(concurring specialty)-
I agree with the result reached by the majority in this case, but I arrive at that result by a little different route.
First of all, a veteran is given preference to certain government positions over non-veterans. Minn.Stat. § 197.455 (1984), incorporating by reference Minn.Stat. § 43A.11 (1984). Secondly, a veteran, once appointed, may not be discharged from his or her government position “except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.” Minn.Stat. § 197.46 (1984). Because these are the only stated grounds for removal, this court has construed the statute to mean that an incumbent veteran is entitled to hold his job, absent a showing of incompetency or misconduct, so long as the job exists. A public employer is not required to continue a job in existence simply to benefit a veteran; only that if the job is continued, the veteran is entitled to keep it. See, e.g., State ex rel. Boyd v. Matson, 155 Minn. 137, 141-42, 193 N.W. 30, 32 (1923). On the other hand, if the job is abolished for no good reason but simply to get rid of the veteran, the law will require the veteran’s reinstatement. Id. Furthermore, if a public employer is dissatisfied with a veteran’s job performance, the employer is well advised to hold a discharge hearing; if the employer instead abolishes the job, it runs the risk that a court may find the job termination was a sham to avoid a discharge hearing. See State ex rel. Caffrey v. Metropolitan Airports Commission, 310 Minn. 480, 246 N.W.2d 637 (1976).
We have here two issues. First, does the job formerly held by plaintiff Howard Young continue to exist or should it continue to exist? This is an issue of fact yet to be resolved. Secondly, has Young pursued the proper course of legal action in presenting this kind of claim?
The statute provides a hearing before a civil service commission or like panel for cases of removal for incompetency or misconduct. There is no claim, however, that Young lost his job for incompetency or misconduct. Therefore, Young had no right to a panel hearing and the city was under no obligation to give him notice of any hearing. See State ex rel. Evens v. City of Duluth, 195 Minn. 563, 566-67, 262 N.W. 681, 682 (1935) (the hearing requirement is inapplicable “where the office is removed from the occupant, instead of his being ousted from the office”).
We have here an entirely different problem. The city claims it was required to restructure its job assistance program because of changes in government funding. Young’s old position of Operation Mainstream Director no longer exists. Under the new program, says the city, there is no position comparable to Operation Mainstream Director, although there is a new part-time position with some of the duties the former Operation Mainstream Director performed. Plaintiff Young is not, as I understand him, questioning the city’s right to restructure its job assistance program, only the manner in which it was done. Presumably, Young is not interested in the new part-time position. Rather, he appears to claim the city was required to create a new position like his old one, to which he, as a veteran, would be entitled to preference. If this is his claim, I have *740some reservations about it. On the other hand, there may be some evidence the city parceled out the duties of Young’s old position into several new positions simply to avoid paying Young’s higher salary without any overall substantial savings or other legitimate reason.
The rule is that a veteran’s employment can be terminated by abolishment of his position if done “in good faith for some legitimate purpose, and is not a mere subterfuge to oust him from his position.” Boyd, 155 Minn, at 141, 193 N.W. at 32. Boyd, however, was not a bad faith case. There, concededly, the city in good faith reduced the number of telegraph operators from 16 to 11, and the court simply held that one of the 11 remaining positions must be the veteran’s position because the veteran had preference over nonveterans appointed at the same time or later to the other like positions. Since Boyd, a number of cases have dealt with the bad faith issue. Abolishing a veteran’s job as deputy clerk and hiring a bookkeeper to perform the same duties has been held to be a sham transaction entitling the veteran to reinstatement. State ex rel. Tamminen v. City of Eveleth, 189 Minn. 229, 249 N.W. 184 (1933). Abolishing the position of public affairs director without effecting significant financial savings and without any substantial change in the operation of the public affairs program and where the veteran’s performance was thought unsatisfactory has been held to be a subterfuge to get rid of a veteran, entitling the veteran to reinstatement. Caffrey, supra. On the ot. ier hand, we have held that the abolishment of a village health department position and reassignment of the duties to an independent contractor with resultant substantial economies and elimination of rivalries in the department was a good faith abolishment of the veteran’s position. State ex rel. Niemi v. Thomas, 223 Minn. 435, 27 N.W.2d 155 (1947). Interesting also is State ex rel. Evens v. City of Duluth, supra. There the city suspended Evens from his job as assistant fire warden because of lack of funds, but kept on a non-veteran with more seniority in the other remaining assistant fire warden position. This court held the supervisor did not violate Evens’ rights as a veteran, but, because the veteran insisted he could show that he was removed to make way for someone else, the court remanded for a new trial. In our case here, Young should at least be given a chance to prove his case, if he has one. The trial court did not make findings on these issues, and neither, I might add, did the arbitration proceeding deal with these issues.
As the majority holds, Young’s remedy is mandamus. Section 197.46 expressly states a veteran whose rights under the section have been prejudiced is entitled to the writ. The issues involved here, which include preference, bad faith, and managerial prerogatives and policies, would seem to be best handled by the district court, not by a civil service commission or like panel. A lay panel is better equipped to deal with pure fact issues of incompetency and misconduct, which may be why the legislature limited the notice and panel hearing requirements to wrongful discharge cases.
Unfortunately, the Veterans Preference Act sets no time limit for bringing a mandamus action. The majority opinion would require that the action be brought within 60 days after the public employer gives written notice advising the veteran of his or her right to contest the job termination. I agree this is a desirable solution but it seems to me this is a solution for the legislature to impose, not this court. Until the legislature acts, I would hold a veteran’s mandamus action can only be time-barred for laches. The difficulty is the veteran’s delay in bringing the mandamus action increases the public employer’s liability exposure. We alluded to this problem in State ex rel. Sprague v. Heise, 243 Minn. 367, 374, 67 N.W.2d 907, 912 (1954), where we stressed the importance of the veteran’s asserting his rights promptly. The prudent employer would be well advised to give the veteran the written notice mentioned in the majority opinion, as this would bear on laches. In this case, the city has not alleged laches, but even if it had, *741the extenuating circumstances here would, in my opinion, make laches inapplicable. I agree, therefore, this case should be remanded for trial of the fact issues.