This opinion will be unpublished and

may not be cited except as provided by

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







Nathan D. Schluter,





City of Minneapolis,



Minnesota Department of Veterans Affairs,




Filed November 5, 2002

Reversed and remanded
Klaphake, Judge


Administrative Hearings Office

File No. 11-3100-13264-2


Steven K. Marden, 2100 Foshay Tower, Minneapolis, MN  55402 (for relator)


Jay M. Heffern, City Attorney, James A. Cunningham, Jr., Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN  55402 (for respondent City of Minneapolis)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent Department of Veterans Affairs)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Nathan Schluter challenges the decision of the Deputy Commissioner of the Department of Veterans Affairs dismissing his petition for reinstatement with his employer, respondent City of Minneapolis.  Schluter argues that the city failed to comply with the provisions of the Veterans Preference Act (VPA), Minn. Stat. § 197.46 (2000), because he did not receive notice of the city’s intent to discharge him and of his rights under the VPA.

            Because we conclude that the VPA requires that veterans receive notice of rights and because Schluter clearly did not receive that notice, we reverse.  Because the deputy commissioner did not determine whether Schluter was terminated or whether he involuntarily resigned without good cause attributable to the city, we remand for further proceedings.


            On review, agency factual findings will be upheld if supported by substantial evidence.  Harr v. City of Edina, 541 N.W.2d 603, 605 (Minn. App. 1996).  This court, in reviewing questions of law, including statutory interpretation, is not bound by an agency decision.  Brula v. St. Louis County, 587 N.W.2d 859, 861 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999). 

            Under the VPA, a veteran must be notified in writing of an employer’s intent to discharge and of the veteran’s right to request a hearing on the discharge.  Minn. Stat. § 197.46 (2000).  This statute does not specify the means by which service of this notice must be made, but specifically states that the veteran has a “right to request a hearing within 60 days of receipt of the notice.”  Id.

            On the issue of when the 60-day notice requirement begins to run, this court has stated:

            The purpose of the notice requirement is to make certain that the veteran is made aware of his right to a hearing.


* * * *


            This notice requirement cannot be dismissed quite so simply.  Although it is quite clear in this case the purpose of alerting the petitioner to his rights was fulfilled, we are concerned about the case which is not as clear.  Should a veteran be required to meet the difficult burden of rebutting evidence tending to establish knowledge of his rights?  We think not.  The notice requirement must be strictly enforced.


Young v. City of Duluth, 372 N.W.2d 57, 59 (Minn. App. 1985), aff’d as modified, 386 N.W.2d 732.  After quoting this language for our court, the supreme court added:  “Under the Act, if no notice is given to the veteran, no time limitation for the commencement of a hearing or writ of mandamus begins to run.”  Id., 386 N.W.2d at 738. [1]

            Here, at the time Schluter was terminated by the city, he was serving a one-year jail sentence.  He had informed his supervisor by telephone that he was in jail, but that he expected to receive work release privileges.  He also submitted a request for a leave of absence through a co-worker, but his supervisor refused to accept it because such requests were to be personally submitted.  While these actions clearly put the city on notice that Schluter was in jail, the city nevertheless sent the VPA notice to Schluter’s address of record, which was where his estranged wife was living.  There is no dispute that Schluter failed to receive notice and that he was unaware of the city’s attempt to inform him of his VPA rights.

            The purpose of the VPA is to extend job preference and protection to veterans as a reward for service.  See Hall v. City of Champlin, 463 N.W.2d 502, 505 (Minn. 1990).  The requirement that the veteran receive notice of these rights is a logical extension of that purpose.  We therefore conclude that where, as here, the veteran clearly did not receive notice of his rights, the 60-day appeal period of Minn. Stat. § 197.46 is not triggered.  Schluter therefore has a right to a hearing on his discharge.[2]

            The question nevertheless remains whether Schluter was terminated by the city or whether he involuntarily resigned by virtue of the civil service rule that an unexcused absence longer than three days will be treated as a resignation.  Although this issue was raised, it apparently was not argued to or considered by the ALJ.  Because this issue was not decided by the ALJ, we remand for further findings on whether Schluter was entitled to notice under the VPA before termination or whether he voluntarily or involuntarily resigned, excusing the city from the requirement of notice.

            Reversed and remanded.


[1] Although the 60-day period will not run until receipt of the notice, the statute of limitations bars petitions brought more than six years after discharge.  Johnson v. County of Anoka, 536 N.W.2d 336, 339 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995).


[2]  In reaching this conclusion, we specifically do not reach the question of whether constructive notice by mailing to a last-known address is sufficient to provide due notice of rights under the VPA.  We merely note that here, Schluter did not receive notice even though the city either knew or should have known of his whereabouts.