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From the Bench: Lying on Application? No License for You!

CONSTITUTIONAL LAW
Massage licensing ordinance
A therapist touches a reclining man's temples. Hearn sued the city, challenging a hearing officer’s decision upholding the city’s denial of his application for a massage therapist license, claiming that the city misapplied its ordinance and that the ordinance was unconstitutional. The Minnesota Court of Appeals upheld the hearing officer’s decision, reasoning that Hearn had made a “misrepresentation/ omission” under the ordinance’s terms when he answered “no” to the application’s question regarding whether he had “ever been convicted of or charged with a felony, crime, or violation of any ordinance other than a minor traffic violation.” The Court of Appeals noted that Hearn admitted at the hearing that he had previously been charged with theft and convicted of disorderly conduct. The Court of Appeals also held that the ordinance was constitutional, reasoning that it is rationally related to protecting the public safety and that it does not violate the Due Process Clause, the Equal Protection Clause, or Hearn’s right to pursue private employment. Hearn v. City of Woodbury, No. A12-1714 (Minn. Ct. App. May 20, 2013) (unpublished opinion).

VETERANS PREFERENCE ACT
Termination
Maire is an honorably discharged veteran who worked as a master plumber for the school district. As part of his job, he was required to drive a vehicle the school district owned and insured. Maire was arrested for driving while intoxicated. Maire’s driver’s license was administratively revoked, but was reinstated pending the resolution of a legal challenge. Maire told the school district of the pending charges. This was Maire’s third alcohol-related driving incident. After consulting with its insurance broker, the school district learned it would no longer be able to obtain insurance coverage for Maire’s use of its vehicles.

The school district notified Maire of its intent to terminate him for misconduct and incompetence because he was not able to perform all of his necessary job functions. The school district also informed Maire that he would be placed on paid administrative leave, and notified him of his right to request a veterans preference hearing. Maire requested a hearing and continued to receive pay pending a final determination. The veterans preference hearing board concluded that Maire was reasonably discharged for misconduct and incompetence. Maire appealed, and the district court reversed the board’s decision. The Minnesota Court of Appeals reversed the district court’s decision, and reinstated the board’s decision, holding that it was supported by substantial evidence and was not an abuse of discretion. Maire v. Indep. Sch. Dist. No. 191, No. A12- 0995 (Minn. Ct. App. Apr. 22, 2012) (unpublished opinion).

GOVERNMENTAL IMMUNITY
Official immunity
A city employee opened a closed water valve located in a church’s parking lot. There were two water valves in the parking lot, one was 2.5 inches wide and the other was 5 inches wide. The employee consulted with his supervisor before opening the 5-inch valve, which the city employees erroneously concluded was a city water-main valve. The plumbing company that had installed the property’s private water line and connected it to the city’s water mains had not capped the end of the private water line in the building. As a result, water flowed through the uncapped private water line into the church and caused significant damage. The city employee opened the water valve because of a city policy that requires all water-main valves to remain open to allow the water to circulate throughout the entire system. The district court denied the city’s summary judgment motion based on official immunity, vicarious official immunity, and statutory immunity, concluding that there were genuine issues of material fact.

The Minnesota Court of Appeals reversed and held that both official immunity and vicarious official immunity applied. The Court of Appeals reasoned that the valve’s misidentification was not a ministerial duty because the record did not contain any evidence that there was a protocol controlling the process of determining whether a valve is a city water-main valve or a private valve. The Court of Appeals also concluded that even if it assumed that the conduct of opening the valve was ministerial conduct, the employee was still entitled to official immunity because the ministerial conduct was required by a protocol that was established through the exercise of discretionary judgment that would itself be protected by official immunity. The Court of Appeals reasoned that the decision to keep all of the city’s water-main valves open resulted from a city employee’s professional judgment. Living Springs Church v. City of Spring Lake Park, No. A13-0006 (Minn. Ct. App. May 20, 2013) (unpublished opinion). Note: LMCIT represented the city.

OPEN MEETING LAW
Closed meeting
Metal sign on wood door says Stengrim sued, claiming that the board of managers of a watershed district violated the Open Meeting Law (OML) by failing to provide proper notice of the subjects that were to be discussed during a portion of a board meeting that was closed to the public. During the closed meeting, the board discussed a then-simmering dispute with Stengrim, among other things. The minutes of the meeting describe the disputed portion of the meeting as: “Mr. Jeff Hane [the watershed district’s attorney] requested that the meeting be closed pursuant to Minnesota Statutes 13D.05 (subdivision 3c) to develop or consider offers or counteroffers for the purchase or sale of real or personal property in section 19 of Brandt Township; and pursuant to Minnesota Statutes 13D.05 (subdivision 3b) for the purposes of discussing legal theories and strategies regarding the PL-556 litigation, Agassiz Valley Water Resources Management Project settlement agreement, and conflict of interest issues.” Stengrim contended that the notice reflected in the minutes was not actually given, at least with respect to the Agassiz Valley Water Resources Management Project settlement agreement. After a two-day trial, the district court found that the board of managers gave proper notice or, in the alternative, that if there was an OML violation, it was not intentional. The Minnesota Court of Appeals affirmed, concluding that the district court’s findings of fact are not clearly erroneous and are supported by circumstantial evidence that proper notice was given. Stengrim v. Middle-Snake-Tamarac Rivers Watershed Dist., No. A12-1573 (Minn. Ct. App. June 10, 2013) (unpublished opinion).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

Read the September-October 2013 issue of Minnesota Cities magazine

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