Committee Minutes

MINUTES
Grand Forks Civil Service Commission
Special Meeting – Grievance Hearing
March 9, 2006
Chairperson MacGregor called the Grand Forks Civil Service Commission to order at 4:31PM. Commissioners MacGregor, Nies, Johnson, Bredemeier, Burlog (non-voting) and Kvasager present. Attorney Ron Fischer present for the Commission. Attorney Howard Swanson present representing the Mayor. Employee, Edward Grossbauer, Firefighter, Senior present.
GRIEVANCE HEARING
Chairperson MacGregor announced Attorney Ron Fischer as the presiding Hearing Officer for this grievance hearing.

Attorney Ron Fischer announced the purpose of the meeting is to allow the Civil Service Commission to hear the appeal from Mr. Ed Grossbauer regarding the decision of the Mayor to deny his grievance related to the decision of the Fire Chief as to scheduling of hours for Mr. Grossbauer’s employment. The Mayor’s decision was issued on December 5, 2005. The Mayor agreed Mr. Grossbauer could appeal that decision to the Civil Service Commission outside of the normal time frame provided in the Civil Service Code. The Commission at the last meeting decided it would hear the appeal on it’s merits. An appeal to the Civil Service Commission from a grievance is not evidentiary in nature, but rather to hear arguments of the parties based upon the record submitted and developed before the Mayor. It is my understanding the Commission has been provided with copies of all documentation submitted by Mr. Grossbauer and/or by the Fire Chief to the Mayor by the Human Resources Department.

Attorney Fischer discussed his role as the Hearing Officer and stated the Civil Service Commission would render it’s decision without his involvement. Commissioner Kvasager’s term expired and Commissioner Burlog has been appointed however, Commissioner Kvasager was on the Commission at the time of the grievance and the Commission will recognize Mr. Kvasager for the duration of this grievance as opposed to Commissioner Burlog. Attorney Swanson stated the Mayor has no objection to Mr. Kvasager acting as a Commissioner for purposes of this hearing and to issuing a decision not withstanding the fact that his term has officially expired. Mr. Grossbauer stated he has no objection as well.

Attorney Fischer stated each party would receive 30 minutes to present argument. Mr. Grossbauer has the burden of going forward to show the decision of the Mayor abused his discretion by clear and convincing evidence in denying the grievance which is the standard of review for the Commission.
Employee, Edward Grossbauer
Presentation of Argument
Ed Grossbauer stated he would reserve 15 minutes of his 30 minutes toward rebuttal.

Mr. Grossbauer stated he is a Senior Firefighter with the City of Grand Forks and has been here for 10 years. He stated he understands the Mayor’s position with regard to substantiating Fire Chief, Peter O’Neill’s position with regard to the grievance. It is my belief Mayor Brown did not have altogether evidence that was fair and truthful in nature. On page 7 of the grievance file, in the HR Director letter to the Mayor, in the second to last paragraph, there are statements in here that are not true. This may be minute, however, it brings to the credibility of the whole case. Mr. Grossbauer stated the folder containing his case is not 3 ½ inches. To compare, he brought 2 reams of paper which show a ¼ inch difference in what was reported to the Mayor, so there were deep exaggerations in some of the statements. The vast majority of this is based on inaccuracies that were put forth to the Mayor and his decision is based on that.

I also provided Mayor Brown and Chief O’Niell with statements from two other firefighters who were placed on a modified duty assignment and allowed to stay on 24 hour shifts, both of those were submitted with my grievance and should be part of this. I served as Union President of our organization and of the Employee Representatives for 3 years and 11 months, and at no time during my tenure, was anyone not approved the 24 hour shift that I am aware of. If there was a problem with that, I’m assuming that those folks would have came to me. I know during the tenure of the current Union President, there’s been noone whose been denied a 24 hour shift.

Mr. Grossbauer explained the 24 hour shift issue is extremely important to his family because it placed an undo hardship and burden on his family. I requested a 24 hour shift after it was cleared by my physician. The physician stated I had no driving restrictions and was allowed to work 24 hour shifts. The decision the physician made was based on my physical abilities at that time, but after thoroughly reviewing the job description that was provided to him by the Human Resources Department. He was fully aware of what the job description entailed. I had a medical clearance from the physician to go back to the 24 hour shifts and that is the time I asked to return to the 24 hour shifts and was denied and that’s what brings this grievance forth.

Mr. Grossbauer stated he does not believe the Mayor had all the information that was fair and truthful. I truly believe he was within his authority to make his decision, but I think it was based on falsehoods and misinformation.

Attorney Fischer advised the Commission they could ask questions throughout the proceeding.

Commissioner Kvasager asked Mr. Grossbauer what his duties are on a 24 hour shift. Mr. Grossbauer stated he was cleared to do a modified duty assignment with a 20 lb. weight restriction at that time. He stated it would not allow him to perform full duties, however, with the two statements submitted, I know for a fact that one of them had a 15 lb. weight restriction, so I had a greater ability and I also was more qualified than this person who had to be trained in to be an incident safety officer of which I’ve already had the training. My responsibilities on the ground could be well utilized. There was a letter from Fire Chief O’Neill, page 18 (grievance file), on the subject of transition job offer options which I offered which were the best for my family, and staying within the medical guidelines and within the past practices of the department.  

Mr. Grossbauer stated Chief O’Neill says that it wouldn’t be in the best interest of the Fire Department to schedule longer days than those listed above and feels my request to be on the emergency team both unsafe and unproductive. Mr. Grossbauer stated the Fire Department operations have not changed since the last time someone was trained to be an incident safety officer. Those jobs remained the same. I believe it’s the doctor who will determine whether I would be unsafe, given all of the information he was given to determine that I would be able and capable of operating under the guidelines that were given to him in filling out my workability report stating I could work the 24 hour shifts. I do believe the Mayor was well within his authority to make the decision he made. I believe it was based on not reviewing all of the information, possibly and then again receiving some misinformation to make his determination.

At this time I would be finished and reserve the rest of my time for rebuttal. Attorney Fischer stated he would have 20 minutes for rebuttal.

Commissioner MacGregor stated in the original documentation which was loosely unbound, there were two letters, one from Gary Nelson, and one from Mike Andrews. He asked Mr. Grossbauer if these the two letters he is referring to? Mr. Grossbauer stated this is correct. Commissioner MacGregor asked Ms. Wilkie if they were in the HR Grievance File which has numbered pages. Ms. Wilkie stated yes, they are on page 33 and 34 of the Grievance packet.

Attorney Ron Fischer asked if it is understood by both sides that the documents are part of the record for the Commission to consider?  Attorney Swanson stated yes, they were before the Mayor and I believe they are part of the HR file.
City Attorney, Howard Swanson
Presentation of Argument
Attorney Swanson introduced himself as representing Mayor Brown and introduced Haley Wanstead who is a second year law student at the University of ND School of Law who will assist him.

Attorney Swanson - Mayor Brown is well familiar with the facts of this case. He met with Mr. Grossbauer. Mr. Grossbauer had full opportunity in addition to providing written information that you have in your packet before you, but to make any oral comments and correct the Mayor on any misunderstandings that the Mayor may or may not have had. I believe the Mayor was fully informed.

There are a couple of handouts for the Commission. One is the Standard of Review, 6-0704 of the City Code. (copy also provided to Mr. Grossbauer) The reason the handout is provided is to tell you the burden is upon the employee to show the Mayor abused his discretion and that has to be proven by clear and convincing evidence.  We’ve watched enough television to know what “beyond a reasonable doubt” is.  If you think about a scale of justice, “beyond a reasonable doubt” is when one side of the scale slams onto the ground, all the proof is there. Another standard is “preponderance of the evidence”, that’s more likely than not. That’s when the scale likely tips. “Clear and convincing evidence” is somewhere in between. (I call it about 75%), so the scale is well tipped, but not slamming on the table. That’s the burden Mr. Grossbauer has here, to show the Mayor abused his discretion. We don’t define an abuse of discretion in the City Code. What is that? It seems to me to be a situation in which the Mayor has no reason whatsoever to make his decision and gave no rationale for his decision.

Attorney Swanson - In this case we have an employee who admittedly was injured, an on the job injury, he told you today he had lifting limitations and was not as he quoted, “not able to perform full duty”, so he is on light duty and is asking for light duty.  

I’m also going to hand out portions of City Code 6-0810, the city’s policy on light duty (copy provided to Mr. Grossbauer).
I draw your attention to subsection A, all temporary reassignments are discretionary in nature. So even the approval of light duty is discretionary. It goes on to say, reasonable efforts are encouraged to be made to accommodate necessary and reasonable reassignments in light of the department’s needs, availability of work tasks, and the employee’s ability to perform such tasks.

Attorney Swanson - The Fire Department operates 24 hours per day on potential emergency situations. Co-workers need to be able to depend upon co-workers. Management needs to depend upon the workers. If there is any question that an employee may or may not be able to perform in emergency situations I think the department is well within it’s right to defer that. Here we admittedly know, that he has some limitations.

One step further, in this case, you have contained within the packet, Mr. Grossbauer referred to it on page 6, a report from the HR department. There are a number of things in here that identify what went into the decision on the department level. On page 7, at the end of the first paragraph, where the Fire Chief noted it was not in the best interest of the department to schedule longer days than those listed above, the employee’s request to be put in an emergency scene, to be both unsafe and unproductive.

Attorney Swanson - It was not just the department head, Chief O’Neill, talking. If you refer to page 8 of the packet, you will note on the third line down from the top, Battalion Chief Corbett explained that the Chief directed three Battalion Chiefs and the Deputy Fire Chief to discuss the alternatives. Ten man hours were spent on the request for light duty. What I’m pointing out to you is this was a deliberative decision, it was a debated decision, it wasn’t one reached lightly. It was one that evaluated a number of factors. I think if you read the report and read Chief O’Neill’s letter to Mr. Grossbauer on page 17, dated October 13, 2005, the Chief himself puts into those words his concern about productivity and safety.
Attorney Swanson - The reference here by Mr. Grossbauer is that others have been allowed. If you look at our policy, you will see that the determination of light duty is made on a case by case basis, an individual basis. It is not made from the perspective of the employee. That’s what Mr. Grossbauer, I think, has a misperception about. The perception and the analysis is, what are the needs of the department? There is no evidence before you as to what the conditions of the department were when anyone else was allowed 24 hours of light duty. We also don’t know what duty were they assigned, what were their limitations or restrictions, and what were the needs of the department? It may be that the department had light duty to be performed between 8 and 5, normal office hours, but at 1:30AM in the morning, they don’t have that need.

The City’s policy is not to use light duty as a make work substitute, it is if there is work to be completed by an injured employee, we will allow that to be done, as to the needs of the department. In this case, I believe there is more than adequate evidence in the record to support, not only Chief O’Neill’s decision, but the Mayor’s decision. Then if you go to the Mayor’s decision, in which he denied the grievance, and that appears on page 4 (grievance appeal packet), he specifically found that the Chief did not abuse the Chief’s discretion in making the decision, and the Mayor takes it a step further. The Mayor, as the Chief Administrator of the City of Grand Forks, executive officer, says that he believes the Chief exercised his discretion, within his authority, to best allocate and manage resources and personnel under his discretion.

Attorney Swanson - This is really a management decision. With all due respect to the comments by Mr. Grossbauer, if a department head can’t determine when an injured employee is to perform restricted or light duty, then who’s making the decision? Is that the tail wagging the dog? Under our system within the system, clearly there is a scheme of management. Management will make those types of decisions. Your role as a Civil Service Commission is not to second guess those decisions, but only to reverse them when there is a clear abuse of discretion, if there is no basis for the decision to be made.
But you’ve been told it’s on the basis of safety, productivity, efficiency and the needs of the department. If you refer back to the handout with respect to light duty, you’ll see that’s exactly what they’re supposed to do.

Attorney Swanson - I reject any notion that the Mayor didn’t have the information, because I think you’ll find through the packet, virtually everything you heard today from Mr. Grossbauer, is contained in one place or another in the packet, so the Mayor surely had all the information available to him. For us to speculate what the Mayor did or did not find acceptable or persuasive is a waste of everyone’s time.

Attorney Swanson – The last comment I wanted to address is a question, which I think really underlines Mr. Grossbauer’s concerns, and that was the impact upon his family life. Having family myself, I certainly understand that, but we can’t make a decision, particularly in the emergency field, of what shifts people can work based upon their family needs.

Attorney Swanson - I will tell you this has virtually little application to the case before you, this is a decision by the ND Supreme Court that I lost a number of years ago, and it arose out of an employee at United Hospital, Peggy Santieri. She worked in data processing and was told her shift was being changed, she had two weeks before the shift change. She stated she couldn’t accept that due to babysitting. She could not meet the new shift change. She quit the job. The case arises because she applied for unemployment benefits and they were denied. Here’s what the court wrote…it indicates a line of thought that I think the Commission should adopt, Mr. Fischer…

Mr. Grossbauer – excuse me Mr. Swanson, I was under the understanding that no additional evidence would be allowed.

Attorney Swanson – This isn’t evidence, this is pure argument.

Attorney Fischer – This citing into case law and what the law is, is not in facts.

Attorney Swanson – Don’t misconceive my comments as this being law and binding, all I’m pointing out is a line of thinking, that the Supreme Court found in an unemployment insurance case, that seems to me to be reflective of this situation. The Court said – we do have question if Santiari may have been inconvenienced because of the change in her shift that required her to find a babysitter. Such an inconvenience, however, does not empower an employee to leave employment and attribute that as fault to the employer. While parental obligations may be good personal reasons for leaving employment, they are not causes attributable to the employer. Likewise, a change in one’s working shift when there is not an increase in total hours worked, does not constitute good cause attributable to the employer to support a leaving of employment.
Attorney Swanson – All they’re saying is personal issues and family issues don’t interfere with employment decisions and are not held to a standard of supporting the basis that you can do something other than what management asks you to do.

Attorney Swanson - I have nothing further to provide you, the Mayor was well informed. Mr. Grossbauer met with the Mayor, had full opportunity. The Mayor had everything that’s in your packet, obviously, except the appeal notice, but quite frankly, even if you accept everything as being true from Mr. Grossbauer, it doesn’t establish an abuse of discretion on the part of the Mayor. He knew the facts, he knew the circumstances, he knew the Code and he reached a decision. I think for this body to overturn the Mayor on a case of this nature sends a message to the entire list of department heads in the City, that the employees will dictate when they work and what work they will do, not the department head. That’s not the state of the City, nor is it the position that this Commission has ever adopted.
So, I ask you to uphold the Mayor’s decision. Thank you.



Attorney Fischer: I did look at that and in my opinion it was untimely, but the decision was up to the Mayor at that point on whether or not he wanted to accept it on the merits and he obviously did. He could’ve made the decision that it was not timely appealed and the decision of the department head was going to stand but he chose to take it and he has the right to do that. That was his call to make.
REBUTTAL OF MR. GROSSBAUER
Attorney Fischer – Mr. Grossbauer, you have 20 minutes for rebuttal.

Mr. Grossbauer – I won’t need all of that time, I’ll make this brief, I’ll just address Mr. Swanson’s last comments. At no time have I asked to not have reasonable accommodations. I think in light of what has been offered, in evidence in the past, with regard to the two letters that were submitted by two other employees, which do specifically refer to their limitations, Mr. Swanson had inferred that they do not, but they specifically do, I’m not asking to run the Fire Department, I’m asking to be allowed to do my job in the limitations that were put forth by the physician who actually has medical training and can make the determinations with regard to what I can and cannot physically do, using the guidelines that were put forth to him by the Human Resources Department in collaboration with the Fire Department. The physician knew full well what the job description is which provided with the job description and the lifting requirements. At no time did I ask to go to full duty. I would never do that to my brother Firefighters. I was not in the condition to work full duty. I asked for a modified assignment in a light duty capacity and working the 24 hour shifts, the regular shift assignment, which has been afforded to other people in the past. I asked to be accommodated in the same fashion as they were.

Mr. Grossbauer - I do believe that everything is discretionary. It’s in the Code, I know that and I read that. It’s very easy to read that it is discretionary, but I don’t know how fair the discretionary process was used in this particular case when no other people in the recent past have been denied the 24 hour shifts until I asked for it. That raises a red flag as far as I’m concerned. Like I said with regard to the information the Mayor certainly could have had, certainly did have all of that information, and I didn’t say that he didn’t have the information, I said he had some untruthful information as proved by my demonstration here. Although the Mayor might have had all of this information, I don’t know how truthful it was in nature. I believe the Mayor used the information he had at hand to make his decision. I don’t believe the information he had in hand was full and truthful in nature.

Mr. Grossbauer - The 24 hour shifts that I requested again were light duty in nature and staying within the requirements and guidelines of the physician. I wasn’t asking for anything that other people hadn’t received in the past and certainly wasn’t looking for any preferential treatment. I do want to make it abundantly clear that I am fully aware of the seriousness of our job and have been involved in the fire service in excess of 25 years, so I know what we do. I know how serious our positions are. At no time would I have ever put the other firefighters at risk. Over 60% of our fire calls at this point are of medical nature. There were no restrictions with regard to my ability to perform as an Emergency Medical Technician. There were no restrictions with regard to my ability to drive a Fire Apparatus as is in the folder and proven by the information provided to you with regard to the workability assessments done by the physician. I feel the physician was second guessed and I find that offensive. Thank you very much for your time and your consideration.

Commissioner Kvasager – I have one question. Do you consider “reasonable accommodation” to mean that you be given consideration for family needs from the standpoint of childcare, etc.? Do you think that’s part of what is a “reasonable accommodation”?

Mr. Grossbauer – I think that everything in the decisions made should be with the best interest of the Fire Department, first, and the best interest of the employee, second. I think that those should be weighed in the decision to allow somebody to come back to work in a light duty capacity. I absolutely believe that. We hear from our folks that sit up here every week, say the employees are our biggest resource and our biggest asset. Well, not to consider them is incomprehensible. I cannot fathom that a department head would not consider the needs of his employees.

Commissioner Kvasager – Needs and absolutes are pretty hard to distinguish between.

Mr. Grossbauer – I agree with you Mr. Kvasager. There are no absolutes in the Code here. Anything that’s being considered here, there is no absolute in there. Mr. Swanson said so. It’s completely discretionary. I think the discretion was tilted a different way then in the past. I believe that in my past, in the time that I’ve been here, I don’t know of anybody who was denied a 24 hour shift under Chief O’Neill’s tenure. I don’t know if that has happened. I know for the four years that I was Union President and the tenure of the present Union President, it hasn’t happened or at least it wasn’t made aware to the employee rep for the department. I believe that would have been the first stop if there was a problem. The stop would be the employee rep.

Commissioner MacGregor – I have two questions. You met with the Mayor?

Mr. Grossbauer – Yes, I did.

Commissioner MacGregor – Did you bring up the information that you’re presenting to us now about the inaccuracies in the packet?

Mr. Grossbauer – No, at that time, it was not part of the file. I did not meet with him. I was not aware of this letter that was put forth by Mr. Hovland and emails that were put together by Ms. Wilkie until afterwards.

Commissioner MacGregor – Ok, so the information that you’re concerned about are the emails from HR to the Mayor?
Mr. Grossbauer – and that confidential letter that was sent, yes. There are absolute inaccuracies in that.

Commissioner MacGregor – My other question really has to deal with the position. I want to make sure I understand what you are saying. Are you saying that the physician is capable of determining whether a person can safely do the job or can physically do the job?

Mr. Grossbauer – Physically. The physician is provided with the job description and the lifting requirements and other requirements of that particular job. I feel it’s incumbent on the physician to make the determination whether that can be done safely by the person who would be performing those.

Commissioner MacGregor – That’s my question. So, you’re saying that the physician should be able to determine whether the individual, no matter what the job is, the physician can determine whether that person can do the job safely, not only physically, but safely as well. The physician can say, you can lift 20 pounds or 50 pounds, or you can bend.

Mr. Grossbauer – But Mr. Swanson can say I can lift 20 pounds. I can walk over and lift a 20 pound weight and you folks can say I could lift 20 pounds.

Commissioner MacGregor – No, because when you’re in a situation like this, you have to go by what the physician says.

Mr. Grossbauer – That’s just a physical limitation and anyone can determine physical limitations.

Commissioner MacGregor – The physician determines medical and physical limitations. What I am hearing you say is that the physician can determine whether not only can somebody can physically do the job, but they can do it in a safe or unsafe manner.

Mr. Grossbauer – Let’s see if I can find a copy of what’s provided to the physician. It’s the Firefighter, Senior job description, the physical requirement worksheet that’s put out by the Fire Chief and the HR Director.

Commissioner MacGregor – I’m trying to get your understanding of what the physician’s role is in a claim, and I’m asking you if the physician’s role is limited to providing the employer with physical limitations or does the physician go past that and say the employee can do this amount of work and I think the employee can do it safely?

Mr. Grossbauer – According to this workability assessment which says that I can work the 24 hour shift, it doesn’t say anything about the safety, it says, can work without work restrictions, or can work with the following work restrictions, and they are checked of as needed.

Commissioner MacGregor – And those are physical limitations.

Mr. Grossbauer – I would say that they are physical limitations.

Commissioner MacGregor – That’s all I wanted to know. Thank you.

Mr. Grossbauer – But those are based on the job description and the physical requirements.

Commissioner Bredemeier – I have one question. It’s on page 47, the Transitional Job Offer. It says here that there is a 10 pound restriction, unless you worked up to 20 pounds.

Mr. Grossbauer – If you refer to page 48, the workability states light work with a 20 pound work restriction. The 10 lbs. restriction was drafted by the Human Resource Department.

Attorney Fischer – Hearing no further questions and the time having expired, at this point the Commission will either deliberate and make a determination whether to uphold the Mayor’s denial of the grievance or to reach some other disposition or the Commission can decide to schedule that disposition for a later date. My recommendation would be for you to do it now because of the timing issues. That has to be part of the open record.
DELIBERATION AND DETERMINATION
IN APPEAL MATTER

It was moved by Bredemeier and seconded by Johnson to uphold the Mayor’s decision in denying the grievance of Mr. Grossbauer.

Discussion held.

Commissioner Johnson – Where I stand and think is that the Chief has the discretionary power to make a decision and as he’s the professional. Who knows who was on the shift when the one individual got the duty that Ed’s talking about or who was on duty when that other individual got the duties that Ed’s talking about? Each case is individual. There are things the Fire Department looked at as far as having an individual drive the Battalion Chief or whatever those duties were. So when they looked at if Ed could do that, they evaluated where they were at and came to a conclusion that they weren’t going to have that situation at that particular time. So it isn’t as if that’s the way light duty is handled. It isn’t written in the Code that light duty is handled that way every time. I can accept and I’m sure that’s why the Mayor accepted it, it’s the Chief’s decision with the crew he has and who’s on duty for 24 hours and so forth which is in the best interest of the Fire Department. I’m not going to micromanage and say that was a poor decision. I accepted that professionally that decision was made and he had the power to make it.

Commissioner Bredemeier – It was Battalion Chief Corbett who had three Battalion Chiefs and the Deputy Fire Chief discuss the alternatives, so in my estimation, it wasn’t the Chief who made that decision, information was given to him and then he made that decision. In my estimation it is his decision. His responsibility is the safety of his department and I can’t help but think, with this fire that just happened recently, the house fire, if Ed would have been on that, on light duty, and may go into the home, and there would have been an individual in there that was over 20 pounds, I can’t believe that being a Firefighter as a profession going in there, that you wouldn’t go against your restrictions if there was someone in there that needed to be removed from that home. I would think that in Chief O’Neill and the other members making the decision on what is safe, would be taking all of those factors into consideration when they are accommodating and looking for accommodations for an individual.

Commissioner Kvasager – I still have a problem with reasonable accommodations. Accommodations mean you both have to agree with this. If there isn’t any light work, the employer does not have to accommodate those particular hours and if they couldn’t accommodate those hours, there’s evidence in the Code, that the person can use their own time to accommodate for a matter of 2 – 4 hours if needed. This crops up quite often under the Family and Medical Leave Act, what constitutes reasonable accommodations…there are provisions in the Code where the person can use their own hours and commingle them with the work hours.



Commissioner MacGregor – (To Commissioner Bredemeier) I believe that situation would not have happened. Part of the work restriction was that he would not have been put in a place where he would have had to make that decision. Even on the 24 hour shift.

Commissioner Nies – I don’t think I have anything different to add. Commissioners have covered it pretty well.

Chairperson MacGregor – Any other discussion? Hearing none. I’ll call for the motion. All those in favor of the motion which is to uphold the Mayor’s decision in denying the grievance, signify by saying aye. (All Commissioners voted in the affirmative). Those opposed same sign. (None). Motion carried.
ADJOURNMENT
It was moved by Bredemeier and seconded by Johnson to adjourn the special meeting of March 9, 2006. All approve, motion carried. The meeting was adjourned at approximately 5:26PM.






Daryl Hovland
Human Resources Director