Ed Pachel, Relator, vs. Clay County Board of Commissioners, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-320

 

Ed Pachel,

Relator,

 

vs.

 

Clay County Board of Commissioners,

Respondent.

 

Filed November 16, 2004

Affirmed

Toussaint, Chief Judge

 

Clay County Board of Commissioner

Resolution 2004-6

 

 

 

Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58108-6017 (for relator)

 

Nicholas J. Heydt, Michael T. Rengel, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538-0866 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Relator Ed Pachel appeals from respondent Clay County Board of Commissioners (the board) resolution eliminating his position as a public health detox counselor.  Pachel argues that the board acted arbitrarily by characterizing the elimination of his position as a "lay-off" given that detox counseling services continue to be performed within the Clay County Social Services Department  (social services).  Finally, Pachel argues that the board did not follow its own seniority policy and failed to hold a formal hearing regarding his termination.  Because the board's decision was not arbitrary or unsupported by substantial evidence, we affirm.

FACTS

Pachel was previously employed as the 1.0 FTE Public Health Detox Counselor with Clay County (the county).  The position has always been funded through social services.  In 2003, the county experienced a budgetary shortfall and social services saw its overall funding decreased.  This required social services to reduce its funding to public health detox.  As a result, public heath began considering a reduction in personnel. 

Under section 25 (B)(1) of the Clay County Personnel Policy (personnel policy), "[a ]decision to reduce personnel shall be based on a county board decision, made after consultation with the department head affected, to reduce or eliminate a service or function, or for budgetary reasons."  In December 2003, Betty Windom-Kirsch (the affected department head) advised the board that the 2004 public health budget included the elimination of the detox counselor position effective February 13, 2004.

The county detox unit is required to provide one full-time equivalent qualified assessor for every 15 clients the program serves, pursuant to Minn. R. 9530.4280, subp. 4 (2003).  As a result of the budget cuts, Pachel's former duties were transferred to social services where part of the duties of four employees provide the required services.  At a January 27 meeting of the board, Pachel's attorney argued that Pachel's termination and the transfer of his position to social services was in violation of the personnel policy.  After hearing the arguments, the board passed Resolution 2004-6 formally approving Pachel's termination and the transfer of detox counseling services to the social services department.

D E C I S I O N

On a writ of certiorari, this court is limited to an inspection of the record and, with respect to the merits of the controversy, must determine whether the decision of the board was "arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it."  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).  "The reviewing court is not to retry the facts or make credibility determinations."  Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (citing Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn. 1990)).  The decision will be upheld if the board "furnished any legal and substantial basis for the action taken."  Id. (quoting Beck v. Council of St. Paul, 235 Minn. 56, 58, 50 N.W.2d 81, 82 (1951)).  This court will reverse the decision of the board if it is "unsupported by substantial evidence."  Cable Communications Bd. v. Nor-West Cable Communications P'ship., 356 N.W.2d 658, 668 (Minn. 1984).  The Minnesota Supreme Court has "endorsed the following definition of ‘substantial evidence': (1) [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) [m]ore than a scintilla of evidence; (3) [m]ore than some evidence; (4) [m]ore than any evidence; and (5) [e]vidence considered in its entirety."  Id.  The reviewing court must consider the evidence in view of the entire record.  Id.

I.

Lay-off versus Termination

Pachel first argues that the board was arbitrary and capricious, and their decision was unsupported by substantial evidence, in characterizing the elimination of the public health detox counselor position as a "lay-off".  Pachel contends that because the duties of a detox counselor continue to be performed within the social services department, the action of the board was a termination of his employment without "just cause." 

Section 25 (B)(1) of the county's personnel policy addresses work-force reductions, stating that "[a] decision to reduce personnel shall be based on a county board decision, made after consultation with the department head affected, to reduce or eliminate a service or function, or for budgetary reasons."  Minn. R. 9530.4280 (2003) addresses the staffing requirements for a chemical-dependency program and mandates one full-time assessor for every 15 clients served.  Social services is required to comply with the rule and has the authority to meet the mandated requirement with "part-time, full-time, or contracted staff or staff from another agency guaranteed by interagency contract."  Minn. R. 9530.4280, subp. 4.

            The public health detox counselor position has always been funded through social services.  Due to countywide budget cuts, social services reduced its overall funding to public health.  Public health then considered the possibility of a reduction in personnel.  In accordance with section 25 of the personnel policy, department head Windom-Kirsch recommended elimination of the 1.0 FTE public health detox counselor position.  In order to continue compliance with Minn. R. 9530.4280, subp. 4, social services assumed the responsibilities associated with Pachel's former position and delegated those duties to be shared by four individuals within the social services department.  Pachel was laid off and his duties were transferred to social services.  Although detox counseling services continue to be provided through the social services department, Pachel's former position no longer exists.  Therefore, we conclude that the board's decision in characterizing Pachel's termination as a lay off was supported by personnel policy when, because of budgetary reasons, positions have to be eliminated.

II.

Failure to Follow Personnel Policy

Pachel next argues that, if he was laid off, the board lacked substantial evidence and acted arbitrarily and capriciously in failing to consider his seniority in determining the reduction in workforce.

Section 22(A) of the personnel policy states that Clay County will "recognize seniority" in "determin[ing] vacation leave accrual rate, the order in which employees will take vacation, layoff procedures and other management rights as determined by the county."  Section 25(C)(1) of the personnel policy addresses the order of employees to be laid off and the factors to consider including: "(a) [t]he employee(s) ability to satisfactorily perform the remaining work; (b) [t]he employee(s) work performance; (c) [t]he employee(s) seniority." 

            Pachel has worked for Clay County in a number of positions for twenty years.  As a result Parchel claims, he has more seniority than the four individuals who assumed the responsibilities of his former position within social services.  Pachel asserts that under the personnel policy, he should have been given priority, or "bumping rights," with respect to the position.  First, Pachel's argument fails to take into account that while detox counseling services continue to be offered through social services, the position of public health detox counselor has been eliminated.  Second, no provision of the personnel policy specifically grants employees "bumping rights."  In the absence of a specific provision granting bumping rights, Pachel's argument that his seniority status should have allowed him to bump an employee in another department is without merit.  Therefore, the board was not required to consider Pachel's seniority with respect to staffing decisions in a wholly separate department.

III.

Failure to Conduct a Formal Hearing

            Finally, Pachel argues that the board failed to conduct a formal hearing prior to his termination and the transfer of his duties to social services. 

            Due process in a public employee termination case is satisfied if there is adequate notice and an opportunity to be heard.  Cleveland Bd. of Educ. v. Loudermill, 105 S. Ct. 1487, 1495-96, 470 U.S. 532, 546-547 (1985); see also In re License of W. Side Pawn, 587 N.W.2d 521, 522 (Minn. App. 1998) (stating that due process requires reasonable notice and an opportunity to be heard), review denied (Minn. Mar. 30, 1999). 

            We conclude that Pachel was provided with ample notice as well as an opportunity to be heard regarding the transfer of the detox counselor responsibilities to social services.  First, Pachel filed grievances regarding his termination with the county, demonstrating that he had notice of the budgetary issues as well as an opportunity to voice his objections.  Second, Pachel was again provided with notice in December 2003, when Windom-Kirsch contacted him in writing regarding his termination.  Finally, the board held a meeting on January 27th at which Pachel's attorney was in attendance and presented arguments in opposition to Pachel's termination and the transfer to social services.  Therefore, an adequate formal hearing was conducted prior to Pachel's termination.

Affirmed.

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