Merz v. Leitch

342 N.W.2d 141, 1984 Minn. LEXIS 1197
CourtSupreme Court of Minnesota
DecidedJanuary 13, 1984
DocketCX-82-1175
StatusPublished
Cited by6 cases

This text of 342 N.W.2d 141 (Merz v. Leitch) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merz v. Leitch, 342 N.W.2d 141, 1984 Minn. LEXIS 1197 (Mich. 1984).

Opinions

KELLEY, Justice.

Appellants, residents and taxpayers of Otter Tail County, appeal from a district court order dismissing their claims that three members of the Otter Tail County Board of Commissioners violated the Minnesota Open Meeting Law, Minn.Stat. § 471.705 (1982), by conducting county business at a meeting of the board prior to the time announced for the commencement of the meeting. We hold that there was a technical violation of the Open Meeting Law by the respondents. We further hold, [143]*143prospectively, that conducting public business at a meeting prior to the time publicly announced for the commencement of the meeting will result in imposition of the civil penalties of the statute. However, because respondents did not have the benefit of our recent decision in St. Cloud Newspapers v. District 742 Community Schools, 332 N.W.2d 1 (Minn.1983), the violation was not intentional, and no member of the public or press was harmed by the action here taken, we affirm.

The Otter Tail Board of County Commissioners met on January 8,1980, as required by Minn.Stat. § 375.07 (1980), to schedule its 1980 meetings. The board established four meeting days each month. In that year the board designated December 22 as a date on which it would hold a welfare meeting in the morning and a regular business meeting in the afternoon. The Fergus Falls Daily Journal, the county’s legal newspaper, published the 1980 meeting dates, but it published no starting times for the meetings because the board had specified no times for commencement. The board never formally announced starting times, but the county auditor, who took the official minutes of the meetings of the board, recorded all 1980 afternoon business meetings as starting at 1 p.m. as a matter of formality, even though as a practical matter the meetings sometimes started earlier. The county auditor also customarily noted in the minutes that business meetings immediately preceding the afternoon business meetings were adjourned to 1 p.m. The county auditor never placed business on the agenda before 1 p.m., although on occasion business not listed on the agenda had been discussed by the county board before 1 p.m.

The board met on December 22, 1980 for its scheduled meeting. In the morning the board, as scheduled, conducted welfare business. The minutes of the business meeting held December 10, 1980 indicate that the chairman had adjourned all discussion of regular county business until 1 p.m. on December 22, 1980. In fact, when the board returned from lunch at approximately 12:30 p.m. on that day, it began going over the county’s bills.

At approximately 12:50 p.m. Commissioner Leitch moved, and his motion was seconded, to terminate the employment of Malcolm K. Lee, the county’s manager of the Land and Resource Management Office. This was not an agenda item nor had Commissioner Leitch discussed his intention to move for the termination with other commissioners prior to the meeting. Commissioner Leitch, however, had informed Lee earlier in the month that unless Lee resigned immediately Commissioner Leitch would move that he be terminated at the December 22, 1980 board meeting for alleged improprieties. No other notice was given to Lee that his job might be terminated. No member of the board objected to the bringing of the motion prior to 1 p.m. In fact, the board voted 3 to 2 to terminate the employment of the manager of the Land and Resource Management Office. The respondents in this case are the three commissioners who voted in favor of the termination.

A reporter from The Fergus Falls Daily Journal arrived shortly before 1 p.m. but after the termination motion had been passed. A motion brought later on in the meeting to advertise for applicants to fill Lee’s position alerted her that business had transpired before she arrived. The reporter asked about the original motion, and the board told her that they had terminated Lee’s employment. She gathered all the information in connection with the vote and the termination and, in fact, it was published in the next day's newspaper. Neither she nor the newspaper objected to the conduct of the county board transacting this business prior to 1 p.m.

Appellants are residents of Otter Tail County. Although they have appeared before the board on several occasions to protest actions proposed by the board, they neither attended nor planned to attend the December 22 meeting. Malcolm K. Lee knew that Commissioner Leitch would make the motion to terminate his employment. Knowing this, he chose neither to [144]*144appear at the meeting nor have anyone appear on his behalf. In fact, neither he nor anyone appearing on his behalf appeared at the meeting that afternoon. At the next meeting of the board, on January 6, 1981, the board rescinded its December 22 action and Lee remains in his position as manager of the Land and Resource Management Office to the present time.

Appellants contend a member of a public board may be penalized for failing to give adequate notice of meeting time under the Minnesota Open Meeting Law; that the Otter Tail County Board failed to give adequate notice of its December 22 afternoon business meeting; and that since all the minutes of the county board showed afternoon sessions to commence at 1 p.m., the board members should be penalized for conducting county business prior thereto, even though no one was harmed by the conduct of the board members.

Minn.Stat. § 375.07 (1980) fixed days in January and July on which the Otter Tail County Board was required to meet. That statute further required the board to “hold such extra sessions as it deems necessary for the interests of the county.” However, this statute did not require that notice of the time and date of extra sessions, such as the December 22 session, be given to the public.

The Open Meeting Law requires that county board meetings “shall be open to the public,” Minn.Stat. § 471.705, subd. 1 (1982), and imposes civil penalties on any person who violates its provisions. Minn. Stat. § 471.705, subd. 2 (1982).1 The Open Meeting Law contains no express requirement that notice of all meetings be given to the public.

This court remedied the lack of a notice provision in Sullivan v. Credit River Township, 299 Minn. 170, 174, 217 N.W.2d 502, 506 (1974), by construing the open meeting statute to require “adequate notice of the time and place of the meeting.” There we said that in our judgment, “a meeting of which the public is unaware is not [a public] meeting. * * * The language of the statute directing that meetings be open to the public is meaningless if the public has no knowledge that the meeting is to take place.” Sullivan, 299 Minn. at 174, 217 N.W.2d at 505. Nevertheless, the trial judge in the present case concluded that Sullivan does not authorize the court to add a notice requirement by implication when, as here, enforcement of a penalty is sought. He opined that a purely statutory offense cannot be established by implication. Relying on State v. Moseng, 254 Minn. 263, 268, 95 N.W.2d 6, 11 (1959), he stated:

Since there is no express statutory requirement for furnishing notice of the time of a meeting, no such requirement can exist except by implication.

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Merz v. Leitch
342 N.W.2d 141 (Supreme Court of Minnesota, 1984)

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Bluebook (online)
342 N.W.2d 141, 1984 Minn. LEXIS 1197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merz-v-leitch-minn-1984.