Mark Hanson, Relator, vs. City of Hawley, Respondent.

Mark Hanson, Relator, vs. City of Hawley, Respondent. A05-1940, Court of Appeals Unpublished, May 2, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1940

 

Mark Hanson,

Relator,

 

vs.

 

City of Hawley,

Respondent.

 

Filed May 2, 2006

Affirmed; motion granted

Crippen, Judge*

 

City of Hawley

 

Randolph E. Stefanson, Kent B. Gravelle, Stefanson, Plambeck, Foss & Fisher, 403 Center Avenue, Suite 302, P.O. Box 1287, Moorhead, MN 56561-1287 (for relator)

 

Julie Fleming-Wolfe, 1922 Grand Avenue, St. Paul, MN 55105 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Relator contends, inter alia, that the termination of his employment was premised on an alcohol test taken in violation of the standards set out in the Minnesota Drug and Alcohol Testing in the Workplace Act.  Because the record demonstrates a basis for termination independent of the drug test and because we find no merit in relator's additional arguments, we affirm.  In addition, we grant respondent's motion to strike parts of relator's appendix. 

FACTS

            Relator Mark Hanson worked for respondent City of Hawley as its chief of police; he was an at-will employee.  The standards of his employment included a "no tolerance" provision prohibiting on-call employees from consuming any alcohol, alcoholic beverages, or controlled substances except as may be prescribed by a doctor.  Additionally, police department policy required officers to take a portable breath test after they were involved in an accident while in a city vehicle.

            In May 2005, relator was involved in a minor car accident while he was on call.  In conformance with department policy, he requested a portable breath test.  The test indicated that relator had a blood-alcohol content of .024.  Relator subsequently justified the reading by explaining that shortly before he went on duty, but a few hours after he was on-call, he consumed cough medicine. 

            The Hawley mayor filed a complaint for city action against relator, alleging employee misconduct in violation of city and department policies.  After reviewing the results of an independent investigation, the recommendation of the city's personnel committee, and relator's argument, the city council voted to terminate relator.  Relator requested and received an appeal hearing on the matter.  At the appeal hearing, relator's attorney read a statement on his behalf and asked that he be reinstated.  Noting that it did not regard relator as having an alcohol problem, the council stated that relator nonetheless violated the no-tolerance policy.  By unanimous vote, the council sustained its decision to terminate relator.  This certiorari appeal followed. 

D E C I S I O N

On certiorari review, this court will inspect the record and determine questions of jurisdiction of the tribunal, the regularity of the proceedings, and whether an order in a particular case is arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without evidentiary support.  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).

1.

            Relator claims that the city's decision to terminate his employment violated the Minnesota Drug and Alcohol Testing in the Workplace Act.  This law governs drug and alcohol testing in the workplace.  Minn. Stat. §§ 181.950-.957 (2004).  Under the statutes, an employer must fulfill certain prerequisites before discharging an employee based on a positive alcohol test.  Minn. Stat. § 181.953, subd. 10.  The employer must verify the initial test with a confirmatory test.  Id., subd. 10(a).  And the employer must give the employee an opportunity to participate in a counseling or rehabilitation program.  Id., subd. 10(b). 

            Relator argues that his portable test results must be disregarded because the city violated the alcohol test law by failing to verify the test with a confirmatory test or to offer him counseling or rehabilitation.  In support of his argument, relator cites City of Minneapolis v. Johnson, 450 N.W.2d 156, 160 (Minn. App. 1990).  In Johnson, this court stated that when a police department violates the limitations set out in Minn. Stat. § 181.953, subd. 10, the test results "must be disregarded."  450 N.W.2d at 160.  But as the city points out, this court ultimately affirmed the police officer's discharge notwithstanding the statute because the discharge was based on other grounds.  Id. at 160-61.  The city asserts that Johnson stands for the proposition that the statute applies if, but for the testing, the discharge would not have occurred.  And the city maintains that this court should affirm its discharge decision because grounds independent of the portable test results supported relator's discharge. 

            The city's argument is compelling.  Upon investigation of his accident, relator acknowledged that he knowingly consumed alcohol while he was on call and in the course of performing his duties as chief of police.  Although he found it important to distinguish that he consumed cough medicine as opposed to other forms of alcohol, the issue was whether he consumed alcohol in violation of the zero-tolerance policy, and relator admitted doing so.   

Relator argues that the zero-tolerance policy was unfair because it applied to officers on call.  But he did not suggest that it was unfair in the context of penalizing employees who consume alcohol on the job.  Because the policy provided a basis for discharging relator independent of the test, we affirm the city's decision to terminate relator. 

            The city contends that the statute has no application to at-will employees, notwithstanding the fact that the statute defines an employer to include governmental bodies.  See Minn. Stat. § 181.950, subd. 7.  The city's argument implies that because of the at-will-employment doctrine, the city always has the option to terminate an employee for reasons other than the test result even if the test result was used as a basis for the decision.  Equally as important, even if an at-will employee were reinstated because he was terminated in violation of the alcohol testing statutes, he would then be subject to discharge for any reason or for no reason at all.  Randall v. N. Milk Prods., Inc., 519 N.W.2d 456, 459 (Minn. App. 1994).  Because we find that the statute does not govern the circumstances of this case, given the fact that relator acknowledged violating the no-tolerance policy, we have no occasion to determine the potential conflicts between the statute and the doctrine of at-will employment.

The city also argues that this application of the alcohol-testing statute is not properly before us on certiorari review because relator may seek a statutory remedy for the alleged violation of the drug-testing statutes in district court.  The Minnesota Supreme Court discussed the appropriate parameters of certiorari review in Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996).  In Willis, a terminated county employee brought action in district court, rather than seeking certiorari review, alleging wrongful discharge, breach of contract, disability discrimination, and defamation.  555 N.W.2d at 279.  Because the contract and wrongful termination claims challenged the basis of the decision to discharge, the supreme court disallowed those claims in district court.  Id. at 282.  But the defamation action, which did not require review of the discharge decision, was allowed to proceed.  Id. 

The Minnesota Drug and Alcohol Testing in the Workplace Act is generally used to obtain damages, while other remedies are used to challenge the termination itself.  See Minn. Stat. § 181.956, subd. 2; see, e.g., Follmer v. Duluth, Missabe & Iron Range Ry. Co., 585 N.W.2d 87, 89 (Minn. App. 1998) (affirming district court's award of damages when employee challenged in mediation her termination based on a positive drug test, was reinstated, then successfully sued for damages in district court).  But because this challenge goes to the termination decision itself, we hold that this claim is properly before us upon certiorari appeal.

2.

Relator's Other Statutory Claims

            Relator also contends that the city violated the Americans with Disabilities Act, the Minnesota Human Rights Act, and the Minnesota Government Data Practices Act.  In each instance, the city correctly asserts that these claims are beyond the scope of our certiorari review. 

Relator argues that the city violated the disabilities act and the human rights laws by failing to provide accommodation when he requested it.  But relator could bring a claim for disability discrimination under the human rights act in district court.  Minn. Stat. § 363 A. 33, subd. 1 (2004).  And he could initiate litigation of a disability discrimination claim under the Americans with Disabilities Act by filing a charge with the EEOC or local agency.  42 U.S.C. §§ 2000e-5(a), (c), 12117(a) (2004) (incorporating Title VII remedies into the ADA).  Furthermore, the Minnesota Supreme Court has held that discrimination claims are not limited to review by certiorari where the district court can review the claim without reviewing the discharge decision.  Willis, 555 N.W.2d at 282-83.  

Relator next contends that respondent violated the data privacy laws by releasing to an area newspaper a letter regarding relator's alcohol use before the final disposition of his case.  But a person who suffers damage as a result of a violation of the Minnesota Government Data Practices Act may bring a civil action against the responsible entity.  Minn. Stat. § 13.08, subd. 1 (2004).  Because relator's data-law claim does not involve any aspect of respondent's decision to discharge relator and because relator could pursue that claim in district court, we decline to review his claim on certiorari review. 

            City's Personnel Policy

Relator also claims that he was protected by the city's personnel policy, which entitles city employees to a three-day suspension upon their first positive test for alcohol after an accident.  But the city proceeded based not just on the test result, but also based on relator's acknowledged violation of the zero-tolerance policy.  And relator has not established that the terms of the city's personnel policy were enforceable as an employment contract.  See Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983) (stating that a personnel policy may become enforceable as an employment contract only if, among other requirements, the offer is sufficiently definite in form and more than an employer's general statement of policy).

Due Process

Relator argues that the city violated his right to due process because he received inadequate notice of the city council's hearings and he was not given an opportunity to investigate, confront, and examine witnesses.  Generally, an at-will employee is not entitled to due process.  Reierson v. City of Hibbing, 628 N.W.2d 201, 204-05 (Minn. App. 2001) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 2710 (1972)).  Here, it is undisputed that relator was an at-will employee.  As an at-will employee, relator had no property interest in his job.  Id.  Therefore, he was not entitled to the constitutional benefits he claims.  Id. 

Motion to Strike

Respondent asks this court to strike two affidavits in relator's appendix.  The record on certiorari appeal is composed of the papers, exhibits, and transcripts of any testimony considered by the decision-making body being reviewed.  See Minn. R. Civ. App. P. 110.01, 115.04, subd. 1 (providing that rule 110 should apply to certiorari proceedings to the extent possible); Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 769 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  On appeal, this court cannot base its decision on matters outside the record.  Stephens, 614 N.W.2d at 769.

Respondent objects to the admission of affidavits of relator and of a forensic toxicologist.  The affidavits are dated September 23, 2005, and September 26, 2005. Thus, they are outside the record on appeal because they were not considered by the city council when it decided to terminate relator on August 12, 2005, or when it affirmed that decision on August 19, 2005.  Accordingly, we grant the motion to strike the affidavits because they are not part of the appellate record. 

            Affirmed; motion granted.

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