This opinion will be unpublished and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

CX-96-2224

Minnesota State Fair

(Minnesota State Agricultural Society),

Respondent,

vs.

James D. Anderson,

Relator.

Filed April 15, 1997

Affirming in part, reversing and remanding in part

Lansing, Judge

Bureau of Mediation Services

File No. 96PIR449

Hubert H. Humphrey III, Attorney General, Gary R. Cunningham, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for Respondent)

Robert W. Murnane, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

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

LANSING, Judge

A former public employee disputes the procedures used in his discharge and challenges the authority of the Bureau of Mediation Services ("BMS") to use summary proceedings in claims brought under the Public Employment Labor Relations Act, Minn. Stat. § 179A (1996). We hold that the BMS has an implied authority to use summary proceedings when disputed fact issues will not affect resolution of the case. But because disputed facts will determine whether this employee was entitled to the protection of investigation and discharge procedures, we reverse and remand for an evidentiary hearing.

FACTS

James Anderson was hired as a police officer by the State Fair in 1991. On June 12, 1995, he was summarily discharged by Arthur Blakey, chief of the State Fair police department. Blakey allegedly told Anderson there had been complaints made against Anderson, but Blakey refused to provide any additional information about the complaints.

Anderson brought a petition for independent review challenging his summary termination pursuant to Minn. Stat. § 179A.25 (1996). His complaint alleged that State Fair policies providing for the investigation of complaints made against police officers were part of the terms and conditions of his employment and that the department violated its own policies when it discharged him. His petition was dismissed by an officer of the BMS in a summary proceeding, i.e., without a full evidentiary hearing. The officer ruled that Anderson was an at-will employee and that the State Fair had reserved the right to dispense with any disciplinary or investigative procedures described in its Policy Manual. Anderson now appeals.

D E C I S I O N

Anderson's appeal raises two questions for this court: (1) whether the BMS has the authority to use summary procedures to dispose of claims brought under the Public Employment Labor Relations Act, Minn. Stat. § 179A (1996), and (2) whether the summary procedures could be used in response to Anderson's claim.

I

Minn. Stat. § 179A.25 provides for "the right of independent review, by a disinterested person or agency, of any grievance arising out of the interpretation of or adherence to terms and conditions of [public] employment." If the employing agency does not provide procedures for independent review, the employee may present the grievance to the Commissioner under procedures established by the Commissioner. Minn. Stat. § 179A.25. For purposes of this appeal, the State Fair does not dispute that it is a public employer subject to the provisions of section 179A.25.

Pursuant to this authority, the BMS established rules to govern disputes brought under Minn. Stat. § 179A.25. See Bureau Policy VII, Independent Review. The rules provide for a hearing that "must be conducted" by inquiring "fully into the facts in dispute" and provide for the opportunity "to call, examine, and cross-examine witnesses."

Bureau Policy VII does not appear to contemplate summary disposition of claims, except those dismissed for lack of jurisdiction. The State Fair asserts that the authority to employ a summary process is implied in the mandate to provide "independent review" to litigants in public employment disputes. We agree.

There is nothing in the plain meaning of "independent review" that demands an evidentiary hearing. Although neither the statute nor the BMS's Independent Review Policy specifically authorizes summary proceedings, they likewise do not prohibit them. The plain meaning of the statute is that disputes must be "reviewed" by an "independent" third party. Because the plain meaning of the legislature's directive is fairly broad, use of a summary process does not enlarge the authority implied by the use of the term "independent review." See People's Natural Gas Co. v. Minnesota Pub. Utils. Comm'n., 369 N.W.2d 530, 534 (Minn. 1985) (cautioning that agencies may not enlarge statutory authority under guise of interpretation, but need not give the statute a cramped reading).

Both federal and state agencies commonly employ summary procedures in carrying out their quasi-judicial duties. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. United States EPA, 35 F.3d 600, 606 (1st Cir. 1994) (citing federal agencies employing summary disposition procedures, including the NRC, FTC, FDA, FCC, EPA, NLRB, and OSHA.); Kenneth C. Davis, Administrative Law Treatise § 8.2, 381-89 (3rd ed. 1994) (arguing that federal APA's requirement for "hearing" is satisfied by written submissions rather than evidentiary proceeding); Minn. R. 1400.5500 (K) (1995) (allowing administrative law judge to "recommend a summary disposition of the case or any part thereof where there is no genuine issue as to any material fact * * * .").

State agencies have in some instances specifically provided for summary procedures in their rules. See, e.g., Minn. R. 7829.1200 (1995) (providing for summary procedures for Public Utilities Commission proceedings). Anderson has not raised the issue that the absence of the rule deprived him of constitutional notice, but the BMS may wish to consider including summary procedure provisions in its Policy for Independent Review to assure that litigants are aware of the procedure.

Because Minn. Stat. § 179A.25 does not explicitly prohibit the use of summary proceedings, and independent review can be accomplished using summary procedures, we conclude that the authority of the BMS to employ summary dispositional proceedings inheres in the statute.

II

An appeal from an administrative summary disposition is reviewed under the same standard as an appeal from summary judgment. In re Leisure Hills Health Care Ctr., 518 N.W.2d 71, 75-76 (Minn. App. 1994), review denied (Minn. Sept. 16, 1994). Thus, the State Fair must demonstrate that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. See Minn. R. Civ. P. 56.03. In reviewing summary judgment, this court views the evidence in a light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Applying these standards we agree with Anderson's contention that the State Fair has failed to demonstrate that Anderson was not entitled to the protection of investigation and discharge procedures outlined in the State Fair police department's Policy Manual and the State Fair Information Handbook.

The provisions in a personnel handbook may become enforceable as part of an employment contract if they meet the requirements for formation of a unilateral contract. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). To create a unilateral contract, an offer must be definite in form, communicated to the offeree, and accepted. Id. at 626. Whether an offer was intended is determined by the outward manifestations of the parties rather than their subjective intentions. Id.

When the language in a policy manual is the basis for a contract claim and that language is unambiguous, the determination of whether an employee has contractual rights to employment is a question of law. See Hunt v. IBM Mid America Employees Fed. Credit Union, 384 N.W.2d 853, 857 (Minn. 1986) (in reviewing summary judgment dismissing claim, determination of whether contract for indefinite "for cause" employment was formed is question of law). But when that language is ambiguous or contradictory, the determination may present a question of fact for the factfinder. See Lewis v. Equitable Life Assur. Soc., 389 N.W.2d 876, 883 (Minn. 1986) (noting that when terms of contract are unclear, determination of contract formation is for jury, and upholding jury verdict in favor of employee); Brookshaw v. South St. Paul Feed, Inc., 381 N.W.2d 33, 36 (Minn. App. 1986) (reversing summary judgment because conflicting language in handbook with "disclaimer" created question of fact), review denied (Minn. Apr. 11, 1986).

Anderson relies on provisions in the State Fair police department's Policy Manual. Article 11 of the Policy Manual provides for "Complaint Procedures and Internal Investigation:"

All complaints against an officer * * * alleging violation of the rules of conduct shall be recorded on a standard complaint form.

* * *

The chief or his designee * * * shall * * * notify the officer who is complained against.

* * *

Any officer who is the subject of an internal investigation shall be afforded all of the rights and protections provided by the law and by departmental rules and regulations.

The State Fair cites provisions of the State Fair Information Handbook and what appears to be an August 1995 amendment to the Policy Manual. The August 1995 document contains a disclaimer with respect to any contractual rights that might be implied in the "Personnel Manual:"

Employment in the department may be terminated at any time, for any reason. There are no guarantees of employment of any kind. This Personnel Manual creates no contract or property rights and the department retains the discretion to take whatever personnel actions they believe are appropriate.

The State Fair Information Handbook contains language providing that employees may be terminated and disciplinary measures dispensed with "solely at the discretion of the executive vice president." The Handbook states that "[e]mployees are not guaranteed employment for a specific period of time nor do they have any right to continued employment." But it further provides that "[n]otice of discharge will be given no less than two weeks prior to termination date."

We believe the contradictory nature of the language in these policies and the lack of clarifying evidence preclude a legal determination as to whether Anderson had contractual rights that became "terms and conditions" of his employment protected by Minn. Stat. § 179A.25. On the record before us, we cannot determine, for example, whether the August 1995 document was a later amendment to the Policy Manual containing the Article 11 complaint and investigation procedures. Nor is it clear from the record how and when these manuals were distributed. See Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 708 (Minn. 1992) (rejecting employer's disclaimer argument because disclaimer language was disseminated after contract for employment had already been formed). In addition, the State Fair has failed to provide any evidence that the executive vice president assented to Anderson's termination; nor has it explained why the two weeks' notice provisions in the Handbook are inapplicable to Anderson.

We do not doubt that the State Fair has the authority to terminate freely its at-will employees. But when an employer establishes procedures and conditions to be followed prior to termination, those procedures may become the basis for a binding contract. When a contract has been formed, grievance and disciplinary measures, while procedural, take on a substantive character. In such cases the procedures may provide the employee with an opportunity to correct deficiencies to the employer's satisfaction and thus avoid discharge. See Pine River, 333 N.W.2d at 631. The State Fair has failed to produce evidence showing that Anderson, as a matter of law, was not entitled to the procedural safeguards outlined in the State Fair's Policy Manual. As a result the summary disposition dismissing his claim was in error.

Because this record, interpreted in a light most favorable to Anderson, does not support the conclusion that the State Fair, as a matter of law, had no contractual obligations to Anderson, we reverse the summary disposition and remand for a full hearing.

Affirming in part, reversing and remanding in part.