In Re: The Termination of Mark Hensen from employment with the City of Hutchinson, Minnesota.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-2080

In Re:  The Termination of Mark Hensen

from employment with the

City of Hutchinson, Minnesota.

Filed August 7, 2001

Affirmed

Parker, Judge*

Hutchinson City Council

Mark A. Greenman, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55401 (for relator Hensen)

Julie Fleming-Wolfe, 1010 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent City of Hutchinson)

            Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            As a result of the City of Hutchinson's investigation into alleged misconduct within the city's building department, the city terminated the employment of relator Mark Hensen, the city's building official, on June 28, 2000, for just cause under the city's personnel policy.  After a two-day post-termination hearing, the city issued its decision to sustain Hensen's termination for operating a private for-profit business that was incompatible with and created a conflict of interest with his public employment. Hensen appeals by writ of certiorari from the city's decision to terminate his employment for just cause.

D E C I S I O N

Judicial review of a public employer's termination decision must be invoked by writ of certiorari.  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  On review, appellant bears the burden to convince the reviewing court to reverse the termination decision.  Manteuffel v. City of North St. Paul, 538 N.W.2d 727, 729 (Minn. App. 1995).  This court may reverse such a decision only if it was "fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within [the public employer's] jurisdiction, or based on an error of law."  Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn. 1990).

I.

Hensen argues that the city's termination decision must be reversed because it violated his right to due process.  As a public employee who could not be terminated without just cause, Hensen's employment was a protected property interest and entitled him to procedural due process protections.  See Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989) (stating that public employee who could not be discharged without just cause had a property interest in his employment entitling him to procedural due process protections).

The fundamental requirements of due process in a public employee termination case are notice and an opportunity to respond.  Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546-47, 105 S. Ct. 1487, 1495-96 (1985).  First, a public employee with a property interest in continued employment has a right to receive "oral or written notice of the charges against him [and] an explanation of the employer's evidence."  Id. at 546, 105 S. Ct. at 1495.  Second, the public employee is entitled to a pre-termination hearing.  Schleck v. Ramsey County, 939 F.2d 638, 641 (8th Cir. 1991).  This hearing need not be a formal evidentiary hearing, but should be used to provide the public employee with "notice of the charges * * *, an explanation of the employer's evidence, and an opportunity [for the employee] to present his side of the story."  Id. (quoting Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495).  Even informal meetings with supervisors satisfy the pre-termination due process requirement.  Riggins v. Board of Regents of Univ. of Neb., 790 F.2d 707, 711 (8th Cir. 1986).  And, when a less formal pre-termination procedure is used to determine merely whether the charges are true and support termination of employment, the public employee is entitled to a formal post-termination evidentiary hearing.  Conlin v. City of St. Paul, 418 N.W.2d 741, 744-45 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).

Hensen argues that the city did not meet his due process requirements because he was not allowed an opportunity to be heard at a meaningful time and in a meaningful manner.  He claims that because he was not made aware that his employment was in jeopardy of termination and was not told of the specific charges prior to his termination, he was unable to prepare a defense.  He further claims that at his post-termination hearing, he was presented with new charges that supported his termination.

We do not find a violation of Hensen's due process rights regarding notice and an opportunity to be heard.  First, as to pre-termination notice, the city initially notified Hensen and all building department employees in April 2000 regarding the investigation into department misconduct.  The city thus informed each individual employee of the pending investigation regarding allegations of misconduct by building enforcement employees.  Subsequent to this initial notice, the city provided Hensen with notice of a meeting regarding his employment and advised him that he could have a witness present.  Second, at the pre-termination meeting in May 2000, the city officials, including Hensen's supervisor, gave him written notice of specific charges, an explanation of the city's evidence, and an opportunity for Hensen to present his side of the story.  Under Loudermill and subsequent caselaw, the city satisfied the pre-termination due process requirements.  After the meeting, Hensen was provided written notice of his termination.  Finally, Hensen was provided a lengthy post-termination hearing at which he was represented by an attorney.  Hensen testified and his attorney was able to examine all witnesses fully.

But, Hensen contends that he did not receive notice of two particular charges leading to his terminationhis failure to attend two city meetings while performing private inspectionsuntil the post-termination hearing.  At the post-termination hearing, the city questioned Hensen during cross-examination on his claim that his private inspections did not affect his city responsibilities.  Hensen confirmed that he failed to attend two meetings because he was doing private inspections.  This evidence adequately relates to the city's overall charge that Hensen's private business activity was incompatible with and created a conflict of interest with his public employment.  Before his termination, Hensen was provided notice of this overall charge and was given the opportunity to present his side of the story.  Because Hensen received pre-termination notice of the general charges against him, was provided a pre-termination opportunity to respond, and was provided the opportunity to respond fully at a post-termination hearing, we conclude that there was no violation of Hensen's procedural due process rights.

II.

            Hensen also contends that the city's decision to terminate him was based on an erroneous legal theory and was unreasonable and unsupported by the evidence.  Specifically, Hensen argues that the city misconstrued the meaning of "just cause" as it pertains to termination of employment. 

The Minnesota Supreme Court has defined the meaning of "cause" in the context of a public employee's removal from office to require some relation to the administration of the office and the performance of his duties:

"Cause," or "sufficient cause," means "legal cause," and not any cause which the council may think sufficient.  The cause must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.  The cause must be one touching the qualifications of the [public employee] or his performance of its duties, showing that he is not a fit or proper person to hold the office.  An attempt to remove an officer for any cause not affecting his competency or fitness would be an excess of power, and equivalent to an arbitrary removal.  In the absence of any statutory specification the sufficiency of the cause should be determined with reference to the character of the office, and the qualifications necessary to fill it.

Hagen v. State Civil Serv. Bd., 282 Minn. 296, 299, 164 N.W.2d 629, 631-32 (1969) (emphasis added).  The court explained further that this definition appears to require "that the cause or reason for dismissal must relate to the manner in which the employee performs his duties, and the evidence showing the existence of reasons for dismissal must be substantial."  Id. at 299, 164 N.W.2d at 632.

            In this case, the city's personnel policy authorizes the city administrator to dismiss an employee for just cause.  Although the city supports the theory of progressive discipline, the policy does not restrict the city to strictly administer progressive discipline.  Under the policy, "management retains the discretion to take disciplinary action which it believes is appropriate for the particular circumstances."  The policy provides a nonexclusive list of types of disciplinary action, such as oral or written reprimands, suspension, demotion, and dismissal, which "may be taken in any order or not used at all."  Thus, the policy authorizes the city to terminate Hensen's employment if it deems termination the appropriate form of disciplinary action.

Under the policy, six of the city's allegations of Hensen's misconduct were defined as just cause to terminate his employment.  The city's six reasons (as outlined in the city's termination letter) are related to the manner in which he performed his duties, which is consistent with the legal definition of what constitutes just cause for dismissal of a public employee.

            Hensen also argues that the findings are not supported by the evidence.  Whether a public employer has just cause to discharge a public employee is a question of fact.  Recommendation for Discharge of Kelvie, 384 N.W.2d 901, 904 (Minn. App. 1986).  This court reviews findings of fact in the light most favorable to the prevailing party.  Hagen, 282 Minn. at 299, 164 N.W.2d at 632.

            The post-termination hearing committee concluded that Hensen's outside business venture was a conflict of interest and affected his ability to perform his duties as city building official adequately.  The committee based its conclusion on a number of findings that are supported by the record.

For example, although Hensen routinely complained about the excessive workload in the city building department, the June 28 termination letter notes that he regularly took time off during normal office hours for his private business.  The city contended that a backlog of work developed during a period described as the busiest time in the city's history.  Also, several building department employees were at one time or another involved in Hensen's business, most notably, the building inspector, who was his business partner.  As the building official in charge of these employees, it was not unreasonable for the city to conclude that a conflict existed with regard to Hensen's management of the department, his supervision of his employees, his evaluations of performance, his recommendations on pay, or his daily decision making.  The record, viewed in the light most favorable to the city, supports the city's decision to terminate Hensen's employment for just cause.

III.

            Finally, Hensen argues that, because the city terminated his employment without just cause, it breached its contract with him and he is entitled to monetary damages and seeks a remand for a hearing on damages.  Because the record reflects that Hensen was terminated for just cause, he has no breach-of-contract claim.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.