This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
City of St. Paul,
St. Paul Civil Service Commission,
Ramsey County District Court
File No. C8999621
Clayton Robinson, St. Paul City Attorney, Gerald T. Hendrickson, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 400, St. Paul, MN 55102 (for respondent)
Jeffrey R. Anderson, Jodean A. Thronson, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Foley, Judge.*
Appellant Steven Carlisle challenges the district court’s order reinstating his termination as a firefighter for respondent City of St. Paul. As an honorably discharged veteran, appellant is entitled to the protections of the Minnesota Veterans Preference Act (VPA). Appellant argues that the district court failed to give due deference to the St. Paul Civil Service Commission, which found that appellant’s termination was unreasonable. Finding that the civil service commission did not err, we reverse the district court’s decision.
Pursuant to a collective-bargaining agreement, all St. Paul firefighters are required to be certified by the Minnesota Emergency Medical Services Regulatory Board as emergency medical technicians (EMTs). To maintain their certification, firefighters must attend a refresher course and pass both a written and a practical examination every two years.
Respondent notified appellant in September and October 1997 that his certification would expire March 31, 1999. But appellant failed to register and attend a course until January 1999. After completing the course, he took both the written and practical examinations, but passed only the practical examination. On February 4, 1999, appellant was notified again that his certification would soon lapse. He registered to retake the written examination on March 12, 1999, but failed to sit for it. On March 31, 1999, respondent placed appellant on paid administrative leave and gave notice of its intention to terminate him.
Appellant demanded a hearing pursuant to the VPA. The St. Paul Civil Service Commission (“the hearing board”) was designated as an appropriate hearing board under the VPA for appellant’s grievance. Appellant was represented by counsel provided by his union. Due to scheduling problems, the board did not convene until August 24, 1999.
While on suspension, appellant successfully retook the written examination on April 28, 1999. He was recertified on May 28, 1999.
At the VPA hearing, David Huisenga, St. Paul Fire Chief of Emergency Medical Services, testified about certification for firefighters. He stated that “virtually all” firefighters are certified as EMTs or at the higher level of paramedic. St. Paul Fire Chief Timothy Fuller testified that he was aware of appellant’s situation because there was “another matter * * * that was going to result in discipline” for appellant. Chief Fuller acknowledged that appellant had come to him regarding some personal problems but did not feel those problems excused appellant’s failure to obtain certification, particularly because he was bound by the collective-bargaining agreement. Chief Fuller also stated that appellant has a “past history” of problems and that these would “naturally” be taken “into account in any disciplinary action.”
Appellant testified that he had been experiencing personal problems in his marriage and was afraid to take the examination because he was having problems concentrating. He stated that he was afraid of discussing his problems at work because of the “macho” environment and instead sought counseling from his minister, who also testified.
The hearing board issued its decision on September 22, 1999, finding that respondent failed to prove by a preponderance of the evidence that appellant was incompetent or guilty of misconduct. The board acknowledged that the lapse in certification was “troublesome and serious,” but stated that it did not rise to the level of incompetency required for removal. The board also admonished respondent for attempting to color its determination by introducing appellant’s prior disciplinary record without a contextual background.
Respondent filed a writ of certiorari pursuant to Minn. Stat. § 484.01, subd. 2 (1998), to appeal the hearing board’s decision. The district court found that appellant’s personal problems were irrelevant to the issue of the reasonableness of respondent’s action. Rather, they were only relevant if the hearing board decided to modify “a reasonable employer decision.” As a result, the district court ordered that respondent’s decision to discharge appellant be reinstated. This appeal follows.
An employee who has been honorably discharged from the U.S. Armed Forces qualifies for the protections of the VPA. Minn. Stat. § 197.447 (1998). Before a public employer can remove a veteran from employment, the employer must notify the veteran in writing of its intent, any charges against the veteran, and the veteran’s right to a veterans-preference hearing within 60 days of receiving the notice. Minn. Stat. § 197.46 (1998). In conducting a veterans-preference hearing, the hearing board must first determine whether the employer acted reasonably. In re Schrader, 394 N.W.2d 796, 802 (Minn. 1986). Second, the board has the power to modify the disciplinary sanction. Id. But if it decides to do so, it must justify this decision by explaining what extenuating circumstances warrant modification. State ex rel. Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995). In establishing what constitutes an extenuating circumstance,
[t]he board is free to adopt standards that are appropriate for ensuring both the rights of city employees as well as public confidence * * * . In particular, the board may explicitly define “extenuating circumstances” to give guidance in disciplinary cases. Undoubtedly, that definition will change with time. Thus, the board 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.
Id. at 163-64 (footnote omitted).
A public employer may only remove a veteran “for incompetency or misconduct.” Minn. Stat. § 197.46. This standard has been construed to be the same as “the standard of just cause required for the discharge of a civil service employee.” Caldwell v. City of Minneapolis, 486 N.W.2d 151, 153 (Minn. App. 1992) (citation omitted), review denied (Minn. Aug. 4, 1992).
[T]he 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.
Leininger v. City of Bloomington, 299 N.W.2d 723, 726 (Minn. 1980) (quotations omitted). The burden is on the employer to show by a preponderance of the evidence that its conduct is reasonable. Schrader, 394 N.W.2d at 802; Lewis v. Minneapolis Bd. of Educ., 408 N.W.2d 905, 907 (Minn. App. 1987), review denied (Minn. Sept. 23, 1987). The hearing board may consider such factors “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.” Schrader, 394 N.W.2d at 802.
On appeal, a reviewing court determines whether the hearing board abused its discretion. Myers v. City of Oakdale, 461 N.W.2d 242, 244 (Minn. App. 1990). This court must make
an independent examination of an administrative agency’s record and decision and arrive at our own conclusions as to the propriety of that determination without according any special deference to the same review conducted by the trial court.
Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977)). The hearing board in this case determined that respondent’s action was not reasonable. As a result, the board reinstated appellant, rather than modifying the sanction.
Substantial evidence exists to support the hearing board’s determination that respondent’s action was unreasonable. The district court may be correct in describing appellant’s attitude as seemingly “cavalier,” but the hearing board was in a better position to consider the credibility of the witnesses. See Bouza v. Gallagher, 416 N.W.2d 126, 128 (Minn. App. 1987) (“A reviewing court will defer to an administrative agency when the agency is performing its function as a factfinder.”), review denied (Minn. Feb. 12, 1988). The hearing board also indicated in its decision that it was concerned that respondent was punishing appellant for other reasons based on its admission of an exhibit that listed disciplinary actions taken against appellant over 15 years that was introduced without any background or explanation. Further, the hearing board also could take into account factors such as appellant’s 20-year career and his successful passage of the EMT examination on numerous occasions. These findings are all that is necessary to sustain the board’s determination. Although respondent correctly notes that the board’s order does not describe any extenuating circumstances, such a step is not necessary when the board’s decision turns solely on the question of the reasonableness of the employer’s action and does not involve a modification of the employer’s sanction.
Respondent also argues that the hearing board abused its discretion by applying an evidentiary standard so high that no employer could possibly satisfy it. Instead of applying a preponderance-of-the-evidence standard, respondent argues that the board required proof of “ongoing incompetency or misconduct.” We do not believe this is the standard that the board applied. While the brief memorandum accompanying the hearing board’s order makes a single reference to the employer’s “burden of presenting a case of ongoing incompetency or misconduct,” the board’s statement of the issue and conclusion correctly state the burden of proof.
One instance of misconduct may be enough to warrant disciplinary action. Cf. Caldwell, 486 N.W.2d at 154 (affirming termination where firefighter’s arrest for drug possession violated department labor agreement). Because appellant’s disciplinary record was without evidentiary significance, the board clearly confined its decision to the specific question of whether appellant’s 28-day lapse in certification demonstrated sufficient misconduct or incompetence to warrant termination.
We also disagree with respondent’s argument that affirming the hearing board’s decision will make future terminations based on lack of certification impossible. The hearing board only held that it was unreasonable in this case to terminate a firefighter of appellant’s age and experience for a 28-day lapse of certification. It did not find that disciplining appellant or terminating a firefighter who lacked appellant’s age and experience would be unreasonable.
Respondent also contends that appellant was incompetent because he failed to attend several refresher classes and examinations. This contention is not logical. Appellant may have avoided termination had he taken an earlier examination, as he would have had more opportunities to retake any portion of the examination that he failed. But if appellant had passed the entire examination when he sat for it in January 1999, it is unlikely that failing to attend earlier refresher courses or examination sessions could constitute cause to terminate appellant.
We find that the hearing board did not abuse its discretion by finding that respondent acted unreasonably when it terminated appellant. The board was, therefore, within its authority to set the discharge aside.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.