This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2048

 

Eric J. Anderson,

Relator,

 

vs.

 

St. Louis County, et al.,

Respondents.

 

Filed June 14, 2005

Affirmed

Dietzen, Judge

 

St. Louis County

 

Daniel E. Warner, Warner Law Office, P.A., Blackberry Office Park, 5774 Blackshire Path, Inver Grove Heights, MN 55076 (for relator)

 

Alan L. Mitchell, St. Louis County Attorney, Dale O. Harris, Amy H. Kuronen, Assistant County Attorneys, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondents)

 

            Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

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

DIETZEN, Judge

            Relator, a former corrections officer for St. Louis County, brings a certiorari appeal of a decision of the county attorney denying his request that the county defend and indemnify him against a lawsuit brought by a former inmate.  After allegations surfaced that relator mistreated three former inmates, the county sheriff conducted investigations that resulted in relator’s suspension and later termination from employment.  Relator separately challenged the suspension and termination, but the county grievance board upheld both of the sheriff’s decisions.  In this certiorari appeal, we are asked to review the validity of the county attorney’s decision not to defend or indemnify relator based on the record of his misconduct.  Because we conclude that the decision is supported by substantial evidence, we affirm.

FACTS

            Respondent St. Louis County hired relator Eric Anderson as a corrections officer in 1997.  During relator’s employment, respondent received three grievances from inmates who alleged that he mistreated them.  The county grievance board conducted a hearing regarding the first two reports of misconduct and upheld relator’s suspension from work for 20 days and transfer to a different county jail.  After the third report of misconduct and another hearing, the grievance board upheld the termination of relator’s employment in January 2004.

The first incident of misconduct occurred on January 11, 2002, with inmate Michael James.  James slept through the jail’s dinner hour and later awakened and requested food.  When relator told James he had missed dinner, James became argumentative.  James began ripping the mattress in his cell, and relator told him to stop.  Relator admits that he then opened the cell’s food pass and sprayed a chemical at James.  James then used his mattress to break the sprinkler head in his cell.  Relator called some other officers for back-up, and together they took James out of the secured cell and carried him to a restraint cell where they handcuffed him to a concrete bunk.  While restrained, James asked several times to use the bathroom and to have his handcuffs loosened.  James claims that relator refused to let him use the bathroom or loosen all but one cuff, and at one time relator entered the cell, put his knee is James’s back, slapped James in the head several times, and called him a “tough guy.”

            At midnight, Officer Paul Nordvall relieved relator on duty and relator told Nordvall about the evening’s events.  Nordvall kept James restrained for several more hours.  James urinated in his clothing during the night and was not allowed to change until approximately noon.

            The next incident of relator’s misconduct occurred on March 6, 2002.   Gregg Meredith was arrested for disorderly conduct and brought to the jail where relator was on duty.  After Meredith was verbally abusive to the arresting officers, relator restrained Meredith face down on a concrete bunk.  When Meredith repeatedly asked to use the bathroom, relator denied his requests.  Meredith remained in restraints all night and urinated in his clothing.  He was not released from restraints or allowed to wash his clothes until the next morning.

            The final incident resulting in a grievance against relator occurred on March 7, 2002.  Police brought Jody Pierce to jail after her arrest for driving while intoxicated.  After Pierce was placed in her cell, she banged on her cell door and requested toilet paper.  Relator and another officer took her to another cell, placed her in restraints, and cuffed her to the concrete bunk.  Pierce claims that relator then threw her down on the mattress and placed his knee against her neck.  Relator told her she “got what [she] deserved” and that she was “a little bitch.”  He then punched her ten to twenty times.  Throughout the night, Pierce claims that relator entered her cell about every half hour to punch her in the head several more times.  Relator later admitted that he had entered her cell five times alone in violation of jail policy.

            St. Louis County Jail Administration first received grievance letters from Pierce and James describing these encounters with relator.  The sheriff ordered an internal investigation, and relator was interviewed.  Following the investigation, the sheriff concluded that relator had violated county policies on using restraints; depriving inmates of food, and the use of a toilet and shower for an extended period; failing to conduct a medical appraisal after spraying a chemical at an inmate; and entering a cell alone.  The sheriff suspended relator for 20 days, transferred him to another county jail, and warned him that “[a]ny [similar] work related behavior . . . shall result in termination.”  After a hearing where relator was represented by counsel, the county grievance board found good cause and upheld the sheriff’s disciplinary measures, stating:

Based on the evidence and testimony presented, the Board is compelled to conclude that [relator] did abuse and assault inmates in his custody.  Further, he used restraints and the denial of basic needs such as food and toileting in a punitive manner, and further violated critical policy of the [jail] when he repeatedly entered inmate occupied cells without back-up. . . .  Additionally, the Board was shocked that the findings and nature of the charges against [relator], which constituted flagrant abuse and assault of restrained inmates, did not result in his termination from employment.

 

Following a similar hearing regarding the James incident, the grievance board also issued an order affirming the suspension of relator’s colleague, Nordvall, for ten days and his transfer to another jail, finding that “his demonstrated propensity to respond to pressure and influence, possibly from his peers . . . sometimes not in the best interest of vulnerable persons in his custody.”

A few months later, the county sheriff received a grievance letter from Meredith describing his encounter with relator.  The sheriff initiated another investigation which resulted in relator’s termination from employment.  Relator filed a grievance regarding his dismissal which was followed by a hearing before the grievance board.  Upholding the termination of his employment, the board found that “the similarity of testimony in these hearings among the three complain[ing] witnesses, regarding their treatment and the extended use of restraints by [relator], is highly significant,” and that relator had engaged in a “pattern of egregious and dangerous job behaviors that should not be tolerated.”  The board found that relator again violated the county’s policies by his failure to provide documentation of the continued need for restraints on Meredith, failure to activate the videotape of Meredith’s entry into the jail, and punitive deprivation of access to the bathroom.

            Thereafter, James filed a complaint in federal district court regarding his treatment in jail against respondent St. Louis County, relator, and Nordvall, and relator submitted his request that respondent defend and indemnify him in the lawsuit.  Respondent has a “Liability Indemnification Plan” which is based on Minn. Stat. § 466.07, subd. 1 (2002).  The plan requires respondent to defend and indemnify its employees from suit, unless the employee was not acting within the scope of employment, or engaged in malfeasance in office, willful neglect of duty, or bad faith.  The county attorney is responsible for determining whether respondent must defend or indemnify the employee.

The county attorney reviewed the record documenting the incidents of relator’s misconduct including: (1)  the complaint filed in James’s lawsuit; (2) grievance letters written by the three former inmates; (3) transcripts of interviews with relator and the complaining inmates; (4) reports documenting respondent’s discipline against relator; (5) transcripts of the two grievance board hearings; (6) orders by the grievance board affirming relator’s suspension and termination from employment; (7) an order by the grievance board affirming Nordvall’s suspension; (8) reports documenting the county sheriff’s investigations into the incidents of misconduct; and (9) a letter from the county sheriff documenting the policies relator violated.  Based on his assessment of the record, the county attorney determined that respondent would not defend or indemnify relator because relator’s conduct toward James was outside the scope of relator’s employment and constituted malfeasance in office, willful neglect of duty, and bad faith.[1]  The county attorney notified relator of his final decision in a letter dated August 31, 2004.  Relator filed this certiorari appeal.

D E C I S I O N

I.

Subject-Matter Jurisdiction

 

            Respondent raises the issue of this court’s jurisdiction over relator’s appeal.  Whether this court has subject-matter jurisdiction of a dispute is a question of law, which we review de novo.  State v. Tokheim, 611 N.W.2d 375, 378 (Minn. App. 2000).  Parties invoke review of quasi-judicial decisions through a writ of certiorari to this court.  Id.  A quasi-judicial decision determines the rights of the parties and is binding on them.  Id.  The Minnesota Supreme Court has adopted a three-part test to determine whether a decision is quasi-judicial: “(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.”  Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999).

            Here, the county attorney’s decision not to defend or indemnify relator was a quasi-judicial action.  The county attorney: (1) investigated relator’s claim that he acted within the scope of his employment and weighed the evidence; (2) applied those facts to the standard under Minn. Stat. § 446.07, subd. 1 (2002) that a municipality must defend and indemnify any of its employees if they were acting within the scope of their employment and were not guilty of malfeasance in office, willful neglect of duty, or bad faith; and (3) determined that relator’s actions “were outside the scope of employment, were acts constituting malfeasance in office, willful neglect of duty, and bad faith.”  The August 31, 2004, letter from the county attorney denying relator defense or indemnity was a binding decision regarding the disputed claim.  Thus, we conclude that the county attorney was acting in a quasi-judicial capacity, and this court has jurisdiction to review relator’s challenges.

II.

Duty to Defend and Indemnify

 

            Relator contends that respondent’s decision not to defend or indemnify him was arbitrary, unreasonable, based on errors of law, and not supported by substantial evidence.  This court’s review of a quasi-judicial decision is limited to whether the decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”  Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 181 (Minn. App. 1997) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992)).  To determine whether evidence supports a quasi-judicial decision, we apply the “substantial evidence” test.  “A decision is supported by substantial evidence when it is supported by (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence;  (3) more than some evidence;  (4) more than any evidence;  or (5) the evidence considered in its entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn. 2002).

            The county attorney determined that respondent would not defend or indemnify relator because he was acting outside his scope of employment and had engaged in malfeasance in office, willful neglect of duty, and bad faith.  A county’s duty to defend and indemnify its employees, on which the county’s “Liability Indemnification Plan” is based, is described in Minn. Stat. § 466.07, subd. 1:

Subject to the limitations in section 446.04, a municipality or an instrumentality of a municipality shall defend and indemnify any of its officers and employees, whether elective or appointive, for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee:

            (1) was acting in the performance of the duties of the position; and

            (2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.

 

In his August 31, 2004, final decision, the county attorney stated that:

I have concluded that [relator’s] actions with regard to Michael S. James were outside the scope of employment, were acts constituting malfeasance in office, willful neglect of duty, and bad faith.  Accordingly, the St. Louis County Attorney’s Office will neither represent [relator] in the James litigation, nor will St. Louis County pay for his defense or legal representation by another attorney.  Further, St. Louis County will not indemnify [relator] for any amount of damages of any kind or expenses of any kind, for which he may be found liable.

 

County policy defines “malfeasance in office” as “the performance of an act in official capacity which is illegal, wrongful or willful or wanton neglect of duty.”  Neglect of duty has been defined as “a careless or intentional failure to exercise due diligence in the performance of an official duty.”  In re Olson, 211 Minn. 114, 117, 300 N.W. 398, 400 (1941).

            We conclude that the county attorney’s decision was not arbitrary or unreasonable, and substantial evidence supports it.  To satisfy the “malfeasance in office” standard, several of relator’s actions could be deemed wrongful, and a willful and wanton neglect of duty: depriving inmates of the ability to use a bathroom for extended periods; depriving inmates of food and a shower for extended periods; failing to conduct a medical appraisal after spraying a chemical at an inmate; entering a cell alone; and violating respondent’s policy on the use of restraints.  These actions also constitute a neglect of diligence in performance of official duties and bad faith.  Thus, the county attorney’s decision not to defend or indemnify relator in James’s lawsuit was not arbitrary, unreasonable, based on errors of law, or unsupported by substantial evidence.

III.

Procedural Due Process

            Relator next argues that the county attorney’s decision not to defend or indemnify him deprived him of a property interest to which he is entitled under procedural due process of law.  Both the United States and Minnesota Constitutions guard against the taking of an individual’s property interest without due process of law.  U.S. Const. amends. V, XIV, § 1; Minn. Const. art. 1, § 7.  Whether relator’s due-process rights were violated is a constitutional question, which this court reviews de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).

To evaluate a procedural due process challenge, the United States Supreme Court has enumerated a two-step test: (1) the claimant must establish that the state deprived him of a “life, liberty, or property” interest, and (2) the reviewing court must then decide what process was due and whether the claimant received that process.  Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989).  Under the first step, a suitable property interest must be a “legitimate claim of entitlement” not a mere “expectation.”  Id.; see also Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 2700 (1972) (professor with de facto tenure had legitimate claim of entitlement to continued employment); Bd. of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 2708-10 (1972) (professor without tenure did not have legitimate claim of entitlement to continued employment).  Property interests arise from independent sources such as state law.  Perkins v. City of St. Paul, 982 F. Supp. 652, 658 (D. Minn. 1997).

Relator argues that Minn. Stat. § 466.07 gives him a property interest to defense and indemnity as a county employee.  Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  “When interpreting a statute, [this court] first look[s] to see whether the statute’s language, on its face, is clear or ambiguous.  A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.”  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (quotation and citation omitted).  The object of statutory interpretation is to ascertain and effectuate legislative intent.  Minn. Stat. § 645.16 (2002).

We disagree with relator’s claim that section 466.07 creates a property interest to defense and indemnity.  The statute clearly states that the obligation to defend and indemnify only exists if the employee has not engaged in the following disqualifying conduct: (1) actions outside the scope of employment, or (2) actions constituting “malfeasance in office, willful neglect of duty, or bad faith.”  Minn. Stat. § 466.07, subd. 1(1)-(2); see also Queen v. Minneapolis Public Schs., 481 N.W.2d 66, 68 (Minn. App. 1992) (section 466.07, subdivision 1 relieves municipalities of duty to defend and indemnify given malfeasance in office).  The Queen court noted that the legislature’s intent in drafting the exceptions was “to ensure that public funds were not used to defend employees . . . guilty of malfeasance in office.”  481 N.W.2d at 68.  After a review of the record of relator’s misconduct, the county attorney determined that relator’s actions met the criteria for both of the statute’s exceptions: (1) “actions . . . outside the scope of employment,” and (2) “acts constituting malfeasance in office, willful neglect of duty, and bad faith.”  Because relator’s actions fall within the statutory exceptions, relator has failed to meet his burden of proving a “legitimate claim of entitlement” to defense and indemnity. [2]

Alternatively, relator argues that if he was given a hearing regarding his right to defense and indemnity, he would be able to demonstrate that he did not engage in disqualifying conduct.  But the text of section 466.07, subdivision 1, does not mention any hearing requirement.  Had the legislature intended to entitle claimants to a hearing regarding defense and indemnity, it would have included such a requirement in the statute.  Absent such a requirement, we will not infer one.

            Thus, because relator does not have a property interest, and does not have a right to a hearing under section 466.07, we need not consider what process would be due if a property interest existed.  Relator’s argument that an additional hearing was required to satisfy procedural due process is without merit.

IV.

Equal Protection

            Relator next argues that he has been deprived of equal protection because respondent granted defense and indemnity to Nordvall under substantially similar allegations but failed to give relator that same accommodation.  Both the United States and the Minnesota Constitutions guarantee that no person shall be denied equal protection of the laws.  U.S. Const. amend. XIV, § 1; Minn. Const. art. 1, § 2.  The essence of both clauses is “the mandate that all similarly situated individuals shall be treated alike but only invidious discrimination is deemed constitutionally offensive.”  Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted).  State action is a prerequisite to an equal protection claim.  Unborn Child v. Evans, 310 Minn. 197, 202-03, 245 N.W.2d 600, 604 (1976).  When a statute does not concern a suspect class or a fundamental right, it only needs a rational relationship to a legitimate governmental purpose to survive an equal protection challenge.  Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 288 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  A party alleging a violation of equal protection faces the substantial burden of proving administration of a statute was motivated by intentional or purposeful discrimination.  State v. Andrews, 282 Minn. 386, 392, 165 N.W.2d 528, 532 (1969).

            The record before us, including the grievance board’s conclusions, supports the conclusions that relator initiated all the incidents of misconduct, while Nordvall was more of a participant who responded to relator’s influence; consequently, we conclude that respondent had a rational basis to distinguish between defense and indemnity of Nordvall and relator.  Further, relator has failed to cite any evidence that respondent’s decision to only defend and indemnify Nordvall was purposeful and intentional discrimination against him.  Thus, relator’s equal protection claim fails.

V.

Attorney Fees

            Relator requests that this court grant him attorney fees.  But relator has not filed a motion for attorney fees pursuant to Minn. R. Civ. App. P. 139.06, subd. 1, which is required for review of an attorney-fee request.  Absent a motion, relator cannot receive attorney fees on this appeal.

            Even if relator subsequently files the appropriate motion, however, the decision to award attorney fees on appeal is within our discretion.  Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).  Here, respondent is merely answering relator’s allegations and its arguments are not frivolous.  See Imperial Premium Fin., Inc. v. GK Cab Co., Inc., 603 N.W.2d 853, 860 (Minn. App. 2000) (denying appellant attorney fees because respondent merely responded to appeal and respondent’s arguments were not frivolous).  Thus, relator is not entitled to attorney fees.

Because respondent’s decision not to defend or indemnify relator is supported by substantial evidence and does not violate any constitutional protections, we affirm.

            Affirmed.