Completely Unofficial Notes by JN
on the January 16, 2007 TRO/Temporary Injunction Hearing
(Disclaimer: I was taking notes by hand, so they're even less complete than usual. I hope I hit the highlights of the arguments and the judge's reasoning, but I'm not a lawyer and apologize for any nuance I may have missed or misconstrued.)
Present in the audience (besides the intrepid citizen reporters of Maplewood Voices) were council members Kathy Juenemann and Erik Hjelle, and Mayor Diana Longrie. Also present were numerous city staff and police officers, city attorney Kantrud, a reporter from the Lillie Papers, and at least one member of the Police Civil Service Commission.
Two lawyers representing the city (Pam Vanderwiel and a colleague whose name I didn't write down) were before Judge J. Thomas Mott, as well as attorney Robert Fowler, plaintiff John Banick, and former city Human Resources Director Sherri Le.
Motions, responses, and exhibits had been submitted to the court prior to the proceedings and while they of course had been studied by the judge and the parties, they weren't brought out in their entirety for those of us in attendance. The attorneys each hit some of the highlights of their arguments in their oral presentations.
Banick's attorney, Fowler, spoke first. He described the city reorganization reorganization plan as a “clear case about retribution” against the employees who organized into a bargaining unit, and thus an unfair labor practice. As a separate but related matter he is pursuing Banick's case, which has special status due to his being a police officer and thus subject to the Police Civil Service Commission, though Banick is also a member of the Maplewood Confidential & Supervisory Association.
On the matter of retaliation toward the bargaining unit, Fowler called particular attention to the original draft of the budget on the city website, which actually characterized the reorganization as a response to the formation of the bargaining unit. Four days later that text was changed to remove that characterization, an edit which Fowler claimed was evidence of “consciousness of guilt.”
Fowler also called attention to a new exhibit he had added when today's proceedings began, a copy of the latest Maplewood City News. In an article in that newsletter, City Manager Copeland proudly proclaims that city taxes are being reduced. Fowler noted that this claim contradicts the city's assertions that the reorganization and cuts were necessary in order to deal with a budget crisis; rather, it appears from Copeland's own description of the new budget that the cuts were enacted in order to cut taxes.
Ms. Vanderwiel, representing the city, said that this is really about “a city-wide reorganization and budgetary action.” Basically, her argument boiled down to asserting the council's supreme power over budget and city management, which must not be constrained by collective bargaining units, civil service commissions, and the like – nor, for that matter, by the courts, in order to maintain the separation of powers. If they do a bad job, it's up to the voters to punish the city council by voting them out.
Judge Mott asked Ms. Vanderwiel if she could distinguish between eliminating the position versus eliminating the employment of the person in the position. He said that it seemed to him that the Police Civil Service Commission would have the authority to determine which specific person would be cut due to a reorganization that the city council enacted.
Ms. Vanderwiel responded that since Banick is the only individual in this police department slot/pay grade, he has to go. Since his salary is higher than the department persons beneath him, the city council has to have the ability to remove his salary in order to exercise their budgetary power.
She went on to say that the most important point relative to this proceeding was that the plaintiffs cannot show “irreparable harm,” something above the normal level of harm that is caused by losing a job. She also voiced her concern about separation of powers, if the court were to insert itself into the city's managerial decisions.
It was then Fowler's turn again. He brought up the matter of the employee handbook. (At the time when Banick was terminated, the city's written policy was “Employees who are demoted due to reclassification, restructuring, or other organizational change unrelated to performance, shall not normally suffer a pay cut. In these cases, the employee's pay will normally be frozen until they are eligible for an anniversary increase. When an employee's pay is above the maximum of the range for the new job class, their pay will normally be frozen until such time as annual adjustments increase the salary range above the employee's salary.” This language was removed in a new version of the policy handbook that was marked as “Revised Policies Adopted: December 7, 2006.”) Fowler claimed that he had proof that Copeland made the changes and backdated them, after learning that the move to remove Banick violated the city's written policy that was in place at the time.
Vanderwiel in turn responded that no copies of the policy or related evidence had yet been submitted to the court, and thus it can't be taken into consideration in today's decision.
Judge Mott began his discussion of the case by taking the issue the attorneys had most discussed in their written and oral arguments, namely, the merits of the case itself. He characterized the evidence and arguments as a “substantial showing” that the plaintiffs are likely to prevail in courts on the merits of their case, both in terms of the MCSA's case and Mr. Banick's case. The statement on the city's website (that the reorganization was undertaken “given the action by department heads to vote to form a labor bargaining group”), subsequently removed, was a bit of a smoking gun. On the specific matter of Deputy Chief Banick, Judge Mott said it seems likely that he was “improperly terminated,” due to state laws about the Police Civil Service Commission, regardless of whether or not it was retaliatory.
But there are other factors (the so-called “Dahlberg factors,” I believe from the Dahlberg Bros. v. Ford Motor Co. case precedent) to consider for a temporary restraining order or temporary injunction, and here the situation was either less clear or did not favor the plaintiffs. The factor of public interest seemed to be a bit up in the air; the factor of administrative burdens on the court didn't seem like it would be a problem in this case.
However, Judge Mott seemed to agree with the city's attorney, Vanderwiel, that this TRO decision really hinges upon the question of irreparable harm to the plaintiffs. He clarified that a TRO or injunction demands that the plaintiffs demonstrate extraordinary harm that they will suffer if it is not granted, harm that could not be rectified even if they prevail in the end with their lawsuit. (Imagine, for contrast, if this were a life-or-death situation, where without an injunction the plaintiff would die – that's something that a court could not restore to them after they posthumously won their case.) In this case before the judge today, if the plaintiffs prevail in their suit (which the judge said appears likely), they will be awarded back pay and damages.
On the other hand, if the injunction were granted and the city managed to prevail in the end, they would suffer the harm of having had to pay the salaries over the time when the injunction reinstated the employees.
Many of Fowler's arguments about harm focused on a third group – the citizens and taxpayers of Maplewood. Fowler had argued that the injunction would save the Maplewood taxpayers the money they stand to spend on the new people hired under the reorganization to replace the fired employees, which when the city loses would be added to the back pay awarded to the plaintiffs. He also had argued that public safety was at stake, because elimination of Deputy Chief Banick would hurt the police department's ability to function well.
However, these arguments did not persuade Judge Mott. In the end, the citizens of Maplewood, while we clearly are affected by this lawsuit and today's decision, are not plaintiffs; and those who are the plaintiffs can't get a temporary restraining order on the basis of harm to a third party.
Thus, Judge Mott refused the request for a temporary restraining order or injunction.
There was also a matter of the Police Civil Service Commission. Fowler had asked if the court could make a ruling on the matter of the Commission's jurisdiction. Judge Mott declined to do so. He suggested that the Commission needs a declaratory judgement, but the Commission is not a party to this matter today, so he is not able to give a ruling on that matter.
While Judge Mott did not provide the ruling requested by Deputy Chief Banick and the Maplewood Confidential & Supervisory Association, he seemed to provide a strong endorsement of the strength of their case. He encouraged the plaintiffs to get a date as soon as possible for their suit, and he also suggested that it was a bad idea for the city to move ahead with their reorganization plan, since it is likely that they will in the end be stuck paying the salaries of the terminated employees retroactively.