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Do professional individuals who temporarily leave their jobs in order to faithfully serve our nation overseas deserve to re-assume their positions once their tours of duty are over? I assume most readers would say yes, but guess what the majority of the Orange City Council thinks? The answer may befuddle you, as it does Navy Reserve Captain Michael Merino.
Mr. Merino, an architect by trade, served on the city’s Planning Commission. He has also served in our military for 25 years, having been deployed overseas five times. His most recent deployment occurred during 2011-2012 when he was called to duty at Guantanamo Bay as an engineer. In a recent Frank Mickadeit column, Merino made his intentions clear regarding his civilian position in an email to the city: “Please accept this correspondence as my formal request to take a leave of absence from the planning commission on a temporary basis until my return from military service”. He also sent a letter to Councilman Denis Bilodeau stating, “I reserve the right, in accordance with the federal protections and provisions accorded military personnel, to reassume my position on the commission.” Everything seems clear, right? Maybe to us, but apparently something was lost in translation to the other four Councilmembers.
Merino returned home in October 2012 and informed Bilodeau he sought to re-assume his former position. Bilodeau, the lone voice on the council who supports Merino’s request, found the matter had somehow been stymied by messy internal politics. On November 12th, the Council decided to deny Captain Merino his former on the Planning Commission seat. Mayor Tita Smith said she didn’t want Merino reappointed. The matter could have been discussed further under a motion from Bilodeau but the other three council members failed to second it. Naturally, Merino was confused by the council’s treating him as nothing more than an ex-employee: “I’m very disappointed that the council isn’t recognizing the fact that I did this (deployment) on an involuntary basis… The whole thing is strange and smacks of weirdness that I don’t understand.”
Veterans are protected from employment discrimination by federal legislation known as USERRA – the Uniformed Services Employment and Reemployment Rights Act. In addition to USERRA, there are various state and local laws and ordinances that increase this protection depending upon the area of the country. There are several barriers to reemployment under USERRA. They are as follows:
- employer’s circumstances have changed and reemployment is unreasonable. (A rationale for this would be if the position the veteran held had been eliminated due to budget cuts. Hiring someone in the veteran’s place does not qualify as a reason for this).
- Assisting the individual in becoming qualified for reemployment would be an undue hardship (i.e. veteran had significant injuries and can no longer perform the job).
- The position held prior to military service was for a brief, non-recurrent period with no reasonable expectation that employment would continue indefinitely.
Based on this information, it appears that the city council would only be able to argue for the third reason. Since this was an appointed position with an expiration date on the term, this situation may fit this criteria. Based on my analysis, it would come down to the process of Mr. Merino leaving.
- Did Mr. Merino indicate in writing his impending deployment?
- Did Mr. Merino also indicate his desire to resume his position upon his return?
- Did the city accept this petition without providing any qualifications on its acceptance (i.e. the petition is accepting but only for the existing term of the appointment)?
If the answers to all of these questions are yes (and, it does appear that the answers are all a resounding yes), then it appears that Mr. Merino would merit the reappointment of his position.
What were the stated reasons for the council’s backhanded rejection of a returning service member? Mayor Smith babbled out four reasons, each of them lame in their own way: First, she explained that the council now had two new members since it received Merino’s letter while he was deployed. (If the makeup of a council changes, does this mean it has no obligation to honor past commitments?) Second, Merino’s term had expired. (Since this is an unelected position, does this mean he’s fired?) Third, Smith said that the law requiring veterans to get their former jobs back doesn’t apply to political appointments – a technicality if there ever was one, it’s not like Merino wants to be Governor! And Smith’s last dubious reason was “Five years for a planning commissioner is a long life.” Boy it would stink to work for her if she ran a company… once you’ve done your job for four and a half years I guess you better dust off that resume!
Bilodeau, the Council’s one voice of reason on the matter, quickly pointed out that Smith herself had served 13 years on the Planning Commission, then got the word out to media outlets and veterans groups, who were naturally quick to pick up on this outrage. What of those other council members who quietly allowed Mayor Smith to have her way?
Councilman Mark Murphy sheepishly said he supports the Mayor’s prerogative. Councilman Mike Alvarez stated he didn’t like how Bilodeau was trying to “force” Merino back onto the commission… how it is that wanting to honor past commitments is using “force” I leave to your imagination. Councilman Fred Whitaker seems to have an axe to grind with Merino, denigrating him as “not a very good planning commissioner” and “overly bombastic with the way he deals with people”… oddly, no one else made any mention of job performance and even if that were the case, it would be a separate issue from what’s going on here.
Bilodeau himself thinks that an unstated motive may actually be at work here, believing that Merino would be seen as a political threat if he regained his seat on the Commission. Later, Merino, like several others in the past, may use that as a steppingstone toward running for a City Council seat. Nothing motivates a politician to do things like a person who may threaten their own position, despite Merino having said he isn’t going to seek higher office. He just wants his old job back, saying of the Council members who oppose him, “If somebody doesn’t feel like a veteran that’s sacrificed for their country is worth that deference, I guess that’s something they have to live with.”
One positive aspect of USERRA is that unlike most laws, it is very straightforward. Unfortunately, the one area that is somewhat left open to interpretation are situations dealing with a position with a finite term, such as this. In this situation, it may actually take a court case to determine the application of the law. There are a number of avenues available to Mr. Merino for remediation of the alleged violation to his USERRA rights. The Department of Labor, through the Veterans’ Employment and Training Service (VETS), will provide assistance in filing a claim in this matter. If the subsequent investigation does not resolve the situation, Mr. Merino may have his claim referred to the Department of Justice for consideration of representation in the U.S. District Court, at no cost to the claimant. This would provide for the final ruling in the matter.
As far as public sentiment, there is certainly a strong public support for veterans throughout the country. We should make certain each and every generation of our HEROES can transition to civilian life and ensure that the rights and benefits they fought for, for you, fought for with their lives over the course of generations, are upheld for them.
BTW: CITY COUNCIL AND MAYOR OF IRVINE
About that GREAT PARK, which you have fought and spent so much money to make into your legacy – have you forgotten that this park used to be our heroes’ military base, their home.
I believe it is very important for us to realize and respect that our men and women fought and died for this Country. We should be considering a MEMORIAL in memory and honor for all that have served.