This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1662

Kathy Daniels Heideman,

Relator,

vs.

Metropolitan Airports Commission,

Respondent.

Filed April 15, 1997

Affirmed

Harten, Judge

Concurring specially, Parker, Judge

Metropolitan Airports Commission

Robert Latz, Ronald S. Latz, Latz & Latz, P.L.L.P., 2500 One Financial Plaza, 120 South Sixth St., Minneapolis, MN 55402 (for Relator)

Donald W. Selzer, Jr., Sandra C. Garges, Oppenheimer Wolff & Donnelly, 3400 Plaza VII Building, 45 South Seventh St., Minneapolis, MN 55402 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Harten, Judge.

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

HARTEN, Judge

By writ of certiorari, relator seeks review of respondent's approval of her employment termination. Relator argues that she was denied her constitutional right to due process and that respondent's decision was arbitrary and without evidentiary support. We affirm.

FACTS

Prior to her involuntary termination by respondent Metropolitan Airports Commission (MAC), relator Kathy Heideman supervised airport taxi drivers; this included explaining the requirements for obtaining and maintaining valid airport taxi licenses. Heideman's termination resulted from allegations that she prematurely resubmitted a rejected license application and that she personally completed parts of the resubmitted application. A MAC ordinance provides that once a license application is rejected for supplying false information, a new application cannot be submitted for six months. In the course of four conversations between Heideman and management, Heideman's supervisor determined that Heideman (1) resubmitted a rejected application in violation of a MAC ordinance, (2) misled management by indicating on three occasions that a member of MAC's police division had approved the resubmission, and (3) completed portions of the resubmitted application, also in violation of a MAC ordinance.

After Heideman was involuntarily terminated, she filed a grievance. Tim Anderson, MAC's director of airports, denied the grievance. Heideman appealed this decision to Jeffrey Hamiel, MAC's executive director, who also denied the grievance. Heideman then appealed to MAC's management and operations committee, which, after hearing arguments by both parties, denied the grievance. Heideman finally appealed to the full commission, which heard arguments and denied the grievance. Heideman obtained a writ of certiorari to appeal the decision. See Heideman v. Metropolitan Airports Comm'n, 555 N.W.2d 322, 324 (Minn. App. 1996) (court of appeals has exclusive jurisdiction over writs of certiorari).

D E C I S I O N

1. Heideman argues that MAC's review process violated her constitutional right to due process. She claims entitlement to a post-termination evidentiary hearing before a neutral fact-finder (such as an ALJ), who would then make a recommendation to MAC. "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). Heideman claims deprivation of both a liberty and a property interest.

To establish a liberty interest, the employee must show that the reasons for discharge stigmatized her and that her employer made those reasons public. Payne v. Ballard, 761 F.2d 491, 493 (8th Cir. 1985). The allegations that Heideman was untruthful during the investigation are the type of allegations that are considered stigmatizing. See Johnson v. Independent Sch. Dist. No. 281, 494 N.W.2d 270, 275 (Minn. 1992) (citing Roth, 408 U.S. at 573, 92 S. Ct. at 2707) (statements suggesting dishonesty or immorality considered stigmatizing).

Heideman argues that MAC made public the allegations of dishonesty during the open hearings before the management and operations committee and the full commission. Heideman, however, requested those hearings; up to that point in time, the grievance record was private. Reasons for termination that are disclosed at the request of the employee cannot form the basis for a liberty interest. Cato v. Collins, 539 F.2d 656, 660 (8th Cir. 1976) (footnote omitted).

Moreover, a "name-clearing hearing" is required only if the employee challenges the substantial accuracy of the allegations in question. Codd v. Velger, 429 U.S. 624, 628-29, 97 S. Ct. 882, 884 (1977). At oral argument before this court, Heideman's counsel repeated Heideman's claim that she never admitted any wrongdoing in connection with the resubmitted license application. But this claim plainly differs from an assertion that she did not (1) resubmit the application, (2) complete portions of the application, and (3) change her story regarding conversations with the MAC police officer. We conclude that Heideman does not have a liberty interest.

Heideman argues that she had a Fourteenth Amendment property interest in continued employment, claiming that MAC could discharge her only for cause. Heideman's claim is singularly based on the disciplinary procedure outlined in the employee handbook, which contains the heading "Disciplinary Action for Just Cause." By statute, MAC employees are removable at-will. Minn. Stat. § 473.606, subd. 5 (1996). In addition, MAC's employee handbook contains the following disclaimers:

The policies described in this manual should be regarded as guidelines for current practices at the MAC. This manual is not intended to be and does not constitute a contract of employment, unilateral or otherwise.

An employee's employment relationship with the MAC is an at-work relationship. Employees remain free to terminate their employment at any time for any or no reason. Conversely, the MAC remains free to terminate employees for any reason not prohibited by law.

(Emphasis added). Heideman claims that an "at-work" relationship is not the same as an "at-will" employment relationship, although she is unable to define "at-work" relationship.[1] Without any guidance, that language becomes meaningless, and we define the employment relationship by the remaining language read as a whole. Even if the "just cause" language could be considered an offer to make a contract, that offer was effectively revoked by the inconsistent disclaimer. See Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 708 (Minn. 1992) (offer to make contract may be revoked by words inconsistent with the offer any time before offer accepted). We conclude that Heideman was an at-will employee and thus had no property interest in continued employment. See Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 460 n.1 (Minn. App. 1989) (citing Skeets v. Johnson, 816 F.2d 1213, 1215 (8th Cir. 1987)), review denied (Minn. Feb. 28, 1990).

Moreover, even were Heideman entitled to due process, she was afforded all the process that was due.

The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)). This flexible framework accommodates different procedures for different situations. Riggins v. Board of Regents of Univ. of Neb., 790 F.2d 707, 712 (8th Cir. 1986).

Generally, procedural due process protections include

reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record.

Humenansky v. Minnesota Bd. of Med. Exam'rs, 525 N.W.2d 559, 565 (Minn. App. 1994) (citing Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970)), review denied (Minn. Feb. 14, 1995). The proceedings here involved four levels of review, including two hearings before individuals not involved in the original decision to terminate. We conclude that Heideman received all the protections outlined in Humenansky.2

2. Heideman argues that the full commission decision denying her grievance was arbitrary and without evidentiary support. On certiorari review of an agency decision, our inquiry is limited to determining whether the agency had jurisdiction, whether the proceedings were fair and regular, and whether the agency's decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).

Heideman focuses on extraneous incidents not relied upon by MAC in its decision to terminate; she provides no basis for us to conclude that the management investigation and interviews concerning the resubmitted application uncovered insufficient information to support its decision. We conclude that MAC's decision to deny Heideman's grievance was not arbitrary or without evidentiary support.

Affirmed.

PARKER, Judge (concurring specially)

I concur in the result reached, but feel compelled to write specially because appellant's accusation of unfairness in the structure of the grievance procedure has, I believe, at least a modicum of truth to it. The first two levels of grievance were heard by her accusing supervisors; the reviewing committee and MAC board held no evidentiary hearing and could afford little time for consideration of the matter. Individual members of the board of commissioners indicated some discomfort with the procedure, but had little to review and affirmed.

Public employers have long set the standards of fairness in Minnesota for procedures involving employee grievances, particularly those arising from termination of employment. In recent years, many school boards and agencies whose boards are composed of citizens serving part-time have begun referring such matters to an independent administrative law judge for hearing immediately prior to submission to the board. This professionalization of the fact-finding function has observedly resulted in greater confidence in the fairness of the procedure and, consequently, in the decision of the board. I urge the Metropolitan Airports Commission, with so many contentious issues facing it, to adopt the use of administrative law judges in terminations of employment not covered by a union contract so that public confidence in the essential fairness of their actions may be improved.

[ ]1In the absence of any other explanation, we surmise that "at-work" relationship is a composition error.

2Heideman argues that the MAC review process deprived her of the right to confront her accusers. The opportunity to confront or cross-examine witnesses at a post-termination hearing is not a requirement of due process. See Riggins, 790 F.2d at 711-12 (university employee did not have right to cross-examine).