may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Olmsted Soil & Water Conservation District,
Olmsted County District Court
File No. C3993316
William B. Butler, William B. Butler, PLLC, 4100 Multiflood Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Bruce K. Piotrowski, George F. Restovich, George F. Restovich & Associates, 117 East Center Street, Rochester, MN 55904; and
Gregory J. Griffiths, Dunlap and Seegar, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellants)
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the district court’s conclusion that they violated the Minnesota Open Meeting law and the court’s award of attorney fees to respondent. Respondent seeks review of a summary judgment dismissing her claims under the Minnesota Whistleblower Act and the Minnesota Human Rights Act. We affirm.
Respondent JoAnn Wegman is an elected member of the board of supervisors for appellant Olmsted County Soil and Water Conservation District (SWCD). Appellants Stephen Nigon and William Fritts served on the board of supervisors in 1998 and 1998-1999, respectively.
Steven Connelly served as the SWCD’s manager from October 1995 until July 1999 when the board voted to terminate his employment. In 1998, an SWCD staff member, Dorothy Miller, contacted the chairman of the board of supervisors about employment concerns involving Connelly and asked to meet with the board without Connelly present. The board had an unwritten policy that if an employee wished to discuss an employment concern, the employee was to bring the concern before the entire board. Before July 1998, the board had never excluded an employee from a closed meeting concerning that employee’s performance.
At the July 28, 1998, board meeting, the chairman announced that Miller was coming before the board with personnel concerns and that she had requested a closed meeting. Before the chairman’s announcement, the board members were not aware that a portion of the meeting was going to be closed. The board gave no notice that it would be going into a closed session.
Connelly was at the July 28 meeting when the chairman made the announcement. The chairman informed the board that the issues concerned Connelly “in part.” Connelly’s request to remain at the meeting was denied. Connelly did not ask that the meeting remain open to the public. Wegman made a motion to close the meeting. The motion was seconded and passed. The closed session related solely to Connelly and his job performance. At its next open meeting, the board did not summarize its conclusions regarding Connelly’s evaluation.
The agenda mailed in advance of the board’s November 24, 1998, meeting stated that a portion of the meeting would be closed to discuss a personnel evaluation. At the meeting, Connelly asked to be present if the closed portion of the meeting concerned him but was told that he could not remain at the meeting. Connelly did not ask that the meeting remain open to the public. The closed portion of the meeting related solely to Connelly’s job performance, and the board again failed to summarize its conclusions regarding the evaluation at the next open meeting.
On November 5, 1999, Wegman filed a complaint alleging that appellants violated the open-meeting law by failing to inform Connelly that he was the subject of the July 28, 1998, closed meeting involving personnel issues, and by not allowing Connelly to attend the closed portions of the July 28 and November 24, 1998, meetings after he asked to do so. Wegman also asserted claims under the human rights act and the whistleblower act for alleged discrimination by the board in retaliation for her disclosing the open-meeting-law violations.
Appellants moved for summary judgment. The district court denied summary judgment with respect to Wegman’s claim that the board failed to open meetings and failed to properly notify Connelly about the closed meetings. The court granted appellants summary judgment with respect to Wegman’s claims under the whistleblower act and the human rights act. The court determined that because Wegman is an elected official, and not an employee, she had no cause of action under either statute. The court also concluded that appellants were immune from suit with respect to Wegman’s claims under the human rights act.
Following a bench trial, the district court found that because the closed portion of the July 28, 1998, regular meeting was not on the agenda, the closed portion of the meeting was a “special meeting,” and the SWCD failed to comply with the statutory, three-day notice requirement for special meetings or the 24-hour, “actual-notice” alternative permitted by statute.
The district court also concluded that the SWCD violated the open-meeting law by failing to inform Connelly that he was the subject of the July 28 closed meeting and by not permitting Connelly to attend the closed portions of the July 28 and November 24 meetings as he requested. Finally, the court concluded that Wegman was entitled to reasonable costs and disbursements and attorney fees.
Appellants did not move for a new trial and appealed from the district court judgment. Wegman noticed review of the district court’s grant of summary judgment with respect to her claims under the human rights act and the whistleblower act.
Appellants argue that the district court erred in concluding that the SWCD violated the open-meeting law when it did not allow Connelly to remain at the closed portions of the July 28 and November 24 meetings. Appellants contend that in reaching this conclusion, the district court incorrectly interpreted language in Minn. Stat. § 13D.05, subds. 2, 3 (2002), that provides that when a public body closes a meeting to consider allegations or charges against an individual who is subject to the public body’s authority, or to evaluate the performance of an individual who is subject to the public body’s authority, the “meeting must be open at the request of the individual who is the subject of the meeting.” Appellants acknowledge that this is an issue of statutory construction.
Appellants raise another issue of statutory construction in challenging the district court’s award of attorney fees to Wegman. The open-meeting law permits the court to “award reasonable costs, disbursements, and reasonable attorney fees of up to $13,000 to any party in an action under this chapter.” Minn. Stat. § 13D.06, subd. 4(a) (2002). The district court awarded Wegman reasonable costs and disbursements and $7,500 in attorney fees.
Appellants argue that attorney fees may not be awarded against a public body because the statute authorizes an action for a remedy only against members of the public body, not against the public body itself. Appellants ask this court to interpret Minn. Stat. § 13D.06 (2002) to determine (1) whether the statute authorizes an action against a public body or only against the members of the public body; (2) under what circumstances attorney fees may be awarded; and (3) what intent is required to permit an award under the statute.
This court applies a de novo standard of review to an issue of statutory construction. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). But because appellants did not make a motion for a new trial, the statutory-construction issues they raise on appeal are not within this court’s scope of review, and we will not address them. See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (concluding that issue of statutory interpretation was outside scope of appellate review where appellant failed to move for a new trial).
Appellants next argue that the district court impermissibly concluded that they violated the open-meeting law by failing to notify Connelly that the closed portion of the July 28 meeting concerned him and by failing to comply with the statutory, three-day notice requirement for special meetings or the 24-hour, actual-notice alternative. Appellants contend that the court should not have addressed these notice issues because: (1) Wegman’s claims regarding lack of notice concerned August, October, and December 1998 meetings, and those claims were dismissed in the court’s summary judgment order; (2) The issue whether Connelly was notified that he was the subject of the July 28 meeting was not being tried by the parties; and (3) The complaint did not plead lack of notice with respect to the July 28, 1998, meeting and the issue of notice was not tried by consent of the parties.
Because alleged errors occurring at trial that are not assigned as error in a motion for a new trial are not subject to appellate review, and appellants did not make a motion for a new trial in which the district court’s consideration of these notice issues was assigned as error, the court’s conclusions regarding the notice issues are outside this court’s scope of review. Sauter, 389 N.W.2d at 201.
By notice of review, Wegman challenges the district court’s grant of summary judgment in favor of appellants with respect to her claims under the human rights act and the whistleblower act. On appeal from summary judgment, the reviewing court must determine (1) whether there are any genuine issues of material fact and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is appropriate when there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court reviews “the evidence in the light most favorable to the party against whom judgment was granted.” Id. (citation omitted).
Wegman alleged that appellants discriminated against and penalized her in violation of Minn. Stat. §§ 181.931-.935 (2002) (whistleblower act) after she reported violations of the open-meeting law to the county attorney. The board voted to remove Wegman from certain committees and to withdraw from a state association in which she participated.
The Whistleblower Act provides:
An employer shall not discharge, discipline, * * * otherwise discriminate against, or penalize an employee * * * because * * * the employee * * * in good faith, reports a violation or suspected violation of any * * * state law * * * to any governmental body or law enforcement official.
Minn. Stat. § 181.932, subd. 1(a). Under the statute, the state of Minnesota and its political subdivisions are employers. Minn. Stat. § 181.931, subd. 3. Minn. Stat. § 181.931, subd. 2, defines “employee” as “a person who performs services for hire in Minnesota for an employer. Employee does not include an independent contractor.” The district court reasoned that under the plain language of the statute, Wegman could not assert a cause of action because she is an elected official, not an employee for hire. We agree.
The supreme court has explained:
The approach invariably used * * * for determining whether one is an employee or an individual contractor focuses on the nature and extent of control reserved by the person for whom the work is done. In Frankle v. Twedt, 234 Minn. 42, 47, 47 N.W.2d 482, 487 (1951), we elaborated that—“ * * * [t]he determinative right of control is not merely over What is to be done, but primarily over How it is to be done. Basically, it is the distinction between a person who is subject to orders as to How he does his work and one who agrees only to do the work in his own way.”
Corbin v. Comm’r of Revenue, 307 Minn. 237, 241-42, 240 N.W.2d 809, 812 (1976) (omission and alteration in original) (citations omitted).
As an elected official, Wegman was a member of the board of supervisors; she did not work for the SWCD. The SWCD did not have the right to control either what Wegman did or how she did it, and it did not have authority to remove Wegman from the board. See Minn. Stat. § 103C.315, subd. 5 (2002) (state board of water and soil resources may remove district supervisor “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason”).
Wegman notes that under Janklow v. Minn. Bd. of Exam’rs, 536 N.W.2d 20 (Minn. App. 1995), aff’d 552 N.W.2d 711 (Minn. 1996), the state and its political subdivisions are not immune from whistleblower claims and argues that because the legislature defined employer to include the state and its political subdivisions, it intended elected officials to have protection under the statute. But because the state and its political subdivisions may have employees who are not elected officials, the fact that they are not immune from whistleblower claims does not mean that elected officials are employees protected under the act.
Wegman also challenges summary judgment dismissing her claims under the human rights act. Wegman alleges that appellants made discriminatory comments about Connelly and that when, in conjunction with Connelly’s termination, she warned the board of its discriminatory comments and potentially illegal activity, she was removed from committees, excluded from informal meetings where board business was discussed, and the board refused to pay dues to a state association, which caused Wegman to be removed from prominent and influential positions.
The district court granted summary judgment to appellants on three separate grounds: (1) As an elected official, Wegman was not an employee under the human rights act; (2) Committee assignments and organizational leadership positions are not a public service within the ambit of the human rights act; and (3) Decisions to appoint committees and to withdraw from state associations are legislative acts, and under Farrington v. City of Richfield, 488 N.W.2d 13 (Minn. App. 1992), appellants are immune from suit for legislative acts.
On appeal, Wegman challenges the first two grounds for summary judgment, but she does not address the district court’s decision that appellants are immune from suit for legislative acts. In Farrington, a person who sought appointment to fill a vacancy on the Richfield city council was not appointed and brought suit against the city and current and former council members and mayors alleging age and sex discrimination. Id. at 15. This court held that appointment to the city council was a legislative act, and the defendants were immune from suit for their legislative acts. Id. at 16. Like appointing a person to a city-council position, appointing a board member to a committee, discussing board business, and deciding to withdraw from a state association are legislative acts. The district court did not err when it granted summary judgment because appellants are immune from suit for these legislative acts.
Because the district court properly granted summary judgment on immunity grounds, it is not necessary to address Wegman’s challenges of the other two grounds for summary judgment relied upon by the district court.
 Claims against other board members for engaging in serial meetings in violation of the open-meeting law were dismissed by the district court at the conclusion of trial. Thus, only the SWCD, Nigon, and Fritts are associated with the issues on appeal.
 Appellants’ summary-judgment motion was also granted in part and denied in part with respect to claims that appellants engaged in serial meetings in violation of the open- meeting law. The claims alleging serial meetings in violation of the open-meeting law were ultimately dismissed by the district court at the conclusion of trial upon appellants’ motion for directed verdict.