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Erickson v. City of Orr9/20/2005
Appellant challenges summary judgment in favor of respondent. Because we conclude there are genuine issues of material fact as to whether appellant was terminated in violation of the whistleblower law for refusing to violate the Data Practices Act, we reverse and remand on that matter. But because we conclude that there are no genuine issues of material fact regarding whether appellant was terminated in violation of the whistleblower law for participating in a state investigation or for reporting allegedly illegal activities to the city officials or the state auditor, we affirm summary judgment on those matters.
FACTS
Appellant Sherry Erickson began working as the city clerk and treasurer for respondent City of Orr (city) in October 2000. She was an at-will employee. During her employment, appellant raised concerns about improper activity.
First, in May 2001, appellant informed the private firm that audited the city's books that the city administrator was buying fuel for his airplane from the city for only 50 cents per gallon over the cost of the fuel. In their 2001 audit report, the city auditors stated that "the City has allowed employee discounts for various items purchased through the City . . . . In order to prevent noncompliance with conflict of interest statutes, we strongly suggest the City discontinue these policies immediately." Appellant also informed the city council of the matter in 2001. When the city auditors were performing the audit for 2002, appellant told them that the illegal employee discounts were continuing. The audit report for 2002 stated, "Council minutes indicated the City upheld the discount policy. In order to prevent noncompliance with conflict of interest statutes, we strongly suggest the City discontinue these policies immediately." Because the city administrator was on a leave of absence, in December 2002 the city council appointed appellant to be the city administrator on an interim basis from January 1, 2003, through June 30, 2003. As the interim city administrator, appellant terminated the employee discounts in June 2003.
The next matter arose in the summer of 2001, when the city administrator and mayor contracted for satellite television service for the city's municipal liquor store, using the name of a fictitious individual in order to obtain lower rates. In the spring of 2002, appellant informed the city auditors of this practice. In the fall of 2003, the satellite television company discovered that the service was being used by the liquor store, cancelled the service, and issued a refund check for $110.96, payable to the fictitious name. The city council asked appellant, as city treasurer, to cash that check on behalf of the city, but appellant refused. The refund check was never cashed.
In 2003, the city council designated appellant as the city's data-practices-compliance officer, pursuant to Minn. Stat. § 13.05, subd. 13 (2004) (Data Practices Act). As the data-practices-compliance officer, appellant was required to provide public information to the public upon request. Minn. Stat. § 13.03 (2004).
Appellant generally received positive comments on her performance reviews. In January 2004, council members told her, "There's no doubt about your job performance, it's great." But also at that January review, appellant was questioned why requests for information about pull-tabs at the municipal liquor store were processed so quickly. On March 12, 2004, at a city council meeting, appellant was again questioned by council members as to why the public received information so quickly. On March 18, 2004, the Duluth News Tribune published a front-page article regarding an investigation of the city adm
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