Legal tensions are ratcheting up between Winona County officials and former county administrator Duane Hebert. A planned "name-clearing public hearing" for Hebert was cancelled late last week, and Hebert renewed claims that he was kept in the dark about allegations against him and that the county violated his "due process rights." He described his firing as "wrongful termination" that did "significant damage to my reputation, my family's reputation, and to my family's livelihood," in a letter to the board.
Hebert was fired for alleged gross misconduct after a unanimous vote of the board on May 6. Allegations of gross misconduct stripped him of nearly $60,000 in severance pay and six months of benefits outlined in his contract. An outside law firm hired by the County Board conducted an investigation that alleged Hebert had made false statements about when he had disclosed that his wife worked for and was a part-owner, or was about to become a part-owner, of a solar company that was pursuing a project to install solar panels on the roofs of county buildings. The investigation concluded that Hebert shared that information with the full board and filed an official conflict of interest disclosure form on the same day that the solar company — owned by former county commissioner Mena Kaehler's family — threatened legal action against the county. The investigation also alleged that Hebert falsely claimed that County Attorney Karin Sonneman had given her legal blessing that his wife's connection to the solar project was a nonissue months before he actually disclosed her relationship with the company.
Hebert threatened to sue the county after he was terminated in early May. This month, Hebert requested a public hearing to present evidence, call witnesses, and share his side of the story. Early last week, Interim Administrator Maureen Holte and County Board Chair Marcia Ward scheduled a hearing for this Tuesday. However, just a few days after scheduling the hearing, Holte and Assistant County Attorney Susan Cooper — who has handled the county's legal response to the solar controversy and Hebert's firing — decided to cancel it, according to Ward. Ward said she did not know why the meeting was cancelled and was a little puzzled herself, but noted that midway through last week Cooper had not completed all of the legal research she needed to prepare for the hearing. "There must have been something [Holte and Cooper] were not comfortable with," Ward said. Holte and Cooper were not available for comment.
Ward added, "There were some reservations about Mr. Hebert's tone with the whole thing." Ward explained that Hebert's assertions that the board violated the law and that this hearing would be his chance to demonstrate that, "really sent some red flags up." Hebert had a chance to make his case before being fired, she said. "With his tone and his saying these things, why would we grant him that? He was given opportunity [to make his case] during the whole process and he did not," Ward said. Pointing to Hebert's comments about calling witnesses and presenting evidence, she stated, "This is not a trial."
There are also questions about whether the county owes Hebert a post-termination hearing. Ward said that when Holte first contacted her about scheduling the hearing, Ward assumed it was necessary. Now, however, Ward said she has questions about whether the county is required to honor Hebert's demand for a hearing.
"I was surprised that when he made a demand, [the hearing] was on the agenda right away, because it didn't work like that when I was on the other end of county litigation," commented Commissioner Steve Jacob, who won a court battle against the county after former planning staff improperly blocked his permits for years.
"If we needed to schedule this, it should have probably gone the agenda of a full board meeting and we should have discussed it," Ward reflected. "It seems like we were reacting quickly."
Ward and Jacob agreed that the county should be cautious about conducting a hearing. "Mr. Hebert tries to manipulate information to his advantage," Ward alleged.
"I think this is much more about Duane Hebert trying to catch the board faltering on process than it is about the facts of the case," commented Jacob. "Because I can't imagine he would want the facts of this case in the spotlight again."
If Hebert has his hearing, that still will not change the findings of fact reached by the investigation, Ward said. "The facts are the facts;" everyone can read the report and interpret it themselves, she added.
Commissioners Greg Olson, Jim Pomeroy, and Wayne Valentine were not immediately available for comment.
Hebert: no chance to defend myself
Hebert and county officials dispute whether Hebert was properly notified of the allegations against him or given the proper opportunity to speak on his own behalf.
"You can't just fire someone without giving them an opportunity to be heard," Hebert said. "Since I was never notified of what I was being charged with at all, I was never given an opportunity to speak in front of the board."
County officials have said that Hebert did have an opportunity to be heard, that he was invited to attend meetings about the situation, but declined to attend. The meetings were closed, but his attendance would have triggered an open meeting.
Hebert said that he received notices of closed meetings regarding the solar project, but that he was never invited and that he never knew there were charges against him or plans to fire him. That, he said, violated his due process rights.
Minnesota Statutes section 375A.06 specifies that county administrators have the right to "demand written charges and a public hearing on the charges before the County Board prior to the date when final removal takes effect." Whether that statute gives Hebert any right to demand a public hearing after the fact is unclear.
Also at question is what duty the county had to notify Hebert of the allegations against him. According to the Department of Labor and Industry, state law does not require advance notice of termination. Neither does Hebert's contract. He argued, however, that section 375A.06 implies a right to notice of charges and pending termination. After all, what good is a right to demand written charges and a public hearing if you do not have a right to know that charges exist, Hebert wondered. "I have to be aware that there are charges against me before I can even demand the charges. I wasn't aware of anything before I was terminated," he said. The right to respond to allegations against you is imbedded "in every concept of due process from the U.S. Constitution down to the state constitution," he added.
When asked if being placed on administrative leave around the same time as the Kaehler solar firm made legal threats and he announced his connection to the project set off red flags that he might be the subject of allegations, Hebert commented, "Hindsight is 20-20." At the time, "there way no way I had any belief that there were charges against me," he said, noting that he was not directly involved in the solar project.
Hebert pointed out that exclusive Winona Post reports revealed that the County Board had been talking about firing him early on in the investigation, a month and a half before its vote to terminate him. From the very beginning, "they were looking for a way to fire me without six months severance [pay]. That was their end point and that's what they did," he said.
Hebert decried the substance of the report, as well, saying that it was "not even worth the paper it's written on." However, he declined to comment further.
He said he would wait to see if the county would honor his hearing request in a reasonable time frame before taking other actions.
"The citizens deserve the truth," he said. "If it is so easy for the County Board and the County Attorney, in this case, to take away the rights of one citizen, then the rights of every citizen in the county [are] at risk."
"Think of the people in the report that [Hebert] tried to wrong," Ward said, when asked if she sympathized with Hebert. Hebert contradicted the statements of numerous county officials during the investigation, she noted. "He wronged me, he wronged Karin Sonneman, he wronged Jason Gilman. Who else got interviewed and said, 'No he didn't tell me [his wife worked for the Kaehlers]?'" Referring to a press release in which Hebert accused Sonneman of "manipulating the system to make me the scapegoat, Ward continued,"He really tried to throw her under the bus. This is not the first time he's done this in his professional history," referring to a successful civil suit from Hebert's time as Barron County administrator, during which a terminated employee sued him for violating a severance agreement not to make disparaging remarks about the employee.