The Veterans Preference Act Is a Public-Employment Discharge Statute: Two Grounds for Removal, a 30-Day Clock, and a Waiver That Takes the Rest of Your Remedies With It

This is a public-employment page

Everything below is about jobs with the State of Minnesota and its political subdivisions. Minnesota’s Veterans Preference Act does not tell a private employer whom it may fire, and a veteran working in the private sector gets nothing from § 197.46. Read was my firing illegal for the statutes that do reach private employment.

Inside public employment, the Act does something the at-will default does not: it converts an at-will position into one that can be ended only for two named reasons, and only after a hearing on written charges.

The sentence that carries the protection

Minn. Stat. § 197.46(a):

Any person whose rights may be in any way prejudiced contrary to any of the provisions of this section, is entitled to a writ of mandamus to remedy the wrong. After any initial hiring probationary period expires, no person holding a position either in the state civil service or by appointment or employment in any county, home rule charter or statutory city, town, school district, or any other political subdivision in the state who is a veteran separated from the military service under honorable conditions, shall be removed from the position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.

Six conditions sit inside that. The employer must be governmental. The initial hiring probationary period must have expired. The person must be a veteran as the statutes define the word. The separation from military service must have been under honorable conditions. The ground must be incompetency or misconduct. And the ground must be “shown after a hearing, upon due notice, upon stated charges, in writing” — four requirements in one clause, of which the writing requirement attaches to the charges.

“Veteran” is not left to ordinary usage. Section 197.447:

The word “veteran” as used in Minnesota Statutes, except in sections 136F.28, 196.21, and 243.251, means a citizen of the United States or a resident alien who has been separated under honorable conditions from any branch of the armed forces of the United States after having served on active duty for 181 consecutive days or by reason of disability incurred while serving on active duty, or who has met the minimum active duty requirement as defined by Code of Federal Regulations, title 38, section 3.12a, or who has active military service certified under section 401, Public Law 95-202.

The active military service must be certified by the United States secretary of defense as active military service and a discharge under honorable conditions must be issued by the secretary.

Thirty days, and a waiver that reaches past the hearing

Paragraph (b) is where these cases are won and lost:

Any veteran who has been notified of the intent to discharge the veteran from an appointed position or employment pursuant to this section shall be notified in writing of the intent to discharge and of the veteran’s right to request a hearing within 30 days of receipt of the notice of intent to discharge. The failure of a veteran to request a hearing within the provided 30-day period constitutes a waiver of the right to a hearing. The failure also waives all other available legal remedies for reinstatement.

Three separate obligations are packed into the first sentence, and they run against the employer: notify in writing, notify of the intent to discharge, and notify of the right to request a hearing within 30 days of receipt.

The request itself has a form. It “shall be made in writing and submitted by mail or personal service to the employment office of the concerned employer or other appropriate office or person,” and it “must also contain the veteran’s election to be heard by a civil service board or commission, a merit authority, or an arbitrator as defined in paragraph (c).” § 197.46(b). If the veteran does not choose, the choice moves: “If the veteran fails to identify the veteran’s election, the governmental subdivision may select the hearing body.” Id.

What happens if the employer says nothing

This is the question Young v. City of Duluth, 386 N.W.2d 732 (Minn. 1986), answers.

A city employee and covered veteran received a letter saying his job was eliminated and he would be laid off. The letter said nothing about veterans preference rights. The district court found he knew about those rights anyway, had considered demanding a hearing inside the statutory period, and “deliberately declined to do so for personal or strategic reasons,” and held the employer’s failure immaterial. Young, 386 N.W.2d at 735. The Supreme Court disagreed, at 738:

This ruling in effect places a burden on veterans to prove not only that their public employer failed to give them notice upon the termination of their employment or upon the abolition of their position, but also that they were, in fact, not aware of their preference rights under the Act. Such a burden of proof is not present in the Veterans Preference Act, and we decline to read it into the statute. Under the Act, if no notice is given to the veteran, no time limitation for the commencement of a hearing or writ of mandamus begins to run. It is immaterial whether a veteran is aware of his or her preference rights under the Act.

Abolishing the position is a third ground, and it has to be real

Young traced the good-faith rule to Boyd, quoting it at 737 for the proposition that removal statutes “do not prevent [municipal officials] from terminating the employment of an appointee by abolishing the office or position which he held, if the action abolishing it be taken in good faith for some legitimate purpose, and is not a mere subterfuge to oust him from his position.” Young, 386 N.W.2d at 737 (quoting Boyd, 155 Minn. at 141–42, 193 N.W. at 32). And it quoted State ex rel. Niemi v. Thomas, 223 Minn. 435, 27 N.W.2d 155 (1947), at 737–38, on what a sham looks like: “Of course, the village council could not, under the pretext of abolishing the position, continue it under some other name. There would have to be a real, not a sham or pretended, abolishment.”

The last sentence of the majority opinion’s analysis is the one a public employee in a budget year should read twice, Young, 386 N.W.2d at 739: “Thus, veterans have a preference over nonveteran employees less senior than they to continue to perform duties for which they are qualified if the public employer continues to need such duties performed.”

Who hears it, and how the arbitrator gets picked

Paragraph (c) does two things. Where the governmental subdivision has a civil service board or commission or a merit system authority, the veteran “may elect” to be heard there or before an arbitrator. Where none of those exists, “the hearing shall be held by an arbitrator.” The selection procedure is spelled out:

In cases where a hearing will be held by an arbitrator, the employer shall request from the Bureau of Mediation Services a list of seven persons to serve as an arbitrator. The employer shall strike the first name from the list and the parties shall alternately strike names from the list until the name of one arbitrator remains. After receiving each of the employer’s elections to strike a person from the list, the veteran has 48 hours to strike a person from the list. The person remaining after the striking procedure must be the arbitrator.

Seven names, the employer strikes first, and the veteran’s response window is measured in hours. That machinery replaced a three-person board — one appointed by the subdivision, one by the veteran, and a third chosen by those two — in Laws 2016, ch. 189, art. 13, § 55.

Costs fall on the employer; attorney fees do not, unless the veteran wins. Paragraph (e):

For disputes heard by a civil service board, commission or merit system authority, or an arbitrator, the governmental subdivisions shall bear all costs associated with the hearing but not including attorney fees for attorneys representing the veteran. If the veteran prevails in a dispute heard by a civil service board, commission or merit system authority, or an arbitrator and the hearing reverses the level of the alleged incompetency or misconduct requiring discharge, the governmental subdivision shall pay the veteran’s reasonable attorney fees.

Read the fee condition exactly: it is not “if the veteran wins,” it is “if … the hearing reverses the level of the alleged incompetency or misconduct requiring discharge.”

Either side may then go to district court. Paragraph (d) sets two clocks that run together: written notice of appeal “stating the grounds of the appeal, to be served upon the other party within 15 days after notice of the decision,” and filing “the original notice of appeal with proof of service in the office of the court administrator of the district court within ten days after service thereof.”

Two enforcement routes, and neither one cancels the other

The Act names a writ of mandamus in its first sentence. A separate section, enacted in 1973, creates an administrative route: § 197.481, subd. 1, lets a veteran “who has been denied rights by the state or any political subdivision, municipality, or other public agency of the state as authorized by the Veterans Preference Act under section 43A.11, 197.46, 197.48, or 197.455” petition the commissioner of veterans affairs “for an order directing the agency to grant the veteran such relief the commissioner finds justified by said statutes.”

The City of Duluth argued in Young that the 1973 section had taken these claims out of district court. The Supreme Court held it had not, at 737:

It is evident from the language of the Act that the legislature intended to allow veterans to enforce their rights by either petitioning for a writ of mandamus under section 197.46 or by requesting an order from the commissioner under section 197.481. The newer administrative procedure, section 197.481, is permissive …. The legislature could not have intended for this procedure to be exclusive. Moreover, the language granting a right of mandamus was not repealed when the administrative enforcement section was enacted.

The administrative route has its own machinery, and some of it favors the veteran. The petition must be mailed and must contain five things, including “a concise statement of the facts giving rise to the veteran’s rights and a concise statement showing the manner in which rights were denied” and “a copy of the veteran’s Form DD214 (Separation or Discharge from Active Duty).” § 197.481, subd. 1. The commissioner “shall schedule a hearing on the petition of any party to be held or conducted within 120 days of serving, or being served with the authorized and complete petition.” Subd. 4. “The affected political subdivision must bear all costs incurred by the commissioner under this section.” Subd. 5. And if the veteran wins and the other side appeals or attacks the decision, “the commissioner shall become a party in such appeal or action and with the aid of the attorney general represent the veteran therein.” Subd. 7. Noncompliance with a final order sends the commissioner to Ramsey County District Court. Subd. 8.

On the judicial side, the Supreme Court has treated a § 197.46 mandamus action as an ordinary civil case for procedural purposes. Schiltz v. City of Duluth, 449 N.W.2d 439, 440–41 (Minn. 1990), read Minn. Stat. §§ 586.08 and 586.09 — pleadings “construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action,” and an appeal “as in other civil cases” — and held “that since the legislature has indicated its intention that these matters are to proceed as other civil cases, a motion for a new trial in mandamus proceedings is authorized and appealable.” Both sections read the same way in the posted 2025 Minnesota Statutes, and § 586.09 carries something a reader should not miss: “A plaintiff who is given judgment, shall recover the damage sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay.” The writ is not purely an order to reinstate.

Where the Act sits against a union contract

For a state classified employee, § 197.455, subd. 1(b), forces a choice and makes it stick:

Sections 197.46 to 197.481 also apply to a veteran who is an incumbent in a classified appointment in the state civil service and has completed the probationary period for that position, as defined under section 43A.16. In matters of dismissal from such a position, a qualified veteran has the irrevocable option of using the procedures described in sections 197.46 to 197.481, or the procedures provided in the collective bargaining agreement applicable to the person, but not both.

The same paragraph adds that for a veteran electing the statutory route, “the matters governed by those sections must not be considered grievances under a collective bargaining agreement,” and that electing the statute precludes “an appeal under the grievance procedure of the collective bargaining agreement.” Paragraph (c) extends the same rights and protections to local-government veterans and confirms that a local employer “may require a veteran to complete an initial hiring probationary period.”

Two more provisions give the Act unusual weight against other law. Section 197.48: “No provision of any subsequent act relating to any such appointment, employment, promotion, or removal shall be construed as inconsistent herewith or with any provision of sections 197.455 and 197.46 unless and except only so far as expressly provided in such subsequent act,” and any later-adopted inconsistent city charter provision “shall be void to the extent of such inconsistency.” And § 197.46(f) makes compliance a duty of every officer and employee “notwithstanding any laws, charter provisions, ordinances or rules to the contrary,” with a criminal tail: “Any willful violation of such sections by officers, officials, or employees is a misdemeanor.”

What this page does not do

This page describes a statute and two Supreme Court decisions applying it. It does not tell you whether a particular position is inside the Act, whether an abolition was in good faith, or whether a notice you received satisfied paragraph (b) — and the notice question decides the timing question, which decides everything else. Note the asymmetry the statute creates: the employer’s failure to give notice stops the clock entirely under Young, while the veteran’s failure to answer a proper notice inside 30 days waives the hearing and, by the statute’s own words, “all other available legal remedies for reinstatement.”

Related: was my firing illegal, public employees and whistleblowing, and courts, agencies, and who decides what.