4-3100-17253-2
STATE
OF MINNESOTA
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE DEPARTMENT OF VETERANS AFFAIRS
|
Monty R. Sinner,
Petitioner,
vs.
East
Central School
District (ISD) #2580,
Respondent.
|
ORDER ON MOTION TO
QUASH SUBPOENA
|
On August 16, 2006, the Office of Administrative Hearings issued a
subpoena to arbitrator Nancy D. Powers at the request of the Respondent, East
Central School District #2580 (the School District). On September 1, 2006, Ms. Powers moved
to quash the subpoena. On September 5,
2006, the School District filed a written
response to the motion to quash. Ms.
Powers’ motion is now before the undersigned Administrative Law Judge.
Margaret A. Skelton, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust
Building, 730 Second Ave South, Minneapolis, MN
55402, represents the Respondent, (Respondent). Tammy P. Friederichs, Friederichs &
Thompson, P.A., 1120 East 80th
Street Suite 106, Bloomington, MN 55420, represents Monty R. Sinner
(Petitioner). Nancy D. Powers,
Arbitrator, 3010 Hennepin Ave
South, Suite 632, Minneapolis, MN 55408, appears pro se in order to move to quash her subpoena.
Based upon all the files, records, and proceedings herein, and for the
reasons set forth in the accompany Memorandum, the Administrative Law Judge
makes the following:
ORDER
IT
IS HEREBY ORDERED, that the motion
of Nancy D. Power to quash her subpoena is GRANTED.
Dated: September 7, 2006
s/Bruce
H. Johnson
|
BRUCE H. JOHNSON
Assistant Chief Administrative Law Judge
|
MEMORANDUM
Ms. Powers has moved to quash her subpoena on the grounds that
arbitrators are generally immune from subpoenas to testify about matters
concerning decisions they have issued.
In its response to her motion,
the School District argues that it is not
seeking to elicit Ms. Powers’ testimony in her capacity as an arbitrator but
rather as a witness to alleged ex parte
statements made by Mr. Sinner prior to the hearing before Ms. Powers. The School District
also indicates that it is seeking to elicit Ms. Powers’ testimony regarding the
parties’ agreement to combine the grievance hearing and the Veterans’
Preference hearings.
Ms. Powers presided at an arbitration hearing on January 3, 2006, that
followed Mr. Sinner’s discharge from employment as a school bus driver for the School District. A
major issue in this case is whether or not that hearing was a combined
grievance and Veterans’ Preference hearing.
Mr. Sinner asserts that he did not agree to a combined grievance and
Veterans’ Preference hearing. The School District argues that Mr. Sinner did agree to a
combined hearing. It seeks the testimony
from the arbitrator to support that argument.
Ms. Powers argues that an arbitrator cannot be subpoenaed, citing cases
which prohibit inquiry into the decision of an arbitrator. Having requested the subpoena, the School
District argues that it is not seeking to inquire into the merits of Ms.
Powers’ decision, but rather that it is seeking Ms. Powers’ testimony for two
purposes that the School District argues are collateral to the merits of her
arbitration award—first, testimony regarding ex parte statements allegedly made to her by Mr. Sinner prior to
the hearing; and second, testimony regarding the parties’ alleged agreement to
combine the grievance hearing and the Veterans’ Preference hearing. Both Ms. Powers and Respondent cite a number
of cases in support of their respective positions.
The general rule is that the arbitrator’s award is the best evidence of
the matters purportedly determined by the arbitrator and that parole evidence
from the arbitrator is not admissible to prove the implications or meaning of
the arbitrator’s award. However, relying upon Grudem Brothers Co. v. Great Western Piping Corp.
and two unpublished decision from the Minnesota Court of Appeals, the School District argues that an arbitrator is competent to
testify concerning the matters that were submitted for decision and
consideration. While the cases cited in Grudem recognize the possibility that an
arbitrator can be compelled to testify in certain situations, in several of the
cases that the School District relies on, the reviewing courts ultimately
declined to permit the arbitrator’s testimony.
In Fukaya Trading Co. v Eastern
Marine Corp.,
a party sought to inquire into the “motives” of the arbitrators to determine if
they acted with prejudice. The Fukaya court declined to permit the
arbitrators’ testimony because the award showed the “matters considered by the
arbitrators,” and there was nothing “to indicate that the arbitrators made a ‘mistake
that caused the award to operate in a way that they did not intend’.” In Gramling
v. Food Machinery and Chemical Corp.,
the disappointed arbitrating party attempted to require the members of an
arbitration panel to testify regarding “the method of arriving at their award.” The court did not permit the testimony. Respondent also cites Local P-9, United Food and Commercial Workers Int’l Union v. Hormel
& Co. In that case, the arbitrator had informed the
parties at the initial hearing that the first award would only be preliminary
and open for reconsideration, but there was no suggestion that the arbitrator’s
award in this case was a draft or preliminary award.
The issues raised by this motion focus on the scope of the arbitrator’s
decision. The School
District seeks to elicit the arbitrator’s testimony regarding Mr.
Sinner’s “alleged ex parte statements.”
The arbitrator’s testimony is not elicited to show what the arbitrator
considered to have been “submitted for decision.” Rather, the School
District is proposing to introduce the arbitrator’s testimony to
show what Mr. Sinner did or did not say about the issues that were being
submitted for arbitration. Moreover, this
is not a case where the arbitration award was silent about the issues being
arbitrated. Ms. Powers’ arbitration award
expressly addresses the question of whether or not that proceeding was a
combined grievance and Veterans Preference hearing. The problem, if any, is that the text of the
award does not appear to be unequivocal on that point, and the parties have
differing interpretations of what the text of the award means. In effect, the School District is seeking to
have Ms. Powers testify because it expects that her testimony will resolve any
ambiguity within the text of the award in the School
District’s favor. Although
the School District couches its argument in
terms of seeking testimony on collateral ex
parte conversations with Mr. Sinner, the relevance of that testimony is
to explain or interpret the language in the award that addresses whether or not
the January 3, 2006 hearing was a combined hearing. The School District cites no authority for
the proposition that an arbitrator can be compelled to testify about
pre-hearing ex parte conversations
with a party that might bear on interpretation of the language in the
award. As the Minnesota Supreme Court
concluded in Grudem Brothers Co. v. Great
Western Piping Corp., supra, “[t]he
award should be interpreted from the language used therein rather than the
testimony of one of the arbitrators as to what they meant to do by the award.” For these reasons, Ms. Powers’ motion to quash
her subpoena is granted.
B.H.J.