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MINUTES
Grand Forks Civil Service Commission
February 2, 2006
Chairperson Johnson called the Grand Forks Civil Service Commission to order at 3:30PM. Commissioners MacGregor,  Kvasager, Nies and Bredemeier present. Attorney Ron Fischer present for the Commission.
SCHEDULE OF GRIEVANCE HEARING
The purpose of this special meeting is for the Grand Forks Civil Service Commission to consider scheduling a grievance hearing based on untimely filing by employee, Edward Grossbauer. Mayor Michael Brown is requesting the Commission waive the timelines in this matter and allow Mr. Grossbauer to appeal to the Civil Service Commission.
SUMMARY MINUTES
Attorney Ron Fisher stated he was provided the grievance file from Human Resources. The substance of the grievance is not considered at this meeting. The only question is whether or not to hear the appeal.

Mr. Fischer stated it is clear the appeal is untimely within the Grand Forks Civil Service Code which provides that an appeal can be taken under 6-0702(4), within 5 working days after the Mayor has issued a decision. That’s the timetable for appealing to the Commission, what the Mayor has done if the employee doesn’t like the result. However, when you look at section 6-0703, time limits, the specific time limits at each step may be extended by mutual written agreement of the parties involved. When you look at that, and you look at 6-0701 that the primary purpose of the grievance procedure is to determine what is right, rather than who is right, it seems to me, in my opinion and recommendation, the Commission will form it’s own opinion, that the Commission agree to hear the appeal on the merits rather than dismiss it as untimely.  

In the file material, there’s a letter dated November 14, 2005, signed by the Mayor to Mr. Hovland, stating Mr. Grossbauer agreed to extend the Mayor, the Mayor expressly stated that he would agree to provide Mr. Grossbauer with any extension on any appeal to the Civil Service Commission with regard to the Mayor’s decision, sort of a quid pro quo, given these circumstances, the Commission should make a decision to hear the grievance on it’s merits rather than dismiss it as untimely. The specific question to me is, “Does the Commission have the ability to say it’s untimely?” absolutely. You could do that. Do you want to? My recommendation would be you probably don’t want to. The rules are there, they provide that there can be extensions of time, but ultimately the Commission decides whether or not you want to accept that.

Commissioner Kvasager: There’s one thing that bothers me whenever I don’t abide by the letter of the law for timely filing. What does this do to grievances that have been not filed one, two, three or five years ago?

Attorney Fischer: That’s a good question. I think you’re not setting bad precedent here. This case turns on the November 14, 2005 letter from the Mayor. If you didn’t have this in there and there weren’t an agreement by the Mayor to extend the time, then you would put the hammer down and say it’s too late. But here you have both sides coming to you saying we want you to hear this appeal on the merits, don’t dismiss it on the grounds that it’s untimely. You do have a rule that provides for that in 6-0703.

Commissioner MacGregor: We wanted to understand whether the initial grievance had been filed in a timely manner. When looking at the minutes the issue giving rise occurred on 10/14/2005, and the employee filed a grievance on 10/28/2005. The question is whether or not that was timely filed.

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.

It was moved by Kvasager and seconded by MacGregor to accept and comply with the time waiver request of the Mayor and schedule a grievance hearing in this matter.  All approve, motion carried.

Commissioner Kvasager: Does that take care of any grievances that could be laying out in the weeds somewhere?

Attorney Fischer: It does, because you’ve limited it to giving the Mayor’s express written consent to extend the time period beyond what the Code section provides for.

Commissioner Kvasager: That was my biggest concern. I’ve found out with 40 years of experience that if you open it for one there are more out there.

Attorney Fischer: The other thing is once the 5 days had already run, whether it could be resurrected is a tougher issue, I’m not prepared to give an opinion on that. That’s not this case though. In this case there is a written agreement by the Mayor before that time period kicked in. It’s somewhat unique to these facts. If you have other cases, you can ask if they have something from the Mayor to waive the time period. It does not apply.

Commissioner MacGregor: Does that apply to any step along the way?

Attorney Fischer: As an example, let’s say the Department Head would have been the first person that would have passed on the grievance, let’s say it’s an employee vs. an employee type grievance, so the department head passes on it. The Department Head could not waive the time period to file an appeal to the Commission, because the next appeal was to the Mayor. The Department Head could waive the appeal period to the Mayor of their decision, as the Mayor did in this case to you.
SCHEDULE OF HEARING DATE
Attorney Fischer: The time period may also be extended for the scheduling of the hearing date if agreed to by both sides of the case. I would offer that a grievance procedure is rather streamlined. It’s not an evidentiary hearing where you would hear testimony. What you’re doing is setting a time period for discussion purposes to allot each side an equal amount of time to present arguments. You are a reviewing body, not a court.

Commissioner Bredemeier: Arvin Kvasager has been a part of this process, he is off the Commission, but should remain part of this grievance procedure, shouldn’t he? I would request he remain part of it.

Commissioner MacGregor: For historical reference, I believe when I was appointed to the Commission, there was still a grievance by an employee that was in process and Ms. Page remained part of that grievance.

HR Director Hovland: We would invite the new Commissioner to sit in on the grievance, however to be a non-voting member.

Attorney Fischer: This would not be a problem. I suspect you will not need counsel for this hearing as it’s pretty straightforward, however, if you do need legal assistance, I would be available.

It was moved by Bredemeier and seconded by MacGregor for Commissioner Kvasager to remain part of this grievance hearing. All approve, motion carried.

Employee, Edward Grossbauer: Mr. Chairperson and members of the Commission, I would agree to an extension if necessary. I have no problem with that.

Attorney Fischer: stated he would be available to HR staff for purposes of drafting the Hearing Notice.

The Grievance Hearing in this matter is scheduled for Thursday, March 2, 2006 at 1:00PM in City Hall Council Chambers.
 
Department Head, Peter O’Neill, Fire Chief: Who are the parties in this case?

Attorney Fischer: The Mayor and the employee, Mr. Grossbauer. I would suggest one half hour for each side to present argument.

Commissioner Nies: I would suggest we keep March 1, 2006 available to accommodate Mr. Swanson’s schedule.

Chairperson Johnson: We will commit to one half hour each and our subsequent deliberation is not timed.
ADJOURNMENT
It was moved by Kvasager and seconded by MacGregor to adjourn the special meeting of February 2, 2006. All approve, motion carried. The meeting was adjourned at approximately 4:15PM.

Respectfully submitted,




Daryl Hovland
Human Resources Director