Northfield Fire Chief, Attorney Say City Breached Contract

Attorney David Hvistendahl says the City of Northfield has breached its contract with Fire Chief Gerry Franek.

In a letter to the Council, City Administrator Tim Madigan and Director of Public Safety Mark Taylor, Hvistendahl, whose firm Hvistendahl, Moersch, Dorsey & Hahn is representing Franek in the matter, writes that the city cannot abolish Franek's position and create a new one with the same or similar duties without breaching its contract with Franek.

(The letter is attached as a PDF.)

The city this summer to a salaried, full-time fire commander position to fix organizational and safety problems first identified by a in February.

Last month, however, Madigan dropped the proposal to curb city expenditures. Still, though, he wanted to move ahead with changes to the selection process of the fire chief position.

That came after the Council last year voted to combine the fire department and , moving Taylor from police chief to director of public safety.

But the fire department bylaws, which were abolished this summer by the council, stated that the fire chief answers only to the city administrator.

"(Franek's) contract, last updated is 2006, is valid and binding," Hvistendahl writes in his letter. "Minnesota does not grant municipalities the privilege of unilaterally altering an employment contract unless the contract so provides."

Article II of the bylaws, in part, reads: "The City Administrator may recommend the removal of the Fire Chief for cause to the NVFD. The Fire Chief will be retained or removed by a fair and impartial vote of the NVFD members pursuant to their adopted by­laws. The term of employment of the Fire Chief shall be continuous and shall end when replaced or removed by the NVFD."

Hvistendahl writes: "Article X adds a key provision: 'The Employment Agreement between the city and the Employee supercedes the Personnel Policy, where applicable.'"

The law doesn't permit the ousting of a municipal officer by means of abolishing the office and appointing another to perform the same duties under another official designation, Hvistendahl says.

"The city (and its beleaguered taxpayers) cannot afford to buy out the existing contract and hire a full-time or part-time person to lead the fire department," Hvistendahl wrote. "The buy out, based upon fire department precedent, could extend out to age 70 or beyond, which could be a substantial unbudgeted expense."

Madigan in a January 2011 memo said he believed the practices needed to be changed because in no case should employees be hired by a vote of other employees, regardless of how deeply established the process may be in the fire department.

Taylor is expected to update the Council at its Tuesday meeting about the road map of the fire department, which includes correcting the OSHA violations, replacing the fire department bylaws with Standard Operating Procedures and developing a fire chief job description and hiring that person in late 2011 or early 2012.

"The process of changing the management structure should be a dialog between the city and volunteers with the goal of preserving the long and successful history of the Northfield Volunteer Fire Department," Hvistendahl wrote.

In his letter, Hvistendahl points out that while the fire department had nine OSHA violations, the police department had the most for any city department with 11 violations. Both departments are housed in the Northfield Safety Center.

(The OSHA findings are attached as a PDF.)

Franek has been the part-time chief for 11 years. His annual wages are about $18,300 a year, which is expected to stay the same if the city moves ahead with a new hire, who would be salaried. Franek, who works full time as an electrician for his company, Franek Electric, is eligible for the new position.

Franek is the third fire department chief since 1960.