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Firefighters' union sues city of Brainerd

Brainerd Fire Department’s full-time equipment operators Mark Turner (left), Cory Zeien, Kevin Tengwall, Kurt Doree and Lance Davis are seen in a 2013 photo wearing their pink T-shirts to support the fight against breast and other cancers. (Brainerd Dispatch file photo)

Firefighters Union Local 4725 and President Mark Turner are suing the city of Brainerd regarding the city's decision to restructure the Brainerd Fire Department into a paid on-call department.

A lawsuit filed in Crow Wing County District Court contains four counts which claim the city participated in unfair labor practices and violated various laws when it restructured the department.

The move to a paid on-call department eliminated the department's five full-time fire equipment operators. The equipment operators worked over three shifts to staff the fire hall 24 hours per day.

The paid on-call department has three full-time positions: a fire chief, Tim Holmes; an administrative specialist, Elaine Kraemer; and a fire marshal/deputy chief. At its Jan. 4 meeting, the Brainerd City Council extended the job of fire marshal/deputy chief to David Cox.

Both Turner and Jim Thoreen, Brainerd city administrator, declined to comment on the lawsuit.

Marshall Tanick, attorney with Hellmuth & Johnson, which is representing Local 4725 and Turner, said the lawsuit challenges the elimination of the full-time equipment operators on several different grounds. The lawsuit claims the city violated the Minnesota Public Employees Labor Relations Act when it eliminated the full-time firefighters, Tanick said, and constitutes an unfair labor practice under the act.

In the lawsuit, Local 4725 and Turner claim the city council improperly amended the City Charter when it passed a resolution restructuring the fire department, Tanick said. They also claim the city violated the First Amendment by eliminating the full-time firefighters for speaking out against the restructuring.

"They were being punished or retaliated against for talking in public against the city's position," Tanick said. "So those are the three prongs of the lawsuit."

The firefighters in the lawsuit are asking the court rule the restructuring is invalid and the full-time firefighters be reinstated to their positions, Tanick said. They also seek damages for lost compensation.

The plaintiffs are hoping they can resolve the situation without going to trial, Tanick said, but they're prepared to go to trial if it comes to it. But they're hoping it can be amicably resolved with a minimum of time and expense devoted to it, he said.

"We recognize that this has been a contentious and controversial topic," Tanick said. "Hopefully we can get it resolved through this format."

City Attorney Eric Quiring said the record is pretty clear the city restructured the fire department for budgetary reasons and not as a punishment against the firefighters who spoke out against the plan.

"This wasn't a snap decision, we certainly went through a long process of weighing all the facts," Quiring said. "I think the main focus of everyone was on budget reasons and I think that's evident in the record and the city council action in terms of cost savings."

The city has insurance coverage for this claim through the League of Minnesota Cities, so the case has been sent to the league, which is in the process of assigning an attorney to defend the city, Quiring said. This means Quiring won't be defending the city for this case.

"That's common, that's why cities have insurance, for things like this," Quiring said.

First count

Local 4725 and Turner in the first count of the lawsuit claim the city of Brainerd participated in unfair labor practices when it restructured the department. They also lay out a timeline of events which led to the restructuring and what has followed.

In 2010, the Brainerd City Council passed a resolution restructuring the department to a paid on-call department, but three weeks later, reversed its decision. According to the firefighters in the lawsuit, at the time, Turner along with the other members of Local 4725 "spoke out publicly, to the media, and at meetings of the city council, opposing the elimination of the full-time paid fire department, and also made public statements regarding management deficiencies within the fire department and city administration."

Recent restructuring

On July 6, 2015, the Brainerd City Council approved notifying the International Association of Firefighters of the city's intent to move to a paid on-call department. Local 4725 is a local chapter within the IAFF. The city then began negotiations with union representatives on the restructuring.

The intent to move to a paid on-call department came on the heels of the loss of a service contract with Crow Wing Township, the third such loss in a year. In 2014, the city of East Gull Lake and Fort Ripley Township both terminated their service agreements with the department. On Dec. 7, Crow Wing Township retracted its letter of withdrawal and informed the city it will remain in the fire department's service district.

In a letter dated Dec. 3, Maple Grove Township informed the city of Brainerd it would be leaving the fire service district, effective Dec. 31, 2016.

On Sept. 21, 2015, the city council approved a resolution restructuring the Brainerd Fire Department from a mix of full-time and paid on-call firefighters to a fully paid on-call department. The resolution passed on a unanimous vote.

According to the lawsuit, the Police & Fire Civil Service Commission rules state in the event of layoffs, temporary employees are to be laid off before permanent employees, like members of Local 4725.

The firefighters in the lawsuit claim assigning the duties formerly performed by full-time personnel to paid on-call firefighters constitutes a violation of the Civil Service Rules. They also claim hiring Cox for the fire marshal/deputy chief position violates the requirements of the job, which require two years of supervisory experience in a fire department, which Cox does not have. Turner had previously applied for the fire marshal/deputy chief position.

In the first count, Local 4725 and Turner claim the city violated the Minnesota Public Employees Labor Relations Act, or PELRA, which is Minnesota Statute 179A.

Second count

In the second count of the lawsuit, firefighters claim the resolution the city council passed restructuring the department was an attempt to amend the City Charter and the Police & Fire Civil Service Commission rules. Minnesota Statute 410.12 lays out the requirements for amending a city charter and Local 4725 and Turner in the lawsuit claim the resolution passed by the city council was an "improper attempt to amend the City Charter and its requirement to have a 'paid department' consisting of full-time personnel."

According to Section 66 of the City Charter, "Whenever the city council may decide by a two-thirds vote of all its members that greater protection can be secured by a paid fire department, it may by resolution duly passed, two-thirds of all members voting in the affirmative, abolish the existing volunteer fire department and create in lieu thereof, a paid fire department."

Section 67 of the City Charter outlines the structure of a paid department, that "in the event of the creation of a paid department the city council shall appoint a fire chief of said fire department, and provide for such other officers and employees as may be deemed necessary for such department."

Third count

Local 4725 and Turner in the third count of the lawsuit claim the city restructured the fire department and eliminated the full-time firefighters because of how they spoke out against the proposal to restructure the department.

According to the lawsuit, the full-time firefighters "have made statements of public importance or concern regarding efforts to eliminate the full-time paid fire department and alleged mismanagement and the city administration."

Those statements weren't knowingly false or made with reckless disregard for the truth, according to the lawsuit, and they also didn't cause disruptions or undermine the authority of supervisory personnel.

By eliminating the full-time firefighters based on what they said about the restructuring, the firefighters in the lawsuit claim the city violated the rights of freedom of expression in the First Amendment, as well as a violation of the Federal and Civil Rights Act of 1964.

Fourth count

Local 4725 and Turner in the fourth count of the lawsuit claim the city violated Article I, section three of the Minnesota State Constitution, which outlines that "all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right."

The firefighters in the lawsuit claim they were eliminated because they spoke out on issues of public importance or concern, specifically regarding the proposed department restructuring.

Requests

Because of the four counts detailed in the lawsuit, Local 4725 and Turner request the following relief against the city of Brainerd:

• Instruct and prevent the city from eliminating the full-time fire department and reinstate the full-time firefighters to their jobs.

• Award the plaintiffs damages in a reasonable amount in excess of $50,000.

• Award prejudgment and postjudgment interest to the plaintiffs.

• Grant leave to the plaintiffs to amend their complaint to include a claim for punitive damages. Tanick said for litigation in Minnesota, plaintiffs can't claim punitive damages at the beginning of a lawsuit. Instead, they're asking for the option to seek punitive damages once the case has progressed.

• Award the plaintiffs their reasonable attorney's fees, costs and disbursements incurred herein.

• Any other relief deemed just and equitable.

SPENSER BICKETT may be reached at 218-855-5859 or spenser.bickett@brainerddispatch.com. Follow on Twitter at www.twitter.com/spenserbickett.

Spenser Bickett

Spenser Bickett covers the Brainerd City Council and education. A native of the Twin Cities, Bickett attended the University of Wisconsin-Eau Claire, where he majored in journalism with a minor in political science. After graduation, he worked for the International Falls Journal as a staff writer before coming to Brainerd.

 
(218) 855-5859
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