This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Loren Sampson,





City of Babbitt, Minnesota,



Bureau of Mediation Services,




Filed February 3, 2004

Klaphake, Judge


Bureau of Mediation Services

File No. 03-PIR-67


Scott C. Neff, The Trenti Law Firm, 225 First Street North, Suite 1000, P.O. Box 958, Virginia, MN  55792 (for respondent Sampson)


Laurence J. Klun, Klun Law Firm, P.A., 1 East Chapman Street, P.O. Box 240, Ely, MN  55731 (for relator)


Mike Hatch, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent Bureau of Mediation Services)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            In September 2001, respondent Loren Sampson retired from his position as a street department supervisor with relator City of Babbitt (the city).  Sampson requested severance benefits from the city, claiming that he was entitled to receive those benefits when he was hired in 1988 and that a 1998 personnel policy further confirmed his entitlement to those benefits.

            After the city failed to act on Sampson’s request, he filed a petition with respondent Bureau of Mediation Services (BMS) for independent review under Minn. Stat. § 179A.25 (2002).  The city argued that because it chose to bring a declaratory judgment action in district court to determine the parties’ rights,[1] BMS lacked jurisdiction over the dispute.

            BMS initially determined that it had jurisdiction and assigned the matter to an arbitrator.  Following a hearing, the arbitrator issued a decision affirming BMS’s jurisdiction and further determining that Sampson was entitled to severance benefits from the city in the amount of $26,517.60.

            The city appeals by writ of certiorari.




            The construction of a statute is a question of law fully reviewable by this court.  Am. Fed’n of State, County & Mun. Employees v. County of Scott, 530 N.W.2d 218, 220 (Minn. App. 1995), review denied (Minn. May 16 & June 14, 1995).  Statutory terms are generally construed “according to their plain and ordinary meaning.”  Id. (quotation omitted).  The city argues that under this statute, it can either create or provide, on a case-by-case basis, a procedure to fulfill the statutory requirement for independent review.

            Minn. Stat. § 179A.25 is entitled “Independent Review” and provides in full:

            It is the public policy of the state of Minnesota that every public employee should be provided with the right of independent review, by a disinterested person or agency, of any grievance arising out of the interpretation of or adherence to terms and conditions of employment.  When such review is not provided under statutory, charter, or ordinance provisions for a civil service or merit system, the governmental agency may provide for such review consistent with the provisions of law or charter.  If no other procedure exists for the independent review of such grievances, the employee may present the grievance to the commissioner under procedures established by the commissioner.


            The city asserts that it provided a procedure for independent review of Sampson’s grievance when it chose to initiate the declaratory judgment action in district court, and that BMS thus lacks jurisdiction over this dispute.  We disagree. 

            The facts here show that the city did not initiate its declaratory judgment action until July 19, 2002, when it served Sampson with a summons and complaint.  By that time, however, the dispute had already been presented to BMS, because Sampson filed an initial petition with BMS in June 2002, and replaced that petition with the current one on or about July 19.  Thus, under the plain terms of the statute, there was no existing procedure for independent review at the time Sampson presented his grievance to BMS.  We conclude that BMS properly determined that it had jurisdiction to hear and decide the matter under Minn. Stat. § 179A.25.[2]


            Our review on certiorari is limited to determining whether the decision is “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any [evidentiary support in the record].”  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). 

              The issue presented to the arbitrator here was whether Sampson was entitled to severance pay benefits, as were all other full-time nonunion employees hired before July 1, 1988, or whether he was “excepted” by the city council from that benefit.  The arbitrator concluded that, because there were no city council minutes or any formal document excepting or exempting Sampson from these benefits and because he was never directly told that he was not entitled to these benefits, the city is obligated to pay him severance benefits in accordance with its policy.

            In particular, the arbitrator reasoned:

            There was no evidence of formal minutes wherein the employee’s severance pay was discussed nor anything in the formal motion and action itself to indicate that the City intended to exempt the employee from the otherwise clear practice that existed at that time granting severance pay.  The testimony from former employees and officials of the City was consistent in at least this one regard:  they may have talked about it but they never put it [into] formal action. 


            . . . .


            The City claimed that a letter dated June of 1997 signed by former members of the council should suffice to provide evidence of the City’s intent at the time it hired the employee.  [This letter stated:  “To the best of my memory, when [Sampson] was hired in April 1988, the understanding and agreement was that there would be no Severance Pay Package.”]  This was insufficient to support the City’s claim.  For one thing, it was written over 9 years after the action in question and even then not given to the grievant.  The grievant was never apprised of this until March of 2001.  That in and of itself severely undercuts the probative value of such a statement.  Moreover, this letter was signed long after the people signing it were in office.


            . . . .


            The bottom line here is that there was no documentation at all that supported the City’s claim that the employee was exempted from the otherwise clear and unambiguous terms of the Personnel Policy or the practice that existed up to June 30, 1988.


As the trier of fact, the arbitrator was entitled to reject or accept the testimony of the various witnesses and to make credibility determinations.  See State, Office of State Auditor v. Minn. Ass’n of Prof’l Employees, 504 N.W.2d 751, 754 (Minn. 1993) (stating that reviewing court must exercise “[e]very reasonable presumption” in favor of arbitrator’s award); Cournoyer v. Am. Television & Radio Co., 249 Minn. 577, 580, 83 N.W.2d 409, 411 (1957) (stating that arbitrators are final judges of both law and fact).  Because the documents and testimony presented at the hearing lend evidentiary support to the arbitrator’s reasoning and decision, we cannot conclude that the award is unlawful or is otherwise without evidentiary support in the record.

            Finally, the city argues that affirmance of the arbitrator’s decision will “circumvent the effect of Minn. Stat. § 465.721, a law which required the City to take independent action to separately fund the severance benefit if it was to be granted to Sampson.”  Four days after Sampson’s April 21, 1988 appointment, however, the legislature enacted language specifically stating that severance pay “does not include compensation for accumulated sick leave.”  1988 Minn. Laws ch. 605 § 10 (amending Minn. Stat. § 465.72, subd. 1 by adding this language).  Because Sampson’s severance pay represented accumulated sick leave and because he likely did not begin to accumulate any sick leave until after his first day of work on April 25, we do not believe that the city was required to separately fund this benefit.  Even if we were to conclude that the earlier version of the statute applied here, we do not believe that the city can avoid its obligation to pay by failing to properly fund these benefits over the years.

            We therefore affirm the arbitrator’s decision awarding Sampson severance benefits.



[1]  This district court action was stayed pending a decision by BMS.


[2]  This case is slightly different from Cross v. County of Beltrami, 606 N.W.2d 732, 734-35 (Minn. App. 2000).  In that case, the employer “reserved” the issue of BMS’s jurisdiction, but nevertheless chose to join with the employee in submitting the grievance to BMS for independent review.  This court concluded that the employer elected the process for determining the dispute.  Id.  Here, the city participated in the arbitration, but continued to challenge BMS’s jurisdiction.