This opinion will be unpublished and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

C0-96-420

Richard Behnke,

Respondent,

Julius Ruud,

Respondent,

David P. Sikkink,

Respondent,

vs.

Independent School District No. 233,

Relator,

Commissioner of Veterans Affairs,

Respondent.

Filed October 1, 1996

Affirmed

Amundson, Judge

Department of Veterans Affairs

Richard Behnke, 208 Farmers Street, Preston, MN 55965 (respondent pro se)

Julius Ruud, 5935 Willow Ridge Drive, Rochester, MN 55902 (respondent pro se)

David P. Sikkink, R. R. 1, Box 182, Preston, MN 55965 (respondent pro se)

James E. Knutson, Knutson, Flynn, Deans, & Olsen, P.A., 1900 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for relator)

Hubert H. Humphrey, III, Attorney General, Donald E. Notvik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent Commissioner of Veterans Affairs)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and

Amundson, Judge.

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

AMUNDSON, Judge

Relator Independent School District No. 233 challenges the decision of the Commissioner of Veterans Affairs that respondents Richard Behnke and Julius Ruud are entitled to a hearing pursuant to the Veterans Preference Act. Relator argues that respondents are not entitled to a hearing because they were terminated pursuant to the Public Employees Labor Relations Act, which supersedes the Veterans Preference Act. We affirm.

FACTS

Respondents Richard Behnke and Julius Ruud[1] were employed by relator Independent School District No. 233 (the school district) as school bus drivers. Both were veterans as defined in Minn Stat. § 197.46.

In the spring of 1995, a dispute arose between the bus drivers and the school district over payment for snow days, during which the bus drivers did not work. The bus drivers contended that they should be paid, but the school district decided not to pay them for those snow days. After being notified of the school district's decision, the bus drivers held two meetings and voted not to drive the following day, April 28, 1995, unless the school district agreed to pay them for the snow days. The chairperson of the school board told the spokesperson for the bus drivers that if the drivers did not drive, they would be terminated. That evening, the school district bus foreperson called each driver and told them that if they did not drive the following day, they would be terminated. Behnke told the bus foreperson that he was sick and would be calling in sick the next day, which he did. Ruud also did not drive on April 28.

On May 3, 1995, the school district notified respondents of the termination of their employment by certified mail. Ruud received the correspondence on May 4, but Behnke did not pick up his notification. A second notification was sent to Behnke on June 9 and was received on June 10. The notification sent to respondents included their right to request a hearing under the Public Employees Labor Relations Act (PELRA). Neither requested a hearing.

On June 27, 1995, the school board passed a resolution sustaining the termination of employment of both respondents for violating the provisions of PELRA. A copy of the resolution and notification sustaining the termination was sent to each respondent.

The notification of termination did not include notice of respondents' right to a hearing under the Veterans Preference Act (VPA), and, as of the time of the hearing before the Administrative Law Judge (ALJ), neither respondent had requested such a hearing.

The AL recommended that respondents be granted a hearing under the Veterans Preference Act, and the Commissioner, adopting the ALJ's recommendation, ordered that respondents be reinstated with back pay pending the hearing. This appeal followed.

DECISION

I. Veterans Preference Act

The school district contends that the Commissioner erred in determining that respondents were entitled to a hearing under the VPA. The school district argues that because respondents were terminated pursuant to PELRA and because PELRA supersedes the VPA, respondents are only entitled to exercise those rights specifically granted under PELRA.

The decision of an administrative agency enjoys a presumption of correctness, and this court shows deference to an agency's expertise and special knowledge in its field. See Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). However, this court is not bound by the agency's decision on matters of statutory construction. See Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978).

The school district contends that this case is controlled by Garavalia v. City of Stillwater, 283 Minn. 335, 168 N.W.2d 336 (1969). In Garavalia, the Minnesota Supreme Court concluded that because PELRA provided that any public employee who engaged in an illegal strike terminated his/her employment automatically by his/her own acts, that employee would not be entitled to a hearing under the VPA, which controls a municipality's power to terminate a veteran's employment. Id. at 346-47, 168 N.W.2d at 344-45.

In 1969, when Garavalia was decided, PELRA provided:

Notwithstanding any other provision of law, any public employee who violates the provisions of sections 179.51 to 179.58 shall thereby abandon and terminate his appointment or employment and shall no longer hold such position, or be entitled to any of the rights or emoluments thereof, except if appointed or reappointed as hereinafter provided.

Minn. Stat. § 179.54 (1969) (emphasis added). Thus, the court determined that plaintiffs were not terminated by the municipality but by their own voluntary acts. Garavalia, 283 Minn. at 344, 168 N.W.2d at 343.

PELRA has since been amended and now provides:

Notwithstanding any other law, public employees who strike in violation of this section may have their appointment or employment terminated by the employer effective the date the violation first occurs.

Minn. Stat. § 179A.19, subd. 2 (1994) (emphasis added).

In interpreting this provision, the ALJ concluded that the statute requires the municipality to take some action to terminate an employee. The ALJ also concluded that this provision in PELRA is in direct conflict with the VPA, which the ALJ concluded was not superseded by PELRA. We agree.

The VPA provides:

No person holding a position by appointment or employment in the several counties, cities, towns, school districts and all other political subdivisions in the state, who is a veteran separated from the military service under honorable conditions, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.

Minn. Stat. § 197.46 (1994). The statute also provides that

No provision of any subsequent act relating to any such appointment, employment, promotion, or removal shall be construed as inconsistent herewith or with any provision of sections 197.455 and 197.46 unless and except only so far as expressly provided in such subsequent act that the provisions of these sections shall not be applicable or shall be superseded, modified, amended, or repealed.

Minn. Stat. § 197.48 (1994).

This court has stated that "the VPA is a far-reaching statute that supersedes all subsequent acts unless expressly excepted." Anderson v. City of Minneapolis, 493 N.W.2d 156, 159 (Minn. App. 1992), rev'd on other grounds, 503 N.W.2d 780 (Minn. 1993). In Anderson, this court determined that the VPA superseded the Disability Act, which expressly excluded the VPA only in certain provisions. 493 N.W.2d at 158.

There is nothing in PELRA that specifically excepts the VPA. Because PELRA has been amended to require a municipality to take some action to terminate an employee who participates in an illegal strike, and because PELRA does not expressly except the VPA, Garavalia is not controlling, and PELRA does not supersede the VPA. Thus, respondents are entitled to a veterans preference hearing.

The school district contends that even if respondents were entitled to a hearing under the VPA, they had to request that hearing within the 10-day time period provided under PELRA.

The VPA provides that

[a]ny veteran who has been notified of the intent to discharge the veteran from an appointed position or employment pursuant to this section shall be notified in writing of such intent to discharge and of the veteran's right to request a hearing within 60 days of receipt of the notice of intent to discharge.

Minn. Stat. § 197.46 (1994). The Minnesota Supreme Court has interpreted this provision to place the burden to provide notice on the public employer, whether or not the employee is aware of his or her rights under the VPA. Young v. City of Duluth, 386 N.W.2d 732, 738 (Minn. 1986). An employer who has knowledge of an employee's status as a veteran must comply with the VPA's procedures. Pawelk v. Camden Township, 415 N.W.2d 47, 51 (Minn. App. 1987). If the employee does not give notice to the veteran, the limitation for the commencement of a hearing or writ of mandamus does not begin to run. Young, 386 N.W.2d at 738.

The record indicates that at least one member of the school board had knowledge of respondents' status as veterans. Nonetheless, the notification sent to respondents failed to include any notice of their right to a hearing under the VPA. Because the VPA supersedes PELRA, respondents had 60 days to request a veterans preference hearing. However, because the school district failed to give respondents notice of their right to a hearing under the VPA, that 60-day period has not begun to run, and respondents have not waived their right to a hearing.

II. Reinstatement with Back Pay

The school district contends that the Commissioner exceeded his authority in ordering that respondents be reinstated with back pay.

The Minnesota Supreme Court has held that, where a veteran has been removed from his job without a veterans preference hearing, the veteran is entitled to "all continuing and accrued salary" from the day the veteran was removed, until "the hearing board has made its ruling." Myers v. City of Oakdale, 409 N.W.2d 848, 853 (Minn. 1987).

This court recently concluded that a veteran whose position was eliminated in good faith was not entitled to back pay as a remedy for the city's failure to notify him of his right to a hearing. Taylor v. City of New London, 536 N.W.2d 901, 905 (Minn. App. 1995), review denied (Minn. Oct. 27, 1995). In Taylor, this court relied on the Minnesota Supreme Court's decision in Young. The supreme court in Myers, however, distinguished Young. 409 N.W.2d at 851. The court noted that Young was a case involving the abolishing of a position, while Myers was about the removal of a veteran for incompetency or misconduct. Id. at 851-53. Because this case is about the removal of a veteran for misconduct, the supreme court's decision in Myers is controlling. Respondents are entitled to be compensated from the day of their removal until the hearing board makes its decision.

Affirmed.

[ ]1"Respondents" refers only to Behnke and Ruud because the school district is not challenging the Commissioner's decision that David Sikkink is not entitled to a hearing under the Veterans Preference Act.