This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Wesley Hedstrom, et al.,
Cook County Board of Commissioners,
Cook County Board of Commissioners
File No. 2000-06
Richard W. Swanson, Swanson Law Office, 1708 West Highway 61, PO Box 819, Grand Marais, MN 55604 (for relators)
William J. Hennessy, Cook County Attorney, PO Box 1150, Courthouse, Grand Marais, MN 55604-1150 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Parker, Judge.*
Relators Wesley Hedstrom and Patricia Zankman challenge their removal from the Cook County/Grand Marais Joint Economic Development Authority by the Cook County Board of Commissioners for nonfeasance and neglect of duty. After a public hearing, relators were found to have violated Minn. Stat. § 469.095 (1998) and the Minnesota Open Meeting Law. Relators argue that the facts do not justify their removal. Because the findings of the Cook County Board of Commissioners are supported by substantial evidence, we affirm.
The Cook County/Grand Marais Joint Economic Development Authority (EDA) was established by 1988 Minn. Laws ch. 516. The EDA board consists of seven members, each of whom serves a six-year term. Four of the seven commissioners, including relators, are appointed by respondent Cook County Board. Relator Zankman had been on the EDA board for approximately three years. Relator Hedstrom, who was re-appointed to the EDA board in 1999, had 15 years’ experience as a county board member and earlier service on the EDA board.
Zankman called other commissioners to attend a special meeting on November 8, 1999. Pursuant to the EDA policies and procedures, a special meeting can be called by the president or two board members. Cook County/Grand Marais Joint EDA, Policy and Procedures, § II, II.H.2. The director must be notified of the time and place of the special meeting and provide “proper” notice to board members, and notice of the date, time, place, and purpose of the special meeting must be posted in writing at least three days before the meeting. Id. Zankman failed to fulfill these requirements.
In addition, the EDA policies and procedures incorporate their own version of the open meeting law embodied in Minn. Stat. § 471.705 (1998). Three exceptions to the open meeting law exist. The EDA policies and procedures state that meetings may be closed only to (1) consider strategy or review proposals for labor negotiations; (2) discuss matters protected by attorney-client privilege; or (3) conduct disciplinary proceedings against employees. Id. at § II, II.H.4. Any closed meeting must be tape-recorded and the tape made public once the matter addressed is resolved. Id. Once the November 8, 1999 meeting commenced, the commissioners agreed to call it a “workshop” and not take any formal action because it was not in compliance with the open meeting law.
The following day, November 9, 1999, a regularly scheduled meeting of the EDA was held. Notice of this meeting complied with the open meeting law. But when the discussion focused on the director’s salary and duties, the president of the EDA asked the director to leave. Although the president acknowledged that he did not know whether his decision to close the meeting was legal, the commissioners, including Zankman and Hedstrom, agreed to close it. The videotape recorder was turned off by Hedstrom and no audio recording of the meeting was made. Notes of the meeting later submitted as evidence at the hearing indicate that topics other than the director’s salary and position were discussed.
The Cook County Board, with the exception of Commissioner Hedstrom, requested the resignation of all four of the county-board EDA appointees on the ground that the open meeting law and EDA policies and procedures were violated by the occurrence of the meetings on November 8 and 9, 1999. Two of the commissioners, James Vick and Darold Rosbacka, complied with the request and resigned. Because Hedstrom and Zankman refused to resign, the county board issued written notice of removal to relators dated December 10, 1999. The board held a public hearing on the charges against Hedstrom and Zankman in Grand Marais on December 21, 1999. Evidence was presented and testimony taken.
It is undisputed that relators, specifically Zankman, failed to follow the correct steps in calling the special meeting that was held November 8, 1999. Relators acknowledge that this was a violation of EDA policies and procedures and the open meeting law.
It is also undisputed that the closed meeting held on November 9, 1999, was not recorded. Relators acknowledge that this, too, was a violation of the open meeting law and EDA policies. The actual subject matter discussed during the meetings is in dispute.
Following is a synopsis of the county board’s findings as to the relators’ violations:
1. Failing to notify the director of the EDA with respect to the request for a special meeting on November 8, 1999;
2. Requesting the other commissioners of the EDA to attend the November 8, 1999 meeting without posting the meeting and notifying the media, as well as others who were on the list of individuals who wish to be notified of meetings of the EDA;
3. Continuing the November 8, 1999 meeting after commissioner Peterson pointed out that the meeting was in violation of the open meeting law;
4. Agreeing with the President, Mr. Rosbacka, to closing the November 9, 1999 meeting;
5. Nonfeasance based on the above, within the meaning of Minn. Stat. § 469.095.
1. Attending the November 8, 1999 meeting;
2. Continuing the November 8, 1999 meeting after commissioner Peterson pointed out that the meeting was in violation of the open meeting laws;
3. Agreeing with the President, Mr. Rosbacka, to closing the November 9, 1999 meeting and failing to record the meeting;
4. Nonfeasance based on the above, within the meaning of Minn. Stat. § 469.095.
The board made its findings and decision in Resolution No. 2000-06, entered on January 11, 2000, removing relators Hedstrom and Zankman from the board. This appeal follows via writ of certiorari.
D E C I S I O N
An agency acts in a quasi-judicial manner
when the commission hears the view of opposing sides presented in the form of written and oral testimony, examines the record and makes findings of fact.
In re Signal Delivery Serv., 288 N.W.2d 707, 710 (Minn. 1980). By way of Resolution No. 2000-06, the Cook County Board of Commissioners removed relators from their unexpired terms of office. The parties do not dispute that this matter is quasi-judicial in nature.
1. Standard of Review
When an agency acts in a quasi-judicial capacity, an appellate court applies the substantial-evidence test on review. Id. at 710. Substantial evidence is 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.
Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984) (citation omitted).
The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted. If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.
Id. at 668-69 (citations omitted). In general, great deference is given to administrative factfinding that is supported by substantial evidence. Hough Transit, Ltd. v. Harig, 373 N.W.2d 327, 333 (Minn. App. 1985).
The functions of factfinding, resolving conflicts in the testimony, and determining the weight to be given to it and the inferences to be drawn therefrom rest with the administrative board.
Quinn Distrib. Co. v. Quast Transfer, Inc., 288 Minn. 442, 448, 181 N.W.2d 696, 700 (1970) (quotation omitted).
2. Grounds for Removal
Respondent based the removal of relators Hedstrom and Zankman on the following statutory provision:
Subd. 5. Removal for cause. A commissioner may be removed by the city council for inefficiency, neglect of duty, or misconduct in office. A commissioner shall be removed only after a hearing. A copy of the charges must be given to the commissioner at least ten days before the hearing. The commissioner must be given an opportunity to be heard in person or by counsel at the hearing. When written charges have been submitted against a commissioner, the city council may temporarily suspend the commissioner. If the city council finds that those charges have not been substantiated, the commissioner shall be immediately reinstated. If a commissioner is removed, a record of the proceedings, together with the charges and findings, shall be filed in the office of the city clerk.
Minn. Stat. § 469.095, subd. 5 (1998) (emphasis added). 1988 Minn. Laws ch. 516, § 4, subd. 2, which is part of the law that originally created the EDA, directs that the removal of commissioners is governed by Minn. Stat. § 469.095 (1998). In addition, respondent refers to its written policies and procedures manual for the authority to remove commissioners from office:
The County Board and/or City Council also has the power to remove certain board members from public office if there is evidence that the person has been guilty of malfeasance or nonfeasance in performing official duties.
Cook County/Grand Marais Joint EDA, Policy and Procedures, § II, II.D.3. This provision reflects the Minnesota constitution’s requirements for removal of public officers.
Article VIII of the Minnesota Constitution provides in relevant part:
Sec. 5. Removal of inferior officers. The legislature of this state may provide for the removal of inferior officers for malfeasance or nonfeasance in the performance of their duties.
Minn. Const. art. VIII, § 5. Because “no statute can do what cannot be constitutionally done[,] * * * any removal of a public official from office must be in conformity with our constitution.” Claude v. Collins, 518 N.W.2d 836, 842 (Minn. 1994).
Here, relators were found by the county board to have committed nonfeasance and neglect of duty for their roles and participation in two closed meetings. Nonfeasance is a “‘neglect or refusal, without sufficient excuse, to do that which is the officer’s legal duty to do.’” Id. (quoting Jacobsen v. Nagel, 255 Minn. 300, 304, 96 N.W.2d 569, 573 (1959) (citation and quotation omitted)). This nonfeasance “must ‘affect * * * the performance of official duties * * * [and] must relate to something of a substantial nature directly affecting the rights and interests of the public.’” Id. (alterations in original) (citation omitted). The record indicates that the meetings held on November 8 and 9, 1999, involved official duties and public interest.
The open meeting law
creates a duty for public officials, with very limited exceptions, to hold meetings open to the public and to limit the subjects discussed in closed meetings.
Id. at 842. Absent a sufficient excuse, participation in a closed meeting constitutes nonfeasance. Id. “Ignorance alone * * * does not amount to good faith or sufficient excuse.” Id. at 843. On the other hand,
[i]gnorance due to inexperience may constitute good faith and amount to sufficient excuse where the elected official neither knows or has reason to know that he or she is violating the Open Meeting Law.
Id. In the present case, the county board considered the relators’ proffered excuse of ignorance/inexperience and found it to be without merit. Zankman has been on the EDA for three years and admittedly is familiar with the policies and procedures. Hedstrom has 15 years’ experience as a county board member and previous service on the EDA board. The record supports the county board’s finding that relators had significant experience and knew or should have known they were violating the open meeting law.
Relators argue that, even if the conduct was in violation of the open meeting law, the following provision of Minn. Stat. § 471.705 (1998) requires three intentional, separate violations before removal is appropriate:
If a person has been found to have intentionally violated [the open meeting law] in three or more actions brought under this section involving the same governing body, such person shall forfeit any further right to serve on such governing body or in any other capacity with such public body for a period of time equal to the term of office such person was then serving.
Id., subd. 2(a). We conclude that this argument is incorrect. The basis for the county board’s removal of the relators did not rest solely on a violation of the open meeting law as embodied in Minn. Stat. § 471.705, but rather on nonfeasance within the meaning of Minn. Stat. § 469.095. The nonfeasance was based on violations of EDA policies and procedures as well as the open meeting law. Minn. Stat. § 469.095 provides for removal based on nonfeasance (“neglect of duty”) regardless of the underlying violation.
The record supports the county board’s findings that violations of the open meeting law, as well as of EDA policies and procedures occurred. From a “substantial evidence” perspective, the record is sufficient to support the board’s decision.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.