This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Appeal of Michelle Michurski regarding the

Reclassification of her position to Human Resources Consultant.

Filed July 20, 1999


Schultz, Judge[*]

City of Minneapolis Civil Service Commission

Andrea F. Rubenstein, Hedin & Goldberg, P.A., 2100 Stevens Avenue South, Minneapolis, MN 55404 (for relator)

Matthew E. Johnson, Andrew D. Parker, Smith Parker, P.L.L.P., 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Schultz, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Michelle Michurski brings a writ of certiorari from the decision of the City of Minneapolis Civil Service Commission (MCSC) denying her appeal for reclassification of her position from human resources consultant to human resources senior consultant. Because we find substantial evidence in the record supporting MCSC's decision and the decision was not an arbitrary exercise of the commission's will, we affirm.



In January 1995, the mayor and city council of the City of Minneapolis, in partnership with the city coordinator and the MCSC, began citywide human resources reform. As part of the human resources reform, the city began the title consolidation project which reduced the total number of job titles within the Human Resources Department and reclassified the human resources/civil services staff.

Two of the new titles created were: HR consultant, grade 8 and HR senior consultant, grade 10. The former positions were subsequently placed in the new titles based on the duties assigned to each position and the competencies required to perform them.

Employees who disagreed with the classification of their positions could appeal to the title consolidation project appeals panel. Human Resources Department employees who appealed their classifications met with the appeals panel and presented their arguments, verbally and in writing.

Concurrent with the human resources reform initiative, the Department of Public Works settled the Rains-Long class-action lawsuit concerning gender equity work issues. A settlement review committee (SARC) was created as part of the Rains-Long settlement. The SARC was given authority to review, analyze, and make recommendations regarding any complaints generated by class members. Its authority is limited to matters within the consent decree memorializing the Rains-Long settlement.

In July 1995, the city developed and adopted a pilot program for providing personnel services to city departments. The department asked for volunteers from human resources staff who would be willing to become "pioneers" as personnel/human resources generalists (later classified as HR senior consultants, grade 10).

Four individuals volunteered to become human resources generalists. Two of these employees were previously at grade eight and two were at grade nine. All other staff performing personnel and/or human resources-type functions within the various city departments, including public works, were either transferred or integrated into the human resources department.

The record is unclear whether relator Michelle Michurski was ever informed of the opportunity to volunteer to be a human resources generalist. The record is clear, however, that the opportunity to volunteer for a generalist position was verbal, informal, and not in conformance with traditional civil service hiring procedures.

At the conclusion of the pilot program in April 1996, the three individuals who volunteered to become human resources generalists were certified to the position of human resources generalist at grade ten. In June 1998, at the conclusion of the HR title consolidation project, the new human resources generalists were reclassified as HR senior consultants, grade 10.

Michurski's Appeal

Michurski began working for the Department of Public Works in 1987 as an administrative assistant II. She provided human resources support to the Director of Administration/Personnel. On October 17, 1995, Michurski requested a title change from administrative assistant II, grade 8, to manager personnel services, grade 11. Michurski indicated in her request that the duties she was performing as an administrative assistant were consistent with those of a personnel services manager. She represented the Department of Public Works at disciplinary meetings, staff meetings, and arbitration hearings. She also scheduled, conducted and made decisions relative to department rules, regulations and policies. She trained employees and handled disciplinary matters and employee mentoring.

By October 1996, Michurski had not yet received a response to her reclassification request. After inquiring, she was informed her reclassification request had been incorporated into the title consolidation project and her position was being evaluated along with all the other human resources positions.

On January 1, 1997, Michurski was transferred to the Human Resources Department with the title of administrative assistant II, grade 8. Following the transfer, Michurski continued to provide human resources related services to the Department of Public Works. On January 8, 1997, Michurski was notified her position was being reclassified to personnel coordinator II. This was not a change from her previous grade level and she appealed this determination to the Human Resources Department.

In April 1997 and October 1997, Michurski applied for and passed the exam for the position of human resources generalist. She was not, however, selected for the position. On April 17, 1997, Michurski requested an update on her appeal, and was informed her reclassification consideration would be completed in June or July.

In September 1997, Michurski filed a concern with the SARC relating to her human resources appeal. During its investigation, the SARC interviewed Michurski's immediate supervisor and the Human Resources Senior Consultant. Michurski's supervisor stated Michurski was regularly performing 60% of the duties of the HR generalist/HR senior consultant. The senior consultant also believe Michurski should be reclassified as an HR generalist/HR senior consultant.

On February 27, 1998, Michurski was notified that her position was retitled from personnel coordinator II to human resources consultant with no change in the grade.

Michurski appealed this determination to the title consolidation appeals panel, and on June 19, 1998, the appeals panel recommended denial of her appeal. The panel found a difference in the responsibility level of HR generalists/HR senior consultants and her position as an HR consultant. They noted her position did not require the same breadth of knowledge or the same problem-solving ability and independence as the position of HR senior consultant. They also indicated there was not a demonstrated need for three senior consultant positions within the Department of Public Works.

Michurski appealed the decision to the Minneapolis Civil Service Commission (MCSC). Her appeal was heard on July 16, 1998. On August 3, 1998, the SARC issued its finding that Michurski's position should be upgraded to HR generalist/HR senior consultant. On November 24, 1998, the MCSC denied her appeal. Michurski subsequently sought a writ of certiorari to this court. In her petition, Michurski alleges the MCSC's denial of her appeal lacked substantial evidence in the record to support it and was arbitrary and capricious.


On certiorari review, this court is limited to considering whether: (1) the commission had jurisdiction, (2) the proceedings were "fair and regular," and (3) "the board's decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law." Radke v. St. Louis County Bd., 558 N.W.2d 282, 284 (Minn. App. 1997). The decision is to be upheld if the commission provided "any legal and substantial basis for the action taken." Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (quotation omitted).

1. Facts and issues outside the court's scope of review

Both parties allege the other has raised new facts on appeal. It is well recognized that the appellate record consists of "[t]he papers filed in the [lower tribunal], the exhibits, and the transcript of the proceedings * * * ." Minn. R. Civ. App. P. 110.01; Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977). However, "documentary evidence of a conclusive nature" that was not produced in the lower tribunal may be submitted to the appellate court "in order to sustain verdicts and judgments." Plowman, 261 N.W.2d at 583 (quotation omitted).

a. Factual statements in Michurski's brief

The city requests us to strike numerous factual statements in Michurski's brief alleging they were not raised before the commission. After a thorough review of the record, we conclude the following statements should be stricken: (1) "The city used this pilot project as a way to justify by-passing civil service requirements that all jobs be posted and an opportunity to apply to be open to any qualified employee;" and (2) Michurski's statements that she was not aware she could volunteer for the HR generalist position. We conclude the remaining contested statements were raised before the commission and are properly before this court.

b. HR generalist job questionnaire

Michurski requests this court to strike the HR generalist job questionnaire submitted in the city's appendix. Michurski argues she did not see the document until it was submitted to this court and it is unclear whether it was considered by the commission. Also, as Michurski notes, the questionnaire lacks indicia of trustworthiness. It is not signed, and it does not indicate who prepared it or whether it reflects actual or only planned duties of the persons listed on it. We agree with Michurski and strike the HR generalist job questionnaire from the record.

c. HR generalist test results

Michurski requests this court to strike the evidence of Michurski's applications for four other human resources senior consultant positions. The city admits that these documents were not a part of the MCSC's record, and are not essential to this court's review. The city, however, offers them to support the MCSC's decision.

Because these documents were not in the record before the MCSC and are not determinative of whether Michurski's position should have been reclassified, they will not be considered by this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding a reviewing court may only consider issues that were presented and considered by the lower court).

d. Rains-Long consent decree

The city contends and Michurski acknowledges this court lacks jurisdiction to independently consider whether the city violated the Rains-Long consent decree by its handling of Michurski's request for reclassification. See Picon v. Morris, 933 F.2d 660, 662-63 (8th Cir. 1990) (stating the federal district court that approved the consent decree retains authority to ensure compliance with the decree). This court may, however, take the SARC report into consideration because the report was before the MCSC when they evaluated Michurski's claim.

2. Substantial evidence in the record

Michurski argues the MCSC's decision is not supported by substantial evidence in the record. Substantial evidence has been defined as:

1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than `some evidence'; 4) more than `any evidence'; and 5) evidence considered in its entirety.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977). Substantial deference is given to the fact-finding processes of the administrative agency, and unless manifestly unjust, inferences drawn by the agency must be accepted even though it may appear that contrary inferences would be better supported. Id. The burden is on the appellant to show the findings of the agency are not supported by the evidence in the record, considered in its entirety. Id.

Michurski asserts two reasons the MCSC's decision lacks evidentiary support. First, the decision incorrectly concluded that the pilot program selection process was open. Second, the commission placed excessive reliance on the title consolidation appeals panel's decision and the appeals panel never compared Michurski's duties with those of the other human resources generalists.

As we previously indicated, on the record before us, it is unclear whether the pilot program method of selecting human resources generalists was "open" to any qualified candidate. Whether or not the selection process was open, however, is not relevant to our review. The issue before the MCSC and now this court is whether Michurski's position should have been reclassified from Grade 8 to Grade 10, not whether the pilot program's selection methods were flawed. The city's method of selecting generalist's for its pilot program is a distinct issue from the MCSC's decision not to reclassify Michurski's position.

The only indication in the record that the pilot program affected the review of Michurski's job reclassification was the comment that there was not a need for three senior consultant positions in the Public Works Department. Even if this factor is considered, Michurski's claim fails. The MCSC had a separate ground unaffected by the pilot program for not reclassifying Michurski's position. The MCSC reviewed Michurski's job duties and found they compared most appropriately with the skills and job duties of an HR consultant, grade 8.

Michurski's second argument that the MCSC decision relied too heavily on the title consolidation appeals panel's decision also lacks merit. In its decision, the MCSC specifically states that it

compared the duties, responsibilities and expectations for HR Consultant and HR Senior Consultant [formerly HR Generalist] with the duties and responsibilities as performed by Ms. Michurski both prior to her initial request to be upgraded to Manager of Personnel Services, following that request, and the duties she currently performs.

There is nothing in the record to suggest the MCSC did not make a thorough comparison of the duties Michurski performed and the duties of an HR generalist. The MCSC stated it reviewed all of the documentation submitted by Michurski and the Human Resources Department concerning her employment record and reclassification requests. The MCSC also read the statements made by the individuals interviewed by the SARC and consulted with the director of human resources.

Moreover, a comparison of the duties listed in Michurski's job questionnaire to the HR generalist duties in the HR title consolidation series comparison supports the MCSC's decision. In light of the great deference accorded to the fact-finding processes of the MCSC, we are compelled to conclude there is substantial evidence in the record supporting its decision to deny the reclassification of Michurski's position from human resources consultant to human resources senior consultant.

3. Arbitrary and capricious

Michurski argues the MCSC's decision was an arbitrary exercise of the MCSC's will. She contends the pilot program violated two provisions in the Minneapolis Code of Ordinances, the decision fostered partisanship and favoritism, and the decision created a different standard for evaluating Michurski's reclassification request.

"An agency decision may be arbitrary or capricious if the decision is based on whim or is devoid of articulated reasons." Mammenga v. State Dept. of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989) (citations omitted). If there is room for more than one opinion on an issue, "the agency's action is not arbitrary and capricious even though the court may believe that an erroneous conclusion has been reached." In re Toberman, 527 N.W.2d 138, 142 (Minn. App. 1995) (citation omitted), review denied (Minn. Apr. 27, 1995).

Once again, Michurski's claim fails because she is arguing the faults of the pilot program selection process rather than the merits of her job reclassification request. While we are sympathetic with Michurski's situation and have serious reservations about the use of the pilot program as a promotional tool, we cannot conclude the MCSC's decision was arbitrary and capricious. The MCSC articulated specific reasons supporting their decision to deny the reclassification of Michurski's position, and its decision represents its judgment on the matter.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.