This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1419

 

 

In re Traverse County Attorney Salary and

Budget for 2003

 

 

Filed May 4, 2004

Affirmed

Randall, Judge

 

Traverse County District Court

File No. C7-02-165

 

 

Matthew P. Franzese, Traverse County Attorney, 218 Third Avenue East, Suite 102, Alexandria, MN 56308 (for appellant Traverse County Attorney)

 

Michelle M. Soldo, Carlson & Soldo, 420 Summit Avenue, #300, St. Paul, MN. 55102 (for respondent Traverse County Board of Commissioners)

 

 

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Matthew P. Franzese, the Traverse County Attorney, challenges the district court’s determination that the Traverse County Board of Commissioners was not arbitrary, capricious, or unreasonable in its decision to set the salary and budget for the county attorney’s office lower for appellant than for his predecessor.  Appellant also argues that because the Board failed to set a minimum salary for the office in January 2002, as required by statute, the salary has to be set at the level of the previous term.  We affirm.

FACTS

            On November 5, 2002, appellant Matthew Franzese was elected to the position of Traverse County Attorney.  That day, the Traverse County Board of Commissioners (the Board) passed a resolution setting the statutory minimum salary for the office at $4,000, the minimum guaranteed by Minn. Stat. § 388.18, subd. 1(a) (2002).  Appellant’s predecessor in the position was a private attorney appointed by the Board when no qualified candidate chose to run for the office in 1998.  The predecessor was paid a flat fee of $66,700 in 1999 and 2000, and $68,700 in 2001 and 2002.

            On November 13, appellant met with the Board to present his 2003 budget and salary request.  Appellant’s total salary and budget request totaled $76,398.68, including a salary of $50,000, $9,012 for health insurance, $42 for life insurance, $54.68 for disability insurance, $2,765 for PERA, $3,825 for social security, $7,000 for office expenses, and $3,700 for contingency expenses.  Appellant also submitted his resume, a survey showing county attorney salaries for surrounding counties and counties of similar size, a list of previous Traverse County attorney salaries and budgets for 1998 through 2002, a list of 2002 salaries for other Traverse County officials, and a caseload breakdown for the years 2000, 2001, and the first eight months of 2002.  Based on this information, appellant asserted that his salary and budget request was reasonable, as the duties of the office had not changed significantly from the previous county attorney.

            The Board held a meeting and tentatively approved a county attorney salary and budget of $55,426.80.  The salary included in this amount was $35,000.  According to the 2002 survey of county attorneys, the Traverse County attorney spends on average 30% of his time on county-related work.  Thus, the Board calculated that the $35,000 part-time translated to a “full-time” salary of $116,667.  The budget proposed by the county included $3,000 for office expenses, rather than the $7,000 appellant requested.

            Upon receiving notice of the Board’s resolution, appellant requested a second meeting to present a revised salary and budget request.  This time, appellant asked for a salary of $44,000, $6,500 for office expenses, and other reduced amounts for benefits, for a total of $68,623.  Appellant explained to the Board that the amount was based on the salary and budget authorized for his predecessor.

            On December 17, 2002, the Board passed a resolution authorizing a part-time county attorney salary and budget of $57,134.50 for 2003.  The salary was to be $36,000, and office expenses $3,000.  The resolution stated that the salary and budget were reasonable considering the overall financial condition of the county and existing levy limits.  It also explained that appellant did not have any prior experience as a county attorney or assistant county attorney, and that the Board was unable to judge his qualifications or past performance in that capacity. 

            Appellant challenged the Board’s salary and budget decision in the district court pursuant to Minn. Stat. § 388.18, subd. 6 (2002).  In affirming the Board’s decision, the district court found that the Board had not acted in an arbitrary or capricious manner and had not unreasonably disregarded the duties of the county attorney’s office or appellant’s qualifications in setting the salary and budget.  This appeal follows.

D E C I S I O N

I.

Appellant argues that the district court erred in finding that the Board resolution setting the salary and budget for the office of county attorney lower than the previous year was not arbitrary and capricious.  Minn. Stat. § 388.18, subd. 6 (2002), allows that a county attorney dissatisfied with a county board resolution setting budget or salary for the office may appeal to the district court.  If the district court finds that the board’s actions were “arbitrary, capricious, oppressive or unreasonable, it shall remand the matter to the county board for further action consistent with the court’s finding.”  Id. 

            On review, this court is to “independently examine the record and make a determination as to the propriety of the Board’s decision.  No special deference need be given to the review conducted by the trial court.” In re Mille Lacs County Atty. Salary and Budget for 1987, 422 N.W.2d 291, 294 (Minn. App. 1988) (citing Amdahl v. County of Fillmore, 258 N.W.2d 869, 874 (Minn. 1977)). 

            Appellant bears the burden of showing that the Board’s action was arbitrary and capricious, or in unreasonable disregard of his duties and responsibilities.  Amdahl, 258 N.W.2d at 876.  To defend its salary and budget resolution, the Board needs to show that it had more than a summary knowledge of the responsibilities and duties of the county attorney’s office; and that those responsibilities and duties played a substantial part in the determination of the salary for the office.  Stensland v. County of Faribault, 365 N.W.2d 224, 229 (Minn. 1985). 

            Appellant argues that the Board placed undue importance on his personal qualifications, and failed to give adequate consideration to the duties and responsibilities of the position.  Appellant asserts that the Board assumed he was less qualified or able to perform the duties of county attorney without actually inquiring of him or his colleagues to learn more about his abilities.  He also asserts that the Board never discussed with him the duties and responsibilities of the office, and that they displayed to him a less-than-complete understanding of the county attorney’s job.  Appellant claims that the salary cut makes the county attorney the lowest-paid elected officer in Traverse County, a situation not found in other counties.  Appellant provided letters from newly elected county attorneys in other counties who stated that they were receiving the same salary as their predecessors.   Appellant also provided salary surveys from surrounding counties, and an article in which county commissioners were quoted talking about appellant as though he had been hired to be the county attorney, rather than elected.

            Appellant argues that the Board failed to show that its decision was based on the duties and responsibilities of the office, as it must be under Stensland, 365 N.W.2d at 229.  Appellant is correct that the Board based its decision, at least in part, on the fact that it did not find appellant’s experience and qualifications for the position to be equal to those of his predecessor.  But, it is also clear that the Board considered a number of permissible factors in reaching its salary and budget decision.  In defense of its decision, the Board submitted several affidavits.  First, the affidavit of the county coordinator, who explained some of the reasons that appellant’s proposed salary and budget were refused.  She noted that the Board rejected appellant’s request for $7,000 in office expenses because appellant indicated that he would office in the county seat only one day a week, and would not hire support staff or need any additional office space.  She also explained some of the discrepancies between the approved salary and those of surrounding counties—pointing out that most of the other county attorneys had previous county attorney experience, and all the counties had populations larger than that of Traverse County. 

            The Board also provided the affidavit of county commissioner Dean Gallup, who explained that county board members receive training in the duties of all county officers, including the county attorney; that they are familiar with the duties of the office from their experience with prior county attorneys, its review of annual budget requests, and the day-to-day relationship with the previous officeholder.  The Board was also concerned that appellant would not be able or available to perform certain required duties of the office due to his limited experience and his retention of his Wheaton City Attorney position and his private practice. 

            Gallup also explained that the Board had authorized a high salary to pay the previous county attorney, because he agreed to serve in the position only after no qualified person chose to run for election.  Gallup disputed appellant’s argument that he is the lowest-paid elected official in the county.  Because most county officials are full-time, and the county attorney is a part-time position, Gallup calculated that the county attorney’s salary, on a percentage-of-time basis, would make the position one of the highest paid in the county if it were full time. 

            While a county board must focus primarily on the duties and responsibilities of the office, it may also properly consider such factors as performance, experience, and available resources.  In re Mille Lacs County, 422 N.W.2d at 295.  The Board showed through its affidavits that it considered not only appellant’s personal experience and qualifications for the job, but also that it is aware of the duties and responsibilities of the county attorney’s office.  We understand appellant’s argument.  It would not have been inappropriate for the Board to pay appellant at least the same amount as his predecessor.  But, on appellate review, we cannot say that the County Board action was arbitrary and capricious.  We acknowledge, as did the district court, that the Board relied in part on the erroneous belief that the caseload for Traverse County had decreased dramatically from 1999 to 2002.  But, the Board showed that it did not rely solely on that fact in reaching its salary and budget determination.  We affirm the district court on this issue. 

II.

            Appellant argues that Minn. Stat. § 388.18, subd. 2 (2002) required the Board to set a minimum salary for the county attorney in January of the election year 2002.  Statutory construction is a question of law that this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Because the Board did not set the minimum salary until November 5, 2002, the day appellant was elected to office, appellant argues it should have set the salary at the level of the year before. 

Minn. Stat. § 388.18, subd. 2 states:

The county board of each of the counties specified in subdivision 1 annually shall set by resolution the salary of the county attorney . . . At the January meeting prior to the first date on which applicants may file for the office of county attorney the board shall set by resolution the minimum salary to be paid the county attorney for the term next following. 

 

            Appellant argues that “shall” in the second clause is mandatory, not directory.  As noted by both parties, the words “shall” and “must” are not always to be read as mandatory.  Wenger v. Wenger, 200 Minn. 436, 440, 274 N.W. 517, 519 (1937).  “Shall” should be read as directory, rather than mandatory, where “the act provided for is merely incidental or subsidiary to some chief purpose of the law and is not designed for the protection of third persons and the statute does not declare the consequences of a failure of compliance . . . .”  Id. 

             Minn. Stat. § 388.18, subd. 2 (2002) does not provide any consequences should a county board fail to set a minimum salary in January of the election year, and appellant cites no legal authority for his requested remedy.  Further, even if the Board had set the minimum salary in January, there is no evidence that it would have set it at an amount that would have reflected the actual salary the county attorney would receive.  As the district court stated, had the Board set the minimum at $4,000 in January rather than November 2002, appellant would be in essentially the same position, and would still be required to submit a salary and budget proposal for the Board’s review.  The statute requires the Board to set the minimum salary for the office, not the actual salary.  There is no showing by appellant that the Board’s failure to set the county attorney’s minimum salary in January caused him any actual prejudice.

Affirmed.