This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Recommendation
for Discharge of Joey Lash.
Filed February 21, 2012
Minneapolis Civil Service Commission
Marshall H. Tanick, Mansfield, Tanick & Cohen, P.A., Minneapolis, Minnesota (for
relator Joey Lash)
Karin E. Peterson, Rice, Michels & Walther, LLP, Minneapolis, Minnesota (for
respondent Minneapolis Park and Recreation Board)
Considered and decided by Schellhas, Presiding Judge; Johnson, Chief Judge; and
Relator Joey Lash challenges a decision by respondent Minneapolis Civil Service
Commission (the commission) sustaining the termination of his employment as a park
police officer by respondent Minneapolis Park and Recreation Board (MPRB). Lash
argues that (1) the evidence does not support a finding that there was cause to terminate
his employment; (2) the commission acted arbitrarily and capriciously in declining to
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
impose a lesser sanction than discharge; and (3) the commission violated his procedural
due-process rights. We affirm.
“Generally, decisions of administrative agencies, including cities, enjoy a
presumption of correctness and will be reversed only when they reflect an error of law or
where the findings are arbitrary, capricious, or unsupported by substantial evidence.”
CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 562 (Minn. App. 2001),
review denied (Minn. Nov. 13, 2001).
A decision is arbitrary and capricious if it
represents the “agency’s will, rather than its judgment, or if the decision is based on
whim or is devoid of articulated reasons.” Id. at 565. Substantial evidence means:
(1) such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion; (2) more than a scintilla
of evidence; (3) more than some evidence; (4) more than any
evidence; and (5) evidence considered in its entirety.
Id. at 563. “Where the evidence is conflicting or more than one inference may be drawn
from the evidence, findings must be upheld.” Id. at 562.
Lash challenges the commission’s finding that the MPRB had cause to discharge
him from employment. Under Minnesota caselaw, cause for discharge “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.”
Hagen v. Civil Serv. Bd., 282
Minn. 296, 299, 164 N.W.2d 629, 632 (1969). Lash asserts that the substantial evidence
does not support the commission’s findings that he was terminated for “double
dipping”—collecting pay from the MPRB for time during his scheduled shifts that he was
actually off duty and being paid by educational institutions for teaching law-enforcement
classes. We disagree.
The evidence that Lash was double dipping includes testimony from Kevin
Hinrichs, who investigated an anonymous complaint that Lash was double dipping; a
spreadsheet created by Hinrichs comparing the number of hours, regular and overtime,
that Lash claimed to have worked each day with the days and times on which the
educational institutions reported that he had been teaching; Lash’s admission after the
investigation had begun that his time records were “messed up” and that he would do
whatever it took to keep his job; and Lash’s failure to disclose to a new supervisor that he
was teaching classes during his scheduled shifts.
The commission rejected Lash’s
assertion that he had made up, either at the beginning or end of his shifts, the time that he
took off to teach classes, explaining that “it is implausible that any person could
consistently work the kind of intensely rigorous 18- and 19-hour workdays that would be
required to make the [time records] accurate, unless the teaching hours were doublecounted.”
On this record, we conclude that substantial evidence supports the
commission’s finding that the MPRB had cause to terminate Lash’s employment.
Lash asserts that the commission acted arbitrarily and capriciously in declining to
impose a lesser sanction than discharge. Much of Lash’s argument in this regard is
premised on the characterization of his conduct as mere negligence in failing to properly
complete his time records. But the commission found that Lash had intentionally claimed
pay for hours that he spent off duty teaching. Lash also argues that lesser sanctions have
been imposed against officers employed by the Minneapolis Police Department (MPD)
who have committed similar misconduct, and that extenuating circumstances, including
Lash’s longtime service to the MPRB, warrant a lesser sanction.
considered and rejected both of these arguments. With respect to the MPD disciplinary
records, the commission relied on the testimony of MPRB’s human resources manager
that MPRB’s practice is to “recommend termination of employment in cases of falsely
claiming pay for work that was not actually performed.” The commission also noted that
MPRB “is not bound to follow the practices of the [MPD], which is separately
administered.” With respect to extenuating circumstances, the commission explained:
Length of service and work record are factors to be
considered in determining whether discharge of a public
employee is appropriate. Weighed against these factors here,
however, is the fact that Mr. Lash improperly claimed pay for
hours he did not work, over a period of three years. He was
entrusted with significant responsibility, and performed
remarkably in many areas. But his lapse in judgment over a
three-year period is very serious. [MPRB] is justified in
recommending discharge of a sworn police officer who is
held to the highest standards of integrity and honesty in his
dealings with the [MPRB] and the community.
The commission did not act arbitrarily or capriciously in declining to impose a lesser
sanction than termination.
Lash asserts violations of his right to procedural due process. “In general, due
process requires notice and a meaningful opportunity to be heard before a fair and
impartial decisionmaker.” State ex rel Marlowe v. Fabian, 755 N.W.2d 792, 794 (Minn.
App. 2008). The sufficiency of procedure is assessed under the balancing test enunciated
by the U.S. Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903
(1976), which weighs (1) the private interest at stake, (2) the risk of erroneous
deprivation of that interest and probable value of additional safeguards, and (3) the
governmental interests involved. Id. A party asserting a due-process violation must
demonstrate prejudice in order to obtain relief on that ground. State v. Cannady, 727
N.W.2d 403, 408-09 (Minn. 2007).
Lash asserts that his due-process rights have been violated because the hearing on
his discharge was limited to two days, rather than the three that he requested, and because
the loss of some audiotapes precluded a complete transcript from being prepared. But
Lash has failed to demonstrate any prejudice arising out of either of the alleged
violations. He has not specified what additional witnesses he would have presented at the
hearing or what relevant, noncumulative testimony those witnesses would have given.
And he has not explained how the jointly prepared and submitted supplemental statement
of the record is insufficient to apprise this court of the missing portions of the record. See
Minn. R. Civ. App. P. 110.03 (providing procedure for submission of statement of
proceedings when transcript is not available); cf. U.S. ex rel. Luzaich v. Catalano, 401 F.
Supp. 454, 460 (W.D. Pa. 1975) (holding, in criminal context, that lack of transcript does
not warrant new trial when the record is “sufficient to present an adequate picture of what
transpired below”). Accordingly, we reject Lash’s assertion that his due-process rights
have been violated.