This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Washington County Housing and Redevelopment Authority,
Filed September 24, 1996
Washington County Housing and Redevelopment Authority
Paul D. Peterson, Paul D. Peterson, Ltd., 6043 Hudson Road, Suite 365, Woodbury, MN 55125 (for Appellant)
Robert Rancourt, Rancourt Law Offices, 12683 Lake Boulevard, Post Office Box 759, Lindstrom, MN 55045 (for Appellant)
Richard L. Evans, McGrann Shea Franzen Carnival Straughn & Lamb, Chartered, 2200 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402-2041 (for Respondent)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
By writ of certiorari, a discharged employee seeks review of a termination decision by the Executive Director of the Washington County Housing and Redevelopment Authority. We conclude that the pretermination proceedings were regular and fair, and that the decision was made under a correct theory of law, was not arbitrary, unreasonable or oppressive, and was supported by the evidence. We affirm.
The Washington County Housing and Redevelopment Authority (HRA) terminated James Lunzer from his job as a maintenance man with the HRA on February 22, 1996. The termination followed a February 16, 1996 hearing at which Lunzer testified before HRA Executive Director James Heltzer in response to charges that Lunzer had used HRA property for personal use, falsified work orders, and intimidated or sexually harassed several of his female coworkers. The HRA had notified Lunzer of the first two charges on November 7, 1995, and of the third category of charges on November 14, 1995.
Lunzer filed a petition for a writ of certiorari, seeking appellate review of the HRA's termination decision. He argues that the procedures followed by the HRA did not meet minimum due process standards. He also asserts that the termination decision was made under an erroneous theory of law, was arbitrary, and was unsupported by the evidence.
D E C I S I O N
Our certiorari review is limited to consideration of the following: (1) whether the administrative authority properly exercised its jurisdiction, (2)the administrative proceedings were regular and fair, (3)the decision was made under an erroneous theory of law, (4)the decision was arbitrary, oppressive, unreasonable or fraudulent, and (5)there was evidence to support the decision. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quoting State ex rel. Ging v. Board of Educ., 213 Minn. 550, 571, 7 N.W.2d 544, 556 (1942)). Lunzer asserts the four latter considerations as bases for his reinstatement.
Lunzer's fairness challenge is that the HRA did not meet minimum due process standards in the termination proceedings. In order to prove a due process violation, a claimant must first demonstrate a protected interest in property or liberty. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.2701, 2705-06 (1972). Lunzer claims that the HRA deprived him of both a property interest and a liberty interest. Explicit contractual provisions are not required to establish a property interest so long as state policies or implicit understandings have given an employee a reasonable expectation of continued employment. Perry v. Sindermann, 408 U.S. 593, 602, 92 S.2694, 2699-2700 (1972).
A personnel manual that provides an employee can only be dismissed for cause may create an expectation of continued employment. See, e.g., Cummings v. South Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993); Burgess v. Miller, 492 F.1284, 1288-89 (N.D. Fla. 1980); see also Deli v. University of Minnesota, 511 N.W.2d 46 (Minn. App. 1994) (holding by implication that manual provisions, incorporated into employee contract, created property interest), review denied (Minn. Mar. 23, 1994).
The HRA personnel manual in effect at the time of Lunzer's employment provided: "Regular full-time employees who have successfully completed the probationary period may not be dismissed except for cause or as a result of a reduction in staff." The HRA does not dispute that Lunzer was a regular full-time employee to whom this provision applied. The manual's provisions support Lunzer's argument that he had a property interest in his continued employment, and it is unnecessary to decide whether he had a liberty interest.
Although we find that Lunzer established a property interest, we disagree with his contention that the HRA followed inadequate procedures in depriving him of that interest. Due process requires "notice and an opportunity to respond." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.1487, 1495 (1985). Specific procedural requirements include: (1) notice of the reasons for termination in sufficient detail to enable the terminated employee to present relevant evidence; (2) notice of both the names of those who have made allegations against the employee and the specific nature and factual basis for the charges; (3) a reasonable time and opportunity for the employee to present testimony in his own defense; and (4) a hearing before an impartial board or tribunal. Brouillette v. Board of Directors of Merged Area IX, 519 F.2d 126, 128 (8th Cir. 1975), quoted in Deli, 511 N.W.2d at 50. A pretermination hearing "need not be elaborate." Loudermill, 470 U.S. at 545, 105 S.at 1495. A formal evidentiary hearing is not required. Id. Pretermination informal meetings with supervisors, at which the employee is given an opportunity to discuss alleged problems with his performance, may satisfy due process requirements. Pelerin v. Carlton County, 498 N.W.2d 33, 36 (Minn. App. 1993) (citing Riggins v. Board of Regents, 790 F.2d 707, 711 (8th Cir. 1986)), review denied (Minn. May1993).
Applying these criteria we conclude that the pretermination proceedings available to Lunzer satisfied minimum due process standards. Lunzer received at least three letters giving him notice of the charges against him: (1)letter of November1995, notified Lunzer of the nature of the charges of using HRA property for non-HRA purposes and falsifying work orders; (2)letter of November1995, informed Lunzer of charges arising from coworkers' complaints of intimidation and sexual harassment; and (3)letter of January1996, provided details on the dates and places of the allegations against Lunzer, along with the names of the seven women who claimed that Lunzer had harassed them at work. These letters gave Lunzer more than one month to prepare a defense before his hearing with HRA Executive Director James Heltzer on February 16, 1996. In addition the record lacks any basis from which to conclude that Heltzer was a biased decision-maker; in particular, Heltzer was not directly involved in any of the incidents that prompted Lunzer's termination. See Ginsberg v. Department of Jobs & Training, 481 N.W.2d 138, 141 (Minn. App. 1992) ("[A]n official who has been involved in the particular aspect of a case under review should not also participate in the decisionmaking process."), review denied (Minn. Apr. 9, 1992).
Lunzer next argues that the HRA Executive Director's decision was made under an erroneous theory of law. He bases this argument on the inclusion of the following statement in his termination letter: "HRA employees are employees-at-will and may be terminated at any time for any reason whatsoever." Although this statement is inconsistent with the personnel manual provision that regular full-time employees such as Lunzer could only be terminated for cause, the Executive Director ultimately based his decision on findings that Lunzer had violated HRA policies. Viewing the termination letter as a whole, we conclude that the Executive Director based his decision on the correct standard.
Lunzer also contends that his discharge was arbitrary, oppressive, and unreasonable, primarily because it was based in part on allegations of sexual harassment that the HRA did not bring to Lunzer's attention in his initial suspension notice or in an evaluation that he received approximately one week before that notice. The HRA maintains that it investigated the complaints of sexual harassment as soon as the agency became aware of them. We do not find that the HRA's actions were arbitrary or unreasonable. We also find nothing in the record to suggest that the Executive Director acted in an oppressive manner.
Lunzer also asserts a substantive due process argument. Because we reject Lunzer's claim of arbitrariness, we also conclude that his discharge did not violate any substantive due process rights. See Ross v. University of Minnesota, 439 N.W.2d 28, 34 (Minn. App. 1989) (discussing need to demonstrate arbitrary dismissal in order to establish violation of substantive due process), review denied (Minn. July 12, 1989).
Finally, Lunzer claims that his discharge was not supported by the evidence. HRA Executive Director James Heltzer found cause to dismiss Lunzer based on violations of the agency's sexual harassment policy. Heltzer also found that Lunzer's circumstances fit within the bases for immediate dismissal under the personnel manual rules against "[w]illful misconduct other than minor rule violations" and "[o]ffensive use of language or conduct toward the public or other employees."
The record contains summaries of the complaints of seven of Lunzer's female coworkers who reported to the HRA that Lunzer had made sexually suggestive comments to them. One of those workers also petitioned for a harassment restraining order against Lunzer; in a transcript of the harassment restraining order proceedings, the woman claimed that Lunzer had made sexual remarks to her, had gestured to her in a threatening manner, and had threatened to kill her husband. These documents provided sufficient support for the Executive Director's decision to terminate Lunzer.
In addition to seeking review of the HRA's termination decision, Lunzer argues that we should rule on the propriety of any future claims that he may bring in the district court under theories of breach of contract or tort. But Lunzer has not yet filed any of these claims in the district court. Because there is no live, justiciable controversy, and because of the limited scope of our review on certiorari, we do not address Lunzer's prospective claims. See In re Welfare of A.L.J., 300 Minn. 542, 544, 220 N.W.2d 303, 304 (1974) (stating that supreme court lacked authority under rules of appellate procedure to issue an advisory opinion); State ex rel. Nordin v. Probate Court, 200 Minn. 167, 169, 273 N.W. 636, 637 (1937) (observing that the function of a writ of certiorari is to allow a court to "review and correct decisions and determinations already made"); see also Zahavy v. University of Minnesota, 544 N.W.2d 32, 42 (Minn. App. 1996) (declining to consider petitioner's breach of contract argument on a certiorari review of a termination decision), review denied (Minn. May1996).