This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Eric J. Anderson,
Filed June 14, 2005
Daniel E. Warner, Warner Law Office, P.A., Blackberry Office Park, 5774 Blackshire Path, Inver Grove Heights, MN 55076 (for relator)
Alan L. Mitchell, St. Louis County Attorney, Dale O. Harris, Amy H. Kuronen, Assistant County Attorneys, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondents)
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Relator, a former corrections officer for
The first incident of misconduct occurred on January 11, 2002, with inmate Michael James. James slept through the jail’s dinner hour and later awakened and requested food. When relator told James he had missed dinner, James became argumentative. James began ripping the mattress in his cell, and relator told him to stop. Relator admits that he then opened the cell’s food pass and sprayed a chemical at James. James then used his mattress to break the sprinkler head in his cell. Relator called some other officers for back-up, and together they took James out of the secured cell and carried him to a restraint cell where they handcuffed him to a concrete bunk. While restrained, James asked several times to use the bathroom and to have his handcuffs loosened. James claims that relator refused to let him use the bathroom or loosen all but one cuff, and at one time relator entered the cell, put his knee is James’s back, slapped James in the head several times, and called him a “tough guy.”
At midnight, Officer Paul Nordvall relieved relator on duty and relator told Nordvall about the evening’s events. Nordvall kept James restrained for several more hours. James urinated in his clothing during the night and was not allowed to change until approximately noon.
The next incident of relator’s misconduct occurred on March 6, 2002. Gregg Meredith was arrested for disorderly conduct and brought to the jail where relator was on duty. After Meredith was verbally abusive to the arresting officers, relator restrained Meredith face down on a concrete bunk. When Meredith repeatedly asked to use the bathroom, relator denied his requests. Meredith remained in restraints all night and urinated in his clothing. He was not released from restraints or allowed to wash his clothes until the next morning.
The final incident resulting in a grievance against relator occurred on March 7, 2002. Police brought Jody Pierce to jail after her arrest for driving while intoxicated. After Pierce was placed in her cell, she banged on her cell door and requested toilet paper. Relator and another officer took her to another cell, placed her in restraints, and cuffed her to the concrete bunk. Pierce claims that relator then threw her down on the mattress and placed his knee against her neck. Relator told her she “got what [she] deserved” and that she was “a little bitch.” He then punched her ten to twenty times. Throughout the night, Pierce claims that relator entered her cell about every half hour to punch her in the head several more times. Relator later admitted that he had entered her cell five times alone in violation of jail policy.
St. Louis County Jail Administration first received grievance letters from Pierce and James describing these encounters with relator. The sheriff ordered an internal investigation, and relator was interviewed. Following the investigation, the sheriff concluded that relator had violated county policies on using restraints; depriving inmates of food, and the use of a toilet and shower for an extended period; failing to conduct a medical appraisal after spraying a chemical at an inmate; and entering a cell alone. The sheriff suspended relator for 20 days, transferred him to another county jail, and warned him that “[a]ny [similar] work related behavior . . . shall result in termination.” After a hearing where relator was represented by counsel, the county grievance board found good cause and upheld the sheriff’s disciplinary measures, stating:
Based on the evidence and testimony presented, the Board is compelled to conclude that [relator] did abuse and assault inmates in his custody. Further, he used restraints and the denial of basic needs such as food and toileting in a punitive manner, and further violated critical policy of the [jail] when he repeatedly entered inmate occupied cells without back-up. . . . Additionally, the Board was shocked that the findings and nature of the charges against [relator], which constituted flagrant abuse and assault of restrained inmates, did not result in his termination from employment.
Following a similar hearing regarding the James incident, the grievance board also issued an order affirming the suspension of relator’s colleague, Nordvall, for ten days and his transfer to another jail, finding that “his demonstrated propensity to respond to pressure and influence, possibly from his peers . . . sometimes not in the best interest of vulnerable persons in his custody.”
A few months later, the county sheriff received a grievance letter from Meredith describing his encounter with relator. The sheriff initiated another investigation which resulted in relator’s termination from employment. Relator filed a grievance regarding his dismissal which was followed by a hearing before the grievance board. Upholding the termination of his employment, the board found that “the similarity of testimony in these hearings among the three complain[ing] witnesses, regarding their treatment and the extended use of restraints by [relator], is highly significant,” and that relator had engaged in a “pattern of egregious and dangerous job behaviors that should not be tolerated.” The board found that relator again violated the county’s policies by his failure to provide documentation of the continued need for restraints on Meredith, failure to activate the videotape of Meredith’s entry into the jail, and punitive deprivation of access to the bathroom.
Thereafter, James filed a complaint in federal district court regarding his treatment in jail against respondent St. Louis County, relator, and Nordvall, and relator submitted his request that respondent defend and indemnify him in the lawsuit. Respondent has a “Liability Indemnification Plan” which is based on Minn. Stat. § 466.07, subd. 1 (2002). The plan requires respondent to defend and indemnify its employees from suit, unless the employee was not acting within the scope of employment, or engaged in malfeasance in office, willful neglect of duty, or bad faith. The county attorney is responsible for determining whether respondent must defend or indemnify the employee.
The county attorney reviewed the record documenting the incidents of relator’s misconduct including: (1) the complaint filed in James’s lawsuit; (2) grievance letters written by the three former inmates; (3) transcripts of interviews with relator and the complaining inmates; (4) reports documenting respondent’s discipline against relator; (5) transcripts of the two grievance board hearings; (6) orders by the grievance board affirming relator’s suspension and termination from employment; (7) an order by the grievance board affirming Nordvall’s suspension; (8) reports documenting the county sheriff’s investigations into the incidents of misconduct; and (9) a letter from the county sheriff documenting the policies relator violated. Based on his assessment of the record, the county attorney determined that respondent would not defend or indemnify relator because relator’s conduct toward James was outside the scope of relator’s employment and constituted malfeasance in office, willful neglect of duty, and bad faith. The county attorney notified relator of his final decision in a letter dated August 31, 2004. Relator filed this certiorari appeal.
D E C I S I O N
Respondent raises the issue of this court’s jurisdiction
over relator’s appeal. Whether this
court has subject-matter jurisdiction of a dispute is a question of law, which we
review de novo. State v. Tokheim, 611 N.W.2d 375, 378 (
Here, the county attorney’s decision not to defend or indemnify relator was a quasi-judicial action. The county attorney: (1) investigated relator’s claim that he acted within the scope of his employment and weighed the evidence; (2) applied those facts to the standard under Minn. Stat. § 446.07, subd. 1 (2002) that a municipality must defend and indemnify any of its employees if they were acting within the scope of their employment and were not guilty of malfeasance in office, willful neglect of duty, or bad faith; and (3) determined that relator’s actions “were outside the scope of employment, were acts constituting malfeasance in office, willful neglect of duty, and bad faith.” The August 31, 2004, letter from the county attorney denying relator defense or indemnity was a binding decision regarding the disputed claim. Thus, we conclude that the county attorney was acting in a quasi-judicial capacity, and this court has jurisdiction to review relator’s challenges.
Duty to Defend and Indemnify
Relator contends that respondent’s decision not to defend
or indemnify him was arbitrary, unreasonable, based on errors of law, and not
supported by substantial evidence. This
court’s review of a quasi-judicial decision is limited to whether the decision
was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory
of law, or without any evidence to support it.”
Molnar v. County of Carver Bd. of
Comm’rs, 568 N.W.2d 177, 181 (Minn. App. 1997) (quoting Dietz v. Dodge County, 487 N.W.2d 237,
The county attorney determined that respondent would not defend or indemnify relator because he was acting outside his scope of employment and had engaged in malfeasance in office, willful neglect of duty, and bad faith. A county’s duty to defend and indemnify its employees, on which the county’s “Liability Indemnification Plan” is based, is described in Minn. Stat. § 466.07, subd. 1:
Subject to the limitations in section 446.04, a municipality or an instrumentality of a municipality shall defend and indemnify any of its officers and employees, whether elective or appointive, for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee:
(1) was acting in the performance of the duties of the position; and
(2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.
In his August 31, 2004, final decision, the county attorney stated that:
I have concluded that [relator’s] actions
with regard to Michael S. James were outside the scope of employment, were acts
constituting malfeasance in office, willful neglect of duty, and bad
faith. Accordingly, the St. Louis County
Attorney’s Office will neither represent [relator] in the James litigation, nor
will St. Louis
County policy defines
“malfeasance in office” as “the performance of an act in official capacity
which is illegal, wrongful or willful or wanton neglect of duty.” Neglect of duty has been defined as “a
careless or intentional failure to exercise due diligence in the performance of
an official duty.” In re Olson, 211
We conclude that the county attorney’s decision was not arbitrary or unreasonable, and substantial evidence supports it. To satisfy the “malfeasance in office” standard, several of relator’s actions could be deemed wrongful, and a willful and wanton neglect of duty: depriving inmates of the ability to use a bathroom for extended periods; depriving inmates of food and a shower for extended periods; failing to conduct a medical appraisal after spraying a chemical at an inmate; entering a cell alone; and violating respondent’s policy on the use of restraints. These actions also constitute a neglect of diligence in performance of official duties and bad faith. Thus, the county attorney’s decision not to defend or indemnify relator in James’s lawsuit was not arbitrary, unreasonable, based on errors of law, or unsupported by substantial evidence.
Procedural Due Process
Relator next argues that the county attorney’s decision
not to defend or indemnify him deprived him of a property interest to which he
is entitled under procedural due process of law. Both the
To evaluate a procedural due
process challenge, the United States Supreme Court has enumerated a two-step
test: (1) the claimant must establish that the state deprived him of a “life,
liberty, or property” interest, and (2) the reviewing court must then decide
what process was due and whether the claimant received that process. Martin
Relator argues that Minn.
Stat. § 466.07 gives him a property interest to defense and indemnity as a
county employee. Statutory
construction is a question of law, which this court reviews de novo.
We disagree with relator’s
claim that section 466.07 creates a property interest to defense and indemnity. The statute clearly states that the
obligation to defend and indemnify only exists if the employee has not engaged
in the following disqualifying conduct: (1) actions outside the scope of
employment, or (2) actions constituting “malfeasance in office, willful neglect
of duty, or bad faith.” Minn. Stat.
§ 466.07, subd. 1(1)-(2); see also
Alternatively, relator argues that if he was given a hearing regarding his right to defense and indemnity, he would be able to demonstrate that he did not engage in disqualifying conduct. But the text of section 466.07, subdivision 1, does not mention any hearing requirement. Had the legislature intended to entitle claimants to a hearing regarding defense and indemnity, it would have included such a requirement in the statute. Absent such a requirement, we will not infer one.
Thus, because relator does not have a property interest, and does not have a right to a hearing under section 466.07, we need not consider what process would be due if a property interest existed. Relator’s argument that an additional hearing was required to satisfy procedural due process is without merit.
Relator next argues that he has been deprived of equal
protection because respondent granted defense and indemnity to Nordvall under
substantially similar allegations but failed to give relator that same
accommodation. Both the
The record before us, including the grievance board’s conclusions, supports the conclusions that relator initiated all the incidents of misconduct, while Nordvall was more of a participant who responded to relator’s influence; consequently, we conclude that respondent had a rational basis to distinguish between defense and indemnity of Nordvall and relator. Further, relator has failed to cite any evidence that respondent’s decision to only defend and indemnify Nordvall was purposeful and intentional discrimination against him. Thus, relator’s equal protection claim fails.
Relator requests that this court grant him attorney fees. But relator has not filed a motion for attorney fees pursuant to Minn. R. Civ. App. P. 139.06, subd. 1, which is required for review of an attorney-fee request. Absent a motion, relator cannot receive attorney fees on this appeal.
Even if relator subsequently files the appropriate motion,
however, the decision to award attorney fees on appeal is within our discretion. Case v.
Case, 516 N.W.2d 570, 574 (
Because respondent’s decision not to defend or indemnify relator is supported by substantial evidence and does not violate any constitutional protections, we affirm.
The county attorney originally declined to defend or indemnify relator citing a
conflict of interest in a letter dated June 20, 2004. Relator filed his first certiorari appeal
following this letter on August 17, 2004.
In an order dated October 12, 2004, this court determined that the June
20 letter was not a final decision and dismissed the appeal pending a final
We also find no merit in relator’s argument that his property interest arises from his union’s collective bargaining agreement and the Minnesota Public Employment Labor Relations Act (PELRA). See Minn. Stat. § 179A.20, subd. 4(a) (2002) (“All contracts must include a grievance procedure providing for compulsory binding arbitration of grievances including all written disciplinary actions.”). The union’s contract with respondent states that “[a] grievance shall be defined as a dispute or disagreement as to the interpretation or application of any term or terms of this contract, including all disciplinary actions.” Construing these two provisions together only entitles relator to a grievance procedure for any dispute arising over application of the terms of the contract. But relator cites no portion of the contract that concerns defense and indemnity.