City responds to firefighter lawsuit

Attorneys representing the city of Brainerd in a lawsuit against five men formerly employed as full-time firefighters by the city filed a response to the initial suit in early February.

Pamela VanderWiel, attorney with Everett & VanderWiel, was assigned lead attorney for the case by the League of Minnesota Cities to represent the city in the lawsuit. The city has insurance coverage for this claim through the League of Minnesota Cities, which is why VanderWiel is representing the city.

They filed a response to the initial lawsuit in Crow Wing County District Court on Feb. 8. The response goes paragraph by paragraph through the lawsuit's 52 paragraphs. The response denies the allegations in half of those paragraphs and partially denies the allegations in many others.

The response contains three statements at the end, under "affirmative and other defenses:"

• The court lacks subject matter jurisdiction over some or all of plaintiffs' claims.

• Plaintiffs lack standing to assert some or all of their claims.

• Some or all of plaintiffs' claims are barred by a failure to exhaust administrative remedies.

The 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.

Marshall Tanick, attorney with Hellmuth & Johnson, which is representing Firefighters Union Local 4725 and President Mark Turner, previously 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 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. They also claim the city violated the First Amendment by eliminating the full-time firefighters for speaking out against the restructuring.

First count

Paragraph 7 of the lawsuit states "The City is authorized to create a 'paid' fire department, pursuant to Section V, section 67 of the City Charter." The response denies those allegations, but states instead "the City's Charter, Chapter 5, Section 66 provides that the City may, at its discretion, establish a paid fire department."

Paragraph 8 of the lawsuit states the city has a Police and Fire Civil Service Commission, and its rules "provide that the Department shall consist of a fire chief and 'full-time department personnel,' along with volunteer firefighters." The response admits to the existence of the commission, "but denies that the Plaintiffs have fully, fairly or accurately described the Commission's rules."

Paragraph 10 of the lawsuit states in 2010, "the City sought to eliminate the full-time, paid fire department." The response instead states in 2010 "the City considered restructuring its fire department" and denies the other allegations in the paragraph.

Paragraph 11 of the lawsuit states and the response admits Turner and another member of Local 4725 spoke at meetings of the City Council to oppose the restructuring of the fire department. However, the response denies as alleged in the suit that Turner or other members spoke about "management deficiencies" at those council meetings.

Paragraph 12 of the lawsuit states on Sept. 21, the city council passed Resolution 45:15, "eliminating the 'paid department' and all 'full-time department personnel.'" The response admits the city council passed Resolution 45:15, but denies the lawsuit's description of the resolution.

Paragraph 13 of the lawsuit states the laid-off members of Local 4725 were replaced by "volunteer, temporary firefighters who are not members of Local 4725." The response denies these allegations.

The response denies allegations put forth in paragraph 17 of the lawsuit, which states assigning the duties and functions formerly performed by full-time department personnel to volunteer, paid on-call firefighters constitutes a violation of the Civil Service Rules.

The response admits the city had an opening for the position of fire marshal/deputy chief, a requirement of which included two years of supervisory experience in a fire department. However, the response denies paragraph 20 of the lawsuit, which states hiring someone for the fire marshal/deputy chief position who did not have two years of fire supervisory experience violated the requirement set forth in the job description.

The response denies the allegations put forth in the lawsuit that the city's actions constitute an unfair labor practice under 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."

The response admits Minnesota Statutes section 410.12 provide a specific procedure for amending a city charter, "but denies that the City attempted to amend its Charter or violated Minnesota Statutes section 410.12." It also denies the rest of the allegations put forth in the second count of the lawsuit.

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 paragraph 35 of 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."

The response identifies paragraph 35 as "vague in that it does not identify specific statements made by specific individuals or identify a timeframe in which such statements were made, and therefore Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained therein."

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. The response denies this allegation.

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 "guarantees to the citizens of the State of Minnesota the right to freedom of speech and expression." The response denies this paragraph of the complaint "fully, fairly, or accurately sets forth the provisions of Article I, Section 3 of the Minnesota Constitution."

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. The response denies this and the rest of the allegations in the fourth count of the lawsuit.

Background

Local 4725 and 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.

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.

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