This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2428

Richard J. Utsch, et al.,

Relators,

vs.

Big Stone County,

Respondent.

Filed August 26, 1997

Affirmed

Randall, Judge

State of Minnesota Department of Veterans Affairs

File No. 62-3100-10511-2

Ronald R. Frauenshuh, Jr., 129 N.W. Second Street, Ortonville, MN 56278 (for appellant)

Ann R. Goering, 730 Second Avenue South, Suite 300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

RANDALL, Judge

Appellants argue that the hiring process for the position of blademan and general equipment operator was skewed by the county, diluting the points awarded them under the Veteran's Preference Act. We affirm.

FACTS

On January 3, 1995, the Board of Commissioners for Big Stone County authorized County Highway Engineer James Skonhovd to advertise for replacements for the position of Motor Grader Operator. This position is also known as "blademan." The collective bargaining agreement between the county and AFSCME, Local Union 3164, Council No. 65, required that a job vacancy be posted internally for five working days. After that time, if no union members applied for the position, the job vacancy could be advertised to the general public.

Here, the five-day period expired without any applications from members of the union and the position was advertised to the general public. Appellants Richard Utsch and James Teske, honorably discharged veterans of the United States Army, applied for the position, along with Mark Thompson. Thompson was employed by the county as a general equipment operator.

Skonhovd and Gary Haugen, the county highway maintenance supervisor, independently reviewed the applications and scored them on a point system totalling 60 points. The score sheet used by Skonhovd and Haugen contained nine objective categories, including one acknowledging status as a veteran of the U.S. military, and was based solely on the information contained in the individual's application. Both Utsch and Teske were given the 3 points for their veteran status. Three points out of a possible 60 are the mathematical equivalent of 5 points out of 100, the standard scale used to acknowledge veteran preference points. In addition, Teske was given an additional 2 points for his experience operating heavy equipment in the military.

Skonhovd and Haugen scored Utsch and Teske similarly. Utsch received 33/60 from Skonhovd and 30/60 from Haugen. Skonhovd gave Teske a score of 37/60, and Haugen gave him a score of 36/60. Skonhovd and Haugen differed with regard to Thompson. Skonhovd gave him 26/60, while Haugen gave him 40/60.

Once Skonhovd and Haugen scored each applicant, the scores were averaged and the top candidates were personally interviewed. Skonhovd and Haugen selected six finalists to interview, certified them as eligible, and agreed that all six of the finalists were qualified for the position. The finalists included Teske, Utsch, and Thompson. The top weighted final scores were: (1) Thompson - 63.4, (2) Teske - 61.6, and (3) Utsch - 55.3.

Following the scoring of the candidates, a dispute arose between Skonhovd and Haugen as to who should be recommended to the Board. Skonhovd believed Teske was more qualified because he had more experience as a blademan than Thompson. Haugen felt Thompson was more qualified because he had more experience doing highway repair work, which comprised more than half of the job duties related to being a blademan.

Prior to making his recommendation to the Board, Skonhovd contacted several of Teske's job references, who provided poor job evaluations of Teske. Skonhovd informed Haugen of the poor references, but stated that he was still going to recommend Teske for the position. Haugen disagreed and notified two of the commissioners of the situation. Later, Skonhovd asked a commissioner on the personnel committee his opinion regarding the hiring of Teske. The commissioner informed Skonhovd he would not support Teske's recommendation.

At the March 7, 1995, Board meeting, Skonhovd recommended that Russell Huizenga, also a top six finalist, be hired to fill the empty blademan position. Also at the meeting, the County Attorney informed the Board that a personnel matter involving Skonhovd had come to his attention. The Board tabled the recommendation on the blademan position and stated that it would go into executive session later that day to discuss the personnel matter involving Skonhovd.

On March 9, 1995, the Board unanimously voted to suspend Skonhovd with pay, pending resolution of the matter. The Board also unanimously voted to reject all applicants for the blademan position and to recommence the hiring process. This decision was made because the Board was concerned with Skonhovd's abilities as County Engineer and because of the dispute concerning the capabilities and qualifications of the blademan candidates.

Upon recommencing the hiring process, the opening for blademan was posted internally for five days as required by the collective bargaining agreement with the union. Thompson, a current union employee with the county, reapplied for the position within the five day internal posting period. The job posting as advertised stated that the position of motor grader operator required the applicant to have experience in operating heavy equipment and to have a Class A Commercial Operator's License prior to acceptance of the position. Thompson satisfied both requirements and was hired. This created an opening for a general equipment operator.

Utsch and Teske, along with numerous other individuals, applied for the general equipment operator position. The requirements for this position were significantly different from those for blademan. Unlike the blademan scoring, the scoring for the general equipment operator was based on a 100 point scale with veterans awarded five veteran's preference points. Thus, nonveterans could not receive a score of more than 95 points. Haugen scored the applicants.

Merle Earley, the Stevens County Highway Engineer hired by the county as its acting highway engineer, reviewed the job applications and scoring done by Haugen. He certified the top three applicants for the position. The top three were: (1) Charles Spalinger - 74; (2) Larry Millerbernd - 70; and (3) Jamie Andrews - 69. Utsch and Teske both received scores of 68/100. According to Earley, unlike Utsch and Teske, two of the three finalists were currently doing the identical type of work for which they were being considered.

On February 12, 1995, Utsch and Teske filed a petition with the Commissioner of Veterans Affairs, claiming their veteran's preference rights had been denied. The matter came on for hearing, and the administrative law judge (ALJ) concluded that: (1) appellants properly received veteran's preference points when they applied for both the position of motor grader operator and the subsequent general equipment operator position, (2) the county acted in good faith when it terminated the hiring process for the position of motor grader operator at the time the County Highway Engineer had been suspended, (3) the county acted in good faith when it recommenced the hiring process, and (4) the county did not violate appellants' veteran's preference rights when it failed to interview appellants for the position of general equipment operator.

Appellants filed exceptions to the ALJ's report. By decision dated November 7, 1996, the Commissioner of Veterans Affairs adopted the ALJ's report and denied appellants' petition. This appeal follows.

D E C I S I O N

On appeal, the commissioner's factual findings must be upheld if they are supported by substantial evidence on the record as a whole. Grehl v. Minneapolis Pub. Schs. 484 N.W.2d 815, 817 (Minn. App. 1992).

Appellants contend there was a plot, plan, and conspiracy to skew the application results for the blademan position in an effort effectively to deny them their three veteran's preference points. As evidence of a conspiracy and political spoils system working against them, appellants rely on the fact that Haugen was the Highway Maintenance Supervisor and knew Thompson from his work with the county as a general equipment operator. They also claim that the ALJ and commissioner were required to make factual findings whether Thompson had the necessary qualifications to perform the blademan job and that it was reversible error not to have done so. Finally, appellants claim that the evidence is "absolutely clear and unequivocal" that Thompson did not possess the qualifications required to operate the motor grader..

Appellants cite no legal authority for the proposition that the ALJ or commissioner were required to make factual findings that Thompson was qualified for the position. Even so, the record establishes that Thompson did possess the necessary qualifications for the blademan position. The posted job description for the blademan position called for "experience in operating heavy equipment" and required that the applicant "have a Class C Commercial Operator's License prior to acceptance of the position." Thompson satisfied both these requirements. At the time he applied, Thompson had been employed for 14 months as a general equipment operator for the county, operating heavy equipment and doing highway repair work. In addition, the blademan posting stated that the individual, along with operating the blade, was responsible for a "multitude of highway maintenance, repair and construction tasks." Unlike appellants, Thompson was employed by the county doing this exact work. Although Thompson may not have had specific experience in operating a blade, he satisfied the listed job requirements.

The real issue presented is whether appellants were denied their veteran's preference points. The ALJ and commissioner both concluded that they were not. The Minnesota Veterans Preference Act does not create an absolute preference for veterans, rather the veteran's preference credit simply increases the chance that a veteran will receive an interview. McAfee v. Department of Revenue, 514 N.W.2d 301, 305 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). Although appellants were honorably discharged veterans, the county was not required to hire them. "[T]he [hiring] authority may hire any certified applicant." Id. Here, once appellants were given their veteran's preference points, they were "afforded all of the preference entitled to [them] by law." Grehl, 484 N.W.2d at 817. The record shows that appellants were awarded their veteran's preference points and received interviews based on their application scores. With the veteran preference points in place, the county was free to hire any of the six certified finalists as it saw fit.

Appellants' allegation that there was a conspiracy and political spoils system in place to deprive them of the veteran's preference is unsupported by the record. Appellants do not contend or make any argument that the county failed to follow its hiring or personnel procedures during the hiring process. See Ochocki v. Dakota Cty. Sheriff's Dep't, 464 N.W.2d 496, 498 (Minn. 1991) (holding that it was proper to void hiring process that violated county's personnel administrative rules and was seriously detrimental to all applicants). We note that many of the Board members were honorably discharged veterans of the armed forces, fully aware of the rights of veterans. Implicit in the commissioner's conclusion that the application forms submitted were scored objectively is the finding that the points were impartially awarded and not skewed in any manner.

Next, appellants claim that as a matter of law, they were entitled to an interview for the vacant general equipment operator position. Appellants argue the evidence is "very clear" that Earley and Haugen arbitrarily selected 69 as the cut-off point to determine which applicants should be given an interview and that Earley and Haugen skewed the award of points against them.

Appellants fail to present any evidence or make any showing beyond their assertion that the cut-off point of 69 points was arbitrarily selected or that the award of points was somehow skewed during the hiring process for general equipment operator. Earley, a neutral individual with no ties to the applicants or the county, simply selected 69 points as the cut-off point. Nothing "required" him to select a cut-off point lower than 69 points.

Appellants seem to argue that a veteran is entitled to an interview for a position even if, after the award of the five veteran's preference points, the veteran does not achieve enough points to make the cut-off point for the granting of an interview. Appellants failed to present any authority for their position. As noted above, the Minnesota Veterans Preference Act does not create an absolute preference for veterans, it merely increases the chance that a veteran will receive an interview. McAfee, 514 N.W.2d at 305. The Act does not require the hiring authority to grant a veteran an interview if the veteran, after receiving the five veteran's preference points, does not score high enough to meet the interview cut-off. The hiring authority has the discretion to set a threshold level before an individual will be granted an interview. Here, the threshold level was 69 points. Appellants failed to attain that level.

Finally, appellants contend there was a scheme, plot, plan, and conspiracy effectively to deny giving them their five veteran's preference points with regard to the general equipment operator position. Appellants claim that, although they were given their preference points, other applicants were purposely given more points in an effort to water-down the effect of their veteran's preference points. Appellants merely argue that the successful applicant "really had no more experience" than they did in operating heavy equipment.

Appellants fail to cite to any factual support in the record to support their claim. Our review shows no support in the record for the claim that other applicants were undeservedly given higher point values.

Appellants have failed to show that the ALJ's findings, as adopted by the commissioner, are not supported by substantial evidence in the record as a whole. We conclude that the commissioner did not err in denying appellants' petition.

Affirmed.