Appeals Court Rules Against Le

The appelate court ruling was issued today on one of the Sherrie Le legal cases. The decision was against Le.

For a quick recap, this decision was an appeal of the city's decision to fire Le. The city acts as a court of record in a personnel case like this, so disputes are handled by the court of appeals, which strictly looks at the legal issues at stake, not the facts. In other words, the administrative record that the city presents (in particular, the Schweiger report) is taken at face value, and the city essentially got to decide what was part of that record.

The court addressed three issues. I am not a lawyer, so take my interpretation with a grain of salt, but here is my best effort to summarize the court's findings.

1. Was the November 2001 policy manual or the April 2006 policy manual in effect when Le was fired?

The city argued that the April 2006 manual as amended by former city manager Richard Fursman was not formally adopted by the city council, so it was not in effect. (Amusingly, in another lawsuit -- the MCSA/Banick/etc. case about the reorganization in December -- the city's attorneys argue the exact opposite, namely, that policy manual revisions made by Greg Copeland and never approved/ratified by the city council went immediately into effect.)

The court sided with Le, agreeing that the April 2006 policy manual was effective.

(I am not sure what impact this may have on the other case(s). In the case of the December policy manual revisions made by Copeland, I think there are claims that he backdated the changes to say they were in effect before announcing the reorganization and terminations. There is also the question of whether the December 2006 changes were substantial enough to require council approval, where Fursman asserted that his April 2006 changes were really clarifying or strengthening existing city policies, not changing them.)

2. Was Le an at-will employee?

The original issue here was whether the decision to terminate Le's employment, being based on the Schwieger report, was "fraudulent, arbitrary, oppressive, and unreasonable, and is not supported by substantial evidence." However, since an at-will employee "may be terminated for any reason or no reason at all," the court states that "an at-will employee’s termination cannot be procedurally improper, arbitrary, oppressive, unreasonable, or unsupported by the evidence." (I'm not sure why "fraudulent" is left out of the second list.)

So if Le was an at-will employee, it doesn't matter why the city manager fired her.

On the question of whether she was at-will, the court basically sided with the city's argument that limiting language in the April 2006 policy manual kept it from constituting an agreement that would have modified Le's employment from being "at-will" to a contractual relationship where the city would have to show cause to fire her:

Specifically, section one of both policy manuals states: “The[se] provisions do not establish terms and shall not be construed as contractual provisions.” This language clearly and effectively indicates the city’s intent to avoid creating an employment contract on the terms contained therein, thereby precluding contract formation. See Audette, 436 N.W.2d at 127. Because a contract was not formed, Le’s at-will employment status was not altered by the policies contained in the city’s policy manual.

Thus, on the crux of the matter the court concluded, "Le was an at-will employee when the city terminated her employment. Accordingly, the city acted within its authority to terminate her for any reason."

3. Did the city violate Le's right to due process by firing her without just cause and failing to give her a name-clearing hearing?

Having decided that Le was an at-will employee, the court said that she had no property interest in her job and thus could not claim a right to due process over losing it.

As for name-clearing, the court seemed to allow that this could be a permitted claim, but stated that Le had not provided evidence to support it. The court wrote, "Even if we assume that the reasons for the city’s termination decision are stigmatizing, Le has not cited any record or non-record evidence to support her allegation that the city made these reasons public." Apparently this is an area where the relator could have introduced evidence that was not in the administrative record supplied by the city. But without such evidence supplied to it, the court was "unable to conclude that the city made its reasons for terminating Le public. Consequently, the facts and information before us do not establish a basis for us to conclude that Le’s liberty interests were violated so as to warrant a name-clearing hearing."

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While the city won this round, it's not the end of the Le-related legal battles. There remain lawsuits in federal and state court, charging that Le was fired in retaliation for union organizing (and in violation of a maintenance of status quo order that was then in effect from the state Bureau of Mediation Services) and for being a whistleblower (for pushing for the background check of Mr. Copeland, required by city ordinance; and for reporting violations of the law by the council majority, such as alleged open meeting law violations by Mayor Longrie, Councilperson Hjelle, and former councilperson David Bartol, who had been appointed to fill the seat of Jackie Monahan-Junek before the special election in February 2006).