This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-1149

 

 

Richard Bendickson,

Appellant,

 

vs.

 

County of Kandiyohi,

Respondent.

 

 

Filed December 19, 2000

Affirmed

Schumacher, Judge

 

Kandiyohi County District Court

File No. C8991441

 

 

Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, Post Office Box 202, Paynesville, MN 56362 (for appellant)

 

Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Post Office Box 1126, Willmar, MN 56201 (for respondent)

 

 

            Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

            Appellant Richard Bendickson challenges a decision by a veterans preference board.  Respondent Kandiyohi County discharged Bendickson for misconduct and the board upheld the action as reasonable while finding no extenuating circumstances.  We affirm.

FACTS

Bendickson is an honorably discharged veteran.  Kandiyohi County hired Bendickson as a sewer and water worker in April 1993. 

Kandiyohi County's employee handbook contains provisions for discipline, stating that every disciplinary action shall be for "just cause."  The handbook states that discipline may follow progressive steps from reprimand to suspension to dismissal, although the county may take any employment action at any time.  On September 28, 1994, Bendickson received a written reprimand from his supervisor for improper use of a county radio "to order a drink" and warning him that "[a]ny further infractions of this type will result in your suspension or discharge from employment with Kandiyohi County."  On December 2, 1998, Bendickson received a second written reprimand, this time from the county human resources director, detailing incidents during which Bendickson had been drinking alcoholic beverages while on call in violation of county policy and during which he had exhibited insolent behavior toward his supervisor.

One of Bendickson's duties was to perform a weekly inspection of certain lift stations, devices that pump sewage from septic tanks into drain fields.  This inspection involves walking to the lift station, reading the digits on a meter affixed to the lift station, and recording the results in a record book.  For those residences that they believed to be seasonally vacant, Bendickson and a coworker occasionally falsified records to show that no change had occurred on the meter without actually having made an inspection.

By a letter dated March 23, 1999, the public works director informed Bendickson that he would be discharged from his employment.  The letter apprised Bendickson of his right to a hearing under the Veterans Preference Act.  The stated reasons for discharge were falsification of 27 lift station records and collusion to falsify an additional 10 records.  In addition, referencing the December 2, 1998 written reprimand, the letter stated as follows: 

            The above misconduct followed a written reprimand * * * warning you to have an "immediate improvement in your attitude toward your job duties and following [c]ounty [p]olicies," or face suspension or discharge. 

 

Bendickson's coworker, who had engaged in the same misconduct, was suspended and later reinstated.

            Bendickson invoked his right to a hearing under the Veterans Preference Act.  The veterans preference board determined that since Bendickson admitted to falsifying records and had received prior reprimands for unsatisfactory job performance, the county acted reasonably in discharging him.  The hearing board found no extenuating circumstances justifying a lesser sanction.  The district court upheld the findings and determinations of the hearing board. 

D E C I S I O N

The Minnesota Veterans Preference Act states as follows:

No person holding a position by appointment or employment in the several counties * * * who is a veteran separated from the military service under honorable conditions, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.

 

Minn. Stat. § 197.46 (1998).  In conducting a veterans preference hearing, the task of the hearing board is to determine (1) whether the employer has acted reasonably, and (2) whether extenuating circumstances exist justifying modification of the disciplinary sanction.  State ex rel. Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995).  In reviewing the adequacy of findings of the hearing board, an appellate court determines whether the findings are supported by substantial evidence on the record as a whole.  Id.  The actions of the hearing board will not be disturbed on appeal absent an abuse of discretion.  Id.

There is no dispute that Bendickson falsified the records at issue.  The initial question, therefore, is whether the county was reasonably justified in discharging him in light of the misconduct at issue.

In determining whether the employer has acted reasonably, the board is to be guided by such considerations as the veteran's conduct, the effect upon the workplace and work environment, and the effect upon the veteran's competency and fitness for the job.

 

In re Schrader, 394 N.W.2d 796, 802 (Minn. 1986).  For the purposes of the Veterans Preference Act, the term "misconduct" has been equated with "just cause," meaning any cause "touching the qualifications of the officer or his performance of its duties, showing that he is not a fit or proper person to hold the office."  In re County of Cass, 353 N.W.2d 627, 630 (Minn. App. 1984) (quotation and citations omitted).  We have held, for instance, that a hearing board acted within its discretion in discharging a public employee for misconduct where the evidence presented at the hearing indicated that a road maintenance employee failed to maintain equipment according to orders, failed to account for overtime, refused to obey orders, and otherwise failed to perform his job duties properly.  Pawelk v. Camden Township, 415 N.W.2d 47, 50-51 (Minn. App. 1987).  Similarly, it is undisputed that the conduct at issue in the present case constitutes misconduct.  The question is whether the hearing board could reasonably hold it sufficiently severe to warrant discharge from employment.

Bendickson argues that his misconduct is not commensurate with the punishment levied—discharge from employment.  Furthermore, he contends that extenuating circumstances exist such that a less severe punishment is appropriate.  In support of this position, Bendickson contends that (1) his prior record of misconduct was improperly considered in evidence by the hearing board, as these incidents were not among the stated charges and were irrelevant to the stated charges; (2) discharge contravenes the county's "progressive steps" approach to discipline as articulated in the county's employee handbook; and (3) discharge is improper because another employee who had committed the same conduct was not discharged.  

First, the hearing board did not abuse its discretion in examining past instances of misconduct by Bendickson, particularly where past instances of misconduct were referenced in the county's termination letter.  Second, the prior written reprimands, one of which was referenced in the termination letter, not only conformed to the policy articulated in the county handbook, but also constituted notice "sufficiently detailed and adequate in substance" such that Bendickson should have been aware of the charges levied against him.  State ex rel. Jenson v. Civil Serv. Comm'n, 268 Minn. 536, 539, 130 N.W.2d 143, 146 (1964).  Finally, Bendickson's claim of disparate treatment fails because while Bendickson had acquired a poor performance and conduct record prior to the admitted falsification of records, there is no evidence that his coworker had anything but a spotless employment record prior to committing the same conduct.  See, e.g., Ward v. Proctor & Gamble Paper Prods. Co., 111 F.3d 558, 561 (8th Cir. 1997).

As for Bendickson's claim that extenuating circumstances exist that militate toward less severe sanctions, the hearing board has substantial discretion in determining what constitutes extenuating circumstances.  See Gallagher, 527 N.W.2d at 163-64 (observing that a hearing board may define "extenuating circumstances" and "need not be exclusively bound by earlier decisions that, in light of later experience, evolving community standards, and the felt necessities of the times seem inappropriate").  The hearing board did not abuse its discretion in finding no extenuating circumstances under this set of facts.

            Affirmed.