This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat §
480A.08, subd. 3 (1998)

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-98-1278

Charles P. Kuczynski, Jr.,
Relator,

vs.

City of Dassel,
Respondent.

Filed February 2, 1999
Affirmed
Lansing, Judge

City of Dassel, City Council

Daniel B. Honsey, 131 South Main Street, Hutchinson, MN 55350 (for relator)

Julie A. Fleming-Wolfe, 1654 Grand Avenue, St. Paul, MN 55105 (for respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N
LANSING, Judge

On writ of certiorari, Charles Kuczynski Jr. challenges the decision of the Dassel City Council to terminate his employment as Dassel's Chief of Police. Kuczynski has not demonstrated any prejudicial irregularity in the proceedings or a violation of due process, and we affirm.

FACTS
Charles Kuczynski began working for the City of Dassel as a full-time police officer on June 2, 1997, with a six-month probation period. On December 5, 1997, Kuczynski was appointed Chief of Police. The city council found his appointment was probationary and that he was an at-will employee. Kuczynski disputes these findings. He also contends that a personnel practices manual the city council promulgated constitutes an employment contract.

The city council voted to terminate Kuczynski's employment as Chief of Police, effective immediately, at a meeting on May 18, 1998, at which Kuczynski was present. Kuczynski was given an opportunity, but chose not to speak in his defense at the meeting. The city council sent Kuczynski a letter confirming its decision the following day, and Kuczynski received two weeks' severance pay. The termination followed a review, by the city's police civil service commission, recommending Kuczynski's employment be terminated. The review was prompted by complaints about Kuczynski's performance. Letters that Kuczynski wrote in April 1998 state he was aware efforts were being made to terminate his employment. By writ of certiorari, Kuczynski challenges his termination.

D E C I S I O N
Our review on writ of certiorari is limited to an inspection of the record to determine the propriety of jurisdiction and procedures and, with respect to the merits, to determine whether the decision at issue was arbitrary, oppressive, unreasonable, fraudulent, or unsupported by evidence or applicable law. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992); Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). As a reviewing court, we will not retry the facts or make credibility determinations. Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn. 1990). The decision is to be upheld if the decision-making body "furnished any legal and substantial basis for the action taken." Senior, 547 N.W.2d at 416 (citing Beck v. Council of St. Paul, 235 Minn. 56, 58, 50 N.W.2d 81, 82 (1951)).

Kuczynski does not challenge the merits of the controversy or the jurisdiction of the city council. Kuczynski's challenge focuses on the regularity of the proceedings. A decision of a governmental body that is made upon unlawful procedure mandates reversal only if a party's substantive rights have been prejudiced. Deli v. University of Minnesota, 511 N.W.2d 46, 49 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994). Kuczynski bears the burden of demonstrating that any procedural error the city council committed was prejudicial to him. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (on appeal from district court, appellants bear the burden of demonstrating error was prejudicial) (citing Independent Sch. Dist. No. 35 v. A. Hedenberg & Co., 214 Minn. 82, 100, 7 N.W.2d 511, 521 (1943)), review denied (Minn. June 28, 1993). Kuczynski contends (1) the city council violated its own procedural policy; and (2) the city council failed to afford him due process when it terminated his employment.

I
The Dassel City Council's Personnel Practices manual requires notice of termination by the city council and by the city's employees:

The council is required to give one pay period notice to employee[s] of intent to terminate their employment.

Dassel maintains Kuczynski was a probationary employee and the terms of the manual do not apply to him. Three items in the record support this conclusion: (1) a note from an informal meeting on May 5, 1998, indicates that Kuczynski was frustrated because he had heard his probation had been extended for six months; (2) the minutes of the city council meeting of April 20, 1998, note that two council members were to meet with the police commission on April 30, 1998, "to evaluate and discuss the six month probation period of the Chief of Police"; and (3) the record of the April 30, 1998, meeting of the commission makes reference to Kuczynski's "completion of 6-month probation." This court will not redetermine the credibility of the evidence contained in the record on certiorari. The record adequately supports the city council's finding that Kuczynski was a probationary employee.

Even if Kuczynski were not a probationary employee, he has not demonstrated that the city council's failure to follow its own procedure prejudiced him. Although the city council did not give Kuczynski formal notice that it intended to terminate his employment, Kuczynski had almost one month's actual notice. On April 20, 1998, Kuczynski wrote letters to the city council and to the mayor stating he was aware that a city council member intended to bring a vote to remove him from his position. The vote to remove Kuczynski occurred approximately one month later, on May 18, 1998, during the council meeting, part of which he attended.

Kuczynski argues that he did not know the vote would be called at the May 18 meeting and thus lacked the opportunity to prepare an adequate defense. The personnel practices manual, however, does not specify that notice must convey the exact date upon which termination will be considered. Therefore, even if Dassel failed to follow its own policy, Kuczynski was not prejudiced because he had actual notice of the council's imminent intent to consider his termination. Cf. Bast v. Capitol Indem. Corp., 562 N.W.2d 24, 28 (Minn. App. 1997) ("[i]n the absence of statutory or contract language entitling [insured] to written notice, the actual notice he received was sufficient to cancel the policy"). Moreover, Kuczynski received two weeks' severance pay, the same amount he would have received had two weeks' formal notice been given.

II
A public employee's entitlement to due process depends upon whether the employee had a protected property interest in his continued employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491 (1985). Such a property interest is not created by the Constitution; it is created and its dimensions are defined by existing rules or understandings that stem from an independent source. Id. A "legitimate claim of entitlement" to a job, which requires due process before termination, may be evidenced by an employment contract. Bolton v. Department of Human Servs., 527 N.W.2d 149, 155 (Minn. App. 1995), rev'd on other grounds, 540 N.W.2d 523 (Minn. 1995). A personnel policy handbook may be enforceable as an employment contract. Kulkay v. Allied Cent. Stores, Inc., 398 N.W.2d 573, 576 (Minn. App. 1986) (citing Pine River State Bank v. Metille, 333 N.W.2d 622, 627 (Minn. 1983)), review denied (Minn. Feb. 13, 1987). At-will employees, on the other hand, have no property interest in continued employment. 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).

Kuczynski could only have been entitled to due process prior to termination if Dassel's personnel practices manual constituted an employment contract and Kuczynski was a non-probationary employee entitled to the benefits of such a contract. See Batra v. Board of Regents, 79 F.3d 717, 720 (8th Cir. 1996) (probationary status of employment obviates due process otherwise required to terminate contracted employee). The record supports the city council's determination that Kuczynski's employment was probationary at the time of his termination. Accordingly, Kuczynski was not entitled to due process at his termination hearing.

Kuczynski's status as a probationary employee is determinative of his right to due process, and it is therefore unnecessary to determine whether the city council's personnel practices manual constitutes an employment contract. We note, however, that the vague language in the personnel practices manual would likely fail to rise to the level of an employment contract. See Pine River, 333 N.W.2d at 626-27 (terms of the contract must be definite in form). The manual does not describe or give examples of conduct warranting termination sufficient to constitute a contractual limitation on at-will employment; it simply provides that the city is required to give one pay period's notice before termination. Cf. Campbell v. Leaseway Customized Transport, Inc., 484 N.W.2d 41, 44 (Minn. App. 1992) (ambiguous termination criteria do not form an employment contract) (discussing Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 857 (Minn. 1986)).

III

Dassel has requested reimbursement for costs on appeal under the Government Data Practices Act. The statute provides that recovery of costs and disbursements is discretionary:

[A]ny aggrieved person may * * * recover costs and disbursements, including reasonable attorney's fees, as determined by the court. If the court determines that an action brought under this subdivision is frivolous and without merit and a basis in fact, it may award reasonable costs and attorney fees to the responsible authority.

Minn. Stat. § 13.08, subd. 4 (1996). The statute does not require the court to award the city fees simply because it prevailed on its case. See Pathmanathan v. St. Cloud State Univ., 461 N.W.2d 726, 728 (Minn. App. 1990). We are disinclined to award costs if the relator's argument was plausible, though incorrect under the law. See id. at 729; Doe v. Minnesota State Bd. of Med. Exam'rs, 419 N.W.2d 619, 624 (Minn. App. 1988), rev'd on other grounds, 435 N.W.2d 45 (Minn. 1989). Kuczynski presented arguments that, although incorrect, were not wholly frivolous or without arguable basis in fact or law. Dassel's request for costs on appeal is therefore denied.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.