Articles

The Minnesota Veterans Preference Act: A View from the Front Lines

April 23, 2010

I. Overview

Since 1887, Minnesota has provided veterans of the armed services statutory preferences in public sector employment. As articulated in the present version of the Minnesota Veterans Preference Act (the "Act"), "training and experience in the military services of the government and loyalty and sacrifice for the government are qualifications of merit which cannot be readily assessed by examination." Minn. Stat. § 43A.11, Subd. 1. This article, which summarizes the Act's salient features, is intended for both lawyers who represent veterans and veterans who would like to know their legal rights.

II. Coverage

The Act provides benefits to any veteran, defined as "a citizen of the United States or a resident alien who has been separated under honorable conditions from any branch of the armed forces of the United States" for 181 consecutive days of active service, or who meets minimum active duty qualifications under federal law. Minn. Stat. § 197.447. This definition excludes reservists who (in fact) have not seen active service for the requisite minimum period. Longman v. Gallagher, 377 N.W.2d 77 (Minn. Ct. App. 1985). The statute makes no mention of National Guard service, and no cases have been found construing whether such service is covered. Section 2101(2) of Title 5, United States Code, defines "armed forces" as the Army, Navy, Air Force, Marine Corps, and Coast Guard. No cases have been found considering Merchant Marine service for purposes of the Act.

The full complement of Veterans Preference rights extends to employees of all political subdivisions of the state. See Minn. Stat. § 197.455, Subd. 1 (encompassing any "county, city, town, school district, or other municipality or political subdivision of this state"); Minn. Stat. § 383B.39 (Hennepin County). The Minnesota Supreme Court has ruled that this directive requires municipalities to convert their hiring procedures to a one hundred point system, in order to effectuate the five-point hiring bonus, irrespective of whether the unit has a "civil service system" as such. Hall v. City of Champlin, 463 N.W.2d 502 (Minn. 1990). Only the positions of "private secretary, teacher, superintendent of schools, or one chief deputy of any elected official or head of a department, or … any person holding a strictly confidential relation to the appointing officer" are exempt from the mandatory plus point system of Minn. Stat. § 197.455. See Minn. Stat. § 197.46. Universities are also exempt from Veterans Preference because the University is "a constitutional arm of the state," and is not subject to the Act unless explicitly named. Winberg v. University of Minnesota, 499 N.W.2d 799 (Minn. 1993). See also Minn Stat. § 645.27.

Only one of these excluded categories presents difficulties on a regular basis, namely "confidential relationship." Unhelpfully, that term not defined in the Act. One court has ruled that confidential relationships have some or all of the following characteristics: (1) they are appointed, (2) they are bound by rules of professional ethics, (3) they are able to stand in the stead of their supervisor as an "alter ego," and (4) they serve at the pleasure of their employer. Ulmer v. City of Duluth, 428 N.W.2d 855 (Minn. Ct. App. 1988), review denied. In Ulmer, the employee seeking Veterans Preference protections was an assistant city attorney, who was retained at the pleasure of his appointing officer under authority of the city charter. But c.f. Jacobs v. Crow Wing County, 1996 WL 601627, at *4 (Minn. Ct. App. Oct. 22, 1996) (unpublished) (no confidential relationship or Veterans Preference exemption when employees' "authority was based on their own positions" rather than fact that they could act as an "alter ego" for the board.) As a cautionary note, however, high level-employees serving at the pleasure of the public employer are not ipso facto exempt from the Act, unless the statute under which their position was created specifically states that the position is to be exempt from its strictures. State ex rel. Caffrey v. Metropolitan Airports Commission, 246 N.W.2d 637 (Minn. 1976); Minn. Stat. § 197.48.

Other limitations not written into the law have been imposed by the courts. Thus, for instance, the Act has been held not to apply to public sector employees who are occasional or part-time workers. Crnkovich v. Indep. School Dist. No. 701, Hibbing, 142 N.W.2d 284 (Minn. 1966) (relying on C.J.S. and opinions of the attorney general).

III. Hiring

By law, veterans receive preferential treatment in hiring over non-veterans seeking civil service positions in state, county and local government. Minn. Stat. § 43A.11. Applicants who meet the definition of a veteran under Minn. Stat. § 197.447 and are considered to be disabled under Minn. Stat. § 43A.11, Subd. 5 are placed ahead of all other applicants in the applicant pool as long as they meet the minimum qualifications for the vacant position. Minn. Stat. § 43A.11, Subd. 7. Those veterans who meet the minimum qualifications, but are not disabled, are placed ahead of non-veteran applicants but behind disabled veteran applicants. Id. Spouses of veterans who are deceased or disabled and unable to qualify for work also receive preferential treatment in hiring. Subd. 6.

Job testing awards for veterans, set forth in Minn. Stat. § 197.455, are as follows. Veterans participating in "competitive open examination[s]" receive a five point credit toward their final score, and if disabled, ten points, as long as they obtained a passing rating without the additional points. Subd. 4, 5. Disabled veterans also receive five points in "competitive promotional examination[s]." Subd. 5. As with Minn. Stat. § 43A.11, these mandatory "plus points" extend to spouses of deceased veterans, who may not themselves be veterans. Subd. 7. This section also mandates ranking equally scored veterans over non-veterans and requires notification of veterans of their right to use veterans preference to augment passing ratings. Subd. 8, 9.

Employment attorneys on occasion may encounter hiring issues under the Veterans Preference laws. These requirements, however, are rather mechanical and have not generated a tremendous amount of litigation or reported case law, at least so far. Much more commonly litigated is the provision affecting termination, which shall constitute the focus of this article.

IV. Termination

A. What Constitutes "Removal" Under the Act

The provision garnering by far the most judicial scrutiny and attention from practitioners is Minn. Stat. § 197.46, which protects veterans against removal for any reason other than "incompetency or misconduct." It is not difficult to identify actions that will trigger Veterans Preference rights. An employee is "removed" in the vast majority of cases when he or she is terminated. To be more precise, it will be the veteran's receipt of a "notice of intent to discharge," because, technically, the employee is not officially terminated until he or she has exhausted rights of review under the Act, or chooses not to exercise them within the requisite 60 days.

Courts take a functional, pragmatic approach to this question, there being no magic language or form of notice that triggers the veteran's rights under the Act. Thus, for instance, placing a public employee on long-term disability leave, where it was unlikely or improbable that the employee would ever return to work, has been deemed a removal. Myers v. City of Oakdale, 397 N.W.2d 424 (Minn. Ct. App. 1986), aff'd. 409 N.W.2d 848 (1986). On the other hand, another court ruled that revocation of a promotion that violated the county's personnel rules and was seriously flawed in general was deemed not to be a removal. Ochocki v. Dakota County Sheriff's Dept., 464 N.W.2d 496 (Minn. 1991). A surprising number of courts have addressed the question of voluntary removal from work, ruling most often against the veteran. See Anderson v. City of Minneapolis, 503 N.W.2d 780, 782 (Minn. 1993) (an employee who voluntarily places himself on long-term disability leave is not "removed"); Baybridge v. City of Ortonville, 2008 WL 2573268, at *4 (Minn. Ct. App. July 1, 2008) (unpublished) (no removal when employee voluntarily turned over his pager to his employer and chose not to attend scheduling meetings); Brula v. St. Louis County, 587 N.W.2d 859 (Minn. Ct. App. 1999) (employee who voluntarily quits because of post-traumatic stress syndrome attributable to prior military service not entitled to Veterans Preference hearing, where county had "no role" in the disorder that caused him to resign); Jagodzinsky v. St. Paul Public Housing Agency, 1994 WL 6847 (Minn. Ct. App. Jan. 11, 1994) (unpublished) (employee who requests he be placed on medical leave of limited duration not "removed" for purposes of Act). In addition, across-the-board changes resulting from a restructuring of work may not trigger rights under the Act. See Gorecki v. Ramsey County, 437 N.W.2d 646 (Minn. 1989) (no removal where a broad administrative plan reclassified workers to lower level positions and their job duties and responsibilities remained unchanged).

In general, however, employer removal of a full time veteran employee triggers a veteran's rights under the Act. In fact, even when an employee is suspended without pay pending hearing into whether or not the employee will be discharged, the suspension triggers his or her Veterans Preference rights and thus right to continued pay. Mitlyng v. Wolff, 342 N.W.2d 120 (Minn. 1984); Kurtz v. City of Apple Valley, 290 N.W.2d 171 (Minn. 1980); Tombers v. City of Brooklyn Center, 611 N.W.2d 24, 27 (Minn. Ct. App. 2000).

A bona fide elimination of a position does not qualify as a "removal" under the Act, and does not trigger a right to notice and a hearing. The only remedy for an employee who believes his or her job was eliminated in bad faith (i.e., a subterfuge for what was in fact a termination) to evade the Act's requirements or for some other reason is to file a court action seeking a hearing. (See section 2 below). Unfortunately for the employee, there is no right to continued pay through this process, although he or she will be awarded back pay to the date of attempted termination if ultimately successful. Taylor v. City of New London, 536 N.W.2d 901, 905 (Minn. Ct. App. 1995).

B. Standard of Review

When determining whether an employer's actions were reasonable, courts consider "the veteran's conduct, the effect upon the workplace and work environment, and the effect upon the veteran's competency and fitness for the job." Matter of Schrader, 394 N.W.2d 796, 802 (Minn. 1986). See also Bendickson v. County of Kandiyohi, 2000 WL 1847589 (Minn Ct. App. Dec. 19, 2000) (unpublished). There are only three grounds upon which an employer can terminate an employee: (1) incompetency; (2) misconduct; (3) good faith abolishment of the veteran's position. See Myers v. City of Oakdale, 409 N.W.2d 848 (Minn. 1987); Young v. City of Duluth, 386 N.W.2d 732 (Minn. 1986); State ex rel. Boyd v. Matson, 193 N.W. 30 (Minn. 1923).

The Act does not define the terms "incompetency" or "misconduct," but courts have equated "misconduct" with the "just cause" standard which is found in most collective bargaining agreements. Bendickson, 2000 WL 1847589, at *2; Young v. City of Duluth, 372 N.W.2d at 60; Cass County v. Law Enforcement Labor Services, Inc., 353 N.W.2d 627 (Minn. Ct. App. 1984).

Thus, for job protection purposes, the Act effectively unionizes those public sector employees (who happen to be veterans) not already covered under a collective bargaining agreement. As such, covered veterans are afforded protections not available to "at will" public sector employees. However important it may be to get along with one's supervisors and fellow employees, workplace harmony is a lesser good than continued employment for veterans. See State ex rel. Jenson v. Civil Service Comm'n, City of Minneapolis, 130 N.W.2d 143 (Minn. 1964), cert. denied, 380 U.S. 943 (personality and philosophical disagreements with one's superiors will not warrant the dismissal of a public employee under the Act; however, refusal to follow the employer's instructions, orders, requirements, and procedures will constitute misconduct and warrant dismissal).

In an important clarification, the Minnesota Supreme Court in Myers v. City of Oakdale ruled that the term "incompetency" is broader than just poor performance, but actually includes the physical inability to perform a job, such as may result from injury. In Myers, the protesting veteran had sustained permanent injury to his back which precluded his performing his ordinary duties as a police officer. Thus, he was entitled to a Veterans Preference hearing. On remand, however, the officer was deemed to be (in fact) "incompetent" as a result of the injury, and was not entitled to reinstatement.

The Court of Appeals went one step further in State ex rel. Indep. School Dist. No. 625 v. Roettger, 1988 WL 113746 (Minn. Ct. App. Nov. 1, 1998) (unpublished), holding that "incompetence" may include lack of a license or certification, quite apart from the employee's ability to perform the job duties satisfactorily. In that case, a school district employee did not obtain his master plumber license and certificate of competency within the required deadline, and was therefore terminated. One situation commonly encountered in this field is the loss of a drivers license due to a DWI conviction, where a drivers license is a term of employment. In such instances, the lawyer for the veteran is sometimes capable of negotiating reinstatement at such future date as driving privileges are restored.

It is well settled that an employer may abolish the position held by a veteran, but only if it is done in good faith for a legitimate purpose, and not as a subterfuge to remove the veteran. Gorecki v. Ransey County. See also Myers, 409 N.W.2d at 850; Young v. City of Duluth, 386 N.W.2d at 738; State ex rel. Caffrey v. Metropolitan Airports Commission. In light of the current economic downturn and the growing intolerance of higher taxes by the public in general, this situation is likely to occur with greater frequency.

C. Relief and Damages

A veteran who is successful in challenging his or her termination is entitled to reinstatement, with an award of backpay if the public employer wrongfully failed to continue wage payments for the interim period. One interesting question not yet reached by the Minnesota appellate courts is whether an employee who is incapable of returning to work as a result of an injury may be entitled to reinstatement on an indefinite medical leave. This was the very question raised by the employee in Myers v. City of Oakdale. The court did not reach the issue, however, because the board (whose decision the court was reviewing) ruled against the employee and found him to be "incompetent" owing to inability to perform his job functions. Significantly, however, the court stated in dicta that "the board would have been justified in making the modification asked for by Myers," i.e. indefinite medical leave. This leaves open the door for future employees who are medically unable to work but who wish to remain employed in order to take advantage of the employer's benefits or for some other reason.

As with the right to collect re-employment insurance, a terminated veteran awaiting hearing on his or her claim has a duty to mitigate damages, and any wages earned (including re-employment compensation) will be offset against present wages. Robertson v. Special School Dist. No. 1, 347 N.W.2d 265 (Minn. 1984); Tombers v. City of Brooklyn Center; Henry v. Metro. Waste Control Comm'n, 401 N.W.2d 401 (Minn. Ct. App. 1987); Pawelk v. Camden Twp., 415 N.W.2d 47 (Minn. Ct. App. 1987); Lewis v. Minneapolis Bd. of Education, Special School Dist. No. 1, 408 N.W.2d 905 (Minn. Ct. App. 1987) (no recovery of both salary and sick pay leave during pendency of proceedings).

D. Procedure

1. Challenge to Termination

As previously stated, a veteran covered under the act may not be "terminated" as such in the first instance. Rather, he or she is given a "notice of intent to discharge," informing him or her of the right to challenge the dismissal. If the veteran elects to do so -- which must be done in writing within 60 days of receipt of the notice -- he or she remains on the payroll with full benefits until such time as the claim is resolved. Depending on how far the ultimate decision is appealed, the amount of money being paid for a non-working individual can obviously be substantial.

If a veteran is removed for incompetency or misconduct, he or she is entitled to a hearing before the Veterans Preference Hearing Board. If the veteran is removed because the position was abolished, the veteran is entitled to a district court hearing to determine whether the employer acted in good faith. See Myers, 409 N.W.2d at 851; Young, N.W.2d at 739.

The Act provides for two mechanisms for hearing of Veterans Preference claims, depending on the public entity involved. For those having an established civil service board or commission, or merit system authority, the hearing is to take place before such board, commission or authority. Naturally, this will apply to the larger cities and counties, such as the Cities of Minneapolis and St. Paul. Where no such bodies exist, the hearing board consists of a delegate appointed as follows: one by the employer, one by the veteran and the third by the other two appointees. The Act is silent as to who is responsible for compensating the panelists, and no courts have reviewed the question, although the public employer as a practical matter normally compensates its delegate and the neutral, and the veteran compensates his or her delegate. If the two delegates fail to appoint the third within ten days, then a judge of the district court will make that selection.

The burden of proof in Veterans Preference hearings is on the employer to demonstrate to the board that the employer acted reasonably in its decision to terminate. See Matter of Schrader, 394 N.W.2d 796 (Minn. 1986); Myers v. City of Oakdale; Brown v. St. Paul Dep't of Fire & Safety Servs., 2004 WL 2940873 (Minn. Ct. App. Dec. 21, 2004) (unpublished). Likewise, the employer bears the burden of proving that an individual is the head of a department, where that is the basis of the employer's defense. Jacobs v. Crow Wing County, 1996 WL 601627 (Minn. Ct. App. Oct. 22, 1996) (unpublished); Holmes v. Board of Comm'ns of Wabasha County, 402 N.W.2d 642 (Minn. Ct. App. 1987). The veteran may appeal an adverse decision to the District Court by filing a notice within 15 days of the notice of decision. Although the Act does not give the public employer a comparable right, one has been inferred by the Minnesota Supreme Court. Matter of Schrader, 394 N.W.2d 796, 801 (Minn. 1986).

2. Writ of Mandamus

In the situation in which the public employer for whatever reason decides that the affected employee is not entitled to a Veterans Preference hearing, because such person was not "removed," was not qualified as a veteran under the Act, or some other reason, the employee may file a writ of mandamus with the district court. See Myers v. City of Oakdale (writ of mandamus appropriate manner in which to seek redress if statutory rights are not properly extended to a veteran). Without setting an applicable limitations period, the Court of Appeals has stated that the statutory 60-day time limit for requesting a Veterans Preference hearing does not apply to a mandamus action. Accordingly, a writ filed eight months after termination in Myers was not deemed to be untimely. Although no court has set the outward limit for bringing such an action, it would be advisable to bring a mandamus action as soon as possible, and not risk a determination of untimeliness based on prejudice to the employer, laches or some other ground.

As a matter of procedure, mandamus proceedings are handled in the same manner as civil actions, but infer no greater jury trial right than is generally available. Pawelk v. Camden Township.

E. Practice Tips

Where the public entity involved in a Veterans Preference dispute is not covered by a civil service board, both parties will want to select a sympathetic delegate to represent them on the three member panel. Although the Act places no criteria who the parties may select, the delegate selected should be knowledgeable about employment in the public sector in general.

Delays inherent in litigation do not prejudice a Veterans Preference plaintiff. Quite the contrary, he or she continues receiving pay throughout the proceedings. Although this author does not sanction or condone tactics of delay, attorneys representing discharged veterans should not rush to hearing and should consider serving legitimate discovery requests on the employer. The Act is silent on the topic of discovery, but Veterans Preference cases routinely involve exchanges of documents and, less often, the taking of depositions. An obvious piece of documentation that should be reviewed is the employee's personnel file. Other information may include, where appropriate, minutes and other records of city council meetings, written policies and documents relating to past practices. Some of these requests may require use of subpoenas, especially where third parties such as unions may be involved.

In presenting a Veterans Preference case, it is generally helpful to obtain the cooperation and participation of individuals and agencies who may be sympathetic to the employee, at least in theory. Where the alleged inability to perform is related to some disability, it will be necessary to work closely with medical providers, who will often be associated with the Veterans Administration. Navigating this bureaucracy can be quite difficult, so expect delays, multiple telephone transfers and at times indifferent case workers. In addition, where applicable, public employee unions can provide a certain degree of assistance. However, one is best advised to act with caution in doing so, for the reason that many union representatives in the public sector have divided loyalties and do not always want to stick out their neck in these cases. Worse yet is the union rep who wants to play lawyer at a hearing, without (necessarily) the requisite skills or knowledge.

One sensitive issue in litigating Veterans Preference claims involves the question of alternative wages or pay that the veteran may earn during the pendency of the hearing. Although honesty may be the best policy as a matter of ethics, the Act does not on its face compel the veteran to voluntarily call replacement wages to the employer's attention, especially if the employer makes no such inquiries. The employer will normally be aware of re-employment benefits, but the issue is not likely to arise where the employee (properly) remains on the payroll during pendency of the hearing; there simply will be no re-employment benefits paid during such time, by virtue of the continuation of pay. As a practical matter, public employers and their attorneys do not care about such wages and give them little or no consideration in the course of settlement discussions. The reason for this is obvious; the settlement in the majority of cases will be essentially a buy-out, and the key inquiry will be future wages and not some short term double recovery. I will not opine on the rules of professional ethics as they apply to this whole topic and recommend that the practitioner consult the ethics board for an advisory opinion should he or she face this question in the future.

The right to continuing pay, in combination with the generous review standard, burden of proof on the employer and appeal rights for the veteran only combine to create a powerful incentive for cities, counties, school districts and the like to reach negotiated settlements with terminated veterans. Attorneys representing terminated veterans employed in the public service will notice another dynamic at play which should not be discounted for purposes of settlement. In many instances, there is more at stake for the public employer than money, namely if the employee wins then the employer has to have him or her back. The issue of serious personality conflicts becomes all the more important where the employer is a small unit of government (say, a township) which may only have a handful of full-time employees to begin with.

Another dynamic that sometimes favors settlement is the existence of insurance coverage for the employer. This makes settlement easier for small townships, which without such insurance coverage would face politically and financially difficult choices that threaten to divide the community. Certain policies are written in a manner that excludes coverage for garden variety Veterans Preference claims. For that reason, it is sometimes helpful to append claims under the Americans with Disabilities Act, the Minnesota Human Rights Act, Title VII or other such laws, where appropriate.

In determining whether or not to settle, larger and better funded governmental units may also take financial considerations into question, owing to the not insubstantial costs of hiring outside counsel and generous standard of review. Also, all public employers may be sensitive to the perception (whether right or wrong) that they are maltreating veterans, which also may encourage a less adversarial approach to these questions.

IV. Conclusion

Although not an absolute guarantee of perpetual employment, the Veterans Preference standard affords veterans substantial protections and makes their termination relatively difficult. In contrast to some other areas of employment law, in which the odds are stacked increasingly against the employees (or so it seems), Veterans Preference claims offer good odds of success and better odds of amicable resolution through settlement.