*1 basically argues any The State state- complains

ments that Gary BASTIAN, Commissioner, the defense about are W. simply reiterations of witnesses’ state- interviews,

ments in formal which Industry, were Relator, viously dispute disclosed. There is no transcripts the State disclosed from those CARLTON COUNTY HIGHWAY argues

interviews. The State further DEPARTMENT, the defense made no motion for a continu- Respondent, complain preju- ance and thus now cannot dice. were, however, Appellant’s objections flatly Board, Respondent. Although overruled. no formal motion No. CX-96-733. made, continuance was the obvious motiva- objections tion for the was to obtain disclo- Appeals Court of Minnesota. continuing sure before with the trial. 5, 1996. Nov. problem appel The real here is that Jan. Review Denied way lant’s knowing counsel had no precise substance of the statements he was

complaining appel about. preju

lant’s contention that he cannot show

dice until he more about knows the substance Further,

of the undisclosed conversations. substance, knowing

without their the trial

court, too, speculate only could as to whether prejudicial.

the nondisclosure was We there

fore vacate the conviction and remand to the hearing

trial court for a at which the State

must disclose the substance the com

plained-of statements, exist, they if to enable findings

the trial court to make as to whether prejudiced defense was their nondis

closure.

DECISION subject

The conviction is vacated to rein-

statement the trial court after hearing which the substance statements is disclosed, findings made as to effect, prejudicial

their any. if

Vacated and remanded.

ty as an con- county, through struction worksite. The bidding process, selected a contrac- improve span tor to a three-mile contractor, highway. several *3 subcontractors, county, principal, and the project. in were involved county’s The involvement in the primarily through employees three who (1) participated varying degrees: in county a project representative spent who most of ev- (2) site; ery day at the an construction assis- highway engineer tant who visited the site week; per two or three times and county highway engineer spent who the ma- jority of his work in time his office and only periodically. princi- visited the site The pal responsibility employees of these was to project’s ensure construction work III, Humphrey Attorney H. Hubert Gener- county’s and materials conformed with the al, Gretz, Attorney Susan C. Assistant Gen- specifications. county highway engi- The eral, Paul, St. for Relator. neer, county’s agree- under the terms of the Ketola, general contractor, E. ment with the County Marvin Carlton also had Attor- Jr., ney, Ross, stop County James M. the construction in Assistant Carlton, Attorney, Respondent event that the contractor Carlton failed to correct a County Highway hazardous condition on Department. the site. The citations that the Commissioner issued WILLIS, P.J., Considered and decided county to the followed five incidents in which KALITOWSKI, and and LANSING JJ. equipment operated by employ- ees of the contractor and subcontrac- OPINION power tor came into contact with lines on the construction site. The first four incidents LANSING, Judge. 28, 1993, July occurred between 19 and and In opinion, a divided employee. involved a subcontractor’s None Safety and Health Review Board held that a injury, of those four in incidents resulted but county, highway construc- disruptions least three of them in caused project, improperly tion cited for OSHA electrical services. violations because it employ- did not have an The first pow- became aware of the er-employee relationship injured with the shortly er line strikes after the fourth inci- worker. We with the review board’s learning dent. After of the incidents from a violations, reversal of the cited but on an power company representative, the assistant ground: alternate that as a matter of law the county highway engineer gen- contacted the did not exercise a level of eral contractor’s foreman who reassured the authority over the worksite that would create engineer assistant that he had discussed the reasonable it would .that potential equipment opera- hazards with the vent or abate the hazard that resulted tor and that future strikes would not occur. affirm, citations. modify, but the review By equipment no presenting that time a dan- board’s decision.

ger power being line strikes was used on power side of same the road as the lines. FACTS occupational safety The contested power fifth The line strike occurred on 3, 1993, health citations were issued to August Carlton Coun- operated when backhoe ployer comply shall employees general contractor’s one of the area to assist power promulgated line returned and health standards rules in the mud and the backhoe stuck 182.653, bulldozer pursuant [the act].” power A with a line. came into contact added). (emphasis The act subd. employed by the worker who was employs “employer” person as “a who defines when he touched an electric shock sustained and includes one or more passed an electrical current the backhoe as hire, fire, person power to who has the power line. through it from the transfer, of, or who acts the interest or as citations for violations received of, representative an and includes * * * occupational of three political the state and all of its subdivi- (2) (re- 1926.20(b)(1), §§ lations: C.F.R. sions.” Minn.Stat. subd. safety programs regular inspec- quiring Industry has *4 1926.21(b)(2) (requiring by employers), tions statutory “employ- adopted definition of employees), safety for instruction regulations. er” in its Minn. R. 1926.550(a)(15)(i) (requiring operation of (1991). subpt. required to address We are of ten feet from outside a distance cranes “employer,” used in whether the term 50kV) (1993). than lines rated less electrical provisions, these was intended to allow occu- also received citations The pational safety and health citations to be for these violations. political of the state issued to subdivision its citations and the The contested exposed to haz- employees whose were not and, hearing, penalties, after a accompanying associated with the violations. ards the violations. The Com- an ALJ sustained Department of Labor and of the missioner agency’s interpretation of statu An Industry Occupational of the seeks review tory language be entitled to some Board’s reversal Safety and Health Review and the weight when it is technical nature decision; of that interpretation longstanding ap is of agency’s plication. Arvig Tel. v. Northwestern Co. ISSUES (Minn. Co., 111, 114 Tel. Bell N.W.2d Occupational I. the decision of the Is 1978). interpretation of an am agency’s An Safety Review Board or the deci- and Health general biguous regulation is administrative Department of the sion the Commissioner ly to considerable deference. Saint entitled Industry entitled to deference? Human Otto’s Home multi-employer II. Does the doctrine (Minn.1989). Servs., 35, 437 N.W.2d 39-40 of the responsibility allow the Commissioner in dispute agency parties whether Industry Department of Labor and to issue should defer is the terpretation to which we multi-employer on a citations to a interpretation or that of the Commissioner occupa- for violations the review board. regulations that have tional and health prin- from hazards to which the not resulted Court, Supreme when The United States employees exposed? cipal’s own were interpretations of conflicting presented with a level of III. Did the exercise occupational safety and health federal over the worksite lation, deferring conflict resolved the created a reasonable Labor, Secretary the federal counter- resulting prevent or abate hazards' would Commissioner, than to the part rather equipment from the use of construction Safety Review Occupational and Health general contractor and of the Commission, counterpart the Minneso- subcontractors on the site? Safety Occupational ta Safety Occupational & Martin v. Board. ANALYSIS 144, Comm’n, 499 U.S. Health Review I 113 L.Ed.2d S.Ct. defer to reasoned that it should Court The Minnesota Secretary (OSHA) interpretation regulatory em- “[e]ach

Health Act states because, by rulemaking finding virtue of her review board relied on its that there powers, enforcement she was a better employer-employee relationship was no be- position adjudicative than the Review Com- tween the and the workers who were develop expertise mission to to assist in the exposed gave to the hazards that rise to the interpretation of administrative rules. Id. at citations. The Commissioner asserts that 150-57, 111 S.Ct. at 1175-79. Under the employer-employee the existence of such an system, Secretary federal does exer- relationship is purpose irrelevant for the adjudicative powers. cise Id. at 111 determining liability for an violation OSHA S.Ct. that has occurred on a con- struction proposes site and an alternative argues The Commissioner framework determining in this Supreme deferring Court’s rationale for context. Secretary of Labor in Martin v. OSHRC provides support adoption of a rule developed In case law under the fed interpreta deference to the Commissioner’s OSHA, eral the federal regula tion of and Health Review Commission and federal tions in Minnesota. But the reasons for recognized courts have compelling two situations in deference are less in view of the which an differences between the federal and con state struction properly OSHA administrative structures. In Martin site cited for occu *5 OSHRC, Supreme pational safety the Court deferred to a and health violations that do regulatory interpretation Secretary that the exposure not result from employ the of the independently of Labor any adjudi made of er’s own to a workers hazard. In the first process. By contrast, cative situation, the administra employer an responsible be interpretation tive that the Commissioner for a federal employer OSHA violation if the claims should receive deference in Minnesota creates or controls the hazard. Red Lobster interpretation adjudicative is the of an deci- ¶ Inns, (CCH) 24,636, 1980 O.S.H. Dec. at sionmaker, an judge. administrative law An (Rev. 30,220 1980). July 18, Comm’n Under ALJ who decides a ease under the Minnesota scenario, the second employer may an be performs OSHA no rulemaking internal responsible for employers violations of other functions, enforcement likely and thus is not reasonably when it could expected be to have develop type to the expertise acquired by prevented or abated the violations due to its Secretary the of Labor to whom the Su supervisory authority and control over the preme in Court deferred Martin v. OSHRC. worksite. Id. (1994) (establish § See Minn.Stat. 14.48-.56 exceptions imposing These for federal ing Hearings Office Administrative and liability OSHA employers on whose workers describing procedures appointment for the ALJs). exposed have not been to a hazard have Although the ALJ’s determinations developed typically in cases that in- decisions, become the involve they by general do teractions between a operation so contractor of law. and 3 subcontractors who work on Consequently, subd. the same con- the Rothstein, struction Commissioner’s decisions do site. See Mark A. not reflect the Occu- (3d specialized pational kind of judgment that would war and Health Law 165 1990). high rant a degree of deference. ed. Because General contractors have been the reasons for deferring Secretary of held for federal liable OSHA violations in Labor under the federal structure such presumption are at cases based on the that only minimally here, most present they, ordinarily we con responsibility have the and clude although may give that we deference to means to ensure that subcontractors on the decision, the Commissioner’s that deference comply same worksite occupational very slight. is safety regulations and health that apply Knutson, 596, to them! Marshall v. 566 F.2d

II (8th Cir.1977); Haugan, 599 Gil 1979 O.S.H. ¶ (CCH) In holding (Rev. that 24,105, 29,290 the was not liable Dec. at Comm’n received, 20,1979). OSHA citations that it the Dec. liability to attach. apply not for OSHA evi- presumption does Additional But this typically principal’s dence of the actual in do not involvement principals, to who nature directing activities on the must supervisory kind of be have the same shown. contractors over See, Pub. e.g., Arizona Serv. Co. worksites. employer Active involvement an Comm’n, Ariz. v. Industrial directing employers’ at a con other workers (“Unlike (Ct.App.1994) con the P.2d struction site is essential to the extension of relationship, hiring the tractor/subcontractor under the OSHA always not have control over does Haugan, doctrine. See Gil O.S.H. Dee. independent the in an contractor (CCH) 29,289-90 (affirming at citation of situation.”). Consequently, while we having who to admitted principal may that a the Commissioner “ right’ employ ‘a to least limited direct the for Minnesota violations that liable OSHA subcontractor”). of a ees The Commissioner exposure principal’s the the do involve the such maintains that demonstrated hazard, a own we conclude occasions, example, a few involvement on only cre liability attaches if county’s employees when the talked hazard, ated or controlled the general contractor’s foreman about the inad presents evidence that Commissioner placement equate warning signs for motor supervisory au principal exercised level of improper ists installation of erosion thority over a worksite that created reason project. control on the devices These few prevent or able it would instances of direction are mini resulting hazard the violation. abate the and, warning signs, mal in the case citing latter using prin basis for When county’s activity appears to be related its rely cipal, may not the Commissioner underlying general responsibility for the di authority; supervisory presumption of rection traffic affirmatively prove must Commissioner roadway. Overall, the record reflects *6 principal the had the kind contractor, general the not the coun was authority typically the exercised ty, that coordinated the subcontractors’ activ controlling employer on a contractor or county representative ities. the had a While worksite. every day, on the site he did not construction day-to-day project; direct the activities of the Ill rather, dependent activities were on his The Commissioner does not contend that [general] doing [was] “what the contractor or county the created controlled the hazards particular day.” that for which it received the Minnesota OSHA citations, county but asserts that the had the recognize that an administrative authority requisite supervisory level of over upheld if it agency’s must be is determination multi-employer the construction site to be supported by substantial evidence. See liable violations. 14.69(e) (1994). But the limited Minn.Stat. decision, encompassed by the scope of review “sub

The ALJ’s which became decision, test is at the suffi rely did not on stantial evidence” directed the Commissioner’s ciency agency’s findings of of fact. See county’s supervision the actual of worksite the county’s Communications Bd. v. Nor-West Car was on the fail Cable activities but based Partnership, authority ble Communications ure to its contractual to exercise (Minn.1984). The issue stop under The N.W.2d the work unsafe conditions. here, however, legal proper liability is whether the multi-employer extension of applied, pres and thus is on standards have been OSHA violations based not contractual question v. Craw ents a of law. Hunter relationships, but on the actual exercise of Cf. (Minn. Sales, 623, 624 501 N.W.2d authority the Mere Door worksite. contractual ford 1993) that, compensation (holding workers’ authority is to establish that a insufficient context, employment of status determination had the level authori of law). question ty multi-employer required is over a worksite regard The review the Commis board and With to the issue before the review board, applied to the evidence in sioner incorrect standards deter the record established: (1) county county, specific the had au- principal, mine whether the could contractual thority suspend wholly liable for on a multi- “to the work either be held OSHA violations employer Applying proper part, worksite. the le due to the failure of to the contractor standard, gal the evidence insufficient to correct conditions unsafe for the workmen or was (2) liability general public”; county establish as a law. See the exercised matter 14.69(d) (1994) (reviewing direct over the court control re- spect requirements involving reverse administrative affected to contractual decision law); proper erosion the construction error Benson Marshall at site and cf. 309, 309, control; signage County, county 163 Minn. N.W. for traffic (1925) (reversing previous power Industrial knew of four strikes at line compensation an eight-day period determination workers’ the site within and was employ meeting claimant was not in at asked Minnesota time Power to call injury contractor, because conclu with whether evidence Minnesota Pow- sively particular representatives, establishes a element ais er and but no meet- law). scheduled; question ing immediately failed Commissioner after issue, to show that the exercised level of accident convened a authority meeting worksite was sufficient cre contractor and Minnesota expectation identity ate a reasonable would Power to worksite areas on the prevent pose regard abate the hazard that resulted in that would a hazard with power ways the contested citations. overhead lines and to discuss abating the hazard. DECISION Because there is substantial evidence to in- doctrine support the Commissioner’s determination

voked attach to an aon county’s regarding over the for viola- worksite, tions of Board required to affirm the in some cases. lations But the record conclu- Commissioner. establishes, law, sively as a matter of that the

county did not have a supervi- level of actual

sory authority over the created reasonable that it would

vent or abate the hazard that resulted affirm, citations.

contested therefore grounds,

modified the review board’s decision that the Commissioner improperly cited the ST. CLOUD POLICE RELIEF county. ASSOCIATION, al., et Appellants,

Affirmed as modified. KALITOWSKI, Judge, dissenting. CLOUD, OF CITY ST. a home respectfully I dissent. issue before city, Respondent. rule and Health Review No. C8-96-777. Board was whether there substantial support evidence to de- Appeals Court of of Minnesota. County termination that Carlton had suffi- Nov. 1996. supervisory cient over reasonably expected to be to detect and Review Denied Jan. abate the hazard. Rather than review the evidence, the erroneously review board re-

versed Commissioner because the injured worker.