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County to consider Hebert settlement


(6/27/2016)

by CHRIS ROGERS

On Tuesday the Winona County Board will discuss settling a lawsuit brought against it by former Winona County Administrator Duane Hebert. The County Board voted unanimously to fire Hebert in 2014 for alleged gross misconduct. Hebert filed a federal lawsuit against the County Board in 2015, claiming that the County Board's reasons for firing him were discriminatory and that it violated his right to due process, among other charges. The lawsuit has been quietly advancing toward a “ready for trial” deadline this December, but on June 9, attorneys for the two sides discussed the possibility of a settlement with Judge Hildy Bowbeer. Bowbeer asked the opposing attorneys to meet their respective clients this month and make recommendations for scheduling a settlement conference, a meeting with the judge to attempt to reach a settlement. On Tuesday evening, the County Board will meet in private with its attorneys to discuss the case.

Hebert was fired after a controversy over his connections to a solar company that vied for a county contract. The solar firm, Novel Energy Solutions (NES), is the family business of former county commissioner Mena Kaehler, and it had initially been a silent partner to a company proposing to install solar panels on the rooftop of the Winona County Government Center. After county staff allegedly disclosed trade secrets to NES’ competitors and seemed poised to pick competitors over NES for the project, an NES attorney threatened the county with legal “fallout.”

Hebert’s wife, Theresa, worked as an accountant for NES at the time, and, according to an email from Hebert, expected to become a part-owner in the company in the near future. Hebert was not directly involved in considering NES’ proposal, but his wife’s part-ownership would have created a conflict of interest, the county allleged. He officially disclosed his ties to NES the day after the letter from NES’ attorney was sent to the county. In the following days and weeks, the county scrambled to do damage control over the alleged disclosure of NES trade secrets to competitors. In a long and heated private meeting about the issue, one commissioner asked so loudly it could be heard through multiple walls, “Do you talk with your wife?” The County Board placed Hebert on administrative leave the next day. Handwritten notes from a March 25 meeting indicate that even before they placed him on leave, the County Board discussed firing Hebert.

In March and April, County Board members had a lot of questions about whether Hebert had been forthcoming about his connections to NES. He said he had told several County Board members about his wife’s employment in past conversations. The commissioners themselves said Hebert did not fully disclose his wife’s connection to NES to them. Hebert also claimed that he had informed Winona County Attorney Karin Sonneman about his wife’s connection to NES and asked her whether it was a conflict of interest. Sonneman said it was fine, Hebert stated. Sonneman said that Hebert never talked to her about the issue, and that if he had, she would not have told him it was fine.

In April, the County Board hired a private law firm to investigate the situation. The firm’s report accused Hebert of being untruthful, and in May, the County Board fired him for gross misconduct. That alleged untruthfulness was why the board voted to fire Hebert, commissioner Marcia Ward said in interviews afterward.

According to Hebert’s lawyers, when government employees are fired for alleged misconduct, they have a constitutional right to a “name-clearing public hearing” to publicly share their side of the story. Hebert asked for such a hearing after he was fired, and county staff scheduled one, but then cancelled it and never held one. Hebert’s lawyers claim the county’s failure to hold that name-clearing public hearing violated Hebert’s due process rights.

Hebert's attorneys also claim that the County Board’s decision to fire Hebert was discriminatory. Even though Ward said Hebert was fired for lying, the evidence shows that the County Board fired him because his wife worked for NES, they asserted. Firing someone because of their spouse’s employment constitutes marital status discrimination, the attorneys argue. Hebert made this claim himself right after his termination when he filed a discrimination claim with the Minnesota Department of Human Rights (DHR). He later dropped it to pursue the civil lawsuit, but it became an important point in the case this spring, when Hebert’s attorneys filed another charge against the county: First Amendment retaliation.

According to Hebert’s attorneys, Assistant Winona County Attorney Susan Cooper testified in depositions that the reason Winona County did not hold a name-clearing public hearing was because Hebert filed a discrimination complaint with the DHR. “You can’t not hold a hearing just because someone files a complaint,” said Erick Kaardal, Hebert’s attorney in the case. The U.S. Constitution’s First Amendment protects free speech, and prohibits employers from terminating employees or retaliating against them in other ways because of complaints by the employee. Cooper’s testimony indicates that the county violated the First Amendment and retaliated against Hebert for filing a complaint with the DHR, Kaardal stated.

Kaardal said that his firm is ready to negotiate a settlement or take the case to trial, depending on what the county wants to do. “We really think we’re going to do well, but it’d be better to resolve it amicably if the county is ready,” he said.

“I think my clients are always open to talking about a reasonable settlement,” said the county’s attorney in the case, Dyan Ebert of the St. Cloud-based Quinlivan & Hughes law firm. However, Ebert said she was not free to talk about what sort of settlement the County Board would consider reasonable.

Ebert plans to ask Judge Bowbeer later this summer to throw out all of the charges brought against the County Board. “I am hopeful that they will all be dismissed,” she said. If that happens, there will not be anything left to settle.

Ebert explained that the discussion of a possible settlement conference was something Bowbeer requested, not a proposal Ebert and Kaardal made to the judge. “We were supposed to talk to our respective clients to see if there was interest in setting up an settlement conference,” she said.

Kaardal also indicated that the two parties are a long way from actually hashing out a settlement deal. “We’re talking about possibly meeting to talk about a possible settlement,” he said.

Judge Bowbeer plans to schedule a date for a possible settlement conference by the end of the month.

Hebert’s lawsuit hung over the County Board this spring as it discussed purchasing electricity from local solar power plants or “solar farms.” New County Board member Marie Kovecsi said the county should consider installing its own rooftop solar arrays as an alternative to buying power from solar power plants. “I would like to finish a lawsuit before we start down that path,” Ward responded.

Hebert has gone on to work for NES as its chief operating officer. He signed letters to the County Board this spring regarding NES’ recently approved permit for a small solar farm outside of Ridgeway. The county imposed a 25-year expiration date on that permit — a limitation that it did not make on the county’s two other solar farms. Kovecsi and commissioner Greg Olson questioned whether the County Board was treating NES fairly under the law with that provision, but another NES representative told them it was not a problem.

 

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