1987).

X.             Miscellaneous Statutes

a.    Unlawful to fire or threaten with termination any employee, public or private sector, for being a member of the federal or state military, or to dissuade from enlisting.  Minn. Stat. § 192.34;

b.     Unlawful to ask prospective employee about military status, if intent is to discriminate.  Minn. Stat. §181.535;

c.     Private right of action under Federal Uniformed Services Employment and Reemployment Rights Act (USERRA) section 1.05, subd. 5 extended to actions against a STATE:

“. . . may bring a civil action against the state in federal court or another court of competent jurisdiction for legal or equitable relief that will effectuate the purposes of that act;”

d.    Servicemembers Civil Relief Act, 50 U.S.C. § 501, et seq. (protects servicemembers from being sued while in active military duty and for up to one year after active duty; includes foreclosure);

e.    U.S. Veterans Preference Act, 5 U.S.C. § 2108a (preference for hiring veterans in federal jobs);

f.      Property Tax Exclusion for Disabled Veterans, Minn. Stat. § 273.13, subd. 34 (providing full or partial valuation property tax exclusion for homesteads of disabled veterans with a disability rating of 70 percent or greater);

g.    Minnesota Military Leave Act, Minn. Stat. § 192.26 (providing that public employees will not lose pay while on military duty in certain circumstances for up to 15 days);

h.    Leave for Immediate Family Members of Military Personnel Injured or Killed in Active Service, Minn. Stat. § 181.947 (employers must grant up to ten working days of leave without pay to an employee whose immediate family member, as a member of the armed forces, has been injured or killed while engaged in active service);

i.      Hunting and fishing preferences. Minn. Stat. § 97A.465 (among other things, resident military personnel on leave or discharged within 24 months can fish or hunt without a state-issued license and have a preference in hunting lottery, except regarding moose, elk and prairie chickens).

XI.           Resources

a.    Office of Administrative Hearings (OAH) ALD Opinions Archive (searchable): https://mn.gov/oah/lawyers-and-litigants/administrative-law/opinion-archive.jsp

b.   Minnesota Department of Veterans Affairs: http://mn.gov/mdva/

c.   League of Minnesota Cities: https://www.lmc.org/

d.   Association of Minnesota Counties: www.mncounties.org

e.   Bureau of Mediation Services (BMS) arbitration awards (searchable): https://mn.gov/bms/arbitration/awards/