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  Friday October 24th, 2014    

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Hebert may sue county over termination (05/12/2014)
By Chris Rogers
County Board to ponder replacement plan

Even as a potential new legal battle looms over its decision to fire former Winona County Administer Duane Hebert for gross misconduct in connection to a controversial solar project, the County Board will embark Tuesday on the weighty process of deciding who will replace him. Hebert called his firing "unlawful" in an emailed press statement and said he might sue the county over it. The board is expected to name an interim administrator Tuesday and discuss potential changes to the administrator's job description.

Cliff Kaehler said his family's solar company will continue waiting for more information to be released before deciding whether to follow through on threats of legal action against the county.

In an interview, Commissioner Greg Olson called Personnel Director and Assistant County Administrator Maureen Holte his "first choice" for interim administrator. Holte filled in for Hebert during the five weeks he was on paid leave. Olson commented, "I think that we have a very talented and respectable assistant administrator that can handle the position in the interim."

When asked if Holte was the only option for interim administrator, commissioner Steve Jacob noted that there are others who could serve in the role.

Board Chair Marcia Ward praised Holte's work as de facto administrator thus far and said, "I don't know if we are going to make a different appointment or use her in her current role."

Whoever serves as interim administrator, the county will likely seek both internal and external applicants for the full-fledged administrator position. When the time comes to winnow the list of applicants for top executive, municipalities sometimes enlist outside consultants that specialize in executive searches, as the Winona Area Public Schools district did before selecting its new superintendent and as Winona County did when it hired Hebert.

Olson said he supported such a process. Asked if she agreed, Ward said, "It's an option," and noted that such search firms charge high fees.

Hebert: lawsuit possible

Hebert was fired after the release of an investigation concluding that he failed to disclose information about the connection his wife had to the solar company vying for the project, owned by the family of former county commissioner Mena Kaehler, who is also solar company CEO Cliff Kaehler's mother. Hebert's wife worked for the Kaehler family's solar company, Novel Energy Solutions (NES), and is about to become a part-owner. Investigators' interviews asserted that Hebert's wife was already a part-owner in fall 2013, that Hebert knew about the Kaehlers involvement in the project, that he made false statements about whether he disclosed his potential conflict, and that he falsely claimed he received an opinion from the county attorney stating he had no conflict of interest.

In a press statement issued Wednesday evening, Hebert called the board's action "unlawful," suggested that the board broke its contract with him, and pledged to "take appropriate action to address this grievous injustice and rectify the wrongs that have been perpetrated." In an interview he said, "What they have done to me is taken away my livelihood and ruined my career." He added, "They're taking it away without even giving me the decency of defending myself." Hebert stated that he is working with his attorney on how to respond and that "there is not a single option that is off the table at this point," including a lawsuit.

Hebert said he was not provided proper notice of closed meetings regarding allegations against him. County officials have said that Hebert was given a chance to be present at all of the meetings in which the board discussed him and that he did not request to be present.

Hebert was effectively an "at-will" employee who could be terminated at any time. Normally, he would receive nearly $60,000 in severance pay and six months in benefits upon termination. However, his contract exempts the county from paying the severance package if he is fired for malfeasance or gross misconduct.

Kaehler, Hebert: report skewed, Sonneman's role ignored

The report made by investigators was not the full story, stated Hebert and Cliff Kaehler, Mena Kaehler's son and CEO of NES. Both Cliff Kaehler and Duane Hebert maintained that Hebert's wife, Theresa Hebert, is not yet a part-owner of NES. According to the report, former NES employee Chris Gamer told investigators that Theresa Hebert was a part-owner as early as the fall 2013.

Hebert called the investigation a "rigged 'review' rife with errors, omissions, misstatements." He commented, "A complete investigation would have involved following up with all the people necessary to verify the statements made. The only company personnel who was interviewed was a disgruntled ex-employee."

"It's frustrating that the report includes hearsay that is unreliable," agreed Cliff Kaehler in an interview. The investigation "never produced documents corroborating what people were saying" and it was "very suspicious that NES was never interviewed," he said.

Kaehler pointed out that the firm was hired by the County Board and therefore not truly independent. He said of the firm's relationship to the board, "If you're representing someone, your job is not to prepare a report, it's to prepare a defense." Hebert agreed, calling the probe and his placement on leave a "brilliant" but "underhanded" way of defending the county from a potential lawsuit from NES.

"It's misleading when you leave out several key documents," Kaehler said. "If you let me cherry-pick documents I could make any argument that I want. For example, I could prove Santa Claus [is real] by saying, 'Hey, there are presents under the tree every Christmas morning' … It's as if I release all this documentation about presents there, but leave the emails that say that 'oh, here's my mom and dad talking about when they're going to put [the presents] out there." While Kaehler said he would consider releasing some of the documents to the Winona Post he said are missing from the investigation, he did not provide them by press time Friday.

Kaehler said that Sonneman misled NES during contract negotiations by asking the company's lawyers to make amendments to a draft contract for the solar project just before signing an exclusive, albeit non-binding, agreement for the project with a competitor.

The county's report indicated that Sonneman and Morse gave NES plenty of notice that its proposed contracts were not satisfactory. Kaehler disputed that in a written statement, asserting that apart from one email in which Sonneman insisted on additions of "legalese" to the contract, NES had no indication that the county was displeased with the deal. "NES can also provide emails indicating that we knew it wasn’t up to final legalese standards and said we would do whatever is necessary to get it there," Kaehler added.

Investigators concluded that Morse and Sonneman did not mishandle relations with NES, but that they determined that doing business with the company was unwise because of its lack of experience and because of "Mr. Kaehler's increasing aggressiveness."

Much of paper trail not released

Both sides of the solar project controversy assert that the documentation supports their view; however, much of that documentation has yet to be released. On March 31 and April 2, the Winona Post made data requests for documents pertaining to the solar project and resulting fallout. Thus far, Winona County has yet to fulfill those requests.

The Winona Post submitted a series of questions regarding the solar project to county officials on April 4. In a recent interview, county officials acknowledged they would likely not respond to the questions.

Through a data request of their own made early in the year, the Kaehlers received numerous county emails relating to the solar project. They expressed interest in releasing select emails to the Winona Post, but have not yet done so. 

 

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