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Relator v. Freeborn County

Court of Appeals of Minnesota

July 29, 2013

Marcellino Pena, Relator,
Freeborn County, Minnesota, Respondent.


Freeborn County Board of Commissioners Richard A. Williams, Jr., R.A. Williams Law Firm, P.A., St. Paul, Minnesota (for relator)

Jessica E. Schwie, Jamie L. Guderian, Jardine Logan & O'Brien, P.L.L.P., Lake Elmo, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Willis, Judge.

WILLIS, Judge [*]

In this certiorari appeal, relator argues that respondent deprived him of procedural due process when it discharged him from his position as jail administrator. Because there is no record evidence from which to conclude that relator had either a property or liberty interest in his continued employment, we affirm.


Relator Marcellino Pena was employed by respondent Freeborn County from 2004 until September 2012 as a jail administrator. The county initiated an investigation into Pena's conduct after receiving a complaint that on June 19, 2012, Pena donned a latex glove and told a female kitchen employee that he had to conduct a physical examination of her because she had called in sick the day before. The sheriff's office placed Pena on paid administrative leave pending the outcome of the investigation, which was conducted by Chief Deputy Sheriff Glen Strom.

In a letter dated August 17, Strom provided Pena with notice of a series of allegations against him. In addition to the June 19 incident, the letter summarized—with dates and brief descriptions—nine other incidents of alleged misconduct. The letter specified several rules of conduct in the Freeborn County Personnel Rules and Regulations and the Freeborn County Sheriff's Office General Rules of Conduct that Pena was alleged to have violated, including rules against sexual harassment, immoral conduct, abuse of position, unbecoming conduct, on-duty political activity, neglect of duty, interference with labor activity, and insubordination. Finally, the letter instructed Pena to report on August 23 for a "mandatory appointment to provide a statement to the Freeborn County Staff."

In response to the notice, Pena requested a 14-day extension to obtain legal counsel and "copies of all complaints received including investigative reports" and "any audio and video recordings of interviews." The sheriff's office denied Pena's requests. Pena appeared at the August 23 meeting and gave a statement to Strom. During the course of the interview, Pena admitted to, among other things, making sexual comments, telling dirty jokes, putting his arm around female staff, and watching television and gambling while on duty.

After Strom completed the investigation, he prepared a report for Sheriff Bob Kindler. Kindler concluded that the evidence was sufficient to terminate Pena's employment. In a letter dated September 11, Kindler told Pena that the county had decided to terminate his employment. Kindler stated that the basis for the county's action was that "on or about June 19, 2012 you verbally indicated to a female working in the jail that you had to conduct a physical examination of her." Kinder further stated that there was credible evidence that Pena "made sexual comments, told dirty jokes, put [his] arm around female staff and required females to go into private and confined spaces for conversations"; "required two female employees to accompany [him] to McDonalds . . . [and] lectured them on who to support in the Sheriff election"; "threatened individuals with the loss of their jobs and ruled by intimidation"; used inappropriate language to a nursing supervisor; intimidated an individual into performing tuberculosis-screening tests on kitchen staff; "threatened the [f]ood [s]ervice [d]irector with termination for talking about [Pena's] personal relationships"; "engaged in intimidation of [the food service director] because [he] believed that she had made a complaint against [him]"; "created a hostile and intimidating environment for jail staff"; "utilized work time in order to watch television shows and DVDs"; and gambled while on duty and in uniform. Kindler informed Pena that the county board would consider his termination at its September 18 meeting and that Pena could request a hearing "to explain why you should not be terminated or supply information that you believe the [c]ounty [b]oard should consider in this matter."

Pena requested a hearing, which was held during a closed session of the September 18 county-board meeting. After the hearing, the board voted to terminate Pena's employment, effective immediately. Pena petitioned for a writ of certiorari to appeal the board's decision. On appeal Pena argues that the county board violated his right to procedural due process.


I. This court has jurisdiction to consider Pena's ...

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