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He was looking for a job. What he got was a date with a judge. Veteran claims Crow Wing County violated Veterans Preference Act.

The All Veterans Memorial monument is situated in front of the Crow Wing County Historic Courthouse on Laurel Street in Brainerd. Frank Lee / Brainerd Dispatch1 / 4
Chris Pence2 / 4
Paul Herkenhoff3 / 4
Tim Houle4 / 4

All Jon Kolstad wanted from Crow Wing County was a chance to apply for a different county job—and now it seems the Merrifield resident will get his chance after having his day in court.

The 54-year-old claims the county violated his rights under the Veterans Preference Act "by failing to engage in a competitive hiring process that included fully qualified veteran candidates for the position of Environmental Services Supervisor."

"The only thing we were seeking to do in this case was not actually to get Mr. Kolstad the position. The purpose of filing the petition was really just to have the county follow the veterans preference law and their own personnel manual," said Jane Poole, Kolstad's Duluth attorney.

The Minnesota Veterans Preference Act grants most veterans "a limited preference over non-veterans in hiring and promotion for most Minnesota public employment positions."

County Administrator Tim Houle said it was Kolstad's right as a disabled Air Force and Air National Guard veteran to challenge the county if he believes his rights were violated under the act for a county position, but the county contends it was within its rights to not post the position.

Evidentiary hearing

Minnesota Administrative Law Judge LauraSue Schlatter presided over a recent evidentiary hearing in Kolstad's case. She concluded Kolstad's rights were violated "by failing to post a newly created position, which would have allowed the petitioner to compete for the position."

"What we were seeking with the petition was to have them have a competitive application process—not that Mr. Kolstad would get the job, but that he'd be given a chance to apply and be awarded the points he's due for being a disabled veteran," Poole said.

Schlatter went on to recommend to the commissioner of the Minnesota Department of Veterans Affairs that the county be ordered to open the environmental services supervisor position held by Jake Frie to the competitive application process, and allow Kolstad or any others to apply.

"The facts describing Mr. Frie's movement into the Environmental Services Supervisor position do not support the county's characterization of the process as a 'reclassification,'" Schlatter found. "The county did not look at Mr. Frie's existing duties, perform an audit, determine that Mr. Frie's duties had evolved over time, write a new position description and reclassify his position."

Kolstad works as an environmental services specialist in the land services department and has been a county employee for about five years. His job title was originally land services specialist until last May.

Kolstad retired from the Air Force in 2012 due to health problems he developed while serving abroad and receives a portion of his Air Force pension due to his service-related health disability.

"Really, I think everything is in the brief that the administrative law judge put together ... and really the reason that I did this was to have Crow Wing County follow the rules and have regard for the fair process to protect veterans' rights," Kolstad said.

Kolstad was deployed five times as part of his military service, including to Saudi Arabia, Kuwait, Italy and Afghanistan, "often responsible for the safety of hundreds of troops during his years in the Air National Guard," according to legal documents.

During his final deployment to Afghanistan, Kolstad was deputy director of logistics for U.S. Special Operations Command in Afghanistan and responsible for spending about $750 million to supply special operations troops.

"We respect the right of our employee to avail himself of his rights under the Veterans Preference Act and our right to present an alternative view," Houle said.

Great Recession

Since the recession that started in December 2007, the county claims it has gradually reorganized the way in which it provides services to reduce county expenses, and to provide services more effectively and efficiently.

"As you know, we had a lot of leadership turnover in land services in 2018, including the departure of Chris Pence and Paul Herkenhoff as our environmental services supervisor," Houle said.

County administrators determined when Herkenhoff resigned that the environmental services division would be "better structured with two supervisors rather than one supervisor and one manager (and) Herkenhoff's position was made inactive," according to the evidentiary hearing.

Since the Great Recession, the county went from 19 separate departments to eight; the land services department combined environmental services (including natural resources management, solid waste management and surveying), document recording and assessing.

"Whenever we experience turnover, we routinely take the opportunity to evaluate how the duties we need done are organized within a department," Houle said.

Tami Laska was the county human resources director during Kolstad's tenure. In a letter to him, she did not state the reason the land services department leadership chose to redistribute the supervisory work to Frie rather than to others in the environmental services division.

"At that time, we decided to move some of the duties that an existing employee was doing under the umbrella of the environmental service supervisor, and because the duties we moved reflected a significant portion of that employee's existing job, we placed them in the environmental services supervisor position," Houle said.

Schlatter concluded the county denied Kolstad's rights when it created the environmental services supervisor position in the land services department but "declined to post" the position for competitive applications and awarded Frie the position "in the guise of a reclassification."

"We saw it as simply reorganizing duties, which we perceived as an inherent managerial right," Houle said.

However, Schlatter wrote: "Mr. Frie moved to his new position before his new responsibilities were reviewed by an independent auditor. Therefore, there was no basis for a reclassification of his position at the time the county alleges the position was reclassified."

Recruitment violation

Schlatter also found the county's promotion of Frie into the newly created environmental services supervisor position seven days after Herkenhoff's resignation violated the county's personnel manual recruitment policies.

"We also respect the outcome of the process, even when it is not the outcome we would have preferred," Houle said of the evidentiary hearing. "We were a little disappointed in the decision as, in some instances, like this, it will impair our ability to nimbly respond to staff turnover. That said, the decision will also not create such an undue burden on us that we think we should appeal the decision."

In August, the county responded to a request by Kolstad with a list of two vacant supervisor positions in the land services department within 24 months and a list of 10 "promotions, reclassifications and new hires into supervisor positions." Of those 10, eight were not posted.

"The county's good faith is thrown into doubt in light of its history of creating new positions and then moving its chosen candidates into those positions, without ever posting them for competitive applications," Schlatter wrote.

Poole said of the county and her client, "I guess I can't commit as to their motive. Whether they intended to do it or not, that was the outcome—that it circumvented the veterans preference requirement."

It was not until April 27 that Frie's job change was characterized as a "reclassification," backdating the effective date more than six weeks to March 13, 2018—the date the county moved Frie into his new position.

"By inactivating Mr. Herkenhoff's Land Services manager position and creating a new (Environmental Services supervisor) position, the county created a new, vacant position in the Land Services Department," according to Schlatter. "The county's assignment of Mr. Frie to the newly created ESS position seven days after Mr. Herkenhoff's resignation from the position of Land Services manager constituted a promotion to a new position, not a reclassification of Mr. Frie's existing position."

Judge's recommendation

Schlatter's report is a recommendation in favor of Kolstad and not a final decision. The Veterans Affairs commissioner will make the final decision in Kolstad v. Crow Wing County.

"Simply put, we will comply and open this position, and all future ones covered by the Veterans Preference Act, to a competitive posting process," Houle said. "We have not yet begun that process for this position as we are waiting for the final ratification of the decision by the commissioner ... who does have the authority to approve, modify, or deny the decision."

Kolstad and the county may file exceptions to the report, and the commissioner must consider the exceptions in making a final decision.

"The county had an opportunity to submit exceptions to the recommendation from Judge Schlatter, and that deadline has now expired," Poole said. "The VA commissioner sent the parties a letter recently saying no exceptions were filed in this matter."

The commissioner now has 90 days to issue a final decision in the case and the deadline to issue the decision will expire around mid-May, according to Poole.

"I'm just happy to hear that this might see some light because these kinds of things happen and they don't really get any attention," Poole said of Kolstad's case. "I'd be happy to see this publicized."

Minnesota Veterans Preference Act

Minnesota provides for a limited preference for veterans in hiring and promotion in state and local government positions.

The Veterans Preference Act is intended to facilitate the transition of veterans from the military to civilian life and to help compensate veterans for their sacrifices, including their sacrifices of health and time to the community, state and nation.

Disabled veterans are ranked ahead of veterans, who are ranked ahead of non-veterans. Recently separated veterans, who served on or after Sept. 11, 2001, must be considered for the position. The top five recently separated veterans must be granted an interview.

Source: Minnesota Department of Veterans Affairs