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Discrimination or dishonesty? (07/21/2014)
By Chris Rogers
Winona County will be challenged in court over its termination of former county administrator Duane Hebert; it is only a matter of time. That was the message from Hebert's attorney, Erick Kardaal, late last week. The former county administrator was terminated for alleged gross misconduct in May by a unanimous vote of the County Board. Kardaal said he filed a claim against the county with the Minnesota Department of Human Rights (DHR) for unlawfully discriminating against Hebert because of his spouse's employment. Kardaal said he hopes the DHR will bring a case against the county, but if it does not, he will. A recent court decision suggests that firing an employee because of his spouse's employment even if it poses a conflict of interest would indeed be unlawful. However, an investigative report and the statements of some board members point to another reason: dishonesty.

"It was a lack of trust," County Board Chair Marcia Ward said when asked why the board fired Hebert. "The gentleman had not told the truth."

Hebert's wife worked as a bookkeeper for former county commissioner Mena Kaehler's family solar company. The solar company, Novel Energy Solutions (NES), was snubbed after seeking the contract for a county solar project. Tensions between NES and the county increased, until this March, when NES threatened legal action against the county. On the same day that a lawyer for NES demanded answers from the county and warned "the fallout from [the county's actions] will be substantial," Hebert filed a conflict of interest disclosure form and announced his wife's connection to the firm. "Purely coincidental," Hebert said of the timing in an interview this week. After Hebert was put on paid leave in late March, he stated that he had told numerous staff members and board members about his wife's connection much earlier. Hebert's statements about whom he told and when did not match up with the statements made by the people whom he claimed to have told, according to an investigation commissioned by the County Board. Some including Ward said that Hebert had, in fact, never told them about his wife's connection; others said that he told them months later than he claimed.

Hebert's and County Attorney Karin Sonneman's versions of events are the most starkly contradictory. Hebert claimed that he had told Sonneman about his wife's connection to NES and that she had given him an opinion that it did not pose a conflict of interest. Sonneman maintains that Hebert never told her and that she never issued an opinion. Both stories cannot be true. Citing the number of people who contradicted Hebert's other claims and a handwritten note Sonneman made in January when she heard about Hebert's connection to NES through other county staff the investigation, and ultimately the County Board, decided to believe Sonneman, not Hebert.

In an interview last week, Ward said, "We all make mistakes and all we have to do is move on, but, no, there was a fabricated story." If Hebert had been forthcoming, the issue of his alleged failure to disclose a potential conflict of interest "could have been easily overcome right from the get-go, or even after Novel [Energy Solutions] decided to potentially threaten litigation, but it didn't stop. He just kept that story going," she said. "It really wasn't the idea that his wife was working or not working or where she was working; it was the lie that led to my decision [to vote for firing Hebert]."

In a May interview, commissioner Steve Jacob said that Hebert was not terminated for failing to disclose his connection to NES. "In my view, he was terminated for lying about his disclosure," Jacob said. At the time of the firing, all of the board members declined to comment on the reason for the decision and simply referred to the report. Last week, commissioner Greg Olson said he was still heeding legal advice not to comment. Commissioners Wayne Valentine and Jim Pomeroy were unavailable when the Winona Post went to press.

Marital discrimination

The Minnesota Human Rights Act protects employees from being fired because of discrimination, including discrimination due to a spouse's identity or the actions of a spouse. Last summer the Minnesota Court of Appeals ruled that even if an employee violates a company's conflict of interest policy due to his spouse's position, it is discriminatory to fire the employee for that conflict. In such cases, if a company gives a legitimate reason for firing the employee, judges give the company the benefit of the doubt. However, a fired employee may still be able to prove that discrimination took place by offering evidence that a discriminatory sentiment was likely the true reason and the stated legitimate reason is merely a cover.

The argument that Hebert was fired because of dishonesty is just that, Kardaal argued. "There was no legitimate nondiscriminatory reason for terminating Mr. Hebert in the report," he asserted. "They're saying, 'Well he misinformed [us] or didn't tell the story right or there were some inconsistencies,' but that's not grounds for malfeasance or gross misconduct," Kardaal continued. "And further, even if they did state a legitimate nondiscriminatory reason for terminating him, it's undermined by the fact that their report is full of marital status discrimination."

He concluded, "Whatever they're saying, they're just saying that after the fact because they want to cover up that they violated the Minnesota Human Rights Act."

Hebert on firing, career, county politics

In an interview last week, Hebert shared his frustrations about the county's treatment of his termination. He noted that the County Board could have fired him with severance pay at any time for any reason, but they chose to fire him for alleged malfeasance with no severance pay. "If they truly just want a changing of the guard, there is a process for that," he said. "There was some other motive to spend all this taxpayer money on a bogus report," he added.

Hebert stated, "I have not been given the chance to defend myself to my executioners, basically." He requested a "name-clearing public hearing" last month. After waiting a month, he said he gave up on that request and filed the claim with the DHR. When asked why he had not already filed a lawsuit against the county, Hebert said that he had been waiting to receive communications and information through a public data request. The county has withheld the data, as allowed by state law when the requested information is about a pending lawsuit. If Hebert filed a suit, his lawyers could obtain that information through the discovery process. When asked why he had not filed a suit immediately so that he could obtain the information through discovery, he asked, "Why [should I]?" He explained, "What's been done has been done." However, if there is no resolution, at some point, legal action to obtain the information will be necessary, he said.

There have been significant changes in county policy since Hebert was terminated. Valentine and Jacob have championed increased board oversight and control by elected officials. Hebert said the board is turning the administrator into "a glorified clerk."

The county administrator is the CEO of a $40-million-plus operation, Hebert said. Referencing recent requests by Jacob and Valentine to strike the phrase "exercises independent judgment" from the administrator's job description, Hebert asked whether an administrator would need to contact all of the County Board members any time a problem arises. That could cause Open Meeting Law issues, he claimed, or worse, the administrator might only rely on the opinions of one or two of the board members to guide his actions. That, he said, circumvents democracy. "If we're going to circumvent that for some people's joy and power and control issues, now we've got a real problem."

Hebert commented, "Part of this is quite ironic." Part of the reason the County Board is getting more involved in managing the county is because of the NES solar project, Hebert noted. "The irony is, if I had been involved with the solar project as administrator, the County Board would have been fully informed of what was going on." Hebert was not directly involved in the project and said that he was largely unaware of its progress. He did spur department heads to address issues raised by Mena Kaehler after she contacted him, but said that he would do that for any citizen. The solar project proceeded further than the full County Board knew or had authorized because of the actions of other staff, Hebert said.

The Kaehlers have acknowledged that, at one point, they were interested in recruiting Hebert to work at NES. When asked if he was now working for NES, Hebert responded, "After over 20 years of giving up a fair degree of privacy by working in government, I am now going to take on what some citizens enjoy: some degree of privacy."

The Kaehlers have also said that Hebert's wife planned to become a part-owner in the company. When asked if his wife was now an investor, Hebert responded, "Please respect our right to privacy." He continued, mentioning that his salary was printed in local newspapers, "When I was working as a public servant the community had a certain right to know things about me. Now, they don't." 


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