This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-918

 

Steven Tatro,

Relator,

 

vs.

 

Minneapolis City Council,

Respondent.

 

Filed February 5, 2002

Reversed

Randall, Judge

 

Ways and Means Committee

Minneapolis City Council

 

Dennis B. Johnson, Mylene A. Peterson, Chestnut & Cambronne, P.A., 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for relator)

 

Jan Heffern, Minneapolis City Attorney, Timothy S. Skarda, Assistant City Attorney, 300 Metropolitan Center, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

 

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

After relator made an arrest while working in uniform as an off-duty officer, the citizen sued, serving a summons and complaint on the city. The city, which had since terminated relator, determined that relator was not entitled to defense and indemnification, and on the merits determined that relator had failed to timely challenge that decision by requesting an administrative hearing within the allotted time. Relator contends that, under city policy, he was not obligated to request a hearing until after he was served with a summons and complaint. He applied for defense and indemnification, which the city denied. He brings a certiorari appeal challenging the decision by the city to deny his request for a hearing. We reverse.

FACTS

On the event of May 12, 1999, Minneapolis Police Officer Steven C. Tatro was working as an off-duty officer at the Dayton Radisson parking ramp when he was involved in an incident with Kevin Leroy Buford that eventually resulted in Tatro chasing Buford and subduing him with physical force. Buford received head injuries and was taken to Hennepin County Medical Center upon his arrest.

Buford filed a complaint with the Civilian Review Authority (CRA). After an investigation, the CRA concluded that Tatro's account of the event was inconsistent with a videotaped account of the incident and referred the matter to the Internal Affairs Unit (IAU) to determine whether Tatro had been truthful in the statements he gave to the CRA. The IAU adopted the conclusions of the CRA. Upon review of the IAU's findings, the Minneapolis Police Department upheld the finding that Tatro had used improper force and determined that Tatro had lied during the investigation. Tatro was then terminated.

On August 4, 2000, Buford filed an action in federal court against the City of Minneapolis, the owners of the Dayton Radisson ramp, Tatro, and other police officers, seeking damages for his injuries. The city was served with the complaint on August 11, 2000. On August 18, 2000, the city notified Tatro by letter that it had been served with this summons and complaint. In that letter, the city also notified Tatro that he was not entitled to defense and indemnification, but that he was entitled to an administrative hearing on that decision if he requested one by September 8, 2000. The letter notified Tatro that if he did not make a timely request, the city attorney and police department would present their recommendations directly to the Minneapolis City Council, which would make the final decision, and that Tatro would be notified of the council hearing and have an opportunity to speak to the council. In a separate letter dated September 8, 2000, the deadline for Tatro to request the administrative hearing was extended to September 15, 2000. Tatro did not request an administrative hearing by that date.

On or about January 12, 2001, Tatro was served with the summons and complaint in the Buford case.

On March 19, 2001, the Minneapolis City Council Ways and Means Committee heard the issue of indemnification. At that hearing, Tatro requested that his case be heard before an administrative law judge. The city council denied Tatro's request, concluding that he had waived his opportunity to be heard. It also declined to defend and indemnify Tatro for any potential damages in the Buford case because it determined that, under Minn. Stat. 466.07 (2000), Tatro was guilty of malfeasance in office, willful neglect of duty or bad faith and was, therefore, not entitled to defense and indemnity by the city.

This certiorari appeal followed.

D E C I S I O N

 

Tatro argues that the city council's determination that he was not eligible for indemnification was premature and violated city policy. Our review on writ of certiorari is limited to an inspection of the record to determine the propriety of the city council's jurisdiction and procedures and, with respect to the merits, to determine whether its decision was arbitrary, oppressive, unreasonable, fraudulent, or unsupported by evidence of applicable law. Dietz v. Dodge Cty., 487 N.W.2d 237, 239 (Minn. 1992). Normally, we reverse a decision based upon unlawful procedure only if a party's substantial rights have been prejudiced. Deli v. Univ. of Minn., 511 N.W.2d 46, 49 (Minn. App. 1994), review denied (Minn. March 23, 1994). The party challenging the decision bears the burden of showing that any error was prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).

Tatro does not directly challenge the city council's determination that he was guilty of malfeasance, but argues that the city did not follow its own policy in making its determination, because it denied his request for an administrative hearing. The city's Policy and Procedure for Defense and Indemnification of Employees (the policy) prohibits the city from indemnifying police officers where it has determined that they are guilty of "malfeasance in office, wilful neglect of duty, or bad faith." The policy's "procedure" section stated:

When an employee is served with a summons and complaint in a lawsuit, the employee must fill out a form requesting that the City defend the employee. This form shall be required in all lawsuits where employees are named as individual defendants. The employee shall submit the form to the department head for certification that the employee was acting within the scope of his/her employment[.] * * *

 

After the form and certification have been signed and presented to the City Attorney's Office, the City Attorney and department head will * * * make a preliminary determination whether the conduct involved malfeasance in office, wilful neglect of duty or bad faith[.] * * *

 

If the City Attorney and department head determine that defense and indemnification is not appropriate * * * , the City Attorney shall notify the employee of that preliminary decision. A contract administrative law judge will be retained by the city to conduct a hearing, if desired by the employee * * * .

 

(Emphasis added.) The plain language of the policy requires four things before the city can make a final determination: (1) the employee be served, (2) the employee requests indemnification, (3) the city attorney and department head make a preliminary determination that the employee is not eligible for defense and indemnification, and (4) the employee be given the opportunity for a hearing before an ALJ. Here, Tatro was not served until almost five months after the city made its determination.

The city argues that the policy does not require service to precede the city's determination. We disagree. The policy creates a procedure, and the second paragraph sets out an orderly procedure.

After the form and certification have been signed and presented * * * , the City Attorney and department head will * * * make a preliminary determination whether the conduct involved malfeasance * * * .

 

(Emphasis added.)

The city next argues that because Tatro had actual notice that the lawsuit had been filed when it sent the preliminary determination, he should have requested a hearing at that time. We disagree. In clear language of the city's own policy, the process for determining whether the city will defend and indemnify its employees commences with service on the employee, not actual notice.

Lastly, in arguing that this procedure is not relevant because the city's policy prohibits defense and indemnification under these circumstances, the city frames the issue as whether the city is required to indemnify Tatro. The indemnity question is not before this court. The city must give Tatro a hearing. We make no judgment at this time whether the city must defend and indemnify Tatro. That issue has yet to be heard on its merits.

Because he was denied the opportunity to argue his case before an ALJ as provided for in the policy, Tatro's substantial rights have been prejudiced. If Tatro requests defense and indemnification, he must have the opportunity to present his case at an administrative hearing.

Reversed.