*1 firefighters paid up to reduced, provided would be reduc- that but such FLSA overtime per year. military calendar 168 hours of leave employee under recouped tion is adjustment upward This number is the federal pay” provisions [in with “leave into extent to which the act], take account the they interpreted if military are leave firefighters’ fifty-six average week hour work a loss requiring that he shall suffer as forty-hour the conventional pay. exceeds or reduction week. Lanehart, F.2d at 1582. agree there I that when conflict be comply the “without loss of To with bargaining tween the terms of a collective §
pay” requirement MinmStat. statute, agreement and the of a terms that would have been hold that overtime Indepen the statute controls. See Jerviss v. firefighter if paid had under the FLSA (Minn. Dist., 273 N.W.2d dent Sch. military paid under leave must be not taken Teamsters, 1978); Bhd. Lo International Military Act. In the Minnesota Leave City Minneapolis, cal No. v. case, pay from mili present to avoid loss of 410, 417-18, I days per year tary duty, up to 15 bargaining do not that the collective military leave must be included Howes’ agreement’s practical arriving for solution cal purposes for their total hours worked day in firefighters’ average a definition culating This overtime must be overtime. § conflict with Minn.Stat. 192.26. FLSA, paid but under Minn. not under Stat. 192.26.
DECISION service, military pay
To from avoid loss pay Cloud must the Howes for 24 hours
St. every they miss due 24-hour shift that bargaining military leave. the collective _As Remington GRAHAM, Wing John military term agreement’s leave causes County Attorney, Appellant, pay they which otherwise Howes to lose military leave be entitled under would WING BOARD
act, CROW COUNTY provision directly conflicts COMMISSIONERS, et OF To avoid Minn.Stat. is invalid. al., Respondents. service, up military pay loss year military days per of the Howes’ leave No. C1-93-1920. their total hours must be used calculate paying Appeals over- overtime. But this Court of Minnesota. worked paid under 192.26rather time Minn.Stat. April 1994. re- than under the We reverse and FLSA. 2, 1994. Review Denied June mand to allow the district court calculate wages owed to Howes. Reversed and remanded.
LANSING, Judge (dissenting). respectfully dissent from the city’s as it
opinion insofar holds that agreement bargaining with the fire-
collective
fighters because it conflicts with the void provides statute that a
statute. The military
employee be leave shall entitled days pay loss not to exceed fifteen
without year. city
per 192.26. firefighters’ negotiated union a contract *2 union contracts and
provide advice on labor relations matters. sought injunction prevent employing outside counsel the board *3 consent, Fitzpatrick from without his and to the services board. parties summary judgment All moved for claiming the sole issue before the trial court statutes. The was the construction two fact, findings trial court issued conclusions law, judgment in an order for favor and Fitzpatrick. Graham moved board and and, judgment, the alterna- to vacate tive, judgment to protect for an amended county attorney’s rights against future intru- sions the board. Minn.R.Civ.P. 60.02 a (providing the conditions under which court judgment); a may party relieve from a final (providing that a court Minn.R.Civ.P. 52.02 findings or amend its make findings upon party). The trial motion of appeal, court denied both motions. On Gra- (1) ham the trial court erred him circum- granting a declaration board can hire outside stances under which a counsel, finding the board acted with- hiring Fitzpatrick. We affirm.
FACTS employed has Fitz- Since pro- negotiate union contracts and on vide advice labor relations issues. representatives represent Professional union Graham, Wing County Atty., John R. Crow county employees negotia- most in contract Brainerd, appellant. for tions. vast boards Pemberton, L. A. Richard Corenia Kol- attorneys also other counties outside Sefkow, lasch, Pemberton, Sorlie, Rufer & ad- provide union contracts and Kershner, Falls, Fergus respondents. Employment on issues under the Public vice (PELRA), Relations Act Labor ANDERSON, and decided Considered (1992 Supp.1993). §§ 179A.01-179A.30. & P.J., KLAPHAKE, JJ. SHORT practiced has the area negotiat- He 1972. has labor relations since OPINION approximately thirty-six union contracts ed SHORT, Judge. efforts, Through on behalf cap the coun- declaratory judgment This action he obtained a standardized on involves in- county attorney’s right provide legal ty’s employee health contribution toward surance, pay for em- board of eliminated severance services to commissioners. helped bring County Reming- ployees after Wing Attorney John hired compa- compliance challenges Wing Coun- union contracts into ton Graham addition, requirements. Fitz- practice employing Thomas rable Board’s worth represented appeal in a lawsuit on involves the construction of a stat- Patrick brought by legal question subject Graham. does not ute which is a county attorney’s Hibbing consult with the office novo de review. Educ. Ass’n v. Bd., performs he Employment about work the Public Relations (Minn.1985). board. years, Fitzpatrick’s repre- firm For law per- sented the Brainerd School District and I. City the civil of the Brainerd formed jurisdiction A court has no to ren Attorney. pros- Since the firm also declaratory judgment ader in the absence of city. ecuted misdemeanors for Fitz- justiciable controversy. St. Paul Area *4 appointed City was the Brainerd At- Marzitelli, Chamber Commerce v. early person- in torney city’s 1993. But the (Minn.1977). justicia- N.W.2d To be nel and labor relations matters not han- are ble, (a) controversy a must involve definite by Fitzpatrick; city employs dled a labor right by parties and concrete assertions of specialist Rapids. relations from Coon The interests, (b) genuine with adverse a involve city Fitzpatrick board council know in tangible opposing conflict interests of liti both does work for entities. (c) capable gants, and be relief decree Graham was elected Crow judgment. (citing or 587-88 State ex Attorney in November of 1990. After his Haveland, rel. Smith v. election, represented Graham the interests of (1946); N.W.2d v. Seiz Citizens against staff office interest in board’s Co., Pure Ice Minn. 290 N.W. budget appeals several and in a discrimina- (1940)); see also Minn.Stat. 555.06 tion objected lawsuit. Graham (court may declaratory refuse enter a Fitzpatrick negotiating employee contracts judgment judgment where would not termi any giving advice to the board. uncertainty controversy nate the or rejected request The board that it Graham’s proceeding). rise The existence of
use him rather than for these jurisdiction question subject is a of law to de services. novo review. Frost-Benco Elec. Ass’n v. Comm’n, Minnesota Pub. Utils. 358 N.W.2d ISSUES (Minn.1984). 639, 642 I. Did the by refusing trial court err Graham a declaratory judgment seeks de- grant declaratory judgment describ- scribing the conditions under which board ing general in terms a board’s author- requested can hire outside counsel. That ity to hire outside counsel? justici- relief lacks the essential elements statutory II. Did the act within board its controversy. judgment able The hiring Fitzpatrick? essentially statutory seeks consists lan- guage embellished
ANALYSIS
generally describing
authority;
the board’s
it
appeal
summary judg
On
underlying
does
refer to the situation
ment,
any
we determine whether
are
requested
there
at hand. The
relief is not a
genuine issues of material fact
rights;
and whether
definite assertion of Graham’s
it does
application
the trial court
in its
genuine
erred
of the
tangible
not involve a
conflict of
University
law.
interests
would not end the live contro-
Offerdahl
Clinics,
Hosps. &
versy.
uncertainty underlying
The
this law-
(Minn.1988);
see Minn.Stat.
general
suit would remain because
lan-
(an
declaratory
in a
judgment
guage
order
action
would still have to be
order).
any
reviewed as
applied
specific
other
it is
While
facts. Under these cir-
findings
cumstances,
unusual
a trial
court
issue
properly
the trial court
limited
response
fact in
to cross-motions for sum
decision
to whether the board could hire
mary judgment,
parties
that there
for advice on labor relations mat-
dispute.
are no material
in
facts
The issue
without
ters
Graham’s consent.
directly
county
duty belonging
attor-
II.
ney.
forth the
388.09 sets
attorney
county
The
shall:
may hire
a board
under which
circumstances
Appear in all cases in which the
place
an
party;
is a
county attorney,
there is
When
advice,
opinions
upon
the re-
Give
may
any competent
employ
board
quest
any
coun-
board or
perform legal services for the
officer,
all
in which
upon
matters
may
an
county.
board
interested,
is or
be
attorney,
ap-
ney to assist the
in relation to the official duties of the
pear
officer
officer;
board or
county or officer
action in which the
(c)
felonies, including
draw-
Prosecute
party,
capacity
is a
to advise
official
ing
grand
of indictments found
or its members
relation to
and,
prescribed by
jury,
to the extent
action,
any other matter
or in relation to
misdemeanors,
law, gross
misdemean-
affecting
interests of the
misdemeanors,
ors,
petty
violations
attorney out
county may pay the
*5
ordinances,
municipal
provi-
charter
funds of the
regulations;
and rules or
sions
(1992).
388.09,
§
1
The statute
Id.
subd.
(d)
give
grand jury,
Attend before
employ
to
unambiguously permits the board
legal
them
and examine witness-
advice
(a)
to
assist the
attor
outside counsel
presence;
es in their
(b)
ney)
appear
record
(e)
is-
to
Request
court administrator
officer,
(c)
any county
advise the board.
and
subpoenas
bring
to
witnesses be-
sue
County, 133
Koochiching
Minn.
Peterson
grand jury
any judge or
fore
343, 344, 158
(1916); see
N.W.
605
Minn.
judicial
before whom the
officer
645.44,
(“may”
per
subd. 15
Stat.
conducting
a criminal hear-
statutes).
The statute
missive when used
ing;
to eliminate the
does not authorize
board
(f)
any inquest
request
at the
Attend
attorney by employing
do
counsel to
coroner;
by
specifically assigned
statute to
requested by
(g) Appear,
Koochiching
county attorney. Keiver v.
ney
general, for the state
case
255
County,
N.W.
attorney general
by
instituted
1970).
(June 2,
(1918); Op. Att’y Gen. 121-A
attorney’s county
or before
assigned
If
work involved has been
land office in
the United States
attorney,
statute to the
board
application
preempt or locate
(a)
attorney only
hire
in extraordi
another
by the
lands claimed
state
(b)
occurrences,
nary
purpose,
for a limited
preparation
trial.
assist in the
(c)
county attorney is
and when the
unable
Gra-
MinmStat.
Keiver,
effective
service.
render
only
duty
give
statutory
advice
ham
Minn,
at
not a analyze special we need whether circum Affirmed. stances even if exist. But the limitations set apply forth in Keiver were the board’s ANDERSON, Judge (concurring Chief Fitzpatrick, retention of we would conclude specially). proper that a employ occasion exists for the majority, with the but sepa- write ment. The record demonstrates rately unnecessary because it board retained for the limited statutory analysis to affirm the trial court’s purpose PELRA-type advice on undisputed decision. The facts show that a issues, specialized PELRA involves a area “special “extraordinary occurrence,” case” or (c) law, admitted exper he had no *6 as described in v. Koochiching Keiver Coun- matters, (d) tise in Fitzpatrick labor relations ty, 169 N.W. lawyer is a years seasoned labor with nine (1918), Wing County. arose in Crow experience with the board’s union contracts board therefore acted within its discretion matters, (e) and PELRA and Graham recent hiring outside counsel for the purpose limited ly represented employees in lawsuits in legal advice on labor relations volving budget salary disputes against 1.7(b) the board. See Minn.R.Prof. Conduct (an attorney represent shall not a client with KLAPHAKE, Judge (concurring part consent, out representation the client’s if the and dissenting in part). materially attorney’s limited the other (an interests), attorney shall exercise in I concur in part part with dissent in dependent judgment). undisput Given these majority’s opinion. from the agree I with facts, say ed the cannot board abused its majority’s the that general conclusion the retaining Fitzpatrick discretion in to declaratory judgment sought by county the legal advice on labor relations matters. Gra attorney presents justiciable controversy. ham failed to demonstrate the absence of I further the Wing County special circumstances. authority Board acted within its in employing provide Thomas to labor relations Graham also the board can negotiate advice on and to union contracts not hire without his consent. We county attorney with the staff. disagree. language is no There Minn.Stat. 388.09, requires subd. which depart the board to The issue on which with the ma- obtain hiring jority Graham’s consent when outside whether contrast, 388.09, counsel. summary Board is entitled to au- specifies subd. 2 that the thorizing board “with concur employ attorney it to Thomas Fitz- attorney” rence of county the enter into to union contracts and ad- agreements lawyers prosecute to cases. vise involving the board on labor matters all Id. The that language county absence of employees. subdivi I would reverse because (1) prevents sion 1 proposed by the construction Minnesota law limits the Board’s authori- Lamere, Graham. See United States v. special extraordinary to cases and eircum- not authorize the county attorney is unable certain work does the stances when anyone hire do such work. The (2) Board to to except for labor matters perform to county attorney issue is staff, what whether involving do, statutorily rather what required but perform is a county attorney is able statutorily board is authorized disputed fact. issue of do. 388.09, It is true that Minn.Stat. represent a Counties and boards the Board authorizes * * * government in limited form of the State attorney “in a matter relation County Anoka ex rel. Air- State Minnesota. affecting the of the Board.” The interests Minneapolis-St. port Protest Committee broad, hiring authority, permissive Board’s Comm’n, 248 Minn. Airports Metro Paul however, substantially has limited been Coun- statutory construction. only and have ties are extensions the state Koochiching County, In Keiver v. authority legislature specific such as the has (1918), tax- 169 N.W. delegated legislature Id. The them. payment payers challenged board’s specific statutory given board no county attorney” involved “special except attorneys as is found hire investigation irregularity officers in section 388.09. Construing conducting litigation. civil and in ques Keiver asks a clear construction to Minn.Stat. predecessor county attorney unable because tion: Is “in language relation to which had same absence, illness, personal or interest affecting the interest other matter involved, to render effective difficulties county,” supreme said: court county demands? service which the designed special to meet The statute 67,169 255. In 141 Minn. at N.W. at occurrences, extraordinary needs court, “there must of Keiver unable, * county attorney * * because why appear some substantial reason absence, illness, interests, * personal * * heavy [should be] burdens involved, difficulties render taxpayers by employ placed upon the effective service which the interests attorneys.” ment of other or the demand. has sued the That *7 Minn, at 255. N.W. budget disqualify not him on his does Board in- negotiating or labor advice from statutory construction was not limit- This volving other than his ed, employees officers majority suggests, to instances as Furthermore, employees that certain own. type statutorily where the of work involved is against him have made claims assigned county attorney. Not one conclusively personal does not show he has word of Keiver so limits construction Finally, personnel in all interest employment given. Additionally, attorney’s par- in a inexperience investigating county offi- Keiver concerned automatically not matter does ticular cers’ involvement the construction disqualify doing type him judicial Employment of an ditch. county attorney in case The this stat- work. investigate actions of other officers continuing legal willingness ed his take statutory duty been a never involving law. courses labor On education puts limitation the us, whether the the record before of Minn.Stat. on the Keiver construction perform legal services is unable warranted the lan- neither question. disputed fact Accord- remains guage facts. ingly, summary should be reversed That Minn.Stat. fact should be tried. and the issue specifically does not direct ney union contracts requested, is
Board or to advice unless that the statute fact determinative. require county attorney to do
does not