may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Calvin L. Larson,
City of Fergus Falls, Minnesota,
Filed October 14, 1997
City of Fergus Falls
Julie Fleming-Wolfe, 1400 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondent)
Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
Relator Calvin Larson obtained a writ of certiorari to challenge a decision by respondent, City of Fergus Falls (city), terminating his employment. Because the city failed to follow the terms of a labor agreement between the city and its supervisory employees, we reverse the city's decision as contrary to law.
The burden of making a record, like the burden of proof, falls on the [administrative body or municipality]. It is [that entity's] obligation to make a sufficient record to prove its actions were justified. The "record" for judicial review must be the "proceedings" and action of the [entity].
Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 676 (Minn. 1990) (citation omitted) (emphasis in original). Thus, our review is based solely on the record before the municipal employer, "whatever that record might be." Id. at 675. We will reverse only when the employer fails to show a substantial basis in the record for its decision or when the employer misapplies the applicable law. Id.
Larson argues that the city's decision is based on an error of law because the city failed to follow the terms of a labor agreement between the city and its supervisory employees. We agree. That agreement provides that an employee may be dismissed only for "just cause," directs the city administrator to state the cause for dismissal in writing, and requires a copy of the written notice to be sent to the employee.
The city never provided written notice of the basis for Larson's termination and refused Larson's attempts to grieve the matter, operating under the assumption that Larson was not a supervisory employee under the contract and did not belong to the union. From the record before us, however, it appears that Larson was covered by the contract. See Dietz, 487 N.W.2d at 240 (whether employee entered into an "at-will" or "just cause" employment contract is question of law appropriate for review on certiorari).
It is undisputed that Larson held the position of "Maintenance Supervisor" when he was suspended on December 16, 1996, and that he was to assume the position of "Maintenance Foreman" on his return from suspension. The city acknowledges that the position of "Maintenance Foreman" is covered by the agreement because it is included in
"Schedule A." The city insists, however, that because the agreement only covers positions included in Schedule A and Larson never assumed the position of Maintenance Foreman, he is not covered by the agreement.
However, the only specific reference in the agreement to "Schedule A" appears in article 14, which is entitled "Wages." Article 14.1 states that "[a]ll employees shall be paid in accordance with Schedule A attached hereto and made a part of this Agreement," and article 14.2 provides that "[w]hen a job not covered by Schedule A is established, the EMPLOYER may designate a job classification and rate structure for it." Although Schedule A does list a number of positions, to the right of each listed position is the base salary assigned to that position for three different time periods. Thus, Schedule A is devoted to listing base salaries for various positions, not to listing positions covered by the agreement.
Rather, under article 2.1, which is entitled "Recognition," the agreement applies to "[a]ll supervisory employees of the City." This broad language clearly covers Larson, who was a "Maintenance Supervisor" at the time of his suspension and whose job duties included supervising subordinate employees. Cf. AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222 (Minn. App. 1995) (reversing Bureau of Mediation Services's interpretation of statutory definition of "confidential employee" as too narrow and contrary to broad language of statute), review denied (Minn. May 16 & June 15, 1995).
Thus, the city's decision to terminate Larson is reversed as contrary to law because the city failed to follow the terms of the labor agreement and provide Larson with written notice stating the cause for his dismissal.
 The city asserts that it substantially complied with this requirement when it offered to provide Larson with its reasons after he was fired. However, as Larson notes, the labor agreement places an affirmative duty on the city to provide a written notice including the cause for dismissal. In addition, the city's offer was made pursuant to Minn. Stat. § 181.933, which prohibits an employee from using communications provided by an employer as the basis for a libel, slander, or defamation action. Minn. Stat. § 181.933, subds. 1, 2 (1996). Larson has a defamation action pending against the city in federal district court; his acceptance of the city's offer to provide its reasons thus might have resulted in his waiving his right to bring that defamation action.
 The city states, without reference to the record, that Larson was not a member of the union because he "never paid dues, nor participated in any manner in any Union activities because he never considered himself to be, and he was not considered by the Union, the State Department of Mediation Services, or the City, to be a member of the Union." These "facts" are not included in any documents submitted by either party.
 Although the city refers to "Amendment A," it appears that this is the same document as "Schedule A."