This opinion will be unpublished and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-97-1911

C1-97-1912

Carol Olson,

Relator (CX-97-1911),

Margaret Haley,

Relator (C1-97-1912),

vs.

Lakeview Home,

Respondent.

Filed April 14, 1998

Affirmed

Amundson, Judge

Lakeview Home Board of Directors

Gordon L. Moore III, Von Holtum, Malters & Shepherd, 607 Tenth Street, P.O. Box 517, Worthington, MN 56187 (for relators)

Ruth Ann Webster, Gislason, Dosland, Hunter & Malecki, P.L.L.P., One South State Street, P.O. Box 458, New Ulm, MN 56073 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Foley, Judge.*

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

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

AMUNDSON, Judge

Relators challenge a municipally-owned nursing home board's decision to terminate their employment. They argue that (1) the termination deprived them of due process, (2) the board's decision was based on the erroneous legal theory that they were at-will employees, and (3) the board's and the administrator's statements were defamatory. We affirm.

FACTS

Relators Carol Olson and Margaret Haley were employed by respondent Lakeview Home (Lakeview). Lakeview is a nursing home owned by the city of Heron Lake and governed by a board of directors (board) created pursuant to Heron Lake City Ordinance. The board hired Christopher F. Bonitto as its adminstrator on July 15, 1996, charging him with the day-to-day management of Lakeview. On September 18, 1997, Bonitto met with the board. At the meeting, Olson's and Haley's job performance was discussed. Erin Doucette, who appears to be in management, introduced the discussion of a Vulnerable Adult investigation report on Lakeview. The minutes from the meeting recall:

While the discussion centered on the Vulnerable Adult issues, Margaret Haley's name did come up as being verbally abusive to residents. Investigations on other allegations within the facility regarding both Margaret Haley and Carol Olson also turned up many areas of gross insubordination and unprofessional conduct, and many other findings that were clearly in violation of the Lakeview Home Offensive Behavior Policy.

Based on Bonitto's recommendation, the board unanimously voted to discharge Olson and Haley. On September 22, 1997, Bonitto summoned Haley to his office and, with board member Robert Gunther present, told Haley that her employment was terminated effective immediately. He handed her a letter saying that her employment was terminated because of substantial allegations of gross insubordination and unprofessional conduct and that allegations of violations of vulnerable adult policy had been made and were being investigated by the Minnesota Department of Health. The next day, Bonitto called Olson into his office and, in the presence of board member Milt McKeown, told her that her employment was terminated effective immediately, and also handed her a similar letter saying that her employment was terminated because of substantiated allegations of slanderous statements and insubordinate comments and reports of Resident Right violations and unsafe practices.

Olson and Haley filed petitions for writs of certiorari to review the board's decision to terminate them. This court consolidated the cases for briefing and decision.

D E C I S I O N

Judicial review of quasi-judicial decisions of administrative bodies must be invoked by writ of certiorari. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). Certiorari review is limited to an inspection of the record where the reviewing court

is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

State ex rel. Ging v. Board of Educ., 213 Minn. 550, 571, 7 N.W.2d 544, 556 (1942) (overruled in part on other grounds by Foesch v. Independent School Dist. No. 646, 300 Minn. 478, 485, 223 N.W.2d 371, 375 (1974)). Review by certiorari is to be nonintrusive and expedient judicial review. Dietz, 487 N.W.2d at 239.

I. Due Process

Relators assert that Lakeview's termination of their employment violated their due process rights. A public employee with a constitutionally protected property interest in employment must be afforded due process prior to termination. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493 (1985).

Loudermill's proposition underlines a necessary component in due process entitlement: a protected property interest. A protected property interest in public employment must be created by an independent source, such as a contract or a statute. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972). There is no claim of either a contract or a statute that creates such an interest for relators. At-will employees do not have a protected property interest. Rutherford v. County of Kandiyohi, 449 N.W.2d 457, 460 n. 1 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990). At-will employees cannot successfully assert a due process argument.

II. At-will Employees

Relators assert that Lakeview's decision to terminate their employment was based on what they argue is an erroneous theory of law that they are at-will employees. This argument is based on the Lakeview employee handbook, which they cite as stating that employees could only be terminated after three prior written notices of rule infractions or for disciplinary reasons specified in the handbook.

A closer examination of the handbook is useful. First, the handbook, which relators equate with an employment contract, clearly states, on the first page after the cover:

THIS BOOKLET IS NOT A CONTRACT, BUT IS INTENDED SOLELY TO GIVE ELIGIBLE EMPLOYEES A SHORT DESCRIPTION OF THE WORKING CONDITIONS AT LAKEVIEW HOME. IF AT ANY TIME THERE SHOULD BE A CONFLICT BETWEEN DESCRIPTION IN THIS BOOKLET AND PERSONNEL POLICY, THE TERMS OF THE PERSONNEL POLICY [WILL] GOVERN IN ALL CASES. PERSONNEL POLICIES ARE APPLIED AT THE DISCRETION OF MANAGEMENT AND MAY BE WITHDRAWN, APPLIED, OR AMENDED AT ANY TIME.

Relators argue that the language of this paragraph is unclear. Not so. This straightforward disclaimer makes manifestly clear that the booklet is not to operate as a contract and should not be seen as dictating policy. True, this court has held that language in an employee personnel policy can be construed as a contract. Kulkay v. Allied Central Stores, Inc., 398 N.W.2d 573, 577-78 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). However, Kulkay specifically states that employers can use limiting language in order to clarify the absence of a contract. Id. at 578. Here, Lakeview used such limiting language.

Further, the section describing termination procedure is less explicit than relators describe. It states:

Under ordinary circumstances, Lakeview Home will give advance notice if it becomes necessary to terminate any employee. This advance notice will be a minimum of 2 weeks. It is the intent of management that no employee will be dismissed unless there have been three written notices of infraction of the rules. Lakeview Home reserves the right to terminate without notice the service of any employee for disciplinary reasons.

The handbook, which in any event does not dictate policy, still provides for termination without notice.

Relators argue that the handbook never described them as at-will employees. However, there need not be an affirmative statement that an employee is at-will. An employee hired for an indefinite term is at-will. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). An at-will employee can be dismissed "for any reason or no reason." Id. There is no evidence that relators were hired for a definite term; therefore, they were at-will employees. Lakeview was not required, either through its handbook or by general legal principles, to give notice of termination to Olson or Haley.

III. Defamation

Relators argue that the termination decision was oppressive and unreasonable because the statements made about them by the board and by Bonitto were, they argue, defamatory per se. A statement is generally considered defamatory if it (1) is communicated to someone other than the plaintiff, (2) is false, and (3) tends to harm the plaintiff's reputation and to lower him or her in the estimation of the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Relators assert that defamation may occur if its publication occurs under the doctrine of "compelled self-publication," meaning that the originator of the statement knows that the defamed person cannot avoid publication of the statement. See Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 887 (Minn. 1986). Relators imply that this doctrine would apply to the instant case in the potential context of relators being required to report to a future employer the reason for their discharge.

The relators' defamation claim is meritless. Relators deny the statements, but there is not a scintilla of evidence proving them false.

Affirmed.