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.^*

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.

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.

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.

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

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.

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)).

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.

Affirmed.

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