Jerry Anderson, Relator, vs. City of Blue Earth, Respondent.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C2-99-112

Jerry Anderson,
Relator,

vs.

City of Blue Earth,
Respondent.

 Filed August 24, 1999
 Affirmed
Willis, Judge

Blue Earth City Council

James A. Wilson, Johnson, Berens & Wilson, 110 Downtown Plaza, P.O. Box 271, Fairmont, MN 56031 (for relator)

Patricia Y. Beety, 145 University Avenue West, St. Paul, MN 55103 (for respondent)

Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

By writ of certiorari, relator appeals his termination as an employee of the City of Blue Earth, arguing that he was not afforded his due process rights and that the city did not comply with its personnel policy. We affirm.

 FACTS

In October 1998, Jerry Anderson, the Blue Earth police chief, was involved in two domestic incidents to which the Blue Earth police responded. He was not charged criminally in the incidents, but he was suspended, with pay, pending an investigation. An outside investigator was hired to examine allegations that: (1) Anderson's off- and on-duty conduct violated city or police department rules; (2) Anderson misused city property; and (3) Anderson abused his position by asking officers and dispatchers to relay false information to his wife regarding his whereabouts when he was with his girlfriend. The investigator found that all three allegations of employee misconduct against Anderson were supported by the evidence.

The Blue Earth City Council considered the allegations against Anderson on November 17, 1998, at a meeting that was closed pursuant to Minn. Stat. § 471.705, subd. 1d(c) (1998) (providing that public body shall close one or more meetings for preliminary consideration of allegations against individual subject to its authority but that meeting must be open at request of individual who is subject of meeting). The city notified Anderson of his option to open the meeting to the public. See id. But Anderson did not request that the meeting be open and did not attend.

The city council met again on December 1, 1998, in a closed meeting, to discuss further the allegations against Anderson and then opened the meeting and unanimously voted to terminate Anderson's employment for cause, adopting the investigator's report as part of its findings of fact. Anderson thereafter requested a "meaningful hearing" at which he could examine witnesses and present evidence before an independent hearing examiner, claiming that he was entitled to such a hearing under the federal and state constitutions and the city personnel policy. A hearing was set for December 14, 1998, and the city attorney notified Anderson that he could offer information or testimony to correct any inaccuracies he believed were in the record relating to the termination of his employment. At the hearing, Anderson argued that the city should reinstate his employment and that, if the city wished to proceed with the disciplinary process, it would have to afford him a hearing before an impartial body and allow him the opportunity to cross-examine witnesses and to present evidence. The hearing was continued, and on December 15, 1998, after determining that Anderson had not rebutted the evidence relied on for his termination, the city council affirmed its decision to terminate his employment. This certiorari appeal followed.

 D E C I S I O N

Our review on writ of certiorari is limited to an inspection of the record to determine the propriety of the city council's jurisdiction and procedures and, with respect to the merits, to determine whether its decision was arbitrary, oppressive, unreasonable, fraudulent, or unsupported by evidence or applicable law. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). As a reviewing court, we will not retry the facts or make credibility determinations. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). The decision will be upheld if the city council "furnished any legal and substantial basis for the action taken." Id. (citation omitted).

I.

On appeal, Anderson does not challenge the findings of facts that the city relied on in its termination decision. In fact, when he was interviewed by the outside investigator, Anderson admitted that the written allegations that were the subjects of the investigation were true. Anderson's termination was based on (1) his failure to address appropriately deficiencies cited in his March 1998 performance review; (2) personal calls he made using the city's cellular phone; (3) his request that a police officer and dispatcher convey false information to his wife as to his whereabouts; and (4) his conduct, off- and on-duty, that was detrimental to the police department.

At Anderson's March 1998 performance review, he was informed that he needed to take "corrective action" in several areas. A follow-up meeting regarding these issues was held in May 1998, and Anderson was informed that it was the city's position that "no significant progress" had been made in addressing the issues. The city council's finding that the problems had not been addressed adequately was reasonable and supported by the evidence. Further, Anderson admitted making personal phone calls to his girlfriend using a city cellular phone. The city council's finding that this was an unauthorized use of city property is reasonable and supported by the evidence. Anderson also admitted that he asked a police officer and a dispatcher to convey false information to his wife regarding his whereabouts when he was with his girlfriend. The city council's finding that such conduct was unbecoming an officer was reasonable and supported by the evidence. Finally, the city council addressed whether Anderson's general conduct, both off- and on-duty, was detrimental to the police department. It found that Anderson's behavior provoked several public or semi-public incidents that placed other officers in conflicts of interest and tended to detract from the community's respect for and confidence in the police department. This finding, too, is reasonable and supported by the evidence. Further, the personnel policy provides that the city council may dismiss an employee for (1) substandard work performance; (2) behavior not in keeping with city standards; and (3) unsuitability for employment with the city. Based on its findings, which are supported by the evidence, the Blue Earth City Council had a legal and substantial basis for terminating Anderson's employment.

 II.

Anderson argues that he had a right to a pretermination hearing that he did not receive, in violation of his due process rights and his rights under the city's personnel policy. To have a right to a pretermination hearing, an employee must have a property interest in continued employment. Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S. Ct. 2701, 2709-10 (1972) (defining property interest in job as one where individual has "legitimate claim of entitlement" to it). Because, pursuant to the City of Blue Earth's personnel policy, a nonprobationary city employee may be terminated only for just cause, Anderson, a nonprobationary employee, had a legitimate claim of entitlement in his continued employment and, therefore, a property interest as well. See Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989) (holding that employee who may not be terminated without just cause has legitimate claim of entitlement to government employment and is entitled to procedural due process).

Well-established law declares that a public employee with a constitutionally protected property interest in that employment is entitled to notice of the allegations against him and an opportunity to respond prior to the termination of employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495 (1985). A full evidentiary hearing is not necessary, but the employee is entitled to a process that operates as "an initial check against mistaken decisions." Id. at 545, 105 S. Ct. at 1495 (citation omitted). The key inquiry is whether the employee had sufficient opportunity to present his side of the story before adverse action was taken. Id. at 546, 105 S. Ct. at 1495.

Anderson argues that he was not provided the necessary pretermination hearing because the city would not allow him to attend the November 17, 1998, closed city council meeting unless he opened it to the public. But Anderson was not entitled to a formal pretermination hearing. Rather, the city was required to provide Anderson with notice of the allegations against him and an opportunity to respond. See id. at 545-46, 105 S. Ct. at 1495. The city did so.

Anderson received a copy of the allegations against him and he was provided with, and signed, a written summary of his taped interview with the investigator. Further, in a letter to the city attorney, Anderson responded with specificity to the investigator's report. At oral argument, Anderson claimed that these occurrences did not satisfy the notice requirement because only three allegations were specified as subjects of the investigation, although the December 1, 1998, findings of fact include his failure to take corrective action in the areas discussed at his most recent performance review as bases for terminating his employment. But the city council gave Anderson notice of the alleged performance deficiencies at his March 1998 performance review with the council. We conclude that Anderson had notice of the allegations against him and an adequate opportunity to respond before adverse action was taken, and, therefore, he received the pretermination due process to which he was entitled.

Anderson also argues that the city's personnel policy requires that he be given a just-cause hearing. But the personnel policy provides only for a posttermination hearing, and such a hearing was given to Anderson, at his request, on December 14, 1998. The city attorney told Anderson that he could use the opportunity to present information or testimony to correct any inaccuracies he believed were in the record, but Anderson instead argued that he should be reinstated and then provided with a pretermination hearing if the city council wished to terminate his employment.

As required by the personnel policy, a majority of the city council voted for Anderson's dismissal, Anderson was notified in writing of his dismissal and the reasons for it, and a posttermination hearing was granted at his request. The city council complied with the procedures set forth in its policy, and, based on the record, its decision was neither arbitrary nor unreasonable. Because due process was afforded, because the city followed its personnel policy, and because the termination is supported by the record, we affirm the decision of the Blue Earth City Council to terminate Anderson's employment.

 Affirmed.