Court of Appeals Opinions 3.3.09

The Court released an unpublished opinion in Lohse v. City of Oak Grove.  Oak Grove fired Ms. Lohse, a non-union, at-will employee.  Thus, she falls into one of the few categories of public employment that is still governed by common law: with no union contract (and thus no aribtration) and no “for cause” provision in a contract or city policy (which would giver her independent review rights under 179A.25), her only recourse is to petition the Court of Appeals for certiorari review.  Though the City prevails here courtesy of the highly deferential standard of review, the opinion is troubling in one respect:  the Court found that the City “waived” its right to claim Ms. Lohse was an at-will employee because “respondent did not present this argument below” and the City Council did not “base its decision” on the at-will status.  Maybe this can be addressed by simply referring to “at-will” as a reason supporting a Council’s finding, but if it’s not (and does anybody want to be the city that finds out?), the choices seem to be hold a hearing and waive “at-will,” or refuse to give any process at all to keep “at-will.”  This would seem to be impossible choice if you have to deal with a long-term employee.

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