Probationary Police Officer Reinstated at Veteran’s Preference Hearing

 In December 2012, a Veteran’s Preference Act hearing was held to determine whether the City of Brooklyn Park had just cause for the termination of a probationary police officer, Daniel Strickland.  The city argued the officer had willfully violated a standing order prohibiting outside employment while in field training, lied to a superior about the extent of the violation, had integrity issues, and failed to demonstrate the ability to do the job.

On March 1, 2013, the majority of the panel, including David Paull and Ryan Kaess, filed its opinion, and determined that a veteran, even on probation, can only be discharged for incompetency or misconduct under Minn. Stat. 197.46.  The panel stated that under the VPA the incompetence or misconduct must be substantial and relate to the public interest.  The panel determined that the standard is the “benchmark equivalent” of the just cause standard under PELRA, Ch. 179A, citing Ekstedt v. Village of New Hope, 292 Minn. 152, 193 N.W.2d 821 (1972).  A VPA hearing panel must determine whether the employer acted reasonably, including whether the matter was properly investigated, and determine whether extenuating circumstances justify modifying the employer’s choice of discipline.  The majority stated that “a police officer’s integrity and ability to be truthful is of prime importance.”

The majority went into a lengthy discussion of credibility determinations, and then determined that the officer did not lie with respect to his outside employment to his superiors.  The panel held that Officer Strickland was not speaking falsely when he though it was acceptable for him to teach near the end of his field training, and he therefore did not intentionally violate the city’s policy. Central to the panel’s determination was that the Officer made no attempt to conceal his actions.  The panel determined that “it was incumbent upon the City to establish by substantial evidence that Officer Strickland lied. . . The evidence presented is not sufficient in this regard.”  The panel also noted that Officer Strickland received passing scores in all four phases of his training, so performance was not a sufficient basis for termination of employment.

The panel determined that the City had sent mixed signals to the officer about the enforcement of the outside work policy, an extenuating circumstance that mitigated the level of discipline. The termination was reduced to a 3 day suspension without pay.  http://www.bms.state.mn.us/documents/awards/20130301%20Brooklyn.pdf

James Martin, the employer’s appointee to the panel, filed a dissenting opinion, in which he opined, among other things, that the Veteran admitted to violating the city’s policy  without permission which provided just cause for the veteran’s termination of employment.  http://www.bms.state.mn.us/documents/awards/20130301%20Brooklyn%20Dissent.pdf

This decision is a good reminder that the VPA applies to probationary and non-probationary veterans alike, and that some panels might seemingly apply a somewhat heightened level of just cause in VPA hearings.